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Wallinford v. Kennedy, attorneys & footnotes.

Attorneys for plaintiff:

Joel C. Martin, Esq., (orally)
Michael K. Martin, Esq.
Petruccelli & Martin, LLP
P O Box 9733
Portland, ME 04104-5033

Attorney for defendants:

Theodore H. Kurtz, Esq., (orally)
Kurtz & Perry
P O Box J
South Paris, ME 04281
FOOTNOTES******************************** {1} . This case was initially brought by Ivan and Dorothy Wallingford, however, Ivan Wallingford has since passed away. Because Ivan and Dorothy Wallingford held title as joint tenants, and Mr. Wallingford's death has been suggested upon the record pursuant to M.R. Civ. P. 25(a)(2), the case proceeds in Dorothy Wallingford's name alone. {2} . This caption reflects the parties in interest on appeal and omits the parties to the case that was consolidated with this one, but which was not appealed. {3} . Judgment was entered for the Wallingfords in the case brought by Land Tree and Land Tree did not appeal from that decision. {4} . As noted by the Wallingfords, the directional calls are roughly ninety degrees off, therefore "north" should be replaced with "west" and "east" should be replaced with "north." Because the parties agree on the boundaries described in this deed, the directional calls are not material. {5} . There is no evidence in the record to explain what appears to be the mistaken inclusion of the description of this piece of property that Wallingford Fruit House no longer owned in the deed to Peter Wallingford. {6} . Although the deeds are not included in the record, it appears that the Spragues conveyed the property to one Renee Lavoie who in turn conveyed it to Land Tree, the immediate predecessor in title to Kennedy. {7} . A latent ambiguity is "an uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing when an attempt is made to apply the language to the ground." Slipp v. Stover, 651 A.2d 824, 826 (Me. 1994) (quoting 23 Am. Jur. 2d § 314 Deeds (1983)) (internal quotation marks omitted). {8} . During oral argument, the Wallingfords argued that a motion for findings of fact is not necessary when a court has entered findings of fact sufficient to allow for judicial review. See also Sewall v. Saritvanich, 1999 ME 46, ¶¶ 9-10, 726 A.2d 224, 226 (finding court did not abuse its discretion by denying Rule 52 motion where court made adequate findings of fact and conclusions of law in its original judgment). The Wallingfords also rely, however, on the lack of a finding of fact regarding the course call to support their argument that the court failed to consider course in its analysis. Kennedy and Foss argue alternately that the court implicitly found that both courses run northwesterly or that the court's failure to consider course is harmless error. This dispute could have been obviated by a motion for findings of fact pursuant to M.R. Civ. P. 52. In the absence of such, we are left to assumed findings. {9} . The old road bed measured roughly 518 feet to a blaze line demarcating the boundary of the abutter's land while the woods road only measured 378 feet to the blaze line. However, there was also evidence in the record that the boundary with the abutter had been in dispute at the time the controlling deed was drafted. The woods road measured 526 feet to an old blaze line that the Wallingfords, as well as their predecessor in title, John Wallingford, believed to mark the actual boundary with the abutter. This dispute, however, was resolved by the Wallingfords executing a quitclaim deed some time later to the abutter relinquishing their claim to the property running to the old blaze line and acknowledging the new blaze line as the proper boundary. {10} . Contrary to the representations of counsel for Kennedy and Foss at oral argument, however, Peter Wallingford did not testify that he had gone out to the parcel and measured the length of the disputed boundary prior to the conveyance to the Spragues. Peter Wallingford did testify to visiting the parcel prior to the conveyance from Wallingford Fruit House to Starbird and indicated that, at that time, the boundary between the two parcels was the woods road. Counsel for Kennedy and Foss objected, however, to his testifying about his intent regarding the boundary at the time of the conveyance from himself to the Spragues.

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