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Spurwink Woods, LLC v. Cusack

Superior Court of Maine, Cumberland

July 12, 2017

SPURWINK WOODS, LLC, a Maine Limited Liability Company
v.
ADELAIDE G. CUSACK, EDWIN M. PALMER, C. EDWIN PALMER, et al.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          Lanca E. Walker Justice, Superior Court.

         Before the court is Plaintiff Spurwink Woods, LLC's motion for summary 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 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. ¶ 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)(1), (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 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. Bed v. Allstate Ins. Co., 2010 ME 20, ¶ 11, 989 A.2d 733; Dyer v. Dep't of Transport, 2008 ME 106, ¶ 14, 951 A.2d 821. "[A] fact is material if it could potentially affect the outcome of the case." Reliance Nat'l Indem. v. Knowles Indus. Servs., 2005 ME 29, ¶ 7, 868 A.2d 220. A genuine issue of material fact exists where the fact finder must choose between competing versions of the truth. Id. (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). When 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, ¶ 14, 951 A.2d 821. The adverse party may not rest upon the 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, ¶ 21, 969 A.2d 897; Reliance Nat'l Indem., 2005 ME 29, ¶ 9, 868 A.2d 220. However, the fact that motion is not opposed 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

         Spurwink's motion for summary judgment only includes the mandatory 21-day notice. M.R. Civ. P. 7(b)(1)(A); (Pl's Mot. Summ. J. 11.) A motion for summary judgment must fulfill additional notice requirements. M.R. Civ. P. 7(b)(1)(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)(1)(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 ...


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