Bourne v. Stewart Title

Bourne v . Stewart Title       CV-09-270-PB      12/7/11
                    UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE


Samuel J. Bourne

   v.                                       Case N o . 09-cv-270-PB
                                            Opinion N o . 

Stewart Title Guarantee Company




                      MEMORANDUM AND ORDER

     Samuel J. Bourne brings suit against Stewart Title

Guarantee Company (“Stewart Title”), alleging that Stewart Title

breached its duty to defend his title to a Madison, New

Hampshire vacation property.   Bourne and Stewart Title have

filed cross-motions for summary judgment. For the reasons set

forth below, I grant Stewart Title’s motion.



                         I.    BACKGROUND

     In September 2002, Bourne paid $92,500 to acquire a fifty-

acre parcel of land with a small cabin in Madison, New

Hampshire. He financed the purchase with retirement funds and a

mortgage loan from Laconia Savings Bank (“Bank”).      Pursuant to

the mortgage agreement, Bourne purchased two title insurance

policies from Stewart Title, one for himself (the “owner
policy”) and one for the Bank (the “lender policy”).    On the

owner policy, Bourne is listed as an insured party in his

capacity as a trustee of Bedrock Realty Trust. The policy

promises to defend the insured parties from any “covered risk”

that is not excepted or excluded from coverage.

    Shortly after Bourne acquired the property, he became

involved in a series of disputes with the Town of Madison

(“Town”) regarding his property.     One of the disputes concerned

the scope of an easement across the property that prior owners

had deeded to the Town in 1979 (the “Kelsey Easement”).     In

November 2003, Bourne sued the Town to prevent the use of the

Kelsey Easement as a snowmobile trail, contending that the

Easement was limited to foot traffic (the “2003 Easement

litigation”).   That same year, Bourne filed two lawsuits against

the Town regarding Solomon Harmon Road (“Road”), an unpaved

roadway that traversed Bourne’s property (collectively, the

“2003 Road litigation”).   In the first action, he sought to

relocate the Road from the center to the edge of his property.

In the second action, he challenged the Town’s claim that the




                                 2
Road was a Class VI public highway by prescription.1   When the

Town subsequently attempted to lay out the Road as a Class VI

highway,2 Bourne filed another lawsuit in February 2005 to

challenge the Town’s decision (the “2005 Road litigation”).

     All four suits were consolidated and tried in the Carroll

County Superior Court. In August 2008, the court held that (1)

the Kelsey Easement did not cover use by snowmobiles or other

motorized vehicles; (2) the court was without authority to

change the location of the Kelsey Easement from the center to

the edge of the property; (3) Solomon Harmon Road was not a


1
   Class VI highways are defined as “all other existing public
ways” that do not come within definitions of Class I-V highways.
See 

, VII. The class includes “all
highways discontinued as open highways and made subject to gates
and bars . . . and all highways which have not been maintained
and repaired by the town in suitable condition for travel
thereon for 5 successive years or more . . . .” 

 Class VI
highways are “full public highways that the public has the right
to pass over . . . even though such highways are not ‘approved
public street[s]’ for zoning purposes.” Glick v . Ossipee, 

 (1988) (internal citations omitted). A road may
be established by prescription if “the general public used the
roadway continually without interruption for a period of twenty
years prior to 1968, under a claim of right without the owner’s
permission” and the public use of the road was “adverse.” Gill
v . Gerrato, 

 (2007) (quoting Mahoney v . Town of
Canterbury, 

 4 8 , 150 (2003)).
2
  The New Hampshire legislature has given the selectmen of a town
the power to “lay out” roads in certain circumstances. See,
e.g., 

.
                                3
Class VI highway by prescription; and (4) the Town’s attempt to

lay out the Road as a Class VI public highway failed to satisfy

the legal requirements necessary to support such a process.

D.’s Ex. C C , Doc. N o . 146-31.   The court also denied Bourne’s

request for attorneys’ fees.        Id. at 17-18.   In 2009, the New

Hampshire Supreme Court affirmed the lower court’s decision in

all material respects. Bedrock Realty Trust v . Town of Madison,

N o . 2008-0550 (N.H. May 1 4 , 2009).

     In October 2005, while the state litigation was pending,

Bourne sued the Town, its selectmen, and one of its residents in

federal court (the “2005 federal litigation”).        Bourne claimed

that the defendants had interfered with maintenance of access to

his property, prevented installation of electric service, and

improperly denied lot subdivision and building permit requests.

Through two separate orders issued in June 2007 and May 2010,

the court granted summary judgment in favor of the defendants on

all claims.

     Lastly, in February 2008, Bourne filed a quiet title suit

in the Carroll County Superior Court, alleging that the

quitclaim deed that created the Kelsey Easement was invalid

because it did not contain a properly notarized signature of the


                                     4
grantee and was not properly accepted by the Town (the “2008

Easement litigation”).    It is unclear from the pleadings whether

this disagreement has been resolved.

     Bourne first made a demand on Stewart Title to defend his

title in July 2003.    In a series of letters between August 2003

and March 2004, Stewart Title refused to honor the demand,

citing various exceptions and exclusions in the owner policy

that prevented the disputes from qualifying as covered risks.

On March 2 3 , 2004, Stewart Title sent its fourth and final

denial letter to Bourne and his two attorneys. D.’s Ex. V , Doc.

N o . 146-24.   The letter denied coverage for various alleged

title defects, including those that were at issue in the 2003

Easement litigation and the 2003 Road litigation.    Id.   It

specifically stated, “your claim is hereby denied.”    Id.   Bourne

maintains that he continued to make demands under the policy for

each property dispute that arose after March 2004.    He states

that Stewart Title continually refused to litigate the alleged

defects, but neither party has presented additional evidence

that Stewart Title in fact refused to represent Bourne’s

interests in any of the other cases.




                                   5
     Bourne claims that he incurred substantial legal fees and

costs in presenting his various claims and that he defaulted on

his mortgage because he used funds to pay legal fees and costs

that he otherwise would have used to pay his mortgage.   Acting

pro s e , Bourne filed this action in August 2009, alleging

various statutory and common law violations against Stewart

Title and the Bank.   In February 2011, I granted the Bank’s

motion for judgment on the pleadings in its entirety and granted

Stewart Title’s motion to dismiss in part. I held that Bourne

had inadequately pleaded each of the claims in his complaint,

with the exception of his breach of contract claim against

Stewart Title. Bourne and Stewart Title have now filed cross-

motions for summary judgment on the remaining claim.



                      II.   STANDARD OF REVIEW

     Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.”    Fed. R. Civ. P.

56(a).   The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v .


                                  6
Pfizer Corp., 

 0 , 94 (1st Cir. 2001).

       A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett, 

 1 7 , 323 (1986).   The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.”    Ayala-Gerena v . Bristol Myers-Squibb

Co., 

 6 , 94 (1st Cir. 1996); see Celotex, 

.

       In reviewing a pro se motion, this Court is obliged to

construe the pleading liberally in favor of the pro se party.

See Ayala Serrano v . Lebron Gonzales, 

 , 15 (1st Cir.

1990) (citing Estelle v . Gamble, 

 7 , 106 (1976)).   That

review ensures that pro se pleadings are given fair and

meaningful consideration.    See Eveland v . Dir. of C.I.A., 

 6 , 49 (1st Cir. 1988).


                            III.   ANALYSIS

       Stewart Title contends that it is entitled to summary

judgment on Bourne’s breach of contract claims because the title

policy excludes or excepts coverage for the matters underlying
                                7
each of Bourne’s claims. It also argues that all of Bourne’s

claims, except his claim for coverage with respect to the 2008

Easement litigation, are barred by the three-year statute of

limitations that governs contract claims. I begin by explaining

how the statute of limitations applies in this case.

A.   Statute of Limitations

     Bourne’s breach of contract claims arise out of Stewart

Title’s refusal to defend his title in the 2003 Easement

litigation, the 2003 Road litigation, the 2005 Road litigation,

the 2005 federal litigation, and the 2008 Easement litigation.3

As I explain below, claims related to the 2003 Easement

litigation and the 2003 Road litigation are barred by the

statute of limitations. Stewart Title, however, has failed to

establish as a matter of law that Bourne’s remaining claims are

untimely.



3
  Although Bourne also contends that he is entitled to
indemnification, the facts do not support an indemnification
claim. The claimed losses he cites are fees he incurred in
defending his title and losses he suffered as a result of having
to defend title on his own. He does not allege that Stewart
Title is obliged to cover any liability that he owes to a third
party. Thus, he does not present a viable claim for
indemnification. See Wood v . Greaves, 

 2 8 , 232 (2005)
(explaining that the duty to indemnify covers losses that arise
because of the insured’s obligations to a third party).
                                8
     Under New Hampshire law, a breach of contract claim must

“be brought [ ] within 3 years of the act or omission complained

of” o r , under the discovery rule exception, “within 3 years of

the time the plaintiff discovers, or in the exercise of

reasonable diligence should have discovered, the injury and its

causal relationship to the act or omission complained of.”       

, I ; see Black Bear Lodge v . Trillium

Corp., 

 (1993) (applying § 508:4 to contract

claims).    In a contract action, the relevant “act or omission”

is a party’s alleged breach; thus, the statute of limitations

begins to run when the alleged breach occurs, or when the

plaintiff knew or reasonably should have known that a breach

occurred.   See, e.g., A & B Lumber Co., LLC v . Vrusho, 

 (2005); Coyle v . Battles, 

 8 , 100 (2001);

Bronstein v . GZA GeoEnvironmental, Inc., 

(1995).

     Stewart Title is correct that Bourne’s breach of contract

claims regarding the 2003 Easement litigation and the 2003 Road

litigation are barred by the statute of limitations. For those

claims, the three-year limitations period began to run no later

than March 2 4 , 2004, when Bourne received Stewart Title’s fourth


                                 9
and final denial letter. See D.’s Ex. V , Doc. N o . 146-24 (the

date of receipt noted on the letter).   The letter placed Bourne

on notice that Stewart Title was refusing to honor his claims

for coverage of those lawsuits. See 

     Bourne nevertheless

waited until August 2009, more than two-and-a-half years after

the statute of limitations expired, before he commenced the

current action. As a result, his claims with respect to 2003

Easement litigation and the 2003 Road litigation are untimely.

     Stewart Title is mistaken, however, in claiming that the

2004 denial letter also triggered the start of the limitations

period for the 2005 Road litigation and the 2005 federal

litigation.   Although the letter denied coverage for Bourne’s

2003 Road litigation, the matter at issue in the 2005 Road

litigation – the Town’s power to lay out the Road – is distinct

from the claims addressed in the letter and, in any event, the

letter predates the attempted layout of the Road by

approximately eight months. Therefore, the letter did not place

Bourne on notice that the title company had rejected his claim

for coverage with respect to the 2005 Road litigation.

     Similarly, the March 2004 denial letter did not disclaim

coverage for the 2005 federal litigation.   Although the letter


                                10
does indicate that Stewart Title had considered Bourne’s dispute

with the Town in 2002 and 2003 regarding the issuance of a

building permit, it contains no reference to the Town’s

revocation of that permit in February 2004 or the denial of lot

subdivision permits, both of which Bourne challenged in the 2005

federal litigation.   The other events underlying the 2005

federal litigation, including interference with road repair and

installation of electrical poles, occurred after Stewart Title

issued its final denial letter.

     Because Stewart Title cites the March 2004 denial letter as

the sole basis for triggering the statute of limitations, it has

not established that Bourne was on notice that Stewart Title had

rejected his claims for coverage with respect to either the 2005

Road litigation or the 2005 federal litigation.   See State v .

Lake Winnipesaukee Resort, LLC, 

 2 , 45 (2009) (“The

statute of limitations is an affirmative defense and the

respondents bear the burden of proving that it applies.”).

Therefore, Bourne’s breach of contract claims related to those

lawsuits are not necessarily barred by the statute of

limitations.




                                  11
     Bourne seeks to save his claims concerning the 2003

Easement litigation and the 2003 Road litigation from the

statute of limitations by claiming indeterminacy of damages,

fraudulent concealment, and equitable tolling.     None of these

arguments shield him from Stewart Title’s request for summary

judgment.

     He first contends that the statute was tolled until final

resolution of the various litigations that Stewart Title refused

to defend, because he could not determine the full extent of

damages until the state court determined the rights of each

party.   The New Hampshire Supreme Court has refused to extend

the discovery rule to allow for the tolling of the statute of

limitations until an insured’s damages are fully ascertainable.

Wood v . Greaves, 

 2 8 , 232-33 (2005); see Beane v . Dana

S . Beane & Co., P.C., 

 0 8 , 713 (2010) (“[The discovery]

rule ‘is not intended to toll the statute of limitations until

the full extent of the plaintiff’s injury has manifested

itself.’” (quoting Furbush v . McKittrick, 

(2003))).

     Here, Bourne informed Stewart Title in July 2003 that he

had already incurred “thousands of dollars in legal fees and


                                 12
months of investigating and researching on [his] own time” as a

result of the various disputes concerning his property.       D.’s

Ex. O , Doc. N o . 146-17, at 2 .   Therefore, by the time Stewart

Title rejected his claim in March 2004, Bourne had incurred

sufficient damages to place him on notice that Stewart Title’s

alleged breach resulted in an injury.      The fact that he did not

know the full extent of damages until the state court ruled on

the merits of the actions is inapposite.

     I am also unpersuaded by Bourne’s attempt to invoke the

fraudulent concealment exception to toll the statute of

limitations.    “[T]he fraudulent concealment rule states that

when facts essential to the cause of action are fraudulently

concealed, the statute of limitations is tolled until the

plaintiff has discovered such facts or could have done so in the

exercise of reasonable diligence.”       Beane, 

(quoting Bricker v . Putnam, 

 6 2 , 165 (1986)).   To

support this claim, Bourne contends that Stewart Title concealed

certain internal communications from its headquarters relevant

to his claim.   He does not explain how that alleged concealment

prevented him from discovering Stewart Title’s alleged breach,

nor does he deny that he knew of Stewart Title’s denial of his


                                    13
claim no later than March 2004, when it sent the final denial

letter.    The fact that Stewart Title may have concealed internal

communications is simply not relevant to whether Bourne knew it

had breached the duty to defend.      Fraudulent concealment,

therefore, is not a basis for tolling the statute of

limitations.

     Lastly, Bourne argues that the statute must be tolled

because the Town fraudulently concealed certain material facts

regarding his property that he only discovered during the state

trial on the merits in March 2007.     He does not contend that

Stewart Title had any role in the concealment.     Therefore,

fraudulent concealment does not apply.     See Portsmouth Country

Club v . Town of Greenland, 

 1 7 , 624 (2005) (“The

doctrine of fraudulent concealment is an equitable ground to

justify the tolling of the statute of limitations based on the

wrongful conduct of the defendant.” (quoting Conrad v . Hazen,

 (1995))).

     Alternatively, Bourne may be relying upon the Town’s acts

of concealment as a basis for invoking the doctrine of equitable

tolling.   “[T]he doctrine of equitable tolling is applicable

only where the prospective plaintiff did not have, and could not


                                 14
have had with due diligence, the information essential to

bringing suit. A party attempting to invoke that doctrine will

be held to a duty of reasonable inquiry.”    

 (quoting

Protective Life Ins. C o . v . Sullivan, 

(1997)).   Bourne contends that he discovered in March 2007 that

a town official had forged maps used by the Town to support the

claim that Solomon Harmon Road was a Class VI road by

prescription, a matter he litigated in the 2003 Road litigation.

This alleged concealment is insufficient to invoke equitable

tolling against Stewart Title. Regardless of the merits of his

suit against the Town, in March 2004, Stewart Title denied

Bourne’s claim for coverage regarding the 2003 Road litigation,

citing an exclusion provision of the policy.    The Town’s alleged

forgery did not implicate a new ground for coverage under the

policy.    Although the concealed information allowed Bourne to

challenge the Town’s actions on a new ground, it does not

implicate “information essential to bringing suit” against

Stewart Title.4   See 

   The statute of limitations, therefore,


4
  Bourne also cites two additional instances where the Town
allegedly concealed evidence as grounds for his equitable
tolling claim. First, the Town allegedly concealed evidence
necessary for Bourne to challenge the validity of the Kelsey
easement. Second, the town officials allegedly concealed the
                                15
was not tolled with respect to the two untimely claims – the

2003 Easement litigation and the 2003 Road litigation.

B.   Remaining Claims

     Stewart Title also argues that it is entitled to summary

judgment with respect to the 2005 federal litigation, the 2005

Road litigation, and the 2008 Easement litigation because each

of these claims is expressly excepted or excluded from coverage.

I address Bourne’s arguments with respect to each of these

claims in turn.

     1.   The 2005 Federal Litigation

     In October 2005, Bourne sued the Town, its selectmen, and

one of its residents, alleging wrongful denial of subdivision

requests, improper revocation of a building permit, interference

with the installation of electrical poles, and interference with

maintenance of access to his property.   Bourne contends that

Stewart Title breached its duty to defend his title by refusing

to litigate the lawsuit on his behalf. Stewart Title is



“fabricated circumstances” they relied upon to revoke Bourne’s
building permit and deny his subdivision requests, which, along
with other interferences with his property, led him to file suit
in federal court in October 2005. Neither alleged concealment
is relevant for the purpose of equitable tolling because
Bourne’s breach of contract claims arising out of those two
lawsuits are not barred by the statute of limitations.
                                16
entitled to summary judgment on the claim because Bourne has not

demonstrated that the matters he litigated in the 2005 federal

litigation involved risks covered under the policy.

     Bourne cites three separate provisions under the title

policy as grounds for coverage. He first argues that “Covered

Risk 14” required Stewart Title to defend the lawsuit.       That

provision states that the insured is covered if “[b]ecause of an

existing violation of a subdivision law or regulation affecting

the land: (a) [y]ou are unable to obtain a building permit.”

D.’s Ex. D, Doc. N o . 146-6, at 4 .   Bourne has not demonstrated

that his inability to obtain the building permit at issue was

due to “an existing violation a subdivision law or regulation

affecting the land.”    Instead, he contends the revocation was

due to collusion of the town officials against him.     Therefore,

the provision does not apply.

     Bourne next invokes “Covered Risk 11,” which provides

coverage if “[y]ou do not have both actual vehicular and

pedestrian access to and from the land, based upon a legal

right.”   

 at 3 .   Although he maintains that the Town

prevented him from repairing Solomon Harmon Road, he has not

submitted admissible evidence that the Town’s interference with


                                  17
the road repair in fact deprived him of “actual vehicular and

pedestrian access to and from the land.”     As such, he has not

established that Stewart Title breached “Covered Risk 11” in

failing to litigate the suit.

     Lastly, with respect to the Town’s interference with the

installation of electrical poles, Bourne contends that the

matter implicated “Covered Risk 12,” which provides coverage if

“[y]ou are forced to correct or remove an existing violation of

any covenant, condition or restriction affecting the [l]and,

even if the covenant, condition or restriction is excepted in

Schedule B.”    

   He has not provided any evidence or explained

how the Town’s interference with the installation of utility

service concerned “an existing violation” of a condition

impacting his land.    Moreover, “Exclusion 4(d)” of the title

policy excludes coverage for risks “that first occur after the

Policy Date.”   D.’s Ex. D, Doc. N o . 146-6, at 5 .   Bourne has not

demonstrated that the Town prevented him from installing utility

service as of September 2002, the date of the policy.       Indeed,

Bourne first sought to erect electrical poles in November 2003,

more than a year after he obtained the policy.     Bourne has,

therefore, failed to establish that Stewart Title breach the


                                  18
contract by refusing to prosecute the 2005 federal litigation on

his behalf.

     In addition to Bourne’s failure to demonstrate coverage

under the policy, Stewart Title is entitled to summary judgment

on this breach of contract claim because it has established that

“Exclusion 1” precludes coverage for all the claims litigated in

the 2005 federal litigation.     That provision excludes coverage

for matters arising out of the government’s use of police power,

including the enforcement of “ordinances, laws and regulations

concerning: (a) building; (b) zoning; (c) land use; (d)

improvements on the land; (e) land division . . . .”     D.’s Ex.

D, Doc. N o . 146-6, at 5 .   Even if wrongful, the Town’s alleged

denials of the building permit, subdivision requests, road

repair, and installation of utility service clearly fall within

the ambit of the exclusion because they are regulations of

building, land division, and improvements on the land.      Thus,

Stewart Title did not breach the title policy by denying

Bourne’s claim for coverage of the 2008 federal litigation.

     2.    The 2005 Road Litigation

     Bourne also contends that Stewart Title breached the title

policy by refusing to take up his challenge to the Town’s


                                   19
attempt to lay out Solomon Harmon Road.     Stewart Title is

entitled to summary judgment on the claim because Bourne has

failed to demonstrate a breach.

     “Exclusion 4(d)” of the title policy excludes coverage for

risks “that first occur after the Policy Date.”     D.’s Ex. D,

Doc. N o . 146-6, at 5 .   Bourne purchased the policy in September

2002, more than two years before the Town attempted to lay out

Solomon Harmon Road as a Class VI highway.     Although “Exclusion

4(d)” does not limit coverage for certain enumerated covered

risks, none apply to Bourne’s claim at issue.

     Moreover, the Town’s attempt to lay out the Road

constituted a governmental condemnation, a risk excluded from

the policy under “Exclusion 3.”     See D.’s Ex. D, Doc. N o . 146-6,

at 5 ; 

. Bourne’s argument that

the layout attempt was not a condemnation because the Town also

contended that the Road was already a Class VI highway does not

change the nature of the process the Town used in seeking to lay

out the Road.    The petition to lay out the Road clearly invoked

Section 231:8, which permits selectmen of a town to lay out new

Class VI highways. D.’s Ex. W , Doc. N o . 146-25; see 

.    Therefore, because the attempted layout


                                   20
constituted a risk excluded under the policy, Stewart Title did

not breach its contract with Bourne when it refused to honor his

claim for coverage of the 2005 Road litigation.

     3.    The 2008 Easement Litigation

     Bourne’s last claim is that Stewart Title breached the duty

to defend when it refused to prosecute the 2008 Easement

litigation, wherein he challenged the validity of the Kelsey

Easement. Stewart Title is entitled to summary judgment on the

claim because it has established that coverage is specifically

excepted from the title policy.

     “The insurer asserting an exclusion of coverage . . . bears

the burden of proving that the exclusion applies.”        Progressive

N . Ins. C o . v . Concord Gen. Mut. Ins. Co., 

(2005).   Stewart Title cites to “Special Exception 3” of the

title policy as the relevant exclusion.       That exception

eliminates from coverage “[r]ights, rights of way and easements

in instruments recorded in the Carroll County Registry of Deeds

in Book 7 3 4 , Page 078.”   D.’s Ex. D, Doc. N o . 146-6, at 1 0 . The

Carroll County Registry of Deeds, Book 7 3 4 , Page 7 8 , contains

the quitclaim deed that conveyed the Kelsey Easement to the

Town.   D.’s Ex. B , Doc. N o . 146-4.   Therefore, the unambiguous


                                   21
language of the policy excludes from coverage litigation

regarding the validity of the Kelsey Easement.

    Bourne’s argument that Special Exception 3 does not

preclude coverage because “Covered Risk 27” imposes a duty to

defend is unpersuasive. That provision provides coverage when

“[a] document upon which [y]our [t]itle is based is invalid

because it was not properly signed, sealed, acknowledged,

delivered or recorded.”   D.’s Ex. D, Doc. N o . 146-6, at 4 .

Bourne contends that the provision applies to his quiet title

suit to invalidate the Kelsey Easement because the deed

conveying the Easement was not properly acknowledged or legally

accepted.    Bourne, however, fails to recognize a longstanding

rule of contract interpretation: “Where general and specific

clauses conflict, the specific clause governs the meaning of the

contract.”   11 Richard A . Lord, Williston on Contracts § 32:10

(9th ed. 1999).   Therefore, even if “Covered Risk 27” could

conceivably cover Bourne’s attempt to invalidate the Easement,

Special Exception 3 is the more specific clause that addresses

the Kelsey Easement. The specific clause precludes coverage.

Therefore, Stewart Title did not breach its duty to defend




                                 22
Bourne’s title by denying coverage for the 2008 Easement

litigation.



                             IV.   CONCLUSION

      For the reasons stated above, I deny Bourne’s motion for

summary judgment (Doc. N o . 144) and grant Stewart Title’s motion

for summary judgment (Doc. N o . 1 4 6 ) .   The clerk shall enter

judgment accordingly and close the case.

      SO ORDERED.



                                   /s/Paul Barbadoro
                                   Paul Barbadoro
                                   United States District Judge


December 7 , 2011

cc:   Samuel Bourne, pro se
      Edmond J. Ford, Esq.
      Richard K. McPartlin, Esq.




                                    23