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	
	
