A.2d 694, 700 (statute of limitations must be narrowly construed, and drafting of
will was separate from ongoing negligent management of testamentary
corporation).
The plaintiffs in this case claim that Ms. Hastings' negligent
representation injured them by depriving them of access to their land or future
legal avenues to obtain that access. While unspecified negligent acts may have
occurred throughout the period of 1998 to 2006, the plaintiffs' injury appears to
arise primarily from the 2001 settlement agreement with Mr. Crowe in which
they agreed to relinquish their claims to a right-of-way over his property in
exchange for a parcel of land that they mistakenly believed would provide them
with access to Route 114. Assuming that some of Ms. Hastings' actions leading
up to the settlement were negligent, delaying the accrual of a cause of action
8 until the parties became aware of the error in 2004 would effectively revive the
discovery rule in clear violation of 14 M.R.S. § 753-B.
Finding no shelter in the definition of accrual, the plaintiffs suggest that
the discovery rule should apply in this case, and that the limitations period
should be extended to twenty years because Ms. Hastings's alleged negligence in
procuring access to Route 114 was similar to "negligence in the rendering of a
real estate title opinion ...." 14 M.R.S. § 753-B(2). This argument is unavailing.
The term "real estate title opinion" as used in section 753-B(2) "refers to a written
opinion of the status of title of a particular parcel of real estate based on an
examination of that title." Dowling v. Salewsh, 2007 ME 78, <[[ 17, 926 A.2d 193,
197. The plaintiffs have not alleged any claims arising from a faulty title opinion.
While they may argue that Ms. Hastings was negligent in not examining the title
to the land between the plaintiffs' property and Route 114, this does not bring
their claim under the purview of section 753-B.
Tn addition to their arguments based on the statutory text, the plaintiffs
offer four equitable arguments for why the statute of limitations should not bar
their recovery for negligent actions occurring prior to Decem ber 30, 2003. The
plaintiffs first argue that their fiduciary relationship with Ms. Hastings should
estop her from asserting the statute. They cite the First Circuit case of Bomstein v.
Pal/los, 793 F.2d 444 (lst Cir. 1986) for support. Bornstein involved a suspect
transaction between a creditor, a corporation, and the corporation's two
controlling shareholders who were also its sole officers and directors. Id. at 445.
Between 1974 and 1977 the creditor, corporation, and its two shareholders
employed the defendant attorney to execute a two-part transaction in which the
creditor would foreclose mortgages he held on the corporation's property, and
9 then convey the property to the shareholders in their personal capacities in
exchange for a new mortgage. [d. The corporation declared bankruptcy in 1978.
[d.
In 1983 the creditor filed a diversity action in Maine in an attempt to quiet
title to the properties in his name. [d. at 446. The bankruptcy trustee brought
counterclaims against everyone involved, including claims against the defendant
attorney for malpractice. [d. The attorney asserted the statute of limitations. [d.
The court found that the tolling rule from Livermore Falls Trust & Banking Co. v.
Riley, 108 Me. 17, 78 A. 980 (1911), estopped the attorney from asserting the
defense. Bornstein, 793 F.2d at 448. In Livermore, a corporate officer failed to repay
a promissory note he owed the corporation. Livermore, 108 Me. at 22, 78 A. at 982.
Maine's Law Court held that the statute of limitations did not begin to run until
the defendant officer formally notified the Board of Directors that his note was
overdue, as required by his fiduciary duty to the corporation. [d. at 24-25, 78 A.
at 982-83. The officer's failure to inform his corporation of the debt was a breach
of his fiduciary duty equivalent to fraudulent concealment. [d.
The Bomstein court reasoned that the rCltionale of Livermore regarding
corporate officers and directors Clpplied equally to an Clttorney in Cl fiduciary
relationship to Cl corporation. Bornstein, 793 F.2d at 448. The attorney had
"violated a separate fiduciary duty to the corporation, namely, his duty to
protect it interests in respect to the foreclosures involved, and did so at Cl time
when the corporation was unable to protect its own interests." [d. Maine's
Superior Court recently referred the this as "the equitable doctrine of 'adverse
domination,' where a 'cause of action will be tolled during the period that a
plaintiff corporation is controlled by wrongdoers.'" Murphy v. Vall Meer &
10 Belanger, F.A., '1996 Me. Super. LEXIS 356 (Nov. 1, 1996) (quoting Resolution Trust
Corp. v. Gardner, 798 F. Supp. 790, 795 (D.D.C. 1992)) (discussing Bornstein).
The Bomstein court also found support in Anderson v. Neal, 428 A.2d 1189
(Me. 1981). In Anderson the Law Court determined that it would be wholly
inequitable to allow the statute of limitations to run on a claim arising from a
negligently performed title search. Id. at 1192. The Court considered that "[t]he
essence of the attorney-client relationship in title cases is the faith and trust
which the client places in the representations of the attorney ...." Id. The degree
of "reliance placed upon the attorney by the client and the lack of means for
discovery place the client in a situation akin to that of one who has a cause of
action fraudulently concealed from him." Id. The Court held that "r u]nder such circumstances, fairness, justice and common sense dictate ... that a cause of
action for negligent search of a title by an attorney does not accrue until the
plaintiff discovers, or reasonably should have discovered, the injury." Id. The
First Circuit drew from Anderson the idea that under some circurnstances an
attorney's breach of fiduciary duty could be so significant "that the statute of
limitations should be tolled against him until the client is able to protect his own
interests." Bomstein, 793 F.2d at 449.
Notably, however, the BomMcin court did not make any reference to 14
M.R.S. § 753-1:3, enacted a year earlier by the Legislature in ] 985. Most of the
arguments the Anderson Court articulated in favor of applying the so-called
discovery rule to actions arising from a title opinion apply with equal strength to
many or most actions for legal malpractice. Attorneys and their clients
"necessarily share a fiduciary relationship of the highest confidence." Andersoll,
428 A.2d at 1191. Clients must be able to trust their lawyers and prudent people
11 generally do f10t "hire a second attorney to check the work of the first," placing
clients at the mercy of the legal experts they hire. See id. at 1192. Despite these
considerations, in the wake of Anderson the Legislature determined that the
discovery rule should not apply to actions for legal malpractice. Narrow
exceptions were carved out for actions arising from the preparation of wills and
title opinions, but the general rule of 14 M.R.S. § 753-B is that the statute of
limitations for legal malpractice begins to run at the moment a negligent act takes
place, regardless of when the actual injury occurs or whether the client could
reasonabl y discover the error. See White, 2002 ME 160, ([1[ 7-8, 809 A.2d at 623-24
(affirming that statutes of limitation are strictly construed and that "[t]he courts
have no authority to depart from [the] policy of repose mandated by the
Legislature"); see (llso D(ls}w v. Maille Med. Clr., 665 A.2d 993, 996 (Me. 1995)
("While the statutory scheme may be deemed unfair or harsh, we decline to
circumvent it when the Legislature has explicitly decided the issue ....").
The plaintiffs cite to Bornstein and Anderson to assert that Ms. Hastings is
estopped from asserting the statute of limitations, without precisely explaining
how the CC1ses apply. They have not alleged any facts indicating that Ms.
Hastings actually concec1led their potential cause of action against her, nor have
they alleged that they were unable to protect their own interests due to adverse
domination. Insofar as they shared a fiduciary relationship with Ms. Hastings,
this alone ccmnot prevent the statute's application. The plaintiffs appear to be
arguing that any breach of a fiduciary duty should toll the statute of limitations
until the innocent party is able to discover the breach. The obvious problem with
this argument is that every attorney is a fiduciary of her client, and every
instance of malpractice is a potential breach. In effect the plaintiffs would apply
12 the discovery rule to every case of legal malpractice under the guise of equitable
estoppel through a fiduciary relationship. This would gut 14 M.R.S. § 753-B and
directly contradict the Legislature's directive. Whatever Bomstein's current status
in Maine may be, it does not save the plaintiffs from the statute of limitations in
this case.
The plaintiffs also ask that the court allow them to proceed,under the
"continuoLls representation" doctrine. The doctrine would toll "the running of
the statute in an attorney malpractice action until the professional relationship
terminate[d] with respect to the matter underlying the malpractice action."
Nevill, 1999 ME 47, 9[ 36, 726 A.2d at 700 (quoting Smith v. Stacy, 198 W. Va. 498,
482 S.E.2d 115, 120 (W. Va. 1996)) (quotations omitted). The Law Court
referenced but did not <1dopt this doctrine in Nevin v. Ullion Trust.
That case involved claims by a personal representative and various
benefi ci aries against the deceased's trust company and attorneys. In 1985 the
deceased client worked wi th the defendant trust company to transfer her
property into a corporation for estate planning purposes. fd. 9r 7, 726 A.2d at 697.
The defendant attorneys formed the corporation, drafted the necessary
testamentary documents, and managed the corporation's legal affairs from 1985
to 1992 when the client died. fd. 9I9J 7-13, 726 A.2d at 697. In 1988, at the
attorneys' suggestion, the client transferred her corporate stock to an irrevocable
trust in violation of the corporate articles. fd. 9I 11, 726 A.2d at 697. In 1994 the
Internal Revenue Service determined that corporate formalities had not been
followed and consequently assessed additional taxes, interest, and penalties in
excess of $400,000 against the estate. fd. 9114, 726 A.2d at 697.
13 During the subsequent litigation, the trial court granted all of the
defendants' partial summary judgment due to the statute of limitations. fd. 9I 20,
726 A.2d at 698. The parties then stipulated that no claims arose after February I,
1989, Jeaving only the application of the statute of limitations for appeal. fd. 9I 3,
726 A.2d at 696. Addressing the claims against the attorneys, the Law Court
found that the plaintiffs had not demonstrated any negligence in the drafting of
the will, and held that 14 M.R.S. § 753-8 6 precluded the Clpplication of a discovery
rule to toll the statute of JimitCltions. fd. 9I9I 33-34, 726 A.2d at 700. The statute had
thus run and the claims Clgainst the attorneys were barred. Td. 9f 38, 726 A.2d at
701.
In dicta, the Court went on to address the doctrine of continuing
rcpresentCltion. The Court said thClt:
For the doctrine to apply, there must be a "clear indicia of Cln ongoing, continuous, developing, and dependent relationship between the client and the attorney." Sc1lOenroc!c v. Tappe, 419 N.W.2d 197, 201 (S.D. 1988) (quoting Muller v. Sturmall, 79 A.D.2d 482,437 N.Y5.2d 205, 208 (N.Y. App. Div. 1981). Even if we might apply the continuing representCltion doctrine in the appropriClte case, here plClintiffs hClve stipulated away any such claims by waiving claims regarding any representation in the period after FebruJry I, 1989.
Nevill, 1999 ME 47,
question of whether it would ultimately adopt the doctrine of continuing
representation in Maine. The plaintiffs urge this court to apply the doctrine in
this case. Were the court to do so, the plaintiffs note thClt it would be joining the
ranks of many other states, including Massachusetts. Lyons v. Nutt, 436 Mass.
244,249-50,736 N.E.2d 1065, 1070 (Mass. 2002); see Smith, 198 W. Va. at 503-06,
6At the time, the current section 753-8 was codified CIS 14 }"·1.R.S. § 753-A. The Legislature recodi fied the law into its current configurCltion in 2001. L.D. 309, § 1 (120th Legis. 20tH). 14 S.E.2d at 120-22 (discussing other states' adoption of the doctrine). However, a
quick review of Massachusetts's law shows the danger of blindly following the
lead of other jurisdictions. Massachusetts generally applies the discovery rule to
all actions for legal malpractice, whereas Maine's Legislature has strictly limited
the rule's application through section 753-B. Compare Lyons, 436 Mass. at 247, 736
N.E.2d at 1068-69 to White, 2002 ME 160, 1 7, 809 A.2d at 623-24.
A West Virginia case ci ted in Nevill is instructive on whether the doctrine
is compatible with the current l
define the doctrine of continuing representation as one that "tolls the running of
the statue in an
terminates with respect to the matter underlying the malpractice action." Nevin,
1999 ME 47, 9136, 726 A.2d at 700 (quoting S1Ilitll, 198 W. Va. at 482 S.E.2d at 120).
The court goes on to note that the doctrine "is an adaptation of the' continuous
treahnent' rule applied in the medical malpr
at 503,482 S.E.2d at 120. Maine's Law Court has considered the continuous
treahnent rule at length and has definitively rejected it as being incompatible
with the Legislature's instruction "that the cause of action 'accrues on the date of
the act or omission giving rise to the injury ....'" Dickey v. Vermettc, 2008 ME
179,
111i:1lpractice, 24 M.R.S. § 2902).
The Slllith court also noted that some states view the doctrine of
continuous representation as "a 'branch of the discovery rule,' which holds that
'by virtue of the Clttorney-client rclCltionship, there can be no effective discovery
of the negligence so long as the re1cltionship prevails.'" Slllitll, 198 W. Va. at 504,
15 482 S.E.2d at 121 (quoting Alngin, Dny, Tmutwein & Smitll 'U. Brondbent, 882 S.W.2d
121, 125 (Ky. 1994)). The court quoted one treatise explaining that:
Adoption of the rule was a direct reaction to the illogical requirement of the occurrence rule, which compels clients to sue their attorneys although the relationship continues and there has not been and may never be any injury.... The rule of continuous representation is available and appropriate in those jurisdictions adopting the dC1mage and discovery rules.
SlIIitll, 198 W. Va. at 505,482 S.E.2d at 122 (quoting Ronald E. Mallen & Jeffrey M.
Smith, LegC11 Malpractice § 21.12, C1t 822 (4th ed. 1996)).
Though it may be illogical, Maine's Legislature has unambiguously
directed that the occurrence rule apply to legal malpractice and has taken the
question "out of the arena of the judicial prerogative" by enacting 14 M.R.S.
§ 753-B. Myrick 'U. Tnllles, 444 A.2d 987, 992 (Me. 1982) (cited by Wllite, 2002 ME
160, err 8, 809 A.2d at 624.) "Unlike other contexts, the Legislature specifically
enacted [section 753-B] to dictate the exclusive situations in which courts can
apply the discovery rule in actions against attorneys." Wllite, 2002 ME 160, err 7,
809 A.2d at 623-24. Apart from actions C1rising from the drafting of a will'or the
rendering of a ti tIe opinion, the discovery rule does not apply and "the statute of
limi tations stC1rts to run from the date of the act or omission giving rise to the
injury ...." 14 M.R.S. § 753-B.
While C1pplication of the doctrine of continuous representC1tion mC1Y or
may not hinge on the time a client discovers the attorney's negligence, see Smith,
198 W. Va. C1t 505-06,482 S.E.2d at 122-23, it stems from the SC1me logic
underpinning the discovery rule cmd hC1s the same relevant effect: It prevents the
statute of limitations from running on "the date of the act or omission giving rise
to the injury." It thus represents "a judiciC1lly-created exception that is contrary to
the plJin meJning of" section 753-B. Dickey, 2008 ME 179,
16 This court will not adopt and apply the doctrine in this case, as it runs contrary
to Maine's statutory law and precedent.
The plaintiffs also argue that the court should apply general equitable
tolling principles, of which the continuous representation doctrine is a specific
application, to relieve them of the statute of limitations. Broadly stated,
"[c]quitable tolling preserves a plaintiff's claim when strict application of the
limitations period would be inequitable. (Pl.'s Resp. at 21 (citing Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999)).) However, the Law Court has
repeatedly stated that statutes of limitation are to be strictly construed. Wllite,
2002 ME 160, ~I R, 809 A.2d at 624 (citing Hi7rkness v. Fitzgerald, 1997 ME 2071[ 5,
701 A.2d 370,372); Nevill, 1999 ME 47, 9I 33, 726 A.2d at 700. The same reasons
that weigh against adoption of the continuous representation doctrine
discourage the adoption of even wider-ranging equitable tolling principles.
Finally, the plainti ffs contend that Ms. Hastings fraudulently concealed
their cause of action, tolling the statute of limitations pursuant to 14 M.R.s.
§ 859? A plaintiff invoking the statute "must establish 'that defendants actively
concealed material facts from her and that she relied on their acts and statements
to her detriment, or ... that a special relationship existed between the parties that
imposed a duty to disclose the cause of action, and the failure of defendants to
honor that duty.'" Brawn 'v. Oral Surgery Assocs., 2003 ME 11, 1! 21, 819 A.2d 1014,
1026 (quoting Hi7rkness v. Fitzgerald, 1997 ME 207, 9[ 6, 701 A.2d 370, 372). On a
Rule 12(b) motion to dismiss, facts must appear in the complaint sufficient to
7 "If a person, liable to any action mentioned, fraudulently conceals the cause thereof from the person enti tIed thereto, ... the action may be commenced at any time within 6 years after the person entitled thereto discovers that he has just cause of action ...." 14 M.R.S. § 859 (2009). 17 raise the issue of fraud. H See Clliapeffa v. Clark Assocs., 521 A.2d 697, 700 (Me.
1987).
When a plaintiff contends a genuine issue of material fact concerning the defendant's fraudulent concealment has been generated, the court assess the facts against the elements of fraud: "(1) the making of a false representation; (2) of a material fact; (3) with knowledge of its falsity or in reckless disregard of whether it is true or false; (4) for the purposes of inducing another to act upon it; and (5) justifiable and detrimental reliance by the other."
BrawlI, 2003 ME 11, (jl21, 819 A.2d at 1026 (quoting Harkness, 1997 ME 207,
701 A.2d at 372). When the parties share a fiduciary relationship, "omission by
silence may constitute the supplying of false information." [d. 9[ 22,819 A.2d at
1026 (quoting Glylln v. At/allfic Seaboard Co., 1999 ME 53, 112, 728 A.2d 117, 121)
(quotations omitted). Fraud may be inferred if the defendant fiduciary knew
particular facts but did "not disclose them causing the plaintiff to rely on those
facts" to her detriment. 1d.
The plaintiffs have not raised the issue of fraud in their complaint, nor
have they attempted to show how the facts alleged in their complaint make out a
case for fraudulent concealment. Instead, they assert that "[c]oncealment by a
lawyer / fiduciary is alleged and must be accepted as true." (Pl.'s Resp. at 24.)
None of their cited lawsupports this bold prospect. Turning to the plaintiffs'
factu(ll allegations, it appears that by 1999 Ms. Hastings should have known that
the Shutes had (In interest in the entirety of the pond, and that she W(lS mistaken
when she told the plaintiffs in the year 2000 that she had procured them access to
Route 114. (Pl.'s Compl. 9[(11 21e, 32, 34A.) She was similarly mistaken in 2001
HThe Law Court has not directly addressed whether the heightened pleading requirements for fraud imposed by Rule 9(b) (lpply to claims of fraudulent concealment raised under 14 M.R.S. § 859. However, "[b]ecause a claim of fraudulent concealment necessarily includes allegations of fraud, it must be plead with particularity." Taylor v. Pln'l/ip NIorris, Inc., 2001 Me. Super. LEXIS 76 (May 29, 2001) (Cole, ].). 18 when she told them that they would have direct access to Route 114 across the
pond, pending permitting, as a result of the settlement with Mr. Crowe. (Pl.'s
Compl. (II1 39-40.)
While these allegations do show negligence, they do not imply that Ms.
Hastings knew that the plaintiffs would not be able to cross the pond and
concealed this fact, or that she recklessly represented that the plaintiffs would be
able to access the road without performing any inquiry into the truth or falsity of
her statement. Furthermore, the plaintiffs allege that Ms. Hastings performed
legal work to obtain all the required permits until the Shutes asserted their
interest in 2004. (Pl.'s CompI. 9! el[ 43-51.) This undermines the plaintiffs'
argument that Ms. Hastings knew they would not be able to access Route 114
and was working to conceal this £Oct. Even with all inferences drawn in the
plaintiffs' favor, their complaint does not raise the issue of fraud or fraudulent
concealment and they cannot use section 859 to shield their action from the
statute of frauds.
The plaintiffs have not established that Ms. Hastings fraudulently
concealcd their cause of action or that their claims come under one of 14 M.R.S.
§ 753-B's exceptions allowing the discovery rule. Given the plain language of
section 753-8 and the Maine courts' history of strictly construing statutes of
limitations, the plaintiffs may not invoke equitable doctrines to avoid the
statute's operation. As this is a claim for professional negligence against an
attorney, the six-year statute of limitations began to run at the time of the acts or
omissions giving rise to the plainti ffs' injuries. They did not file their action until
December 31, 2009, and arc thus barred from bringing any claims arising from
acts or omissions that occurred prior to December 30, 2003.
19 The entry is:
The defendants' partial motion to dismiss is granted. The plaintiffs may not
maintain any claims arising from any of the defendants' acts or omissions that
occurred pri or to December 30, 2003.
DATE: S;~?f(1 20JO
20 1"1.lCHA.t;L u HA:::i.l\.t;LL .t;'!' i\L:::i V:::i ANN .t; HA:::i'l'.lNu:::i .t;'!' AL UTN:AOCSsr -2009-0141495 CASE #:PORSC-CV-2009-00689
01 0000002300 CAMPBELL, JOHN S 75 MARKET STREET PO BOX 369 PORTLAND ME 04112-0369 F MICHAEL J HASKELL PL RTND 12/31/2009 - F JOSEPH M BROWN PL RTND 12/31/2009 - F SEBAGO GRAVEL PITT LLC PL RTND 12/31/2009 - 02 0000001252 FRIEDMAN, HAROLD SIX CITY CENTER PO BOX 4726 PORTLAND ME 04112-4726 F ANNE E HASTINGS DEF RTND 02/18/2010 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-t'-6.~ ~A(_- CLAIYl .... o 'B;2.ot<_ ' MICHAELJ. HASKELL,
JOSEPH M. BROWN,
and STATE OF MAINE Cumberland,ss,Cierk's Office SEBAGO GRAVEL PIT, LLC, MAR 0 8 2012 Plaintiffs,
v. ORDER RECEIVED ANN E. HASTINGS
and
ANN E. HASTINGS LAW OFFICE, P.A.,
Defendants.
The Defendants' motion for summary judgment pursuant to Maine Rules of Civil
Procedure 7 and 56 is before the court.
BACKGROUND 1. Factual Background
In June 1998 plaintiffs Michael Haskell and Joseph Brown1 purchased about 15
aches of land in Sebago, Maine, and used the property to operate a gravel pit ("the
Property"). The Property abutted land owned by Arthur and Anita Crowe. A
boundary dispute arose between the Plaintiffs and the Crowes and the Plaintiffs hired
defendant Attorney Hastings to assist with resolving the dispute, she had also assisted
with the acquisition of the Property.
1 Haskell and Brown own Sebago Gravel Pit, LLC (collectively, "the Plaintiffs").
1 In November 2000 the Plaintiffs and the Crowes reached a settlement regarding
the disputed land. According to the Plaintiffs, this settlement allowed the Plaintiffs to
use a right of way connecting the Property to Route 114 for roughly three and half years
while they constructed an alternative access road connecting the Property to Route 114.
Additionally, the parties swapped roughly equal portions of their land.
The Plaintiffs viewed obtaining permanent access to Route 114 as the entire
purpose of doing the settlement with the Crowes and believed Attorney Hastings also
understood this purpose. The Plaintiffs allege that they gave up their existing right of
way and dismissed their claim against the Crowes based on the advice given by
Attorney Hastings and their belief that she had done the necessary research to give this
advice. Attorney Hastings claims that she repeatedly denied telling the Plaintiffs that
they would have access to Route 114 from their property.
Following the settlement with the Crowes, the Plaintiffs filed a number of
applications and spent money attempting to build the access road. During this time a
new problem arose regarding part of the property the Plaintiffs needed to cross in order
to reach Route 114. This dispute surfaced when neighboring landowners, Arthur and
Emma Shute, asserted their property interest over a crucial part of the property. The
issue went before the Sebago Planning Board and the Board decided that the Shutes
owned the disputed portion of the property. As a result, the Board found that the
Plaintiffs did not have standing and dismissed the application without prejudice.
In October 2006 the Plaintiffs, represented by Attorney Levis, filed a suite against
the Shutes claiming that the Shutes were not the proper owners of the disputed portion
of land. The parties disagree regarding why this lawsuit ended, but the case was
2 dismissed without prejudice. 2 The Plaintiffs now claim that the land trade they did
\Vith the Crowes only took their property to Mill Pond and they need to obtain a right of
way from the Shutes to traverse the pond and access Route 114. The Defendants claim
that the Shutes might not have that property right and the Plaintiffs are probably able to
access Route 114 without negotiating with the Shutes.
2. Parties' Arguments
On December 31, 2009, the Plaintiffs filed the complaint in this case claiming that
Attorney Hastings committed professional negligence by giving them bad advice
regarding their rights to an access road. They claim that she advised them to settle with
the Crowes, giving up potentially valuable rights, in order to gain property that would
allow them to build a road across the Mill Pond and access Route 114. They also claim
that Attorney Hastings knew or should have known that even with the land they
received from the Crowes they still cannot access Route 114 because the Shutes own all
of Mill Pond and the property on the other side. 3
In this motion for summary judgment, the Defendants argue that the Plaintiffs'
claim is purely speculative because they cannot show that the Defendants' actions
caused an injury or loss to the Plaintiffs. The Defendants base this argument on the fact
that the Plaintiffs did not resolve the issue of ownership with the Shutes because they
did not pursue the civil case against the Shutes and the case was dismissed without
prejudice. Therefore, the Defendants claim that the Plaintiffs cannot demonstrate the
necessary proximate cause to show professional negligence. Additionally, the
2 The Defendants claims that the Plaintiffs stopped paying Levis so he withdrew his representation and the complaint was dismissed without prejudice because the Shutes were not served. The Plaintiffs claim they realized that the suit did not have a sufficient likelihood of success and Levis was not properly representing their interest so the complaint was dismissed. 3 On September 28, 2010, this court granted a partial motion to dismiss ordering that the Plaintiffs may not maintain any claims arising from any of the Defendants' acts or omissions that occurred prior to December 30, 2003.
3 Defendants claim that if the Plaintiffs pursued their civil claim against the Shutes they
would be successful and, therefore, be able to build the access road as indicated by
Attorney Hastings. In response, the Plaintiffs argue that the Shutes do own the land
and they can prove this ownership through this litigation.
1. Standard of Review
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56( c);
see also Levine v. R.B.I<. Cnly Corp., 2001 ME 77,
summary judgment must be supported by citations to record evidence of a quality that
vvould be admissible at trial. Levine, 2001 ME 77,
56(e)). An issue of "material fact exists when there is sufficient evidence to require a
fact-finder to choose bet·ween competing versions of the truth at trial." Inkell v.
Livingston, 2005 ME 42,
35,
party. Beaulieu v. The Aube Corp., 2002 ME 79,
Aircrnft Co., 673 A.2d 216, 218 (Nie. 1996)).
2. Professional Negligent
It is well established in Maine that "[t]o prove attorney malpractice, a plaintiff
must show: (1) a breach by the defendant of the duty owed to the plaintiff to conform
to a certain standard of conduct; and (2) that the breach of that duty proximately caused
an injury or loss to the plaintiff." Corey v. Norman, Hanson & DeTroy, 1999 ME 196,
742 A.2d 933. "[T]o prevail in a legal malpractice action, a plaintiff must demonstrate
that he or she INould have achieved a more favorable result but for the defendant's
alleged legal malpractice." Nielwffv. Shankman & Assoc. Legal Ctr, P.A., 2000 ME 214,
4 9, 763 A.2d 121. The second element, proximate cause, is at issue in this motion. In
order to show proximate cause the plaintiff must demonstrate "that the negligence
played a substantial part in bringing about or actually causing the injury or damage and
that the injury or damage vvas either a direct result or a reasonable foreseeable
consequence of the negligenc~." Id. at<[ 8 (quoting lvierrinm v. \Nnnger, 2000 ME 159, <[ 8,
757 A.2d 778).
The Plaintiffs argue that but for Attorney Hastings' negligence they do not have
an access road from the Property to Route 114, and therefore they cannot sufficiently
use the Property. The Defendants claim that even with Attorney Hastings' alleged
negligence the Plaintiffs could have build an access road if they had pursued their legal
claim against the Shutes and thus the alleged negligence 4 is not the proximate cause of
the alleged damages.
Based on the evidence before the court, neither party's claim is clearly supported.
The Defendants looked to riparian law and claim that the Plaintiffs have rights to a
sufficient portion of the disputed land to build an access road. Essentially, the
Defendants argue that the Plaintiffs have property rights to the center of the 1v!ill Pond,
see Jvinnsur v. Blake, 62 Me. 38, 41 (1873) 5, and they can build despite flowage rights, see
\Nalthmn v. PPL Jviaine, LLC, 2006 ME 88, <[<[ 9-10, 901 A.2d 816 (allowing the owner of
submerged land to "put the land to any use that is not detrimental to the lake" when
another has flowage rights). Conversely, the Plaintiffs claim that the state provided the
Shutes with rights to the whole body of water and, even if the Plaintiffs did have access
• The defendants do not address the duty of care or breach in this motion, but they do not admit to any element of negligence. 5 "The owner of land touching the water of a stream, goes to the centre. Herring v. Fisher, 1 Sand£. 344. Where a lot of land is bounded by a pond artificially created by the flowing of a stream by a mill-dan1, the same rule applies to the pond as to the stream before the dam was build .... A grant of land bounded by a pond artificially raised, is presumed to go to the centre of the stream. RobillSOil u. \;1/lzite, 42 Me. 209." Mallsur v. Blake, 62 Me. 38, 41 (1873).
5 to the water, the Shutes own land between the water and the road. The Plaintiffs have
an expert, Samuel Kilbourn a transactional residential real estate attorney, who appears
to believe that the Plaintiffs cannot build an access road. (Pl.'s SJvi.F. 9I9I 86, 87 denied,
objected, and qualified by Opp. Pl.'s S.NI.F. 9I9I 86, 87.) There is not sufficient information
before the court to determine which party is correct as a matter of law. Therefore, the
court is unable to grant summary judgment.
The entry is:
The Motion for Summary Judgment is DE
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