Haskell v. Hastings

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

DOC,KET NO: CV -O,?-68CY

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MICHAEL J. HASKELL,

JOSEPH M. BROWN, and

SEBAGO GRAVEL PIT, LLC

Plaintiffs,

ORDER ON DEFENDANTS'

v. PARTIAL MOTION TO DISMISS

ANN E. HASTINGS and

THE ANN E. HASTINGS LAW

OFFICE, P.A.

STATE OF M/\!NE

Defendants Cumberland, Sf.', Clerk's omce

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Pl<:lintiffs Michael J. Haskell, Joseph M. Brown, and Sebago Gravel Pit,

LLC filed this action against defendants Ann E. Hastings and the Ann E.

Hastings Law Office, P.A., to recover for professional negligence, breaches of

fiduciary duty, and negligent infliction of emotional distress. The defendants

argue that the six-year statute of limitations bars all claims arising from acts or

omissions occurring prior to December 30, 2003.

BACKGROUND

Plaintiffs Michael J. Haskell, Joseph M. Brown, and Sebago Gravel Pit,

LLC own property on the western shore of Lake Sebago. (Pl.'s CompI. lJICf[ 1-4.)

They had operated the land as a gravel pit, but the land is now unproductive

because the plaintiffs have no legal way to access the property from the public

road due to the alleged negligence of defendants Ann E. Hastings and the Ann E.

H<:lstings Law Office, P.A. (PI.'s CompI. err 1.) A gap of 48.41 feet currently lies

between the pl<lintiffs' property and Route 114, occupied by a pond and the

1

submerged land of Arthur C. and Emma L. Shute. (PI.'s CampI. <][ 60.) The Shutes

also hold flowage mill rights to the high-water mark of the pond and the

Northwest River that feeds it. (Pl.'s CampI. <][ 59.)

In 1960 Harold and Muriel Butler, the plaintiffs' predecessors in interest,

owned the plaintiffs' land. (PI.'s CampI. <][ 12.) The Butlers were bounded on the

north by the property of Byron Pride, and to the west by the property of Lewis

Lumber Co. (Pl.'s CampI. ~[9r 10, 12.) In 1960 the Shutes purchased Lewis Lumber

CO.'s land together with certain pond lots, mill buildings, a mill dam, mill

privileges, and all rights to the pond and the Northwest River. (Pl.'s Compl.

9I9[ 10-11.) In 1968, Arthur and Anita Crowe purchased the land of Byron Pride,

excepting a twelve-foot right-of-way in favor of the Butlers to be held by them

"appurtenant to their said land." (Pl.'sCampI. <][ 12.)

In that same year, 1968, the State of Maine took over 4.4 acres of the

Shutes' land to construct the current Route 114. (PI.'s CampI. <][ 13.) The taking

diagonally bisected the Shutes' land from the southwest to the northeast, and

was depicted on a map recorded in the Cumberland County Registry of Deeds.

(Pl.'s CampI. crr 13.) In 1969 the Legislature passed a resolution granting the

Shutes flowage rights adjacent to their mill privilege, recognizing that the Shutes

intended to reconstruct an old dam and flood their land to the elevation of 299

feet, and granting them flowage privileges over part of the highway right-of-way

to facilitate their goal. (Pl.'s Compl. <][ 14.) After the taking and resolution, the

Shutes owned land and flowage rights between the Route 114 right-of-way and

the property of Harold and Muriel Butler. (Pl.'sCampI. <j[ 15.)

The plaintiffs purchased the Butlers' land in June of 1998. (Pl.'sCampI.

9I 17.) Defendant Hastings, who had begun handling the plaintiffs' legal work in

2

the early 1990s, represented the plaintiffs in this purchase and performed the

necessary title work. (PI.'s CampI. errerr 16-17.) The plaintiffs began to operate a

gravel pit on the property, using an entry road that passed over Mr. Crowe's

I

property to access Route 114. (PI.'s CampI. err 18.) Mr. Crowe quickly contacted

Ms. Hastings to accuse the plaintiffs of trespassing and provide notice of a

boundary dispute. (PI.'s CampI. err 19.)

In October 1999 Mr. Crowe's attorney informed Ms. Hastings that the

plaintiffs did not have a deeded right-of-way. (PI.'s CampI. err 20.) On November

9, 1999, Ms. Hastings responded with a letter asserting that a right-of-way had

been reserved and that even without a deed the plaintiffs had established a right-

of-way by "usage." (Plo's Compl. errerr 2lA-B.) She proposed a twelve-month

standstill agreement so that she and the plaintiffs could explore alternative

means of accessing the property. (Pl.' s CompI. err 21 B.) She also referred to the

Maine Highway Commission's map of its takings, recorded in 1968, which

depicts a right-of-way in the plaintiffs over Mr. Crowe's land. (Pl.'sCampI.

1

err 21e.) The map also depicts the Shutes' interest in the area around Route 114.

(Pl.' s CampI. err 21 C.)

In 1999 Mr. Crowe filed sui t against the plaintiffs, whom Ms. Hastings

continued to represent. (Pl.'s CampI. 1~122-23.) Surveys performed during the

course of discovery indicated that the precise boundaries of the plaintiffs'

property were impossible to define accurately, but also noted the Shu tes' mill

privilege encumbering the banks of the pond and river. (PI.'s Compl. err 31, Ex. K

at 7-8, 11, 13, 17.) The parties ultimately reached a settlement whereby Mr.

I The plaintiffs have not included an intact copy of the entire map, making it

impossible to evaluate their assertion that the map made the ownership interests

" clear."

3

Crowe would give the plaintiffs a triangular piece of land that would extend

their holdings to the northwest in exchange for a similC1f piece of land to the

southeast. (PI.'s CompI. 919133-34.) The plaintiffs understood that this exchange

would give them the opportunity to connect their lot to Route 114 by

constructing an alternative access road across the pond. (Pl.'s CompI. 'IT 33.)

On November 22,2000, Ms. Hastings read the settlement agreement to a

court reporter, whereby the plaintiffs would continue to use the existing access

for three and one-half years, at which time they would release their claims to that

access and begin using an alternative route. (PI.'s Compl. 9134.) On December 15,

2000, the Superior Court entered an order by agreement, allegedly prompting

Ms. Hastings to tell her clients that "she had gotten them access to Route 114"

and "'it's now all on you guys' to get regulatory approval." (PI.'s CompI. 'IT 34A.)

She continued to work on executing the settlement, and the parties

exchanged documents and dismissed the lawsuit on September 6, 2001. (PI.'s

Compl. 'IT 38.) These documents included a licensing agreement recorded on

Septem ber 5, 2001, giving the plaintiffs access over Mr. Crowe's road until the

earlier of May 17, 2004 or the establishment of an alternative access route. (PI.'s

CampI. 91 39.) The plaintiffs allege that Ms. Hastings specifically advised them

that they would have "all right title and interest in the property to access Route

114 over the flood plain known as Mill Pond" and led them to believe "that they

would have title to the land under Mill Pond." (PI.'s Compl. 'IT 40.)

Ms. Hastings continued to represent the plaintiffs in other matters

following the settlement with Mr. Crowe. (PI's CompI. 'IT 43.) Tn 2003 the

plaintiffs began to proceed with the planning and engineering of the new access

they intended to construct across the pond to Route 114. (P1.'s CompI. ~[44.) Ms.

4

Hastings began to perform legal work related to the road in 2004, and by March

2004 the plaintiffs had received the required permits from the Maine Department

of Transportation and the Department of Environmental Protection. (PI.'s Compi.

C[<JI 45-46.) The plaintiffs continued to expend funds on planning and permitting

until September 20, 2004, when the Shutes wrote to the Department of

Environmental Protection to object to the road and assert their mill privilege and

flowage rights. (PI.'s CompI. C[C[ 49-51.)

The plaintiffs brought an action against the Shutes in October 2004, having

no recourse against Mr. Crowe following the earlier settlement,2 (Pl.' s Compl.

C[<JT 52, 60.) Ms. Hastings continued to work on the access issue as well as other

legal matters through 2005 and into 2006. (PI.'s Compi. <[<[ 65-66.) She was

unable to resolve the issue of access, however, and the Sebago Planning Board

indicated that the plaintiffs lacked standing to apply for site plan review of the

proposed access road because they had no authority to build across the pond.

(PI.'s CompI. 9I<JT 60-64.)

In May 2006 Ms. Hastings suggested that the plaintiffs employ another

attorney to represent them in matters related to the landlocked property. (PI.'s

CompI. CJ[<[ 68-69.) She introduced the plaintiffs to Attorney James Levis and

began to consult with him on ways to challenge Mr. Crowe or the Shutes. (PI.'s

CompI. <[9[67-72.) This collaboration continued until approximately September

28, 2006, around which time plaintiff Brown expressed his displeasure with Ms.

Hastings's representation and apparently terminated their relationship. (PI.'s

Compi. <[ 72.) Ms. Hastings never informed the plaintiffs that they might have a

claim against her for malpractice. (PI.'s Compi. <[ 88.)

2The action against the Shutes appears unresolved. (See PI.'s CompI. err 70.)

5

On December 31, 2009, the plaintiffs filed their complaint against Ms.

Hastings and her law office alleging professional negligence, breaches of

fiduciary duty, and negligent infliction of emotional distress arising from her

work on the Sebago property and the 2001 settlement with Mr. Crowe. The

defendants answered on February 18, 2010, and filed this partial motion to

dismiss on April 20, 2010.:1 Ms. Hastings contends that any of the plaintiffs'

claims based on acts or omissions prior to December 30, 2003, are barred by the

six-year statute of limitations applicable to legal malpractice.4 14 M.R.S. §§ 752,

753-B (2009). This would include all claims arising from the litigation with Mr.

Crowe and the negotia tion of the 2001 settlement agreement.

DISCUSSION

On a motion to dismiss, the court examines "the complaint in the light

most favorable to the plaintiff to determine whether it sets forth elements of a

cause of action or alleges facts that would entitle the plaintiff to relief pursuant to

some legal theory." Heber v. Lucerne-in-Maine Village Corp., 2000 ME 137, <j[ 7, 755

A.2d 1064, 1066 (quoting McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994)). Maine

imposes a six-year statute of limitations on actions for legal malpractice. 14

M.R.S. § 752. In 1986 the Legislature clari fied that the limitations period "starts to

run from the date of the act or omission giving rise to the injury, not from the

discovery of the malpractice, negligence or breach of contract, except as provided

:IExtraneous documents included with the motion to dismiss have not been

considered.

4 While both parties vaguely acknowledge that actionable acts of malpractice

may have occurred after December 30, 2003, the specific allegations of negligence

go to the negotiation of the 2001 settlement with Mr. Crowe. The lack of

discreetly-identified acts or omissions effectively transforms this motion to

dismiss into a motion for decl aratory judgment.

6

in this section or as the statute of limitations may be suspended by other laws."s

L.D. 2400, § 2 (112th Legis. 1986) (codified at 14 M.R.S. § 753-B). Exceptions were

made for actions arising from the "rendering of a real estate ti tIe opinion" or

from "the drafting of a last will and testament that has been offered for probate";

the statute of limitations begins to run upon discovery of the negligence for these

actions only. 14 M.R.S. § 753-B.

The plaintiffs offer a number of arguments as to why the statute of

limitations should not bar their claims that arise from acts or omissions predating

Decem ber 30, 2003. Two of these arguments are based on novel interpretations of

the statutory text. First, the plaintiffs argue that their cause of action did not

accrue until they were injured by the Shutes assertion of right against them in

September 2004. Generally, a tort cause of action accrues when "a wrongful act

produces an injury for which a potential plaintiff is entitled to seek judicial

vindication." Bozzl/tto v. Ouellette, 408 A.2d 697, 699 (Me. 1979) (quoting Williams

v. Ford Motor Co., 342 A.2d 712, 714 (Me. 1975)) (quotations omitted). However, in

the realm of legal malpractice 14 M.R.S. § 753-B "provides that the statute of

limitations begins to run 'from the date of the act or omission giving rise to the

injury,' except in specifically enumerated instances ...." White v. McTeaglle,

Higbee, Case, Colien, Wllitney ['1' Taker, P.A., 2002 ME 160, <[ 7, 809 A.2d 622, 623

(quoting section 753-B). The negligence triggers the statute rather than the

eventual injury.

In tll/ltite, the defendant had represented the plaintiff in a workers'

compensation issue between December 1986 and January 1987. fd. 12, 809 A.2d

SThis amendment to the statute of limitations for legal malpractice was enacted

as part of the same Bill that eliminated the discovery rule in actions for medical

malpractice.

7

at 623. The defendant failed to inform the plaintiff of a ten-year statute of

limitations on workers' compensation claims, and by 1998 the plaintiff was

precluded from making additional claims on his original injury.fd. <JI 3, 809 A.2d

at 623. When the plaintiff attempted to claim workers' compensation for a 2001

knee-replacement surgery, the claim was denied as untimely.fd. <JI 4, 809 A.2d at

623. The Law Court affirmed the trial court's determination that the "act or

omission giving rise to the injury" occurred in 1986-1987, and not in 1998 when

the plaintiff lost his ability to claim benefits. fd. <j[ 9, 809 A.2d at 624. The Court

noted that the statute was clear and it had "no authority to depart from [the]

policy of repose mandated by the Legislature." fd. <JI 8, 809 A.2d at 624. From

Wllite, it is clear that courts should examine an attorney's individual acts or

omissions when applying the stahlte of limitations, rather than the eventual

harms that might arise. fd.; see Nevin v. Union Trust Co., 1999 ME 47, <j[ 33, 726

A.2d 694, 700 (statute of limitations must be narrowly construed, and drafting of

will was separate from ongoing negligent management of testamentary

corporation).

The plaintiffs in this case claim that Ms. Hastings' negligent

representation injured them by depriving them of access to their land or future

legal avenues to obtain that access. While unspecified negligent acts may have

occurred throughout the period of 1998 to 2006, the plaintiffs' injury appears to

arise primarily from the 2001 settlement agreement with Mr. Crowe in which

they agreed to relinquish their claims to a right-of-way over his property in

exchange for a parcel of land that they mistakenly believed would provide them

with access to Route 114. Assuming that some of Ms. Hastings' actions leading

up to the settlement were negligent, delaying the accrual of a cause of action

8

until the parties became aware of the error in 2004 would effectively revive the

discovery rule in clear violation of 14 M.R.S. § 753-B.

Finding no shelter in the definition of accrual, the plaintiffs suggest that

the discovery rule should apply in this case, and that the limitations period

should be extended to twenty years because Ms. Hastings's alleged negligence in

procuring access to Route 114 was similar to "negligence in the rendering of a

real estate title opinion ...." 14 M.R.S. § 753-B(2). This argument is unavailing.

The term "real estate title opinion" as used in section 753-B(2) "refers to a written

opinion of the status of title of a particular parcel of real estate based on an

examination of that title." Dowling v. Salewsh, 2007 ME 78, <[[ 17, 926 A.2d 193,

197. The plaintiffs have not alleged any claims arising from a faulty title opinion.

While they may argue that Ms. Hastings was negligent in not examining the title

to the land between the plaintiffs' property and Route 114, this does not bring

their claim under the purview of section 753-B.

Tn addition to their arguments based on the statutory text, the plaintiffs

offer four equitable arguments for why the statute of limitations should not bar

their recovery for negligent actions occurring prior to Decem ber 30, 2003. The

plaintiffs first argue that their fiduciary relationship with Ms. Hastings should

estop her from asserting the statute. They cite the First Circuit case of Bomstein v.

Pal/los, 793 F.2d 444 (lst Cir. 1986) for support. Bornstein involved a suspect

transaction between a creditor, a corporation, and the corporation's two

controlling shareholders who were also its sole officers and directors. Id. at 445.

Between 1974 and 1977 the creditor, corporation, and its two shareholders

employed the defendant attorney to execute a two-part transaction in which the

creditor would foreclose mortgages he held on the corporation's property, and

9

then convey the property to the shareholders in their personal capacities in

exchange for a new mortgage. [d. The corporation declared bankruptcy in 1978.

[d.

In 1983 the creditor filed a diversity action in Maine in an attempt to quiet

title to the properties in his name. [d. at 446. The bankruptcy trustee brought

counterclaims against everyone involved, including claims against the defendant

attorney for malpractice. [d. The attorney asserted the statute of limitations. [d.

The court found that the tolling rule from Livermore Falls Trust & Banking Co. v.

Riley, 108 Me. 17, 78 A. 980 (1911), estopped the attorney from asserting the

defense. Bornstein, 793 F.2d at 448. In Livermore, a corporate officer failed to repay

a promissory note he owed the corporation. Livermore, 108 Me. at 22, 78 A. at 982.

Maine's Law Court held that the statute of limitations did not begin to run until

the defendant officer formally notified the Board of Directors that his note was

overdue, as required by his fiduciary duty to the corporation. [d. at 24-25, 78 A.

at 982-83. The officer's failure to inform his corporation of the debt was a breach

of his fiduciary duty equivalent to fraudulent concealment. [d.

The Bomstein court reasoned that the rCltionale of Livermore regarding

corporate officers and directors Clpplied equally to an Clttorney in Cl fiduciary

relationship to Cl corporation. Bornstein, 793 F.2d at 448. The attorney had

"violated a separate fiduciary duty to the corporation, namely, his duty to

protect it interests in respect to the foreclosures involved, and did so at Cl time

when the corporation was unable to protect its own interests." [d. Maine's

Superior Court recently referred the this as "the equitable doctrine of 'adverse

domination,' where a 'cause of action will be tolled during the period that a

plaintiff corporation is controlled by wrongdoers.'" Murphy v. Vall Meer &

10

Belanger, F.A., '1996 Me. Super. LEXIS 356 (Nov. 1, 1996) (quoting Resolution Trust

Corp. v. Gardner, 798 F. Supp. 790, 795 (D.D.C. 1992)) (discussing Bornstein).

The Bomstein court also found support in Anderson v. Neal, 428 A.2d 1189

(Me. 1981). In Anderson the Law Court determined that it would be wholly

inequitable to allow the statute of limitations to run on a claim arising from a

negligently performed title search. Id. at 1192. The Court considered that "[t]he

essence of the attorney-client relationship in title cases is the faith and trust

which the client places in the representations of the attorney ...." Id. The degree

of "reliance placed upon the attorney by the client and the lack of means for

discovery place the client in a situation akin to that of one who has a cause of

action fraudulently concealed from him." Id. The Court held that "r u]nder such

circumstances, fairness, justice and common sense dictate ... that a cause of

action for negligent search of a title by an attorney does not accrue until the

plaintiff discovers, or reasonably should have discovered, the injury." Id. The

First Circuit drew from Anderson the idea that under some circurnstances an

attorney's breach of fiduciary duty could be so significant "that the statute of

limitations should be tolled against him until the client is able to protect his own

interests." Bomstein, 793 F.2d at 449.

Notably, however, the BomMcin court did not make any reference to 14

M.R.S. § 753-1:3, enacted a year earlier by the Legislature in ] 985. Most of the

arguments the Anderson Court articulated in favor of applying the so-called

discovery rule to actions arising from a title opinion apply with equal strength to

many or most actions for legal malpractice. Attorneys and their clients

"necessarily share a fiduciary relationship of the highest confidence." Andersoll,

428 A.2d at 1191. Clients must be able to trust their lawyers and prudent people

11

generally do f10t "hire a second attorney to check the work of the first," placing

clients at the mercy of the legal experts they hire. See id. at 1192. Despite these

considerations, in the wake of Anderson the Legislature determined that the

discovery rule should not apply to actions for legal malpractice. Narrow

exceptions were carved out for actions arising from the preparation of wills and

title opinions, but the general rule of 14 M.R.S. § 753-B is that the statute of

limitations for legal malpractice begins to run at the moment a negligent act takes

place, regardless of when the actual injury occurs or whether the client could

reasonabl y discover the error. See White, 2002 ME 160, ([1[ 7-8, 809 A.2d at 623-24

(affirming that statutes of limitation are strictly construed and that "[t]he courts

have no authority to depart from [the] policy of repose mandated by the

Legislature"); see (llso D(ls}w v. Maille Med. Clr., 665 A.2d 993, 996 (Me. 1995)

("While the statutory scheme may be deemed unfair or harsh, we decline to

circumvent it when the Legislature has explicitly decided the issue ....").

The plaintiffs cite to Bornstein and Anderson to assert that Ms. Hastings is

estopped from asserting the statute of limitations, without precisely explaining

how the CC1ses apply. They have not alleged any facts indicating that Ms.

Hastings actually concec1led their potential cause of action against her, nor have

they alleged that they were unable to protect their own interests due to adverse

domination. Insofar as they shared a fiduciary relationship with Ms. Hastings,

this alone ccmnot prevent the statute's application. The plaintiffs appear to be

arguing that any breach of a fiduciary duty should toll the statute of limitations

until the innocent party is able to discover the breach. The obvious problem with

this argument is that every attorney is a fiduciary of her client, and every

instance of malpractice is a potential breach. In effect the plaintiffs would apply

12

the discovery rule to every case of legal malpractice under the guise of equitable

estoppel through a fiduciary relationship. This would gut 14 M.R.S. § 753-B and

directly contradict the Legislature's directive. Whatever Bomstein's current status

in Maine may be, it does not save the plaintiffs from the statute of limitations in

this case.

The plaintiffs also ask that the court allow them to proceed,under the

"continuoLls representation" doctrine. The doctrine would toll "the running of

the statute in an attorney malpractice action until the professional relationship

terminate[d] with respect to the matter underlying the malpractice action."

Nevill, 1999 ME 47, 9[ 36, 726 A.2d at 700 (quoting Smith v. Stacy, 198 W. Va. 498,

482 S.E.2d 115, 120 (W. Va. 1996)) (quotations omitted). The Law Court

referenced but did not <1dopt this doctrine in Nevin v. Ullion Trust.

That case involved claims by a personal representative and various

benefi ci aries against the deceased's trust company and attorneys. In 1985 the

deceased client worked wi th the defendant trust company to transfer her

property into a corporation for estate planning purposes. fd. 9r 7, 726 A.2d at 697.

The defendant attorneys formed the corporation, drafted the necessary

testamentary documents, and managed the corporation's legal affairs from 1985

to 1992 when the client died. fd. 9I9J 7-13, 726 A.2d at 697. In 1988, at the

attorneys' suggestion, the client transferred her corporate stock to an irrevocable

trust in violation of the corporate articles. fd. 9I 11, 726 A.2d at 697. In 1994 the

Internal Revenue Service determined that corporate formalities had not been

followed and consequently assessed additional taxes, interest, and penalties in

excess of $400,000 against the estate. fd. 9114, 726 A.2d at 697.

13

During the subsequent litigation, the trial court granted all of the

defendants' partial summary judgment due to the statute of limitations. fd. 9I 20,

726 A.2d at 698. The parties then stipulated that no claims arose after February I,

1989, Jeaving only the application of the statute of limitations for appeal. fd. 9I 3,

726 A.2d at 696. Addressing the claims against the attorneys, the Law Court

found that the plaintiffs had not demonstrated any negligence in the drafting of

the will, and held that 14 M.R.S. § 753-8 6 precluded the Clpplication of a discovery

rule to toll the statute of JimitCltions. fd. 9I9I 33-34, 726 A.2d at 700. The statute had

thus run and the claims Clgainst the attorneys were barred. Td. 9f 38, 726 A.2d at

701.

In dicta, the Court went on to address the doctrine of continuing

rcpresentCltion. The Court said thClt:

For the doctrine to apply, there must be a "clear indicia of

Cln ongoing, continuous, developing, and dependent relationship

between the client and the attorney." Sc1lOenroc!c v. Tappe, 419

N.W.2d 197, 201 (S.D. 1988) (quoting Muller v. Sturmall, 79 A.D.2d

482,437 N.Y5.2d 205, 208 (N.Y. App. Div. 1981). Even if we might

apply the continuing representCltion doctrine in the appropriClte

case, here plClintiffs hClve stipulated away any such claims by

waiving claims regarding any representation in the period after

FebruJry I, 1989.

Nevill, 1999 ME 47, <II 37, 726 A.2d at 700-01. The Court thus left open the

question of whether it would ultimately adopt the doctrine of continuing

representation in Maine. The plaintiffs urge this court to apply the doctrine in

this case. Were the court to do so, the plaintiffs note thClt it would be joining the

ranks of many other states, including Massachusetts. Lyons v. Nutt, 436 Mass.

244,249-50,736 N.E.2d 1065, 1070 (Mass. 2002); see Smith, 198 W. Va. at 503-06,

6At the time, the current section 753-8 was codified CIS 14 }"·1.R.S. § 753-A. The

Legislature recodi fied the law into its current configurCltion in 2001. L.D. 309, § 1

(120th Legis. 20tH).

14

S.E.2d at 120-22 (discussing other states' adoption of the doctrine). However, a

quick review of Massachusetts's law shows the danger of blindly following the

lead of other jurisdictions. Massachusetts generally applies the discovery rule to

all actions for legal malpractice, whereas Maine's Legislature has strictly limited

the rule's application through section 753-B. Compare Lyons, 436 Mass. at 247, 736

N.E.2d at 1068-69 to White, 2002 ME 160, 1 7, 809 A.2d at 623-24.

A West Virginia case ci ted in Nevill is instructive on whether the doctrine

is compatible with the current l<lw of Maine. The Court quoted Smith v. Stacey to

define the doctrine of continuing representation as one that "tolls the running of

the statue in an <lttorney malpractice action until the professional relationship

terminates with respect to the matter underlying the malpractice action." Nevin,

1999 ME 47, 9136, 726 A.2d at 700 (quoting S1Ilitll, 198 W. Va. at 482 S.E.2d at 120).

The court goes on to note that the doctrine "is an adaptation of the' continuous

treahnent' rule applied in the medical malpr<lctice forum ...." S1Ilitll, 198 W. V<l.

at 503,482 S.E.2d at 120. Maine's Law Court has considered the continuous

treahnent rule at length and has definitively rejected it as being incompatible

with the Legislature's instruction "that the cause of action 'accrues on the date of

the act or omission giving rise to the injury ....'" Dickey v. Vermettc, 2008 ME

179, <II 7, 960 A.2d 1178, 1180 (discussing the statu te of limi tations for medical

111i:1lpractice, 24 M.R.S. § 2902).

The Slllith court also noted that some states view the doctrine of

continuous representation as "a 'branch of the discovery rule,' which holds that

'by virtue of the Clttorney-client rclCltionship, there can be no effective discovery

of the negligence so long as the re1cltionship prevails.'" Slllitll, 198 W. Va. at 504,

15

482 S.E.2d at 121 (quoting Alngin, Dny, Tmutwein & Smitll 'U. Brondbent, 882 S.W.2d

121, 125 (Ky. 1994)). The court quoted one treatise explaining that:

Adoption of the rule was a direct reaction to the illogical

requirement of the occurrence rule, which compels clients to sue

their attorneys although the relationship continues and there has

not been and may never be any injury.... The rule of continuous

representation is available and appropriate in those jurisdictions

adopting the dC1mage and discovery rules.

SlIIitll, 198 W. Va. at 505,482 S.E.2d at 122 (quoting Ronald E. Mallen & Jeffrey M.

Smith, LegC11 Malpractice § 21.12, C1t 822 (4th ed. 1996)).

Though it may be illogical, Maine's Legislature has unambiguously

directed that the occurrence rule apply to legal malpractice and has taken the

question "out of the arena of the judicial prerogative" by enacting 14 M.R.S.

§ 753-B. Myrick 'U. Tnllles, 444 A.2d 987, 992 (Me. 1982) (cited by Wllite, 2002 ME

160, err 8, 809 A.2d at 624.) "Unlike other contexts, the Legislature specifically

enacted [section 753-B] to dictate the exclusive situations in which courts can

apply the discovery rule in actions against attorneys." Wllite, 2002 ME 160, err 7,

809 A.2d at 623-24. Apart from actions C1rising from the drafting of a will'or the

rendering of a ti tIe opinion, the discovery rule does not apply and "the statute of

limi tations stC1rts to run from the date of the act or omission giving rise to the

injury ...." 14 M.R.S. § 753-B.

While C1pplication of the doctrine of continuous representC1tion mC1Y or

may not hinge on the time a client discovers the attorney's negligence, see Smith,

198 W. Va. C1t 505-06,482 S.E.2d at 122-23, it stems from the SC1me logic

underpinning the discovery rule cmd hC1s the same relevant effect: It prevents the

statute of limitations from running on "the date of the act or omission giving rise

to the injury." It thus represents "a judiciC1lly-created exception that is contrary to

the plJin meJning of" section 753-B. Dickey, 2008 ME 179, <j[ 7, 960 A.2d at 1180.

16

This court will not adopt and apply the doctrine in this case, as it runs contrary

to Maine's statutory law and precedent.

The plaintiffs also argue that the court should apply general equitable

tolling principles, of which the continuous representation doctrine is a specific

application, to relieve them of the statute of limitations. Broadly stated,

"[c]quitable tolling preserves a plaintiff's claim when strict application of the

limitations period would be inequitable. (Pl.'s Resp. at 21 (citing Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999)).) However, the Law Court has

repeatedly stated that statutes of limitation are to be strictly construed. Wllite,

2002 ME 160, ~I R, 809 A.2d at 624 (citing Hi7rkness v. Fitzgerald, 1997 ME 2071[ 5,

701 A.2d 370,372); Nevill, 1999 ME 47, 9I 33, 726 A.2d at 700. The same reasons

that weigh against adoption of the continuous representation doctrine

discourage the adoption of even wider-ranging equitable tolling principles.

Finally, the plainti ffs contend that Ms. Hastings fraudulently concealed

their cause of action, tolling the statute of limitations pursuant to 14 M.R.s.

§ 859? A plaintiff invoking the statute "must establish 'that defendants actively

concealed material facts from her and that she relied on their acts and statements

to her detriment, or ... that a special relationship existed between the parties that

imposed a duty to disclose the cause of action, and the failure of defendants to

honor that duty.'" Brawn 'v. Oral Surgery Assocs., 2003 ME 11, 1! 21, 819 A.2d 1014,

1026 (quoting Hi7rkness v. Fitzgerald, 1997 ME 207, 9[ 6, 701 A.2d 370, 372). On a

Rule 12(b) motion to dismiss, facts must appear in the complaint sufficient to

7 "If a person, liable to any action mentioned, fraudulently conceals the cause

thereof from the person enti tIed thereto, ... the action may be commenced at any

time within 6 years after the person entitled thereto discovers that he has just

cause of action ...." 14 M.R.S. § 859 (2009).

17

raise the issue of fraud. H See Clliapeffa v. Clark Assocs., 521 A.2d 697, 700 (Me.

1987).

When a plaintiff contends a genuine issue of material fact

concerning the defendant's fraudulent concealment has been

generated, the court assess the facts against the elements of fraud:

"(1) the making of a false representation; (2) of a material fact; (3)

with knowledge of its falsity or in reckless disregard of whether it

is true or false; (4) for the purposes of inducing another to act

upon it; and (5) justifiable and detrimental reliance by the other."

BrawlI, 2003 ME 11, (jl21, 819 A.2d at 1026 (quoting Harkness, 1997 ME 207, <rr 7,

701 A.2d at 372). When the parties share a fiduciary relationship, "omission by

silence may constitute the supplying of false information." [d. 9[ 22,819 A.2d at

1026 (quoting Glylln v. At/allfic Seaboard Co., 1999 ME 53, 112, 728 A.2d 117, 121)

(quotations omitted). Fraud may be inferred if the defendant fiduciary knew

particular facts but did "not disclose them causing the plaintiff to rely on those

facts" to her detriment. 1d.

The plaintiffs have not raised the issue of fraud in their complaint, nor

have they attempted to show how the facts alleged in their complaint make out a

case for fraudulent concealment. Instead, they assert that "[c]oncealment by a

lawyer / fiduciary is alleged and must be accepted as true." (Pl.'s Resp. at 24.)

None of their cited lawsupports this bold prospect. Turning to the plaintiffs'

factu(ll allegations, it appears that by 1999 Ms. Hastings should have known that

the Shutes had (In interest in the entirety of the pond, and that she W(lS mistaken

when she told the plaintiffs in the year 2000 that she had procured them access to

Route 114. (Pl.'s Compl. 9[(11 21e, 32, 34A.) She was similarly mistaken in 2001

HThe Law Court has not directly addressed whether the heightened pleading

requirements for fraud imposed by Rule 9(b) (lpply to claims of fraudulent

concealment raised under 14 M.R.S. § 859. However, "[b]ecause a claim of

fraudulent concealment necessarily includes allegations of fraud, it must be

plead with particularity." Taylor v. Pln'l/ip NIorris, Inc., 2001 Me. Super. LEXIS 76

(May 29, 2001) (Cole, ].).

18

when she told them that they would have direct access to Route 114 across the

pond, pending permitting, as a result of the settlement with Mr. Crowe. (Pl.'s

Compl. (II1 39-40.)

While these allegations do show negligence, they do not imply that Ms.

Hastings knew that the plaintiffs would not be able to cross the pond and

concealed this fact, or that she recklessly represented that the plaintiffs would be

able to access the road without performing any inquiry into the truth or falsity of

her statement. Furthermore, the plaintiffs allege that Ms. Hastings performed

legal work to obtain all the required permits until the Shutes asserted their

interest in 2004. (Pl.'s CompI. 9! el[ 43-51.) This undermines the plaintiffs'

argument that Ms. Hastings knew they would not be able to access Route 114

and was working to conceal this £Oct. Even with all inferences drawn in the

plaintiffs' favor, their complaint does not raise the issue of fraud or fraudulent

concealment and they cannot use section 859 to shield their action from the

statute of frauds.

The plaintiffs have not established that Ms. Hastings fraudulently

concealcd their cause of action or that their claims come under one of 14 M.R.S.

§ 753-B's exceptions allowing the discovery rule. Given the plain language of

section 753-8 and the Maine courts' history of strictly construing statutes of

limitations, the plaintiffs may not invoke equitable doctrines to avoid the

statute's operation. As this is a claim for professional negligence against an

attorney, the six-year statute of limitations began to run at the time of the acts or

omissions giving rise to the plainti ffs' injuries. They did not file their action until

December 31, 2009, and arc thus barred from bringing any claims arising from

acts or omissions that occurred prior to December 30, 2003.

19

The entry is:

The defendants' partial motion to dismiss is granted. The plaintiffs may not

maintain any claims arising from any of the defendants' acts or omissions that

occurred pri or to December 30, 2003.

DATE: S;~?f(1 20JO

20

1"1.lCHA.t;L u HA:::i.l\.t;LL .t;'!' i\L:::i V:::i ANN .t; HA:::i'l'.lNu:::i .t;'!' AL

UTN:AOCSsr -2009-0141495 CASE #:PORSC-CV-2009-00689

01 0000002300 CAMPBELL, JOHN S

75 MARKET STREET PO BOX 369 PORTLAND ME 04112-0369

F MICHAEL J HASKELL PL RTND 12/31/2009

-

F JOSEPH M BROWN PL RTND 12/31/2009

-

F SEBAGO GRAVEL PITT LLC PL RTND 12/31/2009

-

02 0000001252 FRIEDMAN, HAROLD

SIX CITY CENTER PO BOX 4726 PORTLAND ME 04112-4726

F ANNE E HASTINGS DEF RTND 02/18/2010

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

DOCKET NO: CV-t'-6.~

~A(_- CLAIYl .... o 'B;2.ot<_

'

MICHAELJ. HASKELL,

JOSEPH M. BROWN,

and STATE OF MAINE

Cumberland,ss,Cierk's Office

SEBAGO GRAVEL PIT, LLC,

MAR 0 8 2012

Plaintiffs,

v. ORDER RECEIVED

ANN E. HASTINGS

and

ANN E. HASTINGS LAW OFFICE, P.A.,

Defendants.

The Defendants' motion for summary judgment pursuant to Maine Rules of Civil

Procedure 7 and 56 is before the court.

BACKGROUND

1. Factual Background

In June 1998 plaintiffs Michael Haskell and Joseph Brown1 purchased about 15

aches of land in Sebago, Maine, and used the property to operate a gravel pit ("the

Property"). The Property abutted land owned by Arthur and Anita Crowe. A

boundary dispute arose between the Plaintiffs and the Crowes and the Plaintiffs hired

defendant Attorney Hastings to assist with resolving the dispute, she had also assisted

with the acquisition of the Property.

1

Haskell and Brown own Sebago Gravel Pit, LLC (collectively, "the Plaintiffs").

1

In November 2000 the Plaintiffs and the Crowes reached a settlement regarding

the disputed land. According to the Plaintiffs, this settlement allowed the Plaintiffs to

use a right of way connecting the Property to Route 114 for roughly three and half years

while they constructed an alternative access road connecting the Property to Route 114.

Additionally, the parties swapped roughly equal portions of their land.

The Plaintiffs viewed obtaining permanent access to Route 114 as the entire

purpose of doing the settlement with the Crowes and believed Attorney Hastings also

understood this purpose. The Plaintiffs allege that they gave up their existing right of

way and dismissed their claim against the Crowes based on the advice given by

Attorney Hastings and their belief that she had done the necessary research to give this

advice. Attorney Hastings claims that she repeatedly denied telling the Plaintiffs that

they would have access to Route 114 from their property.

Following the settlement with the Crowes, the Plaintiffs filed a number of

applications and spent money attempting to build the access road. During this time a

new problem arose regarding part of the property the Plaintiffs needed to cross in order

to reach Route 114. This dispute surfaced when neighboring landowners, Arthur and

Emma Shute, asserted their property interest over a crucial part of the property. The

issue went before the Sebago Planning Board and the Board decided that the Shutes

owned the disputed portion of the property. As a result, the Board found that the

Plaintiffs did not have standing and dismissed the application without prejudice.

In October 2006 the Plaintiffs, represented by Attorney Levis, filed a suite against

the Shutes claiming that the Shutes were not the proper owners of the disputed portion

of land. The parties disagree regarding why this lawsuit ended, but the case was

2

dismissed without prejudice. 2 The Plaintiffs now claim that the land trade they did

\Vith the Crowes only took their property to Mill Pond and they need to obtain a right of

way from the Shutes to traverse the pond and access Route 114. The Defendants claim

that the Shutes might not have that property right and the Plaintiffs are probably able to

access Route 114 without negotiating with the Shutes.

2. Parties' Arguments

On December 31, 2009, the Plaintiffs filed the complaint in this case claiming that

Attorney Hastings committed professional negligence by giving them bad advice

regarding their rights to an access road. They claim that she advised them to settle with

the Crowes, giving up potentially valuable rights, in order to gain property that would

allow them to build a road across the Mill Pond and access Route 114. They also claim

that Attorney Hastings knew or should have known that even with the land they

received from the Crowes they still cannot access Route 114 because the Shutes own all

of Mill Pond and the property on the other side. 3

In this motion for summary judgment, the Defendants argue that the Plaintiffs'

claim is purely speculative because they cannot show that the Defendants' actions

caused an injury or loss to the Plaintiffs. The Defendants base this argument on the fact

that the Plaintiffs did not resolve the issue of ownership with the Shutes because they

did not pursue the civil case against the Shutes and the case was dismissed without

prejudice. Therefore, the Defendants claim that the Plaintiffs cannot demonstrate the

necessary proximate cause to show professional negligence. Additionally, the

2

The Defendants claims that the Plaintiffs stopped paying Levis so he withdrew his

representation and the complaint was dismissed without prejudice because the Shutes were not

served. The Plaintiffs claim they realized that the suit did not have a sufficient likelihood of

success and Levis was not properly representing their interest so the complaint was dismissed.

3

On September 28, 2010, this court granted a partial motion to dismiss ordering that the

Plaintiffs may not maintain any claims arising from any of the Defendants' acts or omissions

that occurred prior to December 30, 2003.

3

Defendants claim that if the Plaintiffs pursued their civil claim against the Shutes they

would be successful and, therefore, be able to build the access road as indicated by

Attorney Hastings. In response, the Plaintiffs argue that the Shutes do own the land

and they can prove this ownership through this litigation.

DISCUSSION

1. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56( c);

see also Levine v. R.B.I<. Cnly Corp., 2001 ME 77, <j[ 4, 770 A.2d 653. A motion for

summary judgment must be supported by citations to record evidence of a quality that

vvould be admissible at trial. Levine, 2001 ME 77, <j[ 6, 770 A.2d 653 (citing M.R. Civ. P.

56(e)). An issue of "material fact exists when there is sufficient evidence to require a

fact-finder to choose bet·ween competing versions of the truth at trial." Inkell v.

Livingston, 2005 ME 42, <j[ 4, 869 A.2d 745 (quoting Lever v. Acadia Hasp. Corp., 2004 NIE

35, <j[ 2, 845 A.2d 1178). Any ambiguities must be resolved in favor of the non-moving

party. Beaulieu v. The Aube Corp., 2002 ME 79, <j[ 2, 796 A.2d ~83. (citing Green v. Cessna

Aircrnft Co., 673 A.2d 216, 218 (Nie. 1996)).

2. Professional Negligent

It is well established in Maine that "[t]o prove attorney malpractice, a plaintiff

must show: (1) a breach by the defendant of the duty owed to the plaintiff to conform

to a certain standard of conduct; and (2) that the breach of that duty proximately caused

an injury or loss to the plaintiff." Corey v. Norman, Hanson & DeTroy, 1999 ME 196, <JI 10,

742 A.2d 933. "[T]o prevail in a legal malpractice action, a plaintiff must demonstrate

that he or she INould have achieved a more favorable result but for the defendant's

alleged legal malpractice." Nielwffv. Shankman & Assoc. Legal Ctr, P.A., 2000 ME 214, <j[

4

9, 763 A.2d 121. The second element, proximate cause, is at issue in this motion. In

order to show proximate cause the plaintiff must demonstrate "that the negligence

played a substantial part in bringing about or actually causing the injury or damage and

that the injury or damage vvas either a direct result or a reasonable foreseeable

consequence of the negligenc~." Id. at<[ 8 (quoting lvierrinm v. \Nnnger, 2000 ME 159, <[ 8,

757 A.2d 778).

The Plaintiffs argue that but for Attorney Hastings' negligence they do not have

an access road from the Property to Route 114, and therefore they cannot sufficiently

use the Property. The Defendants claim that even with Attorney Hastings' alleged

negligence the Plaintiffs could have build an access road if they had pursued their legal

claim against the Shutes and thus the alleged negligence 4 is not the proximate cause of

the alleged damages.

Based on the evidence before the court, neither party's claim is clearly supported.

The Defendants looked to riparian law and claim that the Plaintiffs have rights to a

sufficient portion of the disputed land to build an access road. Essentially, the

Defendants argue that the Plaintiffs have property rights to the center of the 1v!ill Pond,

see Jvinnsur v. Blake, 62 Me. 38, 41 (1873) 5, and they can build despite flowage rights, see

\Nalthmn v. PPL Jviaine, LLC, 2006 ME 88, <[<[ 9-10, 901 A.2d 816 (allowing the owner of

submerged land to "put the land to any use that is not detrimental to the lake" when

another has flowage rights). Conversely, the Plaintiffs claim that the state provided the

Shutes with rights to the whole body of water and, even if the Plaintiffs did have access

• The defendants do not address the duty of care or breach in this motion, but they do not admit

to any element of negligence.

5

"The owner of land touching the water of a stream, goes to the centre. Herring v. Fisher, 1

Sand£. 344. Where a lot of land is bounded by a pond artificially created by the flowing of a

stream by a mill-dan1, the same rule applies to the pond as to the stream before the dam was

build .... A grant of land bounded by a pond artificially raised, is presumed to go to the centre

of the stream. RobillSOil u. \;1/lzite, 42 Me. 209." Mallsur v. Blake, 62 Me. 38, 41 (1873).

5

to the water, the Shutes own land between the water and the road. The Plaintiffs have

an expert, Samuel Kilbourn a transactional residential real estate attorney, who appears

to believe that the Plaintiffs cannot build an access road. (Pl.'s SJvi.F. 9I9I 86, 87 denied,

objected, and qualified by Opp. Pl.'s S.NI.F. 9I9I 86, 87.) There is not sufficient information

before the court to determine which party is correct as a matter of law. Therefore, the

court is unable to grant summary judgment.

The entry is:

The Motion for Summary Judgment is DE

6

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and, ME 04101