Opinion
CV 21-21
04-12-2021
GREGORY LATOUF v. RICHARD BARNARD
EX PARTE TEMPORARY RESTRAINING ORDER
Thomas R. McKeon, Justice
Before the Court is Plaintiffs Motion for an ex parte Temporary Restraining Order, For the following reasons, Plaintiffs Motion is granted in part and denied in part.
Facts
The Plaintiff, W. Gregory Latouf, owns approximately forty acres of wooded property in Alfred, Maine. Plaintiff and his family currently utilize the property for recreation. However, the Plaintiff plans to eventually establish a permanent residence on the parcel The Plaintiff has submitted surveys, deeds, and other evidence that tends to show that die eastern boundary of Plaintiffs property is situated along the Crooked liver, This evidence includes: (1) a recorded "Corrective Deed of Release by Trustee” intended to "correct errors in the legal description" of Plaintiffs original deed and showing the Plaintiff's property "being bounded ... on the east by the thread of the Crooked river[;]" (2) a "Plan of Boundary Survey" reflecting the recorded Corrective Deed; and (3) descriptions, sketches, and deeds prepared for an easement over the Plaintiffs property prepared in 1941. (LaTouf Aft, Exhibits B-B.)
The Defendant, Richard Barnard, acquired property situated to the west of the Plaintiffs, with a common boundary along the Crooked River. Upon acquiring the property, the Defendant represented to the Plaintiff that Defendant owned a portion of the property west of the Crooked River. The Defendant proceeded to utilize the property west of the Crooked River for Defendant's own use, including clearing trees and vegetation, and leaving personal property within the disputed boundary. In response, Plaintiffs counsel sent a letter to Defendant in February 2021, exerting Plaintiff's ownership of the disputed property and warned of pending litigation, Plaintiff alleges that the Defendant has increased his development of the land since receipt of the letter, including increased placing of personal items and further tree clearing. The Plaintiff also reports that the game cameras placed by him on the disputed property are no longer reporting images.
Plaintiff has since filed this suit and presently requests that the court enter a temporary restraining order, ex parte, to: (1) restrain the Defendant, or anyone acting on his behalf, from entering the land situated west of the Crooked River; (2} restrain the Defendant, or anyone acting on his behalf, from removing trees or otherwise affecting the land situated west of the Crooked River; and (3) order the Defendant to remove all items and materials Defendant has brought onto the disputed property.
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. Deft of Agriculture, 2003 ME 140, f 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, 1110 837 A.2d 129 (citation omitted).
Discussion
A. Irreparable Injury
An irreparable injury is one for which there is no adequate remedy at law. See Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980). "[A]n appropriation of the land of another, constituting a permanent injury to and depreciation of the property, is an irreparable injury owing to the uncertainty of the measure of damages." Charles C. Wilson & Son v. Harrisburg, 77 A. 787, 791 (1910).
Here, the Plaintiff's request for a TRO contemplates an irreparable injury to land that has long been recognized as proper grounds for an injunction. The Plaintiff alleges fee ownership over the disputed property, which, if ultimately proven, would render the Defendant's occupation of that land a continuing trespass. "The inconvenience and annoyance from repeated trespasses . . . which interfere[s] with the free use and enjoyment of real property, justify the interference of a court of equity to prevent their continual repetition[.] Wilson & Son, 77 A. at 792 (citation and quotations omitted). Accordingly, the court finds that the continuing trespass alleged constitutes an irreparable injury for which there is no adequate remedy at law.
B. Balance of Injury
Based on the record presented, the court finds that the threatened irreparable injury to the Plaintiff outweighs any harm that will befall the Defendant if this TRO is granted. Indeed, the purpose of this TRO is to maintain the status quo during the pendency of this litigation. If the Defendant prevails in the underlying lawsuit, he will be permitted to continue developing the land as he sees fit Conversely however, the harm to the Plaintiffs free use and enjoyment of property cannot be properly remedied in the absence of court intervention. Again, the interest in protecting the free use of property dictates that the balance of harm weigh in favour maintaining the status quo. Accordingly, the threatened injury to the Plaintiff outweighs any harm that will befall the Defendant if he is prevented from entering or developing the disputed land.
The ability to seek a modification or dissolution of this TRO if the Defendant can properly contradict the boundary claim further reduces the burden on the Defendant. See M.R. Civ. P. 65(a). The Defendant also remains able to present evidence to the court showing that the harm resulting from this TRO outweighs the harms prevented by maintaining a status quo.
C. Likelihood of Success on the Merits
The success on the merits critera requires a showing that success is reasonably likely. See e.g. 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 Plaintiff has shown through recorded deeds and surveys that he, at a minimum, has a reasonable likelihood of establishing ownership over the disputed property. The court is also particularly persuaded by the fact that this TRO seeks only to maintain the status quo. See Emerson, 563 A.2d at 768. Accordingly, the court finds that the Plaintiff has shown, at this stage, that he is reasonably likely to succeed on the merits of his claim, particularly in light of the present status quo.
D. Public Interest
The court finds that the public interest will not be adversely affected by granting this TRO. This action involves private parties and their conduct with respect to private land. There is nothing to suggest that this TRO will have any external public impact. Accordingly, the public interest will not be harmed by granting this TRO.
E. Ex Parte
In addition to the TRO criteria outline above, a TRO requested ex parte must also establish that the irreparable injury will be immediate and that notice to the Defendant should otherwise not be required. See M.R. Civ. P. 65(a).
Here, the ex parte request is based on a corroborated concern mat the Defendant will further damage or act to claim ownership of the subject property if given notice of pending court action. The Plaintiff has presented evidence that the Defendant was notified of this pending litigation via Plaintiffs legal counsel. The Plaintiff has also presented evidence that the Defendant escalated his irreparable development of the disputed property in the weeks following receipt of the letter. This TRO seeks only to maintain the status quo during the pendency of this litigation. Accordingly, the court finds that there is sufficient evidence to show that the irreparable injury suffered by the Plaintiff will be immediate if the TRO is not granted ex parte. Moreover, the Defendant was notified that further development of the land would result in litigation and thus notice to the Defendant is not required under the circumstances; particularly because the TRO only serves to prevent further development or injury.
Conclusion
The Plaintiffs' Motion for a Temporary Restraining Order is GRANTED in part and DENIED in part. This TRO is granted for the limited purpose of maintaining the status quo of the parcel, and preventing further irreparable alterations to its natural composition. However, ordering the Defendant to remove specific personal property does not serve to maintain the status quo. Accordingly, the court orders as follows:
1. The Defendant, or anyone acting on behalf of the Defendant, is prohibited from entering onto any property situated west of the Crooked River.
2. The Defendant shall have fourteen (14) days from the entry of this order in which he will be permitted enter onto the land west of the Crooked River for the limited
purpose of removing personal property belonging to the Defendant Such personal property is limited only to property left on the land by the Defendant. However, the Defendant is under no obligation to remove property from the land by virtue of this Order,
3. The Defendant or anyone acting on behalf of the Defendant, is prohibited from removing, altering, or otherwise disturbing the current status of the land situated west of the Crooked River, including trees, vegetation, or any other natural feature.
4. The Defendant or anyone acting on behalf of the Defendant is prohibited from placing any additional items on the land west of the Crooked River.
5. The Defendant, or anyone acting on behalf of the Defendant, is prohibited from removing any items belonging to the Plaintiff which are found on the property west of the Crooked River, including game cameras,
6. The Plaintiff, or anyone acting on behalf of the Plaintiff, is prohibited from placing any personal property on the land west of the Crooked river,
Unless otherwise modified by this court, this Order shall remain in effect throughout the pendency of this litigation.
To the extent Plaintiff seeks any additional relief, the Motion is DENIED, Additionally, the Plaintiff's request that the Defendant be ordered to remove the property located in the disputed area is also DENIED.
This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).