In 1991 the Holdsworths hired surveyor Daniel LaPoint to locate their
boundaries. (PJ.'s Opp. S.M.F. err 26.) They were interested in subdividing and
developing the rear of their property and needed assistance finding their
boundary markers. (Pl.'s Opp. S.M.F. 9126.) Mr. LaPoint prepared 0 docLlment
titled "Stondard Boundary Survey PIon of Land" which located the boundary at
the center of the driveway, consistent with the earlier Blanchard Survey? (PJ.'s
Opp. S.M.F. errcrr 27, 29.) Tn 1993 Mr. LaPoint used his information from 1991 to
calculate a five-acre lot split on the Holdsworths' land. (Pl.'s Opp. S.M.F. <[(II 33
36.) The lot split inclLlded a metes-and-bounds description of the Holdsworths'
property that placed the boundary monument in the center of the disputed
driveway. (Pl.'s Opp. S.M.F. errerr 37-38.) While the Holdsworths ultimately
abandoned their subdivision plans, they retained copies of Mr. LaPoint's work in
their files. (Pl.'s Opp. S.M.F. err 44.)
The court does not address whether this evidence is admissible for other purposes. The LaPoint documents are admissible non-hearsay offered to prove the parties' states of mind. They are also admissible as adopted admissions by the Holdsworths. See iJ~fm. 3 The Holdsworths decided to sell their property, and on July 5,2006 their
real estate agent David Banks placed it in the Multiple Listing Service. (Pl.' s Opp.
S.M.F. <[<]I 45,47.) At that time the Holdsworths told Mr. Banks that they and the
defendants shared ownership of the driveway, and showed him a depiction of
the property that located the boundary line at the center of the drive. (Pl.'s Opp.
S.M.F. 9[<[ 48-49.) Mr. Banks met with the defendants approximately thirty days
later. (Pl.'s Opp. S.M.F. <[ 52.) He told them that he understood from the
Holdsworths that they owned a portion of the driveway, and told them thot a
written ogreement regarding the drivewoy would probably be necessary for
financing purposes. (P1.'s Opp. S.M.F. <[<]I 52-53.) Mr. Higgins and Ms. Rivard
indicated that they were willing to consider such an agreement, but expressed
their concern about increased traffic if the Holdsworth parcel was ever
subdivided and developed. (Pl.'s Opp. S.M.F. <]I 54.)
John E. and Mary Jo Cashman became interested in purchasing the
Holdsworths' property, and on July 29,2006, their real estate agent Pat Rabidoux
met with Mr. Banks to view the parcel. (Pl.'s Opp. S.M.F. 9[<[ 55-56.) Mr. Banks
told Ms. Rabidoux that the driveway was shared with the abutting owners and
that the Cash mans would probably have to relocate it if they planned to develop
the land. (P1.'s Opp. S.M.F. 9[<][ 57-58.) On August 9,2006, the Cashmans and the
Holdsworths entered into a purchase-and-sale agreemen t pricing the property at
$1,200,000. (Pl.'s Opp. S.M.F. <[ 59.) The agreement included a copy of Mr.
LaPoint's "Standard Boundary Survey Plan of Land," initialed by the
Holdsworths and Cashmans, depicting the boundary as being at the center of the
driveway. (P1.'s Opp. S.M.F. <[<[ 60,63.)
4 On August 28,2006, the purchase-and-sale agreement was amended to
address a number of concerns, one of which was the driveway. (Pl.'s Opp. S.M.F.
91:t[ 65-66.) The amendment conditioned the closing on the Holdsworths either:
A.) Obtainfingl an easement with no present or future restrictions from the abutter, D. Higgins, III. . B.) Movfing] the driveway so it is completely on Seller's property, in same general location as at present. ... C.) Obtain[ing] an easement, prior to closing, with the only restriction being the present or future development of Seller's land, from the abutter, Do Higgins, III, and at Buyer's option either reduce the purchase price or credit the Buyer at closing, the amount of the written estimate to construct a new driveway ... .:"
(Pl.'s Opp. S.M.F. <]I 66.) Then on September 21, 2006, the Cashmans reduced their
offer to $1,100,000 due to issues identified by a building inspection. (Pl.'s Opp.
S.M.F. (1[91: 59,61.)
On October 18, 2006, Mr. Banks provided Mr. Higgins wi th a proposed
casement drafted by the Cashmans' attorney. (Pl.'s Opp. S.M.F. ~[ 70.) The
proposal identified Mr. Higgins as the grantor and would create an easement
"for access to a single famIly residence and accessory structures only," and
provided that the grantees would be responsible for maintaining the casement
area. (Pl.'s Opp. S.M.F. ~r 71-73.) The proposal also induded a land plat depicting
the boundary as running through the center of the driveway. (Pl.'s Opp.
S.M.F. err 74.)
The defendants gave the proposal to their attorney, Peter Van Hemel, who
drafted a counterproposal. (Pl.'s Opp. S.M.F. 9T 79.) The counterproposal was
given to Mr. Banks, who forwarded it to Ms. Rabidoux. (Pl.'s Opp. S.M.F. 91:180,
82.) The Cashmans' attorney then contacted Mr. Van Hemel directly and told
him that the counterproposal was not acceptable, but that" at most, [the
3Mr. Holdsworth claims he never knew that simply moving the driveway was an option. (Pl.'s Opp. S.M.F. t[ 67.) 5 Cashmans] would consider [adding] a sentence addressing respective liability"
to their original proposal. (Pl.'s Opp. S.M.F. 9I 85.) These negotiating positions
were also communicated to Mr. Banks. (Pl.'s Opp. S.M.F. 9I 86.) Mr. Van Hemel
advised Mr. Higgins and Ms. Rivard that they did not have to accept the
Cashmans' proposal or enter any sort of agreement with the Holdsworths. (Pl.'s
Opp. S.M.F. 9I 89.)
On February 9, 2007, the Cashmans terminated the purchase and sale
agreement without breach. (PI.'s Opp. S.M.F. 9I9I 91-92.) On February 23, 2007,
they made a new offer to purchase the Holdsworths' property for $1,100,000,
contingent on the Holdsworths installing a new driveway. (Pl.'s Opp. S.M.F.
S.M.F. ~[ 69.) The Holdsworths rejected the offer. (PI.'s Opp. S.M.F. 194.) In
March 2007 Paul Babbidge of Titcomb Associates conducted a new survey of the
Holdsworths' property. (Pl.'s Opp. S.M.F.
located the boundary behveen the Holdsworths' and defendants' properties to
the southwest of where the Blanchard Survey had identi fied, placing the entire
driveway on the Holdsworths' land. (PI.'s Opp. S.M.F. 91<[[95-96.)
On March 22, 2007, Mr. Banks met wi th Mr. Higgi ns to gi ve him a copy of
the Titcomb Survey and advise him that the Holdsworths would probably
litigate the matter if the defendants refused to accept the new boundaries. (Pl.'s
Opp. S.M.F. 9I
exchange occurred in which he asserted that he had a right to use or close the
driveway and possibly stated that he would do so. (Pl.'s Opp. S.M.F. 9I9I 96, 106
11.) However, Mr. Higgins quickly "backed off" from his statements and told
Mr. Banks that he did not "want toget in the middle of this." (PI.'s Opp. S.M.F.
6 9I 112.) There is no allegation that Mr. Higgins ever attempted to prevent the
Holdsworths from using the driveway, or that his specific threats were
communicated to third parties.
Mr. Higgins and Ms. Rivard did not and do not believe that they had to
accept the Titcomb Survey as conclusive. (Pl.'s S.M.F. 9I9I 97-98.) Their attorney,
Mr. Van Hemel, advised them that they were not legally obligated to do so given
the conflict between the Titcomb Survey, Blanchard Survery, and the information
provided by the Holdsworths in their easement proposals. (Pl.'s Opp. S.M.F.
(r[ 101.) They also retained sec Engineering, LLC to review the Titcomb Survey. (PI.'s Opp. S.M.F. crr 99.) Timothy Patch of sec advised the Higgins that they did
not have to accept the Titcomb Survey as authoritative due to the inconsistencies
between it and other survey information. (Pl.'s Opp. S.M.F. 1f 100.) At some point
the defendants, through Mr. Van Hemel, 'recorded a copy of the Blanchard
Survey in the Cumberland County Registry of Deeds. (Pl.'s Opp. S.M.F. (H 117.)
After rejecting the Cashmans' second offer in February 2007, the
Holdsworths continued to market their property but were unable to find a buyer.
(P1.'s Opp. S.M.F. 9I 102.) Mr. Banks informed potential buyers that there was a
dispute over the boundary at the driveway. (Pl.'s Opp. S.M.F. 9[ 103.) On
February 27, 2008, the Holdsworths sold their property to their children for
$950,000. (Pl.' s Opp. S.M.F. 9I
On January 14, 2009, the Holdsworths filed their complaint against Mr.
Higgins and Ms. Rivard alleging "slander of title, intentional interference with
contractual relations, and negligence arising from [their] persistent statements
that they own the gravel driveway .... As a result of the [defendants'] conduct,
[the Holdsworths'] contract to sell their property collapsed, and [they] have
7 suffered significant damages." (PL's Compl. 911.) Mr. Higgins and Ms. Rivard
deny the Clllegations and contend that numerous affirmative defenses bar the
Holdsworths' claims including waiver, estoppet and "their own statements and
actions through which they indicated that [the defendants] own the subject
driveway, or portions thereof." (Def.'s Ans. at 61 5.) The defendants also
counterclaim for declaratory judgment affirming their ownership interest in the
driveway.
DISCUSSION
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 n[50 Levine v. R.B.I<. Cn[y Corp., 2001 ME 77, 914, 770 A.2d
653,655. A Illotion for summary judgment must be supported by citCltions to
record evidence of Cl quality thClt would be admissible at trial. fri. Clt (I[ 6, 770 A.2d
Clt 656 (citing M.R. Civ. P. 56(e)). An issue of "fact exists when there is sufficient
evidence to require a fact-finder to choose between competing versions of the
truth Clt triaL" Jnkel[ v. Livingston, 2005 ME 42, 914, 869 A.2d 745, 747 (quoting
Lever v. Amdia Hasp. Corp., 2004 ME 35, 912, 845 A.2d 1178, 1179). "Summary
judgment is appropriate even when concepts such as motive or intent arc at
issue, ... if the non-moving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation."' Dyer v. DOT, 2008 ME
106, 9[14, 951 A.2d 82t 825 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir.
2007)).
1. Slander of Title
To prove their claim for slander of title, the Holdsworths "must prove (1)
there was a publication of a slanderous statement disparaging [their] title; (2) the
8 statement was false; (3) the statement was made wi th malice or made wi th
reckless disregard of its falsity; and (4) the statement caused actual or special
damages." Colquhoun v. Webber, 684 A.2d 405, 409 (Me. 1996).
The defendants argue that they did not publish any statements about the
Holdsworths' property because they only communicated with the Holdsworths'
agent, Mr. Banks, and then only because he solicited their statements. This
argument is inadequate. The Higgins arguably published the alleged falsities to
the Cashmans' attorney through Mr. Van Heme!, and they did publish their
claim to the driveway by recording the Blanchard Survey in the registry.
Furthermore, they knew or should have known that any statements they made to
Mr. Banks regarding their interest in the driveway would necessarily be
conveyed to any potential buyer interested in the Holdsworths' land. Hill v.
Lubec, 609 A.2d 699, 701 (Me. 1992) (quoting A. I-Tartan and r. McGehee Maine
Civil Remedies § 20.7 (2d ed. 1992)) ("'[A] defendant need not intentional1y
communicate a defamatory statement to third parties; it is sufficient if the
defendant knows or should know that it will be communicated to third
· "') . par t les.
The question of whether the statements were demonstrably false remains
a disputed question of fact. See infra. The court assumes, for the purpose of this
summary judgment motion only, that the defendants' alleged statements were
false. See Beaulieu v. The AI/be Corp., 2002 ME 79, err 2, 796 A.2d 683, 685 (citing
Green v. Cessna Aircraft Co., 673 A.2d 216, 218 (Me. 1996)) (ambiguities must be
resolved in favor of non-moving party).
Assuming the statements were false, they must have been made with
malice or recklessness to support a claim for slander of title. Malice means
9 the originator of the statement "knows his statement to be false, recklessly disregards its truth or falsity, or acts with spite or ill will." ... Reckless disregard for the truth can be proved by evidence that "establishes that the maker of a statement had 'a high degree of awareness of probable falsity or serious doubt as to the truth of the statement."'
Cole v. C!J(711dler, 2000 ME 104,
672 A.2d 82, 87 (Me. 1996)) (internal citations omitted). The statements must also
have "caused actual or special damages." ColqullOlIl1, 684 A.2d at 409. Tt is
necessary to treat these two elements together because the Holdsworths are not
clear about which allegedly false statements caused which alleged h
The Holdsworths argue they were first damaged by the collapse of their
potential sale to the Cashmans. Throughout the period of their dealings with the
Cashmans, all parties unquestioningly believed that the defendants had an
ownership interest in the now-disputed driveway. Mr. Higgins and Ms. Rivard
could base their belief on their deed and the deed of their parents, the Blanchard
Survey, their own family history, and their long unchallenged use of the way.
The Holdsworths admitted that they believed Mr. Higgins and Ms. Rivard had
an ownership stake in the driveway, and the LaPoint plat in their records
showed the boundary as falling at the drive's center. A copy of this plat was
included in the purchase-and-sale agreement they executed with the Cashmans.
Both the Holdsworths and the Cashmans implicitly acknowledgcd the
defendants' partial ownership of the driveway when they requcsted that Mr.
Higgins grant an easement for the drive's use.
The record shows that the sale collapsed at least in part because the
Holdsworths refused to build a new driveway, refused to give credit for a new
driveway, and were unable to obtain an easement to the Cash mans' satisfaction.
The Holdsworths do not now argue that the defendants were obligated to grant 10 an easement, rather they contend that the defendants' claim to the driveway was
false from the first. The Holdsworths formed this belief entirel y on the basis of
information obtained after they had rejected the Cashmans' second offer to
purchase their property.
While Mr. Higgins and Ms. Rivard have submitted affidavits claiming
they acted in good faith and provided evidence that objectively supports their
C1sserted belief, the Holdsworths have not produced anything to prove the
contrary. To support their accusation of malice or recklessness, the Holdsworths
linger on the fact that Ms. Rivard affirmed the size of the defendants' land to be
six acres for tax purposes while the Blanchard Survey shows the property to be
six and one-third acres. The Holdsworths insinuate, without actually alleging,
that this inconsistency of position shows that the defendants could not
reasonC1bly have believed their title documents C1nd supports the charge of malice
or recklessness. This is the precise sort of "improbable inference" or
"unsupported speculation" that is inadequate to generate a triable issue of fact.
Dyer, 2008 ME 106,
The unrebutted evidence overwhelmingly shows that the dcfendC1nts had
every reason to believe they owned a portion of the driveway and acted in good
faith when they asserted that interest. Indeed, it would be very strange to allow
the Holdsworths to prosecute Mr. Higgins and Ms. Rivard for claiming a right
after the Holdsworths themselves told the defendants it existed.
After the Cashmans were rebuffed in their attempt to purchase the
Holdsworths' property, the defendants recorded a copy of the Blanchard Survey
in the registry of deeds. The Holdsworths contend that this recordation was
another published slander and that the defendants' refusal to accept the Titcomb
11 Survey and abandon their claim in the driveway demonstrates malice and
recklessness.
Accepting that Mr. Higgins and Ms. Rivard claimed their interest in the
driveway with good faith based on substantial evidence before the Titcomb
Survey was performed, they have every right to maintain that claim against the
Titcomb S'urvey's contrary assertion. See Rutland v. Mullen, 2002 ME 98, err 15, 798
A.2d 1104, 1111 (assertion of a legal right is not fraud); GalllJnOIl v. Tremblay, 2002
Me. Super. LEXIS 94, ** 19-20 (May 1, 2002) (asserting good faith belief in
location of boundary docs not constitute slander if incorrect); Restatement
(Second) Torts § 647 (1977) ("A rival claimant is conditionall y privileged to
disparage another's property ... by an assertion of an inconsistent legally
protected interest in himself."). Such a rule "is necessary to enable raj claimant to
preserve the enforceability of his claim." Restatement (Second) Torts § 647 cmt. f.
Even if the recordation of the Blanchard Survey did cause the
J-Joldsworths cognizable damages, it was hardly a malicious or reckless act.
Knowing that the boundary was disputed, Mr. Higgins and Ms. Rivard had to
record evidence of their interest to preserve their legal claim in the driveway
against future purchasers. They only way they could conclusively verify the
Blanchard Survey's accuracy was through litigation; after litigation there would
be no need to preserve their claim. Recording the survey pending final resolution
of the good-faith dispute through litigation is not a slanderous act. E.G. Fischer v.
Bar Harbor Banking & Trust Co., 673 P.5upp. 622, 627 (D. Me. 1987).
The Holdsworths have failed to show that the defendants acted with
anything but a good-faith belief in the legitimacy of their claim to the driveway.
Count I for slander of title fails as well.
12 2. Intentional Interference with Contractual and Business Relations
The Holdsworths contend that the same essential facts undergirding their
slander of title claim make out a cause of action for tortious interference with a
contract or prospective economic advantage. To prove their case, the
Holdsworths must show: "(1) that a valid contract or prospective economic
advantage existed; (2) that the defendant interfered wi th that contract or
advantage through fraud or intimidation; and (3) that such interference
proximately caused damages." Rutland, 2002 ME 98, <[ 13, 798 A.2d at 1110. There
is no question that the Holdsworths had a contract or economic expectancy with
the Cashmans. Mr. Higgins and Ms. Rivard's defense must rest on the other two
elements of the claim.
"[F]raud or intimidation is critical to a claim for tortious interference ...."
[d. err 13 n.5, 798 A.2d at 1110 n.5. As discussed above, the Holdsworths have
failed to make their case for fraud because the evidence unquestionably shows
that Mr. Higgins and Ms. Rivard acted in good faith to protect a perceived legal
right in the driveway. Their action for tortious interference must therefore rest on
intimidation. "Interference by intimidation involves unlawful coercion or
extortion.... Again, a person who claims to have, or threatens to lawfully
protect, a property right that the person believes exists cannot be said to have
intended to deceive or to have unlawfully coerced or extorted another" even if
the person is mistaken. [d. <[ 16, 798 A.2d at 1111 (internal citations omitted)
(citing P01l1brimzt v. Blue Cross/Blue Slzield of Maine, 562 A.2d 656, 659 (Me. 1989);
Restatement (Second) of Torts § 773 (1979)).
When dealing with the Cashmans, the Holdsworths undeniably believed
that the defendants had an ownership stake in the driveway as evidenced by the
13 survey plat in the purchase and sale agreement and by their request for an
easement. Mr. Higgins and Ms. Rivard shared this belief on the basis of their
deed, their predecessor deed, the Blanchard Survey, and their family's historic
understanding of their boundaries dating back to 1969. This belief and the
actions stemming from it now form the basis of the Holdsworths' claim for
interference by intimidation.
It is hard to see how the Higgins agreement with a belief the Holdsworths
independently held and communicated to the Cashmans could constitute
coercion or extortion. More importantly, the defendants' statements and actions
were motivated by a good-faith belief in their right to the drive and a desire to
protect their legal interests. See Rutlalld, 2002 ME 98, <[ 16, 798 A.2d at 1111. They
had no obligation to give away a right over what all parties believed was the
defendants' property for the Holdsworths' or Cashmans' benefit. The
Holdsworths' have not provided any evidence to support their claim that Mr.
Higgins and Ms. Rivard did anything but assert and defend their good-faith
claim to a property right in the dri veway. "The evidence is therefore ...
insufficient as a matter of law to support a finding of interference by
intimidation" or by fraud. ld.
3. Negligence
In their final claim, the Holdsworths contend that the defendants owed
them a duty of care regarding statements made about property ownership.
Arising as it does from the same set of facts behind the first two counts, this is in
substance a claim for negligent slander of title or perhaps negligent interference
with an economic advantage. Maine has followed the Second Restatement of
Torts in rejecting the tort of negligent interference. Rutland, 2002 ME 98,
14 A.2d at 1110 n.5. "[F]raud or intimidation is critical to" such a claim "because it
distinguishes unlawful conduct from conduct inherent in a healthy competitive
economic environment." Jri.
Similarly, Maine has not recognized the tort of "negligent slander of title."
The Federal District Court of Maine has noted that "[m]alice is the 'gist of the
action' for slander of title." E.G. Fischer, 673 F. Supp. 622, 626 (D. Me. 1987)
(quoting Mf7rkowitz v. Repuhlic Nf7t'l Bf7nk of N. Y, 651 F.2d 825, 828 (2d. Cir.
1981)). Malice requires something more than negligence. Cole, 2000 ME 104, ~r 7,
752, A.2d at 1194. The presence of malice is necessary because a rival claimant to
property is generally privileged to assert a good-faith legal interest in himself,
even if the belief is mistaken or unreasonable. Restatement (Second) Torts § 647
cmt. d (cited approvingly at E.g. Fischer, 673 F. Supp. at 626); see Rut/f7/lrt, 2002 ME
98,
cannot constitute fraud or intimidation).
lf the court were to recognize the Holdsworths' claim for negligence in
this case, it would allow them to perform an end-run around the heightened
mental states required to support slander of title and tortious interference. Even
if the court were to recognize such a tort and the requisite duty to refrain from
unreasonable assertions of ownership, the undisputed facts show that Mr.
Higgins and Ms. Rivard had ample objective bases from which they would
reasonably believe they owned a portion of the disputed driveway. The court
grants the defendants summary judgment on the count of negligence.
4. Declaratory Judgment
Tn addition to requesting summary judgment on the Holdsworths' tort
claims, the defendants seek judgment on their declaratory judgment action. They
15 advance the theories of acquiescence and the nJle of practical location to establish
their right in the driveway as a matter of law. The Holdsworths object that these
specific theories were not pleaded, that the defendants rely on inadmissible
evidence, and that they have not met their burden of proof.
As a preliminary matter, the defendants' counterclaim pleads facts
adequate to raise the issues of acquiescence and the rule of practical location, and
thus meets the notice pleading requirements of M.R. Civ. P. 9. See Benn v.
Cillllll1inRS, 2008 ME 18, ~[ 8, 939 A.2d 676, 679. Also, the LaPoint survey plat was
initialed by the Holdsworths making it an adoptive admission and admissible
non-hearsay. M.R. Evid. 801(d)(2)(B), 803(14).
To prevail on their claim for boundary by acquiescence, the defendants
must show:
(1) possession up to a visible line marked clearly by monuments, fences or the like; (2) actual or constructive notice to the adjoining landowner of the possession; (3) conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake may be fairly inferred; (4) acquiescence for a long period of years such that the policy behind the doctrine of acquiescence is well-served by recognizing the boundary.
CnltJlOrpc v. AbmlwJ11S011, 441 A.2d 284, 289 (Me. 1982). Acquiescence must be
proven by clear and convincing evidence. Id. at 289. The defendants contend that
the LaPoint survey plat establishes that the Holdsworths had notice of the
defendants' constructive possession of the road since 1991, and that the
Holdsworths' failure to challenge the LaPoint findings evinces their long
acquiescence.
The typical case for boundary by acquiescence involves "the significance
of a fence or some other structure commonly used to indicate a boundary line."
Id. at 290. A roadway can serve as such a line. Mnrfn Corp. v. Allain, 622 A.2d
16 1182, 1185 (Me. 1993). However, in this case the defendants are not arguing that
the roadway itself constitutes the boundary. Instead, the argument is that the
border begins at the center of one end of the driveway and travels from there in a
straight line while the roadway snakes through it. Since the roadway itself is not
the boundary, the defendants must rely on other monuments. The only other
alternative is the location of formal boundary markers, and the location of these
is question of fact not resolved by the record. See Theriault v. Murray, 588 A.2d
720, 721 (Me. 1991) (location of boundaries and markers on the face of the Earth
is a question of fact).
Other questions of fact remain as well. The absence of defini te boundary
marking structures raises questions about the defendants' possession of the area
up to the alleged border. Also, the defendants have not shown by clear and
convincing evidence that the alleged acquiescence has continued for a period of
years such that lithe policy behind the doctrine of acquiescence is well-served by
recognizing the boundary./I CaltllOrpe, 441 A.2d at 289.
Separate from boundary by acquiescence, the rule of practical location by
parol agreement applies "[w]here adjoining owners deliberately erect
monuments, fences, or make improvements on a line between their lands on the
understanding that it is the true line, [andl it amounts to a practical location ... . /1
Calt17orpe, 441 A.2d at 288 (quoting H. Skelton, The Legal Elements of Boundaries
and Adjacent Properties § 322 at 362-63 (1930)). Boundary by parol agreement
requires "proof of an agreement to locate and fix a boundary on a certain line
••• • /1 [d. The defendants have not produced any evidence of an agreement
betw'een themselves and the Holdsworths to fix the boundary at a given location.
17 If the Holdsworths placed boundary monuments into the earth, it was a
unilateral action the defendants neither knew of nor relied upon.
The entry is:
The court grants the defendants' motion for summary judgment on all of
the plaintiffs' claims. The court denies summary judgment on the defendants'
countercl ai m for decl aratory ju dgment.
DATE: ~I 201 iJ
18 01 0000003741 BREWSTER, SETH ONE PORTLAND SQUARE PO BOX 586 PORTltAND ME 04112-0586 RTND 01/14/2009 -F EARL T HOLDSWORTH PL F SANDRA S HOLDSWORTH PL RTND 01/14/2009 -F KERRI D HOLDWORTH-CTRDEF. DEF RTND 03/23/2009 - F STACY L COGGSHALL-CTRDEF. DEF RTND 03/23/2009 -F SCOTT T HOLDWORTH-CTRDEF DEF RTND 03/23/2009
02 0000002617 KNOWLES, WILLIAM ONE PORTLAND SQUARE PO BOX 586 PORTLAND ME 04112-0586 F EARL T HOLDSWORTH PL RTND 12/02/2009
~lU<.L '1' ttULU~WU.K'l'tt ~'l' AL V~ UAV.LU tt.L\.,j\.,j.LN~ .L.L.L ~'1' AL UTN:AOCSsr -2009-0004578 CASE #:PORSC-CV-2009-00035
04 0000009364 SMALL, THEODORE 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029 F DAVID HIGGINS, III DEF RTND 02/25/2009 ----....;,...;;--:......!~------------- F LINDA S RIVARD DEF RTND 02/25/2009 --------------------- STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-09 7035 OIIC r,\T, . - "1 (,,-, 1""'/ \./\.1 I " ... ~ '(. 7:1 ." ' -ClI'' ",·,·/e) Ir- I ' EARL T. AND SANDRA S. HOLDSWORTH,
Plaintiffs, ORDER ON PLAINTIFFS' v. ~OJ\h-!€?~ TO RECONSIDER 1£ O~· ~i~fI{S Ot1\ce DAVID HIGGINS III AND LINDA CI.l~:~a0d, '0">. C S. RIVARD, d (~ 7.~\~
C' ', C,'", \ \/E D Defendants ~:E. >' 't- \" .~
Plaintffs Earl 1'. and Sandra S. Holdsworth request that the court
reconsider its May 14, 2010 order in which it granted defendants David Hggins
III and Linda S. Rivard's motion for summary judgment on the plaintiffs' tort
claims. The parties in this case shared ownership of a driveway for thirty-eight
years without any recorded dispute. When the defendants' parents and
predecessors in interest purchased their property in 1968, a survey located the
parties' common boundary at the center of a shared driveway. The survey was
used to create the metes and bounds in the defendants' deed, and a copy of the
survey plat was attached. In the early 1990s the plaintiffs had another survey
performed, which confirmed the original 1969 results. The plaintiffs attempted to
sell their property in 2006, at which time they included a copy of their 1993
survey plat in the purchase and sale agreement and acknowledged the
defendants' interest in the driveway to both the potential buyers and the
defendants directly. A dispute arose at that time, and the sale fell through.
1 As a result of this dispute, the plaintiffs commissioned a new survey in
2007. This "Titcomb Survey" located the driveway entirely on the plaintiffs' land.
The plaintiffs confronted the defendants and demanded that they accept the new
boundaries shown by the Titcomb Survey. The defendants refused. They
consulted their attorney and an engineer, and were told that the Titcomb Survey
appeared reasonable but did not necessarily supplant the prior surveys
establishing the traditional boundary. To protect their interests, the defendants
recorded a copy of the 1969 survey in the Deed Registry. The plaintiffs then sued
for slander of title, tortious interference, and negligence.
On the defendants' motion for summary judgment, the court noted that
there is no tort of "negligent slander of title" or "negligent interference" because
the essence of slander and interference are malice, fraud, and bad fai tho See
Rutlann V. Mullen, 2002 ME 98,
interference requires fraud or intimidation; good-faith assertion of a legal claim
is neither); Cole v. Chandler, 2000 ME 104,
slander to include knowledge of a statement's falsity, high degree of awareness
of its falsity, or serious doubt as to its truth); Colquhoull v. Webber, 684 A.2d 405,
409 (Me. 1996) (slander of title requires malicious falsehood). Law and policy
encourage the defense of property rights, and a good-faith assertion of a legal
interest is privileged, even if the belief is unreasonable. Restatement (Second)
Torts § 647 cmt. d; Rutland, 2002 ME 98,
that the plaintiffs had failed to show that the defendants had not asserted their
legal interests in good faith and granted the defendants' motion.
The plaintiffs now ask the court to reconsider. The court treats a motion
for reconsideration pursuant to Rule 59(e) as a motion to alter or amend a
2 judgment. Geyerllalm v. United States Fid. & Guar. Co., 1999 ME 40, ~ 9, 724 A.2d
1258, 1260. "It is a procedural vehicle to correct a judgment where there has been
an error of law or clear error amounting to an abuse of discretion." Westbrook
Assocs. v. City oj1!\festbroolc, 1994 Me. Super. LEXIS 216 (June 3,1994). The
plaintiffs argue that the Titcomb Survey itself generates a triable issue of fact as
to whether the defendants asserted their rights in good faith. They essentially say
that the defendants need to prove that they were not immediately convinced that
the Titcomb Survey, challenging their interests and standing alone against thirty
eight years of history, was correct. The defendants need to prove at trial that they
did not record their original survey and assert their legal interests in bad faith,
but did in fact harbor a good-faith belief in the truth of their position.
The court rejected the plaintiffs' argument in its original order, and it
rejects it again here. On summary judgment the court does give the nonmoving
party the benefit of all reasonable inferences, Beaulieu v. The AI/be Corp., 2002 ME
79, ~ 2, 796 A.2d 683, 685, but will not engage in unsupported speculation on the
party's behalf. Dyer v. DOT, 2008 ME 106,
precisely what the plaintiffs request. The Titcomb Survey does create an issue of
fact regarding the location of the parties' common boundary, which remains in
dispute. It does not, however, show on its face that the defendants believed it to
be true, no matter how reasonable it might be. The court will not speculate that
the existence of a survey challenging the defendants' boundary after thirty-eight
wears of undisturbed occupation caused the defendants to abandon belief in the
laccuracy of their deed. The plaintiffs were required to show something more to
Imeet their burden of showing malice, fraud, and bad faith sufficient to penalize
[the defendants for moving to protect their legal property interests.
3 The entry is:
The court denies the plaintiffs motion for reconsi
DATE:~2-010
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-01 0000003741 BREWSTER, SETH ONE PORTLAND SQUARE PO BOX 586 PORTLAND ME 04112-0586 F EARL T HOLDSWORTH PL RTND 01/14/2009 - -FF SANDRA S HOLDSWORTH KERRI D HOLDWORTH-CTRDEF. PL DEF RTND RTND 01/14/2009 03/23/2009 - -FF STACY L COGGSHALL-CTRDEF. SCOTT T HOLDWORTH-CTRDEF DEF DEF RTND RTND 03/23/2009 03/23/2009 - KNOWLES, WILLIAM -02 0000002617 ONE PORTLAND SQUARE PO BOX 586 PORTLAND ME 04112-0586 EARL T HOLDSWORTH PL RTND 12/02/2009 -F ,t;AKL '1' tlULU::;WUK'l'tl ,t;'l' AL V::; UAV.LU tl.Llili.LJ.\I::; .L.L.L ,t;'1' AL UTN:AOCSsr -2009-0004578 CASE #:PORSC-CV-2009-00035
04 0000009364 SMALL, THEODORE 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029 F DAVID HIGGINS, III DEF RTND 02/25/2009 -----..,;;;;..;;.....;~,;";,;,,..:~.....;..;~----------- F LINDA S RIVARD DEF RTND 02/25/2009 ---'--.;.;.........;..;---------------