D. WARREN JUSTICE, SUPERIOR COURT.
this case was filed in September 2011, there were substantial
delays in bringing it to trial. It was scheduled for trial in
October 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.
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 Pilote 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.
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.
Pilote 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.
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,  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.
court makes the following factual findings and reaches the
following conclusions of law:
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.
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 PI. 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
Plaintiffs' Ex. 2.
Plaintiffs' Ex. 2 was executed before Philip Murphy
actually owned the property and before Lots 1 and 2 had been
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.
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
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 ...