Fissmer v. Smith

LESLIE FISSMER, Individually and as Trustee of the LESLIE S. FISSMER REVOCABLE TRUST, PATRICIA GRAMSE and R. REED GRAMSE, KAREN BURKE and WILLIAM BURKE, and ROBERT SIEGEL, Plaintiffs, v. DAVID D. SMITH, CUNNER LANE, LLC, and CUNNER LANE II, LLC, Defendants.

No. RE-2016-292

Superior Court of Maine, Cumberland

September 29, 2022

ORDER ON PENDING MOTIONS

MARYGAY KANNEDY, JUSTICE

This matter is before the Court following remand from the Law Court. Defendants Cunner Lane II, LLC and David Smith have filed a "Motion to Bar Fissmer's Claims on Remand Under the Doctrines of Claim Preclusion and Issue Preclusion." Plaintiffs have opposed Defendants' Motion and have filed a Motion for Entry of Judgment on the remaining claims of Plaintiff Leslie S. Fissmer, individually and as trustee of the Leslie S. Fissmer Revocable Trust ("Ms. Fissmer"). For the following reasons, the Court denies both motions.

I. Background

On June 18, 2018, a jury-waived trial was held in the Superior Court (Cumberland County, Walker, J.). Principally at issue at trial was the location of a private road called Cunner Lane, title to the paved road known as Cunner Lane and the twenty-foot-wide Cunner Lane corridor depicted on a 1929 subdivision plan, and title to a five-foot-wide strip of land running parallel to and between the Cunner Lane corridor and the boundaries of Plaintiffs' properties.^[1] Plaintiffs alleged that they had adversely possessed portions of the Cunner Lane corridor and the five-foot-wide strip abutting each of their properties, which they had used as part of their front lawns.^[2]

The Superior Court issued a written Judgment and Order dated October 11, 2018 ("the 2018 Judgment"). The court concluded, in pertinent part:

On Count V [of Plaintiffs' Complaint against Defendants Cunner Lane, LLC and David D. Smith], judgment is entered for Plaintiffs. Plaintiffs have obtained fee simple title by adverse possession to the property abutting the western and northwestern edge of the paved road known as Cunner Lane.

As to Defendant Cunner Lane II, LLC's complaint, judgment is entered for Defendant in part and for Plaintiffs in part . . . Cunner Lane II, LLC holds title in fee simple to the paved road known as Cunner Lane up to the western and northwestern edge of the pavement. To the extent the property deeded to Defendant Cunner Lane II, LLC extends to the west and northwest beyond the western and northwestern edge of the pavement, Cunner Lane II, LLC has no ownership rights in the property.

As to Plaintiffs' complaint against Cunner Lane II, LLC, judgment is entered for Plaintiffs. To the extent the property deeded to Defendant Cunner Lane II, LLC extends to the west and northwest beyond the western and northwestern edge of the paved road known as Cunner Lane, Plaintiffs have obtained fee simple title to this property by adverse possession.

Fissmer v. Smith, No. RE-16-292, 2018 Me. Super. LEXIS 214, at *32-33 (Oct. 11, 2018).

Mr. Smith, Cunner Lane, LLC, and Cunner Lane II, LLC timely appealed. Plaintiffs cross-appealed from the court's determination declaring Cunner Lane II, LLC the owner of the paved road known as Cunner Lane up to the northwestern and western edge of the pavement.

On appeal, the Law Court summarized its conclusions as follows, in relevant part:

• The court correctly concluded that Fissmer, the Burkes, and the Gramses had acquired title, by adverse possession, to the disputed property that they have used as their lawns, gardens, and driveways up to the paved edge of present-day Cunner Lane.

• Any adverse possession claim by Fissmer concerning the southernmost portion of the twenty-foot-wide corridor designated as Cunner Lane- the portion of that corridor to the south of her driveway-will require additional litigation.

• Any "additional litigation" undertaken may require the trial court to address the issue of res judicata.

Fissmer v. Smith, 2019 ME 130, ¶ 50, 214 A.3d 1054.

The Law Court held:

The portion of the judgment declaring Fissmer owner of the entire fee under Sunrise Drive is vacated and remanded to the Superior Court for entry of a judgment declaring Cunner Lane II owner of Sunrise Drive, as depicted on the 1929 Plan, and of the five-foot-wide strip alongside Sunrise Drive.. . . The judgment is affirmed in all other respects. With regard to the adverse possession issue, however, the judgment is remanded for the purpose of legally establishing the parties' new boundary lines.

Id.

On remand, Mr. Smith and Cunner Lane II, LLC seek to bar Ms. Fissmer from reasserting an adverse possession claim to the property they label "the South Yard" and describe as "the section to the south of [Ms. Fissmer's] driveway." Plaintiffs seek entry of judgment declaring that Ms. Fissmer has acquired title in fee simple by adverse possession to the disputed property, II. Discussion

The Court must initially address an apparent disagreement among the parties about the boundaries of the disputed property for which the Law Court decided "additional litigation" is needed. To clarify, no portion of Ms. Fissmer's driveway remains in dispute because then-Justice Walker concluded, and the Law Court affirmed, that she has acquired title to the property used as her driveway by adverse possession. Fissmer, 2019 ME 130, ¶ 50, 214 A.3d 1054; Fissmer, 2018 Me. Super. LEXIS 214, at *32-33.

The only area for which "additional litigation" is required to determine title is "the southernmost portion of the twenty-foot-wide corridor designated as Cunner Lane-the portion of that corridor to the south of her driveway .. .." Fissmer, 2019 ME 130, ¶ 50,214 A.3d 1054. This area, which the Court will hereinafter refer to as "the South Yard," encompasses a wood post, an apple tree, and an area of dense bushes or trees.^[3] It is roughly bounded by the Cunner Lane corridor to the northeast and southwest, Ms. Fissmer's paved driveway to the northwest, and the northwestern edge of the five-foot strip abutting Sunrise Drive to the southeast.

A. Defendants' Motion to Bar Fissmer's Claims on Remand

"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, ¶ 11, 705 A.2d 1109 (citations and quotations omitted). The doctrine of res judicata "has two components: collateral estoppel, also known as issue preclusion, and claim preclusion." Kurtz & Perry, P.A. v, Emerson, 2010 ME 107, ¶ 16, 8 A.3d 677.

Collateral estoppel "prevents the relitigation of factual issues already decided 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, ¶ 7, 983 A.2d 375 (quotation marks omitted). "Claim preclusion bars relitigation if: (1) the same parties or their 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." Macomber v. Macquinn-Tweedie, 2003 ME 121, ¶ 22, 834 A.2d 131. "A party asserting collateral estoppel has the burden of demonstrating that the specific issue was actually decided in the earlier proceeding." Id. ¶ 25 (citing 18 Charles Alan Wright et al., Federal Practice and Procedure § 4420 (2d ed. 2002)).

Despite the Law Court's holding that the 2018 Judgment did not address the South Yard, Mr. Smith and Cunner Lane II, LLC argue that Ms. Fissmer's claims to the South Yard were already ruled on in the 2018 Judgment and affirmed on appeal. Defendants argue that Justice Walker intentionally omitted discussion of areas that he concluded she did not adversely possess because Plaintiffs' Amended Complaint requested a judgment only as to "the extent" of her adverse possession. This argument is not borne out by the language of the Amended Complaint, which states:

To the extent that the Plaintiffs' Properties (or the area on the face of the earth used by Plaintiffs as their respective properties) extends past the deeded boundary line of Defendants' Property (all such areas defined as "Adverse Possession Areas"), Plaintiffs seek a declaration that title to such Adverse Possession Areas now vests in each of them, respectively, through adverse possession.

(Pls.' Am. Compl. ¶ 46.) Plaintiffs did not request a declaratory judgment as to "the extent" of their adverse possession. Defendants' argument mischaracterizes the 2018 Judgment and the Amended Complaint.

Moreover, neither claim preclusion nor issue preclusion apply to continuing actions. Although Ms. Fissmer can neither raise new claims nor relitigate issues decided and affirmed on appeal, her claims regarding the South Yard were previously raised in this action and remain unresolved. Accordingly, Ms. Fissmer's claims are not barred.

B. Plaintiffs' Motion for Entry of Judgment

Plaintiffs move for entry of a judgment declaring that Ms. Fissmer has acquired title in fee simple by adverse possession to the South Yard. '"A party claiming title by adverse possession has the burden of proving, by a preponderance of the evidence,, that possession and use of the property was (1) actual; (2) open; (3) visible; (4) notorious; (5) hostile; (6) under a claim of right; (7) continuous; (8) exclusive; and (9) for a duration exceeding the twenty-year limitations period/" Fissmer, 2019 ME 130, ¶ 41, 214 A.3d 1054 (quoting Weeks v. Krysa, 2008 ME 120, ¶ 12,955 A.2d 234). Plaintiffs argue that the findings of fact made in the 2018 Judgment provide a sufficient basis for this conclusion.

In fact, the 2018 Judgment makes few findings regarding the South Yard. The...