Opinion
Civil Action CV-21-50
11-16-2023
MANON COTE, et al., Plaintiffs, v. GARY'S OLDE TOWNE TAVERN, INC, et al., Defendants.
Plaintiffs-Gene Libby, Esq. Defendants-Bradford Pattershall, Esq.
Plaintiffs-Gene Libby, Esq.
Defendants-Bradford Pattershall, Esq.
DECISION AND ORDER
DEBORAH P. CASHMAN, JUSTICE
Plaintiffs have initiated a fourth contempt proceeding by motion pursuant to M.R. Civ. P. 66(d), alleging that Defendants have failed to comply with Justice Warren's order dated August 11, 2022 by not "placing] an additional rock at the easterly end of the barrier of rocks to be in line with the door of the dumpster." [Plaintiffs' Verified Fourth Motion for Contempt and Motion to Enforce Contempt and Attorney Fee Orders, p. 3, ¶ 8.] Additionally, Plaintiffs allege that rather than adding the necessary rock, Defendants moved the rocks further away from the parking lot, thus making the barrier "in further violation of the arbitration award and court orders." [Id. at ¶ 10.]
Plaintiffs' first allegation in the motion involved alleged nonpayment of previously ordered attorney's fees and costs. The parties stipulated at the beginning of the hearing that the outstanding payments were made in full in February of 2023, and therefore that allegation was moot and withdrawn.
PROCEDURAL HISTORY
The court has issued three prior orders regarding alleged contempt by Defendants in this this case. The first order, issued on May 18, 2021, found that Plaintiffs' motion for contempt was premature, but by separate order of the same date, ordered Defendant to comply with the provisions of the Arbitration Award dated October 16, 2020, and confirmed by the Superior Court by Order dated March 25, 2021. The second order after a hearing found Defendants in contempt for failing to place the rocks required by the May 18, 2021 court order and the October 16, 2020 arbitration decision. Defendants could purge themselves of this contempt by placing rocks in compliance with the terms outlined in the arbitration decision on or before December 23, 2021. (Order, Warren, J., dated December 9, 2021.)
The third, and relevant order for this action was issued on August 10, 2022. Again, following a hearing on Plaintiffs motion for contempt, the court found Defendants in contempt of the arbitration order as well as the court's December 23, 2021 order.
On December 27, 2022, Plaintiffs filed the present contempt motion. Service of the motion was made on the Defendants on July 27, 2023 and the matter was scheduled for a contempt hearing on August 11, 2023. Over Plaintiffs objection the Court granted Defendants' request to continue as counsel for Defendants had a preplanned vacation on that date. The matter was reset for hearing.
An evidentiary hearing on the motion for contempt was held on September 1, 2023. Plaintiffs were present with their attorney, Gene R. Libby, Esquire, and Defendants were present with their attorney, Bradford A. Pattershall, Esquire. Based on the following, having reviewed the evidence, the written and oral arguments of counsel, and the applicable law, Plaintiffs motion for contempt is DENIED.
FACTS
The arbitration order, confirmed by the court on March 25, 2021, states as follows regarding the rock boundary:
The Parties agree and it is Ordered that the rocks are to be moved by the Skellett Parties at their cost to run parallel along the southern boundary of the Skellett Parties' line with some part of the rock on the line. The most westerly rock must be within 3' of the easterly end of the fence as it shows on the survey. The most
easterly end of the rocks must have rocks of similar size placed along the southerly line to form a barrier that extends to the extension of the gate of the dumpster in a southerly direction. The current rocks are of appropriate size with the continued obligation of the Skellett Parties to maintain them in a manner so that they create a barrier. The Agreements already provide that a disturbed rock must be replaced as soon as practicable, which will apply if the stones are disturbed by snow plowing. The moving and placement of rocks are to be completed within 45 days of this order unless a further extension for good cause is requested.(Decision and Order, (Andrew W. Sparks, Esq., Arbitrator) dated October 16, 2020, page 6, ¶ 2.) After hearing on May 27, 2022, and relevant to the present motion for contempt, the court made the following finding in its August 11, 2022 order:
The defendants' original replacement of rocks in April was haphazard at best. At some point prior to the May 27 hearing the defendants re-established the line of rocks in a manner that more closely complies with the arbitration award...
The arbitration award appears to contemplate that the rock within three feet of plaintiffs' fence is to be the most westerly of the line of rocks. This is shown in the photograph admitted as Defendants' Ex. 10. However, if defendants had promptly placed rocks under the alternative interpretations (as depicted in Defendants' Ex. I and 4), the court would have been prepared to find that there had been sufficient compliance at the westerly end of the line.
The evidence demonstrated, however, that defendants did not place a line of rocks that constituted a good faith attempt to comply with the court's order until shortly before the May 27, 2022 hearing. Moreover, the photograph admitted as Defendant's Ex 4 demonstrates that even as of the date of the May 27 hearing, defendants had not fully complied with the placement of the rocks at the eastern end - although it also shows that the line of railroad ties extends the required distance, demarcates the end of the parking area, and protects the leach field at the eastern end of the parking lot. The court finds that defendants are not - belatedly - in
substantial compliance but that this was true only as of a few days prior to the May 27, 2022, hearing.
Before the first snow, defendants shall place an additional rock at the easterly end of the barrier of rocks to be in line with the door of the dumpster. The railroad ties will not protect the leach field once they are invisible under snow.
A copy of Defendant's Exhibit 10 from the May 27, 2022 hearing was also admitted into the instant hearing as Plaintiffs Exhibit 15.
A copy of Defendant's Exhibit 1 from the May 27, 2022 hearing was also admitted into the instant hearing as Plaintiffs Exhibit 11.
A copy of Defendant's Exhibit 4 from the May 27, 2022 hearing was also admitted into the instant hearing as Plaintiffs Exhibit 10-A. and Plaintiffs Exhibit 12.
Order, (Warren, ARJ.), dated August 10, 2022, 3-4. The court ruled:
Defendants shall maintain the required line of rocks between defendant's [sic] parking lot and the leach field. The line of rocks shall be maintained throughout the year as required by the arbitration award. Without removing the rocks, defendants may take additional measures to demarcate the parking lot in order to avoid any damage to plow equipment. For any day on which, if rocks are removed, they are not promptly replaced, defendants shall now be subject to a fine of $200 per day.
Order, (Warren, ARJ.), dated August 11, 2022, 6, ¶ 2) (emphasis added).
The crux of Plaintiffs' motion is that Defendants have failed to properly place an additional rock or rocks at the easterly end of the line to create a barrier with the extension of the gate to the dumpsters. Defendants asserts that the rocks have been moved to be in compliance with the arbitration order and to create the necessary rock barrier to protect the leach field.
According to the August 11, 2022 order, before the first snow (of the 2022-2023 winter), Defendants were to place an additional rock at the easterly end of the barrier of rocks to be in line with the door of the dumpster. Plaintiffs introduced evidence relating to the first snow in 2021, being on December 9, 2021. (See also Plaintiffs Exhibit 6, p. 4 and 5 which are date stamped 12/09/21 06:49 AM.) This picture evidenced the situation prior to the last order. Similarly, Plaintiffs' Exhibits 7 and 8 also depict the area in question as of December of 2021.
Plaintiffs' reliance on the placement of the rock in December of 2021 is relevant for the purposes of the present hearing, as the rock, as of August 2, 2023 remained in the same location as depicted in Plaintiffs' Exhibits 6, 7 and 8. However, by August of 2023, the rock was partially covered by brush. This same rock is present in Defendants' prior exhibits (1,4 and 10) which the court relied on in its August 11, 2022 order. (See Plaintiffs' Exhibits 10A, 11, 12, and 15.)
Plaintiffs rely on their exhibit IOC to illustrate the placement of the rocks as of December 22, 2022. However, the exhibit is grainy and difficult to glean any information regarding placement of the rock barrier. The Court does agree Plaintiffs' Exhibit 3 demonstrates that as of June 30, 2022 a trailer is parked extending over the railroad ties, and that there are not rocks visible preventing the extension over what should be the barrier. This photo, however, although after the date of the hearing on May 27, 2022, is prior to the Court's August 11, 2022 order and therefore does not demonstrate a failure to comply with the Court's August 11, 2022 order. Similarly, Plaintiffs Exhibit 5 dates back to 2021, and therefore is not relevant to the issue before the court. Plaintiff Cote testified that the first snowfall of 2022 was on November 15, 2022, but offered no evidence that the barrier line was not in place on that date. Plaintiffs' Exhibit 18 depicts the barrier line as of Monday, August 28, 2023, four days prior to the instant hearing, with the rocks in a line.
According to Defendant, Gary Skellett's testimony, he placed one additional rock at the most easterly end of the barrier since the last hearing. Defendants' Exhibit 3, which was taken 3 to 4 days prior to the hearing on September 1, 2023, depicts a line of large rocks parallel to the railroad ties. There are also stakes commonly used for snowplow demarcations. The court finds Defendants' exhibits particularly useful as they clearly demonstrate the line of rocks creating the barrier. The most easterly point of the barrier line is in line with the corner of the enclosed dumpster area. (Defendant's Exhibits 5, 6, 7, and 8.)
Plaintiffs contend that notwithstanding the established barrier of rocks, Defendants remain out of compliance with the arbitration order and the Court's August 11, 2022 order because the last rock (the most easterly rock) is not at the extension of the gate. The language of the arbitration order which states, "the southerly line to form a barrier that extends to the extension of the gate of the dumpster in a southerly direction," could be read as Plaintiffs assert, to state that the rock must be exactly where the gate ends when it is open at its full extension. However, it can also be read as Defendants assert, to state that the rock should be in line with (but not touching) the gate at full extension, thus creating a barrier protecting the leach field.
DISCUSSION
A motion for contempt pursuant to M.R. Civ. P. 66(d) may be granted if the court finds by clear and convincing evidence that (1) the alleged contemnor has failed or refused to perform an act required or continues to do an act prohibited by a court order, and (2) it is within the alleged contemnor's power to perform the act required or cease performance of the act prohibited. M.R. Civ. P. 66(d)(2)(D). "A party seeking a contempt order must establish by clear and convincing evidence that the alleged contemnor failed or refused to comply with a court order and presently has the ability to comply with that order." Silverwolf v. Colton, 2020 ME 94, ¶ 8, 237 A.3d 162 (quotations omitted). Evidence is clear and convincing when it "provides the fact-finder with an abiding conviction that the truth of the proponent's contentions is highly probable." Grondin v. Hanscom, 2014 ME 148, ¶ 11, 106 A.3d 1150.
"It is well established that before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him." White v. Nason, 2005 ME 73, ¶ 7, 874 A.2d 891 (quotations omitted). Defendants assert that the order is ambiguous as to the placement of the rock on the most easterly end of the barrier. The Court agrees.
The arbitration order states that the rocks are "...to run parallel along the southern boundary..." and [t]he most easterly end of the rocks must have rocks of similar size placed along the southerly line to form a barrier that extends to the extension of the gate of the dumpster in a southerly direction." (Decision and Order, (Andrew W. Sparks, Esq., Arbitrator) dated October 16, 2020, 6, ¶ 2) (emphasis added). Justice Warren's order states that the rocks at the easterly end shall be placed "to be in line with the door of the dumpster," and orders that "Defendants shall maintain the required line of rocks between defendant's [sic] parking lot and the leach field. The line of rocks shall be maintained throughout the year as required by the arbitration award." (Order, [Warren, ARJ.], dated August 11, 2022, page 3-4, 6) (emphasis added).
The Court is not persuaded by clear and convincing evidence that Defendants have failed to comply with either the arbitration order or the August 11, 2022 order of this court. To the contrary, the Court is persuaded by clear and convincing evidence that Defendants have substantially complied with the order by creating and maintaining a rock barrier between Defendants parking lot and the leach field, thus protecting the leach field. Where the evidence presented at the hearing is insufficient for the court to find by clear and convincing evidence that Defendants failed or refused to perform an act required, Plaintiffs have not met their burden of proof. The Court does not find the Defendants in contempt.
Based on the foregoing, Plaintiff's motion for contempt is DENIED.
The clerk shall incorporate this Order by reference into the docket for this case pursuant to M.R. Civ. P. 79(a).