McDermott v. Hegarty

• Court: Superior Court of Maine
• Decided: May 30, 2023
• Docket: SAGre-21-13
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT SAGADAHOC, ss. CIVIL ACTION DOCKET NO. RE-21-13 RYAN MCDERMOTT, and ) MEGAN O'NEILL, ) ) Plaintiffs/Counterclaim _) Defendants, ) ORDER ON CROSS MOTIONS FOR ) SUMMARY JUDGMENT Vv. ) ) LAURIE E. HEGARTY, ) ) Defendant/Counterclaim ) Plaintiff )

INTRODUCTION

The matters pending before the court are cross motions for summary judgment

filed by plaintiff/counterclaim defendants Ryan McDermott and Megan O'Neill

(collectively,

BACKGROUND

The following facts are drawn from the properly supported undisputed

statements of material fact.9 See M.R. Civ. P. 56.

The McDermotts own property located at 247 Marrtown Road in Georgetown,

Maine by virtue of a deed dated April 20, 2019 and recorded at the Sagadahoc County.

Registry of Deeds at Book 2019R, Page 02482. (PL9s Supp.9g S.M.F. 7 1.) Ms. Hegarty

owns abutting property located at 255 Marrtown Road in Georgetown, Maine, by virtue

of a deed dated August 17, 2017 and recorded in the Sagadahoc County Registry of Deeds

at Book 2017R, Page 05791, and a later deed dated July 15, 2021 and recorded at the

Sagadahoc County Registry of Deeds at Book 2021R, Page 06051. (PI.9s Supp.9g S.MLF. 7

1 Ms. Hegarty has invoked M.R. Prof. Conduct 4.1 and M.R. Civ. P. 11, arguing that Mr. McDermott and his attorney have perjured themselves in affidavits currently before the court. These claims have no merit. 2.) Previously, both properties were owned by James R. Peacock and Roselene F. Peacock.

(Pl9s Supp.9g S.M.LF. { 4.) On December 3, 1984, the Peacocks sold a portion of the Georgetown property to

Leroy A. Vander Putten and Evon Vander Putten. (PI.9s Supp.9g S.M.F. 7 4.) The Vander

Puttens are the predecessors in title to the McDermotts. (Pl.9s Supp.9g S.M.F. ¥ 5.) The

deed transferring the portion of the Peacocks9 property that the McDermotts now own to

the Vander Putténs contains the following express easement:

Said property is conveyed together with an easement to run with the land for the use of a dock extending in Deep Cove from the adjacent property being retained by James R. Peacock and Roselene F. Peacock and for access to said dock across the extreme southeasterly corner of the remaining land of said Peacock. Such access shall be by foot only and such use shall be exercised in common with James R. Peacock and Roselene F. Peacock in such a way so as not to disrupt or disturb the use of said dock by the Peacocks. By acceptance of this deed the Grantees agree for themselves, their heirs and assigns, that they will contribute fifty percent (50%) of all reasonable maintenance cost of said docking facility and agree that they will secure no more than one small boat at any one time to the dock it being understood by all parties that large boats serviced by the dock shall be moored or anchored offshore and reached by small boat. Nothing in this easement shall require the Peacocks, their heirs and assigns, to replace or repair the dock if said dock should be substantially destroyed by storm, ice, fire, or other casualty unless the Grantees, their heirs and assigns, tender payment of one-half (1/2) of the replacement or repair cost in which case the Grantors agree that such dock will be replaced. James R. Peacock and Roselene F. Peacock, their heirs and assigns, shall have the sole authority to designate who will do any work or supply any materials in connection with any maintenance, minor repair, replacement, or major repair of said dock.

(PL9s Supp.9g S.M.F. ¥ 5.) On April 30, 2019, the Vander Puttens sold the property to the

McDermotts via warranty deed recorded in the Sagadahoc County Registry of Deeds at

Book 2019R, Page 02482. (Pl9s Supp.9g S.M.F { 12.) On September 25, 1989, the Peacocks sold the portion of their Georgetown

property containing the dock named in the easement to Malcolm and Laura Gauld, Ms.

Hegarty9s predecessors in title. (Pl.9s Supp.9g S.M.F. 1 6-7.) The deed transferring title to the Gaulds transferred the property

Peacock, et al. to Leroy A Van DerPutten, et al. by deed recorded in the Sagadahoc County

Registry of Deeds.= (PL.9s Supp.9g S.MLF. { 7.)

On August 17, 2017, the Gaulds sold their property to Ms. Hegarty and her ex-

husband, Thomas Hegarty, via warranty deed recorded at the Sagadahoc County

Registry of Deeds at Book 2017R, Page 05791. (P1.9s Supp.9g S.M.F 7 8.) The deed

transferring title from the Gaulds to the Hegartys contained the following language:

SUBJECT to an easement conveyed by James R. Peacock, et al, to Leroy A. Van DerPutten, et al, by deed recorded in the Sagadahoc County Registry of Deeds in Book 686, Page 343.

(P1.9s Supp.9g S.M.F ¥ 9.) Pursuant to the terms of her divorce, Ms. Hegarty acquired sole

ownership of the property via quitclaim deed dated July 15, 2021 and recorded in the

Sagadahoc County Registry of Deeds at Book 2021R, Page 06051. (Pl.9s Supp.9g S.M.F 1

10.) A dock existed on the property when Ms. Hegarty purchased it, though it was

already in a state of disrepair. (Pl.9s Supp.9g S.M.F {{ 23, 28.) Ms. Hegarty has not

performed any maintenance on the dock since acquiring the property and has not had

the dock inspected to determine if it is safe to put in the water. (Pl.9s Supp.9g S.M.F {1

25-26, 29.) Ms. Hegarty has never attempted to put the dock in the water. (PL9s Supp.9g S.M.F { 28.) | Since acquiring the dominant estate, the McDermotts have asked Ms. Hegarty

several times to put the dock in the water so they could use it. (P1.9s Supp.9g S.MF 7 31-

32.) Ms. Hegarty has refused all of these requests and told the McDermotts to get off of

her property when they attempted to cross it. (Pl.9s Supp.9g S.M.F ¥ 33.) After Ms.

Hegarty refused to either put the dock in the water or repair it, Mr. McDermott retained

Kennebec Marine Services to provide an estimate for replacing the existing dock. (Pl.9s Supp.9g S.M.F { 34.) The initial estimate, dated September 1, 2020, was $7,300 for the

installation of a new float and ramp similar in size to the existing dock. (PI.9s Supp.9g

S.M.F { 35.)

The parties agree that Mr. McDermott tendered half of this initial estimate to Ms.

Hegarty. (Pl.9s Supp.9g S.M.F { 36; Opp. to PL.9s Supp.9g S.M.F J 36.) The parties also

agree that at some point Mr. McDermott received a second estimate from Kennebec

Marine Services, dated April 5, 2021, which included installation of the ramp, float, and

mooring blocks for $11,690. (Pl.9s Supp.9g S.M.F { 39; Opp. to PL.9s Supp.9g S.M.F { 39.)

However, the McDermotts aver that they only obtained the second quote after Ms.

Hegarty refused the check for half of the initial quote, while Ms. Hegarty points out that

the check was dated July 27, 2021, several months after Mr. McDermott received the

updated quote. (Pl.9s Supp.9g S.M.F { 36; Opp. to Pl.9s Supp.9g S.M.F { 36.) Regardless of the timing, the parties agree that Ms. Hegarty has refused the check

from Mr. McDermott on the basis that the deed gives her sole discretion to choose a

vendor to perform maintenance work on the dock. (P1.9s Supp.9g S.M.F { 37.) Ms Hegarty

has not made any attempt to secure a vendor to repair or replace the dock. (P1.9s Supp.9g

S.M.F { 38.) The parties further agree that the McDermotts have repeatedly attempted to

exercise what they believe are their rights under the easement. (PI.9s Supp.9g S.M.F { 42.)

The previous owners of the Hegarty and McDermott properties understood the

easement to be a general use grant with few restrictions. (Pl.9s Supp.9g S.M.F { 62.) The

Vander Puttens and their guests used the dock for a variety of activities, including

fishing, swimming, sunbathing, boating, kayaking, canoeing, and socializing. (PI.9s

Supp.9g S.M.F J 63.) In addition to these general activities, the Vander Puttens secured a

small boat to the dock for access to their larger boat moored offshore. (PI.9s Supp.9g S.M.F

q 64.) The McDermotts eventually filed a declaratory judgment action and request for a

permanent injunction against Ms. Hegarty on October 13, 2021. The McDermotts seek

the following relief: (1) a declaration that the McDermotts have a permanent,

appurtenant, perpetual, express deeded easement over the Hegarty Property; (2) to

permanently enjoin Ms. Hegarty from blocking the Easement as described in the deeds;

(3) to order Ms. Hegarty to repair or replace the dock; and (4) award the McDermotts

their interest, costs, and attorney9s fees.

Ms. Hegarty filed an Answer and Counterclaims, including her own claim for

declaratory and injunctive relief and a claim for common law trespass. Ms. Hegarty

seeks: (1) a declaration that the McDermotts9 continued use of her property for any

purpose other than accessing a single small boat on the dock when the dock is present

and functional exceeds the scope of their easement rights; (2) grant a mandatory

injunction ordering the McDermotts to refrain from using the shore of the Hegarty

Property for general recreation or swimming access; and (3) award Ms. Hegarty costs in

bringing the action. Ms. Hegarty has not moved to amend her Counterclaims, but now

appears to have taken the position that she is owed contribution for the maintenance that

she never performed. (Opp. to Pl.9s Mot. Summ. J. 15.)

STANDARD OF REVIEW

Summary judgment is granted to a moving party where

as to any material fact= and the moving party

MR. Civ. P. 5 6(c).

there is a genuine issue when there is sufficient evidence for a fact-finder to choose between competing versions of the fact.= Lougee Conservancy v. CitiMortgage, Inc., 2012

ME 103, { 11, 48 A.3d 774 (quotation omitted).

opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.= M.R. Civ. P. 56(h)(4). In

order to controvert an opposing party9s factual statement, a party must

denial or qualification by a record citation.= M.R. Civ. P. 56(h)(2). Assertion of material

facts must be supported by record references to evidence that is of a quality that would

be admissible at trial.= HSBC Mortg. Servs. v. Murphy, 2011 ME 59, ¥ 9, 19 A.3d 815.

DISCUSSION

The cross motions for summary judgment both concern the same issue: the scope

of the easement in the parties9 deeds. The parties do not dispute that an easement exists or assert that it has been abandoned or otherwise destroyed. Ms. Hegarty asks the court

to adopt an extremely limited reading of the language in the deed, so that all that the

easement would permit is access to the dock for the purpose of boarding or deboarding

a small boat, and only when Ms. Hegarty has chosen to put the dock in the water in a

serviceable condition. Ms. Hegarty asks the court to read the easement to not allow the

McDermotts to invite family or friends to use the dock with them, or to use the dock for

other purposes such as swimming, fishing, or socializing. While this is only implicit in

her filings, Ms. Hegarty has clearly taken the position that she is under no obligation to

maintain the dock for the benefit of the McDermotts. The McDermotts, on the other hand,

believe that they have a general right to use the dock for a variety of recreational

purposes, that Ms. Hegarty must maintain the dock in a serviceable condition, and that

they are obligated to pay 50% of the reasonable costs of maintenance.

with the land.= O'Donovan v. McIntosh, 1999 ME 71, ¥ 7, 728 A.2d 681.

party's easement rights must be determined from the unambiguous language on the face

of the deed. Only if language in a deed is ambiguous may a court consider extrinsic

evidence to determine the intent of the parties.= Matteson v. Batchelder, 2011 ME 134, 16, 32 A.3d 1059 (quoting Jordan v. Shea, 2002 ME 36, { 14, 791 A.2d 116).

ambiguous when it is reasonably susceptible to different interpretations.= Beckerman v.

Conant, 2017 ME 142, { 13, 166 A.3d 1006.

Interpretation of the Deed

The parties agree that the deed language is unambiguous, and that the easement

runs with the land. The parties only disagree about how the court should construe the

deed language. The court agrees that the deed language is unambiguous and will interpret the scope of the easement without resorting to extrinsic evidence.

The deed characterizes the easement owned by the McDermotts as one

use of a dock extending in Deep Cove from the adjacent property,= what is now Ms.

Hegarty9s property,

of [the property].= The meaning of this language is clear: the McDermotts may cross Ms.

Hegarty9s land by the extreme southeasterly corner to access and use the dock in dispute.

The deed goes on to impose restrictions. First, <[s]uch access shall be by foot only.=

This restriction is self-explanatory.

Second,

Roselene F. Peacock in such a way so as not to disrupt or disturb the use of said dock by

the Peacocks.= This restriction forbids the McDermotts from exercising their easement

rights in a way that would disrupt Ms. Hegarty9s use of the dock. In simpler terms, the

parties must share the dock.

Third,

contribute fifty percent (50%) of all reasonable maintenance cost of said docking facility.

...= This obligation is also self-explanatory. The McDermotts must contribute half of all

reasonable upkeep costs. Ms. Hegarty has argued that this entitles her to half of the

reasonable maintenance costs for a period where she was not maintaining the dock and includes a time period where the McDermotts were not the title owners. Nothing in this

language implies that the easement owners are required to contribute to the maintenance

of the dock before Ms. Hegarty actually performs any maintenance.

Fourth, <[the McDermotts] will secure no more than one small boat at any one time

to the dock it being understood by all parties that large boats serviced by the dock shall

be moored or anchored offshore.= Again, this restriction is self-explanatory.

Reading all of this language together, it is clear that the easement was intended to

grant the McDermotts the ability to use the dock for any purposes that would not

interfere with Ms. Hegarty9s own use of the dock, not only to dock a single boat when

Ms. Hegarty decides to put the dock in the water. This includes general recreation

activities, such as fishing and swimming, which is consistent with the use of the easement

by prior easement holders. Docks can be used for a variety of recreational purposes,

including fishing and swimming, and are not exclusively used for storing boats as Ms.

Hegarty seems to believe. All use restrictions were expressly provided in the text of the

deed, and there is no reason to believe that the original grantors intended to restrict the

use of the dock any more than they did with express language.

Ms. Hegarty argues that the use of the term

easement language somehow defines the term

language. Ms. Hegarty argues that a

dock and cargo and people to be loaded and unloaded from them. This is an arbitrarily

restrictive reading of the easement language. Further, the term

defined in the deed, certainly not in such a restrictive way. The record is clear that the

dock was used for general recreation purposes by previous owners, and as the court has

pointed out already, this is common for docks of this size and character. The court will not credit such an unnatural reading of the deed language when there is an obvious intent

to convey a general use grant to share the dock. Turning now to the obligation to maintain the dock, the court must start from the

principle that, in general,

beneficiary of an easement or profit to repair or maintain the servient estate or the

improvements used in the enjoyment of the easement= unless expressly provided by the

easement language. Restatement (Third) of Property § 4.13. Normally, the holder of an

easement has a duty to maintain the easement necessary to its use. See Cote v. Miville,

No. CV-16-148, 2018 Me. Super. LEXIS 76, at *20 (Feb. 28, 2018). However:

Joint use by the servient owner and the servitude beneficiary of improvements used in enjoyment of an easement or profit, or of the servient estate for the purpose authorized by the easement or profit, gives rise to an obligation to contribute jointly to the costs reasonably incurred for repair and maintenance of the portion of the servient estate or improvements used in common.

Id. In this case, the deed language is clear that both parties have the right to use the

dock. In addition, the language explicitly provides that the McDermotts shall provide

50% of the reasonable costs of maintaining the dock, which implicitly states that Ms.

Hegarty will bear primary responsibility for its maintenance.

Ms. Hegarty is responsible for maintaining the dock in a serviceable condition for

the benefit of the McDermotts, even if she does intend to use the dock herself. Ms.

Hegarty is then entitled to recoup 50% of her reasonable costs from the McDermotts. The

easement does not give Ms. Hegarty the discretion to decide whether or not to maintain

the dock, or to condition her performance of this responsibility on the extraction of concessions from the McDermotts.? This is supported by the language of the casualty provision, which provides:

Nothing in this easement shall require the Peacocks, their heirs and assigns, to replace or repair the dock if said dock should be substantially destroyed by storm, ice, fire, or other casualty unless the Grantees, their heirs and assigns, tender payment of one-half (1/2) of the replacement or repair cost in which case the Grantors agree that such dock will be replaced. James R. Peacock and Roselene F. Peacock, their heirs and assigns, shall have the sole authority to designate who will do any work or supply any materials in connection with any maintenance, minor repair, replacement, or major repair of said dock.

This clause conditions Ms. Hegarty9s obligation to repair or replace the dock after it has

been substantially destroyed by a casualty event on receiving payment from the

McDermotts. This clause would be redundant if Ms. Hegarty was not ordinarily required

to maintain the dock for the benefit of the McDermotts. Reading the deed as a whole, it is clear that Ms. Hegarty has an affirmative obligation to maintain the dock for the benefit

of the McDermotts, subject to an obligation by the McDermotts to contribute 50% of those

reasonable maintenance costs.

The Casualty Clause The casualty clause creates a separate right for the grantors, now held by Ms.

Hegarty, that expressly provides that she is not obligated to replace the dockif it is

substantially destroyed by a casualty event. Her only obligation to repair or replace the

dock is triggered under this language when the easement holders, the McDermotts,

tender payment of half of the repair cost to replace the dock. If and when the McDermotts

do so, the easement language clearly states that Ms. Hegarty must repair the dock, or if

2 For example, Ms. Hegarty has suggested that if the McDermotts were to succeed in this lawsuit, she would impose certain

10 repair is not feasible, replace the dock. However, Ms. Hegarty is also given sole authority

to select the vendor to perform the work.

Reading the deed language as a whole, the process if the dock is destroyed by a

casualty event is clear. If a casualty event substantially destroys the dock, Ms. Hegarty

is under no obligation to repair the dock unless the McDermotts tender payment of half

of the cost of replacement or repair by a vendor of Ms. Hegarty9s choosing. This does not

entitle the McDermotts to obtain a quote of their own and pay half of that cost to trigger

Ms. Hegarty9s obligations. Conversely, it would be an absurd reading of the deed

language to hold that Ms. Hegarty is entitled to avoid her repair obligations by refusing

to select a vendor. Ms. Hegarty must select a vendor and obtain a quote for the necessary

work within a reasonable period of time upon the McDermotts expressing an interest in

repairing the dock, but she is not obligated to begin the work until the McDermotts tender

payment of half of that quote, assuming it is reasonable. Regardless, the record on this summary judgment motion does not indicate that a

casualty event occurred. Aside from a suggestion by the McDermotts that the current

state of the dock was likely caused by storm, ice, or fire, neither party has identified a

specific casualty event that caused the dock9s current state. Rather, it seems clear from

the undisputed facts that Ms. Hegarty9s predecessor in title stopped maintaining the dock

at some point and allowed it to fall into disrepair, and Ms. Hegarty continued this pattern

of neglect due to her personal disinterest in using the dock. The casualty clause has not

been triggered by these facts.

Trespass

There remains no issue of material fact that the McDermotts exceeded the scope of

their easement and engaged in common law trespass. The only allegation which could,

in theory, support a trespass claim is Ms. Hegarty9s allegation that she observed Mr.

11 McDermott run naked across her yard after swimming naked. Her citation for this

statement of fact is to her affidavit, which contains no such allegation. In summary

judgment practice,

a record to find support for facts offered by a party.= HSBC Bank USA, N.A. v. Gabay,

2011 ME 101, { 8, 28 A.3d 1158. Additionally, Ms. Hegarty9s claim for common law

trespass is explicitly based on the McDermotts exceeding the scope of the easement and

does not center this allegation.

The undisputed facts only indicate the McDermotts undertaking reasonable

efforts to preserve their easement rights while Ms. Hegarty took aggressive steps to

interfere with those rights. Summary judgment will be granted to the McDermotts on

Ms. Hegarty9s common law trespass claim.

Costs and Fees

The court will grant the McDermotts9 request for costs, but will not grant attorney

fees. Costs are awarded as a matter of courseto the prevailing party. M.R. Civ. P. 54;

Landis v. Hannaford Bros., 2000 ME 11, 7 5, 754 A.2d 958.

Attorney fees are generally not awarded to a prevailing party, under the

2023 ME 11, { 15, 288 A.3d 1214. There are three exceptions to the American rule

recognized in Maine; <(1) [a] contractual agreement of the parties, (2) clear statutory

authority, or (3) the court's inherent authority to sanction egregious conduct in a judicial

proceeding.= Id. (quoting Fortney & Weygandt, Inc. v. Lewiston DMEP IX, LLC, 2022 ME 5,

{ 12, 267 A.3d 1094). None of the exceptions apply here. There is no relevant contract

between the parties and no statutory authority for an award of attorney fees in this

context. Ms. Hegarty9s conduct in this litigation does not rise to the level of egregious

conduct required for an award of attorney9s fees. See Baker v. Manter, 2001 ME 26, { 14,

12 765 A.2d 583 ("[t]he trial court's authority to sanction parties and attorneys for abuse of

the litigation process should be sparingly used and sanctions imposed only when the

abuse of [the litigation] process by parties or counsel is clear.") (quotation marks omitted).

CONCLUSION

In light of the above, the McDermotts Motion for Summary Judgment is hereby

GRANTED. Judgment is entered for the McDermotts. The Court declares the rights of

the parties as follows:

(1) The McDermotts own a permanent, appurtenant, express deeded easement

over the Hegarty Property which entitles them to use the dock for a variety of

recreation activities, including, but not limited to, fishing, swimming, and

boating. The McDermotts9 use of the dock is only limited by the express

limitations contained within their deed, including that such use may not

interfere with Ms. Hegarty9s own enjoyment and use of the dock.

(2) Further, that Ms. Hegarty has an affirmative obligation to maintain the dock in

a serviceable condition for the benefit of both parties, for which she may seek

50% of reasonable costs from the McDermotts after she incurs such expenses;

and

(3) That Ms. Hegarty is enjoined from interfering with the McDermotts exercise of

their rights under the easement.

To further clarify the obligations of the parties moving forward, Ms. Hegarty must

select a vendor to repair the dock to a serviceable condition. If repair is not possible, she

must replace the dock such that it can be used for the same range of recreational activities

as it has been used historically, including fishing, swimming, and mooring of at least two

small boats. Once she has undertaken to repair the dock to a serviceable condition, Ms.

13 Hegarty may seek contribution for 50% of the cost of that work, assuming that such fees

are reasonable.

Accordingly, Ms. Hegarty9s Motion for Summary Judgment is hereby DENIED.

The court GRANTS the McDermotts costs and DENIES the request for attorney fees.

Any pending motions not previously addressed are deemed MOOT by the issuance of

this judgment. This is intended to be a final judgment of the court.

DATED: May 30, 2023

<2. Bs Daniel I. Billings, Justice ZZ Maine Superior Court