Flaherty v. Muther

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