Opinion
Civil Action RE-15-246
09-22-2017
APPLETREE COTTAGE LLC, Plaintiff, v. CHRISTOPHER BOND Defendant.
Pro se Def. Christopher Bond, PHF Appletree Collage LLC Sigmund Schutz Esq Preti Flaherty Beliveau Pachios LLP 3rd Party Def Thomas Egan, J William Druary Esq Marden Dubord Bender & Stevens PA LLP 3rd Party Def Thomas Egan, PHF Appletree Collage LLC, 3rd Party Def Caption Elliot LLC Jonathan Brogan Esq Norman Hanson & Detroy LLC
Pro se Def. Christopher Bond, PHF Appletree Collage LLC Sigmund Schutz Esq Preti Flaherty Beliveau Pachios LLP
3rd Party "Def Thomas Egan, J William Druary Esq Marden Dubord Bender & Stevens PA LLP
3rd Party "Def Thomas Egan, PHF Appletree Collage LLC, 3rd Party "Def Caption Elliot LLC Jonathan Brogan Esq Norman Hanson & Detroy LLC
ORDER
On September 20-21, 2017 a bench trial was held on defendant Christopher Bond's counterclaims for common law trespass and nuisance against Appletree Cottage LLC, Captain Elliot LLC, and Thomas Egan (collectively, the Appletree parties).
1. At the conclusion of the evidence and after closing argument, the court ruled from the bench for reasons stated on the record that the Appletree parties were entitled to judgment on Bond's counterclaim for nuisance. Bond has not proven the necessary elements of his nuisance claim by a preponderance of the evidence. See Charlton v. Town of Oxford, 2001 ME 104 ¶ 36, 774 A.2d 366. Specifically, Bond did not prove that the Appletree parties substantially interfered with the use or enjoyment of his land. Bond also did not prove by a preponderance of the evidence that the Appletree parties intended to interfere with the use or enjoyment of his land -except by seeking compliance with the restrictive covenant and by enforcing the Cape Elizabeth Zoning Ordinance. Bond does not have the right to use his land in violation of the restrictive covenant or the Zoning Ordinance, and the Appletree parties were entitled to contest that issue. Finally, Bond did not prove by a preponderance of the evidence that the alleged interference reduced the value of his land. Charlton, 2001 ME 104 ¶ 38.
The court does not adopt the theory that any time an abutter seeks to enforce a restrictive covenant or files a zoning appeal, even if those efforts are ultimately unsuccessful, the abutter has necessarily engaged in nuisance by intending to interfere with use and enjoyment of land.
2. Embedded in Bond's claim for nuisance is a claim for wrongful use of civil proceedings, incorrectly referred to in his amended counterclaim as abuse of process. Under Maine law the tort of wrongful use of civil proceedings (the civil analog of malicious prosecution) requires proof that the defendant initiated or continued a lawsuit (1) without probable cause, (2) with a motive other than that of securing proper adjudication of the claim, and (3) the proceedings have terminated in favor of the plaintiff. Pepper ell Trust Co. v. Mountain Heir Financial Corp., 1998 ME 46 ¶ 17, 708 A.2d 651.
3. With respect to the Rule 80B proceeding brought by Appletree Cottage LLC, Bond did not prove by a preponderance of the evidence that the appeal was brought or continued without probable cause. The court finds that Appletree's motive was to secure a proper adjudication of its claim. In addition, the Rule 80B proceeding has not terminated in Bond's favor. See Appletree Cottage LLC v. Town of Cape Elizabeth, 2017 ME 177.
4. Appletree's declaratory judgment claim in the case at bar has terminated in Bond's favor, but Bond did not prove by a preponderance of the evidence that the claim was brought or continued without probable cause, and the court finds that Appletree's motive in bringing the declaratory judgment action was to secure a proper adjudication of its claim.
5. Under Maine law, abuse of process cannot be brought based on the filing of an action but instead covers the improper use of legal procedures (such as discovery or subpoenas) for an ulterior motive "after a suit has been filed." Pepperell Trust, 1998 ME 46 ¶ 16 n.8. Accord, Potter Prescott Jamieson & Nelson P.A. v. Campbell, 1998 ME 70 ¶ 7, 708 A.2d 283. In both the Potter Prescott and Pepperell Trust decisions the Law Court cited the First Circuit's decision in Simon v. Navon, 71 F.3d 9 (1st Cir. 1995). However, to the extent that Simon v. Navon suggests that an abuse of process claim may be based on an express threat to file a baseless lawsuit solely for the purpose of compelling the threatened party to perform an unrelated action, the Law Court has not adopted that aspect of the decision. In any event, the court finds that Bond did not prove that the lawsuits filed by Appletree were baseless, that any express threat was made, that Appletree's lawsuits were in furtherance of any implied threat, or that the lawsuits were filed for any ulterior motive or purpose.
Bond separately argued that a subpoena to his contractor constituted an abuse of process. That subpoena was narrowed after a 26(g) conference, and Bond did not prove that the subpoena was issued for any ulterior motive or purpose.
6. The court reserves decision on the merits of Bond's trespass claim against the Appletree parties pending further briefing. However, the court finds that the alleged trespass did not result in any harm or monetary damage and that Bond did not prove by clear and convincing evidence that the Appletree parties acted with malice or that their conduct was in any way so reprehensible that malice may be implied.
The only acts constituting alleged trespass were those of Thomas Egan, but it can be perhaps be argued that in performing those acts, Egan was acting as an agent for Appletree Cottage LLC and/or Captain Elliott LLC.
The entry shall be:
1. For the reasons stated on the record and in this order, judgment is entered for Appletree Cottage LLC, Captain Elliott LLC, and Thomas Egan and against Christopher Bond on Bond's counterclaim for nuisance. Bond's nuisance claim incorporates claims for wrongful use of civil proceedings and abuse of process, and judgment is also entered for Appletree LLC, Captain Elliott LLC, and Thomas Egan on those claims.
2. The court reserves decision on Bond's common law trespass claim against Appletree LLC, Captain Elliott LLC, and Thomas Egan pending post-trial briefing. For the reasons stated on the record and in this order, the court finds that the alleged trespass did not result in any harm or monetary damage and that Bond has not proven any entitlement to punitive damages.