Opinion
CV-21-019
06-01-2021
GORDON WAKELIN, CELESTE CASSETTE, DARREN SETLOW, and JANICE O'ROURKE Plaintiffs, v. JAMES AMBROSE and MIA MARIETTA, Defendants
Plaintiff: Christopher Nyhan, Esq. Defendant: Rosie M. Williams, Esq.
Plaintiff: Christopher Nyhan, Esq.
Defendant: Rosie M. Williams, Esq.
ORDER ON PLAINTIFFS' MOTION REQUEST FOR TEMPORARY RESTRAINING ORDER
MaryGay Kennedy, Justice, Maine Superior Court.
Before the court is Plaintiffs' Motion for a Temporary Restraining Order. For the following reasons, Plaintiffs' Motion is denied.
I. Facts
The Plaintiffs and Defendants are neighbors. The Plaintiffs allege that the Defendants allow their dogs to behave in a manner that constitutes a nuisance, trespass, and violates 7 M.R.S. § 3952-A. The Plaintiffs have previously filed a complaint about the Defendants' dogs with the Yarmouth Police Department. The Plaintiffs also allege that Defendant, James Ambrose, in his individual capacity, abused his authority as a law enforcement officer in retaliation for the complaint to the Yarmouth Police Department.
The Plaintiffs have filed an affidavit from Plaintiff Gordon Wakelin in support of this Motion. Wakelin alleges that the Defendants' dogs bark "almost constantly." (Wakelin Aff. ¶ 3.) Wakelin also alleges that Defendants' dogs are aggressive to such an extent that the Plaintiffs' are unable to play with their own animals or enjoy their own respective yards. Wakelin also states that the barking begins every morning at approximately 6:00 a.m. and that delivery drivers refuse to deliver packages past the end of Plaintiffs' respective driveways. Although Wakelin alleges that Animal Control has been notified about these issues, no evidence of any Animal Control investigation has been provided in support of this Motion.
Defendant, James Ambrose, is a Sherriff's Deputy with the Cumberland County Sherriffs Office. The Wakelin affidavit alleges multiple incidents where Defendant Ambrose has engaged in bullying behavior and intentionally induced his dogs to start barking or howling. Some of these incidents are alleged to have occurred while Defendant Ambrose was in his Cumberland County patrol vehicle. Although the affidavit states that Wakelin has video and photographic evidence of these and other incidents, is has not been provided in support of this Motion.
The Plaintiffs filed this action alleging: common law public and private nuisance (Count I); violation of 7 M.R.S. § 3952-A (Count II); animal trespass (Count III); and abuse of authority (Count IV). The Plaintiffs' Complaint also requests a Temporary Restraining Order and Preliminary Injunction on Counts I and IV.
II. Legal Standard
A court may grant a temporary restraining order if it concludes the following criteria are met: (1) the plaintiff will suffer irreparable injury if the injunction is not granted; (2) such injury outweighs any harm which granting the injunctive relief will inflict on the Defendant; (3) the plaintiff has a likelihood of success on the merits; and, (4) the public interest will not be adversely affected by granting the injunction Bangor Historic Track, Inc. v. Dep't of Agriculture, 2003 ME 140, ¶ 9, 837 A.2d 129. "Failure to demonstrate that any one of these criteria are met requires that injunctive relief be denied." Bangor Historic Track, Inc. v. Dep't of Agric, Food & Rural Res., 2003 ME 140, ¶10 837 A.2d 129 (citation omitted).
III. Discussion
A. Nuisance
The elements of common law private nuisance are: (1) the defendant acted with the intent of interfering with another's right to use and enjoy their own property; (2) interference of the kind intended; (3) the interference was substantial such that it caused a reduction in the value of the land; and (4) the interference was of such a nature, duration, or amount as to constitute unreasonable interreference with the use and enjoyment of the land. See Johnson v. Me, Energy Recovery Co., Ltd. P'ship, 2010 ME 52, ¶ 15, 997 A.2d 741. Conversely, a public nuisance is an unreasonable interference with a right common to the general public and the plaintiff must show that they have suffered some special or peculiar damages other than those sustained by the public generally, See Charlton v. Town of Oxford, 2001 ME 104, ¶ 27, 774 A.2d 366; see also Restatement (Second) of Torts § 821B (1979).
1. Likelihood of Success on the Merits
The Plaintiffs' must show that success on the merits of their nuisance claims is "reasonably likely." See generally Bangor Historic Track Inc., 2003 ME 140, ¶ 9, 837 A.2d 129; Department of Environmental Protection v. Emerson, 563 A.2d 762, 167-68 (Me. 1989). Here, the Plaintiffs' have failed show that they are reasonably likely to succeed on the merits for a public and private nuisance because there is insufficient evidence to establish whether there has been an unreasonable interference with the use and enjoyment of Plaintiffs' property. The only evidence presented to support Plaintiffs' nuisance claims are the allegations contained in the Wakelin affidavit. These allegations, if proven, could constitute an intentional and unreasonable interference with the Plaintiffs' use and enjoyment of their property. However, no evidence has been presented to corroborate Wakelin's allegations. Although Wakelin claims to have evidence that supports his allegations, such claims are an insufficient substitute for the evidence itself. Without more, the court cannot say that the Plaintiffs' have shown that they are reasonably likely to prove an unreasonable interference with the use and enjoyment of their property. Accordingly/ the Plaintiffs cannot show that they are entitled to a temporary restraining order.
B. Abuse of Authority
The court has dismissed Plaintiffs' abuse of authority claim (Count IV). Accordingly, the Plaintiffs' request for a TRO is moot with regard to Count IV.
Conclusion
The Plaintiffs' Motion for a Temporary Restraining Order is DENEID. Should the Plaintiffs wish to present further evidence in support of their request for a preliminary injunction, the Plaintiffs should either provide that evidence to the court by motion or request an evidentiary hearing.
This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).