# Flaherty v. Muther

> Superior Court of Maine · December 1, 2009

URL: https://www.frixlaw.com/law-library/cases/10809278

## Case

- **Court:** Superior Court of Maine
- **Decided:** December 1, 2009
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Robert E. Crowley
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809278

## How later opinions describe it (automated extraction)

- holding where a reference to "pedestrian right of way or foot path" in the easement was ambiguous, review of why it was necessary to reach the water was required
- discussing differing interests of a mother and a child in a paternity action such that a child is not in privity with the mother for purposes of res judicata
- holding that "[i]t is well settled that a mere increase in the volume of traffic across the access road will not constitute a per se overburdening"

## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
D~~KET_NO'~f8-,~~8,) /
ROBERT FLAHERTY, et al~;:D'1 JUL 8 r:J 17: nf"l
0­

Plaintiffs / Third Party Defendan1:S' ORDER ON PLAINTIFFS'
AND THIRD PARTY
DEFENDANTS'
MOTIONS FOR
SUMMARY
v. JUDGMENT

HELEN MUTHER et al.,
Defendants/Third Party Plaintiffs

Before the Court is Plaintiffs / Third Party Defendants Robert Flaherty, Sheryl

Flaherty, Barbara Cotter, Joseph Cotter, Mary Arnold, Richard Raubeson, Kathleen

Raubeson, James L. Moody, Jr., Marjorie Moody, Alison Perkins as Trustee of Moody

Realty Trust, Paul Stewart, Melanie Stewart, Patricia Campbell, Joseph Hetrick, Eileen

Hetrick, Nancy Wulf and Norman Wulf as Trustees of Nancy N. Wulf Living Trust,

Steven McGrath and Elizabeth McGrath's motion for summary judgment against

Defendants/Third Party Plaintiffs, Helen Muther and Paul Woods, individually and in

their capacity as Trustees of the Buffett Coastal Trust, pursuant to M.R. Civ. P. 56. A

second motion for summary judgment is also before the Court. Plaintiffs/Third Party

Defendants Russell Pierce, Jacqueline Pierce, Paulette York, Todd Colpitts, Niamh

Colpitts, David House, Susan House, David Meagher, and Ellen Meagher bring this

motion. Together, the moving parties are referred to herein as "J-Lot owners" by virtue

of their ownership interests in property designated on a recorded plan starting with a

J". The Court considers these motions together due to the commonality of issues raised
in the motions. 1

BACKGROUND
In November 2005, Helen Muther and Paul Woods ("Muther and Woods") filed

a complaint in this Court against what is now collectively known as the Broad Cove

Shore Association (hereinafter "the Association"), docket number RE-05-169 ("the prior

litigation"). In that case, Muther and Woods sought a declaratory judgment against the

Association that it had fIno legal right to access, cross, or use [Muther and Woods']

property in the walkway easement or any other location." RE-05-169 PIs.' Amend.

Compl.

2. During the settlement conference:

a. Woods' and Muther's attorney Judy Metcalf specifically referenced
the 243 lots in the Broad Cove Shore Association, and stated tha.t
the agreement would be binding on owners of lots in the 1969 and
1970 plans, the plans that conveyed the J-Lots.

b. Metcalf indicated that the J-Lots would pay a lower annual fee than
the non-J-Lot owners for the maintenance of the gate.

c. At no point during the settlement conference did anyone say the
settlement agreement would not be binding on the J-Lot owners.

d. At the conclusion of the settlement conference, Hess, Connolly, and
the Association's attorney, Andrew Sparks, stated they had
authority to represent and bind the Association to the agreement.

3. After the settlement conference:?

a. vVoods ,ll1d Muther claim that shortly after the settlement
conference, several J-Lot owners attended a meeting at Hess' house
and ratified the agreement by voicing their support. H

b. Wood and Muther assert that the Association communicated and
emailed with the J-Lot owners leading up to the settlement
conference. VVoods and Muther claim that when they requested
those emails through discovery they were denied as privileged,
further leading them to believe the J-Lot owners were represented
by the Association.

In the court's view, based on these facts, it is not esta.blished that the

Association made a misrepresentation of material fact. First, none of the facts

Woods and Muther assert suggest the J-Lot owners were represented in any

6 The court accepted these facts as true in its July 8,2009 Order. Flaherty. 2009 Me.
Super. LEXIS 100, * 20. However, there is no evidence that the contribution of .I-Lot
owners was disproportionate to 110n-.I-Lot owners.
7 It is questionable whether post-settlement events are relevant to claims of fraud and
breach of warranty or implied warranty.
x"There is no evidence before the Court, beyond the .I-Lot owners "applause", regarding
the .I-Lot owners' authorization to have their individual interests represented during the
prior litigation." ILl. at *21.

14
capacity other than as members of the Association. As indicated in the May 23,

2006, Answer and Counterclaim of all Defendants, the prior litigation (MuffLer 1)

primarily dealt '.'vith whether the Association and its members had prescriptive

rights to the walkway to Secret Beach." The fact that some J-Lot owners

contributed to the attorneys fees and applauded the settlement agreement does

not mean the J-Lot owners were abandoning their record easernent rights.

Second, aU of the subdivision plans creating the Broad Cove neighborhood were

referred to during the settlement agreement, which negates the significance

Woods and Muther place on the reference to the 243 lots and to the 1909 and

1970 plans. Third, regarding the different annual fee for J-Lot owners, there was

never any articulation on the record either during the settlement agreement or in

the SUllllTlary judgrnent record as to why there was a lower fee for the J-Lot

owners. The J-Lot owners record easernent rights rnay be one possible

explanation, but it is also possible that the fcc differential was because the J-Lot

owners Jived closer to the walkway, used the walkway and beach more, or had a

better prescriptive rights claim. The reasoning for the lower annual fee for the J-

Lot owners is left largely to conjecture. Fourth, while it is true that nobody said

the J-Lot owners would not be bound at the settlement conference, the converse

is also true in that it was never expressly stated that the J-Lot owners would be

9 The May 23. 2006 Counterclaim sought declaratory judgment that the Association and
its members have a legal easement, a private prescriptive easement, and a public
prescriptive easement to access and use Secret Beach. The following excerpt from the
First Amended Answer. Affirmative Defenses and Counterclaim of all Defendants further
supports the fact that the Association was only concerned with assuring prescriptive
easement rights:
"The Defendants restate their defenses and affirmative defenses as set forth in their
original answer except to clarify Affirmative defense #5 to make it clear that it asserts
both public and private prescriptive rights for each Defendant." Def. 's Countercl. at 1.

15
bound by the agreement. Lastly, during the settlement agreement there was

never discussion about reforming the J-Lot owners' record easement rights.

Nothing in the record shows that the Association was authorized to transact in

the J-Lot owners' deeded rights.

As the party asserting fraud, Woods and Muther must provide clear and

convincing evidence that a fraud occurred. Even when bctU<ll disputes are

resolved against the Association, as the moving party, the facts offered by Woods

and Muther in opposition to summary judgment on the fraud claim would not, if

offered at trial, be sufficient to withstands a motion for judgment as a matter of

law. Accordingly, summary judgment is granted to the Association on the fraud

claim.

V. Breach of Implied Warranty of Authority

Woods and Muther assert that Hess and Connolly, as representatives of

the Association, gave an implied warranty of authority that they were acting on

behalf of the J-Lot owners when the Association entered into the settlement

agreement. IO Woods and Muther claim that Hess and Connolly lacked the power

10 As provided in Woods' and Muther's Third Party Complaint:
4. During the memorial ization or the agreement before Justice Bradford, counsel for
the Association, in conjunction with two of its Directors, Hess and Connolly who
were also present, acknowledged that they had the authority to bind the
Association. On countless occasions prior to the settlement I-less and Connolly
also represented that it in fact represented approximately 240 households,
including the so-called ".I-Lot" households, and had the complete authority to act
on all such owners' beha] f Thi rd Party Countercl. ~ 4. .I une 12, 2008.
15. Third-Party Defendants Hess and Connolly are or have been Directors in the
Association during the prior litigation with Third-Pany Plaintiffs. As Directors.
they arc and were responsible for acting on behalf of their membership. In that
capacity Third-Party Defendants Hess and Connolly gave to Third-Party
Plaintiffs an implied \"arranty of authority that they were acting on behalf of the
.I-Lot owners when the Association entered into the settlement agreement with
Third-Party Plaintiffs. ILl. at'rl )5.

16
to bind the whole Association, as evidenced by the J-Lot owners' suit. As a

result, Woods and Muther claim Hess and Connolly breached their implied

warranty of authority and are liable for the damages they incurred in the

subsequent litigation. 11 The court disagrees.

The Restatement (Second) of Agency states that an agent is liable to a third

party \:vhel1 he breaches an implied warranty of authority:

A person who purports to make a contract, conveyance or
representation on behalf of another who has full capacity but
vvhom he has no power to bind, thereby becomes subject to liability
to the other party thereto upon an implied vvarranty of authority,
unless he has manifested that he does not make such warranty or
the other party knows that the agent is not so authorized.

2 Restatement (Second) of Agency § 329 (1958). The central question in this claim

is whether Hess, Connolly, or the Association purported to represent tbe J-Lot

owners in a capaci ty other than as l11el1l.bcrs of the Association. On this issue,

Woods and Muther bear the burden of proof and IT'll1st show by a preponderance

16. Plaintiffs in the ahove-captioned matter have stated that the Association did not
have authority to act on their [the .I-Lot owners] behalf. Third-Party Defendants
(-less and Connolly lacked the power to bind their membership and, as a result,
the implied warranty was breached. Third-Party Plaintiffs justifiably relied on
the acts and representations of these Third-Party Defendants to their detriment
and with loss of the benefit expected from the settlement agreement. Id. at ~ 16.

II Woods and Muthcr do not assert that Hess, Connolly. or the Association had express

actual authority. nor do they claim that Hess, Connolly, or the Association had apparent
authority. "Actual authority consists of the powers which a principal directly confers
upon an agent or causes or permits him to believe himself to possess." 2A c..J.S. A.r;ency
~ 147 (1972). Apparent authority is authority "a principal holds his agent out as
possessing or permits him to exercise or to represent himself as possessing. under such
circumstances as to estop the principal 11'om denying its existence," Jd at § 157(a).
Moreover. the court has already ruled that the J-Low owners were not bound by the
settlement agreement.

17
of the evidence that the Association purported to represent the J-Lot owners with

respect to rights not derived from membership in the Association. 12

The same facts upon which Woods and Muther rely in support of their

fraud claim also fail to support their claim that the Association purported to

represent the J-Lot owners in a capacity beyond their membership in the

Association. A quick recount of the circumstantial facts Woods and Muther rely

upon: (1) the fact that I-less was a J-Lot owner;!.' (2) the emails sent to Association

members, including J-Lot owners; (3) the fact that some J-Lot owners contributed

to the Association's legal fees; (4) the applause some J-Lot owners gave in

support of the settlement agreement; (5) the settlement agreement's articulation

that J-Lot owners would pay a different fee to maintain the gate than other

members of the Association; (6) the reference to the 243 lots and the 1969 and

1970 plans during the settlement agreement; (7) and the fact that nobody stated

the settlement agreement would not be binding on the J-Lot owners. As

discussed above in the prior section, none of these facts suggest the J-Lot owners

were represented in any ca.pa.city other than as members of the Association.

12 "The degree or amount of proof required to establish the authority of an agent may
vary according to the nature oftlle authority sought to be proved; but ordinarily a
preponderance of the evidence is necessary and sufficient." 3 c..I.S. § 539 (1973). In
some circumstances clear and convincing evidence is required to establish the authority
of an agent. fd For the purposes of this motion, the court applies the preponderance of
the evidence standard. Arguably, clear and convincing evidence of Hess, Connolly, and
the Association purporting to represent the .I-Lot owners could be required because: (J)
Woods and Muther assert the Association purported to deal the .I-Lot owners' record
casement interests - a transfer of an interest in land that must comply with the more
exacting requirements of the Statute olTrauds, and (2) the elements of a claim for breach
of implied warranty of authority are strikingly similar to the clements required for
Woods' and Muther's claim of fraud. which requires clear and convincing evidence.
1.1 The Court found that Hess was bound by the Settlement Agreement because she was
an individually named defendant in Ml/ther I. Flaherty v. Mil/her. 2009 Me. Super.
LEXIS 100, * 14-15. Beth Ellen Hess \vas named as an individual defendant in AIl/ther I.

18
Additiona]]y, it is important to remember that in the prior litigation the

Association was asserting a prescriptive easement right and were seeking a

declaration from the court that they had rights to the easement. The

Association's assertion of prescriptive casement rights was negotiated during the

settlement conference without consideration of the Statute of Frauds. However,

as the court held on July 30, 2009, the J-Lot owners have a record easement right

based on an "casement by implication based upon estoppel." Flaherty v. Muther,

RE-08-098 (Me. Super. Ct., Cum. Cty., July 30,2009) (Crowley, J.). The J-Lot

owners had rights to the easement from the time the neighborhood plans were

created. Accordingly, if Woods and Muther intended through the settlement

agreement to acquire the J-Lot owners' record rights, then the agreement would

have had to comply with the Statute of Frauds. The Statute of Frauds applies to

the transfer of any interest in land. 33 ~v1.R.S. § 51. According to the Statute of

Frauds, no action sha]] be maintained on any contract or agreement transferring

an interest in land unless the contract or agreement is in writing and signed by

the parties authorized to enter the agreement. Iri. Nothing in the settlement

agreement calls for the execution of deeds by individual J-Lot owners or adding

them as named parties to be bound by a stipulated judgment to be recorded in

the registry of deeds. H

14 Woods' and Muther's attorney Judy Metcalf stated during the scttlement confcrence:
"That agreemcnt will be in the form of a stipulated judgment rccorded at
the Registry of Deeds, and it's binding upon the individual pl - ­
defendants that you - - that you identified, but also on the] 962 Broad
Cove Shore Association. thc 2005 Broad Covc Shore Association, the
reported merged Broad Cove Shore Association and any new Broad Cove
Shore Association which may arise as a result of the settlement that vvc've
crafted here today."

19
l3ased on the above analysis, the court finds that the Association did not

impliedly warrant representation of the J-Lot owners in a capacity beyond their

membership in the Association. Accordingly, the Association cannot be found

liable for breaching an implied warranty authority as a result of the J-Lot owners'

subsequent suit.

Therefore, the entry is:

The court GRANTS the Third Party Defendants' Motion for Summary

Judgment on Woods' and Muther's claims for Breach of Indemnification, Fraud,

and Breach of Implied Warranty of Authority.

Dated at Portland, Maine this
I}/ day of ~- _ "

obert E. Crowley
Justice, Superior Court

Settlement Tr. at 3. The .I-Lot owners "vere not named as a group or individuaJIy. and the
settlement agreement is expreSSly not binding on the .I-Lot owners in a capacity beyond
their membership in the Association.

20
~..
{. .re.;
."'Y
;< iii';
STATE OF MAINE
CUMBERLAND COUNTY SUPERIOR COURT
.~(
I~;~tl' 142 FEDERAL STREET
PORTLAND, MAINE 04101
To:

PHILIP MANCINI ESQ ­
DRUMMOND & DRUMMOND
Gr Cl~ d C 6J~
ONE MONUMENT WAY ~J6)
PORTLAND ME 04101

STATE OF MAINE
'*
:~tilii
CUMBERLAND COUNTY SUPERIOR COURT

.Ul~1~'
~~r
142 FEDERAL STREET
PORTLAND, MAIr'\IE 04101

To:

WALTER MCKEE ESQ
Wo" cI.J q....
LIPMAN KATZ & MCKEE ~ 1.J.f<J.... ~/'
PO BOX 1051
AUGUSTA ME 04332-1051
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. RE-08-9~ /
1":J)vJ - ou M'"' '''5/';10 I (..
ROBERT FLAHERTY, et al,

Plaintiffs

v. ORDER

STATE OF MAINE
HELEN MUTHER, et al, Cumberland, s::,, Clerk's Office

Defendants MAY 08 2012

RECEIVED
On March 22, 2011 the Law Court issued a decision affirming in part and

vacating in part a decision by the Superior Court (Crowley, J.) adjudicating the rights of

certain landowners, known in this case as the J-Lot owners, with respect to a right-of-

way that provides access to a small beach known as Secret Beach in Cape Elizabeth. See

2011 ME 32, 17 A.3d 640. In that decision the Law Court remanded one major issue for

further determination by the trial court. That issue involves the reasonableness of

certain video surveillance cameras that had been placed by defendants Helen Muther

and Paul Woods on the right-of-way. See 2011 ME 32 <J[ 72. 1

1
In its decision the Law Court also vacated the trial court's award of costs to allow
reconsideration of whether the J-Lot owners were still the prevailing parties in light of the
disposition of the appeal and because the award of costs had been entered after Muther and
Woods had filed a notice of appeal. 2011 ME 32 CJICJI 89-90. On a separate appeal in this case, the
Law Court also remanded the issue of whether certain J-Lot owners were entitled to attorney
fees based on denials of certain requests for admission addressed to Muther and Woods. 2011
ME 34. This court has deferred the award of costs and Rule 37(c) attorney fees until the entry of
a final judgment on the merits.
1. ·Background

In lieu of reciting the extensive procedural and factual background, the court will

rely on the exposition contained in the Law Court's decision at 2011 ME 32 '1['1[ 4-27. In

that decision the Law Court affirmed the trial court's ruling that the J-Lot owners were

not bound by a prior settlement agreement with the Broad Cove Shore Association?

2011 ME 32 '1[ 36. It affirmed the trial court's rejection of the third party indemnification

claims brought by Muther and Woods against the Broad Cove Shore Association. 2011

ME 32 '1['1[ 43, 47, 52. In addition, it affirmed the trial court's determinations as to the

scope of the easement possessed by the J-Lot owners over the right-of-way and the

permitted uses of that easement. 2011 ME 32 '1['1[ 54-61. 3

In the portion of its decision that is relevant here, the Law Court addressed the

trial court's determinations that the placement of an access gate and video surveillance

cameras on the easement placed an unreasonable burden on the j-Lot owners' use of the

easement. With respect to the access gate, the Law Court reversed the trial court's

decision and concluded that, as a matter of law, an access gate does not unreasonably

interfere with the J-Lot owners' use of the easement. 2011 ME 32 '1[ 71. With respect to

the surveillance cameras, the Law Court remanded that issue for reconsideration by the

trial court with the direction to review that issue "in conjunction with Muther and

Woods's obligations under the [Broad Cove Shore Association] settlement agreement."

2011 ME 32 '1I 72.

2
That settlement agreement had been the subject of a prior appeal in Muther v. Broad Cove
Shore Association, 2009 ME 37, 968 A.2d 539.
3
The Law Court also affirmed the trial court's determination that use of the easement by J-Lot
owners to access upland property owned by a non-party (William Holt) would overburden the
easement and its determination that J-Lot owners had not established prescriptive rights over
the upland portion of the property owned by Muther and Woods. 2011 ME 32 '1['1[ 76, 85.

2
2. Proceedings Subsequent to Remand

On the surveillance camera issue, the Law Court specified that this court could

decide the issue based on the existing record or receive additional evidence. 2011 ME 32

'1[ 72 n.13. The parties did not seek to offer additional evidence on this issue but instead

chose to rest on the existing record and submitted memoranda setting forth their

respective positions.

The proceedings on remand have been conducted simultaneously with further

proceedings in the companion case of Muther v. Broad Cove Shore Association, RE-05-

179. Although the resolution of both cases has been delayed by the recusal in late 2011

of the trial justice to whom the cases had originally been reassigned upon remand

(Justice Crowley having retired in the meantime), the court has now reviewed the

portions of the existing record and the trial exhibits relied upon by the parties in their

submissions on the surveillance camera issue. It has also reviewed the trial court's prior

findings, portions of the transcript from the eight-day bench trial upon which those

findings were based, and the settlement conference transcript and portions of the record

relating to the settlement agreement in RE-05-169. The latter evidence is pertinent

because the Law Court ruled that Justice Crowley had erroneously excluded evidence

relating to the settlement and the J-Lot owners' awareness of its terms, 2011 ME 32 '1[

69, and the Law Court specifically directed that upon remand, the settlement agreement

should be considered in connection with the surveillance camera issue. 2011 ME 32 '1[

72.

3. Reasonableness of Surveillance Cameras

The trial court found that since 2005 Mr. Woods has challenged J-Lot owners

using their right of access across the easement and has confronted J-Lot owners who

3
wished to use the easement. July 30, 2009 Judgment at 8, <J[<J[ 37-38. It found that Mr.

Woods had informed J-Lot owners that their right to use the easement was limited, and

that Mr. Woods's testimony to the contrary was not credible. Id. <J[ 39. It further found

that from the time he moved into the property, Mr. Woods has taken photographs of

individuals who were using the easement and the beach area and that Mr. Woods and

Ms. Muther have been "hyper-vigilant" about monitoring the use of the easement. Id.

<J[<J[ 40- 41. These findings are supported by the evidence, and many were reiterated by

the Law Court in its decision on the appeal from the trial court's decision. 2011 ME 32 <J[

12.

The trial court further found that some J-Lot owners were frightened by their

confrontations with Mr. Woods and have limited their use of the easement as a result.

July 30, 2009 Judgment at 9, <J[ 44, a finding reiterated in the Law Court decision at 2011

ME 32 <J[ 12. Most of the J-Lot owners have expressed concern about the need for a video

surveillance system, and the trial court found that the presence of surveillance cameras

discourages J-Lot owners from exercising the right of passage they have historically

enjoyed over the easement. July 30, 2009 Judgment at 9, <J[ 54, and p. 19. See Law Court

decision, 2011 ME 32 at <J[ 64.

Significantly, no approval or agreement with respect to surveillance cameras was

included as part of the November 29, 2006 settlement in RE-05-169. The only mention of

photography of any kind in the recitations comprising the settlement agreement was a

statement by counsel for defendants that, as part of a mutual "nondisturbance" clause,

it was anticipated that "peaceful users of the access are not gonna be photographed,

approached, or questioned while they're using the easement." November 29, 2006

settlement transcript in RE-05-169 at 26-27, quoted by the Law Court at 2011 ME 32 <J[

16. Counsel for Muther and Woods did not express any reservations, qualifications or

4
disagreement with this statement when it was made at the settlement conference. Nor

did Mr. Woods, who was present and who spoke up to express his concerns and some

cases his disagreement with counsel's recitations on other issues. 4

Based on the deterrent effect that surveillance cameras will have on some J-Lot

owners' use of the easement and based on the statement at the November 2006 Broad

Cove Association settlement that peaceful users of the easement "are not gonna be

photographed," the court finds that- under the specific circumstances of this case -the

presence of surveillance cameras will unreasonably interfere with the J-Lot owners' use

of the easement.

Unlike the access gate, surveillance cameras are not a required element of the

2006 settlement between Muther and Woods and the Broad Cove Shore Association.

The Law Court's conclusion that Muther and Woods were entitled to maintain an access

·gate in the J-Lot owners' case was motivated in part by its conclusion that, if ordered to

remove the access gate, Muther and Woods would be "placed in a position where they

will be unable to comply with both judgments governing the easement." 2011 ME 32 <J[

67. In contrast, removing surveillance cameras from the easement does not place

Muther and Woods under any conflicting obligations.

While the discussion at the November 2006 settlement conference addressed the

subject of photographing users of the easement in general and did not specifically

address the use of surveillance cameras as part of an access system, the clear implication

of the general discussion strongly disfavors the use of surveillance cameras. To the

extent that J-Lot owners were aware of the details of the settlement, they would have

shared that understanding.

4
See, e.g., November 29, 2006 settlement transcript in RE-05-169 at 12-14, 20.

5
The trial court found that unknown teenagers and other persons, not J-Lot

owners or their families, were the source of most of the disturbances and all of the

criminal activity that had occurred on the easement or on Secret Beach. July 30, 2009

Judgment at 8 <[ 42. Those persons will be denied entry by the access gate, which will

only allow entry to J-Lot owners, their families, and guests, and authorized members of

the Broad Cove Shore Association. The court does not share the concern, expressed by

Muther and Woods in their submittal on remand, 5 that J-Lot owners and authorized

members of the Association will circulate their cards to unauthorized users. On this

record, any such concern would be speculative. 6

The Law Court noted that there is no evidence to justify apprehension on the

part of J-Lot owners that images taken by the surveillance cameras would be misused.

However, prior confrontational behavior by Mr. Woods, including the taking of

photographs, has been found to have frightened some J-Lot owners and deterred them

from exercising their rights to use the easement. July 30, 2009 Judgment at 8 <[<[ 37-38,

41, 43, 44, 54. Under these circumstances, the presence of surveillance cameras will

likely have a deterrent effect on some J-Lot owners and their families and has not been

shown to be necessary to police the access card system.

Recognizing that not just J-Lot owners but also their families, occupants, and

guests are entitled to use the easement/ it is the court's fervent hope that the access card

system will not result in a series of challenges and inquests to determine the identity of

each person who uses an access card to obtain entry. If there is future evidence of

5
See Defendants/Third Party Plaintiffs' Reply Memorandum Regarding Security Cameras
dated July 7, 2011 at 4-5.
6
One disincentive to such behavior is that, if authorized users were to circulate their cards to
unauthorized users, the authorized users would themselves lose access in the meantime and
could not be sure when, or even if, the cards would be returned.
7
See July 30, 2009 Judgment at 16.

6
significant misbehavior that could be prevented or deterred by the presence of

surveillance cameras, Muther and Woods can seek appropriate relief. Similarly, if there

is evidence of any significant and unwarranted interference with the rights of J-Lot

owners resulting from Muther and Woods's control over the issuance, activation, and

deactivation of access cards, the J-Lot owners can also seek appropriate relief. See 2011

ME 32 C[ 70 n.l2. 8

The entry shall be:

On remand, the prior judgment having been vacated in two respects, final
judgment is hereby entered (1) declaring, under the circumstances of this case, that the
access gate is not an unreasonable interference with the use of the easement and (2)
determining, under the circumstances of this case, that the surveillance cameras do
constitute an unreasonable interference with the use of the easement and shall be
removed. The Clerk is directed to incorporate this order in the docket by reference
pursuant to Rule 79(a).

Dated: May '1 2012

Thomas D. Warren
Justice, Superior Court

8
The court understands that under the combined effect of the judgment in this case and the
judgment in RE-05-169, J-Lot owners may use the easement at all times while authorized Broad
Cove Shore Association members who are not J-Lot owners are limited to access during a more
limited time period (from 15 min before sunrise until sunset, with the full range of permitted
recreational use only from 9 am until sunset). This may present challenges in terms of
programming access cards to different schedules and in programming them to track the
changing times of sunrise and sunset during the course of the year. The court expects that
counsel and all parties will attempt to cooperate on these issues.

7
ROBERT FLAHERTY VS HELEN MUTHER
CASE#: PORSC-RE-2008-00098

SELVD REPRESENTATION TYPE DATE

01003911 ATTORNEY: BITHER, STEPHEN D
ADDR: 23 AMHERST STREET PO BOX 6762 PORTLAND ME 04103
FOR: JACQUELINE PIERCE PL RTND 04/22/2008
FOR: RUSSELL PIERCE PL RTND 04/22/2008
FOR: SUSAN HOUSE 3RD P DEF RTND 07/01/2008
FOR: DAVID HOUSE 3RD P DEF RTND 07/0112008
FOR: NIAMH COLPITTS PL RTND 04/22/2008
FOR: DAVID MEAGHER 3RD P DEF RTND 07/0112008
FOR: ELLEN MEAGHER 3RD P DEF RTND 07/0112008
FOR: PAULETTE YORK PL RTND 04/22/2008
FOR: TODD COLPITTS PL RTND 04/22/2008

02 002982 ATTORNEY: KANY, WILLIAM
ADDR: 50 INDUSTRIAL PARK ROAD SACO ME 04072
FOR: PETER CONNOLLY 3RD P DEF RTND 07/07/2008

03 007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET PO BOX 258 AUGUSTA ME 04332-0258
FOR: HELEN MOTHER DEF RTND 04/23/2008
FOR: BUFFET COASTAL TRUST DEF RTND 04/23/2008
FOR: PAUL WOODS DEF RTND 04/23/2008

04 001027 ATTORNEY: MCNABOE, THOMAS R
ADDR: 13 SEA COVE ROAD CUMBERLAND ME 04110
FOR: MARY ARNOLD PL RTND 04/22/2008
FOR: JOSEPH COTTER PL RTND 04/22/2008
FOR: BARBARA COTTER PL RTND 04/22/2008
FOR: ROBERT FLAHERTY PL RTND 04/22/2008

05 002691 ATTORNEY: PARKINSON, DURWARD
ADDR: 2 PORTLAND RD, KENNEBUNK ME 04043
FOR: BETH ELLEN HESS 3RD P DEF RTNP 07/03/2008
FOR: ROBERT HESS, JR 3RD P DEF RTND 12/03/2008

06 003649 ATTORNEY: SPARKS, ANDREW
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
FOR: 2005 BROAD COVER SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: MERGED BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: NEW BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
07 009291 ATTORNEY: FRAME, GREGG R
ADDR: 30 MILK STREET 5TH FLOOR PORTLAND ME 04101
FOR: JAMES L MOODY, JR 3RD P DEF RTND 07/2112008
FOR: NORMAN WULF (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: NANCY WULF 3RD P DEF RTND 07/21/2008
FOR: ELIZABETH MCGRATH 3RD P DEF RTND 07/2112008
FOR: STEPHEN MCGRATH 3RD P DEF RTND 07/2112008
FOR: ROBERT HESS, JR 3RD P DEF RTND 07/2112008
FOR: PATRICIA CAMPBELL 3RD P DEF RTND 07/2112008
FOR: MELANIE STEWART 3RD P DEF RTND 07/21/2008
FOR: PAUL STEWART 3RD P DEF RTND 07/21/2008
FOR: ALISON PERKINS (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: MARJORIE MOODY 3RD P DEF RTND 07/2112008

08 009353 ATTORNEY: BILLINGS, JAMES A
ADDR: 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051
FOR: PAUL WOODS DEF RTND 11105/2008

09 009872 ATTORNEY: DUCHETTE, ANDRE G
ADDR: 30 MILK STREET 5TH FLOOR PORTLAND ME 04101
FOR: ALISON PERKINS (TRUSTEE) 3RD P DEF RTND 07/2112008
FOR: ELIZABETH MCGRATH 3RD P DEF RTND 07/21/2008
FOR: 1962 BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: 2005 BROAD COVER SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: NEW BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: MERGED BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008

10 004209 ATTORNEY: HADIARIS, JOSHUA D
ADDR: 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600
FOR: PETER CONNOLLY 3RD P DEF RTND 01115/2009
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. RE-O~?, /
ryw-CuM- V!5jl 0 Z 01 'Z

ROBERT FLAHERTY, et al,

Plaintiffs

v. ORDER

HELEN MUTHER, et al, STATE OF MAINE
Cumberland, s~:o, Clerk's Office
Defendants MAY 10 2012

RECEIVED
In its decision at 2011 ME 32,the Law Court remanded the issue of surveillance

cameras for a further determination by this court. At the same time the Law Court

vacated the trial court's award of costs to allow reconsideration of whether the J-Lot

owners were still the prevailing parties in light of the disposition of the appeal and

because the award of costs had been entered after Muther and Woods had filed a notice

of appeal. 2011 ME 32 <_[<_[ 89-90.

Separately, in 2011 ME 34, the Law Court vacated and remanded a separate

award of attorney fees to certain J-Lot owners, concluding that the factual basis for the

trial court's Rule 37( c) award may change in light of the disposition of the appeal or

upon remand. 2011 ME 34 <_[ 11.

Prevailing Parties

Re-evaluating the "prevailing party" issue in light of (1) the result of the original

trial, (2) the Law Court's decision on appeal, and (3) the limited issue resolved on

remand, the court concludes as follows:
1. As between defendants Muther and Woods and the third party defendants,

the third party defendants were the prevailing parties in the original

proceeding, and that judgment- that they were not liable for indemnification,

fraud, or implied warranty of authority- was upheld on appeal. As far as the

court is aware, however, the third party defendants never filed a bill of costs.

2. As between plaintiff J-Lot owners and defendants Muther and Woods, the J-

Lot owners ultimately prevailed on the following issues: (1) whether J-Lot

owners were bound by the November 2006 settlement agreement between

defendants Muther and Woods and the Broad Cove Shore Association, (2)

whether the easement could be used for general recreational use, (3) whether

use of the easement should be limited to daylight hours, (4) whether J-Lot

owners had to accompany their family members and guests in order for the

latter to use the easement, (5) whether surveillance cameras would be

permitted, and (6) whether the easement would be overburdened unless

activity in the intertidal zone were limited to fishing, fowling, and navigation.

3. As between plaintiff J-Lot owners and defendants Muther and Woods,

defendants Muther and Woods prevailed in the original proceeding on the

following issues: (1) the J-Lot owners' claim to prescriptive rights over upland

belonging to Muther and Woods and (2) the issue of whether the easement

would be overburdened if used to access the upland belonging to William

Holt. On appeal defendants Muther and Woods prevailed on another issue:

(3) the access gate.

4. On the only other litigated issue (whether Muther and Woods owned only to

the top of the bank or whether they owned the intertidal zone), neither set of

parties prevailed because the trial court determined that the boundary was

2
the mean high water line, partway between the position taken by the J-Lot

owners and the position taken by Woods and Muther.

5. Based on the above, the court determines that as between the J-Lot owners

and defendants Muther and Woods, the J-Lot owners are the prevailing

parties and are therefore entitled to costs.

Further Proceedings

1. A review of the file reveals that plaintiffs Pierce, Colpitts, House, Meagher,

and York (the J-Lot owners represented by Stephen Bither Esq.) filed a bill of

costs for $ 10,087.78 and also filed a motion for attorneys fees and costs under

Rule 37(c) based on Muther and Woods's failure to admit certain matters in

response to a request for admissions directed to Muther and Woods under

Rule 36.

2. Muther and Woods opposed certain items in the bill of costs and asked for a

hearing on those items. Muther and Woods also opposed the motion for costs

and attorneys fees under Rule 37(c).

3. Justice Crowley did not hold a hearing but considered the bill of costs and the

objections thereto and issued an order on March 16, 2010 awarding costs in

the amount of $ 7,045.70. This represented a reduction of more than $3,000 to

the award of costs sought by the J-Lot owners.

4. Justice Crowley also considered the J-Lot owners' motion pursuant to Rule

37(c) and the objections filed thereto and on March 16, 2010 issued another

order awarding attorney fees as to certain of the denials made in response to

the request for admissions and denying fees as to other denials. That order

established a schedule under which the J-Lot owners were to submit

3
affidavits supporting the attorney fees they were requesting and Muther and

Woods were to submit any objections to the fee request.

5. Thereafter, affidavits and pleadings were submitted on the issue of attorney

fees, and on June 24, 2010 Justice Crowley issued an order awarding $16,440

in attorney fees to the J-Lot owners pursuant to Rule 37(c).

6. The Law Court concluded that because an appeal was pending, Justice

Crowley lacked jurisdiction to act on the J-Lot owners' bill of costs, although

he did have jurisdiction to act on the request for attorney fees under Rule

37(c). 2011 ME 32 <J[ 90; 2011 ME 34 <J[ 8. In light of the remands, however, both

of those determinations must be revisited.

7. Within 14 days of the date of this order any parties who wish to be heard on

these issues shall file letters or pleadings settling forth their positions on the

issue of costs and Rule 37( c) attorney fees. Those shall include their positions

on the following issues: (a) whether any new or supplemental applications for

costs would be timely or warranted at this stage, (b) whether any further

submissions or proceedings are necessary on the issue of costs and Rule 37(c)

attorney fees or whether the court can make those determinations based on

the previously filed submissions and the existing record, and (c) whether and

to what extent they contend that the factual basis upon which Justice Crowley

made the Rule 37(c) award has changed in light of the Law Court's decision

in 2011 ME 32 or the proceedings on remand. Any party that contends that

this court has misunderstood the procedural history set forth above with

respect to costs should raise that issue in its submission.

4
The entry shall be:

The J-Lot owners are determined to be the prevailing parties for purposes of the
award of costs. Procedural order entered with respect to the issue of costs and Rule
37(c) attorney fees. The Clerk is directed to incorporate this order in the docket by
reference pursuant to Rule 79(a).

Dated: May Jc) , 2012

Thomas D. Warren
Justice, Superior Court

5
ROBERT FLAHERTY VS HELEN MUTHER
CASE#: PORSC-RE-2008-00098

SELVD REPRESENTATION TYPE DATE

01003911 ATTORNEY: BITHER, STEPHEN D
ADDR: 23 AMHERST STREET PO BOX 6762 PORTLAND ME 04103
FOR: JACQUELINE PIERCE PL RTND 04/22/2008
FOR: RUSSELL PIERCE PL RTND 04/22/2008
FOR: SUSAN HOUSE 3RD P DEF RTND 07/01/2008
FOR: DAVID HOUSE 3RD P DEF RTND 07/01/2008
FOR: NIAMH COLPITTS PL RTND 04/22/2008
FOR: DAVID MEAGHER 3RD P DEF RTND 07/01/2008
FOR: ELLEN MEAGHER 3RD P DEF RTND 07/01/2008
FOR: PAULETTE YORK PL RTND 04/22/2008
FOR: TODD COLPITTS PL RTND 04/22/2008

02 002982 ATTORNEY: KANY, WILLIAM
ADDR: 50 INDUSTRIAL PARK ROAD SACO ME 04072
FOR: PETER CONNOLLY 3RD P DEF RTND 07/07/2008

03 007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET PO BOX 258 AUGUSTA ME 04332-0258
FOR: HELEN MUTHER DEF RTND 04/23/2008
FOR: BUFFET COASTAL TRUST DEF RTND 04/23/2008
FOR: PAUL WOODS DEF RTND 04/23/2008

04 001027 ATTORNEY: MCNABOE, THOMAS R
ADDR: 13 SEA COVE ROAD CUMBERLAND ME 04110
FOR: MARY ARNOLD PL RTND 04/22/2008
FOR: JOSEPH COTTER PL RTND 04/22/2008
FOR: BARBARA COTTER PL RTND 04/22/2008
FOR: ROBERT FLAHERTY PL RTND 04/22/2008

05 002691 ATTORNEY: PARKINSON, DURWARD
ADDR: 2 PORTLAND RD, KENNEBUNK ME 04043
FOR: BETH ELLEN HESS 3RD P DEF RTND 07/03/2008
FOR: ROBERT HESS, JR 3RD P DEF RTND 12/03/2008

06 003649 ATTORNEY: SPARKS, ANDREW
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
FOR: 2005 BROAD COVER SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: MERGED BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: NEW BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
07 009291 ATTORNEY: FRAME, GREGG R
ADDR: 30 MILK STREET 5TH FLOOR PORTLAND ME 04101
FOR: JAMES L MOODY, JR 3RD P DEF RTND 07/21/2008
FOR: NORMAN WULF (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: NANCY WULF 3RD P DEF RTND 07/21/2008
FOR: ELIZABETH MCGRATH 3RD P DEF RTND 07/21/2008
FOR: STEPHEN MCGRATH 3RD P DEF RTND 07/21/2008
FOR: ROBERT HESS, JR 3RD P DEF RTND 07/21/2008
FOR: PATRICIA CAMPBELL 3RD P DEF RTND 07/21/2008
FOR: MELANIE STEWART 3RD P DEF RTND 07/21/2008
FOR: PAUL STEWART 3RD P DEF RTND 07/21/2008
FOR: ALISON PERKINS (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: MARJORIE MOODY 3RD P DEF RTND 07/21/2008

08 009353 ATTORNEY: BILLINGS, JAMES A
ADDR: 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051
FOR: PAUL WOODS DEF RTND 11/05/2008

09 009872 ATTORNEY: DUCHETTE, ANDRE G
ADDR: 30 MILK STREET 5TH FLOOR PORTLAND ME 04101
FOR: ALISON PERKINS (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: ELIZABETH MCGRATH 3RD P DEF RTND 07/21/2008
FOR: 1962 BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: 2005 BROAD COVER SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: NEW BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: MERGED BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008

10 004209 ATTORNEY: HADIARIS, JOSHUA D
ADDR: 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600
FOR: PETER CONNOLLY 3RD P DEF RTND 01/15/2009
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
]?.cket ~o. RE-~-9&.
: . ) i,{ ; -
~ _,.,. ,· ~· \
: (I.A -
J.-'. II\
7 '.;,(',! 2 0 I 2
I
• I

ROBERT FLAHERTY, et al,

Plaintiffs

v. ORDER

HELEN MUTHER, et al,

Defendants

In Flaherty v. Muther, 2011 ME 32 <]I72, 17 A.3d 640, the Law Court remanded an

issue involving the reasonableness of certain video surveillance cameras that had been

placed by defendants Helen Muther and Paul Woods on a right-of-way that provides

access to Secret Beach in Cape Elizabeth. The court's order resolving that issue and

entering final judgment was signed on May 7 and docketed on May 9, 2012. 1

In a subsequent order, signed and docketed on May 10, 2012, the court

concluded that the J-Lot owners were the prevailing parties and directed the parties to

file further submissions on the issue of costs and Rule 37(c) attorneys fees within 14

days.

On May 21, 2012 defendants Muther and Woods moved pursuant to M.R.Civ.P.

52 for amended and additional findings of fact. That motion was denied on May 23,

2012.

1
The order in question was dated and signed on May 7, was stamped as received by the clerk's
office on May 8, and docketed on May 9.
On June 12, 2012 Muther and Woods filed a notice of appeal from the court's

order docketed on May 9?

Under the Law Court's prior decision in this case, this court does not have

jurisdiction to act on the issue of costs while an appeal is pending. 2011 ME 32 <]I 90.

Moreover, although it would have jurisdiction to act with respect to Rule 37(c) attorney

fees, see Flaherty v. Muther ("Flaherty v. Muther II"), 2011 ME 34 <]I 8, prudence would

dictate that all further proceedings on Rule 37(c) attorneys fees should await the

outcome of the appeal as well.

The entry shall be:

The court is without jurisdiction to act on the issue of costs and will defer the
issue of Rule 37(c) attorneys fees to await the outcome of the appeal. The Clerk is
directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: July II 2012

~
Thomas D. Warren
Justice, Superior Court

2
In the meantime both counsel for certain J-Lot owners and counsel for Muther and Woods had
filed submissions on the issue of costs and Rule 37(c) attorneys fees. Those submissions on costs
took issue in varying degrees with the court's May 10 order, and Muther and Woods also
sought to revive their request for costs against the State of Maine as intervenor.

2
ROBERT FLAHERTY VS HELEN MUTHER
CASE#: PORSC-RE-2008-00098

SELVD REPRESENTATION TYPE DATE

01003911 ATTORNEY: BITHER, STEPHEN D
ADDR: 23 AMHERST STREET PO BOX 6762 PORTLAND ME 04103
FOR: JACQUELINE PIERCE PL RTND 04/22/2008
FOR: RUSSELL PIERCE PL RTND 04/22/2008
FOR: SUSAN HOUSE 3RD P DEF RTND 07/01/2008
FOR: DAVID HOUSE 3RD P DEF RTND 07/01/2008
FOR: NIAMH COLPITTS PL RTND 04/22/2008
FOR: DAVID MEAGHER 3RD P DEF RTND 07/01/2008
FOR: ELLEN MEAGHER 3RD P DEF RTND 07/01/2008
FOR: PAULETTE YORK PL R TND 04/22/2008
FOR: TODD COLPITTS PL RTND 04/22/2008

02 002982 ATTORNEY: KANY, WILLIAM
ADDR: 50 INDUSTRIAL PARK ROAD SACO ME 04072
FOR: PETER CONNOLLY 3RD P DEF RTND 07/07/2008

03 007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET PO BOX 258 AUGUSTA ME 04332-0258
FOR: HELEN MUTHER DEF RTND 04/23/2008
FOR: BUFFET COASTAL TRUST DEF RTND 04/23/2008
FOR: PAUL WOODS DEF RTND 04/23/2008

04 001027 ATTORNEY: MCNABOE, THOMAS R
AD DR: 13 SEA COVE ROAD CUMBERLAND ME 04110
FOR: MARY ARNOLD PL RTND 04/22/2008
FOR: JOSEPH COTTER PL RTND 04/22/2008
FOR: BARBARA COTTER PL RTND 04/22/2008
FOR: ROBERT FLAHERTY PL RTND 04/22/2008

05 002691 ATTORNEY: PARKINSON, DURWARD
ADDR: 2 PORTLAND RD, KENNEBUNK ME 04043
FOR: BETH ELLEN HESS 3RD P DEF RTND 07/03/2008
FOR: ROBERT HESS, JR 3RD P DEF RTND 12/03/2008

06 003649 ATTORNEY: SPARKS, ANDREW
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
FOR: 2005 BROAD COVER SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: MERGED BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: NEW BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
07 009291 ATTORNEY: FRAME, GREGG R
ADDR: 30 MILK STREET 5TH FLOOR PORTLAND ME 04101
FOR: JAMES L MOODY, JR 3RD P DEF RTND 07/21/2008
FOR: NORMAN WULF (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: NANCY WULF 3RD P DEF RTND 07/21/2008
FOR: ELIZABETH MCGRATH 3RD P DEF RTND 07/21/2008
FOR: STEPHEN MCGRATH 3RD P DEF RTND 07/21/2008
FOR: ROBERT HESS, JR 3RD P DEF RTND 07/21/2008
FOR: PATRICIA CAMPBELL 3RD P DEF RTND 07/21/2008
FOR: MELANIE STEWART 3RD P DEF RTND 07/21/2008
FOR: PAUL STEWART 3RD P DEF RTND 07/2112008
FOR: ALISON PERKINS (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: MARJORIE MOODY 3RD P DEF RTND 07/21/2008

08 009353 ATTORNEY: BILLINGS, JAMES A
ADDR: 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051
FOR: PAUL WOODS DEF RTND 11/05/2008

09 009872 ATTORNEY: DUCHETTE, ANDRE G
ADDR: 30 MILK STREET 5TH FLOOR PORTLAND ME 04101
FOR: ALISON PERKINS (TRUSTEE) 3RD P DEF RTND 07/21/2008
FOR: ELIZABETH MCGRATH 3RD P DEF RTND 07/21/2008
FOR: 1962 BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: 2005 BROAD COVER SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: NEW BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008
FOR: MERGED BROAD COVE SHORE ASSOC. 3RD P DEF RTND 06/25/2008

10 004209 ATTORNEY: HADIARIS, JOSHUA D
ADDR: 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600
FOR: PETER CONNOLLY 3RD P DEF RTND 01/15/2009
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. CIVIL ACTION
DOCKET NO. ~-~~-98
'c).Of3
1
E"H -culY)-1~~ :ATEOFMAINE
, ~&, Clerk's Office
ROBERT FLAHERTY, ET AL,
NOV 2 0 2013
Plaintiffs

v. ORDER ON BILL OF COSTS
RECEIVED
HELEN MUTHER, ET AL,

Defendants

The court is presented with the Bill of Costs submitted by Defendants/Third-Party

Plaintiffs Helen Muther and Paul Woods against Intervenor State of Maine. The court will not

reprise in detail the many well-chronicled layers of the underlying disputes first begun in 2005

other than as may inform issues related to the Bill of Costs.

BACKGROUND

Since 2005, Muther and Woods have been involved in extensive litigation concerning a

right-of-way and easement rights with respect to a parcel of coastal real property owned by them,

individually and as trustees of the Buffett Coastal Trust, in Cape Elizabeth, Maine. 1

In 2008, the owners of 18 neighboring lots ("J-Lot owners") and the Broad Cove Shore

Association brought an action against Muther and Woods. In turn, Muther and Woods filed

counterclaims and a third-party complaint against all of the J-Lot owners and the Association.

In November 2005, Muther and Woods brought an action against a homeowners association and two
individuals concerning disputed rights to easement areas on Muther and Woods's property. In the course
of the lawsuit, the parties entered into a settlement agreement that, in tum, generated yet another dispute.
As a result, Muther and Woods amended their complaint seeking to enforce the settlement agreement and
to clarify the scope of the easements on their property. On appeal, the Law Court upheld the settlement
agreement. Muther v. Broad Cove Shore Ass 'n, 2009 ME 37, 968 A.2d 539.

1
The case centered on the easement and prescriptive rights affecting Muther and Woods's

property. 2 Flaherty v. Muther, 2011 ME 32, 17 A.3d 640.

On December 2, 2008, the State of Maine was allowed to intervene for the limited

purpose of protecting "the public trust rights in the intertidal land" in front of Muther and

Woods's property. Flaherty, 2011 ME 32, ~~ 20 & 86, 17 A.3d 640. On May 26,2009, the

State filed a motion to amend its "pleadings" 3 by adding a "counterclaim" in the nature of a

declaratory judgment seeking a determination of the prescriptive rights of the J-Lot owners and

the public in that intertidal area. In its motion to amend, the State articulated its limited purpose

for wanting to be part of this case,

[T]he State intervened in this matter to preserve and be heard upon the public trust
issues [referenced in Muther and Woods's Counterclaims and Third-Party
Complaint], to the extent they may be reached, and has not conducted or been
involved in the discovery process.

(State's Mot. For Leave To Amend 2 (May 21, 2009).) Muther and Woods objected to the

State's intervention.

The State's motion was granted on June 23, 2009. 4 At the heart of it, the State urged the

court to declare that, under the Maine Public Trust Doctrine, the public, including the J-Lot

owners, have the right to use the intertidal land for general recreational purposes not limited to

2
Although this 2008 case was not part of the first action filed in 2005, it was for all intents and
purposes a new chapter in the continuing disputes concerning the easement rights affecting Muther and
Woods's property. The 2008 case included various counterclaims, cross-claims and third-party claims,
which, in turn, have spawned several Law Court decisions. Flaherty, 2011 ME 32, 17 A .3d 640; Muther
v. Broad Cove Shore Association, 2011 ME 33, 25 A.3d 965; and Flaherty v. Muther, 2013 ME 39, 65
A.3d 1209.

Technically, the State had not filed a pleading that could be amended. A review of the court's file
reflects that the State had only filed a motion to intervene and an accompanying statement of facts.
4
As noted, the pleading filed by the State pursuant to the Court's granting of its motion to amend was
styled a "counterclaim". While this may have been intended as a counterclaim to Plaintiff Robert
Flaherty's complaint, it was more likely directed to Muther and Woods's Counterclaim and/or their
Third-Party Complaint, both of which included references to the intertidal zone in front ofMuther and
Woods's property. In any event, no party filed a responsive pleading to the State's counterclaim.

2
fishing, fowling and navigation. Muther and Woods did not file an answer or objection directed

to the State's counterclaim; rather, they filed a statement of facts in response to the State's

statement of facts.

The trial court held a non-jury trial from July 14, 2009 through July 23, 2009, regarding

some but not all of the parties' various claims, counterclaims, cross-claims and third-party

claims. On July 30, 2009, the court issued its findings and judgment. Flaherty v. Muther,

CUMSC-RE-08-98 (Me. Super. Ct., Cumb. Cty., July 30, 2009) ("July 30, 2009 Judgment"). In

this phase of the case, the court first disposed of the disputes among the private parties. It then

separately addressed the State's issue of"whether J-Lot owners have rights to recreate in the

intertidal zone under Maine's Public Trust Doctrine." July 30, 2009 Judgment at 25. Muther

and Woods had argued that the court should not decide the public trust claim because the State

failed to join an indispensible party- to wit, the actual owner of the intertidal land in question.

!d. The trial court rejected Muther and Woods's argument, !d., and also "rejected the State's

claim to expand the public trust rights in intertidal lands to include general recreational uses."

Flaherty, 2011 ME 32, ~ 26, 17 A.3d 640.

The parties filed various appeals and cross-appeals to the Law Court that included,

among other things, the State's cross-appeal from the trial court's determination "that the

public's rights to use the intertidal land in front ofMuther and Woods's property are limited to

fishing, fowling, and navigation." Flaherty, 2011 ME 32, ~ 2, 17 A.3d 640.

Addressing the State's cross-appeal, the Law Court frrst observed that Woods and Muther

did not hold title to the intertidal land in question and that the owner had not been joined as a

party in the litigation. Flaherty, 2011 ME 32, ~ 88, 17 A.3d 640. However, the Law Court did

not cast this as a failure by the State, alone, to join an indispensible party. Rather, it noted that

3
"the parties did not join the owner of the intertidal land as a party to this action. !d. (emphasis

added) 5

The Law Court also affirmed the trial court's judgment that "the J-Lot owners may use

the easement [on Muther and Woods's property] to access the intertidal land for general

recreational purposes" because the owner of intertidal zone land gave them that right. !d.

(emphasis added). From that premise, the Law Court reasoned that "a [separate] determination of

whether the public may use the intertidal land for general recreation will not affect the J-Lot

owners permitted use of the easement." !d. Thus, the Law Court did not need to reach the

State's public trust claim because, as the court concluded, Muther and Woods did not have an

interest in contesting that claim and there was no justiciable controversy. !d.

On January 10, 2010, while the appeals and cross-appeals were pending, Muther and

Woods filed the Bill of Costs that is the subject ofthis order. (Muther & Woods' Bill of Costs,

Jan. 7, 2010.) The Bill of Costs is purportedly directed to all ofthe parties in the action, but does

not specifically refer to the State or its claim. All issues, including the matter of costs as between

Woods and Muther and the J-Lot owners and the Broad Cove Shore Association have been

resolved. The only issue now remaining in this case is Muther and Woods's Bill of Costs insofar

as it applies to the State.

While this is accurate, it is also the case that the trial court neither accepted Muther and Woods's
argument that the owner of the intertidal area in question should have been joined as an indispensible
party, nor ordered such joinder. See M.R. Civ. P. 19(a) ("If the person has not been so joined, the court
shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the
person may be made a defendant.")

It is interesting to note that in one foreclosure appeal, the Law Court vacated the trial court's decision
and remanded for the joinder of a necessary party. OCWEN Federal Bank, FSB v. Gile, 2001 ME 120, ~1
("Because the Town is a necessary party to determination of its ownership interest in the property, we
vacate and remand to join the Town as a party so that it may participate fully in the trial court
proceedings.") It may be a distinguishing fact that in OCWEN, the Town was aware of the foreclosure
lawsuit from its inception. There is no indication in the instant case whether the owner of the intertidal
land in front ofMuther and Woods's property knew of this litigation.

4
DISCUSSION

The Maine Rules of Civil Procedure provide that "[ c]osts shall be allowed as of course to

the prevailing party, as provided by statute and by these rules, unless the court otherwise

specifically directs." M.R. Civ. P. 54(d). To determine whether a party has prevailed, the court

applies a "functional analysis, rather than a mechanical application of [the rule governing costs]"

and "must look at the lawsuit as a whole to determine which party was the 'winner' and which

the 'loser."' Dodge v. United Serv.s Auto. Ass'n., 417 A.2d 969, 974-75 (Me. 1980) (citation

omitted); see also Landis v. Hannaford Bros. Co., 2000 ME 111, ~ 6, 754 A.2d 958, 959.

Woods and Muther argue that they should be awarded costs against the State because the

State did not prevail in this case and, in particular, because Muther and Woods successfully kept

the so-called "Secret Beach" private despite the efforts of the State. However, the Law Court did

not reach the issue of whether Secret Beach is or should remain private. As noted, the Law Court

concluded and correctly declared that

Although Muther and Woods may still challenge uses of the intertidal land of
Secret Beach to the extent that those uses overburden the easement [on their
property], because we affirm the court's judgment declaring that the J-Lot owners
may use the easement to access the intertidal zone for general recreational
purposes, a determination of whether the public may use the intertidal land for
general recreation will not affect the J-Lot owners' permitted use of the easement.
As a result, Muther and Woods no longer have 'an interest in contesting the
[State's] claim.' Absent a justiciable controversy, we lack authority to address
this issue.

Flaherty, 2011 ME 32, ~ 88, citations omitted. In the absence of an indispensible party- to wit,

the owner of the intertidal land - the Law Court held that it did not have jurisdiction over the

issue and, by implication, neither did the Superior Court. See M.R. Civ. P. 19(b).

Viewing the entirety of this litigation and its subparts, the court cannot conclude that, as

to the claims between Muther and Woods and the State, either party prevailed over the other.

5
First, as to the general recreational rights of the J-Lot owners in the intertidal area in front of

Muther and Woods property, while the State's position was certainly aligned with the successful

claim of the J-Lot owners, it is more than a little difficult to view the State as the prevailing party

on that issue for the purpose of Rule 54( d). And second, as to the State's public trust claim, since

the court did not have jurisdiction to hear and decide that issue, a circumstance not specifically

attributed to one party or the other, there is no prevailing party. And, because neither party

prevailed, there can be no award of costs. See M.R. Civ. P. 54(d); 14 M.R.S. 1501 (2013).

CONCLUSION

Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to incorporate this order into the

docket by reference and the entry is

Muther and Woods's Bill of Costs as to the State of Maine is not allowed and the Motion
for Costs is DENIED.

Dated: November 20,2013

Maine Superior Court

6
007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET AUGUSTA ME 04330
FOR: HELEN MUTHER DEF RTND 04/23/2008
FOR: PAUL WOODS DEF RTND 04/23/2008
FOR: BUFFET COASTAL TRUST DEF RTND 04/23/2008

002310 ATTORNEY: STERN, PAUL
ADDR: 6 STATE HOUSE STATION AUGUSTA ME 04333-0006
FOR:STATE OF MAINE INTRV RTND 10115/2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809278. Public record. Not legal advice.