ORDER ON MOTION FOR SUMMARY JUDGMENT
E. Walker Justice, Superior Court.
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
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.
Standard of review
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).
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).
initial matter, there are two procedural issues for this
court to address.
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.
Citations to the complaint in the statement of material
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 ...