Opinion
Civil Action RE-12-250
12-18-2013
ROBERT HARRINGTON, Plaintiff, v. SEASIDE CONDOMINIUM ASSOCIATION, et al., Defendant.
ATTORNEY FOR PLAINTIFFS: SANFORD ROBERTS SANFORD ROBERTS PA ATTORNEY FOR DEFENDANTS: MARTICA DOUGLAS CHRISTINE KENNEDY-JENSEN DOUGLAS DENHAM BUCCINA & ERNST ATTORNEY FOR DEFENDANT SEASIDE CONDOMINIUM ASSOCIATION: MATTHEW HOWELL CLARK & HOWELL
ATTORNEY FOR PLAINTIFFS: SANFORD ROBERTS SANFORD ROBERTS PA
ATTORNEY FOR DEFENDANTS: MARTICA DOUGLAS CHRISTINE KENNEDY-JENSEN DOUGLAS DENHAM BUCCINA & ERNST
ATTORNEY FOR DEFENDANT SEASIDE CONDOMINIUM ASSOCIATION: MATTHEW HOWELL CLARK & HOWELL
ORDER
John O'Neil, Jr. Justice, Superior Court
I. Background
Plaintiff owns unit #1 in the Seaside Condominium in York, Maine. The Seaside Condominium has nine units, unit #1 holds a 38.7% interest in the condominium, units #2 & 3 each hold approximately 9%, and units # 4-9 each hold approximately 7% each. Plaintiffs unit includes the basement of the building, however, there is an easement over part of the basement area for the owners of units #2 & 3 to reach to utility installations. Plaintiff alleges that the condo fees for the current year were improperly assessed in violation of the condominium's governing documents. Plaintiff paid fees according to those assessed in 2011, and argues that the fees which Plaintiff has not paid have improperly been attached to Plaintiffs condo. Plaintiff also alleges that the easement over part of his unit has been overused. Plaintiff asks the Court to order the Association to:
1) adhere to the condominium governing documents,
2) reassess the 2012 and 2013 budget and remove all liens on Unit #1,
3) acknowledge Plaintiffs rights to exclusive use of the basement and parking spots, and to clarify those rights in the condominium governing documents,
4) an audit of the Associations financial records for the last 4 years and repayment of any Association monies inappropriately paid out,
5) separate access be provided to the units #2 & 3 utility installation through unit #3 or eliminate access rights through unit #1,
6) reimburse Plaintiff s legal fees and costs for having to bring this action,
7) any other relief the Court deems just.
Defendant moves the Court to dismiss the case for failure to state a claim upon which relief may be granted.
II. Standard of Review
The purpose of a motion to dismiss is to determine the legal sufficiency of the complaint. Livonia v. Town of Rome, 707 A.2d 83, 85 (Me. 1998). The Court will review the motion in the light most favorable to the plaintiff, taking the facts as stated in the complaint to be true. Id. The Court will grant a motion to dismiss only where "it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claims." McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994) (citations omitted).
III. Discussion
A. Condominium Fees
Plaintiff argues that the condominium fee has been improperly assessed. Currently, Plaintiff holds a 38.7% interest in the condominium. According to the governing document, Plaintiff must pay fees according to their interest in the condominium. Bylaws s.5.3. The fees are a division of the final budget, which is determined by the Executive Board of the Association, subject to disapproval of the unit owners. Bylaws s.5.2. Plaintiff is contesting his fees in comparison to other unit owners in the condominium, however, Plaintiff has not offered the actual monetary amount of fees charged Plaintiff and fees charged other unit holders to the Court. Nonetheless, due the nature of notice pleading the Court will deny Defendant's Motion to Dismiss and allow Plaintiff the opportunity to prove its claim.
B. Basement Easement
Where an easement is being used for something other than its intended purpose, a party may seek relief from the court. The Court will not rewrite easement agreements "The construction of language in an easement deed is a question of law. If the language of the deed is unambiguous, the scope of a party's easement rights is determined solely from that language." Maritimes & Ne. Pipeline, LLC v. Echo Easement Corridor, LLC, 604 F.3d 44 (1st Cir. 2010), citing Crispin v. Town of Scarborough, 736 A.2d 241, 249 (Me. 1999) Plaintiff has not specifically pled that the easement is being used for its intended purpose - to access the utility installations . Furthermore, according to the pleadings of both parties, there is an easement across part of unit #1 for unit #2 & 3 to access utility installations. However due to the fact of notice pleading, the Plaintiff may use discovery to attempt to flesh out any theory that there may be an overburdening of an existing easement and to attempt to establish a basis for the requested relief. The motion is accordingly denied at this time. IV. Conclusion
The Court is however currently unaware of any theory of liability or lawful authority which would allow as a remedy the rewriting of the Condominium's Declaration or Bylaws to order the Association to create a new access to that area in order to make the easement unnecessary.
Defendant's Motion to Dismiss is DENIED.
ORDER
PLAINTIFFS ARE PRO SE ROBERT G HARRINGTON BETH E MCDERMOTT HARRINGTON.
ATTORNEY FOR DEFENDANT SEASIDE CONDOMINIUM ASSOCIATION: MATTHEW W HOWELL JOSEF P WINKLER CLARK & HOWELL.
ATTORNEY FOR DEFENDANTS NANCY H TEWKSBURY, AGNES LAROSA, NICHOLAS G XENOS AND SEASIDE CONDOMINIUM ASSOCIATION: MARTICA DOUGLAS CHRISTINE KENNEDY-JENSEN DOUGLAS DENHAM BUCCINA & ERNST.
I. Background
Plaintiffs have brought this action against Defendants in order to challenge the condominium fees assessed against their condominium and the use of an easement across their condominium. Plaintiffs have filed Motions for Sanctions against Attorney Josef Winkler and Attorney Christine Kennedy-Jensen, Motions to Compel, Motions to Waive Alternative Dispute Resolution, a Motion to Compel Registered Agent to Refile Annual Report, and a Motion for Hearing on the Motions. Defendants have moved the court for costs and fees associated with Plaintiffs' Motions for Sanctions and have moved the court to declare Plaintiff Robert Harrington in violation of the rule prohibiting the unauthorized practice of law. The Court raises, sua sponte, the issue of the "assented" to proposed orders submitted by Plaintiffs.
II. Discussion
A. Plaintiffs' Motion for Sanctions against Attorney Josef Winkler
Plaintiffs have moved the court for sanctions against Attorney Josef Winkler on the basis that he filed with the court a cover letter to Attorney Kennedy-Jensen's 26(g)(2) Motion requesting an order to compel discovery*. Attorney Winkler's law firm had already entered an appearance in the small claims case, which had been consolidated with the present matter. Plaintiffs contend that Attorney Winkler's action was fraudulent because he did not personally enter an appearance prior to filing the letter with the court, and that they were damaged because they had to return to Maine to address Attorney Winkler's request.
The court takes all allegations of attorney misconduct very seriously. However, Attorney Winkler's conduct pointed to by Plaintiffs is entirely compliant with the rules. Plaintiffs' sustained finger pointing, insisting that Attorney Winkler acted willingly and knowingly in an attempt to defraud Plaintiffs, is without merit. The court expects parties to disagree on the merits of the case and to strongly advocate for their opinions. Nordberg, Inc. v. Telsmith. Inc., 82 F.3d 394, 398 (Fed. Cir. 1996). The court also expects parties to express these positions civilly, and without personal attack. See Id.
B. Plaintiffs' Motion to Compel
Plaintiffs have moved to compel the requests made by Plaintiffs of Defendants in a letter dated October 27, 2013. Plaintiffs argue that because the requests are for information and documents requestable through the Maine Condominium Act, the Plaintiffs' request is made pursuant to the Act and therefore Defendants have only the 10 days permitted in the Act to provide the information and documentation. 33 M.R.S. § 1603-118 (b)(2) (2012). Defendants argue that Plaintiffs have made a mixed discovery request for documents and interrogatories. Therefore, Defendants argue that they have the 30-days permitted by Rules 33 and 34 of the Maine Rules of Civil Procedure to provide the information and documentation. M.R. Civ. P. 33 & 34.
Plaintiffs have moved the court to compel or raised Defendant's alleged non-compliance with their requests six separate times.
Blacks Law Dictionary defines discovery as: "[c]ompulsory disclosure, at a party's request, of information that relates to the litigation." Black's Law Dictionary (9th ed. 2009). Furthermore, The Condominium Association has the right to withhold information that would otherwise be subject to inspection pursuant to the Condominium Act if it pertains to ongoing litigation. 33 M.R.S. § 1603-118 (c)(3) (2012). Because Plaintiffs have made the requests for information as part of their case, the requests are categorized as discovery, and are exempt from inspection pursuant to the Condominium Act. They are afforded the timeline set out in the Maine Rules of Civil Procedure.
Finally, Rule 26(g) requires parties to confer with one another in good faith prior to involving the court in disputes over discovery. Not only did Plaintiffs fail to civilly discuss their dispute with Defendants' counsel prior to filing their Motion to Compel, Plaintiffs threatened to involve the court in the discovery process in their initial written request for information and documents. This motion is not compliant with the Maine Rules of Civil Procedure. Plaintiffs' motion to compel is denied.
C. Plaintiffs' Motion for Sanctions against Attorney Christine Kennedy-Jensen
Plaintiff has moved for sanctions against Attorney Christine Kennedy-Jensen for failing to respond to Plaintiffs' requests as set forth in the October 27th letter in the time set by Plaintiffs. As Plaintiff did not afford Defendants the time allotted by the Maine Rules of Civil Procedure for discovery requests, Defendants' were not required to respond by the date appointed by Plaintiff. Because Defendants were not required to respond by the date appointed by Plaintiff, Defendants' attorney, Attorney Christine Kennedy-Jensen, has acted in an appropriate manner. Plaintiffs' motion for sanctions is inappropriate.
The court reiterates the seriousness of allegations of attorney misconduct and the expectation that parties will civilly advocate for the merits of their respective positions. The court denies Plaintiffs' motion for sanctions.
D. Plaintiffs' Motion to Waive Alternative Dispute Resolution
Plaintiff moves the court to waive the required Alternative Dispute Resolution. Rule 16B of Maine Rules of Civil Procedure requires all contested civil actions be subject to the alternative dispute resolution process. M.R. Civ. P. 16B. Plaintiffs argue that mediation should be waived because "Defendants choose not to plan to mediate in good faith as is evidenced by the record in the case file and as evidenced by the documentation provided in this Motion to Waive ADR." Defendants oppose the waiver of ADR, arguing that they hope to mediate in good faith. The court takes Defendants at their word, that they plan to mediate in good faith. The court denies Plaintiffs' motion to waive Alternative Dispute Resolution.
E. Plaintiffs Motion to Compel Registered Agent to Refile Annual Report
Plaintiff has moved the court to compel Defendant Seaside Condominium Association's registered agent to refile its annual report alleging that the registered agent registered the association as a nonprofit corporation in good standing when it was not, in fact, in good standing. As explained in Defendant's opposition, a registered agent does not make the determination of whether a nonprofit corporation is in good standing. The Maine Secretary of State makes the determination. The court has no reason to second guess the Maine Secretary of State's acceptance of the Seaside Condominium Association's Annual Report as complete or to doubt the determination made by the Maine Secretary of State that the Association is in good standing. The court denies Plaintiffs Motion to Compel Registered Agent to Refile Annual Report.
F. Unauthorized Practice of Law and Draft Orders
Defendants argue that Plaintiff Robert Harrington, Ph. D., is not an attorney and may not enter an appearance on behalf of his wife, Beth Harrington. "No person may practice law or profess to practice law within the State or before its courts... unless that person has been admitted to the bar of this State". 4 M.R.S. § 807(1) (2012). The unauthorized practice of law is a class E crime. hi at § 807(2). This rule does not apply to an individual representing him or herself. Id. at § 807(3)(b). Ms. Beth Harrington must sign all filings herself, they must not be signed by Robert Harrington on behalf of Beth Harrington. Additionally, Ms. Beth Harrington must represent herself in court.
Plaintiffs have submitted multiple proposed orders with their filings stating that the suggested order is "Assented" to. This terminology means that the parties are in agreement. Plaintiffs do not state in their motions that they have the consent of Defendants in proposing the requested orders. The Defendant's opposition demonstrates that Defendants do not agree to the suggested orders Plaintiffs propose. Plaintiffs' acts of filing these proposed orders with the court without "belief there is good ground to support [them]", are sanctionable.
G. Motion for Hearing
The court denies Plaintiffs' request for oral argument on the motions. Plaintiffs' motions do not have merit and do not warrant oral argument. Plaintiffs will be given "the chance to meet [Defendants' Counsel] and perhaps get to know each other better" in Alternative Dispute Resolution. The court relies upon both parties' good faith efforts in "establish[ing] a working relationship". However, that is not the purpose of oral argument, nor is a hearing appropriate at this time.
H. Defendant's Motion for Costs and Fees
Defendants have moved the court for costs and fees accrued in defending against Plaintiffs motions for sanctions against Attorneys Winkler and Kennedy-Jensen.
The signature of an attorney or party constitutes a representation by the signer that the signer has read the pleading or motion; that to the best of the signer's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.... If a pleading or motion is signed with intent to defeat the purpose of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, upon a represented party, or upon both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading or motion, including a reasonable attorney's fee.
Plaintiffs brought repeated meritless motions that Defendants were forced to defend against. The Law Court has "repeatedly held that pro se parties are subject to the same standards as represented parties." Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994). These motions are of the type Rule 11 was written to protect parties against. In fact, Plaintiff has repeatedly submitted motions containing the same arguments and requests, requiring Defendants to respond more than once to the same motions. The court awards reasonable costs to the Defendants but will suspend execution of the award pending ongoing compliance by the Plaintiffs with court rules, particularly those requiring attempts to work out discovery disputes before requesting court orders.
III. Conclusion
The court DENIES Plaintiffs' Motions for Sanctions, Motions to Compel, Motion for Waiver of Alternative Dispute Resolution, Motion to Compel Registered Agent to Refile Annual Report, and Motion for Hearing. The Defendants may submit a bill of costs and fees with regards to the defense of Plaintiffs Motions for Sanctions so that all may be aware of what is at stake if the sanctions award becomes unsuspended.