Opinion
Civil Action RE-15-246
10-06-2017
APPLETREE COTTAGE LLC, Plaintiff, v. CHRISTOPHER BOND Defendant.
Attorney for: APPLETREE COTTAGE LLC SIGMUND D SCHUTZ - PRETI FLAHERTY BELIVEAU PACHIOS LLP Attorney for: APPLETREE COTTAGE LLC LAURA RIDEOUT - PRETI FLAHERTY BELIVEAU PACHIOS LLP Attorney for: APPLETREE COTTAGE LLC JONATHAN BROGAN - NORMAN HANSON & DETROY LLC Attorney for: THOMAS M EGAN SIGMUND D SCHUTZ - PRETI FLAHERTY BELIVEAU PACHIOS LLP Attorney for: THOMAS M EGAN J WILLIAM DRUARY JR - MARDEN DUBORD BERNIER & STEVENS PA LLP Attorney for: THOMAS M EGAN JONATHAN BROGAN - NORMAN HANSON & DETROY LLC Attorney for: CAPTAIN ELLIOT LLC SIGMUND D SCHUTZ - PRETI FLAHERTY BELIVEAU PACHIOS LLP Attorney for: CAPTAIN ELLIOT LLC JONATHAN BROGAN - NORMAN HANSON & DETROY LLC
Attorney for: APPLETREE COTTAGE LLC SIGMUND D SCHUTZ - PRETI FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: APPLETREE COTTAGE LLC LAURA RIDEOUT - PRETI FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: APPLETREE COTTAGE LLC JONATHAN BROGAN - NORMAN HANSON & DETROY LLC
Attorney for: THOMAS M EGAN SIGMUND D SCHUTZ - PRETI FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: THOMAS M EGAN J WILLIAM DRUARY JR - MARDEN DUBORD BERNIER & STEVENS PA LLP
Attorney for: THOMAS M EGAN JONATHAN BROGAN - NORMAN HANSON & DETROY LLC
Attorney for: CAPTAIN ELLIOT LLC SIGMUND D SCHUTZ - PRETI FLAHERTY BELIVEAU PACHIOS LLP
Attorney for: CAPTAIN ELLIOT LLC JONATHAN BROGAN - NORMAN HANSON & DETROY LLC
ORDER
THOMAS D. WARREN, JUSTICE, SUPERIOR COURT
At the conclusion of the non-jury trial in this case, the court was prepared to award nominal damages to counterclaim-plaintiff Christopher Bond on his claim of common law trespass. Counterclaim-defendant Thomas Egan never disputed that he had entered Bond's property on three occasions to investigate whether Bond was violating or preparing to violate a restrictive covenant. Egan did not damage or disturb Bond's property or enter any structures, but he took photographs on two of the occasions. On the first of those occasions Egan entered without authorization or consent from Bond.
The reason why the court reserved decision on the common law trespass claim was that Bond argued that his own subsequent unauthorized entry on Egan's land - although not the subject of any claim in this action - had been privileged. If Bond's entry had been privileged, there was at least a question whether Egan's entry was similarly privileged.
A person who intentionally enters land in possession of another without authorization commits a trespass regardless of whether he causes any damage. Restatement (Second) Torts § 163; Medeika v. Watts, 2008 ME 163 ¶ 5, 957 A.2d 980. Bond had not posted any no trespassing sign, and he had never informed Egan that he could not enter. However, the court can find no authority for the proposition that authorization to enter a neighbor's property may be presumed.
This necessarily means that if Egan had brought a common law trespass claim against Bond, Egan would likely have recovered nominal damages against Bond for Bond's unauthorized entry on Egan's land. Bond no longer appears to be contesting that issue. In his post-trial brief Bond refers in passing to a privilege for the purpose of serving civil process, but Bond was not authorized to serve civil process, see M.R.Civ.P. 4(c)(2), so he would not have been entitled to claim such a privilege.
There was testimony at trial that on September 3, 2015, after Egan's first entry, Bond sent one or more emails authorizing Egan to go to his property (the actual exchange of emails was not offered or admitted into evidence). Although the court has found that it is more likely than not that Egan did not enter Bond's land on September 3 itself, the court concludes that Bond's emailed permission constituted consent (never revoked) for Egan's subsequent two entries.
Nevertheless, Egan's first entry was unauthorized. The existence of the restrictive covenant did not provide Egan with a privilege to enter Bond's land to investigate a potential violation of the covenant. In contrast with Willow Lake Residential Association v, Juliano, 80 So.2d 226, 248-49 (Ala.App. 2010), the restrictive covenant in this case did not expressly allow entry in order to determine compliance with the covenant.
Accordingly, Bond is entitled to judgment against Egan for $1.00 in nominal damages on the counterclaim for common law trespass.
The court does not understand that Bond is seeking to hold Appletree Cottage LLC jointly and severally liable on the theory that Egan was acting as Appletree's agent. In any event, Bond could only collect $1.00 from either Egan or Appletree if Appletree were found jointly and severally liable, and there is no possibility here that Egan will not be able to pay the nominal damages.
Finally, since Bond prevailed on Appletree's original restrictive covenant claim but Appletree, Captain Elliott LLC, and Egan prevailed on the vast majority of Bond's counterclaims, including the nuisance claim that consumed the better part of two trial days, no costs shall be awarded.
The entry shall be:
1. On Christopher Bond's counterclaim for common law trespass against counterclaim defendant Thomas Egan, judgment is awarded in favor of Bond and against Egan for nominal damages of $1, 00.
2. This constitutes final judgment on all pending claims.
3. No costs shall be awarded.
4. The Cleric is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
This also means that it is likely any unauthorized entry onto a neighbor's land (even though never expressly forbidden by the neighbor) and any unauthorized entry by door-to-door campaigners or Jehovah's Witnesses would constitute common law trespass. Since only nominal damages would be available in such circumstances, this has not opened the floodgates of litigation.