MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 80
Docket:   Ken-14-249
Argued:   May 13, 2015
Decided:  July 2, 2015

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HJELM, JJ.



                             PETER M. BECKERMAN

                                         v.

                               BRUCE POOLER et al.

HJELM, J.

         [¶1] Peter M. Beckerman appeals from a judgment of the Superior Court

(Kennebec County, Wheeler, J.) denying his motion for contempt and determining

that he does not have an easement by deed over the property of Ricky and Monica

Conant. Beckerman alleged in his motion that, in a prior consent order, the court

(Studstrup, J.) had recognized an easement in favor of Beckerman over the

Conants’ driveway and that the Conants were in contempt of that order by

interfering with his use of the driveway. On appeal, Beckerman argues that the

court erred by denying the motion for contempt and by exceeding the scope of the

motion when it adjudicated the issue of whether he had a deeded easement to use

the driveway. We affirm the denial of the motion, but because we conclude that

the contempt motion did not call for the court to determine separately whether

Beckerman has a deeded easement, we vacate that portion of the court’s order.
2

                                      I. BACKGROUND

        [¶2] When “[v]iewed in the light most favorable to the judgment,” the

record evidence establishes the following facts. Waltz v. Waltz, 2013 ME 1, ¶ 2,

58 A.3d 1127. Beckerman owns a waterfront parcel of land located on Great Pond

in Rome. Ricky and Monica Conant own an abutting waterfront lot (“the Conants’

lot”), which was previously owned by Rodney Pooler. Ricky Conant also owns a

second lot, which abuts the Conants’ lot on one side and is located between

Beckerman’s lot and a private access road called South Crane Lane. Conant

currently rents that lot (“the Poolers’ lot”) to Bruce and Cynthia Pooler, who

owned it prior to 2010. South Crane Lane runs along one side of both the Conants’

lot and the Poolers’ lot, but it does not abut Beckerman’s lot, so the only vehicular

access to Beckerman’s lot is over the Conants’ or the Poolers’ driveways.

        [¶3] In March 2000, before the Conants purchased any property in the area,

Beckerman filed a complaint in Superior Court against Bruce, Cynthia, and

Rodney Pooler,1 seeking, among other things, to establish the locations of the

common boundaries among the three properties. In the complaint, Beckerman did



    1
      Nettie Pooler, who was the prior owner of both Bruce and Cynthia’s property and Rodney’s
property, was also named as a defendant. During the pendency of this appeal, we received notice of her
death from her attorney, and she was removed as a party because any of her remaining interests were
extinguished by her death. See M.R. Civ. P. 25(a)(2); Estate of Mouckerezi, 468 A.2d 993, 995-96
(Me. 1983) (noting that we follow the procedure in M.R. Civ. P. 25 when the death of a party occurs
during the pendency of a civil appeal).
                                                                                3

not assert a right to cross over the Conants’ lot, which was then owned by

Rodney Pooler, to gain access to South Crane Lane.

      [¶4] The parties settled their claims through mediation, and in August 2002

the court entered a consent order. The order operated as a final judgment and,

among other issues, resolved Beckerman’s right to access South Crane Lane by

requiring the Poolers to grant Beckerman an easement over their driveway. That

provision of the consent judgment also stated, “This conveyance shall not in any

way limit the deeded right-of-way in favor of the Beckerman lot across [the

Conants’] lot,” and included a citation to the deed to that lot.     The consent

judgment did not otherwise mention Beckerman’s use of the driveway located on

the Conants’ property.

      [¶5]   On July 16, 2012, Beckerman filed a post-judgment motion for

contempt against the Conants as Rodney Pooler’s successors-in-interest, alleging

that they were in contempt of the consent order by blocking Beckerman’s access to

their driveway. Additionally, Beckerman commenced a separate action seeking a

declaratory judgment to establish his right to use the Conants’ driveway, alleging

that he had an easement by deed and by prescription. At oral argument, the parties

advised us that the declaratory judgment action remains pending.

      [¶6] A two-day testimonial hearing on the contempt motion was held in

April 2014. At the hearing, Beckerman argued that the statement in the consent
4

order that it did “not . . . limit the deeded right-of-way . . . across [the Conants’]

lot” was an affirmative recognition of Beckerman’s right to use the Conants’

driveway and that the Conants were therefore in contempt of the order when they

prevented him from exercising that right. On May 21, 2014, the court issued a

written order denying the motion for contempt and finding that the consent order

did not recognize an easement over the Conants’ lot. Although the hearing on the

contempt motion had not been consolidated with the declaratory judgment action,

the court then went on to find that Beckerman also did not have an easement by

deed and concluded that “[b]ecause Beckerman has not shown that he has an

easement, the Court cannot find contempt.”2                   Beckerman timely appealed the

order.

                                        II. DISCUSSION

         [¶7] Beckerman contends that the court erred in denying his motion for

contempt because the consent order recognized that he had a right to use the

Conants’ driveway. “We review a judgment of civil contempt for an abuse of

discretion, and the court’s underlying factual findings for clear error.”

Waltz, 2013 ME 1, ¶ 6, 58 A.3d 1127. A party moving for a contempt order must

prove “by clear and convincing evidence that the alleged contemnor failed or

    2
       Although the consent order referred to a “deeded right-of-way,” the court used that term
interchangeably with the term “easement.” For clarity, we will refer to the rights asserted by Beckerman
as an easement.
                                                                                    5

refused to comply with a court order and presently has the ability to comply with

that order.” Id. (quotation marks omitted); see M.R. Civ. P. 66(d)(2)(D). Evidence

is clear and convincing when it “provides the fact-finder with an abiding

conviction that the truth of the proponent’s contentions is highly probable.”

Grondin v. Hanscom, 2014 ME 148, ¶ 11, 106 A.3d 1150. To prevail on appeal,

Beckerman must demonstrate that a contempt finding “was compelled by the

evidence.” Cf. Handrahan v. Malenko, 2011 ME 15, ¶ 13, 12 A.3d 79.

      [¶8] The court found that the language of the consent order was ambiguous

and was not clearly intended to recognize an easement in favor of Beckerman over

the Conants’ driveway, and that Beckerman therefore had not proved clearly and

convincingly that the Conants were in contempt. The evidence does not compel a

different conclusion, for two reasons.

      [¶9] First, the court did not clearly err in finding that the parties to the

consent order did not intend to affirmatively recognize that Beckerman had an

enforceable easement over the Conants’ lot. In his complaint, Beckerman did not

assert that he had a right to use the Conants’ driveway, and the evidence does not

compel a finding that the parties intended to settle that issue when they entered into

the consent order. Rather, the plain language of the order simply limits the order’s

effect by granting Beckerman new rights over the Pooler’s lot without affecting

any existing rights he may have had to use the driveway on the land now owned by
6

the Conants. The court therefore did not err in concluding that any right that

Beckerman had to use the Conants’ driveway did not flow from the consent order.

      [¶10] Second, the consent order did not direct Rodney Pooler in definite

terms to take any action with regard to the driveway or enjoin him from engaging

in any conduct that could form the basis for finding that the Conants, as his

grantees, are in contempt.     See M.R. Civ. P. 66(d)(2)(D); White v. Nason,

2005 ME 73, ¶ 7, 874 A.2d 891 (“It is well established that before a person may be

held in contempt for violating a court order, the order should inform him in definite

terms as to the duties thereby imposed upon him.” (Quotation marks omitted.)).

Rather, the order is directed at Bruce and Cynthia Pooler, requiring them to convey

an easement to Beckerman and enjoining them from interfering with that easement.

Therefore, at the very least, the consent order did not clearly impose any duty or

responsibility on Rodney Pooler, and the Conants cannot be held in contempt for

violating the consent order. See Banker v. Bath Iron Works Corp., 507 A.2d 602,

604-06 (Me. 1986) (vacating an order of contempt where the original court order

was ambiguous).

      [¶11] Once the court found that the consent order was ambiguous and did

not recognize an easement in favor of Beckerman, it erred by reaching beyond the

consent order to address the separate question of whether Beckerman had an

easement by deed. To adjudicate the motion for contempt, the limited question
                                                                                   7

before the court was whether the consent order prohibited the Conants from

interfering with Beckerman’s use of their driveway. See M.R. Civ. P. 66(d)(2)(D).

Once the court concluded that the consent order did not prohibit the Conants from

doing so, the question of whether Beckerman had a deeded easement to the

driveway became irrelevant to the disposition of the motion. Even if Beckerman

did have a deeded easement, the Conants could only be found in contempt if the

consent order clearly prohibited them from interfering with Beckerman’s access,

and the court had already concluded that it did not.

      [¶12] Because the court found that the consent order did not acknowledge

that Beckerman had a right to use the Conants’ driveway, any other property rights

he may have had outside of the consent order had to be adjudicated in a separate

action to clarify his rights. See Hodgdon v. Campbell, 411 A.2d 667, 669-70

(Me. 1980) (noting that “[a] proceeding for declaratory relief brought in

accordance with the civil rules of procedure is a particularly efficacious method for

quieting title to real property”). In fact, Beckerman had already commenced such

an action. By reaching the question of whether Beckerman had an easement by

deed, the court therefore erroneously exceeded the scope of the motion for

contempt, see M.R. Civ. P. 66(d)(3), and issued an opinion that could only have an

advisory effect, see Dodge v. Norridgewock, 577 A.2d 346, 347 (Me. 1990)

(affirming the trial court’s decision not to grant declaratory relief on the grounds
8

that it “would serve no useful purpose in the context of this case and would

constitute an advisory opinion”); Bar Harbor Banking & Trust Co. v.

Alexander, 411 A.2d 74, 78 (Me. 1980) (stating that, “aside from opinions properly

rendered on solemn occasions, the judiciary has no power to issue advisory

rulings” (citation omitted)).

        [¶13] Although parties may expressly or impliedly agree to litigate issues

not raised in the pleadings, see M.R. Civ. P. 15(b), they did not do so here. During

the hearing, the parties engaged in a number of colloquies with the court about the

parameters of the contempt hearing in relation to Beckerman’s separate declaratory

judgment action, and Beckerman objected that the court was veering into issues

that were relevant only to the declaratory judgment action. The court repeatedly

stated that the hearing would be limited to the issues raised in the contempt motion

and that it would not address issues bearing only on the declaratory judgment

action.3 The parties therefore did not consent to resolving the issues raised in the

declaratory judgment action at the contempt hearing. See DiBiase v. Universal

Design & Builders, Inc., 473 A.2d 875, 877 (Me. 1984).

    3
      For example, the court described the relationship between the two cases as follows: “[O]ne of the
directions I could go in . . . is find that there is a right there but it’s not specific enough to hold anyone in
contempt of it and that you need to explore more. And that brings us to the other case.” Beckerman then
stated, “But my understanding was when we came here today . . . we were coming only on the contempt
motion because I certainly didn’t prepare to try the other [case].” In response, the court stated, “That’s
right and I’m not buying into his suggestion that we take up all the other stuff.” A few minutes later,
Beckerman again raised his concern that they were “litigating the underlying issue.” In response, the
court stated, “I understand[,] and to the extent [the Conants’ attorney is] taking us beyond what I need to
do—what I need to decide, this motion for contempt, he will be shot down.”
                                                                                   9

      [¶14] We note that any confusion about the scope of the contempt hearing

could have been avoided had any of the parties sought to consolidate the hearings

on the contempt motion and Beckerman’s separate declaratory judgment action.

See M.R. Civ. P. 42(a). As was suggested by the ongoing discussions at the

motion hearing among the parties and the court about the scope of the hearing, the

issues in the two actions are closely linked and involve many of the same issues of

law and fact. See id. (allowing consolidation “[w]hen actions involving a common

question of law or fact are pending before the court”). Consolidation would have

preserved judicial resources and reduced the prospect that the court’s analysis

would extend to issues extrinsic to the contempt motion.           At oral argument,

Beckerman stated that he chose to litigate the two actions separately in the hopes

of obtaining relief on the motion for contempt without having to litigate the other

action, thus reducing his exposure to further litigation. Instead, the process chosen

by the parties has achieved the opposite result, generating a two-day motion

hearing, at least one appeal, and the remaining possibility of another trial.

                                 III. CONCLUSION

      [¶15] For the foregoing reasons, we affirm the denial of the motion for

contempt but vacate the court’s determination that Beckerman does not have a

deeded easement, leaving that issue to be resolved in the separate declaratory

judgment action.
10

        The entry is:

                           Judgment vacated as to the determination that
                           Beckerman does not have a deeded easement
                           (sections 2(b) and 3 of the judgment). Judgment
                           affirmed in all other respects.



On the briefs and at oral argument:

        Alton C. Stevens, Esq., Marden, Dubord, Bernier & Stevens,
        P.A. LLC, Waterville, for appellant Peter M. Beckerman

        André G. Duchette, Esq., Taylor, McCormack & Frame, LLC,
        Portland, for appellees Rick and Monica Conant



Kennebec County Superior Court docket number RE-2000-13
FOR CLERK REFERENCE ONLY
