Sullivan v. Own Haskell, Inc.
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STATE OF MAINE CUMBERLAND, ss. MARTINA SULLIVAN, Plaintiff, v. OWN HASKELL, INC. LAND SURVEYING COMPANY, et al., SUPERIOR COURT CIVIL ACTION DOCKET NO: RE-20-103 ) ) ) ) ) ) ) ) ) ORDER Defendants Before the court are the following motions: Defendants' separate Motions to Dismiss; Plaintiff's Motion for Entry of Default against Defendant Samuel Kilbourn; Defendant Kilb,;:mrn's Motion to Enlarge Time to File Answer; Plaintiff's Motion to Join Additional Parties; and Defendant Warren-White's Motion for Spickler Order. After careful consideration, the court finds that Ms. Sullivan's complaint is barred by the doctrine of res judicata and must be dismissed with prejudice. Defendant Kilbourn's Motion to Enlarge Time is granted and Defendant Warren-White's Motion for Spickler Order is denied. I. Factual Background The following facts are taken from the Plaintiff, Martina Sullivan's, Complaint and are viewed in the light most favorable to her. Defendant, Owen Haskell Inc., completed a land survey on behalf of co-Defendants Nathaniel and Elisabeth Warren-White in 2014. The survey sparked a protracted boundary dispute between Ms. Sullivan and the Warren-White's regarding the location of their shared property line. In 2015, the WarrenWhites approached Ms. Sullivan with an offer to purchase a portion of her property. Ms. Sullivan declined the offer and the Warren-White's instituted a lawsuit in Cumberland County Superior Court ("first lawsuit") alleging that the Warren-Whites had obtained Page 1 of 12 title to the disputed property through adverse possession. Judgment was entered in favor of the Warren-Whites in 2017; and, Owen Haskell completed a new survey to reflect the court's ruling. The survey was submitted to the court and final judgment was entered. Ms. Sullivan sought relief from judgment pursuant to M.R. Civ. P. 60(b), which was denied. Ms. Sullivan .appealed the 2017 judgment. The Law Court upheld the Superior Court's judgment in the "first lawsuit." Ms. Sullivan brought a separate suit in Superior Court against the Warren-Whites in 2018 ("second lawsuit"). The "second lawsuit" alleged that the Warren-White's boundary line had been mismarked in the 2017 Owen Haskell survey. The Superior Court entered summary judgment in the "second lawsuit" in favor of the Warren-Whites, stating that "the boundary line set on the face of the earth by the Owen Haskell land surveying firm on or about October 5, 2017 is consistent with the boundary established by the judgment entered" in the "first lawsuit." Sullivan v. Warren-White, 2019 Me. Super. LEXIS 120, *12 (Aug. 22, 2019). The court held further that Ms. Sullivan was "now collaterally estopped" from disputing the Warren-Whites' claim of adverse possession. Id. at *5. Ms. Sullivan's appeal from the summary judgment entered in the "second lawsuit" is currently pending before the Law Court. Ms. Sullivan now brings this "third lawsuit'' against a number of Defendants, alleging that the Defendants collectively schemed to obtain Ms. Sullivan's property through fraud. The crux of Ms. Sullivan's argument concerns what the parties have referred to as an "old abandoned road." Ms. Sullivan claims that the location of the abandoned road was intentionally misrepresented on the 2017 Owen Haskell survey, as well as various land surveys and property descriptions submitted to the court in the "second lawsuit." Ms. Sullivan stated at hearing that the surveys and descriptions she Page 2 of 12 challenges in this "third lawsuit," are the same surveys and descriptions that were submitted to the court on summary judgment in the "second lawsuit." Ms. Sullivan's argument regarding the "old abandoned road" is premised on the Paper Street's Act. The Paper Streets Act vests ownership of abandoned roads to abutting property owners, with each abutting property owner obtaining half of the abandoned road to the center line. See generally 23 M.R.S. § 3027 et seq. Ms. Sullivan argues that the location of the "old abandoned road" was intentionally mismarked on the 2017 Owen Haskell survey and that Ms. Sullivan actually owns one half of the road via the Paper Streets Act. It was acknowledged at hearing on this Motion that the Paper Streets Act and the "old abandoned road" were at issue in the original adverse possession lawsuit ("first lawsuit"), and that the Warren-White's obtained title to the entire "old abandoned road" by virtue of adverse possession, not the Paper Street's Act. Ms. Sullivan hired Defendant Sebago Technics to conduct a new land survey sometime after the adverse possession, "first lawsuit." Ms. Sullivan stated that she hired Sebago to determine the accurate location of the "old abandoned road." Sebago Technics agreed with the 2017 Owen Haskell survey and its depiction of the disputed property line. Ms. Sullivan claims that Sebago Technics was negligent in their reliance on the allegedly inaccurate surveys and property descriptions. Ms. Sullivan has also named attorney Samuel Kilbourn in this "third lawsuit." Ms. Sullivan alleges that Mr. Kilbourn authored a mete and bounds description that was submitted to the court in the "second lawsuit." The description purports to describe the Warren-White's property in light of the Warren-White's successful adverse possession claim. The description does not reference the location of the "old abandoned road." Ms. Sullivan's "third lawsuit" Complaint, alleges six counts: (1) fraud; (2) statutory fraud pursuant to 32 M.R.S. § 11206; (3) material misrepresentation; (4) negligent Page 3 of 12 misrepresentation; (5) negligence; and (6) punitive damages. Although Ms. Sullivan does not specifically segregate her claims against any particular defendants, the theory underlying each cause of action is that the "old abandoned road" was mismarked on the 2017 Owen Haskell survey and other evidence submitted to the Superior Court on summary judgment in the "second lawsuit." The Defendants have all filed separate Motions to Dismiss, arguing that this "third lawsuit" is barred by res judicata. II. Legal Standard A. Motion to Dismiss A motion to dismiss pursuant to M. R. Civ. P. 12(b)(6) "tests the legal sufficiency of the allegations in the complaint, not the sufficiency of the evidence the plaintiffs are able to present." Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993)(internal citations omitted). The court shall "consider the facts in the complaint as if they were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, 'l[ 16, 17 A.3d 123. The complaint is viewed "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." Id. (quoting Saunders v. Tisher, 2006 ME 94, 'l[ 8, 902 A.2d 830). "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Id. B. Res Judicata "The doctrine of res judicata is a court-made collection of rules designed to ensure that the same matter will not be litigated more than once."' Camps Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, 'l[ 11, 705 A.2d 1109 (citations and quotations omitted). Res judicata "has two components: collateral estoppel, also known as issue . preclusion, and claim preclusion." Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, 'l[ 16, 8 A.3d 677. Collateral estoppel "prevents the relitigation of factual issues already decided Page 4 of 12 if the identical issue was determined by a prior final judgment, and ... the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding." Penkul v. Matarazzo, 2009 ME 113, 'l[ 7, 983 A.2d 375 (quotations omitted). "Claim preclusion bars the relitigation of claims if: (1) the same parties or privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been, litigated in the first action." Guardianship of Jewel M., 2010 ME 80, 'l[ 40, 2 A.3d 301. III. Discussion A. Res Judicata Ms. Sullivan's claims of fraud and fraudulent misrepresentation (Counts I, II, and III) are barred by the collateral estoppel component of res judicata. The basis of Ms. Sullivan's fraud argument is that the Defendants colluded to submit mismarked surveys and inaccurate property descriptions to the court in the "second lawsuit" in order to prove that the allegedly mismarked 2017 Owen Haskell survey is accurate. Accordingly, the evidence underlying Ms. Sullivan's fraud claim in this "third lawsuit", is the same evidence that has previously been submitted and ruled upon by this court on summary judgment. Moreover, it has been shown that the location of the "old abandoned road" was not material to the location of the Warren-White's new boundary line because the Warren-Whites acquired title to the entire "old abandoned road" by virtue of adverse possession. At hearing on the Defendants' Motions to Dismiss, it was established that the "old abandoned road" has been at issue since the Warren-White's adverse possession "first lawsuit." Indeed, the original judgment addressed the legal implications of the "old abandoned road," providing that: "each party owns [property] to the centerline of the abandoned road" under traditional Maine law. Warren-White v. Sullivan, 2017 Me. Super. Page 5 of 12 LEXIS 168, *1 (Aug. 17, 2017). However, the court also observed that the Warren-Whites can nonetheless acquire title to the entire abandoned road if they "can establish title ... to some part or the entire southerly portion of that land through adverse possession." Id. Based upon the evidence presented in the "first lawsuit," the court found that Ms. Sullivan "did not use or maintain any of the property within the Abandoned Road" and concluded that the Warren-Whites "[had] acquired title up to the southerly side of the abandoned road" by adverse possession. Id. at *4, 11. The 2017 Owen Haskell survey was accepted and found to be an accurate description of the adverse possession judgment in the "first lawsuit." Based on the forgoing, Ms. Sullivan cannot maintain her fraud allegations in the "third lawsuit." The factual issue presented here, whether the 2017 Owen Haskell survey was accurate, was decided by final judgment in the "second lawsuit." The surveys and descriptions challenged in the "third lawsuit" are the same surveys and descriptions the court relied to reach final judgment in the "second lawsuit." Although Ms. Sullivan now alleges that these surveys and descriptions were fraudulently inaccurate, Ms. Sullivan is nonetheless arguing again that the 2017 Owen Haskell survey, and documents submitted in support, are inaccurate. There has been a final judgment on the accuracy of the surveys and descriptions at issue in this case and res judicata prevents the prelitigation of the very same factual issue. In issuing this decision, the court recognizes that Ms. Sullivan is not a legal professional and is unfamiliar with legally technical terms such as res judicata. However, Ms. Sullivan's pending appeal of the "second lawsuit" illustrates the purpose of res judicata, and demonstrates why her allegations of fraud must be dismissed pursuant to res judicata here. Page 6 of 12 "Res judicata" is a Latin phrase that means a thing or matter, such as a dispute over the accuracy of a land survey, has previously been decided. See Blacks Law Dictionary, 1470 (4th ed. 1968). Legally, res judicata means that if a judge has settled a factual issue by final judgment, such as on a motion for summary judgment, then the court's final judgment on that matter is conclusive, final, and binding in future lawsuits. See id; see also Camps Newfound/Owatonna Corp, 1998 ME 20, 'l[ 12,705 A.2d 1109. With this in mind, consider what would happen if the Law Court were to overturn summary judgment in the "second lawsuit" before this "third lawsuit" is decided. If this were to occur, there would be two separate Superior Court lawsuits challenging the accuracy of the same 2017 Owen Haskell survey. The evidence submitted for both pending lawsuits would be identical, and would force two separate Justices to decide the same factual issue: does the 2017 Owen Haskell survey and supporting documents represent the current boundary line between Ms. Sullivan and the Warren-Whites. The possibility of two identical lawsuits over the same set of facts would be improper. A new lawsuit - "third lawsuit" -- challenging an identical issue of fact previously decided is likewise improper and barred by the doctrine of res judicata. This conclusion is also unchanged by Ms. Sullivan's new allegations of fraud. To prove fraud, Ms. Sullivan would still need to prove that the surveys and property descriptions at issue are indeed inaccurate. The accuracy of the 2017 Owen Haskell survey, and supporting documents, has been decided by final judgment of this court in the "second lawsuit." Dismissal of Ms. Sullivan's lawsuit ("third lawsuit") is warranted under these circumstances. Accordingly, Ms. Sullivan's fraud claims are barred by the doctrine of res judicata and Counts I, II, and ill and are dismissed with prejudice. Ms. Sullivan should note that dismissal with prejudice operates as a judgment on the merits of Ms. Sullivan's claims. Page 7 of 12 See Green Tree Servicing, LLC v. Cope, 2017 ME 68, 'l[ 13, 158 A.3d 931. This means that Ms. Sullivan is prohibited from filing these claims against the Defendants in future lawsuits. 1. Heightened Pleading Standards This ruling is also supported by the heightened pleading standards required in cases alleging fraud. "In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity." M.R. Civ. P. 9(b ). Indeed, "[o]n certain subjects understood to raise a high risk of abuse of litigation, a plaintiff must state factual allegations with greater particularity[.]" Bean v. Cummings, 2008 ME 18, 'l[ 11, 939 A.2d 676; quoting Bell Atlantic Corp. v. Towmbly, 550 U.S. 544, 569 n.14 (2007). The Law Court has noted that in lawsuits alleging the similar claim of perjury: "[h]eightened pleading requirements are necessary to ensure that disgruntled litigants are not able to use civil perjury claims as a means to re-litigate cases when they are displeased with the outcomes." Bean, 2008 ME 18, 'l[ 13, Here, Ms. Sullivan cannot use allegations of fraud as a means to re-litigate issues that have previously been decided. Instead, Ms. Sullivan's "third lawsuit" Complaint must allege specific acts or circumstances of fraud with greater particularity. However, the only allegation of fraud here is Ms. Sullivan's general assertion that the Defendants colluded to commit fraud by misrepresenting the location of the "old abandoned road" on various surveys and property descriptions. Indeed, Ms. Sullivan indicated at hearing that she wishes to depose certain individuals to determine how or why the "old abandoned road" has been mismarked. Under the circumstances, Ms. Sullivan's Complaint falls short of the particularized pleading requirements for fraud allegations. Accordingly, Ms. Sullivan's claims regarding fraud and fraudulent misrepresentation are also subject to dismissal for failure to plead facts with particularity pursuant to M.R. Civ. P. 9(b). Page 8 of 12 B. Negligence Ms. Sullivan's first claim of negligence appears to concern Defendant Sebago Technics only. Ms. Sullivan alleges that Sebago was negligent when it found that the 2017 Owen Haskell survey was accurate (Count IV). Ms. Sullivan also alleges that Sebago was negligent because it failed to submit this negligence claim to mediation prior to her filing this lawsuit. Negligence requires the plaintiff to prove: (1) a duty of care owed to the plaintiff; (2) a breach of that duty by the defendant; (3) an injury suffered by the plaintiff; and (4) that the breach of duty caused the plaintiff's injury. Bell ex re. Bell v. Dawson, 2013 ME 108, 'l[ 17, 82 A.3d 827. Here, Ms. Sullivan's negligence claim is based on her assertion that the 2017 Owen Haskell survey was inaccurate. The accuracy of the 2017 survey has previously been decided by final judgment in the "second lawsuit." For the reasons stated above, Ms. Sullivan cannot relitigate the accuracy of the 2017 survey in this "third lawsuit." Because Ms. Sullivan cannot maintain her negligence claim against Sebago, the court declines to address Ms. Sullivan's allegations regarding Sebago's refusal to mediate. Accordingly, Count IV of Ms. Sullivan's Complaint is dismissed with prejudice. C. Defendant Samuel Kilbourn The next issue for this court to consider is the Complaint as it relates to Defendant Attorney Samuel Kilbourn. Ms. Sullivan alleges that Mr. Kilbourn authored a mete and bounds description of the disputed property, which the court adopted. Ms. Sullivan further alleges that Mr. Kilbourn guessed at the location of the "old abandoned road" and did not rely on evidence. Ms. Sullivan does not allege which land survey Mr. Kilbourn was involved in, nor the circumstances under which a duty of care might have arisen with Ms. Sullivan. Page 9 of 12 Mr. Kilbourn failed to respond timely to Ms. Sullivan's Complaint and Ms. Sullivan moved for this court to enter default. Mr. Kilbourn filed a Motion to Enlarge Time to File Answer three days after Ms. Sullivan requested entry of default. Mr. Kilbourn has also moved to join in the co-Defendant's collective opposition to the Complaint. The court is unwilling to enter default against Mr. Kilbourn under the circumstances and grants Mr. Kilbourn's Motion for Enlargement. Maine has a preference of deciding cases on the merits and parties "should not be precluded by technicalities of pleading from presenting [a] claim or defense on its merits[.]" Bangor Motor Co. v. Chapman, 452 A.2d 389, 392 (1982). Ms. Sullivan's negligence claim against Mr. Kilbourn is based on the same theory of fraud outlined above. Ms. Sullivan cannot maintain her deficient Complaint against Mr. Kilbourn based upon a mere technicality. Mr. Kilbourn's Motion for Enlargement is granted and Count V of Ms. Sullivan's Complaint is dismissed with prejudice. D. Punitive Damages Ms. Sullivan's "third lawsuit" Complaint also alleges punitive damages (Count IV). Punitive damages may only be recovered in instances where a plaintiff proves some tortious conduct has occurred. See Jolovitz v. Alfa Romeo Distribts. OJN. Am., 2000 ME 174, 'l[ 11, 760 A.2d 625. Here, Ms. Sullivan's Complaint fails to allege facts sufficient to show that she may be able to recover for any tortuous conduct alleged. Accordingly, Ms. Sullivan cannot recover punitive damages. Count Vl of Ms. Sullivan's Complaint is dismissed with prejudice. E. Motion to Add Additional Parties Finally, Ms. Sullivan has moved to add her neighbors, Stephen and Cinda Joyce, to the Complaint, citing "their role in the misrepresentation or the fraud claims alleged Page 10 of 12 in the Complaint." (Def. Mot. Req. to Add Def. pg. 1.) However, " ... futility of amendment [is] grounds for denying a motion to amend." Paul v. Town of Liberty, 2016 ME 173, 'I[ 9, 151 A.3d 924. Here, Ms. Sullivan's claims of fraud and fraudulent misrepresentation against the Joyces are the same allegations that she is collaterally estopped from bringing against the other Defendants. Res judicata also precludes this lawsuit against the Joyces and thus her addition of the Joyces would be futile. Ms. Sullivan's motion to add the Joyces as parties is denied. F. Spickler Order and Attorney's Fees The Warren-Whites have asked this court to enter a Spickler Order, which would establish "a screening mechanism whereby any future complaints" by Ms. Sullivan would have to first be submitted and examined by the court to determine whether the complaint establishes a meritorious cause of action. Spickler v. Key Bank of S. Me., 618 A.2d 204, 207 (Me. 1992). The Defendants have all asked this court to also award attorney's fees. The court declines to enter a Spickler Order or award attorney's fees under the circumstances. At hearing, Ms. Sullivan presented a genuine belief in her allegations. Ms. Sullivan articulated her position as well as any person without technical legal training could have, particularly in the face of the esoteric res judicata doctrine. Despite this genuine belief however, the facts asserted by Ms. Sullivan have still been decided by final order in the "second lawsuit." Ms. Sullivan's claims are subject to dismissal with prejudice against all Defendants and the consequences of dismissal with prejudice have been explained to Ms. Sullivan herein: that she is barred from pursuing these claims in any future lawsuit. Under these circumstances, the court feels that a Spickler Order and attorney's fees would be inappropriate. Page 11 of 12 The court notes however that this order does not preclude the Defendants from seeking attorney's fees or a Spickler Order in the event Ms. Sullivan attempts to relitigate the matters fully decided in this, or any other case concerning the disputed boundary. III. Conclusion Ms. Sullivan's "third lawsuit" Complaint alleges that the 2017 Owen Haskell survey misrepresents the location of a disputed boundary. The accuracy of the 2017 survey was settled by final order of the Superior Court on summary judgment in the "second lawsuit." The "third lawsuit" attempts to relitigate whether the 2017 survey, as well as the evidence submitted in support of that survey on summary judgment, is accurate. Ms. Sullivan's allegation of fraud does not change the ultimate issue presented: whether or not the 2017 survey and supporting evidence is an accurate representation of the boundary between Ms. Sullivan and the Warren-Whites. Res Judicata prevents relitigating the accuracy of the 2017 Owen Haskell survey and the evidence submitted in support of that survey. The entry is: Defendant Kilbourn's Motion for Enlargement is GRANTED. Plaintiffs Complaint is DISMISSED WITH PREJUDICE. Defendant Warren-White's Motion for Spickler Order is DENIED. The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a). Dated: June 14, 2021 Kennedy, Justice uperior Court Page 12 of 12
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