Lewien v. Cohen

• Decision Date: 24 July 1981
• Citation: 432 A.2d 800
• Parties: Emma LEWIEN v. Michael and Diana COHEN v. Ivan HANSCOM.
• Court: Maine Supreme Court

Page 800

432 A.2d 800

Emma LEWIEN v. Michael and Diana COHEN v. Ivan HANSCOM.

Supreme Judicial Court of Maine.

Argued June 16, 1981.

Decided July 24, 1981.

Earle S. Tyler, Jr., Milbridge, (orally), for plaintiff.

Fenton, Griffin, Chapman, Smith & Fenton, Douglas B. Chapman, Bar Harbor, (orally), for Michael and Diana Cohen.

Brown, Tibbetts, Churchill & Romei by John A. Churchill, Calais, for Ivan Hanscom.

Before McKUSICK, C. J., and WERNICK and GODFREY, JJ.

McKUSICK, Chief Justice.

In this action to try title to real estate located in the town of Trescott, the Superior Court (Washington County) dismissed the complaint before trial. In that complaint, plaintiff Emma Lewien claimed title in Count I to certain islands and in Counts II and III to a parcel which, though differently described, may include the islands described in Count I. The court held that Count I did not state a claim on which relief could be granted, M.R.Civ.P. 12(b)(6), and that Counts II and III were precluded by the res judicata effect of a 1968 judgment. Because we conclude that both of those holdings were erroneous, we vacate the judgment and remand the case to the Superior Court.

The Facts

Both plaintiff Emma Lewien and defendants Michael and Diana Cohen trace their claim of title to the disputed real estate to James A. Wilcox, who acquired a shorefront farm and several nearby islands before the turn of the century. The town of Trescott acquired the property by foreclosure of a tax lien in 1931. James A. Wilcox died in 1933. The town sold the property in 1943 to the Pressleys who, on July 1, 1968, conveyed it to Patricia Wick. On September 12, 1968, Wick obtained a judgment in a quiet title action barring all persons claiming any interest in the property through or under James A. Wilcox. In 1971 Wick conveyed the property to third party defendant Ivan Hanscom who immediately reconveyed it to defendants Michael and Diana Cohen by warranty deed. All but the last deed in that chain were quitclaims.

Plaintiff Lewien is one of James Wilcox's heirs-at-law and also is the grantee in trust under a 1973 release deed from all or most of the other heirs. In 1975 she commenced an action against the Cohens to try title to certain islands of the Wilcox property. ¹ Later, Lewien amended her complaint to add in Counts II and III a claim of title to real estate described substantially as set forth in the 1968 judgment. ² On Hanscom's motion for summary judgment the Superior Court dismissed Count I for failure to state a claim and Counts II and III on the ground of res judicata by the 1968 judgment. Plaintiff Lewien appeals.

I. Rule 12(b)(6) Dismissal of Count I

The Superior Court dismissed Count I of appellant's complaint because it did not "state a cause of action under any one of the several statutes establishing the terms and conditions for maintaining real actions." Appellant contends that the Superior Court erred in dismissing Count I of her amended complaint because, although the complaint did not cite a particular statute, it did allege facts sufficient to state a cause of action under 14 M.R.S.A. § 6701 (1980). ³ In response, defendants ⁴ contend that Count I fails to satisfy the pleading requirements of a real action brought under section 6701 and that the Superior Court justice was thus correct in ordering a Rule 12(b)(6) dismissal.

The cases cited by the Superior Court in support of its holding, Chickering v. Yates, Me., 420 A.2d 1219 (1980), and Hodgdon v. Campbell, Me., 411 A.2d 667 (1980), involved the peculiar features of Maine's statutory quiet title proceedings under 14 M.R.S.A. § 6651 and 14 M.R.S.A. § 6655. In contrast, an action under section 6701, though a sequel to a section 6651 case if the court orders the defendant to bring a real action, is a distinct legal proceeding. Unlike quiet title proceedings, a real action is only available to one out of possession who can prove an estate in the realty that entitles him to recover possession. See Bowie v. Landry, 152 Me. 88, 122 A.2d 774 (1956); Hall v. Decker, 48 Me. 255 (1860). It thus requires distinct allegations in the complaint, allegations that readily distinguish a real action from the statutory quiet title actions discussed in Hodgdon and Chickering. See generally Comment, Maine's Actions to Try Title: A Historical Perspective, 32 Me.L.Rev. 355 (1980).

The pleading requirements for a real action complaint are prescribed by M.R.Civ.P. 80A(c). ⁵ In Count I plaintiff Lewien alleged herself to have been seized in fee simple within 20 years and to have been disseized by defendants, and she demanded damages which had allegedly accrued. ⁶ To that extent, she fully complied with Rule 80A(c). Defendants, however, argue that Count I is deficient in two respects: first, that it does not comply with the rule's requirement that the demanded premises be clearly described, and second, that it does not demand possession.

Rule 80A(c) requires a clear description of the demanded real estate for the purpose of "provid(ing) a defendant with notice of what lands are involved to such a reasonable degree of certainty that he may identify the property at issue and protect his interests by proper pleading or disclaimer as the case may be." Sargent v. Coolidge, Me., 399 A.2d 1333, 1338-39 (1979). Accord, Merrow v. Norway Village Corp., 118 Me. 352, 354, 108 A. 325, 326 (1919). The real estate description set forth in Count I, see note 1 above, is adequate for at least that pleading purpose. On being served with the complaint, defendants knew that plaintiff was claiming certain islands, at least two of them known as the Pine Islands, located in Straight Bay within the town of Trescott and that they had been conveyed to James A. Wilcox in 1885 and 1896. They thereby had notice adequate for them to "identify the property at issue and protect (their) interests" therein. Having been fairly put on notice of the real estate plaintiff was demanding, defendants could obtain any greater precision they needed through a Rule 12(c) motion for a more definite statement and through discovery. In holding the Count I description adequate for pleading purposes, however, we at the same time emphasize that plaintiff's obligations of proof go further. Before she will be entitled to the relief she seeks, she must prove to the satisfaction of the Superior Court the exact islands at issue and provide an up-to-date description thereof for use by the court in any judgment that it ultimately enters.

We find no more convincing defendants' other claim of a pleading deficiency in Count I. Although a demand for possession is not listed among the pleading requirements of Rule 80A(c), such a demand did at common law constitute the gravamen of a real action, see Rogers v. Biddeford & Saco Co., 137 Me. 166, 16 A.2d 131 (1940); Hall v. Decker, 48 Me. 255 (1860), and we may assume that a properly pleaded complaint under section 6701 would specifically ask for that relief. Be that as it may, however, Count I was not deficient. It stated: "Plaintiff demands of defendants certain real estate ...." Consistently with the command of M.R.Civ.P. 8(f) that "(a)ll pleadings shall be so construed as to do substantial justice," we understand plaintiff Lewien to have been demanding all the rights that go with ownership of the described real estate, including possession. By demanding the real estate she inter alia demanded possession of it.

Since we conclude that Count I adequately pleads a cause of action under section 6701, we hold that the Superior Court erred in ordering a Rule 12(b)(6) dismissal of that count. Defendants, however, urge that the Law Court should nonetheless affirm on the ground that the Superior Court could alternatively have entered summary judgment for defendants. In other words, they contend that the Law Court should, on the basis of the whole record before the Superior Court, grant their motion for summary judgment. ⁷ That we decline to do. Except in extraordinary circumstances, we will not go beyond merely reviewing the action of the trial court. Although an appellate court must constantly be alert to promote judicial economy, countervailing considerations in the case at bar outweigh that factor. Summary judgment is an extreme remedy, denying the party against whom it is issued any trial of the facts. The trial court should enter it only with caution, to be sure that there in truth exists no genuine issue of material fact. Wallingford v. Butcher, Me., 413 A.2d 162, 164-65 (1980); Ouellette v. Daigle, Me., 219 A.2d 545, 548 (1966). It is the trial court's job in the first instance to make that determination; and even where the decision ultimately turns on a pure question of law, the judicial process operates with a greater certitude of reaching an ultimately correct result if the trial court first assembles the relevant uncontroverted facts and applies thereto what it views to be the appropriate legal rules, thus leaving it to the appellate court to review the correctness of the resulting judgment. We therefore vacate the judgment dismissing Count I and remand to the Superior Court for all further proceedings on that count.

II. Summary Judgment for Defendants on Counts II and III

Plaintiff next contends that the Superior Court erred in granting defendants summary judgment on Counts II and III of the complaint. The real estate involved in those counts was there described in language nearly identical to the language describing the land at issue in the 1968 quiet title proceeding initiated by Patricia Wick, which resulted in the 1968 judgment. In that proceeding, the court ordered service of process by publication, see M.R.Civ.P. 4(g), and when none of the named defendants made an appearance in the action, it appointed a guardian ad litem to represent them. The resulting 1968 judgment barred all claims to some or all of the Wilcox real estate by any person claiming through or under James A. Wilcox. By its...