R. Bruce MONTGOMERY et al. v. EATON PEABODY, LLP et al.
Docket No. Cum-15-192
Supreme Judicial Court of Maine
March 29, 2016
2016 ME 44
Submitted on Briefs: Nov. 19, 2015.
C. Property Distribution
[¶ 18] Finally, because the court must consider the determination of James‘s incоme in crafting an equitable distribution of the parties’ assets and liabilities, see
The entry is:
Order denying motion for further findings with regard to James‘s income vacated. Child support order, spousal support order, and property distribution vacated. Remanded for further proceedings consistent with this opinion.
Eben M. Albert, Esq., and Daniel J. Mitchell, Esq., Bernstein Shur, Portland, for appellees Eaton Peabody, LLP and William V. Ferdinand Jr.
Wendell G. Large, Esq., and Heidi J. Hart, Esq., Richardson, Whitman, Large & Badger, for appellee Clifford H. Goodall.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HJELM, JJ.
MEAD, J.
[¶ 1] R. Bruce Montgomery and Wanda Haddock (collectively, Montgomery) appeal from a judgment of the Superior Court (I) granting Judy A.S. Metcalf and William V. Ferdinand Jr.‘s (collectively, the Eaton Peabody attorneys) motion to dismiss multiple counts of Montgomery‘s complaint for legal malpractice, and (2) denying Montgomery‘s motion for leave to file a third amended complaint. We affirm the judgment.
[¶ 2] In 1960, Montgomery‘s parents purchased seven shorefront lots of land in Georgetown, numbered thirty-seven through forty-three on a 1935 subdivision plan recorded in the Sagadahoc County Rеgistry of Deeds. In 1974, Georgetown adopted a Shoreland Zoning Ordinance (SZO), which applied to properties located within 250 feet of the normal high water line, including the Montgomery lots. The SZO created requirements that all buildings in the zone be set back a certain distance from the normal high water line, and that lots created in the zone have an area of at least 20,000 square feet. However, properties that predated the effective date of the ordinance were considered “grandfathered” or “nonconforming lots of record” and accordingly were exempt from the requirements of the SZO.
[¶ 3] When the SZO was adopted in 1974, a single-family residence spanned lots thirty-seven, thirty-eight, and thirty-nine, and a studio was located on the remaining lots. The lots were under the common ownership of Montgomery‘s parеnts from 1960 until 1975, when Montgomery‘s parents executed the first of a series of conveyances between themselves individually and later to Montgomery and his siblings. The 1975 conveyance partitioned lots thirty-seven and thirty-eight from the others, resulting in a property that was less than 20,000 square feet. In 1999, lots thirty-seven and thirty-eight were conveyed to Montgomery.
[¶ 4] In 2004, the Georgetown Planning Board granted Montgomery one building permit for two distinct projects on the property: the expansion of the principal structure and the addition of a garage as a new accessоry structure. While construction of the garage was underway, the Georgetown code enforcement officer determined that the structure was not being built according to the specifications in the permit and that it violated the SZO‘s setback requirement. A stop-work order wаs then issued to cease construction of the garage.
[¶ 5] On August 17, 2005, the Georgetown Planning Board held a hearing (at which Montgomery was not present) and revoked Montgomery‘s building permit. Montgomery, represented by the Eaton Peabody attorneys, appealed the revoсation of the permit to the Georgetown Board of Appeals on the grounds that he received inadequate notice of the hearing, and that, in any case, the property was grandfathered and therefore was not subject to the SZO‘s setback provision. On October 31, 2005, the Georgetown Board of Appeals found, in “findings of fact #8,” that “[t]he lot at issue was created in 1999, is less than two acres in area, and is nonconforming under the [SZO], and is not a ‘nonconforming [l]ot of [r]ecord.‘” Notwithstanding its findings, the Board of Appeals ultimately remanded the case to the Planning Board for reconsideration because it agreed that Montgomery did not receive adequate notice of the hearing at which the permit was revoked. The Eaton Peabody attorneys did not appeal any of the Board of Appeals’ findings of fact.
[¶ 6] On November 16, 2005, at the proceeding before the Planning Board on remand, the Eaton Peabody attorneys told the Board that Montgomery did not object to the revocation of the part of the permit that provided for the expansion of the principаl structure. However, Montgomery contested the revocation of the part of the permit dealing with the construction of the garage. The Planning Board revoked only the part of the permit authorizing the expansion of the principal structure, but left in place thе stop-work order on the construction of the garage.
[¶ 8] On October 27, 2011, Montgomery filed a complaint against the Eaton Peabody attorneys asserting, among other things, legal malpractice based on their failure tо appeal the Board of Appeals’ findings of fact made on October 31, 2005. The Eaton Peabody attorneys filed a motion to dismiss five of the six counts of the complaint, see
[¶ 9] On September 23, 2014, Goodall filed a motion for summary judgment. See
II. DISCUSSION
A. Motion to Dismiss
[¶ 10] “We review the legal sufficiency of the complaint de novo and view the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory.” Nadeau v. Frydrych, 2014 ME 154, ¶ 5, 108 A.3d 1254 (quotation marks omitted); see also Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 6, 54 A.3d 710.
[¶ 11] The court (Mills, J.) dismissed counts one through five of Mont-
were negligent because they failed to appeal the “findings of fact” #8, failed to argue before the Board of Appeals ... that [the] lot was not a nonconforming lot of record, failed to advise [Montgomery and Haddock] of their right to appeal finding #8, failed to ask the Planning Board at the [November 16, 2005,] hearing to find that the lot was a non-confоrming lot of record, and failed to be familiar with, and advise [Montgomery and Haddock] about, the [SZO] and failed to fully evaluate the implications of finding #8.
[¶ 12] We agree with much of the rationale set forth by the court in its order granting the Eaton Peabody attorneys’ motion to dismiss. The court concluded that the Board of Appeals’ findings of fact in 2005 were not a final judgment--and therefore not appealable--because the case was remanded to the Planning Board for reconsideration due to the inadequate notice of the hearing. The Board of Appeals’ findings were ultimately immaterial because at the hearing on remand Montgomery did not object to the partial revocation of the permit and at later proceedings Montgomery conceded that the lot was indeed not grandfathered. Beyond this, in its order on Goodall‘s motion for summary judgment--a decision that Montgomery did not appeal and is therefore final--the court found that the 1975 partition of lots thirty-seven and thirty-eight from the other lots resulted in a property that was less than 20,000 square feet, thereby terminating any grandfathered status from that point forward. Because the lot was not grandfathered at the time of the initial application for a building permit in 2004, as the court found, “there [was] nothing that Attorney Goodall or any other attorney could have done to obtain a different result” in this matter. The court, therefore, properly granted the Eaton Peabody attorneys’ motion to dismiss.
B. Motion to File Third Amended Complaint
[¶ 13] In reviewing the denial of a motion to amend pleadings, we determine whether the party has “demonstrate[d] (1) that the court clearly and manifestly abused its discretion and (2) that the amеndment [was] necessary to prevent injustice.” America v. Sunspray Condo. Ass‘n, 2013 ME 19, ¶ 7, 61 A.3d 1249 (quotation marks omitted) (second alteration in original). A motion to amend may be denied based on one or more of the following grounds: undue delay, bad faith, undue prejudice, or futility of amendment. Bangor Motor Co. v. Chapman, 452 A.2d 389, 392 (Me. 1982). When “a proposed amended complaint would be subject to a motion to dismiss, the court is well within its discretion in denying leave to amend.” Glynn v. City of S. Portland, 640 A.2d 1065, 1067 (Me. 1994).
[¶ 14] The court (Wheeler, J.) denied the motion to amend because of Montgomery‘s undue delay and the potentially prejudicial impact on the litigation. The court noted that Montgomery sought a third amended complaint “over three years after the original complaint was filed and over a year after the second amended complaint was filed.” In addition, the amendments that Montgomery proposed contradicted the theories of legal malpractice previously set forth and would have “completely change[d] the nature of the malpractice case.”
[¶ 15] In the proposed third amended complaint, Montgomery sought to raise additional claims against Goodall, contending that he was negligent in failing to advise Montgomery that his property was, in fact,
The entry is:
Judgment affirmed.