Opinion
Civil Action SOPSC-RE-23-007
10-20-2023
SHERYL CARRIER, Plaintiff v. ALBERT LABONTE and MORGAN LABONTE, Defendants
Sheryl Carrier, by and through her Attorneys, HASTINGS LAW OFFICE, P.A. Jonathan G. Burk, Esq.
Sheryl Carrier, by and through her Attorneys, HASTINGS LAW OFFICE, P.A.
Jonathan G. Burk, Esq.
ORDER ON PLAINTIFF'S MOTON TO DISMISS DEFENDANT MORGAN LABONTE'S COUNTERCLAIM
JENNIFER A .ARCHER, JUSTICE
Before the Court is Plaintiff Sheryl Carrier's Motion to Dismiss Defendant Morgan LaBonte's Counterclaim. For the following reasons, the motion is granted.
BACKGROUND
On April 3, 2023, Plaintiff Sheryl Carrier filed an 8-count complaint against Defendant Albert LaBonte and his son Morgan LaBonte alleging common law and statutory trespass (Counts I, II, and III), common law nuisance, statutory nuisance, and nuisance per se (Counts IV, V, and VI), and seeking preliminary and permanent injunctions (Count VII and VIII). Defendant Albert LaBonte filed an Answer and Affirmative Defenses on August 21, 2023. Defendant Morgan LaBonte also filed an Answer and Affirmative Defenses on August 21, 2023.
Morgan LaBonte's pleading alleges a number of facts and could be construed to assert a cause of action for trespass against Carrier. According to the counterclaim, Carrier owns real property located at 12 Smith Street in Fryeburg, Maine, which abuts property owned by A. LaBonte located at 10 Smith Street in Fryeburg, Maine. Counterclaim ¶¶ VII-VIII, X, XII, XVII. There is an oil tank on the boundary between A. LaBonte's and Carrier's property. In May of 2019, Carrier installed a fence between her property and A. LaBonte's oil tank, and also placed no trespassing signs on the oil tank, A. LaBonte's property, and the surrounding area. Id. ¶¶ XI-XII. Carrier directed Dodge Energy to trespass on A. LaBonte's property to inspect the oil tank in March of 2023. Id. ¶ XVII.
Carrier moves to dismiss M. LaBonte's counterclaim for trespass for lack of standing pursuant to M.R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief may be granted pursuant to M.R. Civ. P. 12(b)(6). M. LaBonte did not file an opposition to Carrier's motion.
DISCUSSION
Carrier first seeks dismissal of M. LaBonte's counterclaim pursuant to Maine Rule of Civil Procedure 12(b)(1) for lack of standing. Standing relates to subject matter jurisdiction. JPMorgan Chase Bank v. Harp, 2011 ME 5, ¶ 7,10 A.3d 718. It "means that the party, at the commencement of the litigation, has sufficient personal stake in the controversy to obtain judicial resolution of that controversy. Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996). "Verifying that a party has standing ensures that there is 'concrete adverseness that facilitates diligent development of the legal issues presented.'" JP Morgan Chase Bank, 2011 ME 5, ¶ 8, 10 A.3d 718 (quoting Halfway House, Inc., 670 A.2d at 1380).
There is no allegation that M. LaBonte has any interest in the subject property or any "personal stake" in the controversy between A. Labonte and Dodge Oil. Accordingly, the counterclaim must be dismissed for lack of standing.
Carrier also seeks dismissal pursuant to Maine Rule of Civil Procedure 12(b)(6). A motion to dismiss pursuant for failure to state a claim "tests the legal sufficiency of the complaint, the material allegations of which must be taken as admitted." Packgen, Inc. v. Bernstein, Shur, Sawyer & Nelson, P.A., 2019 ME 90, ¶ 16, 209 A.3d 116 (citations and quotation marks omitted). When deciding a motion to dismiss pursuant to Rule 12(b)(6), this Court reviews the complaint "in the j light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Id. (quoting In re Wage Payment Litig, 2000 ME 162, ¶ 3, 759 A.2d 217). "A dismissal is only proper when it appears beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that [it] might prove in support of [its] claim." Id. (alterations in original) (quoting Moody v, State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 7, 843 A.2d 43).
Carrier argues that the counterclaim fails to state a claim because it does not allege that M. LaBonte was in possession of any land upon which Dodge Oil might have trespassed. A person is liable for common law trespass "if he intentionally enters land in the possession of the other, or causes a thing OT a third person to do so." Medeika v. Watts, 2008 ME 163, ¶ 5, 957 A.2d 980 (quoting Restatement (Second) of Torts § 158 (1965)). To establish that a party is liable for trespass, the plaintiff must prove both intent and unprivileged interference with his right to possession of his property. See id; Restatement (Second) of Torts § 10 (defining privilege) and 158 (intentional intrusions) (Am. L. Inst. 1965).
There is no allegation that M. LaBonte was in possession of any land upon which Carrier or Dodge Oil trespassed. As possession is an essential element of the tort of trespass, see Medeika, 2008 ME 163, ¶ 5, 957 A.2d 980, the counterclaim must be dismissed for failure to state of claim.
The entry is:
Plaintiff s Motion to Dismiss Counterclaim of Defendant Morgan LaBonte is GRANTED.
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Order on Plaintiff's Motion to Dismiss Counterclaim of Defendant Morgan LaBonte on the civil docket by a notation incorporating it by reference.
NOTICE OF ADR PROCESS SELECTION
NOW COMES the Plaintiff, Sheryl Carrier, by and through her attorneys, Hastings Law Office, P.A., and offers this Notice of ADR Process Selection in compliance with M.R. Civ. P. 16B(d)(3) and the Court's Standard Scheduling Order dated August 23, 2023:
1. The parties have mutually agreed to participate in mediation under Mediator Stefan J. Jackson at Hastings Law Office, P.A., located at 376 Main Street, F1yeburg, ME 04037, on November 6, 2023 at 10:00 AM.