Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-18-128
03-11-2020
CITY OF LEWISTON, Plaintiff, v. WILLIAM VERRINDER, Defendant.
STATE OF MAINE
ANDROSCOGGIN, ss
Order on Pending Motions
This land use complaint was filed on December 11, 2017 in the Lewiston District court. It alleges that Defendant Verrinder violated Lewiston's Code of Ordinances and failed to remedy the violations after notice was given. Specifically, Plaintiff alleges that on November 8, 2017, the Lewiston Code Enforcement Officer (CEO) went to Defendant's property at 65 Jill Street and observed numerous violations of the Lewiston Code of Ordinances. He thereafter issued Defendant a Notice of Violation (NOV) which notified Defendant he was in violation regarding trash and construction demolition debris throughout the premises as well as damage to the front stairs. The NOV ordered remediation. According to the Complaint, Plaintiff sent the NOV to Defendant via regular mail and it was not returned to Plaintiff as undeliverable. Defendant did not remedy the violations as of November 20, 2017, and did not appeal the NOV. Plaintiff seeks injunctive relief, award of attorneys' fees, and award of civil penalties.
Defendant tried unsuccessfully to remove the case to the U.S. District Court for the District of Maine, and then on September 24, 2018, Defendant removed the matter to this court for a jury trial.
On June 12, 2019, Plaintiff filed three motions: (1) a motion in limine seeking to limit the scope of the trial due to res judicata; (2) a motion to strike Defendant's jury demand; and (3) a motion to remand this matter back to Lewiston District Court. On August 16, 2019, Defendant opposed the motions and simultaneously moved to enlarge the time to respond pursuant to M.R. Civ. P. 6(b). Plaintiff has opposed that request.
"When a party moves to enlarge the time to complete an act after the deadline to complete the act has passed, that party must show that the failure to act was the result of excusable neglect." Gregory v. City of Calais, 2001 ME 82, ¶ 6, 771 A.2d 383. "[S]elf-represented parties are subject to the same standards as represented parties, and they are not excused from complying with procedural rules." Dyer Goodall & Federle, LLC v. Proctor, 2007 ME 145, ¶ 18, 935 A.2d 1123. "Excusable neglect will be found only when there are extraordinary circumstances that work an injustice." Id.
When Plaintiff filed its motions on June 12, 2019, the filings stated that Defendant was required to file any opposition within 21 days as required by Rule 7. M.R. Civ. P. 7(b)(1)(A); 7(c). Despite the rules and the notice, Defendant did not respond to the motions for over two months. Defendant states that his responses were late because "a severely debilitating and grave life-long illness prevented [him] from learning of the motions and filing a response." (Def.'s Opp'n to Pl.'s Mots. 1.) He also states that he learned about the motions when he went to the court house on August 2, 2019. Defendant did not file anything until August 16, 2019. Defendant has not provided any evidence of his "severely debilitating and grave life-long illness" nor provided an explanation as to why he waited at least two additional weeks to file a motion for enlargement of time to respond to plaintiff's motions. See Proctor, 2007 ME 145, ¶ 21, 935 A.2d 1123 (finding that the tardy party had "presented no evidence of extraordinary circumstances" and that the delay was not minimal because it "was filed over a month past the deadline"). Under the circumstances, Defendant has not shown "excusable neglect" required for enlargement of time, and therefore his motion for enlargement of time is denied and his response will not be considered.
Nonetheless, Plaintiff's motions will also be denied. Plaintiff's motions are all based on the premise that res judicata excludes issues or claims that Defendant could have raised in an appeal to the Lewiston Zoning Board of Appeals. Plaintiff also alleges that the violations have now been cleaned up, essentially leaving only penalties and attorney's fees for decision, issues not triable before a jury.
Plaintiff has moved in limine to limit the issues at trial, arguing that res judicata prevents the relitigation of many issues Defendant raises. "Principles of res judicata apply to administrative proceedings on both the state and municipal levels." Freeport v. Greenlaw, 602 A.2d 1156, 1160 (Me. 1992). In order to apply res judicata to a case where an individual has received an NOV and subsequently failed to appeal to the city's Board of Appeals, "an order to refrain from taking or continuing certain action because it violates a zoning ordinance should refer to the provisions of the ordinance allegedly being violated, inform the violator of the right to dispute the order and how that right is exercised by appeal, and specify the consequences of the failure to appeal". Id. at 1161.
However, although Plaintiff alleges that all the requirements for res judicata were met when Defendant failed to appeal the NOV, those facts have not yet been determined. Indeed, Defendant entered a general denial in the district court as to ail facts. Plaintiff did not file a motion for summary judgment, supported as required under M.R. Civ. P. 56. Rather, Plaintiff is simply alleging at this stage that the requirements for the application of res judicata are met. The contents of the NOV and whether Defendant appealed the NOV to the Lewiston Zoning Board of Appeals are questions of fact. If Plaintiff is successful at trial in establishing the prerequisites for the application of res judicata, then it will be applied. The motion in limine is therefore denied at this stage.
For these reasons, the motions to strike the jury demand and for remand to the Lewiston District Court are also denied. "[A] defendant . . . who is charged with a violation of land use laws and ordinances in the District Court pursuant to Rule 80K may avail himself of his constitutional right to a jury trial by a removal to the Superior Court for a jury trial pursuant to Rule 76C." City of Biddeford v. Holland, 2005 ME 121, ¶ 14, 886 A.2d 1281. Defendant Verrinder properly removed the case for jury trial. Although ultimately there may be no jury issues, that has not yet been established, and so Plaintiff's motions to strike the jury demand and for remand are denied,
In summary, therefore, the entry is: Defendant's motion for enlargement of time and Plaintiff's motions in limine, for remand and to strike the jury demand are all denied. This order may be incorporated on the docket of the case by reference pursuant to Me. R. Civ. P. 79(a). Dated: 3/11/2020
/s/_________
Valerie Stanfill
Justice, Maine Superior Court CITY OF AUBURN, Plaintiff, v. SEVENTY-SIX SPRING, LLC, Defendant.
Order on Motion to Remand
This land use complaint was filed on November 22, 2019 in the Lewiston District court pursuant to M.R. Civ. P. 80K. It alleges that Defendant violated various life safety provisions of Auburn's Lewiston's Code of Ordinances in the multi-unit property and has failed to remedy the violations after notices were given, Plaintiff seeks to have Defendants remove the occupants, abate the violations, pay civil penalties and pay attorneys' fees and costs. Pursuant to M.R. Civ. P. 76C, Defendant removed the matter to Superior Court on the date set for the answer to the complaint. Plaintiff has now moved to remand the matter to District Court, arguing the removal was improvident as there is not a right to a jury trial. M.R. Civ. P. 76C(c).
"[A] defendant . . . who is charged with a violation of land use laws and ordinances in the District Court pursuant to Rule 80K may avail himself of his constitutional right to a jury trial by a removal to the Superior Court for a jury trial pursuant to Rule 76C." City of Biddeford v. Holland, 2005 ME 121, ¶ 14, 886 A.2d 1281. If there is not a right to a jury trial, however, the court will remand the matter to the district court. The question in this case is whether Defendant has a right to a jury trial.
The Constitution of Maine guarantees that "in all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced. . . ." Me. Const. art. I, § 20. The Law Court has been clear that there is a right to a jury trial on all legal claims, but not on equitable claims. E.g., Bowden v. Grindle, 651 A.2d 347, 349 (Me. 1994); Town of Falmouth v. Long, 578 A.2d 1168, 1171 (Me. 1990). The determination depends on the type of relief requested in the claim. Bowden, 651 A.2d at 350. As noted above, Plaintiff seeks injunctive relief coupled with a claim for civil penalties, fees and costs.
In Long, the Law Court stated as follows:
We have consistently held that the determination of remedies for zoning violations is an exercise of the court's equitable powers. See Town of Shapleigh v. Shikles, 427 A.2d 460, 464 (Me. 1981). The mere inclusion of an ancillary request for a civil penalty does not convert an equitable proceeding into an action at law. . . . The Town in the instant case does not "exclusively seek a money recovery." Instead, it primarily pursues injunctive relief and requests the imposition of a civil penalty only as a secondary measure. This distinguishes the case at bar from DePaolo and leads us to conclude that the court properly considered this enforcement action as equitable in nature and therefore committed no error in denying Long a jury trial on the civil penalty issue.Long, 578 A.2d at 1171-72. On the other hand, in Holland, the claim for injunctive relief had already been determined, and the only issues before the court related to penalties and fees. In that case, the Law Court held that there was a right to a jury trial. Holland, 2005 ME 121, ¶ 14.
The question, then turns on whether a claim for injunctive relief coupled with the request for penalties permits removal for a jury trial.
To determine whether a claim is legal or equitable, we consider the basic nature of the issue presented and the remedy sought by the plaintiff. If the damages sought are not incidental to equitable relief but in the alternative as full compensation for the injury alleged plaintiffs are entitled to a jury trial.Avery v. Whatley, 670 A.2d 922, 924-25 (Me. 1996), citing Cyr v. Cote, 396 A.2d 1013, 1019 (Me. 1979) (emphasis added). Because the civil penalties and attorney's fees sought here are not alternative and "full compensation for the injury alleged" but rather are ancillary to the primary remedy sought, this case must be considered equitable in nature. Therefore, there is no right to a jury trial and removal was improvidently granted.
For these reasons, Plaintiff's motion to remand is granted; the case is remanded to Lewiston District Court forthwith. This order may be incorporated on the docket of the case by reference pursuant to Me. R. Civ. P. 79(a). Dated: 3/11/2020
/s/_________
Valerie Stanfill
Justice, Maine Superior Court