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Kastrenos v. D&E Developers, Inc.

Superior Court of Maine, Lincoln

March 5, 2014

Wendy-Lou Kastrenos, Trustee et al., Plaintiffs
D& E Developers, Inc. et al., Defendants


Jeffrey L. Hjelm, Justice, Maine Superior Court.

The defendants have jointly moved for entry of summary judgment on the plaintiffs' claim, arguing that evidence that is essential to support their claim is inadmissible. The defendants also move for an in limine order on the evidentiary issue that is central to their summary judgment motion.

This order addresses the defendants' summary judgment motion. It also addresses issues pertinent to trial that were raised at the trial management conference.

Motion for summary judgment and motion in limine

In its essence, this case is a dispute about the location of a boundary that is common to land owned by the plaintiffs and land owned by the defendants. The plaintiffs have designated an expert, Bruce Martinson, to testify about the location of the disputed boundary. The defendants contend here that Martinson's opinion is based on extrinsic information that, as a matter of law, is not competent. That information consists of two " ancient plans." From that, they argue that Martinson's opinion is inadmissible and that the plaintiffs are left without any evidence to support an argument that the boundary line is located where they claim it is. The court first considers the question of whether the ancient plans constitute competent evidence that can be considered in this action. The court then addresses the defendants' summary judgment motion in light of the resulting record.

A party is entitled to summary judgment when the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. M.R.Civ.P. 56(c); see also Darlings v. Ford Motor Co ., 2003 ME 21, ¶ 4, 825 A.2d 344, 345. The motion court views the evidence in the light most favorable to the non-moving party. Benton Falls Associates v. Central Maine Power Company , 2003 ME 99, ¶ 10, 828 A.2d 759, 762. An issue is considered genuine " if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial." Prescott v. State Tax Assessor , 1998 ME 250, ¶ 5, 721 A.2d 169, 171-72 (inner citation omitted). A fact is considered to be material if it could potentially affect the outcome of the case. Id. ¶ 5, 721 A.2d at 172.

As the parties have presented it, the record on summary judgment contains the basis they use to argue the evidentiary point that is common to the motion for summary judgment and the motion in limine. Some of the defendants' filings, however, are not authorized by the rules of court, and the court disregards them. These improper filings include several sets of statements of material fact and part of their reply memorandum. As to the former, the rules governing summary judgment motion practice authorize a movant's supporting statement of material fact; the respondent's opposing statement of material fact that is directly responsive ( i.e ., assertion-by-assertion) to the original SMF; the respondent's statement of additional material fact; the movant's objections to the respondent's opposing statement of material facts pursuant to M.R.Civ.P. 56(i); and the movant's reply statement of opposing material fact that is directly responsive ( i.e ., assertion-by-assertion) to the respondent's SAMF. See generally M.R.Civ.P. 56(h). The parties filed all of these submissions, and the court has considered them. In addition, however, the defendants filed a reply statement of material fact that purports to be responsive to the plaintiffs' opposing statement of material fact. The court considers only those responses that are allowed by rule 56(i) -- namely, the objections (and not responses, for example, that deny a denial). Further, the defendants filed a reply statement of additional fact that sets out additional factual assertions. Such a filing is not allowed by rule 56. The court therefore does not consider that filing.

Second, Maine Rule of Civil Procedure 7(f) establishes that a reply memorandum may be no longer than 7 pages in length absent leave of court that would allow a longer memorandum. The defendants' reply memorandum exceeds 7 pages. Because they did not seek or obtain leave of court to file written argument in excess of the rule's limitation, the court disregards all but the first 7 pages of their reply memorandum.

The parties own adjoining parcels of land. In dispute here is the location of the common boundary. Wherever it is located, the southern boundary of the plaintiffs' parcel is the northern boundary of the defendants'. As framed in the amended complaint, the plaintiffs' claim to the disputed area is based on record title. Their expert, Bruce Martinson, formed the opinion that supports the plaintiffs' view. In his opinion, the record boundary between the two parcels is a straight line, although on the face of the earth there are some slight changes in bearing or course. There are several elements that make up the foundation for his opinion. The motions at bar require consideration of those elements and then an identification of the grounds that may properly be used by the plaintiffs in support of their claim in this action. In the context of this case, this analysis implicates two issues that are partially interrelated: first, the kinds of extrinsic documents that may be used to construe a deed and locate a boundary line; and second, the sufficiency of the plaintiffs' disclosure of the basis for Martinson's opinion.

The court first considers the question of whether, as a legal matter, Martinson is entitled to rely on the two ancient plans to form his opinion about the location of the common boundary line as described in the parties' deeds. In forming that opinion, Martinson relied on information in the two ancient plans in order to determine the location of the disputed boundary. Defendants' statement of material fact (DSMF) ¶ 13. In Martinson's view, the ancient plans show the location of parcels at issue. The ancient plans are one of Pownalborough dated 1763 and a second plan dated 1758. DSMF ¶ ¶ 10-11. Martinson reviewed the deeds in the parties' chains of title, and those deeds do not refer to those ancient plans. DSMF ¶ ¶ 15, 20. [1] Under Maine law, a plan that is extrinsic to a deed may be used to construe the terms of the deed only when the deed " distinctly and certainly" designates the plan. Chesley v. Holmes , 40 Me. 536, 546 (1855); see also Oceanic Hotel Co. v. Angell , 143 Me. 160, 162-63 (1948). Because the deeds to the parties' parcels do not make reference to the ancient plans, as a matter of law the plans are not part of the deeds and cannot be used to construe them.

The plaintiffs argue that an expert is entitled to rely on data that assisted him in reaching the opinion at issue. They further argue that the expert witness is then entitled to explain and present those underlying data at trial, irrespective of whether the data are independently admissible. See Plaintiffs' Opposition to Defendants' Motion in Limine and Motion for Summary Judgment at 5. In the context of this case, neither assertion is correct.

The latter contention is not supported by Maine law. Pursuant to M.R.Evid. 703, an expert is entitled to rely on information that need not be admissible in evidence. However, the witness' reliance on that information does not mean that the underlying information then may be disclosed during the trial. See Field and Murray, Maine Evidence § 703.2 at 399 (6th ed. 2007) (" An expert opinion does not become the vehicle to convey inadmissible hearsay evidence into the trial for direct consideration and analysis by the jury."). Therefore, even it was proper for Martinson to rely on the ancient plans (and for the reasons set out below, the court concludes that it was not), the information in the ancient plans would not become admissible solely because Martinson relied on them. Rather, the ancient deeds could be admitted into evidence only if they were admissible on their own terms.

There are, however, the more fundamental questions of whether Martinson was entitled to rely on the ancient plans and whether, to the extent that he did, his opinion may be presented into evidence itself. When an expert relies on certain information to render an opinion, the admissibility of that resulting opinion turns on the question of " whether the facts or data are of a type reasonably relied upon by experts." See Advisers' Note to M.R.Evid. 703 (emphasis in original). The question of whether it is reasonable for an expert to rely on certain information is a question to be determined by the court, and the court is not bound by an expert's opinion that such reliance is reasonable. Field and Murray § 703.2 at 397. As is noted above, in the present circumstances, Maine law bars use of the ancient plans as an informational source to construe the terms of the deeds in the parties' chains of title. Although Martinson may believe that it is reasonable and proper for him to use the ancient plans, that belief is undercut by Maine law. Were it otherwise, ancient plans not referenced in a deed could be used directly or indirectly to interpret that deed in derogation of Maine law to the contrary. Reliance on inadmissible material must be reasonable " in the context of a fair administration of the judicial system." Field and Murray § 703.2 at 397. Here, established caselaw would be violated if Martinson were permitted to testify about an opinion that is based on improperly considered sources, and that caselaw would be violated if Martinson were to testify about an opinion that he formulated based on that extrinsic information that, according to Maine law, cannot be used in that way. Therefore, as a matter of law, it would be improper to interpret the deeds in light of the ancient plans.

Because Martinson's testimony cannot be predicated on the ancient plans, it must next be determined what other underlying information and records he considered.[2] If Martinson relied on other information that is sufficient to support his opinion, then the opinion might still be admissible.

The record on summary judgment reveals that in fact Martinson considered deeds along with the ancient plans. In their filings, the plaintiffs claim that some of the deeds are " old deeds." POSMF ¶ 13. The defendants contend that the plaintiffs have not properly disclosed Martinson's consideration of some of those deeds and that those deeds cannot now be used as support for his opinion.

The summary judgment record reveals that when the defendants deposed Martinson, the deposition subpoena required him to produce " [a]ll . . . papers . . . and documents of whatever kind or nature prepared or reviewed by him [Martinson] in the course of forming his opinions on this case." Defendants' reply to POSMF ¶ 6. Martinson was aware of the terms of the subpoena. Id. As is shown in the record on summary judgment, Martinson was asked about the earliest deed he had reviewed. Id. When he was unable to answer the question from memory, he asked to be able to look at the documents he brought with him. Id. After reviewing that material, he stated. " The earliest copy of any deed I have is -- is related the store lot actually -- from 1878." Id.; defendants' reply to POSMF ¶ ¶ 6, 17; see Martinson deposition transcript at 58-59. Martinson was also asked about the earliest deed relating to another part of the area in dispute, and he said that he " had one" from 1913. Defendant's reply to POSMF ¶ ¶ 6, 19; see Martinson deposition transcript at 59.

Despite this testimony that was provided in conjunction with a document production requirement, the plaintiffs assert that Martinson in fact reviewed deeds that are older than the ones he described at the deposition and that Martinson's references to the 1878 and 1913 deeds as the earliest ones he reviewed meant only that those were the oldest ones he had with him at that time (namely, at the deposition). From this, the plaintiffs go on to argue that they are entitled to present Martinson's opinion based on deeds that are older than the ones he described at the deposition.

Martinson's testimony can only be construed as a disclosure that he reviewed deeds going back only to 1878 and 1913 and that his ultimate opinion regarding the location of the disputed boundary line cannot rest on any earlier deeds. In other words, his deposition testimony fails to disclose that he relied on any deeds older than ones with those dates. As the plaintiffs argue, Martinson did testify that the earliest deeds he could produce at the deposition were the ones with the dates noted above. However, the deposition subpoena obligated him to produce all deeds that he reviewed as he formed his opinion. If, at the deposition, he possessed and produced deeds that went back as far as 1878 and 1913, then the fact that he did not possess any earlier deeds can only be construed to establish that he did not review and consider any such earlier ones. The defendants were clearly entitled to rely on this understanding of the basis for Martinson's opinion, as the defendants deposed him and pursued the subsequent pre-trial development of the case, including the motion at bar.

It also bears note that in addition to their efforts to obtain any documents considered by Martinson through the deposition subpoena, the defendants also served the plaintiffs with a request for production of documents. See defendants' response to POSMF ¶ 6. That discovery request required the plaintiffs to produce any documents that Martinson reviewed during his work on this case. Id. In response to that discovery request, the plaintiffs did not produce any deeds that were older than 1878. Id. This demonstrates that the defendants sought to obtain the documentary basis for Martinson's opinion in two overlapping ways: through the deposition subpoena duces tecum, and through the rule 34 discovery mechanism.

Neither of these approaches, even as augmented by the oral deposition that the defendants conducted of Martinson, yielded production or disclosure of the information that the plaintiffs now contend is part of the foundation for Martinson's opinion. The defendants' resulting reliance on the basis that was disclosed during discovery precludes the plaintiffs from now grounding their proof on undisclosed material. Accordingly, the plaintiffs may not present evidence of Martinson's opinion to the extent that it is based on deeds older than 1878.

As is noted above, in formulating his opinion, Martinson did rely on the ancient plans and deeds. Plaintiffs' statement of additional material fact (PSAMF) ¶ ¶ 17, 37. However, for the reasons also set out above, the basis for Martinson's opinion must exclude consideration of the ancient plans and deeds that are earlier than 1873. The remaining question is whether the remainder of the foundation for his opinion may be sufficient to allow the plaintiffs to offer that opinion at trial as admissible evidence. Martinson considered the deeds in the parties' own chains of title and concluded that, because they were " not very specific, " they have " limited value." DSMF ¶ 16.[3] This does not establish, however, that they are of no value. Further, Martinson considered and relied on monumentation and physical evidence. POSMF ¶ 34; DSMF ¶ 36; PSAMF ¶ ¶ 16, 17. Also as a more general matter, there is evidence that Martinson analyzed the location of the disputed boundary based on accepted principles of surveying. PSAMF ¶ 13.[4]

From this, the court cannot conclude on this record that Martinson's opinion is wholly without support as a matter of law. The effect of this order will circumscribe the information that Martinson may use to support his opinion. However, in the context of a summary judgment motion, the issue is whether the record forecloses admissibility of that opinion altogether. As is noted above, the record reveals that there is some remaining information that the plaintiffs can point to as support for Martinson's opinion. Accordingly, the defendants have not established as a matter of law that the opinion is inadmissible. Therefore, a trial of the facts will be needed for the parties to develop their positions further.

Trial issues

At the trial management conference held on February 18, 2014, the nature of the trial was addressed. Although the plaintiffs had filed a jury demand, all counsel wanted the opportunity to confer with the parties to determine whether any of them wished to proceed with a jury trial. The court set February 28 as the deadline for counsel to advise the clerk if any party wanted a trial by jury. None of the attorneys provided such notice to the clerk. Accordingly, trial shall be jury-waived.

Counsel for one of the defendants has moved to enlarge the time to file a motion to continue the case off of the April 2014 trial list. The basis for this motion is the prospective need to conduct further discovery regarding Martinson's opinion if the court were to deny the defendants' summary judgment motion (as the court does here). The court grants the motion, and the deadline for any motion to continue the trial is enlarged to March 14, 2014. It bears note, however, that this order is based on the factual and legal limitations that would control Martinson's testimony. With an opportunity for further discovery, there may arise a justification to modify those limitations. Nonetheless, the court will consider that issue if it is generated.

The entry shall be:

For the foregoing reasons, the defendants' motion for summary judgment is denied. Order issues on the defendants' motion in limine. Defendant Edward J. Stewart's motion to enlarge is granted, and the deadline for any motions to continue trial is enlarged to March 14, 2014.

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