Spurwink Woods, LLC v. Cusack

• Court: Superior Court of Maine
• Decided: July 12, 2017
• Docket: CUMre-17-0028
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. DOCKET NO. RE-17-0028

) SPURWINK WOODS, LLC., a ) ORDER ON MOTION FOR Maine Limited Liability Company ) SUMMARY JUDGMENT ) STATE OF M!i\NE V. ) c,,m~rlqnrl ~s Clerk',Office ) ADELAIDE G. CUSACK, EDWIN ) JUL 1 2 2017. i f\, e,I M. PALMER, C. EDWIN PALMER, ) et al. ) RECEIVED·L[1riIM~' \. Before the court is Plaintiff Spurwink Woods, LLC' s motion fo r summary i '

judgment on a quiet title complaint. For the reasons below, this court grants the motion

in part and denies in part.

I. Procedural History

On January 27, 2017, Plaintiff Spurwink Woods, LLC ("Spurwink") filed a quiet

title claim against a long list of defendants, including named persons living and

deceased, and the descendants and spouses of these named persons, some of whom had

already signed a release deed in response to a prior mailing by Spurwink. The

complaint asks the court to establish title to two subject properties in fee simple

absolute, and contains two counts: (I) quiet title and claims in equity 14 M.R.S.A. §§

6651 et seq; 14 M.R.S.A. § 6051; and (II) declaratory judgment 14 M.R.S.A. §§ 5951 et seq.

On January 27, 2017, Spurwink filed a motion for service by publication, which was

ordered on February 28, 2017. 14 M.R.S.A. § 6653. On January 27, 2017, Spurwink filed a

motion for appointment of a named-agent and/ or next friend for unknown defendants

who may not have been actually served with process and who had not appeared in the

action (the "Unknown Parties"), which was ordered on February 9, 2017. 14 M.R.S.A. §

6656. Spurwink filed a motion to remove named defendants who executed release

deeds from the action on March 22, 2017, which was ordered on March 23, 2017. On

1 of 9 Plaintiff-Gerald Schofield, Esq. Defendants' Agent-David Sinclair, Esq. April 10, 2017, the named-agent answered the complaint and denied every paragraph

and count. Notice of the suit to quiet title on the two parcels was published on March

24, March 31, and April 7, 2017. (S.M.F. Cf[ 33.) On May 30, 2017, Spurwink filed a motion

for summary judgment and incorporated memorandum of law. Specifically, Spurwink

asks this court to order that: (1) the Town of Cape Elizabeth ("The Town") acquired all

right, title , and interest in the two subject properties by virtue of statutory tax lien

foreclosures; (2) Spurwink acquired title to the properties via quitclaim deeds from the

Town on May 16, 2005; (3) the Defendants and Unknown Parties were properly served;

(4) and the Defendants and Unknown Parties are barred and forever estopped from

claiming rights in the property adverse to Spurwink. The named-agent had signed a

waiver of the 21-day notice provision, stating the Defendants and Unknown Parties had

no objection to the motion for summary judgment on May 25, 2017.

II. Standard of review

The filing of a motion must be accompanied by a memorandum of law which

shall include citations of supporting authorities. M.R. Civ.P. 7(3). A motion for

summary judgment must be supported by a statement of material facts where each fact

asserted shall be supported by a citation to the specific page or paragraph of identified

record material supporting the assertion. M.R. Civ. P. 56(h)(l),(4). The record

considered in summary judgment is limited to the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits referred to in the statement of material

facts. M.R. Civ. P. 56(c). Referenced affidavits must have been made by persons with

personal knowledge who are competent to testify on the matters stated therein, and

sworn or certified copies of all papers referred to shall be attached. M.R. Civ. P. 56(e).

Facts contained in the statement of material facts, if supported by record citations as

required by this rule, shall be deemed admitted unless properly controverted. The court

2 of 9 may disregard any statement of fact not supported by a specific citation to record

material properly considered on summary judgment. M.R. Civ. P 56(h)(4).

Summary judgment is appropriate, if based on the parties' statement of material

facts and the cited record, no genuine issue of material fact exists and the moving party

is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 2010 ME 20,

A. 2d 733; Dyer v. Dep't of Transport., 2008 ME 106,

material if it could potentially affect the outcome of the case." Reliance Nat'l Indem. v.

Knowles Indus. Servs., 2005 ME 29,

exists where the fact finder must choose between competing versions of the truth. Id.

(citing Univ. ofMe. Found. v. Fleet Bank ofMe., 2003 ME 20,

deciding a motion for summary judgment, the court reviews the materials in the light

most favorable to the non-moving party, and will give that party the benefit of all

reasonable inferences. Lewis v. GEICO Gen. Ins. Co., 600 F. Supp. 2d 220, 221 (D. Me.

2009); Dyer, 2008 ME 106,

mere allegations or denials of that party's pleading, but must respond by affidavits or as

otherwise provided in this rule, setting forth specific facts showing that there is a

genuine issue for trial. M.R. Civ. P. 56(e) The party opposing a summary judgment

must point to specific facts showing that a factual dispute does exist to avoid a

summary judgment. Watt v. Unifirst Corp., 2009 ME 47,

Indem., 2005 ME 29,

does not assure the request for relief will be granted. M.R. Civ. P. 7(b)(7).

III. Discussion

a. Procedural issues

As an initial matter, there are two procedural issues for this court to address.

1. Missing notice

3 of 9 Spurwink's motion for summary judgment only includes the mandatory 21-day

notice. M.R. Civ. P. 7(b)(l)(A); (Pl.'s Mot. Summ. J. 11.) A motion for summary

judgment must fulfill additional notice requirements. M.R. Civ. P. 7(b)(l)(B). The court

notes that Spurwink has not include the summary judgment notice. (Pl.'s Mot. Summ. J.

11.) Failure to provide the 7(b)(l)(B) notice is not fatal, where the purpose of the rule is

to provide unrepresented litigants with a means of properly responding to a motion for

summary judgment. State v. Minervino, No. CV-02-28 2002 Me. Super. LEXIS 265, at *5

(Me. Super. Ct. Aug. 26, 2002.) Here, Defendants and Unknown Parties are represented

by the named-agent. Therefore, the failure to include the notice does not require the

court to disregard Spurwink's motion. The court expects Defendants and Unknown

Parties to meet the Rule 56(h) requirements.

2. Citations to the complaint in the statement of material facts

Spurwink bases the motion for summary judgment upon the pleadings, the

supporting statement of material facts, and the named-agent's waiver of 21-day notice.

(PL's Mot. Summ. J. 1.) A complaint is a pleading within Maine Rule of Civil Procedure

7(a), and hence, a filing that is contemplated and permissible for review under Rule 56.

Jones v. Chalmers Ins. Agency, No. CV-12-336, 2014 Me. Super. LEXIS 102, at *3 (Me.

Super. Ct. June 30, 2014.) However, mere references to the complaint and/ or to a

conclusory affidavit by a party's own attorney may be insufficient support for the

party's factual assertions. E.g., Levine v. R.B.K. Caly Corp., 2001 ME 77, <_[<_[ 8-10, 770 A.2d

653. Here, Spurwink asserts numerous statements of material fact which are supported

by references to paragraphs in the complaint which, in turn, are unsupported. For

example, Spurwink asserts that in 1972, the "8 South Street" property passed from

Adelaide Cusack to her heirs at law when she died without a will (S.M.F. <_[ 6; Compl. <_[

4 of 9 5.) Therefore, the court applies its discretion in the regard applied to these facts. M.R.

Civ. P. 56(h)(4).

b. Substantive issues

1. The Town's acquisition of property rights

Spurwink argues that the Town acquired all right, title, and interest to the two

subject properties by virtue of "Maine's statutory automatic tax lien foreclosure

provisions." (Pl.s Mot. Summ. J. 3-4.) The court assumes Spurwink is referring to Me.

Rev. Stat. Ann. tit. 36, § 943, whereby an unpaid tax lien mortgage is deemed to have

been foreclosed after 18 months, where the mortgage has priority over all other

mortgages, liens, attachments and encumbrances of any nature, and where the

municipality receives all the rights usually incident to a mortgagee. If tax liens are

introduced to evidence, which are valid on their face, and the opposing party

introduces no evidence attacking the validity of the liens, the party has made out a

prima facie case pursuant to Me. Rev. Stat. Ann. tit. 36, § 943 and may prevail on a claim

for title to the property based on the liens. Harrington v. Garland, 381 A.2d 639, 1978 Me.

LEXIS 1056 (Me. 1978). Tax lien foreclosures vest full and unencumbered title in the

municipality upon the failure to redeem. Ocwen Fed. Bank v. Gile, 777 A.2d 275, 2001 Me.

LEXIS 123 (Me. 2001). The tax lien mortgage is prima facie evidence in all proceedings

by and against the municipality, its successors and assigns, of the truth of the

statements therein and after the period of redemption has expired, of the title of the

municipality to the real estate, and of the regularity and validity of all proceedings with

reference to the acquisition of title by such tax lien mortgage and the foreclosure

thereof. Fickett v. Hohlfeld, 390 A.2d 469, 1978 Me. LEXIS 794 (Me. 1978); Martel v. Bearce,

311 A.2d 540, 1973 Me. LEXIS 360 (Me. 1973). A party attacking title by tax foreclosure

had the burden of proving that the nonexistence of the presumed facts was more

5 of 9 probable than their existence. Augusta v. Allen, 438 A.2d 472, 1981 Me. LEXIS 1044 (Me.

1981).

Here, Spurwink has asserted the existence of recorded tax liens on the two

subject properties. (S.M.F. <][

paragraphs of the complaint, which included the exhibits containing copies of the liens.

(Answer of Named-Agent 1; Compl. <][

stated that he had no objection to the motion for summary judgment after review of all

materials related to the matter, and made no challenge to the validity of the tax lien

foreclosures. (Named-Agent's Waiver of 21-Day Notice 1.) Therefore, there is no triable

issue on whether the Town's tax lien foreclosures vested full and unencumbered title in

the Town.

2. The Town's quitclaim deeds to Spurwink

Spurwink argues that the Town conveyed its acquired interest in the subject

properties to Spurwink via quitclaim deeds on May 16, 2005. (Pl.s Mot. Summ. J. 2.) To

survive a plaintiff's summary judgment motion regarding a title transfer, a defendant

must set forth specific facts establishing a genuine issue for trial regard the elements of

that transfer. Levis v. Konitzky, 2016 ME 167,

copies of the quitclaim deeds from the Town to Spurwink. (S.M.F.

interest in property existed prior to the tax lien foreclosure was lost when when the

Town obtained the interest. Dionne v. LeClerc, 2006 ME 34,

named-agent initially denied all the paragraphs of the complaint, which included the

exhibits containing copies of the deeds. (Answer of Named-Agent 1; Compl. <][

A, D.) The named-agent then stated that he had no objection to the motion for summary

judgment after review of all materials related to the matter, and made no challenge to

the validity of the deeds. (Named-Agent's Waiver of 21-Day Notice 1.) Therefore, there

6 of 9 is no triable issue on the validity of the Town's conveyance of the property interests to

Spurwink. This conveyance does not cure any defects in the chain of title that may have

existed prior to the Town's tax lien foreclosure, because the Town's transfer was to

Spurwink which is not an entity within the original chain. Cf Dionne

quitclaim deed, despite the assurances provided in the real estate lien statutes, the

Town offers no warranty to Spurwink as to the status of the properties' titles. 36 M.R.S.

§ 943.

3. Elements of the quiet title claim

Spurwink argues that no genuine issues of material fact exist in their request for

this court to order a quiet title. (Pl.s Mot. Summ. J. 10.) A party may bring a quiet title

action if they have been in uninterrupted, i.e. continuous and exclusive, possession for

10 years. 14 M.R.S. § 6651; see Levis v. Konitzky, 2016 ME 167,

Chickering v. Yates, 420 A.2d 1219, 1223 (Me. 1980). 14 M.R.S. § 6651. The claimant must

set forth his estate, state the source of his title, describe the premises, and: (1) aver that

an apprehension exists that persons named in the complaint, or persons unknown

claiming as heirs, devisees or assigns, or in any other way, by, through or under a

person or persons named in the complaint, claim or may claim some right, title or

interest in the premises adverse to his said estate; (2) aver that such apprehension

creates a cloud upon the title and depreciates the market value of the property; and (3)

pray that such persons be summoned to show cause why they should not bring an

action to try their title to the described premises. 14 M.R.S. § 6651. If any supposed

claimants are unknown, the plaintiff shall so allege under oath. Id. Service must be

made as on all supposed known claimants residing either in the State or outside the

State, and notice to persons who are unascertained, not in being or unknown shall be , given by publication. 14 M.R.S. § 6653. If the court upon hearing finds that the

7 of 9 allegations of the complaint are true and that notice by publication has been given as

ordered, it shall order that all defendants and unknown persons shall be forever

debarred and estopped from having or claiming any right or title adverse to the plaintiff

in the premises described in the complaint. 14 M.R.S. § 6654.

Here, Spurwink has met the time requirement for their quiet title claim where

quitclaim deeds were issued from the Town to Spurwink in 2005. (S.M.F.

Spurwink alleged under oath unknown claimants, who were represented by court order

by a named-agent and provided notice through publication. (Order on Mot. Service by

Publication

quitclaim deeds from the Town, which itself acquired interest in the properties via tax

lien foreclosures, and provides descriptions of the premises. (S.M.F.

Spurwink has made the required averments of apprehension and cloud on title. (S.M.F.

stated that he had no objection to the motion for summary judgment after review of all

materials related to the matter. (Answer of Named-Agent 1; (Named-Agent's Waiver of

21-Day Notice 1.) Therefore, no issues of material fact remain in this quiet title claim.

The court notes that there remain averments in the statement of material facts that were

unsupported for the purposes of summary judgment relating to the transfers of interest

in the properties prior to the tax lien foreclosures. For example, Spurwink avers that C.

Edwin Palmer took ownership of one of the properties based on a tax lien issued in his

name alone and the apparent absence of deeds to the contrary. (S.M.F.

averments were not material facts in the determination of the summary judgment

motion, and consequently the court declines to decide on the truth of these averments at

this time. Spurwink holds whatever interest the Town held at the time of the execution

of the quitclaim deeds.

8 of 9 IV. Conclusion

Plaintiff's motion for summary judgment is GRANTED in part and DENIED in

part. Spurwink acquired by quitclaim deeds whatever right, title, and interest was held

by the Town in the two subject properties by virtue of statutory tax lien foreclosures.

The Defendants and Unknown Parties are barred and forever estopped from claiming

rights in the property adverse to Spurwink.

The Clerk is directed to enter this Order on the civil docket by reference pursuant

to Maine Rule of Civil Procedure 79(a).

Date: July 12, 2017

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