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Appletree Cottage LLC. v. Bond

Superior Court of Maine, Cumberland

July 28, 2016

APPLETREE COTTAGE LLC, Plaintiff,
v.
CHRISTOPHER BOND Defendant.

          ORDER

          THOMAS D. WARREN JUSTICE.

         Before the court are the following motions:

         (1)a motion by plaintiff Appletree Cottage LLC and third party defendants Thomas Egan and Captain Elliott LLC to dismiss counts II through VI of defendant Christopher Bond's amended counterclaim and his amended third party complaint;

         (2)a Rule 56(f) motion by Appletree to stay any response to Bond's motion for summary judgment pending discovery.

         1. Motion to Dismiss

         For purposes of a motion to dismiss, the material allegations of the counterclaim must be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ¶ 2, 54 A.3d 710. The counterclaim must be read in the light most favorable to Bond to determine if it sets forth elements of a cause of action or alleges facts that would entitle Bond to relief pursuant to some legal theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 101. Dismissal is appropriate only when it appears beyond doubt that Bond would not be entitled to relief under any set of facts that he might prove in support of his claim. Moody v. State Liquor & Lottery Commission, 2004 ME 20 ¶ 7, 843 A.2d 43. However, Bond may not proceed if the counterclaim fails to allege essential elements of the cause of action. See Potter, Prescott, Jamieson & Nelson P. A. v. Campbell, 1998 ME 703 ¶¶ 6-7, 708A.2d283.

         The causes of action set forth in Bond's counterclaim and his third party complaint are essentially identical. Moreover, Bond's claims against Egan and Captain Elliott LLC are not proper third party claims. M.R.Civ.P. 14(a) allows a defendant to assert claims as a third party plaintiff against a person "who is or may be liable to such third party plaintiff for all or part of the plaintiffs claim against the third party plaintiff." In this case Bond is not contending that Egan and Captain Elliott LLC should be found liable to him if Bond is found liable to Appletree but is instead asserting independent claims against Egan and Captain Elliott LLC. Rather than third party defendants, Egan and Captain Elliott LLC are more properly considered to be additional parties on Bond's counterclaim pursuant to M.R.Civ.P. 13(h).

         2. Count II - Statutory Trespass

         In Count II of Bond's amended counterclaim and third party complaint, Bond asserts a statutory trespass claim under 14 M.R.S. § 7551-B. He has also brought a common law trespass claim in Count I of the amended counterclaim and third party complaint. On the instant motion Appletree and the third party defendants are not challenging the common law trespass claim but are seeking dismissal of the statutory trespass claim.

         14 M.R.S. § 7551-B provides a statutory trespass cause of action for specifically enumerated damages.[1] While damage need not be proven to recover at least nominal damages for common law trespass, proof of damages is an essential element of a statutory trespass claim. See Medeika v. Watts, 2008 ME 63 ¶ 6, 957 A.2d 980. Bond has not alleged any of the damages specifically enumerated in § 7551-B and count II of the amended counterclaim and third party complaint is therefore dismissed.

         Count III - Nuisance

         Bond alleges that Appletree has interfered with the use and enjoyment of Bond's property. A review of the allegations in his amended counterclaim and third party complaint demonstrates that the only factual allegations that could be encompassed within a claim for nuisance are assertions that Appletree has insisted that no contractor may work on an easement leading to Bond's property without Appletree's express permission. Amended Counterclaim ¶¶ 28-29; Amended Third Party Complaint ¶¶ 30-31.[2]

         If Bond's easement rights are being wrongfully interfered with, he would have a claim for injunctive relief. Notably, however, Bond's claim for injunctive relief does not seek any relief for the alleged interference with his easement rights. See Amended Counterclaim ¶¶ 50-51; Amended Third Party Complaint ¶¶ 52-53.

         It is less clear that his allegations are legally sufficient to state a claim for damages based on nuisance. Nuisance consists of "the use of one's own property" in a manner that causes injury to another's interest in the use and enjoyment of his property. Johnson v. Maine Energy Recovery Co. LP,2010 ME 52 ¶ 15, 997 A.2d 741, quoting Norcross v. Thorns,51 Me. 503, 504 (1863). In every case of which the court is aware, nuisance has involved the physical use of the tortfeasor's property in a manner that interferes with a neighbor's property rights. See, e.g., Johnson v. Maine Energy Recovery Co. LP,2010 ME 52 ¶ 1 (emission of odors); Rutland v.Mullen,2002 ME 98 ¶¶ 3, 18, 798 A.2d 1104 (parking of cars on ...


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