Welch v. State of Maine

CourtSuperior Court of Maine
DecidedJanuary 19, 2006
DocketCUMre-02-60
StatusUnpublished

This text of Welch v. State of Maine (Welch v. State of Maine) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Welch v. State of Maine, (Me. Super. Ct. 2006).

Opinion

STATE OF MAINE SUPERIOR COURT CUIVIBERLAND, ss. CIVIL ACTION Docket No. RE-02-60 ,

ROBERT WELCH, et al.,

Plaintiffs, - -- - -- - - - -

v. ORDER

STATE OF MAINE,

Defendant.

This case involves a dispute between Robert Welch, Janet Welch, and Sara

Montgomery (collectively, the "Welch plaintiffs") and the State of Maine as to whether

the Welch plaintiffs, who are the owners of property abutting Rangeley Lake State Park,

are entitled to an easement over State Park land in order to access their property.

Before the court are various motions for summary judgment and two additional

motions by the State - a motion to amend its answer and a motion to stnke certain

assertions in the statement of material facts submitted by the Welch plaintiffs.

1. Motion to Amend

Before discussing the State's motion to amend, there is one procedural issue to

consider in connection with that motion. When the State filed its motion to amend its

answer to add affirmative defenses, the Welch plaintiffs filed a two-page opposition on

January 27, 2005. The State then filed its reply memorandum. Three months later,

unaccompanied by any motion for leave to submit further argument on the subject, the

Welch plaintiffs filed a supplemental memorandum opposing the addition of the State's

affirmative defenses. The State has objected to t h s submission and rightly so. Motion practice would become a free-for-all if parties were entitled to submit

supplemental filings whenever they felt it would benefit them. If they wanted more

time in w h c h to respond to the State's motion initially, the Welch plaintiffs should have

asked for that time. At a minimum, it was incumbent on the Welch plaintiffs to seek

leave from the court before filing their Apd-29; 2005 supplemental merKorZndum. The

court has disregarded that memorandum.

One of the new affirrriative defenses which the State seeks to add is that any

quasi-easement has been eliminated by the conveyance of the alleged servient estate to

bona fide purchasers without notice of the alleged easement.' The second is that, as a

matter of law, the relief sought by the Welch plaintiffs is constitutionally barred because

it would constitute a reduction or substantial alteration in use of park land without a

2/3 vote of the legislature required by Article IX, Section 32 of the Maine Con~titution.~

The h r d new defense is that the quasi-easement claimed by the Welch plaintiffs has

been abandoned - an issue whch appears already to be in the case given the

requirement that a party claiming a quasi-easement demonstrate that the owners of the

allegedly dominant estate "have not discontinued their use." Bowers v. Andrews, 557

A.2d 606, 608 (Me. 1989).

The court ultimately concludes, however, that it does not need to rule on the

State's motion to amend because it can resolve the case on the existing summary

judgment record without considering the State's proposed additional defenses.

Whether the addition of this defense should be allowed might depend in part on whether it raises any new issues that are not already before the court in connection with the State's laches defense. The Welch plaintiffs respond that judicial recognition of a pre-existing easement would not constitute reduction or alteration of park land. 2. State's Motion to Strike

In the court's view, if parties object to assertions contained in Rule 56(h)

statements on the ground that they are not based on admissible evidence, it is not

necessary to file a motion to strike. There is no reason why such objections cannot be

made in a parv's responding Rde 56(h] statement or its memorandum of law. To the

court's knowledge, the Law Court has never suggested that motions to strike are

necessary to preserve objections to unsupported factual assertion^.^ Nevertheless, the

court has considered the points raised in the State's motion to strike and concludes that

the State's objections are ~ n f o u n d e d . ~

3. Cross-Motions for Summarv Judgment

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to artd the material facts set forth in the parties' Rule 56(h) statements.

Ea., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes

of summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for summary judgment

as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997

ME 99 ¶ 8,694 A.2d 924,926.

The U.S. District Court for the District of Maine has recently promulgated a local rule banning motions to strike in connection with summary judgment motions, and Maine's Civil Rules of Advisory Committee has recently recommended a similar rule change in Maine practice. The Supreme Judicial Court has not yet acted on that recommendation. The parties agree, however, that the court should not consider any extraneous notations on Exhibits B and D to the Fowler Affidavit. Before turning to the substance of the parties' cross-motions, there are two

procedural issues to consider. The first is the State's motion, dated July 18, 2005 and

filed July 19,2005, to amend the summary judgment record to add two additional maps.

Because h s motion was filed a number of months after the cross-motions were fully

submitted and because €he information sought to bepresented w a s information-that

was new to the Welch plaintiffs and would require that they be given the opportunity

to respond, the court will deny the State's motion.

In the reply papers the State filed in connection with its motion for summary

judgment, the State also filed a March 21, 2005 affidavit from the State's counsel

referring to Rule 56(f). In tlus instance, however, the State was involung Rule 56(f) not

to oppose the Welch plaintiffs' motion but to suggest that the State could, with further

submissions, bolster its case for the admissibility of certain of the documents the State

had offered in support of its own cross-motion. Rule 56(f) is not a mechanism to allow a

party to improve its summary judgment motion after the opponent has responded and

pointed to certaln alleged omissions. The court will not consider the March 21, 26d5

affidavit from the State's c o u n ~ e l . ~

4. The Relevant Facts

Many of the following facts are undisputed. In the case of a factual dispute, the

court accepts the version of facts proffered by the Welch plaintiffs.

With respect to the specific documents at issue in that submission, the court would observe that out of state residence or other inability to attend a trial (in the cases of Michael Foster and F.S. Dickson 111) do not prevent a party from obtaining an affidavit (for purposes of summary judgment) or talung a deposition (for use at trial in the case of a witness who is beyond the reach of a trial subpoena). However, the September 3, 1977 Foster letter would potentially be admissible under M.R.Evid.

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