Dean v. Bragdon

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-2018-195

MAYBELLE L. DEAN,
Plaintiff

v. ORDER ON PENDING MOTIONS

PETER BRAGDON,
Defendant

INTRODUCTION
Before the court are several motions in what has become protracted litigation
between these parties. 1 By way ofbackground, in Dean v. Bragdon, KEN-CV-2016­
229 (April 17, 2018) (Stokes, J.) the court found that Ms. Dean was the rightful
owner of the property in dispute and that Mr. Bragdon had not met his burden of
proving his claim of adverse possession. Mr. Bragdon did not appeal that ruling. It
is, therefore, a final judgment.
In November 2018, Dean commenced this action alleging a claim of
"wrongful use of civil proceedings." In a decision and Order dated March 16, 2020,
the court denied Dean's motion for summary judgment, concluding that there were
genuine issues of material fact on the questions of: whether Mr. Bragdon had
"probable cause" to initiate and continue with his adverse possession counterclaim
and, whether Mr. Bragdon pursued his adverse possession counterclaim with a

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The file in this action, with the various pending motions, objections and oppositions was
brought to the court's attention in late April or early May 2022. The court apologizes to the parties
and counsel for the delay in addressing and acting on the pending matters.
pnmary purpose other than that of procurmg its proper adjudication. See
RESTATEMENT (2d) of TORTS§ 674.
Pending before the court are the following motions:
1. Defendant's Motion for Summary Judgment
The Plaintiff opposes this motion. In suppmi of this motion, Mr. Bragdon has
submitted an affidavit and has also presented the Affidavit of Stephen Bourget, Esq.,
his counsel in the underlying action. He contends that there is no genuine issue of
material fact that (1) he had probable cause to assert and maintain his adverse
possession counterclaim, and (2) his primary purpose in making that claim was not
to be malicious and was not otherwise improper. See RESTATEMENT (2d) of Torts
§ 676, cmt. a ("The purpose for which the proceedings are initiated or continued
becomes material only when it is found that they were initiated without probable
cause.")
Both paiiies have filed objections and motions to strike, arguing that each
side has failed to comply with the requirements of summary judgment practice in
accordance with M.R.Civ.P. 56. Without diving too deeply into the weeds, the court
would note that some of those objections may be well-taken. Nevertheless, in
reviewing the summary judgment record, the court is satisfied that Ms. Dean has
generated a genuine issue of material fact, at least on the issue of probable cause,
namely, whether Mr. Bragdon "reasonably believe[ d] in the existence of facts upon
which the [counter]claim [was] based." Similarly, the cou1i concludes that there is
a genuine issue of material fact on the question of Mr. Bragdon's primary purpose
in pursuing the adverse possession counterclaim. There are issues of fact as to what
Mr. Bragdon may have known or not known that precludes the resolution of this
action by way of summary judgment. These issues of fact can only be resolved at
trial, which the court intends to hold in July, 2022.

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2. Plaintiffs Motion for Leave to Take Depositions and to Extend Deadline
for Responding the Defendant's Motion for Summary Judgment
Considering the court's ruling on the motion for summary judgment, it would
appear that this motion is moot. In any event, the motion was untimely and is denied.
3. Plaintiffs Motion for Sanctions
This motion is denied. The court finds that the Defendant's motion for
summary judgment is not frivolous.
4. Plaintiffs Motion to Extend Deadline to Oppose Motion for Summary
Judgment
Ms. Dean's opposition to the Defendant's motion for summary judgment was
filed late, as was her request to extend the deadline. Moreover, the opposition and
the motion to extend were not served upon Mr. Bragdon's counsel but were sent to
his former attorney. The Defendant objects to this motion and urges the court to
deny it and strike Ms. Dean's opposition to his summary judgment motion. See # 5
below. The court finds that there was excusable neglect by Ms. Dean's counsel in
submitting the late filings. The court further finds that it would not serve the goal of
securing a just determination of the action to deny the motion to extend. The motion
to extend is granted, nunc pro tune.
5. Defendant's Motion to Strike Plaintiffs Opposition to Motion for
Summary Judgment
This motion is denied.
6. Plaintiff's Motion to Strike Portions of Defendant's Reply Memorandum
This motion is denied.
7. Defendant's Motion to Strike Plaintiffs Sur-Reply Memorandum
This motion is granted.

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CONCLUSION
The entry is:
Defendant's Motion for Summary Judgment filed on June 3, 2021 1s
DENIED.
Plaintiffs Motion to Take Depositions and to Extend Deadline filed on
June 11, 2021 is DENIED.
Plaintiffs Motion for Sanctions filed July 1, 2021 is DENIED.
Plaintiffs Motion to Extend Deadline filed on July 1, 2021 is GRANTED,
nunc pro tune.
Defendant's Motion to strike Plaintiffs Opposition to Summary
Judgment is DENIED.
Plaintiffs Motion to Strike Portions of Defendant's Reply
Memorandum filed on August 2, 2021 is DENIED.
Defendant's Motion to Strike Plaintiffs Sur-Reply Memorandum filed
on August 6, 2022 is GRANTED.
The Clerk is requested to reach out to counsel for the parties to schedule
this case for a bench trial in July 2022.
The Clerk is directed to incorporate this Order into the docket of this
case by notation reference in accordance with M.R.Civ.P. 79(a).
'
DATED: May 13, 2022
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Entered on the docket 5 l. I Le l -a..d- Superior Court Justice

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STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-2018-195

MAYB ELLE L. DEAN,
Plaintiff

V. DECISION AND ORDER

PETER BRAGDON,
Defendant

INTRODUCTION AND BACKGROUND
Before the court for resolution is the Plaintiff's (Maybelle Dean's) Motion for
Summary Judgment on her Complaint against Peter Bragdon alleging malicious
prosecution. Oral argument on the motion was held on December 18, 2019. The
court allowed the parties to submit additional written argument, the last of which
was received by the court on February 6, 2020. In the court's view, Dean's alleged
cause of action is not one for "malicious prosecution," but rather is more properly
characterized as a claim for "wrongful use of civil proceedings." See Pepperell Trust
Co. v. Mountain Heir Fin. Corp., 1998 ME 46, ~~ 16-17, 708 A.2d 651.
Dean filed this action on November 13, 2018, several months after this court
issued its Decision and Judgment in the matter of Dean v. Bragdon, KEN-Dkt. No.
CV-2016-229 (April 17, 2018) (Stokes, J.). In that matter, Ms. Dean sought a
declaration that she held the right, title and interest in certain real estate in
Vassalboro. Mr. Bragdon counterclaimed seeking a determination that he had
acquired the land in dispute through adverse possession. The court held a two-day
bench trial on January 16 and 18, 2018. In its Decision and Judgment, the court
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concluded that Dean was the rightful owner of the property by deed and that Bragdon
had not met his burden of proving his claim of adverse possession. Bragdon did not
seek appellate review of that judgment and, accordingly, it became final. When the
Decision and Judgment in that action became final, Dean filed her complaint in this
action asserting a cause of action for "malicious prosecution."
The Law Court has described the tort of "wrongful use of civil proceedings"
in the following terms:
The tort of wrongful use of civil proceedings exists where (1) one
initiates, continues, or procures civil proceedings without probable
cause, (2) with a primary purpose other than that of securing the proper
adjudication of the claim upon which the proceedings are based, and
(3) the proceedings have terminated in favor of the person against
whom they are brought. RESTATEMENT (SECOND) OF TORTS§
674.
Pepperell Trust, 1998 ME 46, ~17.
In moving for summary judgment, Dean relies almost exclusively on the
factual findings made by the court in its Decision and Judgment in the prior action
and, specifically, the findings the court made with respect to Bragdon's failure to
meet his burden of proving by a preponderance of the evidence all of the necessary
elements of his adverse possession claim. Of particular significance in this case is
Dean's Statement of Material Fact 7, which asserts: "Defendant [Bragdon] had no
probable cause to claim ownership of the Dean property." In support of this
allegation, Dean has pointed to particular findings made by the court. See Plaintiff's
Statement of Material Facts 7(a) - 7(1).
Dean points out, correctly the court believes, that Bragdon has failed to
properly controvert her statement of material facts as required by M.R.Civ.P.
56(h)(3) & (4) and, therefore, those facts not admitted are deemed to be true.
Moreover, the facts found by the court in the prior proceeding are now res judicata.

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SUMMARY JUDGMENT STANDARD OF REVIEW
"The function of a summary judgment is to permit a court, prior to trial, to
determine whether there exists a triable issue of fact or whether the question[s]
before the court [are] solely ... of law." Bouchard v. American Orthodontics, 661
A.2d 1143, 1144 (Me. 1995). "A trial court properly grants summary judgment for
the movant if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Beaulieu v. Aube Corp., 2002 ME 79, ~ 14,
796 A.2d 683 (citing Stanton v. University ofMaine Sys., 2001 ME 96, ~ 6,773 A.2d
1045). A "material fact" is one that can affect the outcome of the case, and a genuine
issue exists when there is sufficient evidence for a fact-finder to choose between
competing versions of the facts. Lougee Conservancy v. City-Mortgage, Inc., 2012
ME 103, ~ 11, 48 A.2d 774.
DISCUSSION
Certainly, there is no issue of fact as to whether the pnor proceeding
terminated in Ms. Dean's favor, and specifically on Mr. Bragdon's counterclaim for
adverse possession. The more difficult questions for the court are whether, as a
matter of law, the court can say that at the time he initiated and/or continued his
adverse possession counterclaim, Mr. Bragdon did so without probable cause and
with a primary purpose other than that of securing the proper adjudication of his
claim.
Whether probable cause exists is generally a question of law for the court.
(RESTATEMENT (SECOND) OF TORTS§ 673, cmts. e and h). See also First
Tracks Invs. V. Murray, 2014 Me. Bus. & Consumer LEXIS 20, *33 (9/8/2014)
(Murphy, J.). One of the undisputed facts in the summary judgment record is that
Mr. Bragdon "did not claim the land at the time of his conversation with the Dean
family because he did not realize his legal rights until after he talked to his attorney,
Stephen Bourget." PSMF 7U). In the context of this summary judgment proceeding

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relating to whether Mr. Bragdon had probable cause to initiate and/or continue his
claim of adverse possession to the Dean land, this fact may be significant because
RESTATEMENT (SECOND) OF TORTS §675 provides:
One who takes an active part in the initiation, continuation or
procurement of civil proceedings against another has probable cause for
doing so if he reasonably believes in the existence of the facts upon
which the claim is based, and either

(a) correctly or reasonably believes that under those facts the
claim may be valid under the applicable law, or

(b) believes to this effect in reliance upon the advice of counsel
sought in good faith and given after full disclosure of all
relevant facts within his knowledge and information

Based on the summary judgment record in this case, it is not possible for the
court to conclude, as a matter of law, that Mr. Bragdon lacked probable cause to
initiate and/or continue his adverse possession counterclaim. The summary
judgment record raises the possibility that Bragdon sought the advice of legal
counsel when Ms. Dean asserted ownership of the land and commenced her
declaratory judgment action against him. It is at least a triable issue that Bragdon's
counterclaim for adverse possession was based on the advice of legal counsel.
Moreover, "[p]robable cause is present if a party has 'a reasonable belief in
the possibility that the claim may be held valid."' First Tracks lnvs. , 2014 Me. Bus.
& Consumer LEXIS 20, *33 citing RESTATEMENT (SECOND) OF TORTS §674
cmt. e. The fact that this court, after trial, was unconvinced by Bragdon's evidence
in support of his adverse possession claim does not mean, as a matter of law, that
his belief in the possibility that his claim had merit was unreasonable. See also
Prewitt v. Sexton, 777 S.W. 2d 891,896 (Ky. 1989) (probable cause is a suspicion

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founded on circumstances strong enough to warrant a reasonable person in the belief
that the claim is true).
Finally, the summary judgment record in this case does not permit the court
to determine, as a matter of law, that Bragdon's primary purpose in asserting his
adverse possession counterclaim was other than to secure the proper adjudication of
his claim. This is a question of fact that cannot be resolved on summary judgment.
The RESTATEMENT (SECOND) OF TORTS §676 describes a number of
examples of ci vii proceedings instituted for improper purposes. In short, the
summary judgment record in this case is not adequate to decide that Ms. Dean is
entitled to judgment as a matter of law on her claim of wrongful use of civil
proceedings against Mr. Bragdon.
CONCLUSION
The entry is:
Plaintiff's Motion for Summary Judgment is DENIED.
The Clerk is directed to incorporate this Decision and Order i~'-""'-'I
of this case by notation reference in accordance with M.R.Civ.P. 9(a).

DATED: March 16, 2020

Superior Court Justice

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