STATE OF MAINE SUPERIOR COURT HANCOCK, ss Docket No. CV 95-144 j/'V\( J J ~ \, ~·h,r'j, • •
C.P., A FLORIDA PARTNERSHIP Plaintiff
v
JOHN HURD, II, and JANICE L. HURD
DECISION
This case was presented to the Court as a jury waived
hearing on July 8 and 9, 2008, for trial on Plaintiff's
amended complaint.
Background
A two-count complaint was filed in November of 1995,
by Plaintiff. Count I sought a declaratory judgment of the
Plaintiff's rights in and over the Hurd property from
Plaintiff's lot to the Shore Road, alleging an easement by
implication. Count II sought a declaration of those rights
by a prescriptive easement.
Subsequently the parties represented to the Court in
1998 that they had reached a settlement of the underlying
1 litigation. A dispute arose as to the terms of the
settlement resulting in the Plaintiff filing a Motion to
Compel Settlement in 1999. Following a hearing, this Court
denied the Plaintiff's Motion to Enforce Settlement by its
Order dated August 1, 2007.
Plaintiff subsequently filed a Motion to Amend its
Complaint. In its December 17, 2007, decision granting
Plaintiff's Motion to Amend its complaint l , this Court made
it clear to the parties that the only issue before the
Court at the hearing on the Motion to Enforce was the
existence of and potential for enforcement of a 'settlement
agreement' which was reportedly entered into in 1998. By
its August 1, 2007, Order, the Court found a settlement
agreement did not exist. The amended complaint is now
before the Court for decision.
The Amended Complaint alleged as theories of recovery
(1) easement by implication/quasi easement; (2)
prescriptive easement; (3) easement of necessity; (4)
Defendant in its recent memo argued that the statute of limitations barred the contract claim as alleged in the amended complaint now before the Court. The Court notes that the issue of the statute defense and whether it was raised timely is academic since the amended complaint relates back to the date of the original filing under Rule 15(c) M.R.Civ.P., John W. Goodwin, Inc. v. Edward Fox, 642 A.2d 1339 (Me. 1994)
2 breach of contract; (5) equitable estoppel (it also
references that a declaratory judgment is being requested).
At the trial and without objection, Plaintiff dismissed
counts (1), easement by implication and (2) prescriptive
easement. Following the trial and at the request of the
parties, the Court and counsel participated in a 'view' of
the properties in question.
Facts
This dispute goes back prior to the 1990's.
Plaintiff's predecessor in title had access to his
property, which abutted that of the Hurds, by what was know
as the Shore Road. For reasons not relevant to this suit,
the Shore Road was discontinued as a public way that had
the effect of leaving Plaintiff's lot without road access,
but with water access. By this action Plaintiff is seeking
to confirm that he has access to his lot over the Gray Road
(an extension of what had been the Shore Road) which runs
over the Hurd property. The Hurds deny that such a right
exists.
This litigation crystallized when in the 1990's the
Defendants (Hurds), owning adjoining property to Plaintiff
advised the Plaintiff's predecessor in title (Adams) that
3 they would no longer permit them to go over the Hurd
property to gain access to a public road. 2
The Plaintiff takes the position that in the late
1990's the Hurds agreed with the Adams to permit the
Plaintiffs to travel over the Hurd's property in order to
gain access to the Plaintiff's lot from the public road
that adjoined the Hurd property. From the Adams's
perspective, the parties had an agreement to locate the
right of way or road that would cross the Hurd's property
and provide the Adams with access to their property.
Further, the Plaintiff takes the position that this
agreement was either an express or implied contract and
that Plaintiff materially altered their position to their
detriment in reliance on the Hurds express or implied
representations.
The Defendants take the position that they agreed 'in
concept' with a road going across their property to give
access to Plaintiff's, but they disagree as to where that
road would be located, the financial other consideration
for the agreement and an agreement was never reached.
2 The parties refer to the Plaintiff's property as the Adams lot and for ease of reference the Court will do so as well, appreciating that the real plaintiff is C. P. Florida Partnership, the successor in title to the Adams.
4 Defendants take the position that the road agreed to was to
be across a narrow area on or near the northerly line of
their property and not the road that they discussed with
surveyor nor the road which, in the last few years, has
been constructed on their property running from their
easterly line to the Hurd's garage.
Discussion
Plaintiff puts forth three theories in support of its
claim to road access across the Hurd's property to their
now landlocked property.
Easement by Necessity
The parties agree that the burden is on the landowner
claiming easement by necessity to demonstrate (1) the
conveyance of a lot out of a larger, divided parcel; (2)
the lack "for all practical purposes" of access to the
conveyed lot; and (3) the availability of relief in the
form of an easement across the retained land of the
conveyor. Amodeo v. Francis 681 A.2d 462, 465 (Me. 1996);
Morrell v Rice, 622 A.2d 1156, 1158-60 (Me. 1993).
This Court is persuaded and finds that for "all
practical purposes", Plaintiff does not have water access
5 to their property. This finding is based on the testimony
of civil engineer Parker, who had dock design experience.
That testimony (1) demonstrated the nature of the shore on
Frenchman Bay and the character of the water which adjoins
Plaintiff's property where a dock would have to be built;
(2) the uncertain likelihood of getting permits to build a
dock/wharf; (3) the $300,000 to $400,000 cost of building a
dock should one be permitted by State and Federal Agencies,
to which is added the cost of design; (4) the Court's view
of the property and shoreline in question. See Morrell v.
Rice, supra at 1160, n.6. Accordingly, on the facts
presented, the landlocked status of Plaintiff's property is
not relieved because it is bordered on one side by
Frenchman Bay.
The pivotal and dispositive factual issue from the
Court's perspective is the inability of the Plaintiff to
demonstrate that Plaintiff's lot was conveyed from a larger
lot (which included the Hurd's lot) and that the conveyed
lot (Plaintiff's) was landlocked by grantor's/conveyor's
surrounding land and cannot be accessed from a road.
(Amodeo v.Francis, surpa at 465).
6 Passing by the significance of the fact that
Plaintiff's lot became landlocked in 1993 when by
Declaratory Judgment it was determined that Plaintiff was
legally denied access by the Shore Road coming from the
North of Plaintiff's property and across property now of
Amundsen 3 , Plaintiff's lot was created in 1890 by the
conveyance from Susan M. Gerrish to Edmund H. Talbot 4 • At
the time of that conveyance, the 'greater lot' of Susan
Gerrish was separate and distinct from the 'greater lot' of
her sister Adelaide Gerrish, from whose lot the Hurd lot
was created through subsequent conveyance in the chain of
ownership of Adelaide Gerrish (See Plaintiff's Exhibit 32,
admitted by agreement). Plaintiff is claiming an easement
by necessity over the Hurd property which property
initially came from a larger piece that has its origin in a
conveyance from Adelaide M. Gerrish to William and Edward
Parker in 1893 5 • If the land from Susan Gerrish to Mr.
Talbot was landlocked (or declared without presumed
northerly access in 1993), that landlocked lot did not come
from the conveyance traceable back to the Adelaide Gerrish
3 See Amended Judgment and Findings of Fact, Dec. 14, 1993 (Mead, J.) Powers et ale v Inhabitants of the Town of Winter Harbor, et al., Hancock Docket No. CV-88-105 4 Hancock County Registry of Deeds Book 259, Page 134, dated October 25, 1890, [Defendant's Exhibit 223] 5 Hancock County Registry of Deeds Book 277, Page 333 dated December 27, 1893 [Defendant's Exhibit 218]
7 - Hurd lot. At best, assuming the landlocked status, the
law would imply an easement to Susan Gerrish land (Talbot
deed through to Plaintiff's deed). The Hurd deed is not in
that chain and Plaintiff can not carry the burden of proof
on the element which requires that they show that the
grantor's conveyance created an easement by necessity over
land that was not the grantor's at the time the landlocked
lot was conveyed. The deeds submitted as evidence and the
chain of title (Plaintiff's Exhibit 32 admitted by
Agreement) do not, as a matter of law, support proof of a
necessary element to demonstrate 'easement by necessity',
as claimed by the Plaintiff.
This Court finds and concludes that the Plaintiff has
failed in his burden of proof to demonstrate an easement by
necessity which would legally entitle Plaintiff, or their
sucessors in title, to cross the Hurd property.
Breach of Contract
Evidence of Negotiations
In its earlier decision on the enforceability of a
settlement agreement, the Court took no position on whether
the parties had entered into an agreement/contract
subsequent to the period alleged in the alleged settlement
8 agreement. The Motion to Enforce Settlement Agreement was
dated April 22, 1999 6 , and it was alleged that the
settlement was reached in July of 1998.
Counsel for Plaintiff has expressed concern over the
reference by Defendant's counsel to 'negotiations' that
have taken place between Plaintiff and Defendant off and on
over the last 10 years as manifested by conversations and
correspondence, much of which if not all of which is in
evidence either as part of the presentation on May 24 and
June 27, 2007 when the hearing took place on the Motion to
Enforce, or at the more recent hearings of July of 2008.
This Court is very conscious of the purpose and
limitations of Rule 408, M.R.Evid. The reality is that one
of Plaintiff's claims is to establish a contract, either
express or implied, between Plaintiff and Defendants. Of
necessity, to accomplish this, both sides needed to refer
to discussions, negotiations and conduct of the parties,
not for the purpose of compromising the negotiation process
and the confidentiality associated with it (See recently
enacted Rule 515, M.R.Evid.), but for the purpose of
establishing - or not - the elements of an agreement that
6 See Order Denying Motion to Enforce Settlement Agreement dated August 1, 2007.
9 evolved after July of 1998. After all, that is the basis
of one of Plaintiff's three claims. Not alone does the
Court find that reference to the prior negotiations was not
improper, the Court finds that it was required for the
parties to demonstrate their respective positions.
Contract - Discussion
A contract is legally enforceable if it is founded
upon a meeting of the minds, consideration, and mutuality
of obligations. Estate of John McPhee, 2006 ME 38, 904
A.2d 401. Plaintiff's counsel appropriately describes
Defendant as a "moving target" in terms of getting an
agreement at any point along the time line in this case.
While the Court would agree with that characterization, the
other side of the coin is that Plaintiff was slow to the
switch in terms of firming up an agreement, which is to say
the target was not moving that quickly!
For the Court to find a contract, either express or
implied, it must be definite enough to allow the Court to
determine its meaning and fix legal liabilities of the
parties. Forrest Assoc. v. Passamaquoddy Tribe 2000 ME
195, ~9, 760 A.2d 1041, 1044. These latter points are all
questions of fact.
10 While the Court did not find as a fact that a contract
existed between the parties in the form of a settlement
agreement prior to July of 1998, the Court finds as a fact
that the events subsequent to that created a meeting of the
minds on where the right of way to the Adams property
across the Hurd property would be located. Specifically
the effort of the Plaintiff's agent, Stevenson White
Sheppard, as reflected in the May 24 and June 21, 2007
testimony, demonstrated a meeting of the minds in the
summer of 1999 on where the right of way would be and a
manifestation on the part of the Hurds to grant that right
of way. The fact that Mr. Sheppard walked the Hurd
property with the Hurds and marked the right of way area,
which area the Hurds specifically agreed would be the area
of the right of way in November of 1999 and again in the
summer of 2000 when he prepared plans and drawings,
demonstrates a meeting of the minds of Plaintiff and
Defendant that a right of way would be granted and where it
would be located. The agreement being that the Hurds would
transfer to the Adams the right to cross the Hurd property
by way of the defined right of way. See Sheppard testimony
5/24/07 at pgs. 71, 77-81, 88; 6/21/07 at pg. 7, Plaintiffs
Exhibits 15 and 19.
11 The common sense of the discussions with Mr. Sheppard
and the Hurds is to be contrasted by the lack of clarity
and definiteness, by counsel for both sides, of the terms
of the agreement with regard to such things as
consideration, payment of expenses and related matters
which would fix the liabilities of the parties (See Forrest
v Passamaquoddy, sura. Counsel seemed either unwilling or
unable to finalize with contractual definiteness, the terms
of this agreement.
Reference to correspondence submitted as Defendant's
Exhibit 1 at the 2007 hearings, makes this point. Starting
with the 3/3/99 letter from Guinta to Devoe. That letter
makes a specific offer/proposal with six different terms or
parts. Mr. Devoe's response appears to have been his April
23, 1999, letter to Mr. Guinta alerting him that a Motion
to Enforce the Settlement would be filed - nothing more in
response to the 3/3/99 letter. Mr. Guinta's letter to Mr.
Devoe of July 25, 2000 suggests that the parties were
continuing to talk about a uproposed" granting of a right
of way but there continued to be a lack of definiteness as
to what those discussions were even as Mr. Sheppard was
sumably progressing with his efforts with the Hurds with
12 some specificity. Mr. Devoe's letter of Feb. 5, 2001, to
Mr. Guinta suggests an acknowledged lack of timely
communication and that Devoe's surveyor was going forward
with work but a lack of definiteness as to what that work
was or what the terms or conditions were even as of that
date concerning any agreement. Mr. Guinta's March 26,
2002, letter to Mr. Devoe's law firm suggests a
disagreement as to whether the right of way would be a 12'
traveled way and a 16' easement or 15' and 20' as suggested
by Mr. Devoe. There was also an issue as to whether the
contractor doing the work would be approved by Mrs. Hurd.
Mr. Devoe responds to Mr. Guinta on 1/30103 and Mr. Guinta
by reply of 2/10103 he asks for a draft copy of the
release. Nothing seemed to happen and Mr. Guinta again
writes Mr. Devoe on 12/8/03 encouraging resolution.
Nothing having happened, on 917104, Mr. Guinta writes Mr.
Devoe advising him that the Hurds have swapped some land
with a neighbor and sends an outline for a different
easement then "proposed by your surveyor" which is sent to
Mr. Devoe indicating it will be 16' wide and a traveled way
of 12'. The Hurds indicate that given the passage of time
the original $7500 for attorney fees will not now cover
expenses and the Hurds want to revisit this. On 9/20104
Mr. Devoe responds agreeing to the new location of the
13 right of way but not agreeing to pay for the alternative
construction of the Hurd driveway nor any additional
attorney's fees (suggesting that both sides seemingly had
yet to finalize the terms of an agreement as far as they
were each concerned). They also would not agree to Mrs.
Hurd selecting the contractor to do the work. On 11/1/04,
Mr. Guinta writes Mr. Devoe suggesting 2 alternative
proposals with terms and conditions to go forward with the
easement. On 1/27/05 Devoe's office responds seeking
clarification but no agreement. Further correspondence
between counsel follows without a definite agreement. [See
Defendants Ex. 1 from the 2007 hearing which is a
compendium of correspondence].
I have taken the time to summarize this correspondence
to highlight the absence of a meeting of the minds, with
the single exception of Mr. Sheppard and Mrs. Hurd walking
her property in November of 1999 and setting out where a
right of way 'could' be. To infer, in the context of all
the facts, that a CONTRACT, a legally enforceable agreement
had been entered into either in November of 1999 or in July
of 2000 when Mr. Sheppard drew his plans from the
discussions and work he did with the Hurds, forces one to
ignore what happened over the next six or more years.
14 There is NOTHING that happened that permits the inference
by this Court that there was an agreement on material
issues. Both parties clearly did not operate as if there
was an agreement. From 1999 to 2007, no right of way was
constructed to permit access to the Adams property. During
that time frame, no right of way agreement was ever drafted
to which the parties agreed. consideration/money was
discussed as being paid to the Hurds for attorney fees at a
time when the lack of agreement resulted in more than 5
years of additional legal services which were neither
anticipated nor compensated in a way that the payment
reflected an agreed consideration for specific actions as
opposed to unanticipated actions to be taken over some
uncertain period in the future.
This Court is not prepared to so isolate and strain
those isolated facts to conclude that the parties had
formed a contract either express or implied with regard to
a right of way over the Hurd property during the period
from July of 1998 through the summer of 2007. On this
count the Court finds in favor of the Defendant, due to a
failure of proof on the part of the Plaintiff.
15 Equitable Estoppel
The elements of equitable estoppel require the
Plaintiff to prove that Defendant made false
representations or assertions upon which the Plaintiff
relied to his detriment. Town of Freeport v. Ring, 1999 ME
48, ~14, 727 A.2d 901, 906. While Plaintiff can make out a
case of detrimental reliance on representations made by the
Hurds to Mr. Sheppard in 1999 and 2000 with regard to the
location of a right of way to the Adams property, the
underlying conduct on which the estoppel is based must
sound in bad faith representations or misrepresentations.
See Town of Freeport v. Ring, supra.
Before considering the application of this equitable
remedy, the Court finds that this claim is barred by the
doctrine of unclean hands of the Plaintiff in this matter
when the conduct of the Plaintiff is viewed as reflected in
the facts and good faith, or lack of the same. See Hamm v.
Hamm 584 A.2d 59, 61 (Me. 1990). This is particularly
manifest in the delay reflected in the correspondence
between counsel when Mr. Sheppard was making significant
progress in negotiating resolution of this dispute with the
Hurds.
16 The Court refuses to act on this theory and therefore
finds for the Defendant.
Declaratory Judgment
At the core of this litigation is the request of the
Plaintiff that this Court declare the rights and
liabilities of the parties with respect to Plaintiff's
right to cross the land of Defendants Hurd to gain access
to Plaintiff's landlocked lot. The Court, based on all of
the evidence submitted in this matter, finds that the
Plaintiffs have no right, either legal or equitable, to
cross Defendant Hurd's land to gain access to public roads
from Plaintiff's lot which is the subject of this
litigation.
Defendant makes reference to the financial cost of
this litigation to Defendants as being an element of
damages that this Court should consider. The Court notes
that Plaintiff, as the moving party in this litigation,
bears the brunt of the delays and lack of movement toward
resolution. That short-coming is not alone the fault of
the Plaintiff. Likewise, the Plaintiff has incurred
significant expenses in efforts made to move this matter
17 forward. The lack of movement toward resolution also
rests with the Defendant, in part. In terms of the payment
of legal fees, the rule in Maine is that each party pays
their own legal fees. Foremost Insurance Company v. Robert
Levesque, 2007 ME 96, ~5, 926 A2d 1185. While there are
exceptions to that general rule, in this instance the Court
sees no basis to deviate from that general rule. Each
party will pay its own legal expense.
At the direction of the Court, this Order shall
be incorporated into the docket by reference. Rule 79(a)
M.R.Civ.p.
Dated: November 17, 2008 / IJJ· Kevin M. Cuddy
Justice, Superior Court
RECEIVED & FILED
NOV 17 2008 HANCOCK COUNTY 18 COURTS