MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 135 Docket: Kno

- 18

- 340 Argued: June	26,	2019 Decided: August	15,	2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ. Majority: SAUFLEY,	C.J.,	and	MEAD, GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ. Dissent: ALEXANDER,	J.

RICHARD	TRANFIELD	et	al.

v. PATRICIA	ARCUNI

- ENGLISH

MEAD ,	J. [ ¶1] Patricia	 Arcuni

- English	 appeals	 from	 a	 judgment	 of	 the	 Superior Court	 ( Knox	 County, Wheeler,	 J. )	 in	 favor	 of	 Richard	 Tranfield	 and	 Karla
Doremus

- Tranfield (the	 Tranfields) on	 their	 complaint	 alleging	 that
Arcuni

- English’s	installation of trees	on	the	parties’	boundary	line	constituted
a	 nuisance pursuant to	 both Maine’s spite fence statute ,	 17	 M.R.S .	 § 2801 (2018),	and	common	law. We	affirm	the	judgment.
I.		BACKGROUND [¶ 2 ] T he court	 found	 the	 following	 facts,	 which	 are	 supported	 by competent	record	evidence. See Rice	v.	Cook ,	2015	ME	49,	¶	3,	115 A.3d	86. In January	2016,	the	Tranfields	purchased	a	parcel	of	land	that	abuts	and	is	uphill2 from	Arcuni

- English’s	property. At	that	time,	the T ranfield	property	ha d a	slot view	of	the	ocean	out	across	Arcuni

- English’s	propert y, but Arcuni

- English	was still affo rded	privacy	by	trees	and	overgrown	shrubbery at	lower	levels on	the parties’ boundary	line

. [¶ 3 ] On	 the	 day	 the Tranfields moved	 in, Mr.	 Tranfield	 went	 onto
Arcuni

- English’s	property	to ask	if	he	could	use some	of	her	firewood.		She	was not	home,	and	he took some	wood

. Arcuni

- English	saw	him	in	her	driveway, did	not recognize	him,	and	thought	that	he	was	stealing	her	firewood. Later , Mr.	Tranfield	was	removing	a	tree	near	a	shed	on	his	property	and	limbing dead branches	 on	 his	 property	 along	 the	 parties ’	 boundary	 line.	 	 Arcuni

- English approached	him,	expressing	anger	that	he	was	cutting	trees	without	discussing it	with	his	neighbors	beforehand.		Arcuni

- English	then told	Mr.	T r anfield that she	would	put	up	a	ten

- foot	fence	to	block	the	Tranfields’	view. Additionally,
Arcuni

- English expressed	displeasure	with	the	Tranfields	removing	a	koi	pond on	their	property and with the fact	that	their dogs had urinat ed and	defecat ed on	her	property. [¶ 4 ] Later ,	while	Arcuni

- English	was	 traveling,	a	local	landscaper	who works	 for	 both	 parties	 sent	 Arcuni

- English	 a	 photograph	 of	 the	 parties’ boundary	line.		The	Tranfields	had	cleared	much	of	the	deadwood	and	debris3 on	their	property,	thereby	opening	up a	view	of their	house	to	Arcuni

- English ’s property .	 	 Arcuni

- English was	 devastated	 by	 the	 Tranfields ’ action	 on	 their property. She	called the	landscaper and told	him	 that she	needed	 trees	and privacy ,	and they discussed	how	to	do	it

. [¶ 5 ] In	April	2016,	 the	land scaper	planted approximately twenty
- four arborvitae s along	 the	 boundary	line.	 	 These	 trees	were	 ten to twelve	 feet	in height;	some	shorter	trees	were	also	installed to	create an	additional	row	to	fill in	any	gaps. The	landscaper	installed seven	four

- to
- six

- foot pine trees near	a structure	on	Arcuni

- English’s	property. [¶ 6 ] The	 Tranfields	 filed	 a	 complaint	 against	 Arcuni

- English 1 in	 the Superior	Court alleging	that	the	plantings	constituted	a	nuisance	and seeking damages	and	injunctive	relief. 2 A bench trial was	held on	September 29,	2017 , and	 on	 February	 9,	 2018,	 t he	 court	 entered	 a	 judgment	 in	 favor	 of	 the Tranfields

. In	determining	that	Arcuni

- English had installed	a	spite	fence, the court	 relied	 on	 the	 following	 facts ,	 all	 of	which	 are	 supported	 by competent evidence	in	the	record :

1 Arcuni

- English	is	a	party	to	this	litigation	individually	and	as	the	trustee	of	two	trusts	that	have ownership	interests	in	her	property.

2 Pursuant	 to	 17	 M.R.S.	 § 2701 (2018),	 “Any	 person	 injured	 in	 his	 comfort,	 property	 or	 the enjoyment	 of	 his	estate	by	a	common	and	public	 or	a	private	nuisance	may	maintain	against	 the offender	a	civil	action	for	his	damages,	unless otherwise specially	provided.”4 [T]he	 relationship	 between	 the	 Tranfields	 and	 Arcuni[

- ]English was	 poor	 from	 the	 first	 day	 the	 Tranfields	 moved	 to	 the neighborhood	 and	 tried	 to	 borrow	 firewood.	 	 The	 relationship became	 increasingly	 contentious .	 .	 .	 [and b] y	 the	 time[] Mr. Tranfield	limbed	the	dead	branches	from	the	trees	on	his	side of	 the	 property	 line	 opening	 up	 his	 property	 to

.	 .	 . Arcuni[

- ]English’s	 property,

.	 .	 . Arcuni[

- ]English	 decided	 to	 take action

.	.	. and	she	instructed	[the	landscaper]	to put	up	trees	and	to bring	back	her	privacy. Given	an	excuse,

.	.	. Arcuni[

- ]English	finally	made	good	her threat	to	put	up	a	fence	to	block	the	Tranfields’	view , made	when the	Tranfields	 first	moved	into	 the	neighborhood.		Her	dominant motive	was	to	insta ll	a	continuous	green	barrier	between	the	two properties	 along	 the	 boundary	 line.	 	 The	 trees	 were	 installed without	any	advance	notice	to	the	Tranfields,	along	the	portion	of the	boundary	that	would	block	their	view	and	without	considering other	 types	 of	 v egetation	 that	could	provide	her	privacy	without blocking	entirely	the	slot	view	that	the	Tranfields	had	or	without totally	 closing	 in	 their	 back yard.	 	 The	 trees	 that	 were	 installed were	8	to	12	feet	tall	and	will	top	out	at	20	feet.		They	are	4	to	6	feet wide	 already	 creating	 a	 continuous	 wall	 of	 green. [Arcuni

- English]’s	motive	was	malicious	and	without	that	motive, she	would	not	have	installed	the	trees	as	she	did,	even	to	vindicate her	privacy	interest,	which	could	have	been	satisfied	with	a	use	of fe wer	and	more	contained	trees	and	bushes.		Arcuni[

- ]English,	with a	 dominant	 malicious	 motive,	 installed	 a	 continuous	 green	 wall that	 was	 both	 dense	 and	 unnecessary	 to	 restore	 her	 privacy. Having	 considered	 the	 intense	 animosity	 that	 Arcuni[

- ]English held toward s the	Tranfields,	the	court	determines	that	she	installed a	spite	fence

. .	.	. [¶ 7 ] The	court ordered	Arcuni

- English to remove	every	other	pine	tree along	the	boundary	line,	remove	the	trees	that	were	planted	as	an	additional row	to	fill	in	gaps,	and	trim	all	of	the	arborvitae	to	a	height	no	greater	than	ten5 feet.	 	 Additionally, the	 court prohibited	 Arcuni

- English	 from repl acing any arborvitae	that	die	off. 3 Following	the	issuance	of	the	judgment, Arcuni

- English timely	appealed. See M.R.	App.	P. 2B (c)(2).
II.		DISCUSSION [¶ 8 ] “We review a	 trial	 court’s	 factual	 findings	 for	 clear	 error	 and	its application	of	the	law	to	tho se	facts	de novo.		The	findings	will	be	upheld	if	they are	supported	by	competent	evidence	in	the	record,	even	if	the	evidence	might support	 alternative	 findings	 of	 fact.” Peters	 v.	 O’Leary ,	 2011	 ME	 106,	 ¶	 15,
30 A.3d	825	(citation	and	quotation	marks	omi tted). [¶ 9 ] Pursuant	to	17	M.R.S.	§	2801,	“Any	fence	or	other	structure	in	the nature	of	a	fence,	unnecessarily	exceeding	6	feet	in	height,	maliciously	kept	and maintained	for	the	purpose	of	annoying	the	owners	or	occupants	of	adjoining property,	shall	be deemed	a	private	nuisance.” The	Tranfields,	as	t he	plaintiff s, b o r e the	burden	of	demonstrating	each	of	these	elements by	a	preponderance of	the	evidence

. 4 See Ma	v.	Bryan ,	2010	ME	55,	¶ 6, 997	A.2d	755	(stating	that

3 Arcuni

- English	fil ed	a	motion	for	findings	of	fact	and	conclusions	of	law that the	court	denied, stating	that	it	had	found	all	of	the	facts	necessary	to	its	decision

.

4 Although	the	Tranfields	assert	in	their	brief	that	a	defendant	has	the	burden	to	prove	the	absence of	a malicious	purpose,	at	oral	argument	they	abandoned	that	view	and	acknowledged	that	it	was their	burden	to	prove	all	statutory	elements	of	a	spite fence	claim,	including	the	existence	of	malice as	a	dominant	factor	in	the	erection	of	the	fence.6 it	is	the	plaintiff’s	burden	of	proo f	to	establish the elements of	a	cause	of	action) ;

see also State	v.	Gagne ,	2019	ME	7,	¶ 30,	199	A.3d	1179. “For	purposes	of	the [spite	 fence]	 statute,	 a	 plaintiff	 need	 not	 prove	 that	 malice,	 the	 purpose	 to annoy,	was	the	sole	motive	for	building	the fence.		The	plaintiff	need	only	prove that	 such	 was	 the	 dominant	 motive,	 meaning	 that	 without	 that	 malicious motive,	 the	 fence	 would	 not	 have	 been	 erected	 or	 maintained.” 5 Peters , 2011 ME 106,	 ¶	 1 6 ,	 30	 A.3d	 825 (citation,	 quotation	 marks,	 and	 emphasis
omi tted); see also Healey	v.	Spaulding ,	104	Me.	122,	125,	71	A.	472,	473	(1908); Lord	v.	Langdon ,	91	Me.	221,	222,	39	A.	552,	552	(1898)

. [¶1 0 ] Arcuni

- English	argues	that the	court	erred	in	determining	that	the Tranfields	 demonstrated that	 she	 had a dominantly	 malicious	 motive

. We disagree. T he court’s	finding	of	malice	is	supported	by the	history	of	animosity between	 the	parties ; the	court ’ s determination	 that	Arcuni

- English ’ s	claimed reason	for	building	a	fence	was	not	credible ; Arcuni

- English ’ s i nstallation	of	the fence	 without advance	 notice	 to	 the	 Tranfields ; and the	 size,	 extent,	 and anticipated	growth	of	 the	 trees

. S ee Peters ,	2011	ME	106,	¶ 17,	30 A.3d	825

5 The	 dissent	 introduces	 the	 novel	 notion	 that	 provocation	 constitutes	 some	 manner	 of affirmative	defense	 to	 the	malicious	 construction	of	 a	 spite	 fence. Dissent ing	Opinion ¶ ¶ 20 ,	22

. No authority	is	cited	for	this	proposition	because	none	exists. The	s pite	fence	statute	is	a	creation	of the	Legislature , and the	Legislature deemed	fit	to	make	the	dominant	motive	of	malice	the	singular “mens rea” element	of	the	cause	of	action. No	justifications	or	mitigating	factors	were	included	in	the statute. The	 di ssent ’ s	 faulting	 of	 the	 trial	 court	 for	 not	 considering whether	 Arcuni

- English	 was provoked is therefore misplaced.7 (concluding	that “[t] he	court’s	finding	of	malice [ was ] supported	by	evidence	of the	number	of	trees	planted;	the	size,	extent,	and	anticipated	rapid	growth	of the	 trees; .	 .	 .	 [t he	 fence

- builder ] ’s	 secrecy	 in	 making	 arrangements	 for	 the plantings; [ and	 the	 fence

- builder ] ’s own testimony	 regarding ” interaction s between	the	parties) ; Rice ,	2015	ME	49,	¶	16,	115	A.3d	86 (stating	that	t he trial
court	is in	the	best	position	to	determine	the	credibility	of	the	testimony	and is not	required	to	believe	any	particular	witness ) ; see also Obelensky	v.	Trombley , 2015	 VT 34,	 ¶	 30,	 115 A.3d	 1016 ( reasoning	 that	 the	 trial	 court	 properly considered the	history	 of	intense	animosity	and	conflict	between	 the parties and	 the	 credibility	 of	 the fence

- builder’s claimed	 reasons	 for	 building	 the fence)

. Although	 the	court	stated	 tha t	it	did “not	doubt	 that	her	privacy	was part	of	her	concern , ” it determined	that	Arcuni

- English’s “ motive	was	malicious and	without	that	motive,	she	would	not	have	installed	the t rees	as	she	did,	even to	vindicate	her	privacy	interest.” [¶1 1 ] Arcuni

- English further argues	 that	it	was	 erroneous	 to	 assign	 a malicious	motive	 to	her because she	deferred	 to the landscaper	on	decisions about	what	to	plant	and	where. T he	court	stated ,	however, that	its	a nalysis	of whether	 this	was	a	 spite	 fence	was	i nformed	by	 the acrimonious encounters between the	parties that had occurred	before any decisions	concerning	what	to8 plant were	made

. The court specifically found that ,	after	Arcuni

- English had warned	the	Tranfields	that	she	would	put	up	a	fence	to obstruct their	view, she “decided	 to	 take	 action”	 by	 “instructing	 [the	 landscaper]	 to	 put	 up	 trees.”
Arcuni

- English	 and	 the	 landscaper	 then “discussed	 how	 to	 do	 it.” The se findings,	based	in	the record , support	the	court’s	determination	of	a	dominantly

m alicious	motive. [¶1 2 ] Finally , Arcuni

- English argues	that the	court	erred by finding	that the	height	of	the	trees	unnecessarily	exceeded	six	feet	because she	presented the landscaper ’ s	 uncontradicted	 testimony	 that	 trees	 of	 this height were necessary	 to protect	her	privacy

. Contrary	 to	Arcuni

- English ’ s	assertion, t he court	was	not	required	to	believe	the	testimony	of	any	particular	witness,	even if	that	testimony	was	uncontradicted. See Rice ,	2015	ME	49,	¶ 16,	115 A.3d 86;

see also Handrahan	v.	Malenko , 20 1 1	ME	15,	¶ 14,	12	A.3d	79. Because	this	trial began	with	a “ view ” of	the	property,	the	court	was	able	to	weigh	the	testimony it	heard	during	the	trial	in	light	of	the	information	it	acquired	during	that	view. As	its	judgment	indicates , the court spe cifically c onsidered	the	n umber	and	size of	the	plantings ,	as	well	as	Arcuni

- English’s	malicious motive , in	finding	that	the
trees	 were “ unnecessarily ” taller	 than	 six	 feet

. See Rice , 2015	 ME	 49,	 ¶ 15, 115 A.3d	86

.9 [¶1 3 ] In	 summary ,	 the	 court	 did	 not	 err by determining	 that
Arcuni

- English’s	installation	of	trees	on	the	parties ’ boundary	line	constituted a	 spite	 fence	pursuant	 to	 section 2801 because	her installation of more	 than thirty trees ,	which	created	a	dense	and	continuous	wal l , was done	with	malice

. 6 Furthermore,	the	court crafted	a	fair	and	limited remedy	based	on	its	findings ; the	 plantings	 that	 constituted	 a	 legitimate	 privacy	 barrier between	 the properties were	allowed	to	remain. 7 A rcuni

- E nglish’s	plantings	will	continue to	provide	the	privacy	that	she	previously	enjoyed and , at the	same	time, the slotted	view	of	the	water	from	the T ranfields ’ property	will	be	protected.

6 Because	 the	 court	 did	 not	 err by determining	 that	 Arcuni

- English’s	 installation	 of	 trees constituted	a	spite	fence,	we	need	not	reach	the	issue	of	whether	the	fence	constituted	a	common	law nuisance. Rice	v.	Cook ,	2015	ME	49,	¶	16	n.2,	115	A.3d	86; see also Peters v.	O’Leary ,	2011	ME	10 6, ¶ 18,	30 A.3d 825.

7 The	dissent	states	that	the	court’s	mandate	to	eliminate	every	other pine tree	 that	had	been planted	far	exceeded	what	was	needed	to	return	the	parties	to	the	status	quo.		Dissenting	Opinion ¶ ¶ 24,	25

. However,	t h is remedy	was	fa shioned , as	the	court	stated	in	its	judgment , to	reduce	the stress	on	the	trees	and	to	more	closely	approximate	preexisting	conditions.		Indeed,	by	the	time	of trial,	 the	court

— w hich	had	the	benefit	of	seeing	the	properties,	including	 the	plantings,	 first

- hand during	the	view

— o bserved	that	some	of	the	trees	had	died	because	they	had	been	planted	too	close together.		In	addition,	the	court	found	that	the	Tranfields	had	not	removed any trees	on	the	parties’ boundary	line	to	begin	with	but	had	merely	removed	overgrown	shrubbery,	deadwood,	and	debris. T hus,	t his	relief ,	which	allows	a	significant	number	of	trees	to	remain	along	the	boundary	line, was appropriate and	necessary.10 The	entry	is: Judgment	affirmed.

_____________________________ ALEXANDER,	J. , dissenting. [¶14] The	 evidence	 in	 this	 case,	 as	 outlined	 in	 the	 Court’s	 opinion, demonstrates	 that	 from	 the	 time	 they	 moved	 onto	 their	 property,	 Richard Tranfield	and	Karla	Doremus

- Tranfield	provoked,	promoted,	and	continued	an adverse	 relationship	 with	 their	 elderly	 neighb or,	 Patricia	 Arcuni

- English.	 	 I respectfully	dissent,	because	 (1)	 the	 trial	court	 failed	 to	 sufficiently	consider the	role	the	Tranfields’	provocations	played	in	Ms.	Arcuni

- English’s	efforts	to restore	 her	 privacy	 after	 the	 Tranfields	 had	 eliminated	 the	 pr ivacy	 barrier between	 the	 two	 properties,	 and	 (2)	 the	 trial	 court’s	 finding	 that
Ms. Arcuni

- English	 requested	 her	 landscaper	 to	 plant	 trees	 “to	 ensure	 her privacy”	 and	 did	 not	 tell	 him	 “to	 block	 their	 view,”	 is	 inconsistent	 with	 its finding	that	malice

— a	p urpose	to	annoy

— was	the	dominant	motive	in	planting the	trees	at	issue. [¶15]		The	record	establishes,	without	significant	dispute,	 that	Patricia
Arcuni

- English,	a	woman	in	her	eighties,	lives	alone	in	the	Camden	residence she	has	occupied	for	more	than	fo rty	years.		The	date	the	Tranfields	moved	in,11 a	 cold	 January	 day	 in	 2016,	 Ms.	 Arcuni

- English	 arrived	 home	 to	 find
Mr. Tranfield	 apparently	 stealing	 firewood	 from	 her	 home.	 	 The	 trial	 court found	that	the	Tranfields	“left	a	note	on	her	door”	indicating	that they	had	taken the	firewood.		That	finding	has	no	support	in	the	record	evidence. 8 In	any	event, a	note,	if	there	ever	was	one,	would	have	done	little	to	ameliorate	the	bad	first impression	already	created.		The	Tranfields	 followed	up	 the	negative	start to the	neighborly	relationship	by	releasing	their	dogs	to	urinate	and	defecate	on
Ms. Arcuni

- English’s	 property.	 	 Then,	 without	 notifying	 Ms.	 Arcuni

- English, they	cut	a	couple	of	trees	near	her	property. [¶16]	 	 After	 these	 events,	 and	 understandably	 provok ed	 and	 angry,
Ms. Arcuni

- English	made	the	threat	to	erect	a	fence	to	block	the	Tranfields’	view of	the	ocean.		Sometime	later,	without	notice	to	Ms.	Arcuni

- English	and	while she	was	away	from	her	residence,	the	Tranfields	chopped	down	the	barrier	of
greene ry	 on	 the	 Tranfields’	 property	 that	 had	 provided	 privacy	 to
Ms. Arcuni

- English’s	home	for	several	decades. [¶17]		When	informed	 of	 the	 removal	 of	 the	privacy	barrier	by	 a	local landscaper,	the	court	found	that	Ms.	Arcuni

- English	“was	devastated,”	and	that she	called	the	landscaper	and	said,	“I	need	trees.”		The	court	further	found	that

8 Some	 re ference	is	made	 to	 this	note	in	 the	Tranfields’	attorney’s	 opening	statement,	but	no testimony	or	exhibit	offering	related	to	this	note	appears	in	the	transcript.12

“ She	never	told	[the	landscaper]	to	block	their	view ,	however[,]	he	was	her	agent when	he	sent	the	photo	to	her	of	the	trees	cut	down. She	only	said	she	needed trees	and	pri vacy and	directed	 [the	landscaper]	 to	install	 trees but	left	 to	him decisions	concerning	what	trees	and	where	to	place	them	to	ensure	her	privacy .” (Emphasis	 added.)	 	 Later,	 the	 court	 found	 that	 it	 “does	 not	 doubt	 that	 her privacy	was	part	of	her	concern. ” [¶18]		These	findings

— the	only	findings	regarding	Ms.	Arcuni

- English’s motive	 in	 requesting	 the	 planting	 of	 trees

— are	 contrary	 to	 the	 court’s conclusion	 that	 malice	 was	 Ms.	 Arcuni

- English’s	 dominant	 motive	 in	 having trees	planted	on	her	side	of	 the	bound ary.		The	 fact	 that	 the	landscaper	may have	 been	 Ms.	 Arcuni

- English’s	 agent	 in	 planting	 the	 trees,	 and	 may	 have

over - planted	the	trees	necessary	to	restore	her	privacy,	does	not	support	the finding	 that	 Ms.	 Arcuni

- English’s	 dominant	 motive	was	malice.	 	Not ably,	 the court	 did	 not	 find	 that	 the	landscaper,	 acting	 on	Ms.	 Arcuni

- English’s	 behalf, acted	maliciously	or	with	malice. [¶19]	 	 The	 spite	 fence	 statute	 specifies	 that	 “[a]ny	 fence	 or	 other structure	 in	 the	 nature	 of	 a	 fence,	 unnecessarily	 exceeding	 6	 fee t	 in	 height, maliciously	 kept	 and	 maintained	 for	 the	 purpose	 of	 annoying	 the	 owners	 or occupants	of	adjoining	property,	shall	be	deemed	a	private	nuisance.”		17	M.R.S.13 §	2801	(2018).		The	statute	does	not	define	“malice.”		In	other	contexts,	we	have define d	 “malice”	 or	 “malicious”	conduct	as	 “conduct	 .	 .	 .	motivated	by	ill	will toward	 the	 plaintiff.” Tuttle	 v.	 Raymond ,	 494	 A.2d	 1353,	 1361	 (Me.	 1985) (addressing	malice	related	to	award	of	punitive	damages). [¶20]	 	 The	 spite	 fence	 statute	 does	 not	 appear	 to contemplate	 the situation,	as	occurred	in	this	case,	where	the	adversity	in	the	relationship	that the	court	found	led	to	the	planting	of	the	trees	was	provoked,	at	least	in	part, by	the	hostile	actions	of	the	plaintiffs,	and	where	the	“fence	or	other	struc ture” only	replaced	a	barrier	that	previously	existed. [¶21]	 	 Interpreting	 the	 spite	 fence	 statute,	 we	 have	 said	 that	 for	 the purposes	of	that	statute,	“a	plaintiff	need	not	prove	that	malice,	the	purpose	to annoy,	was	the	sole	motive	for	building	the	fenc e.		The	plaintiff	need	only	prove that	 such	 was	 the	 dominant	 motive,	 meaning	 that	 without	 that	 malicious motive,	 the	 fence	 would	 not	 have	 been	 erected	 or	 maintained.” Peters	 v. O’Leary ,	 2011	 ME	 106,	 ¶	 16,	 30	 A.3d	 825	 (emphasis	 omitted)	 (citations omitted)

. [¶22]		In	applying	the	standards	set	by	statute	and	our	precedent,	the	trial court	 failed	 to	adequately	consider	 (1)	whether	 the	malice	 that	it	 found	was provoked	 or	 caused	 by	 the	 Tranfields’	 own	 actions	 in	 creating	 the	 adverse14 relationship	with	their	ne ighbor,	and	(2)	how	it	could	find	malice	the	“dominant motive”	 in	 planting	 the	 trees	 when	 it	 also	 found	 that	 “she	 never	 told	 [the landscaper]	 to	 block	 their	 view”	 and	 “left	 to	 him	 decisions	 concerning	 what trees	and	where	to	plant	them	to	ensure	her	privac y.” [¶23]		Before	the	trial	court	and	before	us,	Ms.	Arcuni

- English	argues	that the	Tranfields’	provocations	and	elimination	of	her	privacy	were	the	cause	of her	 actions	 about	 which	 the	 Tranfields	 complain.	 	 Certainly,	 in	 the	 trial,	 the court	was	faced	wit h	conflicting	evidence.		We	have	said	that the	existence	of contrary	evidence	that	would	support	a	different	result,	without	more,	will	not justify	vacating	the	trial	court’s	fact

- findings. See	Preston	v.	Tracy, 2008	ME	34, ¶	10,	942	A.2d	718; see	also St ate	v.	Jeskey ,	2016	ME	134,	¶	32,	146	A.3d	127

. The	 problem	 here,	 though,	 is	 not	 conflicting	 evidence,	 but	 conflicting, inconsistent	 trial	court	 findings:	 finding	 that	malice	was	Ms.	Arcuni

- English’s dominant	motive	in	requesting	that	the	landscaper	plant	the	trees,	while	also finding	 that	“she	never told	 [the	landscaper]	 to	block	 [the	Tranfields’]	 view,” leaving	to	the	landscaper	“decisions	concerning	what	trees	and	where	to	plant them	 to	 ensure	 her	 privacy.”	 	 The	 directly	 inconsistent	 findings	 regarding
Ms. Arcuni

- English’s	 motive	 for	 requesting	 the planting	 of	 the	 trees	 cannot15 support	the	judgment	reliant	on	a	finding	of	a	dominant	motive	of	malice. See
Peters ,	2011	ME	106,	¶	16,	30	A.3d	825. [¶24]	 	 Further,	 in	 finding	 a	 “dominant	 motive”	 of	 malice	 in	 the replacement	 of	 the	 privacy	 barrier,	 the	 rem edy	 the	 trial	 court	 awarded, eliminating	every	other	pine	tree	that	had	been	planted,	far	exceeded	what	was needed	to	return	the	parties	to	the	status	quo	and	allow	Ms.	Arcuni

- English	to regain	the	privacy	she	had	enjoyed	for	several	decades. [¶25]	 	 While there	 is	 evidence	 that	 the	 planting	 of	 the	 trees	 slightly limited	 the	 Tranfields’	 “slot	 view”	 of	 the	 ocean	 across	 Ms.	 Arcuni

- English’s property,	the	pictures	in	evidence	of	the	slot	view	before	and	after	the	planting of	the	trees	indicate	that	cutting	the height	of	three	of	the	newly	planted	trees would	restore	the	view	to	the	extent	that	it	had	existed	before	the	Tranfields purchased	the	property.		Except	for	these	few	trees,	there	is	no	evidence	that the	Tranfields’	view	has	been	altered	in	any	way	from	w hat	existed	when	they purchased	 the	 property.	 	 Thus,	 beyond	 inconsistent	 findings	 and	 failing	 to consider	the	effect	of	the	Tranfields’	provocations	on	their	capacity	to	maintain the	action	and	receive	a	finding	of	malice,	the	remedy	ordered	by	the	court

—

r emoving	 every	 other	 pine	 tree	 along	 the	 privacy	 barrier

— far	 exceeded	 the extent	of	relief	necessary	or	appropriate	to	be	awarded	in	this	case.16 [¶26]		For	these	reasons,	the	judgment	of	the	Superior	Court	should	be vacated	and	the	matter	remanded	for	the	Su perior	Court	to	consider,	in	both	its findings	and	any	relief	it	elects	to	award,	(1)	the	extent	to	which	the	Tranfields’ provocations	 caused	 the	 response	 by	 Ms.	 Arcuni

- English,	 (2)	 whether	 the dominant	motive	in	Ms.	Arcuni

- English’s	actions	was	malice	or restoration	of her	privacy,	and	(3)	whether,	if	the	finding	of	a	dominant	motive	of	malice	is maintained,	any	relief	should	be	awarded	beyond	the	lowering	of	the	height	of the	three trees	that	appear	to	obstruct	the	slot	view	of	the	ocean	to	a	greater
exte nt	 than	 the	 view	 was	 already	 limited	 by	 other	 growth	 indicated	 in	 the picture	taken	before	the	Tranfields	purchased	their	home.

Joseph	W.	Baiungo,	Esq. (orally) ,	Belfast,	for	appellant	Patricia	Arcuni

- English Dana	 F.	 Strout,	 Esq. (orally) ,	 Rockport,	 for	 appellees	 Richard	 Tranfield	 and Karla	D oremus - Transfield

Knox County	Superior	Court	docket	number	CV

- 2016

- 33 F OR C LERK R EFERENCE O NLY