Roche v. Elliott

Maine Superior

Roche v. Elliott

Superior Court of Maine·Decided June 24, 2008·No. YORre-07-024·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. RE-07-024

DONALD ROCHE, et al.,

Plaintiffs

v. ORDER

WILLIAM ELLIOTT, et al.,

Defendants

This case comes before the Court on Plaintiffs Donald Roche and Margaret

Roche's (Plaintiffs) Motion to Reconsider pursuant to M.R. Civ. P. 59. Following

hearing, the Motion is Denied.

BACKGROUND Plaintiffs Donald Roche and Margaret Roche (Plaintiffs) move this Court to

reconsider the March 7,2008 Order denying their Cross-motion for Summary Judgment

(Cross-motion) against any and all Defendants. The Defendants in this case are various

neighbors (collectively "Defendants"). Some of the Defendants were represented by

counsel, while others represented themselves. Defendants' responses to the motions

varied. As stated below, these varying responses were not dispositive at summary

judgment.

Both parties moved for summary judgment pursuant to Plaintiffs' claim that they

have obtained title to a certain parcel of land by adverse possession or, alternately, by

abandonment. Plaintiffs are residents of Massachusetts and owners of a property (Lot

2) located on Mousam Lake in Shapleigh, Maine. The perimeters of Lot 2 are designated in the deed by reference to a 1938 plan entitled "Mousam Grove Extension"

filed in the York County Registry of Deeds (1938 Plan). Def. SMF

parcel lies between Lots 2 and 3 (Disputed Parcel) and is designated on the 1938 Plan as

a right-of-way.

Plaintiffs assert that the Court erred as a matter of law in denying summary

judgment. Specifically, Plaintiffs assert that 1) the Court erred in not granting summary

judgment against Defendants on the grounds that they failed to controvert critical

statements; 2) the Court erred in not granting summary judgment against noticed

Defendants who did not oppose Plaintiffs' Motions for Summary Judgment at all; 3) the

Court erred in not granting summary judgment against Defendants outside the

subdivision who provided no evidence of any colorable interest in the former right-of

way; and 4) the Court's failure to rule on the issue of acquiescence and/or

abandonment of the easement was an omission that should be corrected by granting

Plaintiffs' summary judgment against all the Defendants on the grounds of

acquiescence and / or abandonment.

DISCUSSION

I. Standard of Review

Under the Maine Rules of Civil Procedure, "motions for reconsideration of an

order shall not be filed unless required to bring to the court's attention an error,

omission or new material that could not previously have been presented." M.R. Civ. P.

7(b)(5). "The court may in its discretion deny a motion for reconsideration without

hearing and before opposition is filed." Id.

II. Did the Court Err in its Denial of Cross-motion?

2 The Court denied Plaintiffs' Cross-motion because material facts were in dispute

regarding whether Plaintiffs had established the elements of adverse possession. 1

Specifically, the exclusivity of use was disputed. (See Def. S.M.F. CJICJI 8-14.)

a. Failure to Oppose Cross-motion

Plaintiffs assert that the Court erred in not granting summary judgment against

Defendants on the grounds that Defendants failed to controvert critical statements of

material fact contained in Plaintiffs' Cross-motion Statement of Material Facts.

Plaintiffs' rest their argument on a plain reading of M.R. Civ. P. 56(h), which states in

part:

[a] party opposing a motion for summary judgment shall submit with its opposition a separate, short and concise opposing statement. . . . Facts contained in a supporting or 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)(2) & (4). In this case, Defendants failed to oppose Plaintiffs' Cross-

motion that was attached to Plaintiffs' Opposition to Defendants' Motion for Summary

Judgment. Accordingly, Plaintiffs argue, the material facts submitted in the Cross-

motion are deemed admitted because they have not been controverted.

The Court cannot agree with this interpretation of Rule 56. It would be illogical

to conclude that a fact, already controverted, could become uncontroverted simply

because an opposing party filed a cross-motion for summary judgment.

In this case, certain Defendants filed a Motion for Summary Judgment. That

Motion contained a Statement of Material Facts as required under the Rules. Within

that Statement of Material Facts, Defendants set forth in numbered paragraphs genuine

There is no dispute that, in order for the Plaintiffs to obtain title by adverse possession, they have the burden to show by a preponderance of the evidence that their "possession and use of the property were" actual, open visible, notorious, hostile, under claim of right, continuous, exclusive, and "of a duration exceeding the twenty-year limitations period." Striefel v. Charles-Keyt-Leaman P'ship, 1999 ME 111, CJI6, 733 A.2d 984, 989 (citations omitted).

3 issues of material fact supported by record citations to sworn affidavits of individuals

who asserted a continued use of the Disputed Parcel. (See Def. S.M.F. enen 8-14.)

Plaintiffs opposed those statements by submitting an opposing Statement of Material

Facts set forth in numbered paragraphs supported by record citations to sworn

affidavits of individuals who dispute use of the Disputed Parcel by anyone other than

Plaintiffs. Accordingly, at least one element of Plaintiffs' claim of adverse possession

(and abandonment for that matter) is in dispute. Summary judgment was not proper.

Plaintiffs point to two facts contained in their Cross-motion and assert that

Defendants' failure to oppose these two facts is determinative. The Court agrees that, if

any fact in Plaintiffs' Cross-motion Statement of Material Facts is both uncontoverted

and material, it would be deemed admitted.

i. Plaintiffs' Opposing Material Fact Sf 15

Opposing Material Fact en 15 is supported by affidavit of Mr. Fiandaca, the owner

of Lot 3 that also borders the Disputed Parcel. In his affidavit he states inter alia that he

was forced to build a fence because "defendants in this litigation" were erroneously

walking across his property and "didn't know where the right of way was./I However,

material facts are already in evidence that certain Defendants did correctly identify the

Disputed Parcel and have used it continuously over the years. (See e.g. Def. S.M.F. en 8.)

This fact, if it is fact and not opinion, remains in dispute.

ii. Plaintiffs' Opposing Material Fact Sf 9

Likewise Opposing Material Fact en 9 is not determinative at summary judgment.

Paragraph 9 asserts that none of the Defendants objected to a shed that blocks the

Disputed Parcel. However, the fact that a shed has blocked Defendants access to the

Disputed Parcel is in dispute. (See Def. S.M.F. en 15.) Thus, whether or not Defendants

objected to the shed is not a material fact.

4 b. Defendants who Failed to Oppose Summary Judgment

Plaintiffs further assert that the Court erred in not granting summary judgment

against noticed Defendants who did not oppose Plaintiffs' Motions for Summary

Judgment at all. The Court disagrees.

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