2 2. History of Lot 5
Rose A. Shaw conveyed Lot 5 to Robert Spear and Lorraine Spear by a deed
dated September 12, 1972. (Defs.' S.M.F. CJI 15; Pl.'s S. Add'l M.F. CJI 6.) Robert Spear and
Lorraine Spear conveyed Lot 5 to Paul Albert and Donna Albert on June 22, 1978.
(Defs.' S.M.F. CJI 14.) Paul Albert and Donna Albert conveyed Lot 5 to Robert Nolte and
Anne Nolte on December 4, 1979. (Defs.' S.M.F. CJI 13.) Lot 5 had been the subject of a
foreclosure action brought by P.J. Currier Lumber Company against Robert Nolte and
Anne Nolte. (Defs.' S.M.F. CJI 12.) The foreclosure judgment, dated April 21, 1995, was
issued by the District Court for the Southern District of Cumberland County, Portland.
See P.I. Currier Lumber Company, Inc. a/k/a P.I. Currier Lumber Co. v. Nolte, Docket
No. PORDC-CY-92- 879. (Defs.' S.M.F. CJI 12.) P.J. Currier Lumber Company conveyed
Lot 5 to the Estate of Armand M. Morgan by a deed dated November 6, 1995. (Defs.'
S.M.F. CJI 11.) The Estate of Armand M. Morgan conveyed Lot 5 to the plaintiff by a deed
dated May 22, 2002, recorded at the Cumberland County Registry of Deeds at Book
18062, Page 345. (Defs.' S.M.F. , 3.)
3. Prior Litigation Concerning Lot 4
On February 15, 1978, Robert Spear and Lorraine Spear filed a lawsuit in
Cumberland County Superior Court and sought a declaratory judgment that they, and
not Elizabeth C. Sullivan, were the owners of Lot 43 and, in the alternative, that the
owned Lot 4 by way of adverse possession. (Defs.' S.M.F. CJI 16; Pl.'s S. Add'l M.F. , 7.)
While the litigation was pending, the Spears sold their interest in Lot 5 to Paul and
3 On June 19, 1978, the Cumberland County Superior Court granted Elizabeth C. Sullivan summary judgment on the issue of the validity of the City's tax taking of Lot 4. (Defs.' S.M.F. lJ[ 17, as qualified by Pl.'s Opp. S.M.F. lJ[ 17); see Spear v. Sullivan, CUMSC-CV-78-216 (Me. Super. Ct., Cum. Cty., June 19, 1978) (Naiman, J.).
3 Donna Albert on June 22, 1978. (Defs.' S.M.F. ~ 14.) After the Spears sold Lot 5, no
person or entity was substituted for Robert and Lorraine Spear in the litigation between
the Spears and Elizabeth C. Sullivan nor did any person seek to intervene as a plaintiff
in that action. (Pl.'s S. Add'l M.P. ~ 10, as qualified by Defs' Rep. to Pl.'s S. Add'l M.F. ~
10.) On July 15, 1980, the Cumberland County Superior Court issued an Order and
Judgment in favor of Elizabeth C. Sullivan and dismissed Robert Spear and Lorraine
Spear's complaint with prejudice. (Defs.' S.M.F. ~ 18); see Spear v. Sullivan, CUMSC
CV-78-216 (Me. Super. Ct., Cum. Cty., July 25, 1980) (Perkins, J.). Pursuant to M.R. Civ.
P. 41(b), the Superior Court ruled that "Elizabeth C. Sullivan is vested with title to [Lot
4] in fee simple, free and clear from all claims by the Plaintiffs, or any person claiming
by, through or under them." (Defs.' S.M.F. ~ 19.) 4
4. Subsequent Use of Lot 4 by the Owners of Lot 5
By the date of the court's July 25, 1980 Order and Judgment, Robert Nolte and
Anne Nolte owned Lot 5.5 (Defs.' S.M.F. en 20.) The parties dispute whether the Noltes
had permission to leave the stairs leading from the side porch to Lot 4 in place, and use
Lot 4 to access said stairs, with the express understanding that that they would be
moved to the front of Lot 5 the next time renovation or repair work was done to the side
porch on Lot 5. 6 (Defs.' S.M.F. en 22-24; Pl.'s Opp. S.M.F. en 22-24.) According to the
defendants, the Noltes recognized and verbally expressed that their use of Lot 4 was
4 The plaintiff denied this statement of fact. (Pl.'s Opp. S.M.F. ~ 19.)
5 Robert Nolte died prior to this litigation. (Pl.'s S. Add'l M.F. ~ 15.) 6 The only renovation the Noltes performed was installing a railing on the porch. (Defs.' S.M.F. ~ 27, as qualified by Pl.'s Opp. S.M.F. ~ 27.)
4 1 permissive. (Defs. S.M.F. <]I 25-26.) 7 The plaintiff denies that there was an agreement
or understanding regarding the stairs on Lot 4. (Pl./s Opp. S.M.F. <]I 25-26.)
The defendants assert that since at least 1992 the property has been unoccupied l
no one has made use of the stairs from the Lot 5 side of the porch onto Lot 4 and that 1
no one has used Lot 4 for ingress or egress. (Defs. S.M.F. <]I<]I 29-31.) The plaintiff 1
claims that since 1995 he and others have walked across Lot 4 and he has allowed 1
others to occupy the property. (Pl./ s Opp. S.M.F. <]I<]I 29-31; McFarland Aff. <]I 7; Morgan
Aff. <]I 6-8.)8 Since the Estate of Armand M. Morgan purchased Lot 5 from P.J. Currier
Lumber CO' the plaintiff engaged in extensive renovations of 8 Ryefield Street. (Pl./s S. I
Add/l M.P. <]I 14.) The contractors the plaintiff hired to perform these renovations used
the side stairs and Lot 4 to go to and from Ryefield Street. (IQ.) The plaintiffs tenants
have also used the stairs on Lot 4. (Id.) The plaintiff was never aware that he had
permission to keep the stairs on the strip of land conditioned upon his renovations to l
Lot 5. (Pl./ s S. Add/l M.F. <]I 20.)
Between March 23 2009 and May 2009 Mr. Morgan removed the side porch 1 1
l abutting the Defendants property and the stairs running from the side porch across the
boundary line. (Defs. 1 S.M.F. <]I 32.) In the fall of 20091 because winter was approaching l
7 The plaintiff objects to some of the defendants' statements on the grounds that they are hearsay and are inadmissible for the purposes of summary judgment. (Pl.'s Opp. S.M.F.
within the affiant's personal knowledge and that would be admissible in evidence). The court disregards inadmissible hearsay statements. 8 The plaintiff also claims that since at least 1950 people including those occupying Lot 51 have l
used Lot 4 to get to and from Ryefield Street. (Pl.'s S. Add'l M.F.
5 the plaintiff stopped the construction of a new side porch, which had no stairs. (Defs.'
S.M.F. err 33, as qualified by Pl.'s Opp. S.M.F. err 33.) On or about February 27, 2010, the
plaintiff constructed new stairs from the side porch across the boundary line between
the two properties. (Defs.' S.M.F. err 34.)
In his complaint, the plaintiff alleges common law adverse possession; statutory
adverse possession; and easement by prescription. In their counterclaim, the
defendants allege common law trespass, statutory trespass, and nuisance. The
defendants also filed a third-party complaint against Terrance Edwards, the plaintiff's
contractor, and allege common law trespass, statutory trespass, nuisance, and
negligence. The defendants now move for summary judgment on the plaintiff's three
claims.
DISCUSSION
1. Standard of Review
Summary judgment should be granted if there is no genuine dispute as to any
material fact and a party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c).
In considering a motion for summary judgment, the court should consider the facts in
the light most favorable to the nonmoving party, and the court is required to consider
only the portions of the record referred to and the material facts set forth in the parties'
Rule 56(h) statements. See, e.g., Iohnson v. McNeil, 2002 ME 99, err 8, 800 A.2d 702, 704.
A contested fact is "material" if it could potentially affect the outcome of the case. Inkel
v. Livingston, 2005 ME 42, err 4, 869 A.2d 745, 747. "A genuine' issue of material fact
exists when there is sufficient evidence to require a fact-finder to choose between
competing versions of the truth at trial." Id. When the facts offered by a party in
opposi tion to summary judgment would not, if offered at trial, be sufficient to
6 withstand a motion for judgment as a matter of law, summary judgment should be
granted. Rodrigue v. Rodrigue, 1997 ME 99, <[ 8, 694 A.2d 924, 926.
2. Effect of the Spear Iudgment
The defendants assert that the plaintiff may only attempt to prove adverse
possession or the existence of a prescriptive easement from July 25, 1980 when the court
dismissed his predecessors' claims based on the same legal theories with prejudice. The
plaintiff argues that the July 1980 Order and Judgment is void because the Spears
transferred their interest in Lot 5 after the litigation began, depriving the Superior Court
of subject matter jurisdiction over the claim. (Pl.'s Opp. S.M.F. <[ 19.) There is no dispute
that when the litigation began, the Spears had standing to bring the claim by virtue of
their possessory interest Lot 5. See Mortgage Elec. Registration Sys. v. Saunders, 2010
ME 79, <[ 7, 2 A.3d 289 (" At a minimum, '[s]tanding to sue means that the party, at the
commencement of the litigation, has sufficient personal stake in the controversy to
obtain judicial resolution of that controversy."') (quoting Halfway House Inc. v. City of
Portland, 670 A.2d 1377, 1379 (Me. 1996». The plaintiff claims, however, that the case
became moot when the Spears transferred their interest in Lot 5 to the Alberts in 1978,
prior to the Superior Court's decision, which deprived the court of subject matter
jurisdiction over the claim.
"A judgment issued by a court lacking subject matter jurisdiction is void." Strout,
Payson, Pellicani, Hokkanen, Strong & Levine v. Barker, 2001 ME 28, <[ 6, 765 A.2d 994,
996. However, "[i]t is well established that a valid judgment entered by a court, if not
appealed from, generally becomes res judicata and is not subject to later collateral
7 attack." Standish Tel. Co. v. Saco River Tel. & Tel. Co., 555 A.2d 478, 481 (Me. 1989).9
"There is a strong policy in favor of ending litigation and giving finality to court
judgments. Balanced against that policy favoring finality is a requirement that a
judgment, in order to become final, must be valid, and that a judgment rendered
without subject matter jurisdiction is invalid and has no res judicata effect." Id.
(citations omitted). The Law Court has applied the Restatement (Second) of Judgments
§ 12 to determine whether to give a res judicata effect to a prior court's judgment. Id.
Section 12 provides:
§ 12. Contesting Subject Matter Jurisdiction
When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation except if: (1) The subject matter of the action was so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority; or (2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or (3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court's subject matter jurisdiction.
Id. (quoting Restatement (Second) of Judgments § 12).
Contrary to the plaintiff's argument, it was not plainly beyond the Superior
Court's jurisdiction to dismiss the Spears' claim with prejudice for failure to prosecute
9 Additionally, "[ c]laim preclusion bars the relitigation of claims if: (1) the same parties or their
privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been, litigated in the first action." Guardianship of Iewel M., 2010 ME 80,
8 pursuant to M.R. Civ. P. 41(b). See 4 M.R.S. § 105 (2010) ("[T]he Superior Court has and
shall exercise exclusive jurisdiction ... in any and all matters ... whether cognizable at
law or in equity.") Allowing the judgment to stand would not infringe on any tribunal.
Finally, there is nothing to indicate that the court could not capably make an informed
decision regarding its own jurisdiction. The plaintiff cannot claim that the Spears court
lacked subject matter jurisdiction over the claims.
Additionally, Rule 25, governing substitution of parties, provides that the
original party may continue an action after a transfer of interest. M.R. Civ. P. 25(c).
Rule 25 provides, in part:
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.
M.R. Civ. P. 25(c) (emphasis added). Substitution of the real party in interest is
discretionary. Mortgage Elec. Reg. Sys., 2010 ME 79, «JI 16, 2 A.3d 289. The Spears court
had jurisdiction over the parties and the subject matter of the claim. The judgment was
not rendered void because the Spears transferred their interest to the Noltes while the
action was still pending. The 1980 judgment is enforceable.
3. Adverse Possession (Counts I and II)lo
"Adverse possession presents a mixed question of law and fact." Hamlin v.
Niedner, 2008 ME 130, «JI 10, 955 A.2d 251, 254 (quotations omitted). "[W]hether the
necessary facts exist is for the trier of fact, but whether those facts constitute adverse
possession is an issue of law for the court to decide." Id. "A party claiming title by
10There is only one claim for adverse possession under Maine law, the common law claim as amended by 14 M.R.S. § 81O-A (2010). Dombkowski v. Ferland, 2006 ME 24, CJI 19, 893 A.2d 599, 604. Accordingly, the defendants' motion for partial summary judgment is granted on count II of the plaintiff's complaint, in which the plaintiff alleges statutory adverse possession.
9 adverse possession has the burden of proving, by a preponderance of the evidence, that
possession and use of the property was (1) actual; (2) open; (3) visible; (4) notorious; (5)
hostile; (6) under a claim of right; (7) continuous; (8) exclusive; and (9) for a duration
exceeding the twenty-year limitations period." Weeks v. Krysa, 2008 ME 120, ~ 12, 955
A.2d 234, 238. "'Whether specific acts are sufficient to establish the elements of adverse
possession can only be resolved in light of the nature of the land, the uses to which it
can be put, its surroundings, and various other circumstances.'" Id. ~ 13, 238 (quoting
Falvo v. Pejepscot Indus. Park, Inc., 1997 ME 66, ~ 8, 691 A.2d 1240, 1243).
The defendants claim that the plaintiff's use of Lot 4 has not been hostile because
his predecessors, the Noltes, had permission to use Lot 4. "The requirement that
possession be 'hostile' generally means that the 'possessor does not have the true
owner's permission to be on the land .... If' Hamlin, 2008 ME 130, ~ 12, 955 A.2d at 255
(quoting Wood v. Bell, 2006 NIB 98, ~ 13, 902 A.2d 843, 849). " [P]ermission, either
express or implied, negates the element of hostility and prevents acquisition of title by
adverse possession." Id.
To controvert the defendants' statements of material fact regarding whether the
Noltes had permission to keep the stairs on Lot 4 and whether that the permission
could be revoked at any time, the plaintiff cites certain portions of Ms. Nolte's
deposition testimony and his own affidavit testimony.ll The portions of Ms. Nolte's
testimony cited by the plaintiff indicate that she did not have conversations regarding
removing the steps and she had no knowledge concerning conversations her husband
may have had with the Sullivans regarding the steps located on Lot 4. (Nolte Dep. 32:6
11 The plaintiff also cites to the Affidavit of Robert Edmond Mittel at paragraph 6. (Pl.'s S. Add'l M.F.
10 22, 48:18-49:9.) In his affidavit, the plaintiff states that Ms. Sullivan never stated to him
that his use of Lot 4 was permissive or that there had been an agreement with previous
owners of Lot 5. (P1.'s Aff. err 9.)
In response, the defendants cite additional portions of Ms. Nolte's deposition
testimony. Ms. Nolte testified that her understanding was that their use of Lot 4 was
permissive. (Defs.' Rep. to P1.'s S. Add'l M.F. err 13; Nolte Dep. 21:17-24, 39:6-9, 44:20-23,
45:25-46:7.) Ms. Nolte testified that she agreed with Ms. Sullivan's affidavit. (Defs.' Rep.
to PI.'s S. Add'l M.F. err 13; Nolte Dep. 46:12-47:9.) Ms. Sullivan stated in her affidavit
that she gave the Noltes permission to use Lot 4 and that she could revoke that
permission at any time. (Defs.' S.M.F. err 24; Sullivan Aff. errerr 20-21.)
The plaintiff has failed to raise a genuine issue of material fact as to whether the
Noltes had permission to use Lot 4. See Weinstein v. Sanborn, 1999 ME 181, err 5, 741
A.2d 459, 460 (finding that the deposition testimony of the predecessor-in-interest
established "that she had never thought that the strip of land belonged to her family;
that she had never intended to occupy the land or possess it to the exclusion of the
neighbor; and that she did not use the land in any manner consistent with exclusive
ownership"). Because there is no genuine issue of material fact regarding the Noltes'
permission to use Lot 4, the plaintiff's adverse possession claim fails. Hamlin, 2008 ME
130, err 14, 955 A.2d at 255.
4. Easement by Prescription (Count III)
"'The party asserting an easement by prescription must prove continuous use for
at least 20 years under a claim of right adverse to the owner, with his knowledge and
acquiescence, or a use so open, notorious, visible, and uninterrupted that knowledge
and acquiescence will be presumed.'" Iordan v. Shea, 2002 ME 36, err 22, 791 A.2d 116,
122 (quoting Stickney v. City of Saco, 2001 ME 69, err 16, 770 A.2d 592,601). 11 Similar to the analysis of whether possession and use of the land was hostile for
the claim of adverse possession, "[s]eeking permission ... negates the prescriptive
user's claim that use of the property was adverse to the owner." Iordan, 2002 ME 36, err
24, 791 A.2d at 123; see Stickney, 2001 ME 69, err 21, 770 A.2d at 602 (noting that use of
property is adverse when the owner has not given permission for that use). The party
asserting an easement cannot show acquiescence if the owner gives permission to use
their land. ,,,Acquiescence implies passive assent or submission to the use, as
distinguished from the granting of a license or permission given with the intention that
the licensee's use may continue only as long as the owner continues to consent to it.'"
Shadan v. Town of Skowhegan, 1997 ME 187, err 6, 700 A.2d 245, 247 (quoting Town of
Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984) (quotations
omitted)). As discussed above, because the plaintiff has not raised an issue of material
fact regarding the Noltes'. permission to use Lot 4, his assertion of a prescriptive
easement fails. Iordan, 2002 ME 36, err 24, 791 A.2d at 123 ("This failure to establish that
use of the property was under a claim of right adverse to the owner is fatal to the claim
for a prescriptive easement.").
The entry is
The Defendants' Motion for Partial Summary Judgment is GRANTED. Judgment is entered in favor of the Defendants and against the Plaintiff on Counts I, II, and III of the Plaintiff's Complaint. I~/r /'''n_ . Date: March22,2011 i Nancy Mills /~ Justice, Superior Court
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