Opinion
CV-18-128
01-14-2021
CITY OF LEWISTON, Plaintiff, v. WILLIAM VERRINDER, Defendant
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
VALERIE STANFILL JUSTICE
Before this Court are both the Plaintiff and Defendant's Motions for Summary Judgment. For the forgoing reasons, Plaintiff's Motion is granted in part and Defendant's Motion is denied.
I. Factual Background
The following facts are undisputed based on the statements of material fact unless otherwise noted. Defendant William Verrinder owns real estate located at 65 Jill St., Lewiston Maine. On November 8, 2017, the Lewiston Code Enforcement Officer ("CEO") inspected Defendant's property and observed what he described as damage to the front step and "trash and construction debris strewn about the lawn[.]" (PSMF ¶ 5; Richard Aff. ¶7.) Defendant alleges that there was no damage to the front step and that he "used household items, sheetrock, and tires to express political speech in the form of political art on his private property." Defendant's Opposing Statement of Material Fact [DOSMF] ¶ 5. The CEO issued a Notice of Violation ("Notice") to Defendant for violations of the Lewistou Code of Ordinances.
The Notice alleged two violations of the Lewiston Property Maintenance Code, stating: "Lu]pon inspection, the property was found to be in violation of Chapter 18, Article III, Property Maintenance Code, Sections 18-51 and 18-52 as per the Code of Ordinances of the City of Lewiston." The Notice also cited specific provisions of the International Property Maintenance Code that outlined the particular conditions Defendant's property must maintain in order to comply with the Code. The Notice also informed Defendant he had the ability to appeal the Notice, stating:
A copy of the signed Notice is Exhibit 5 to Plaintiff's motion.
You may appeal this order and request a hearing before the Lewiston Board of Appeals by filing a written petition at the office of the Director of Planning/Code Enforcement within (10) days of receipt of this notice. This petition shall be submitted on a form provided by this office along with the one hundred and fifty dollars ($150, 00) appeal fee. Should you fail to appeal you will be barred from any opportunity to contest or challenge the content or terms of this Notice and Order in any further legal proceedings.
The Notice was sent to Defendant by both certified mail, return receipt requested, and regular mail, postage prepaid. The return receipt was not returned and the U.S. Postal Service did not return as undeliverable the Notice sent by regular mail. Defendant made no attempt to appeal the Notice.
Defendant did not remedy the violations alleged in the Notice and the City filed this Land Use Citation and Complaint in Lewiston District Court on December 11, 2017 as a result. After Defendant unsuccessfully removed the matter to the U.S. District Court, Defendant removed the case to the Superior Court for jury trial and these motions followed.
II. Summary Judgment Standard
When there are cross-motions for summary judgment, the rules for consideration of summary judgment are applied separately to each motion. F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646. The record on each summary judgment issue must be considered most favorably to the party objecting to the grant of summary judgment on that issue. Blue Star Corp. v. CKF Properties LLC, 2009 ME 101, ¶ 23, 980 A.2d 1270. A party is entitled to summary judgment when review of the parties' statements of material facts and the record to which the statements refer, demonstrates that there is no genuine issue as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Dyer v. Dep't of Tramp., 2008 ME 106, 5 14, 951 A.2d 821; M.R. Civ. P. 56(c). A contested fact is "material" if it could potentially affect the outcome of the case. Id. A "genuine issue" of material fact exists if the claimed fact would require a factfinder to "choose between competing versions of the truth," Id. (quotations omitted).
Once a properly supported motion is filed, the party opposing summary judgment must show that a factual dispute exists sufficient to establish a prima facie case for each element of the defense raised in order to avoid summary judgment. Watt v. Unifirst Corp., 2009 ME 47, ¶ 21, 969 A, 2d 897. A party who moves for summary judgment is entitled to judgment only if the party opposed to the motion, in response, fails to establish a prima facie case for each element of the defense raised. Lougee Conservancy v. Citi Mortgage, Inc., 2012 ME 103, ¶12, 48 A.3d 774.
III. Discussion
A. Plaintiffs Motion for Summary Judgment
The City argues that it is entitled to judgment as a matter of law because the Defendant's liability on this Land Use Citation and Complaint has been determined by operation of administrative res judicata. The City further argues that because the Defendant's liability is not in dispute, this Court should award attorney's fees, costs, and civil penalties to it. Defendant disagreed, and filed his own summary judgment motion.
"Res judicata is a common law doctrine aimed at preventing the relitigation of claims that were tried or could have been tried between the same parties ... in an earlier suit on the same cause of action." Town of Ogunquit v. Cliff House & Motels, Inc., 2000 ME 169, ¶ 10, 759 A.2d 731.) (internal quotations and citations omitted). Res judicata applies to an administrative tribunal's determinations if the administrative proceeding "entailed the essential elements of adjudication." North Berwick v. Jones, 534 A.2d 667, 670 (1987). The Law Court has held that a CEO's Notice of Violation alone may trigger administrative res judicata "if a party does not challenge [the Notice] through an available [administrative] appeal that contains the essential elements of adjudication!;.]" Town of Boothbay v. Jenness, 2003 ME 50, 5J 21, 822 A.2d 1169. To trigger administrative res judicata, a CEO's Notice must: (1) refer to the provisions of the ordinance allegedly violated; (2) inform the violator of both the right to dispute the order and how that right is exercised; and (3) specify the consequences of the failure to appeal. Freeport v. Greenlaw, 602 A.2d 1156, 1161 (Me. 1992).
Here, the CEO's Notice is sufficient to trigger administrative res judicata. First, the Notice refers to the specific ordinances Defendant is alleged to have violated and included specific excerpts from the provisions of the International Property Maintenance Code at issue. Second, the Notice specifically informed Defendant that he could "appeal Lthe] order and request a hearing before the Lewiston Board of Appeals" and gave Defendant specific instructions on how he was to initiate the appellate process, including the timing, cost, and paperwork required. Third, the Notice specifically informed Defendant that u[s]hould you fail to appeal you will be barred from any opportunity to contest or challenge the content or terms of this Notice and Order in any future legal proceedings," Therefore, the CEO's Notice is sufficient to trigger administrative res judicata.
Defendant does not dispute the contents of the CEO's Notice, nor does he allege that he made any attempt to appeal the Notice to the Lewiston Board of Appeals. However, Defendant argues res judicata does not apply for six reasons: (1) the Notice failed to state that he has the right to dispute the order; (2) the Due Process Clause of the Fourteenth Amendment and Article I Section 19 of the Rights of the Constitution of the State of Maine are violated by the $150.00 fee required to appeal the Notice; (3) the Notice was not properly served on Defendant; (4) Berry v. Mainestream Finance prohibits res judicata because the $150.00 denied Defendant a fair opportunity to litigate the Notice; (5) res judicata is inapplicable because the Lewiston Zoning Board of Appeals lacks jurisdiction to hear constitutional challenges; and (6) the City failed to give the Defendant the proper amount of time to appeal the Notice.
Defendant first argues that the Notice is insufficient to trigger res judicata because the Notice must specifically state that he has a "right to dispute the order" before administrative res judicata can be triggered, citing Freeport, 602 A.2d 1156, 1161, and that it fails to do so. Defendant's argument is misplaced. Although the Law Court has since stated generally that a CEO's notice must "inform the violator of "the right to dispute the order", see Town of Boothbay v. Jenness, 2003 ME 50, J 22, 882 A.2d 1169, there is no authority to suggest that the Notice itself must use specific language describing the appeals process as a "right." The Notice properly informed Defendant he had the opportunity to appeal the Notice which is all that is required.
Defendant next argues that res judicata does not apply because the City's appeal process and $150.00 administrative fee violate the Maine and United States Constitutions. However, Defendant made no attempt to appeal the CEO's Notice, and thus this court is without any facts as to whether the $150.00 fee affected Defendant's ability to appeal the Notice, whether it was waivable or would have been waived. As such, Defendant's constitutional arguments are not ripe for this court to review.
Defendant also argues that res judicata does not apply because the Notice was not served properly. The Defendant cites irrelevant portions of the Lewiston Zoning and Land Use Code to support of this argument. The Notice alleges violations of Lewiston's Property Maintenance Code, which allows for service in the following manner:
A notice of violation or order may be . . . mailed by certified mail, return receipt requested, to the last known address. If the return receipt is not returned, the notice shall be conclusively presumed to have been served if it is also sent by regular mail, postage prepaid, which is not returned as undeliverable by the postal service.Lewiston Code § 18-29(c). The Notice was sent by certified mail, return receipt requested, and via regular mail, postage prepaid. The return receipt was not returned, and the Notice sent via regular mail was not returned as undeliverable. Thus, the Notice is conclusively presumed to have been served properly.
The Defendant next argues that the City's $150.00 appeal fee prevented him from a fair opportunity to litigate the Notice, thereby contravening Berry v. Mainstream Finance, 2019 ME 27, 51 8, 202 A.3d 1195. However, as stated above, Defendant cannot claim that he was not afforded a fair opportunity to litigate the Notice when he made no attempt to avail himself of the City's adjudicative process. Therefore, Berry v. Mainstream Finance does not render res judicata inapplicable here.
Defendant next argues that the City's Zoning Board lacks jurisdiction to hear Defendant's above-mentioned constitutional challenges. Defendant's argument misconstrues the res judicata doctrine. Res judicata applies here because the Defendant failed to make any attempt to appeal the CEO's Notice in the first place. The Zoning Board's jurisdiction to hear constitutional challenges is irrelevant not only because those challenges are not ripe for review, but also because Defendant could have sought review of the Board's decision in front of an adjudicative body with jurisdiction over Defendant's constitutional claims. See 30-A M.R.S. § 2691(3)(G); M.R. Civ. P. 80B. As such, the Zoning Board's jurisdiction does not render res judicata inapplicable here.
Finally, Defendant argues that res judicata does not apply because the City did not allow the full ten days to appeal the Notice in violation of Defendant's due process rights. Although the City's Motion incorrectly cites November 20, 2017 as the deadline to appeal the CEO's Notice, that was not stated in the Notice itself. Rather, the Notice correctly informed Defendant he had 10 days from receipt of the notice to appeal, which he failed to do.
In short, Defendant has failed to show that there is a disputed issue of material fact on any of the defenses raised.
B. Defendant's Motion for Summary Judgment
Defendant has also moved for summary judgment in his favor, and so the court addresses whether Defendant shown that there is no genuine issue of material fact and he is entitled to judgment irrespective of administrative res judicata.
Defendant argues that the $150 appeal fee violates both the due process and equal protection clauses of the both the Maine and United States Constitutions. As stated above, issues regarding the City's appeal fee are not ripe for review by this court because Defendant did not attempt to appeal the CEO's Notice. The court simply cannot find that he was denied due process or discriminated against on account of indigency, for all the court knows, the fee would have been waived had he asked or tried to file an appeal. Defendant is not entitled to summary judgment with regard to his due process or equal protection arguments.
Defendant next argues that the City "cannot overcome [the] legal burdens placed on it" by the United States Supreme Court in Citizens United v. FEC, 558 U.S. 310 (2010), a First Amendment case regarding limits on corporate political speech. In any First Amendment case, a court must first identify the category of speech at issue and determine what level of scrutiny to apply to the alleged infringement. See e.g. Janus v. AFSCME, 585 U.S. (2018); Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 441 U.S. 557 (1980); Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972). Here, Defendant argues the City is imposing a fine for debris on his lawn that was used to construct political "art" and thus strict scrutiny applies. Strict scrutiny requires the government to show that a law is narrowly tailored to achieve a compelling government interest. Texas v. Johnson, 491 U.S. 397 (1989).
Defendant, however, has failed to raise a genuine issue of material fact on his First Amendment claim. The only evidence put forth by Defendant is his own affidavit wherein he claims that the yard debris is political speech. (DSMF ¶ 4; Verrinder Aff. ¶ 2.) Defendant has not included any record citation or other evidence showing the conditions of his yard at the time the Notice or Land Use Citation was issued, nor has he included any evidence suggesting how the debris in his yard was deliberately, as opposed to haphazardly, situated. His bare assertion is insufficient to establish a prima facie case under the First Amendment and he is not entitled to summary judgment on such grounds.
Defendant next argues that this court lacks jurisdiction because: (1) the City failed to serve the Notice pursuant to the Lewiston Zoning and Land Use Code; (2) an unsigned Notice was filed along with this Land Use Citation; and (3) CEO Richard lacks certification to sign this Land Use Citation.
As previously stated, Defendant was properly served with the Notice pursuant to the applicable City Code. As for the unsigned Notice attached as an exhibit to the Complaint, the official or signed Notice of Violation issued by a CEO is not required to be attached to the Land Use Citation and Complaint. See 30-A M.R.S. § 4452; M. R. Civ. P. 80K. Moreover, the Complaint was properly signed by counsel pursuant to M. R. Civ. P. 11(a).
The final part of Defendant's argument regarding this court's jurisdiction is that CEO Richard, who issued the Notice and signed as "complainant" on the Land Use Citation and Complaint, is not an attorney and not otherwise authorized to file it. 30-A M.R.S. § 4452(1) ; M.R. Civ. P. 80K(h). Defendant's argument misconstrues the law and facts. The complaint was signed by the City's attorney, and the City is being represented in the case by an attorney, not by the CEO.
"A municipal official, such as a code enforcement officer, . . . who is designated by ordinance or law with the responsibility to enforce a particular law or ordinance . ., may . . . represent the municipality in District Court in the prosecution of alleged violations of ordinances or laws[.]" 30-A M.R.S. § 4452(1)(C).
Nothing alleged by Defendant deprived this court of jurisdiction, and Defendant is not entitled to summary judgment on those grounds.
Defendant next argues that his due process rights were violated because the Land Use Citation and Complaint failed to comply with the requirements of Rule 80K of the Maine Rules of Civil Procedure, Rule 80K requires that if a Land Use Citation alleges a municipal ordinance violation, "a statement describing the place where the complete text may be obtained[] shall be attached to the original Land Use Citation[.j" M. R. Civ. P. 80K(c)(1). Here, the City attached to the Complaint a certification from Kelly Brooks, the Deputy City Clerk, properly attesting to the copies of the City Ordinances attached to the complaint. She specifically stated that she is the custodian of the City Ordinances, and her address and location are listed on the certification. Assuming Rule 80K requires the Land Use Citation to be accompanied by a description of the physical location of the ordinances at issue, the Brooks certification attached to the original Land Use Citation complies and does just that. Defendant is not entitled to summary judgment on that basis.
Finally, Defendant argues his procedural due process rights were violated because the City did not allow him the full ten days to appeal the original Notice. This argument is without merit. The Defendant failed to make any attempt to appeal the Notice; his appeal was not disallowed as untimely or in any way, For alt of the reasons set forth in this section, Defendant has uot shown he is entitled to summary judgment in his favor, and his Motion is denied.
IV. Conclusion
There is no genuine issue of materia! fact regarding the Defendant's liability on this Land Use Citation and Complaint by operation of administrative res judicata, and Defendant has failed to allege facts sufficient to establish any defense lo the City's claim. Therefore, the City is entitled to judgment in its favor on this Land Use Citation and Complaint as a matter of law. The City asks this court to (1) impose a civil penalty on Defendant for Ids violations in the amount of $39,000 and (2) award the City its attorney's fees and costs of $19,404, plus pre- and post-judgment interest. The Court shall set this matter for hearing, limited to the remedies sought, on the next available date.
The entry is: Defendant's Motion for Summary Judgment is DENIED. Plaintiff's Motion for Summary Judgment is GRANTED IN PART. Summary Judgment is entered in Plaintiff's favor on the Complaint. The clerk shall set a hearing on the penalty, costs, fees and/or other remedy to be imposed. This order may be incorporated on the docket of the case by reference pursuant to Me. R. Civ. P. 79(a).