Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fissimer v. Town of Cape Elizabeth

Superior Court of Maine, Cumberland

February 2, 2016

LESLIE FISSIMER, Individually and as Trustee of the LESLIE S. FISSMER REVOCABLE TRUST Plaintiff,
v.
TOWN OF CAPE ELIZABETH and CUNNER LANE, LLC Defendants.

JOHN B. SHUMADINE, ESQ. MURRAY, PLUMB & MURRAY, COUNSEL FOR PLAINFIFFS

ALAN ATKINS, ESQ ATKINS, CHOWDRY, LLC. COUNSEL FOR DEFENDANT CUNNER LANE

ORDER ON DEFENDANT LANE'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR SANCTIONS

Lance Walker, Justice Superior Court

Before the court is Defendant dinner Lane LLC's (hereafter "Lane") motion to dismiss Plaintiffs 80B Complaint pursuant to M.R. Civ. P. 12(b)(1) and Plaintiffs (hereafter "Fissimer") motion for sanctions against Lane pursuant to M.R. Civ. P. 11. A hearing on the motions was held on January 26, 2016. Based on the following, Lane's motion for to dismiss and Fissimer's motion for sanctions are denied in toto.

I. BACKGROUND

Fissimer filed a Complaint pursuant to M.R. Civ. P. 80B, appealing the decision of the Town of Cape Elizabeth Code Enforcement Officer and Zoning Board of Appeals regarding the issuance of a building permit to Lane. On October 21, 2015, Lane filed a motion to dismiss the appeal pursuant to M.R. Civ. P. 12(b)(1), arguing that the court lacks subject matter jurisdiction because Fissimer did not file within 45 days from the vote on the original decision by the Town of Cape Elizabeth. 30-A M.R.S.A. § 2691(3)(G).

On November 12, 2015, Fissimer filed an opposition to Lane's motion to dismiss and a motion for sanctions against Lane for filing the motion to dismiss.

II. DISCUSSION

A. Standard of Review - Subject Matter Jurisdiction

A motion to dismiss pursuant to Maine Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. M.R. Civ. P. 12(b)(1). "When a court's jurisdiction is challenged, the plaintiff bears the initial burden of establishing that jurisdiction is proper." Commerce Bank & Trust Co. v. Dworman, 2004 ME 142, ¶ 8, 861 A.2d 662. The court makes no favorable inferences in favor of the plaintiff. Persson v. Dep't of Human Servs., 2001 ME 124, ¶ 8, 775 A.2d 363. The court may consider materials outside of the pleadings. Gutierrez v. Gutierrez, 2007 ME 59, ¶ 10, 921 A.2d 153.

B. Lane's Motion to Dismiss

The parties do not contest the date by which Plaintiff was required to file her appeal; to wit, September 11, 2015. Lane asserts that the appeal was filed on September 12, 2015, depriving the court of subject matter jurisdiction and that consequently Fissimer's appeal should be dismissed. Fissimer argues that the appeal was timely filed on September 9, 2015, two days before the expiration of the appeal period. For support, Fissimer points to the Affidavit of Kelley Massey, Attorney Shumadine's assistant, whom hand delivered the Complaint to the Court. The cover letter that accompanied the Complaint for filing was dated September 9, 2015.

Lane concedes that he relied only on the date stamp by the Clerk's Office but did not further investigate when the appeal actually was filed. By contrast Fissimer furnishes for the court's consideration printouts from the court's computer system, which, among other things, reflects when filings are made. The printouts reflect that Fissimer's filing fee for her appeal was processed and that the appeal was filed on September 9, 2015., Fissimer further explains that the reason the Complaint was date stamped September 17, I 2015 was because the clerk who accepted the Complaint on September 9, 2015 inadvertently failed to stamp it. By the time the Complaint reached the correct clerk for processing, the clerk noticed that the pleading had not been stamped and stamped it on the date the mistake was realized, September 17, 2015.

Lane does not contest this explanation, nor could it having conceded that it made no further investigation of the clerk's office beyond the date stamp to which it clings in order to press its motion to dismiss. There is no basis for the court to conclude that the Plaintiffs Complaint was filed beyond ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.