Opinion
BUSINESS AND CONSUMER COURT BCD-RE-19-14
03-06-2020
RANDY SLAGER Plaintiff v. LORI L. BELL and JOHN SCANNELL, Defendants
STATE OF MAINE
CUMBERLAND, ss
ORDER ON MOTION TO DISMISS
BACKGROUND
Before the Court is Defendants' Rule 12(b)(6) Motion to Dismiss all three Counts of Plaintiff's Amended Complaint for Nuisance (Count 1); Trespass (Count II); and Equitable Relief (Count III). The Plaintiff is represented by Attorney Alan Atkins and Attorney Fulton Rice. Defendants are represented by Attorney Daniel Rosenthal, Attorney Jennie Clegg, and Attorney Trey Milam. Oral argument on the motion was heard on February 28, 2020. The Court has reviewed the parties' filings and considered their oral arguments, and issues the following order denying the motion as to Count I (Nuisance) and Counts II (Trespass), but granting it as to Count III (Equitable Relief).
The Plaintiff seems to concede that Count III is not a separate cause of action, and the Defendants seem to agree that dismissal of this Count would not preclude Plaintiff from obtaining equitable relief if Plaintiff prevails on any claim. The Court therefore dismisses Count III as it is not a cause of action but could be an available form of relief in this matter depending on the outcome.
STANDARD OF REVIEW
A motion to dismiss tests the legal sufficiency of a Complaint, but the Court must view the evidence in each claim "in the light most favorable to determine whether it sets forth a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." McCormack v. Crane, 2012 ME 20, par. 5, 37. Because Maine is a notice pleading state, only a short, plain statement of a claim must be made sufficient to provide the defendant with fair notice of the cause of action. Town of Stonington v. Galilean Gospel Temple, 1999 ME 2, par. 14.
Count I: Nuisance
In order to prevail on a claim for common law nuisance, the Plaintiff must show that: 1) the defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use; 2) there was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that enjoyment may not have been anticipated or intended; 3) the interference that resulted and the physical harm, if any, from that interference proved to be substantial...the substantial interference required is to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct; and 4) the interference that came about under such circumstances was of a such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. Charlton v. Oxford, 2001 ME 104, par. 366. The Defendants argue that Plaintiff has failed to adequately plead any set of facts that even in the light most favorable to Plaintiff would establish any of these elements.
With respect to the element of intent, as Plaintiff points out the Law Court in Charlton has indicated that what must be established is intent to create the condition which interferes with Plaintiff's enjoyment of the land. Id. par. 37. The Amended Complaint alleges that Defendants intended to build and did build the raised patio and retaining walls that Plaintiff claims constitute the nuisance, so that element has been sufficiently pled. In addition, with respect to the interference element, the Amended Complaint alleges that the patio and walls sit on the Plaintiff's boundary line in violation of the Defendants' building permit. It could be arguably inferred from these allegations that Defendants interference was intentional.
Defendants' primary argument regarding Count I is that Plaintiff has failed to allege that he was harmed in any substantial way. Indeed, Defendants claim that all that Plaintiff has done is express fear or concern about loss of enjoyment or value in the property, without more. This not only means, according to Defendants, that Plaintiff has failed to adequately plead actual harm, but that Count I should be dismissed as not being ripe. The Court has reviewed the report of Plaintiff's expert, David Price, which is an Exhibit to Plaintiff's Amended Complaint. The report states that the construction was done in violation of building codes, that the retaining walls were not "bearing on ledge" - meaning they are subject to "frost heaves and overturning" and hence unsafe. Par. 36, 37 to Amended Complaint. In addition, the Amended Complaint cites to the report's finding that the retaining walls are unstable and were constructed without full-width capstones or through-stones which present safety concerns. Id. par. 38.
Defendants also ask the Court to consider documents that were not part of the Amended Complaint, causing Plaintiff to ask the Court to treat the motion to dismiss as one for Summary Judgment. Plaintiffs are correct that official public documents, documents central to a plaintiff's claim or referred to in the complaint can be considered by the Court on a Rule 12(b)(6) motion to dismiss without the Court holding a defendant to the requirements of Rule 56. See, Greif v. Independent Fabrication, 2019 ME 142, par. 4. While Exh.A, B and C to the motion are either public documents or are arguably central to Plaintiffs' claim, the Court reject consideration of Exh. D which is a photograph that purports to be a "better copy" of a photograph included in the expert report appended to Plaintiffs' complaint. However, the Court does not find Exhibits A-C to be pertinent to the standard that the Court must apply in deciding this motion, as more fully explained in fn. 3. Below.
In the light most favorable to Plaintiff, which is how the Court must view the allegations, the Plaintiff has adequately pleaded facts in the Amended Complaint (along with findings made in David Price's report) the three necessary elements of Nuisance: intentional acts; interference in use or enjoyment of the land; and harm that is substantial, unreasonable, and not speculative. The Court will therefore deny the motion with respect to Count I.
Defendants also argue that the Plaintiff has brought this claim for common law nuisance "to avoid his own failure to seek administrative remedies" through proceedings in his municipality. [Defendants' Motion, pg. 15]. The Court is not certain how this argument is to be analyzed given the confines of how the Court in this Rule 12(b)(6) motion is obligated to analyze the pleadings and allegations in the light most favorable to Plaintiff.
Count II: Trespass
Defendants argue that Count II should be dismissed as it refers only to Defendants' "contractors" when describing the conduct that Plaintiff alleges constitutes trespass. Defendants accurately describes the language in the Amended Complaint, and they are correct that under Maine law there is no vicarious liability for an employer for torts committed by an independent contractor who is not an "agent" of the employer. Bonk v. McPherson, 605 A.2d 74, 78 (1992). However, as Defendants acknowledge, an employer can be held liable for tortious acts of independent contractors depending on the facts of the case and the nature of the relationship between the contractor and the entity or person who engages the contractor. In Bonk, the Law Court also stated that "In certain circumstances, a party can be held liable for the trespass of an otherwise independent contractor if the trespass was authorized as part of the contract, or was the natural result of the work contracted to be done." Eaton v. European & N. Am. Ry. Co., 59 Me. 520, 526 (1872).
The Court agrees with Defendants that Plaintiffs have not been particular or specific as to their theory of how the Defendants "contractors" were acting as agents under applicable Maine law. However, as Plaintiffs point out, the Law Court in Bonk had the benefit of a full evidentiary record that had been presented to a jury in coming to its conclusion that the contractor was not an agent. The standard here compels the Court to decide whether Plaintiffs have set forth "elements of a cause of action or allege(s) facts that would enable the plaintiff to relief pursuant to some legal theory." McCormick v. Crane, 2012 ME 20, par. 5.
Plaintiffs have alleged just enough facts to withstand this motion at this stage. Depending on factual development, Defendants' legal challenge to Count II can be brought again at a later stage.
The entry will be: Defendants' Motion to Dismiss is GRANTED as to Count III but is DENIED as to Counts I and II. The Clerk may note this Order on the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure. 3/6/2020
DATE
/S _________
M. Michaela Murphy
Justice, Business and Consumer Court
Randy Slager
Alan R. Atkins, Esq. Fulton Rice, Esq. 100 Commercial St, Suite 305 Portland, ME 04101 Lori L. Bell John W. Scannell Daniel L. Rosenthal, Esq. 16 Middle Street, Unit 501 Portland, ME 04101