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Pilote v. Murphy

Superior Court of Maine, Androscoggin

June 13, 2017

GUY PILOTE, et al., Plaintiffs
ELEANOR MURPHY, et al., Defendants



         Although 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.

         In 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.

         Although 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.

         Although 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, [1] 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.

         The court makes the following factual findings and reaches the following conclusions of law:

         1. In 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.

         2. In 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 deposit.

Plaintiffs' Ex. 2.

         3. Plaintiffs' Ex. 2 was executed before Philip Murphy actually owned the property and before Lots 1 and 2 had been created.

         4. The 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.

         5. On 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 passed.

         6. On 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 ...

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