Opinion
BCD-RE-19-14
03-06-2020
RANDY SLAGER, Plaintiff v. LORI L. BELL and JOHN SCANNELL, Defendants
Randy Slager Alan R. Atkins, Esq. Fulton Rice, Esq. Lori L. Bell John W. Scannell Daniel L. Rosenthal, Esq.
Randy Slager
Alan R. Atkins, Esq.
Fulton Rice, Esq.
Lori L. Bell
John W. Scannell
Daniel L. Rosenthal, Esq.
COMBINED ORDER ON PLAINTIFF'S MOTION TO COMPEL INSPECTION AND DEFENDANTS' MOTION TO STAY
M. MICHAELA MURPHY, SUPERIOR COURT JUSTICE
Before the Court are two motions: Plaintiff's Motion to Compel Inspection dated May 6, 2020 and Defendants' Motion to Stay dated May 8, 2020. The parties have adjoining residences on Ocean Avenue Kennebunkport and are involved in litigation before the Town, the York County Superior Court, and this Court. The Court recently conferred telephonically with counsel to discuss the status of the municipal appeals and information it had mistakenly received that the Superior Court matter had been "stayed." In fact, the Court was simply awaiting this Court's decision on the Plaintiff's Application to transfer the Superior Court Rule 80B case to this Court. That application had been objected to by the Town who is not a party in the above-captioned matter, and the Court rejected that application.
Plaintiffs seek an Order under Rules 7, 26, 34, and 37 of the Maine Rules of Civil Procedure to enter upon Defendants' property so that his agents and/or contractors can inspect the construction of retaining walls to see if they were built to code and to generally accepted engineering standards in pursuit of the claims for Nuisance and Trespass still pending in this Court. Defendants seek an Order staying those claims and assert that the alleged violations of the Town's land use ordinance and/or permits - which Plaintiff claims are pertinent to their Nuisance claim - present essentially the same allegations made to the Town in administrative proceedings.
The Plaintiff is represented by Attorneys Alan R. Atkins, Fulton Rice and David Lourie. Defendants are represented by Attorney Daniel L. Rosenthal. The Court has reviewed the parties' motions and for reasons stated grants the motion to stay in part, and denies the motion for entry and inspection without prejudice.
Motion to Stay
The Defendants assert that the doctrine of primary jurisdiction and exhaustion of administrative remedies require that the case before this Court be stayed until Plaintiff's appeals of a number of municipal decisions are resolved. Plaintiff asserts that under federal law "extreme circumstances" must be present before this Court should do anything to further delay this matter. In addition, Plaintiff emphasizes that the case before this Court are claims for nuisance and trespass, although the alleged violations of the Town Ordinance and safety standards have been offered by Plaintiff as evidence in this matter that the Defendants' retaining walls present dangers that amount to nuisance. The Court agrees that there is significant overlap in the allegations made by Plaintiff in this matter and in the municipal proceedings. The Court would further note that administrative proceedings are still ongoing, and that only one appeal has made its way to Superior Court as of the date of this Order.
The Court concludes after review of the history of this litigation in this Court, in the York Superior Court, and as the Court currently understands the proceedings still underway before the Town of Kennebunkport, that a stay of the Nuisance and Trespass claims that remain pending in this Court should be granted. The Court agrees that the overlap between at least the nuisance claim and the safety and code violations alleged before the Town is so significant as to be almost complete. The Court's only hesitation in granting a stay is that the Business and Consumer Court has as one of its goals the prompt resolution of cases. However, that concern is outweighed here by the overlap in factual and legal allegations, and the likelihood that the Plaintiff could obtain much if not all of the relief he seeks should he prevail in the administrative proceedings before the Town and the York County Superior Court. And importantly, the Town of Kennebunkport has significant interests in the administrative and Superior Court proceedings, and its role in this contentious dispute cannot fairly be addressed here as this case is currently configured. While Plaintiff suggested that he might consider bringing the Town into this case, the Court expects that would be vigorously opposed by the Town and the Defendants, and could result in further delays and unnecessary expenditure of judicial and litigation resources.
The Court will not, however, grant an open-ended stay as Defendants request. Instead, the Court will stay this matter until September 11, 2020. On or before that date, the parties shall file with the Court a letter updating the Court on the status of any matter that remains pending before the Town of Kennebunkport, or before the York County Superior Court. The Court will then consider whether to extend the stay or to issue an amended Scheduling Order permitting this matter to move forward.
Motion to Compel Inspection
In this Motion, Plaintiff asks the Court to permit his agents and contractors to enter upon Defendants' property and inspect construction done pursuant to certain permits issued by the Town. In support of this request, Plaintiff relies upon the recommendation of his structural engineering expert, David Price, who indicates a willingness and ability to determine if the construction was done in accordance with engineering standards and Town ordinances. Plaintiff claims that the construction poses a real threat to the safety of the Plaintiff and the general public. The safety issue is portrayed, in part, as whether the retaining walls in question bear on ledge. If it does not, according to Mr. Price, it is subject to "stability failure." [Plaintiff's Motion, pg. 2]. While Plaintiff states that any such inspection would be done at Plaintiff's cost and that the Plaintiff would "restore Defendants' property to the same condition it was prior to the inspections" Defendants characterize the proposal as Plaintiff planning to "roll a backhoe onto Defendants' land and tear apart expensive retaining walls..." [Defendants' Opposition, pg. 1]. Perhaps in recognition of this argument, Plaintiff's Reply scales back the inspection request "in order to minimize the burden of the inspection on Defendants and focus on those portions of Defendant's construction which most impact Plaintiff's property." [Plaintiff's Reply, pg. 1] However, Plaintiff still asks for "excavation underneath and around the base of Wall A11" and "testing and inspection of Wall A11 at critical points" to ascertain the structural design of all the materials used to construct and support it." Id. pg. 2.
The Court is also aware that the Town of Kennebunkport has inspected this same construction to determine if it complies with ordinances and/or presents safety issues. It also seems apparent that the adequacy of the Town's efforts is the subject of contention and litigation before the Town and perhaps the York Superior Court.
The Court concludes that the Plaintiff has failed to explain how "excavation" (to use his term) is required for the kind of "inspection and measuring, surveying, photographing, testing, or sampling" that is envisioned under Rule 34 for entry upon another person's property. In addition, the Plaintiff seems to concede that this excavation, as well as the testing and inspection of the wall "at critical points" could in fact damage the wall - otherwise the Plaintiff would not likely propose that he pay to "repair" any such damage. More fundamentally, the Plaintiff has failed to convince the Court that there is any immediate or urgent need to for the Court to order such a significant intrusion upon his neighbor's property at this time. It would seem more prudent to take this issue up again when the parties confer with the Court in mid-September, if the Plaintiff wishes to pursue it at that time. By then the administrative process will be much further along, and hopefully the validity of the Town's own inspections of the same property would have been validated, or not, by the York Superior Court.
The entry will be: Defendants' Motion to Stay is granted in part. Plaintiff's Motion to Compel Inspection is denied without prejudice. This Order may noted on the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.
ORDER ON MOTION TO DISMISS
BACKGROUND
Before the Court is Defendants' Rule 12(b)(6) Motion to Dismiss all three Counts of Plaintiff's Amended Complaint for Nuisance (Count 1); Trespass (Count II); and Equitable Relief (Count III). The Plaintiff is represented by Attorney Alan Atkins and Attorney Fulton Rice. Defendants are represented by Attorney Daniel Rosenthal, Attorney Jennie Clegg, and Attorney Trey Milam. Oral argument on the motion was heard on February 28, 2020. The Court has reviewed the parties' filings and considered their oral arguments, and issues the following order denying the motion as to Count I (Nuisance) and Counts II (Trespass), but granting it as to Count III (Equitable Relief).
The Plaintiff seems to concede that Count III is not a separate cause of action, and the Defendants seem to agree that dismissal of this Count would not preclude Plaintiff from obtaining equitable relief if Plaintiff prevails on any claim. The Court therefore dismisses Count III as it is not a cause of action but could be an available form of relief in this matter depending on the outcome.
STANDARD OF REVIEW
A motion to dismiss tests the legal sufficiency of a Complaint, but the Court must view the evidence in each claim "in the light most favorable to determine whether it sets forth a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." McCormack v. Crane, 2012 ME 20, par. 5, 37. Because Maine is a notice pleading state, only a short, plain statement of a claim must be made sufficient to provide the defendant with fair notice of the cause of action. Town of Stonington v. Galilean Gospel Temple, 1999 ME 2, par. 14.
Count I: Nuisance
In order to prevail on a claim for common law nuisance, the Plaintiff must show that: 1) the defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use; 2) there was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that enjoyment may not have been anticipated or intended; 3) the interference that resulted and the physical harm, if any, from that interference proved to be substantial...the substantial interference required is to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct; and 4) the interference that came about under such circumstances was of a such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. Charlton v. Oxford, 2001 ME 104, par. 366. The Defendants argue that Plaintiff has failed to adequately plead any set of facts that even in the light most favorable to Plaintiff would establish any of these elements.
With respect to the element of intent, as Plaintiff points out the Law Court in Charlton has indicated that what must be established is intent to create the condition which interferes with Plaintiff's enjoyment of the land. Id. par. 37. The Amended Complaint alleges that Defendants intended to build and did build the raised patio and retaining walls that Plaintiff claims constitute the nuisance, so that element has been sufficiently pled. In addition, with respect to the interference element, the Amended Complaint alleges that the patio and walls sit on the Plaintiff's boundary line in violation of the Defendants' building permit. It could be arguably inferred from these allegations that Defendants interference was intentional.
Defendants' primary argument regarding Count I is that Plaintiff has failed to allege that he was harmed in any substantial way. Indeed, Defendants claim that all that Plaintiff has done is express fear or concern about loss of enjoyment or value in the property, without more. This not only means, according to Defendants, that Plaintiff has failed to adequately plead actual harm, but that Count I should be dismissed as not being ripe. The Court has reviewed the report of Plaintiff's expert, David Price, which is an Exhibit to Plaintiff's Amended Complaint. The report states that the construction was done in violation of building codes, that the retaining walls were not "bearing on ledge" - meaning they are subject to "frost heaves and overturning" and hence unsafe. Par. 36, 37 to Amended Complaint. In addition, the Amended Complaint cites to the report's finding that the retaining walls are unstable and were constructed without full-width capstones or through-stones which present safety concerns. Id. par. 38.
Defendants also ask the Court to consider documents that were not part of the Amended Complaint, causing Plaintiff to ask the Court to treat the motion to dismiss as one for Summary Judgment. Plaintiffs are correct that official public documents, documents central to a plaintiff's claim or referred to in the complaint can be considered by the Court on a Rule 12(b)(6) motion to dismiss without the Court holding a defendant to the requirements of Rule 56. See, Greif v. Independent Fabrication, 2019 ME 142, par. 4. While Exh.A, B and C to the motion are either public documents or are arguably central to Plaintiffs' claim, the Court reject consideration of Exh. D which is a photograph that purports to be a "better copy" of a photograph included in the expert report appended to Plaintiffs' complaint. However, the Court does not find Exhibits A-C to be pertinent to the standard that the Court must apply in deciding this motion, as more fully explained in fn. 3. Below.
In the light most favorable to Plaintiff, which is how the Court must view the allegations, the Plaintiff has adequately pleaded facts in the Amended Complaint (along with findings made in David Price's report) the three necessary elements of Nuisance: intentional acts; interference in use or enjoyment of the land; and harm that is substantial, unreasonable, and not speculative. The Court will therefore deny the motion with respect to Count I.
Defendants also argue that the Plaintiff has brought this claim for common law nuisance "to avoid his own failure to seek administrative remedies" through proceedings in his municipality. [Defendants' Motion, pg. 15]. The Court is not certain how this argument is to be analyzed given the confines of how the Court in this Rule 12(b)(6) motion is obligated to analyze the pleadings and allegations in the light most favorable to Plaintiff.
Count II: Trespass
Defendants argue that Count II should be dismissed as it refers only to Defendants' "contractors" when describing the conduct that Plaintiff alleges constitutes trespass. Defendants accurately describes the language in the Amended Complaint, and they are correct that under Maine law there is no vicarious liability for an employer for torts committed by an independent contractor who is not an "agent" of the employer. Bonk v. McPherson, 605 A.2d 74, 78 (1992). However, as Defendants acknowledge, an employer can be held liable for tortious acts of independent contractors depending on the facts of the case and the nature of the relationship between the contractor and the entity or person who engages the contractor. In Bonk, the Law Court also stated that "In certain circumstances, a party can be held liable for the trespass of an otherwise independent contractor if the trespass was authorized as part of the contract, or was the natural result of the work contracted to be done." Eaton v. European &N. Am. Ry. Co., 59 Me. 520, 526 (1872).
The Court agrees with Defendants that Plaintiffs have not been particular or specific as to their theory of how the Defendants "contractors" were acting as agents under applicable Maine law. However, as Plaintiffs point out, the Law Court in Bonk had the benefit of a full evidentiary record that had been presented to a jury in coming to its conclusion that the contractor was not an agent. The standard here compels the Court to decide whether Plaintiffs have set forth "elements of a cause of action or allege(s) facts that would enable the plaintiff to relief pursuant to some legal theory." McCormick v. Crane, 2012 ME 20, par. 5.
Plaintiffs have alleged just enough facts to withstand this motion at this stage. Depending on factual development, Defendants' legal challenge to Count II can be brought again at a later stage.
The entry will be: Defendants' Motion to Dismiss is GRANTED as to Count III but is DENIED as to Counts I and II. The Clerk may note this Order on the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.