Frederick B. Lincoln v. Harold Burbank II , 2016 Me. LEXIS 150 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 138 Docket: Pen-15-440
Submitted
On Briefs: May 26, 2016
Decided: August 30, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
FREDERICK B. LINCOLN et al.
v.
HAROLD BURBANK II et al.
ALEXANDER, J.
[¶1] Harold Burbank II appeals from a judgment of the Superior Court
(Penobscot County, A. Murray, J.) (1) finding in favor of the owners of
neighboring properties on their claims for a prescriptive easement,
declaratory judgment, conversion, and punitive damages;1 and (2) finding in
favor of co-owners of property with Burbank on their cross-claim for partition
by sale of that property.2
[¶2] Burbank is the owner of what the court found to be a 1/18 interest
in a coastal property in Northport (the “Burbank property”). The Burbank
1 The court denied the neighbors’ claim for trespass against Burbank. The neighbors do not
appeal that decision.
2 The court found in favor of the co-owners on Burbank’s cross-claim seeking an injunction
precluding the co-owners from entering into agreements with the neighbors to convey an easement
in the property at issue in this suit. Burbank does not appeal from that judgment.
2
property is owned in joint tenancy by fourteen owners, all of whom were
defendants at trial. At the trial, Harold Burbank II acted as counsel3 for four
defendants: himself, his father Harold Burbank I, his sister Lori Darnell, and
his brother David Burbank (collectively “the Burbank Defendants”).
[¶3] The plaintiffs—Frederick B. Lincoln, Norman Moscow, Eleanor
Moscow, Joan R. Kosel, Bruce C. Gerrity, John Fleming, and Suellyn Fleming
(collectively “the Neighbors”)—are the owners of a cluster of properties
neighboring the Burbank property, who successfully asserted that they had
acquired an easement over a portion of the Burbank property.
[¶4] The other ten owners of the Burbank property—Elizabeth Smith
as Trustee of The Russell Smith Estate Reduction Trust, Sandra Tozier, Suzette
Cyr, Christopher Smith, Nathanial Jennings, Susannah Corona, Luther
Jennings, Rebeccah Jennings, Pamela Sullivan, and Sonia Burbank (collectively
“the Co-owners”), were also named as defendants. The Co-owners attempted
to settle with the Neighbors and later cross-claimed against the Burbank
Defendants for partition by sale of the Burbank property.
3 Harold Burbank II is admitted to the practice of law in Maine and Connecticut. A separate
Maine law firm appeared for the part of the trial that included Harold Burbank II’s testimony,
perhaps to limit concern about an attorney who was also a party testifying at a trial while also
representing other parties.
3
[¶5] Harold Burbank II is the only party appealing.4 He argues that
• the evidence was insufficient to support the trial court’s finding of a
prescriptive easement;
• the trial court erred and abused its discretion by granting partition
by sale of the Burbank property;
• the trial court erred as a matter of law by finding Burbank liable for
conversion;
• the trial court should have bifurcated the trials on the Neighbors’ and
the Co-owners’ claims;
• the Neighbors and the Co-owners lacked standing to bring their
respective actions;
• the trial court’s grant of a prescriptive easement constitutes a taking
in violation of the Fifth Amendment to the United States Constitution;
• the trial court erred by declining to reopen the record and permit the
testimony of an additional witness who, although present at trial, was
not called to testify; and
• the trial court failed to address several affirmative defenses.
[¶6] The trial court issued a thorough, carefully considered judgment,
supported by extensive findings and conclusions and accurate legal analysis.
Because the court did not err when it granted a prescriptive easement or
ordered partition by sale of the property, and because the remainder of
Burbank’s arguments are either improperly raised, meritless, or both, we
4 All of the other Burbank Defendants indicated, after trial, that they did not wish to participate
in the appeal.
4
affirm the judgment and, on separate motions of the Neighbors and the
Co-owners, we order sanctions against Burbank pursuant to M.R. App. P. 13(f).
I. CASE HISTORY
[¶7] The court found the following facts by a preponderance of the
evidence, and these facts are supported by the trial record. See Androkites v.
White, 2010 ME 133, ¶¶ 12, 14, 10 A.3d 677.
[¶8] The Burbank property in Northport has been owned by various
members of the Burbank family since 1940. In 1993, Phyllis Burbank gifted
the Burbank property to her nineteen then-living children and grandchildren,
including Harold Burbank II, as joint tenants.5 The gift was made by warranty
deed, and the property was transferred in fee simple with no reservation of
any right or interest in the property. At the same time, Phyllis Burbank
executed a will leaving certain stock to a trust to be used for maintenance of
the property. Phyllis Burbank died in 1996.
[¶9] The Burbank property is on Penobscot Bay, and until 2012 there
were two sets of stairs on the property leading down an embankment to a
beach. One set of stairs was used by Phyllis Burbank and her family. The
other set of stairs, which we will refer to as “the Neighbors’ stairs,” led to a
5 The defendants in this case are the grantees and their successors in interest.
5
path running over a portion of the Burbank property and onto the abutting
property. The Neighbors used the path and the Neighbors’ stairs to access the
beach from their cottages, which are located in a group abutting or near to the
Burbank property. The two sets of stairs led to opposite sides of a largely
impassable gully that separates the Burbank property from the Neighbors’
properties.
[¶10] The path and the Neighbors’ stairs had been in place since at least
the early 1930s6 and had been used continuously by the Neighbors and their
predecessors to access the beach since that time. The Neighbors and their
predecessors maintained the Neighbors’ stairs. A person using the path is
clearly visible to people at the cottage located on the Burbank property. No
owner of the Burbank property ever gave permission for the Neighbors to use
the path and stairs, nor did any owner prohibit use of the path and stairs until
the 1990s. At least twenty years of continuous use by each Neighbor had
occurred before any signs were posted indicating a lack of acquiescence to the
Neighbors’ use of the path and stairs.7
6
There was testimony that the Neighbors’ stairs did not exist until the 1960s. The court
specifically found that this testimony was not credible.
7 There was testimony that a no trespassing sign was put across the path in the late 1960s. The
court specifically found that this testimony was not credible.
6
[¶11] Beginning in the late 1990s, some of the owners of the Burbank
property began posting no trespassing signs on the path; other owners of the
Burbank property opposed posting the signs and removed them.
[¶12] In April 2012, Harold Burbank II discovered that vegetation had
been removed from the Burbank property and contacted the Maine
Department of Environmental Protection (DEP) and the Northport Code
Enforcement Officer to ask whether the cutting constituted a violation of
shoreland zoning regulations. Burbank also inquired whether it was a
violation to have two sets of stairs leading to the beach on the property.
Burbank persistently requested that the Town issue a notice of violation
requiring that one of the sets of stairs be removed. The Town eventually
issued a notice of violation in July 2012. The notice of violation required that
one set of stairs be removed by August 31, 2012. The Code Enforcement
Officer testified that this was the first time in his twelve years as a code
enforcement officer that a landowner had self-reported a violation.
[¶13] Burbank did not communicate with the other owners of the
Burbank property or the Neighbors prior to seeking and securing the issuance
of the notice of violation. When they learned of the notice of violation, at least
7
one other owner of the Burbank property told Burbank not to remove the
Neighbors’ stairs.
[¶14] Burbank did not inform the DEP or the Town that the stairs had
been in place prior to the enactment of the shoreland zoning regulations, or
that the Neighbors had a potential claim to the stairs. When the DEP learned
these facts, it informed Burbank that the stairs might constitute a legal
nonconforming structure and requested that removal of the stairs be put on
hold. The DEP sent a letter to the Town and a copy of the letter to Burbank
suggesting that the stairs predated the 1992 enactment of Northport’s
shoreland zoning regulations and requesting that enforcement be put on hold.
Burbank responded by suggesting that he would sue the Town if it did not
continue enforcement efforts. The Town did not withdraw the notice of
violation, but it did not take any enforcement action.
[¶15] In September 2012, Burbank, acting on his own, tore out and
removed the stairs. Burbank did not notify the Neighbors or the other owners
of the Burbank property prior to removing the stairs. The court specifically
found that Burbank “used the Town to advance his own agenda to remove the
[Neighbors’] stairs.”
8
[¶16] The Burbank property is currently owned by fourteen people.
The court found that many of the owners “can no longer tolerate owning the
property with certain of the other co-owners.” There had been ongoing
conflicts among the owners since Phyllis Burbank’s death, and family
members had discussed partitioning the property since 2005 or 2006. The
trial court found that there were a number of reasons the Co-owners were
seeking partition, and that the reasons “centered on perceptions that Harold
Burbank II wanted to control the property, his lack of meaningful
communications with others, his lack of respect for the views of the other
owners of the property, and his unilateral action” in obtaining the notice of
violation and tearing out the Neighbors’ stairs. The court found that there is a
clear inability to communicate among the owners of the Burbank property
and noted that “Harold Burbank I, while not wanting the property sold,
testified that he would rather face the North Koreans at war again rather than
coordinate with certain members of the family about the property.”
[¶17] The procedural history of this case is extensive and reflects
approximately 125 filings by the three sets of parties. The majority of this
history is not addressed, as it is not relevant to this appeal.
9
[¶18] In February 2013, the Neighbors filed a complaint against all of
the owners of the Burbank property. The complaint sought an easement
across the Burbank property pursuant to several different theories and sought
a declaratory judgment granting the Neighbors an easement over the existing
path and the right to install and maintain stairs to the beach. The complaint
also included claims for trespass, conversion, and punitive damages against
Burbank individually.
[¶19] In April 2014, after the Co-owners entered into a settlement
agreement with the Neighbors purporting to grant the Neighbors an easement
over the Burbank property, the Burbank Defendants brought a cross-claim
against the Co-owners, seeking an injunction to prevent the Co-owners from
entering into any such agreements in the future. In May 2014, the Co-owners
brought a cross-claim against the Burbank Defendants seeking partition by
sale of the Burbank property.
[¶20] The Burbank Defendants moved to bifurcate the trial and hold
separate trials on the Neighbors’ claims for an easement and the Co-owners’
cross-claim for partition. The court denied this motion on the first day of the
three-day bench trial that it held in May 2015.
10
II. THE TRIAL COURT JUDGMENT AND APPEAL
[¶21] On August 12, 2015, the court entered a written judgment finding
for the Neighbors on their claims for an easement by prescription, conversion,
and punitive damages. The court issued a declaratory judgment granting the
Neighbors an easement appurtenant across the Burbank property to access
the beach by foot over the existing path and permitting them to install and
maintain a set of stairs. On the conversion claim based on removal of the
stairs, the court awarded the Neighbors damages of $5,000 to be recovered
from Harold Burbank II. After finding by clear and convincing evidence that
Burbank had acted with malice toward the Neighbors in removing the stairs
and considering the reprehensibility of Burbank’s conduct and the harm he
had caused the Neighbors, the court awarded the Neighbors $15,000 in
punitive damages to be recovered from Burbank. The court found for
Burbank on the Neighbors’ claim for trespass.
[¶22] On the cross-claims in the action between the Burbank
Defendants and the Co-owners, the court found against the Burbank
Defendants on their cross-claim for an injunction. The court found for the
Co-owners on their cross-claim for a partition by sale of the Burbank property
and ordered sale of the property and division of proceeds. Because of the
11
demonstrated difficulties of the property owners in cooperating with each
other, the court’s judgment appropriately specified a detailed process for
coordinating the sale of the property.
[¶23] After trial but before the court issued its judgment or made any
findings, the Burbank Defendants filed two motions to amend the court’s
findings, arguing, in part, that the court should reopen the record and allow
Burbank’s mother—who was included on the Burbank Defendants’ original
witness list and was present at the trial—to testify. The court denied these
motions. After the court issued its judgment, Burbank, acting alone, filed a
motion to alter or amend the court’s judgment, reasserting his argument that
his mother should be allowed to testify, which the court again denied. This
appeal followed.
[¶24] Burbank filed his brief as appellant. Burbank’s brief states facts
not in the trial court record. His brief was supplemented by supporting
documents adding facts not in the trial court record. The Neighbors and the
Co-owners each filed a brief as appellees. Burbank then filed two reply briefs
totaling thirty-three pages. The Neighbors and the Co-owners each moved to
strike one or both of Burbank’s reply briefs for failure to comply with
M.R. App. P. 9(c), and each filed a motion, pursuant to M.R. App. P. 13(f), to
12
sanction Burbank for his conduct in the appeal. Burbank filed a response to
the motions for sanctions, and we ordered that the motions for sanctions and
to strike would be considered with the merits of the appeal.
III. LEGAL ANALYSIS
A. Prescriptive Easement
[¶25] Burbank argues that there was insufficient evidence to support
the trial court’s finding that the Neighbors proved the elements of a
prescriptive easement across the Burbank property.
[¶26] We review questions of law related to easements de novo and
review a trial court’s factual findings as to the elements of a prescriptive
easement for clear error. Androkites, 2010 ME 133, ¶ 12, 10 A.3d 677. We
defer to a trial court’s assessment of witness credibility and resolution of
conflicting testimony. Gordon v. Cheskin, 2013 ME 113, ¶ 12, 82 A.3d 1221.
[¶27] A party claiming a prescriptive easement must prove three
elements by a preponderance of the evidence: “(1) continuous use for at least
twenty years; (2) under a claim of right adverse to the owner; (3) with the
owner’s knowledge and acquiescence, or with a use so open, notorious,
visible, and uninterrupted that knowledge and acquiescence will be
presumed.” Androkites, 2010 ME 133, ¶ 14, 10 A.3d 677; 14 M.R.S. § 812
13
(2015). Adversity exists when the party “has received no permission from the
owner of the soil, and uses the way as the owner would use it, disregarding
[the owner’s] claims entirely, using it as though [she] owned the property
[her]self.” Androkites, 2010 ME 133, ¶ 16, 10 A.3d 677 (alterations in
original). “Acquiescence implies passive assent or submission to the use, as
distinguished from the granting of a license or permission . . . . Acquiescence
is consent by silence.” Stickney v. City of Saco, 2001 ME 69, ¶ 23, 770 A.2d 592 (citation omitted). Either a grant of permission or an express protestation
will defeat a claim for a prescriptive easement. See Androkites, 2010 ME 133,
¶ 16, 10 A.3d 677; Taylor v. Nutter, 687 A.2d 632, 634-35 (Me. 1996).
[¶28] Opposing the finding of a prescriptive easement, Burbank asserts
four arguments on this appeal.
[¶29] First, Burbank argues that there was insufficient evidence of the
specific “nature, duration and type of use” the Neighbors made of the property
for the court to find each element of adverse possession by a preponderance
of the evidence. Burbank points to several witnesses whose testimony, if
found credible, might have undermined the Neighbors’ claim for a
prescriptive easement. In each case, the trial court specifically explained why
it did not find the testimony credible and how the court was resolving
14
apparent conflicts in the testimony. We will not interfere with the trial court’s
thorough analysis of abundant and often conflicting testimony. See Gordon,
2013 ME 113, ¶ 12, 82 A.3d 1221.
[¶30] Second, Burbank argues that there was testimony that prior
owners of the Burbank property discussed their concerns regarding the
Neighbors and their predecessors using the path and stairs, thus undermining
the court’s finding of acquiescence. Specifically, Burbank points to testimony
regarding two conversations: one between two prior owners, and another
between a prior owner and a neighbor who is not a plaintiff or a plaintiff’s
predecessor in interest and did not use the stairs or path at issue here.
Because a denial of the right to use property must be communicated to the
potential adverse possessor to foreclose a finding that the owner acquiesced
to the adverse possessor’s use, the testimony Burbank cites does not
undermine the trial court’s findings. See Dowley v. Morency, 1999 ME 137,
¶¶ 23-24, 737 A.2d 1061; Rollins v. Blackden, 112 Me. 459, 466-67, 92 A. 521,
526 (1914).
[¶31] Third, Burbank argues that the close neighborly relationship
between the Neighbors and the current and former owners of the Burbank
property precludes a finding that the Neighbors’ use of the path and stairs was
15
adverse. When the plaintiff has used the property continuously for twenty
years and the property owner acquiesced to that use, a court ordinarily may
presume that the use was adverse to the owner’s rights. Androkites, 2010 ME
133, ¶¶ 14, 17, 10 A.3d 677. When the use at issue is by family members
using one another’s property, however, the familial relationship precludes
application of this presumption. Id. ¶ 18. We have never applied this
reasoning to unrelated neighbors. We do not reach the question of whether to
extend the blood relative exception to unrelated neighbors because the trial
court, noting the lack of case law on application of the presumption in cases
involving neighborly relations, specifically found adversity both by
presumption and without application of the presumption, and the record
supports these findings.
[¶32] Finally, Burbank argues that the court erred by failing to apply a
presumption of permission. This presumption arises only when the public
uses private property for recreational uses, and is inapplicable to the
Neighbors’ claim for a private prescriptive easement. See, e.g., Almeder v.
Town of Kennebunkport, 2014 ME 139, ¶ 29, 106 A.3d 1099; Lyons v. Baptist
Sch. of Christian Training, 2002 ME 137, ¶ 19, 804 A.2d 364.
16
[¶33] The court properly applied prescriptive easement law, and the
court’s finding of each element of the prescriptive easement claim by a
preponderance of the evidence is supported by competent record evidence.
See Androkites, 2010 ME 133, ¶ 12, 10 A.3d 677. Accordingly, we affirm the
court’s judgment as to the Neighbors’ prescriptive easement claim.
B. Partition by Sale
[¶34] Burbank argues that the Co-owners lacked the right to seek a
partition because the deed gifting the Burbank property and Phyllis Burbank’s
will, when read together, demonstrate Phyllis Burbank’s intent to deprive the
grantees of this right. Burbank also argues that partition is inappropriate
because the deed and will create interests in the property held by his children,
Phyllis Burbank’s great-grandchildren.
[¶35] Interpretation of unambiguous deeds and wills is a question of
law that we review de novo. Sleeper v. Loring, 2013 ME 112, ¶ 10, 83 A.3d 769 (deeds); Estate of Silsby, 2006 ME 138, ¶ 15, 914 A.2d 703 (wills). In both
instances, we look first to the plain language of the document to determine the
intent of the parties. Silsby, ¶¶ 15, 18 (wills); Matteson v. Batchelder, 2011 ME
134, ¶ 16, 32 A.3d 1059 (deeds).
17
[¶36] Here, the documents demonstrate that Phyllis Burbank gifted the
Burbank property in fee simple to her children and grandchildren as joint
tenants with no reservation of rights or other restrictions on their ownership.
This transaction was complete in 1993, three years before Phyllis Burbank’s
death. Phyllis Burbank’s will devised certain stock to a trust to be used for
maintenance of the property, but her will makes no attempt to convey,
burden, or otherwise address the Burbank property or the rights of its
owners.
[¶37] There is no reasonable interpretation of these documents that
places any limitation on the rights of the owners of the Burbank property to
partition the property or otherwise dispose of their interests in it. In fact, the
will appears to contemplate the possibility of a sale of the property. In stating
the conditions for termination of the trust, the will states, “Upon the death of
my last surviving child and grandchild, or upon the sale of the [Burbank
property] to a person or persons not my lineal descendants, the Trust shall
terminate.” (Emphasis added.) There is no basis for Burbank’s interpretation
of the deed and will as either restricting sale of the Burbank property or
creating rights in the property held by Phyllis Burbank’s great-grandchildren.
We, therefore, affirm the trial court’s grant of partition by sale.
18
C. Conversion
[¶38] Burbank argues that he cannot be held liable for conversion
because he acted pursuant to the Town’s notice of violation when he tore out
and removed the Neighbors’ stairs. We have not provided guidance on this
particular point previously, and Burbank failed to produce a developed
argument as to this issue. We deem the issue waived. See Mehlhorn v. Derby,
2006 ME 110, ¶ 11, 905 A.2d 290; Casillas-Diaz v. Palau, 463 F.3d 77, 84
(1st Cir. 2006). We note, however, that although the Town of Northport never
formally withdrew the notice of violation requiring removal of a set of stairs
on the Burbank property, Burbank was aware that, at the direction of the DEP,
the enforcement action had been put on hold pending resolution of issues
surrounding the age and potentially grandfathered status of the stairs and the
Neighbors’ claim to rights in the stairs. The evidence demonstrates that
Burbank sought and obtained the notice of violation as a pretense for removal
of the stairs. He may not, in these circumstances, claim to be innocently
complying with local law. We affirm the trial court’s finding that Burbank is
liable for conversion.
19
D. Bifurcation
[¶39] Burbank lists as an issue whether the court abused its discretion
when it refused to bifurcate the proceedings and hold separate trials on the
Neighbors’ claims and the Co-owners’ claim for partition. Burbank provides
no further argument on this issue, and we deem this issue waived.
See Mehlhorn, 2006 ME 110, ¶ 11, 905 A.2d 290.
[¶40] Even if this issue were properly presented on appeal, it is
meritless. A court should consider the following factors as militating against
bifurcating trials: “1) substantial identity of the parties, and the witnesses,
2) overlapping evidence, 3) relatively simple issues, 4) relative times required
for litigating different issues, and 5) the absence of discernable prejudice to
the parties.” Estate of McCormick, 2001 ME 24, ¶ 40, 765 A.2d 552. Most, if
not all, of these factors apply in this case. It was not an abuse of discretion for
the court to refuse to bifurcate the proceedings. See id.; M.R. Civ. P. 42(b).
E. Remaining Issues
[¶41] Burbank’s remaining issues are frivolous, and we do not address
them. Additionally, with the exception of his argument that the grant of a
prescriptive easement constitutes a judicial taking, none of his remaining
issues were properly raised. Several of the issues were argued to the trial
20
court but not raised on appeal except in Burbank’s reply briefs. An issue
raised for the first time in a reply brief may be viewed as not preserved for
appeal. See State v. Blais, 416 A.2d 1253, 1256 n.2 (Me. 1980); Young v. Wells
Fargo Bank, N.A., 717 F.3d 224, 239 (1st Cir. 2013) (“We have repeatedly held,
‘with a regularity bordering on the monotonous,’ that arguments not raised in
an opening brief are waived.” (quoting Waste Mgmt. Holdings, Inc. v. Mowbray,
208 F.3d 288, 299 (1st Cir. 2000))). One of the issues was raised for the first
time in a response to a motion made before us during the appellate process.
[¶42] Accordingly, we affirm the trial court’s judgment.
IV. MOTIONS ON APPEAL
A. Motion to Strike Reply Briefs
[¶43] The Neighbors and the Co-owners each moved to strike one or
both of Burbank’s two reply briefs. Burbank did not file any timely opposition
to the motions to strike.
[¶44] Rule 9(c) of the Maine Rules of Appellate Procedure provides that
a reply brief may not exceed twenty pages without prior approval. Taken
together, Burbank’s reply briefs constitute thirty-three pages of reply.
Burbank did not receive leave to exceed the page limit. Rule 9(c) further
provides that upon filing of the reply brief, “[n]o further briefs may be filed
21
except with leave of the Law Court.” To the extent Burbank’s second reply
brief is considered an additional brief, Burbank did not seek or receive leave
to file it. Finally, Rule 9(c) provides that reply briefs “must be strictly confined
to replying to new matter raised in the brief of the appellee.” Burbank’s reply
briefs are not confined to new matter raised in the appellees’ briefs and raise
new issues not argued in his initial brief.
[¶45] While it is within our discretion to strike one or both of
Burbank’s reply briefs, this action is unnecessary because we find no merit in
any of Burbank’s arguments on appeal, including those raised in his reply
briefs.
B. Sanctions
[¶46] Rule 13(f) of the Maine Rules of Appellate Procedure provides
that we may impose sanctions against a party on appeal when we determine
that an appeal or action taken in the course of an appeal “is frivolous,
contumacious, or instituted primarily for the purpose of delay.” The First
Circuit has observed: “To support a finding of frivolousness, some degree of
fault is required, but the fault need not be a wicked or subjectively reckless
state of mind; rather, an individual ‘must, at the very least, be culpably
careless to commit a violation.’” Roger Edwards, LLC v. Fiddes & Son, Ltd.,
22
437 F.3d 140, 142 (1st Cir. 2006) (quoting Young v. City of Providence,
404 F.3d 33, 39 (1st Cir. 2005)). We have stated that sanctions are reserved
for “egregious cases.” Auburn Harpswell Ass’n v. Day, 438 A.2d 234, 238-39
(Me. 1981).8
[¶47] Burbank has had both notice of the potential for sanctions on this
appeal (and similar notice at the trial court level), and an opportunity to be
heard on the motion for sanctions, which he treated with the same disregard
for deadlines as he has treated other court rules. The Neighbors and the
Co-owners each moved for sanctions against Burbank pursuant to M.R. App. P.
13(f). In his untimely9 response to those motions, Burbank argues that
sanctions are not appropriate because the moving parties lack standing and
the trial court’s judgment is not adequately supported by the evidence.
Burbank’s opposition to the motions for sanctions then raises new arguments
not contained in his briefs and asserts several new allegations of fact not
contained in the trial court record.
8 Opinions in which we have addressed the imposition of sanctions for misconduct on appeal
include: Key Equipment Finance, Inc. v. Hawkins, 2009 ME 117, ¶¶ 21-24, 985 A.2d 1139,
reconsideration denied, 2011 ME 102, ¶¶ 1, 7-9, 28 A.3d 1168; Finch v. Higgins, 2008 ME 13,
¶¶ 10-14, 953 A.2d 1142; Hayden v. Orfe, 2006 ME 56, ¶¶ 7-9, 896 A.2d 968; Monty v. Monty,
2004 ME 6, ¶ 1, 840 A.2d 106; Rothstein v. Maloney, 2002 ME 179, ¶¶ 11-12, 816 A.2d 812; and
Waxler v. Central Maine Power Company, 2001 ME 135, ¶ 3, 780 A.2d 1134.
9 M.R. App. P. 10(c) requires that all responses to motions be filed within seven days. Burbank
filed his responses to the motions seventeen and twenty-one days after the motions were filed.
23
[¶48] Burbank initiated the handling of this appeal with the same
cavalier attitude that he demonstrated in his handling of the steps at issue in
this case. He did not communicate with the appellees in order to reach some
agreement on the contents of the Appendix; he attempted to include in the
Appendix documents that were not part of the record below; he failed to
respond to a direct order requiring him to explain how he, as the appellant,
could purport to represent some of the appellees; he filed a brief “bound” with
twine; and as noted above, he failed to comply with M.R. App. P. 9(c), filing a
second reply brief without permission.
[¶49] Burbank’s brief on appeal demonstrated this same contumacious
attitude, a fact he apparently recognized, as, in his request for oral argument,
Burbank asserted that some of his filings before us “were not properly edited
before being submitted to the Court,” and argued for a chance to “correct and
clarify these errors, so the Court may be certain that Appellant certainly did
not intend them or to offend the dignity and authority of the Court.”
[¶50] Burbank’s request for oral argument included statements that
further highlight the impropriety of his actions in this appeal. Beyond
conceding the impropriety of some statements in his several appellate briefs,
in Burbank’s request for oral argument he proposed to represent the views of
24
the other Burbank Defendants regarding “the facts and the law.” The other
Burbank Defendants have declined to have Burbank represent them on appeal
and are not participating in this appeal. Burbank, as a member of the Maine
bar, must understand that he cannot represent on appeal persons who have
declined to appeal and declined to have him represent them on appeal. In
fact, in the motion to withdraw that he filed on February 25, 2016, Burbank
admitted that the other Burbank Defendants did not want him to file an appeal
on their behalf.
[¶51] In his request for oral argument Burbank also proposed to testify
or otherwise present facts to clarify what his father “meant in his testimony”
which the trial court found, in part, to be contradictory and not credible.
There can be no question that presenting new facts or other evidence by brief
or oral argument is not proper appellate advocacy. Beane v. Me. Ins. Guar.
Ass’n, 2005 ME 104, ¶¶ 9-11, 880 A.2d 284. Burbank’s several briefs include a
number of statements about facts that do not appear in the trial court record
and thus are improperly offered for consideration on appeal. Id. Burbank also filed a “Supplement of Legal Authorities” that includes evidentiary materials
and fact statements not in the trial court record, including an advocacy
document that Burbank had filed with a private mediator that, as a document
25
apparently used in settlement efforts, could not have been used at trial
pursuant to M.R. Evid. 408(b), and, consequently, was improperly filed with
the appeal documents.
[¶52] Beyond his purported representation of people who do not wish
to be represented by him, his failure to comply with the logistical rules, his
attempt to present new evidence at an appellate proceeding, and his
contentious and unprofessional tone, Burbank makes several arguments in
support of his appeal that are frivolous and devoid of legal authority to
support them.
[¶53] Asserting propositions of law not supported by statute or
precedent, absent a good faith effort to evolve the law, is an indication of
frivolousness that can subject a party to sanctions. Finch v. Higgins, 2008 ME
13, ¶¶ 10-14, 953 A.2d 1142; see also M.R. Prof. Conduct 3.3(a)(1), (2);
Hilmon Co. V.I. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir. 1990).
[¶54] Reviewing Burbank’s arguments, first he argues that the court’s
award of a private prescriptive easement to private parties to cross private
property on foot is somehow a government taking of land without just
compensation. The only authorities Burbank offered to support this claim are
a United States Supreme Court opinion and a law review article. The United
26
States Supreme Court opinion, Stop the Beach Renourishment, Inc. v. Florida
Department of Environmental Protection, affirmed the Florida Supreme Court’s
rejection of a regulatory takings claim and its holding that no takings had
occurred when the state placed sand on public beaches in front of plaintiffs’
properties to limit or reverse beach erosion. 560 U.S. 702 (2010). Private
prescriptive easement actions were not addressed. Such actions between
private individuals are constitutionally no different than actions for damages,
debt collections, forcible entry and detainer, or replevin seeking transfers of
money or property interests from one private entity to another. These court
actions are not a government taking of property, and Burbank’s argument
otherwise is frivolous and baseless.
[¶55] Second, Burbank argues that neither the Neighbors nor the Co-
owners had standing to bring their respective claims. In effect, he asserts that
although the Neighbors demonstrated adverse use of a footpath across the
Burbank property for three-quarters of a century, they somehow lacked
standing to bring a prescriptive easement action. And he asserts that although
the relationship among the many joint owners of the Burbank property had
become dysfunctional, the Co-owners somehow lacked standing to bring the
partition action.
27
[¶56] Burbank argues that the Neighbors lacked standing to claim a
prescriptive easement because they could not demonstrate a particularized
injury. Although somewhat unclear, he appears to argue that the Neighbors
had no rights in the disputed property prior to the court’s award of a
prescriptive easement, and they could not, therefore, show they suffered any
injury at the time they brought the action.
[¶57] Burbank argues that the Co-owners lacked standing because their
counter-claim for partition was brought pursuant to 14 M.R.S. § 6501 (2015),
which, he argues, does not authorize partition by sale. Contrary to Burbank’s
contention, partition by sale is available pursuant to the court’s equity
jurisdiction, as preserved by 14 M.R.S. § 6051(13) (2015). See Libby v.
Lorrain, 430 A.2d 37, 39 (Me. 1981). Burbank’s standing arguments are
frivolous and baseless.
[¶58] Third, Burbank contends that the evidence in the record is
insufficient to support the court’s finding of a prescriptive easement. To
support his argument, Burbank asks us to disregard the trial court’s explicit
determination that certain witnesses’ testimony was not credible. Regarding
each witness cited by Burbank, the trial court, although it was not required to
28
do so, specifically stated why it did not find the testimony credible and how
the court resolved apparent conflicts in the testimony.
[¶59] On factual issues, we conduct a deferential review for clear error,
meaning that we will defer to the fact-finder’s decision as to (1) which
witnesses to believe and not believe, (2) what significance to attach to
particular evidence or exhibits, and (3) what inferences may or may not be
drawn from evidence or exhibits. See Stickney, 2001 ME 69, ¶ 13, 770 A.2d
592; Sturtevant v. Town of Winthrop, 1999 ME 84, ¶ 9, 732 A.2d 264; Lewisohn
v. State, 433 A.2d 351, 354 (Me. 1981). The existence of contrary evidence
that would support a different result, without more, will not justify vacating
the trial court’s fact-findings. Preston v. Tracy, 2008 ME 34, ¶¶ 10-11, 942
A.2d 718. We “will not substitute our judgment as to the weight or credibility
of the evidence for that of the fact-finder if there is evidence in the record to
rationally support the trial court’s result.” State v. Connor, 2009 ME 91, ¶ 9,
977 A.2d 1003. Burbank’s argument that we should disregard our established
standards of appellate review and decide witness credibility issues based on
his representations, ignoring the trial court’s explicit findings on credibility
issues, is frivolous and baseless.
29
[¶60] Fourth, Burbank argues that we are not bound to the confines of
the trial court record, and may look outside that record when considering the
facts on appeal. Contrary to Burbank’s contention, our “review of the merits
of an appeal is limited to the facts and evidence in the record before the trial
court.” Beane, 2005 ME 104, ¶ 9, 880 A.2d 284. Burbank’s argument that we
should disregard fundamental standards of appellate review to consider and
decide the appeal on new facts he has presented on appeal is frivolous and
baseless.
[¶61] Throughout the various stages of this appeal, in his briefs, his
Supplement of Legal Authorities, his request for oral argument, and his
responses to opposing parties’ motions, Burbank has consistently disregarded
standards of law and practice that govern appellate review. He has asserted
legal arguments that are frivolous and baseless, and, contrary to governing
precedent, he has sought to have us consider and decide the appeal on new
facts and new evidence that were not part of the trial court record on appeal.
Burbank’s efforts have been disrespectful to the proper role of the trial court,
unfair to and expensive for the other parties, and contrary to Maine appellate
law. Burbank’s frivolous and baseless actions are egregious conduct that has
confused the issues on appeal, delayed final resolution of this matter, and
30
significantly driven up the costs to other parties. Although the actions taken
by Burbank would be concerning if he were a litigant unschooled in law, we
note that Burbank is not only an attorney, but an attorney who is licensed to
practice in Maine. He is, therefore, presumed to be familiar with our case law,
our statutes, and our Rules; his actions demonstrate either a complete lack of
understanding or an intentional flouting of those guides.
[¶62] Rule 13(f) recognizes our inherent authority, upon a
determination that an appeal, argument, or motion is frivolous, contumacious,
or instituted primarily for the purpose of delay, to award an opposing party or
their counsel a sanction that may include treble costs and reasonable
expenses. Authority to award costs is also provided by 14 M.R.S. § 1802
(2015). In trial courts and on appeal, attorney fees may be awarded for
egregious conduct in the course of litigation. Soley v. Karll, 2004 ME 89, ¶ 11,
853 A.2d 755. When we award attorney fees on appeal, we may set a fixed
sum to be paid towards attorney fees. See, e.g., Estate of Dineen, 2006 ME 108,
¶ 8, 904 A.2d 417.
[¶63] As with other rules, the rules regarding sanctions and
determinations that an appeal is frivolous are applied equally to represented
and unrepresented parties. Dep’t of Health & Human Servs. v. Tardif, 2009 ME
31 75, ¶ 7, 976 A.2d 963; Edwards v. Campbell, 2008 ME 173, ¶ 11, 960 A.2d 324.
Although he purports to speak for or represent the interests of parties who
are not participating in this appeal, and although he is an attorney, we
consider Burbank to be unrepresented for purpose of our consideration of
sanctions. However, attorneys who represent themselves on appeal are
assumed to be aware of court rules and their ethical obligations in prosecuting
their own appeals. Marshall v. Webber, 2008 ME 126, ¶ 4, 955 A.2d 751.
[¶64] Based on the above findings and discussion of sanctions, we
conclude that Harold Burbank II should be sanctioned for his repeated
misconduct in prosecuting this appeal. As a sanction, Harold Burbank II is
required to pay the Neighbors $5,000 toward their attorney fees incurred to
defend this appeal, and he is required to pay the Co-owners $5,000 toward
their attorney fees incurred to defend this appeal. The Neighbors and the
Co-owners are also awarded treble costs on appeal.
The entry is:
Judgment affirmed. Attorney fees and costs on
appeal awarded as indicated in this opinion.
32
On the briefs:
Harold Burbank II, Esq., appellant pro se
Jenny Burch, Esq., Weiss & Burch, PA, Bath, for appellees
Elizabeth Smith et al.
Adam J. Shub, Esq., Preti Flaherty Beliveau & Pachios, LLP,
Portland, for appellees Frederick B. Lincoln et al.
Penobscot County Superior Court docket number RE-2014-49
FOR CLERK REFERENCE ONLY