Flaherty v. Muther

• Court: Maine Superior Court
• Writing for the Court: Robert E. Crowley Justice, Superior Court
• Decision Date: 08 July 2009
• Docket Number: SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-08-098
• Citation: Flaherty v. Muther, SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-08-098 (Me. Super. Jul 08, 2009)
• Parties: ROBERT FLAHERTY, et al., Plaintiffs/Third Party Defendants v. HELEN MUTHER et al., Defendants/Third Party Plaintiffs

ROBERT FLAHERTY, et al., Plaintiffs/Third Party Defendants v. HELEN MUTHER et al., Defendants/Third Party Plaintiffs

SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-08-098

Superior Court of Maine

July 8, 2009

STATE OF MAINE

CUMBERLAND, ss

ORDER ON PLAINTIFFS' AND THIRD PARTY DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Before the Court is Plaintiffs/Third Party Defendants Robert Flaherty, Sheryl Flaherty, Barbara Cotter, Joseph Cotter, Mary Arnold, Richard Raubeson, Kathleen Raubeson, James L. Moody, Jr., Marjorie Moody, Alison Perkins as Trustee of Moody Realty Trust, Paul Stewart, Melanie Stewart, Patricia Campbell, Joseph Hetrick, Eileen Hetrick, Nancy Wulf and Norman Wulf as Trustees of Nancy N. Wulf Living Trust, Steven McGrath and Elizabeth McGrath's motion for summary judgment against Defendants/Third Party Plaintiffs, Helen Muther and Paul Woods, individually and in their capacity as Trustees of the Buffett Coastal Trust, pursuant to M.R. Civ. P. 56. A second motion for summary judgment is also before the Court. Plaintiffs/Third Party Defendants Russell Pierce, Jacqueline Pierce, Paulette York, Todd Colpitts, Niamh Colpitts, David House, Susan House, David Meagher, and Ellen Meagher bring this motion. Together, the moving parties are referred to herein as "J-Lot owners" by virtue of their ownership interests in property designated on a recorded plan starting with a J". The Court considers these motions together due to the commonality of issues raisedin the motions.¹

BACKGROUND

In November 2005, Helen Muther and Paul Woods ("Muther and Woods") filed a complaint in this Court against what is now collectively known as the Broad Cove Shore Association (hereinafter "the Association"), docket number RE-05-169 ("the prior litigation"). In that case, Muther and Woods sought a declaratory judgment against the Association that it had "no legal right to access, cross, or use [Muther and Woods'] property in the walkway easement or any other location." RE-05-169 Pls.' Amend. Compl. ¶ 31(a). Muther and Woods also sought a permanent injunction against the Association "their agents, members, servants, employees, attorneys, and all persons in active concert or participation with it from using or claiming or asserting any right to use" Muther and Woods' property.² Id. ¶ 33. Muther and Woods also sought a declaratory judgment and a permanent injunction against Leslie B. Connolly ("Connolly").³

In a separate count, Muther and Woods sought damages for trespass and a declaratory judgment against Beth Ellen Hess ("Hess").⁴ Id. ¶ 53. Muther and Woods alleged that Hess "overburdened the walkway easement by her use of the walkwayeasement to access land other than the intertidal zone adjacent to Lot J-46, namely land now or formerly of Holt." Id. ¶ 49. Muther and Woods asserted another trespass/overburdening claim against Hess based on her alleged "open invitation" to allow others to use the walkway easement. Id. ¶ 57. In this count, Muther and Woods sought a declaratory judgment that the walkway easement "is appurtenant only to those lots established by the 1970 Plan and the 1969 Plan and may be used only by the Owners and/or occupants of said lots, and that the walkway easement is limited to the Owners and/or occupants of the lots created and established by the 1970 Plan and the 1969 Plan and only for the purposes of access to the high water mark of Casco Bay in the area shown on the 1970 Plan, and not beyond." Id. ¶ 58(b).

On November 29, 2006, the parties participated in a judicial settlement conference. At the end of the day, the parties reached an agreement and put the details of the agreement on the record ("Settlement Agreement"). After the parties reached an impasse during the drafting of the stipulated judgment, this Court permitted Muther and Woods to amend their pleadings to include a count for breach of the Settlement Agreement. Thereafter, this Court granted summary judgment for Muther and Woods on the issue of the existence of an enforceable, albeit imperfect, Settlement Agreement. After the entry of this order, some but not all, of the individual J-Lot owners came forward and filed motions to join in the prior litigation and for this Court to reconsider its summary judgment order. By Order dated April 2, 2008, entitled "Order on All Pending Motions," the Court denied the motions for joinder, reconsideration and the objection to the transcript. The Court then ruled that the case was concluded.

Subsequently, while the Association appealed from the Court's September 14, 2007 grant of summary judgment for Muther and Woods and the Court's April 2, 2008 order concerning the transcript, a new action was filed by some, but not all, of the J-Lotowners. In their answer, Muther and Woods counterclaimed and filed a third party complaint bringing all of the remaining J-Lot owners into the case.⁵

The Law Court affirmed this Courf s grant of summary judgment and its decision the motions to intervene. Muther v. Broad Cove Shore Ass'n, 2009 ME 37, ¶ 1, 968 A.2d 539, 540 (hereinafter Muther I).

DISCUSSION

I. Standard of Review

In a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party to decide whether the parties' statements of material facts and the referenced record material reveal a genuine issue of material fact. Rogers v. Jackson, 2002 ME 140, ¶ 5, 804 A.2d 379, 380 (citations omitted). The Court gives the party opposing summary judgment the benefit of any inferences that might reasonably be drawn from the facts presented. Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18, 22. If the record reveals no genuine issue of material fact then summary judgment is proper. Id. ¶ 6, 784 A.2d at 21. A genuine issue of material fact exists when there is sufficient evidence to require a fact-finder to choose between competing versions of the truth at trial. Lever v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845 A.2d 1178, 1179.

II. Preliminary Issues

First, with the exception of Hess, none of the J-Lot owners were named parties in the prior litigation. See Third Party Defendants' Supp. S.M.F. ¶ 10, Opp. S.M.F. ¶ 10. Hess was named individually; she was not named as a representative of the Association or as a representative of other J-Lot owners. See Pls.' Amend. Compl. ¶ 4. Therefore,the conclusion that the remaining J-Lot owners were not parties to the prior litigation is self evident given the pleadings in the prior litigation.⁶

Next, the summary judgment record clearly demonstrates that Muther and Woods' property is burdened by a 20-foot drainage and walkway easement in favor of the J-Lot owners. Third Party Defendants' Supp. S.M.F. ¶ 4, Opp. S.M.F. ¶ 4; Plaintiffs/Third Party Defendants S.M.F. ¶¶ 11-17, Opp. S.M.F. ¶¶ 11-17. It is similarly clear from the summary judgment filings that all issues regarding the scope of the J-Lot owners' easement rights, as well as permissible activities occurring on the area commonly referred to as Secret Beach cannot be resolved at summary judgment. This conclusion is consistent with the stipulation entered into by the parties at the trial management conference held on July 2, 2009.⁷

Some J-Lot owners also ask the Court to hold, as a matter of law, that Muther and Woods' boundary line extends no farther than the mean high water mark and that no other evidence, except the deeds and the recorded plans, is admissible to prove ownership. However, Muther and Woods present contrary evidence in the form of expert testimony by Donald R. Richards ("Richards"). Add'l S.M.F. ¶¶ 82-95. The Third Party Defendants themselves answer the question whether Muther and Woods' boundary line can be resolved at summary judgment. In denying paragraph 85, they state, "The location of the boundary is under dispute at [sic] to whether the easterly boundary of Lot J-46 is the top of the bank, the mean high water mark or the low water mark." Opp. Add'l S.M.F. ¶ 85 (internal citations omitted). Quite clearly, there are numerous genuine issues of material fact that require the fact-finder to choose betweencompeting versions of the truth. Accordingly, the Court denies summary judgment insofar as it relates to Muther and Woods' boundary line.

III. Binding Effect of the Settlement Agreement

In their motions for summary judgment, the J-Lot owners preemptively raise the issue of whether Muther and Woods may present evidence and argument at trial that the J-Lot owners are bound by the Settlement Agreement. The J-Lot owners present two theories in support of this argument. The first involves the doctrine of offensive non-mutual (i.e. third party) collateral estoppel. The second is, in essence, a sufficiency of the evidence argument. Each is addressed in turn.

A. Claim Preclusion

"Collateral estoppel applies only when the issue that the party is to be precluded from re-litigating has been (1) actually litigated; (2) determined by a final and valid judgment and (3) the determination is essential to the judgment." Society of Lloyd's v. Baker, 673 A.2d 1336, 1341, n.6 (Me. 1996). Muther and Woods, as the parties resisting the application of collateral estoppel, have the burden of establishing that they are prejudiced by the application of collateral estoppel in this action. See Van Houten v. Harco Constr., 655 A.2d 331, 333-34 (Me. 1995).

The Law Court has expressed a variety of concerns regarding third party collateral estoppel. Hossler v. Barry, 403 A.2d 762, 769 (Me. 1979) (discussing concerns such as prejudice to parties and the lack of judicial economy in this type of usage). Thus, third party collateral estoppel will not preclude the re-litigation of issues "unless it is shown that the judgment necessarily involved a determination of the fact sought to be included in the second suit." Lalumiere v.Miller, 1998 ME 274, ¶ 7, 722 A.2d 46, 48 (emphasis added) (quoting Susi v. Davis, 133 Me. 354, 357, 177 A. 610, 612 (1935)).

The J-Lot owners argue that Muther and Woods are precluded from arguing that they...