Pilote v. Murphy

Maine Superior

Pilote v. Murphy

Superior Court of Maine·Decided June 13, 2017·No. ANDcv-11-156·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss CIVIL ACTION DOCKET NO. CV-11-156

GUY PILOTE, et al., JUN 14 '17 AMll:04

Plaintiffs

ANDRO SUPERIOR COURT

V. ORDER

ELEANOR MURPHY, et al., Defendants

Although this case was filed in September 2011, there were substantial delays in bringing it to trial. It was scheduled for trial in Octa ber 2013 but was taken off the trial list when counsel reported that the case had been settled. However, in July 2014 counsel for plaintiffs informed the court that settlement no longer appeared likely.

In August 2014 the court (MG Kennedy, J.) restored the action to the docket but determined that because of her involvement in settlement negotiations, the matter should be heard by another judge. The undersigned was assigned to the case in December 2014 but in the meantime plaintiff Guy Pilate had suffered a severe stroke. Counsel also reported that there was again a possibility that the case could be resolved without a trial. For both those reasons the court deferred the scheduling of trial.

Although the parties had been directed to file a status report by May 31, 2015, no status report was filed, and the case apparently dropped off the radar screen. In February 2017 the clerk's office advised the court that counsel for plaintiff reported that the case had not settled and that Mr. Pilate had sufficiently recovered to proceed to trial although his speech remained significantly impaired. Because the parties had requested a view of the driveway at issue in this

case, which was still covered by snow in early April, a jury-waived trial was eventually held on May 17-18, 2017.

Although the complaint was originally based on a claim that defendants had failed to construct a driveway that was allegedly contractually required, a driveway had in fact been constructed by defendant Philip Murphy while the case was pending. The issues at trial, which were litigated by express or implied consent of the parties, 1 were whether the driveway had been properly constructed and whether there was any contractual obligation on the part of defendants Philip and/or Eleanor Murphy to construct a driveway. The plaintiffs have the burden of proving a contractual violation by defendants by a preponderance of the evidence.

The court makes the following factual findings and reaches the following conclusions of law:

1. In 1997 defendant Eleanor Murphy acquired 7 acres with 200 feet of frontage along the Old Greene Road in Lewiston which consisted of the property shown as Lot 1 and Lot 2 on a survey and lot plan subsequently prepared in July 2006 and admitted as Plaintiffs' Ex. 4 at trial.

2. In April 2006 Eleanor Murphy's son, Philip Murphy, entered into a contract entitled "Mortgage Purchase Agreement," with David and Frances Fratus. Plaintiffs' Ex. 2. In that contract, in anticipation of acquiring half of the 7 acre property (Lot 2 on Pl. Ex. 4) from his mother, Philip Murphy (identified in the contract as "Seller") agreed to sell that parcel to the Fratuses. That contract included the following language:

Note: Included in sale of property is common way drive provided by seller within 45 (forty five) days from date of deposit.

Plaintiffs' Ex. 2.

1 See M.R.Civ.P. IS(b).

3. Plaintiffs' Ex. 2 was executed before Philip Murphy actually owned the property and before Lots 1 and 2 had been created.

4. The Survey and Lot Plan admitted as Plaintiffs' Ex. 4 was signed by surveyor Don Dostie on July 12, 2006 and filed in the Registry of Deeds on July 13, 2006. Plaintiffs' Ex. 4 shows the division of Eleanor Murphy's 7 acre parcel into two lots, each containing 3.5 acres. As shown on the plan, all of the frontage on the old Greene Road is on Lot # 1, but the plan shows what is described as a "50' wide common drive easement w/ 20' wide gravel drive" running over Lot# 1 approximately 425 feet straight in from the Old Greene Road to a location where there is a turnaround area with a spur leading into Lot# 2.

5. On July 20, 2006 Eleanor Murphy conveyed Lot 2 as shown on Plaintiffs' Ex. 4 to Philip Murphy, and on the same date Philip Murphy conveyed Lot# 2 to the Fratuses. Plaintiffs' Ex. 3 and 5. At that time the "common way drive" referred to in Plaintiffs' Ex. 2 (the April 2006 contract between Philip Murphy and the Fratuses) had not been constructed even though the 45 day deadline had passed.

6. On July 27, 2011 the Fratuses conveyed Lot# 2 to plaintiffs Guy and Susan Pilote.

Plaintiffs' Ex. 6. The common way drive had not been constructed, and on July 27, 2011 the Fratuses also signed a document assigning to the Pilotes what the document describes as the Fratuses' rights to have the common drive constructed. Plaintiffs' Ex. 7.

7. The deed from Eleanor Murphy to Philip Murphy, the deed from Philip Murphy to Fratus, and the deed from Fratus to Pilote all reference the July 12, 2006 Survey and Lot Plan (Plaintiffs' Ex. 4) and convey a common drive easement over Lot 1 "being as shown on said Plan."

8. On September 12, 2011 the Pilotes filed this action alleging that the defendants had failed to construct the common drive which they contended was required by Plaintiffs' Ex. 2 and Plaintiffs' Ex. 4.

9. In late 2012 Philip Murphy began constructing a driveway on the site where a driveway easement is shown on Plaintiffs' Ex 4. 2 At that time Murphy rented some earth moving equipment but was attempting to do the work himself. Photographs taken by Guy Pilate at that time show potentially sub-standard work that gave Pilate a justifiable belief that the driveway, once constructed, would not be usable or would quickly deteriorate.

10. Following Murphy's work, however, further work was performed on the driveway by Mark Randall of Bubier Construction. Randall originally delivered gravel to be placed on the driveway and later performed grading work and placed gravel on the driveway that Philip Murphy had started.

11. While there is a dispute as to when Randall's work was performed and the nature and quality of the work he did, the court finds that Randall initially performed grading work and placed gravel on the driveway before it was inspected by Randall LaClaire, a construction consultant hired by the Pilotes to inspect the driveway in April 2013, and that Randall then returned to perform further work after LaClaire's inspection.

12. Evaluating the driveway as he saw it in April 2013 against the common drive shown on the July 12, 2006 Survey and Lot Plan (Plaintiffs' Ex. 4), LaClaire dug 8 test pits and found that only one had the 18 inches of gravel specified on Plaintiffs' Ex. 4 and required by the City of Lewiston. Another five had 14-16 inches of gravel instead of the 18 inches specified, and two had only 8 or less inches of gravel. Laclaire also observed that in places the width of the

2 At trial he testified that he did not think he had any contractual obligation to construct the driveway but did so in order to settle this case and because the same drive would be used to access Lot # 1, which remains in Murphy ownership.

driveway was less than the 20 feet specified on Plaintiffs' Ex. 4. Finally, LaClaire had criticisms of the ditching and the erosion control work as he saw it at that time.

13. The Pilotes contend that Randall's substantive work on the driveway was all performed prior to LaClaire's inspection in April 2013 and that the problems noted by LaClaire remain largely umemedied. As noted above, however, the court finds that Mark Randall returned to the site and performed further work after LaClaire's April 2013 inspection. Randall testified that he went to the site three times and that when he returned on the final occasion, Guy Pilote told him that test pits had been dug and portions of the driveway did not have 18 inches of gravel. This would have been after LaClaire's inspection. The court credits Randall's testimony on this issue.

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