Grandfathered

The dismissal of legal malpractice claims was affirmed by the Maine Supreme Judicial Court

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.

Too late to amend

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, not grandfathered. This new allegation reflected Montgomery’s apparent understanding that the lot was never grandfathered following the 1975 conveyance, and therefore was not a nonconforming lot of record during all relevant times here. However, Montgomery could have raised the proposed allegations much earlier in the litigation because the 1974 SZO, by its plain terms, outlines the minimum lot-size requirement. Thus, the Superior Court acted within the bounds of its discretion in denying the motion to file a third amended complaint made three years after the commencement of the suit.

(Mike Frisch)