Opinion
RE-09-111
09-29-2016
ROBERT F. ALMEDER et al., Plaintiffs, v. TOWN OF KENNEBUNKPORT et al., Defendants.
ATTORNEYS FOR PLAINTFFS: SIDNEY THAXTER CURTIS THAXTER LLC CHRISTOPHER PAZAR DRUMMOND & DRUMOND LLP AG FOR INTERVENOR LAUREN E PARKER AG OFFICE OF THE ATTORNEY GENERAL ATTORNEYS FOR DEFENDANTS: MELISSA HEWEY AMY TCHAO DRUMMOND WOODSUM
ATTORNEYS FOR PLAINTFFS: SIDNEY THAXTER CURTIS THAXTER LLC
CHRISTOPHER PAZAR DRUMMOND & DRUMOND LLP
AG FOR INTERVENOR LAUREN E PARKER AG OFFICE OF THE ATTORNEY GENERAL
ATTORNEYS FOR DEFENDANTS: MELISSA HEWEY AMY TCHAO DRUMMOND WOODSUM
On September 19, 2016 the Town of Kennebunkport filed a motion in limine seeking to exclude the testimony of Plaintiffs' designated expert, Gordon Scannell, Esq., at trial. Since the 21-day response period under the rules has yet to run, this order does not address the Town's motion.
This order addresses the following motions: Plaintiffs' request under M.R. Civ. P 55(a) for entry of default against "all persons unascertained;" the State of Maine's motion for an order to amend and conform the pleadings; and Plaintiffs' two motions that seek rulings in limine on anticipated evidentiary and procedural issues at trial.
1. Plaintiffs' Request for Default against "All Persons Unascertained"
Pursuant to court order of August 30, 2010, as amended by an order of September 10, 2010, Plaintiffs served notice by publication to "Persons who are Unascertained and to the General Public. The notice was published in the Portland Press Herald on three days over three consecutive weeks-on September 16"v September 23'-, and September 30-, 2010. (Notice of Filing Aff. of Publication: Portland Press Herald (Oct. 5, 2010).) The notice specifically identified the date, location and nature of the pending action, the names and addresses of the Plaintiffs, as well as the present Defendants in the lawsuit. Plaintiffs have filed a request for an entry of default against "all persons unascertained" pursuant to M.R. Civ. P. 55(a).
Plaintiffs initially published a notice of this action in the York County Journal Tribune over three consecutive weeks in late 2009, attempting service by publication to "persons who are unascertained and the general public" of this action. Because there had not been prior court authorization under Rule 4, notice was published again in 2010.
The notice identified "present defendants" named in the lawsuit as "the Town of Kennebunkport, the State of Maine, Alexander M. Lachiatto and Judith A. Lachiatto; John Michie Harris and Sharon Eon-Harris; Richard J. Driver and Margarete K. M. Driver; and all persons who are unascertained, not in being, unkown or out of the State, heirs or legal representatives of such unascertained persons, or such persons as shall become heirs, devisees or appointees of such unascertained persons who claim the right to use or title in plaintiffs' property other than persons claiming ownership or easement by, through, or under an instrument recorded in the York county Registry of Deeds.".
Rule 55(a) provides that the clerk "shall enter" a default with respect to "a party against whom judgment for affirmative relief is sought" when that party "fails to plead or otherwise defend as provided by these rules and the fact is made to appear by affidavit or otherwise." Id. There being no objection, Plaintiffs' request for entry of default is granted. Pursuant to Rule 55(a), the clerk, shall enter a default against:
"all persons who are unascertained, not in being, unknown or out of the State, heirs or legal representatives of such unascertained persons, or such persons as shall become heirs, devisees or appointees of such unascertained persons who claim the right to use or title in plaintiffs' property other than persons claiming ownership or easement by, through, or under an instrument recorded in the York County Registry of Deeds."
2. State of Maine's Motion to Amend and Conform Pleadings
The State filed a motion to amend its pleading to conform to the evidence and proceedings in this action in order to "reflect that the State has litigated the claim that extensive public trust rights exist in the intertidal zone so that the State may further participate in and, as needed, appeal this Court's decision of the public trust 'claim.'" (State's Mot. for Order to Am. and Conform Pleadings 1.) The motion comes in the wake of the Law Court's 2014 decision vacating this court's 2012 partial judgment, noting that "no claims implicating the public trust doctrine are properly before us for review" because "the only claim to implicate the public trust" in the case was plaintiffs' title claim, which had yet to be addressed, and because the State had not filed a separate claim raising the public trust doctrine. Almeder et al. v. Town of Kennebunkport et al., 2014 ME 139, ¶ 37, 106 A.3d 1099.
Specifically, the motion seeks to add a one-paragraph counterclaim to the State's initial pleading, entitled, "Answer, Defenses and Counterclaims of State of Maine." The counterclaim would assert: "The public and individual members of the public have public trust rights which include the rights to use the intertidal zone of Goose Rocks Beach for recreational purposes related and unrelated to fishing, fowling and navigation." (Proposed Am. Answ., 8 )(Emphasis added).
Plaintiffs oppose the State's motion. They contend that the motion is untimely, and that the Law Court has already dismissed the public trust claim as untimely. Further, they contend that the State's claim of public trust rights is not justiciable and amounts to a request for an advisory opinion because there has been no infringement of the public's use rights, and that the public trust use rights in the intertidal zone are coextensive with common law rights of fishing, fowling and navigation, and subsumed by the public's rights to use the beach for recreational activities pursuant to the presumption of permissive use in the intertidal zone.
M.R. Civ. P. 15(b) provides that "[s]uch amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment." Moreover, leave to amend a pleading "shall be freely given when justice so requires." M.R. Civ. P. 15(a). "[I]f the moving party is not acting in bad faith or for delay, the motion will be granted in the absence of undue prejudice." Chrysler Credit Corp. v. Bert Cote's L/A Auto Sales, . 1998 ME 53, 115, 707 A.2d 1311. Undue prejudice may result when a proposed amended claim introduces an entirely new issue that has not been previously raised or litigated. Bangor Motor Co. v. Chapman, 452 A.2d 389, 393 (Me. 1982). Whether to allow a motion to amend "is left to the discretion of the trial court." Bernier v. Merrill Air Eng'rs, 2001 ME 17, ¶ 22, 770 A.2d 97.
The State of Maine sought to intervene as a defendant in this case, "citing the public interest in maintaining access to Maine's beaches." Order, Aug. 17, 2010, at 3. The court granted its motion, noting that "[t]his broad public interest in Maine's coast is distinct from the Town's particular interest in Goose Rocks Beach." Id. The State participated fully in the 2012 trial in this matter that focused directly upon the nature and extent of the public's rights in and use of Goose Rocks Beach. The State presented and queried witnesses at trial; submitted proposed findings of fact, conclusions of law and legal memoranda; and participated in the subsequent appeal to the Law Court.
Plaintiffs' complaint seeks (i) a declaration that they are "vested with title . . . free and clear of all claims . . . subject only to the public rights of usage in the Intertidal Property established by the Colonial Ordinance of 1647" (Count I for declaratory relief) and (ii) a judgment barring all claims of right in their property "subject to the limited public right in the Intertidal Property to fish, fowl and navigate as defined in the Colonial Ordinance of 1647" (Count II to quiet title). The scope of the public's use rights in the intertidal zone that are acknowledged by Plaintiffs is narrower than the scope of the public trust rights for which the State advocates. The extent of the general public's recreational rights in the intertidal zone encompassed by the presumption of permission would also appear to be narrower than the public trust rights claimed by the State because the former are merely permissive.
Accordingly, the States' motion to amend is granted solely to align the State's pleading with the reality of what has already transpired in this case, notably a full trial on the public prescriptive easement and public trust issues. The court reserves judgment as to any other issues that may arise depending on the outcome of the title trial, including the issue of whether the State's claim is justiciable at that point.
If, for example, the Town were to prevail on its counterclaim for title, there may be a question as to whether any further relief sought by the State of Maine would raise a justiciable claim in this case.
3. Plaintiffs' July 8, 2016 Joint Motion in Limine
Plaintiffs request in their July 2016 motion that the court issue an order (a) declaring that Justice Brennan's interpretation of the Danforth Deed in his 2011 summary judgment ruling is "law of the case" and not subject to re-litigation in this matter; and (b) requiring a party to make a threshold showing of title in order to "remain as a party in the title portion of this case, " i.e. have standing to challenge the opposing party's title. With regard to the latter issue, Plaintiffs also request that the court articulate the applicable burden of proof and the order of proof at trial.
a. Law of the Case and the Danforth Deed. The law of the case doctrine reflects the "wise policy that a judge should not in the same case overrule or reconsider the decision of another judge of coordinate jurisdiction." Blance v. Alley, 404 A.2d 587, 589 (Me. 1979) The doctrine serves a "practical judicial policy" that rulings on questions of law that are "clearly decided in the same action" should not be reopened by another judge in the same case except for "the most compelling reasons." Sprague v. Washburn, 447 A.2d 784, 787 (Me. 1982)
The law of the case doctrine resembles but does not operate as res judicata; nor does it deprive a judge of jurisdiction or power to rule differently on a question of law that previously has been decided by a different judge in the same case. Id.; Grant v. City of Saco, 436 A.2d 403, 405 (Me. 1981); Sprague v. Washburn, 447 A.2d 784, 787 (Me. 1982). See also Messenger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.) The doctrine does not bar revisiting a prior ruling on a legal issue when there is a lack of clarity, the availability of new evidence, or a need to correct error or prevent manifest injustice. Lord v. Murphy, 561 A.2d 1013, 1017 (Me. 1989). The Law Court has held that if a prior legal ruling in a case is erroneous it may be an abuse of discretion to invoke the law of the case doctrine as a reason for not revisiting it. Id.
The interpretation of a deed's language is a question of law. Eaton v. Town of Wells, 2000 ME 176, ¶ 19, 760 A.2d 232; Bennett v. Tracy, 1999 ME 165, ¶ 7, 740 A.2d 751. In interpreting the Danforth Deed, Justice Brennan applied the conventional canons of legal construction and concluded: "On its face, this document has the appearance of a deed, but it is a deed that only acted to confirm legal title to lands previously granted to the Town's earliest settlers;" and thus "the 1684 document does not convey any grant of new title, specifically the common and undivided lands within the Town's boundaries, to the Town." Order on Mot. for Summ. J. Dec. 22, 2011, at 6, 8. This ruling was based on a careful review of the deed's language, an extensive summary judgment record including an analysis of the surrounding circumstances and historical context, and citation to supportive legal precedent.
Construe a deed to give effect, if possible, to the intention of the parties; consider all words of a grant in light of the circumstances and conditions attending the transaction; look first within the "four corners" of the document; give words in the deed their "general and ordinary" meaning to determine any ambiguity; and do not consider extrinsic evidence of intent if the deed's language is unambiguous. Surrounding circumstances attendant to the execution of the deed, including the historical context in which it was executed, may be considered even if the plain language of the deed is unambiguous. Order on Mot. for Summ. J. Dec. 22, 2011, at 5 - 6.
Justice Brennan's interpretation of the Danforth Deed appears sound, and worthy of deference. However, his ruling was made at the summary judgment phase of this proceeding and, more precisely, in the context of denying both the Town's motion for summary judgment and the Plaintiffs' cross-motion for summary judgment on count I of the Town's counterclaim. Justice Brennan concluded that based on the summary judgment record before the court that the Town "had failed to prove as a matter of law" that the Danforth Deed was the document that conveyed title to the common and undivided lands to the Town. Order Mot. for Reconsid. Jan. 18, 2012, at 2 (Emphasis added). Even if the court concurs with Justice Brennan's conclusion that the deed's language is unambiguous, relevant evidence concerning attendant circumstances or historical context in addition to that contained in the summary judgment record, for example, may be offered at trial. The law of the case doctrine should not operate in these circumstances to limit consideration of potentially relevant evidence at trial. The court will make its final determination as to the meaning and effect of the Danforth Deed after considering all relevant evidence.
Moreover, based on the summary judgment record, the court further concluded that there remained material factual disputes concerning both Plaintiffs' and the Town's title claims. Plaintiffs had failed to prove that "title [to] the flats was vested in private hands" at the time the Town claims to have gained title to the intertidal zone. And, although the Town "still has a viable claim" of title that could overcome Plaintiffs' prima facie claim of title, "the implication that title to the common and undivided lands was vested in the Town raises a genuine issue of material fact to be resolved at trial." Order Mot. for Reconsid. Jan. 18, 2012, at 2, 4. Even if the Danforth Deed is not the source deed of the Town's title, it could still have relevance to its title claims by implication or otherwise. To the extent the motion seeks its exclusion in limine, the motion is denied and the court reserves judgment as to the admissibility and ultimate significance of the document until a more complete record is established at trial.
b. Town's Standing.
Plaintiffs challenge the Town's standing to contest their own prima facie title claims unless the Town first can demonstrate "color of title." They maintain that the Danforth Deed cannot satisfy that showing because the court has already that ruled the deed "does not convey any grant of new title ... to the Town." Order on Mot. for Summ. J. Dec. 22, 2011, at 8.
The Town has established sufficient color of title to remain as a party in this case, both to assert its own affirmative claim of title as well as to defend against or challenge plaintiffs' prima facie title claims. Color of title may be demonstrated by "[a] written instrument or other evidence that appears to establish title but does not in fact do so." Blacks Law Dictionary, 9" ed., at 302. Even if the Danforth Deed is not conclusive as to the Town's title claim, it would appear to satisfy this minimum threshold requirement. Moreover, apart from the Town's claim of title based on the Danforth Deed, there remain genuine issues of material fact concerning its potential claim of title by implication. See Order Mot. for Reconsid. Jan. 18, 2012, at 2. Even without its own affirmative title claim, the Town, which was named as a party defendant in this case, may have standing to contest claims of title in the intertidal zone of Goose Rocks Beach. See Eaton, 2000 ME 176, ¶ 19, 760 A.2d 232 (Town of Wells permitted to defend against claims of title to intertidal zone of Wells Beach even though it had no valid claim to title).
c. Burden of Proof.
A party affirmatively asserting a claim of title in a quiet title / declaratory judgment action bears the risk of non-persuasion. Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980) Plaintiffs assert claims of title in and to their properties on Goose Rocks Beach, including the intertidal zone seaward of their upland properties. They bear the risk of non-persuasion under Hodgdon, and thus the burden of proof. See also Marshall v. Walker, 93 Me. 532, 535, 45 A. 497 (1900) (In quiet title action involving tidal flats, "[h]e who begins the litigation must and ought to carry the burden of proving title.") Conversely, since the Town has also asserted title to the same tidal flats on the beach through its counterclaim, it too bears the burden of proof with respect to its claim. Hodgdon, 411 A.2d at 670-71. (Party asserting title, whether or not the nominal plaintiff in the action, bears risk of non-persuasion.)
A party claiming title has the initial burden of coming forward to present prima facie evidence of title. Prima facie evidence of title may be shown "by producing a warranty deed or quitclaim deed from a predecessor in the quitclaim deed who obtained title by a warranty deed or was in actual possession. A deed that only conveys the grantor's 'right, title and interest' is not a grant of a land or of a particular estate and is not prima facie evidence of title." Order Mot. for Reconsid. Jan. 18, 2012, citing Sargent v. Coolidge, 399 A.2d 1333, 1343 (Me. 1979). Where no such deed is provided, "prima facie evidence in legal intendment means evidence which if unrebutted or unexplained is sufficient to maintain the proposition, and warrant the conclusion to support which it [has been] introduced." Hann v. Merrill, 305 A.2d 545. 550 (Me. 1972), citing Carroll v. Boston Elevated Railway Co., 200 Mass. 527, 86 N.E. 793, 797 (1909).
Plaintiffs contend that if they make a prima facie showing of title based on a deed, and if that showing is "unrebutted by similar record or instrument, " then they are entitled to judgment as a matter of law. However, prima facie evidence of title alone may or may not entitle a Plaintiff to a judgment; the court must consider other relevant evidence to determine whether, in the end, each party has satisfied his or her burden of proving title by a preponderance of the evidence. See Order Mot. for Reconsid. Jan. 18, 2012; See also Eaton, 2000 ME 176, ¶ 27, 760 A.2d 232. Evidence rebutting a party's Evidence rebutting a party's prima facie showing may be relevant to the question of whether a that party has carried the burden of proving title by a preponderance of the evidence. See Hodgdon v. Campbell, 411 A.2d 667, 670 (Me. 1980); Blance, 330 A.2d at 798 (A party "may, however, always show that the [party asserting title] obtained nothing by his deed."); Hann, 305 A.2d at 550-51; Ripley v. Trask, 106 Me. 547, 76 A. 951, 952 (1910). See Eaton, 2000 ME 176, ¶ 27, 760 A.2d 232.
Ultimately, a party claiming title must present positive, affirmative proof of "better title, " and may not rely merely on the weakness of the opposing party's title. Sargent v. Coolidge, 399 A.2d at 1342; Blance, 330 A.2d at 798; Chaplin v. Barker, 53 ME. 275 (1865). In order to prevail, therefore, each individual Plaintiff bears the burden of proving by a preponderance of the evidence in light of all the evidence "better title than that of the [Town]" to the intertidal zone seaward of his or her upland beachfront property; and the Town, to prevail on its title claim, must prove the converse by a preponderance of the evidence. See Hodgdon, 411 A.2d at 671.
Cases articulating the standard of proof in title dispute cases have arisen in a variety of types of actions, including, for example, real actions (writs of entry); quiet title actions at law; quiet title actions at equity; and actions in trespass quare clausum fregit. Ultimately, as noted above, the party asserting an affirmative claim of title in a quiet title action bears the burden of proving by a preponderance of the evidence "better title" in the property than the opposing party. See Hodgdon, 411 A.2d at 670-71.
d. Order of Proof.
Plaintiffs will proceed first to present evidence of prima facie title. Evidence will be presented on a parcel-by-parcel basis. Absent an agreement on the order or grouping of parcels, Plaintiffs may present their case in the order and manner they choose. Each Plaintiff bears the initial burden of establishing prima facie title with respect to his or her individual claim.
The court's January 18, 2012 order denying plaintiffs' motion for reconsideration observed that the documents comprising the summary judgment record "do not show prima facie evidence of title for most of the Plaintiffs;" and suggested but withheld judgment that "a few of the Plaintiffs' current deeds appear to actually provide prima facie evidence of title (including Asplundh, Flynn, Gerrish, O'Connor /Leahy, Sandifer, Scribner, and Paley)." Order Mot. for Reconsid. Jan. 18, 2012, at 4.
Upon the conclusion of Plaintiffs' presentation of their prima facie cases, the Town may present its rebuttal evidence, if any, to Plaintiffs' prima facie title claims as well as evidence in support of its own prima facie claim of title.
The ruling above that the Town has shown sufficient color of title to defend against Plaintiffs' title claims does not, per se, establish its own prima facie title claim. Nor had the Town established prima facie title based on the summary judgment record. The Town's two other grounds for claiming title (court II, adverse possession, and count III, acquiesence) are not before the court in this phase of the proceeding.
Plaintiffs will have an opportunity to rebut the Town's evidence as to both Plaintiffs' title claims and the Town's own prima facie title claim.
4. Plaintiffs' March 5, 2015 Motion in Limine
Plaintiffs' March 2015 motion requests that the court bar admission of testimony of the Town's designated experts, Robert A. Yarumian, II, and Knud E. Hermansen, as defined by their designations, and further that any evidence or testimony concerning "modern" or "ancient" title "which claims as its genesis the Danforth Document" be excluded. Plaintiffs contend such testimony and evidence is irrelevant in light of the court's interpretation of the Danforth Deed in its order denying the Town's motion for summary judgment.
According to his designation, Robert A. Yarumian, II, is expected to offer testimony as to, among other things, the modern and ancient title history of Goose Rocks Beach as well as the historical location of Plaintiffs' property and the property of their predecessors in title; and offer an opinion that title to the beach rests in the Town. Knud E. Hermansen's designation states that he will offer opinion testimony regarding, among other things, the history of Plaintiffs' properties and title thereto, including legal analysis of and opinion testimony concerning documents within the chain of title and the impact of those documents on interpreting property boundaries and ownership of the relevant portions of Goose Rocks Beach.
In light of the court's ruling above in section 3(a), the testimony of the designated experts may have relevance. There remain disputed material factual issues with respect to the title claims of both Plaintiffs and the Town. See Order on Mot. for Summ. J. Dec. 22, 2011, at 12-14; Order Mot. for Reconsid. Jan. 18, 2012, at 2 (Summary judgment record implies title to common and undivided lands vested in Town, and raises genuine issue of material fact to be resolved at trial). The proposed testimony of these experts may have relevance to all parties' affirmative title claims, whether or not those claims depend upon or involve the Danforth Deed. The additional objections to Mr. Hermanseri's proposed opinion testimony on ground that it is cumulative of, and lacks an independent source of knowledge from, Mi. Yarumian's opinions are denied.
5. Summary of Order
a. Plaintiffs' Request for Entry of Default against "all persons who are unascertained " as more fully set forth above is GRANTED.
b. The State of Maine's Motion to Amend and Conform Pleadings is GRANTED.
c. Plaintiffs' July 8 2016 Joint Motion In Limine Regarding Law of the Case, Order of Proof and Burden of Proof is GRANTED IN PART with respect to the request to set out burden and order of proof, and DENIED in all other respects, as set forth above.
d. Plaintiffs' Motion In Limine Regarding Defendant's Expert Witness Testimony of Robert A. Yaiumian, II, and Knud E. Hermansen is DENIED.
The clerk may incorporate this order upon the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure,
SO ORDERED.