LESLIE FISSMER, Individually and as Trustee of the LESLIE S. FISSMER REVOCABLE TRUST Plaintiff,
DAVID D. SMITH and CUNNER LANE, LLC Defendants.
Plaintiff-Kelly McDonald, Esq. and John Shumadine, Esq.
Defendants-Alan Atkins, Esq. and Aaron Mosher, Esq.
ORDER ON PLAINTIFF'S MOTION FOR CONTEMPT AND
DEFENDANTS' MOTION FOR SANCTIONS
E. Walker Justice, Superior Court
the court is Plaintiff's (hereafter "Fissmer")
motion for contempt, M.R. Civ. P. 66(d), and Defendants'
motion for sanctions. M.R. Civ. P. 11. An evidentiary hearing
on the motion for contempt was held on September 30, 2016.
Plaintiff was present with her attorneys. Defendants did not
appear, save through their attorneys. Based on the following,
Fissmer's motion for contempt is granted and as a natural
consequence, Defendants' motion for sanctions is denied.
result of Plaintiff s contemporary filing of a motion for
temporary restraining order with the initial pleadings in
this case, the Court issued a Temporary Restraining . Order
on August 22, 2016 at 9:23 a.m. Relevant to the present
motion for contempt, the Order stated that "Defendants
are further restrained from removing any post that was placed
by Plaintiff near the end of dinner Lane, near Plaintiffs
property." Fissmer testified that on August 26, 2016,
she observed Defendant Smith in the presence of his attorney,
remove a 4"x4" wooden post very near the end of her
driveway. Fissmer's testimony was undisputed and further
corroborated by photographs she took of the incident which
were admitted as Plaintiffs Exhibits 1-6. Fissmer testified
that she feels intimidated by Defendant Smith and that she is
concerned about what she perceives as his flagrant disregard
of a lawful court order and what that might portend for her
peace of mind as the present lawsuit progresses.
did not call any witnesses and did not offer any other
evidence. Attorney Atkins' argument, which took on a
different from than that made in his opposition to
Fissmer's motion, is that the post in question is some 26
feet from Fissmer's property and therefore does not fall
within the court's proscription that Defendant not remove
any post placed by Plaintiff located near Plaintiffs
property, insofar as 26 feet is not near enough to be
considered near Plaintiffs property.
Motion for Contempt, Rule 66(d)
motion for contempt pursuant to Rule 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 contemner's power
to perform the act required or cease performance of the act
court finds by clear and convincing evidence that Defendant
Smith has violated the Order and that it was well within his
power to comply with the Order. Therefore, Defendant Smith is
in contempt of the Temporary Restraining Order. The
argument that 26 feet is not near enough to fall within the
prohibition of the Order is hollow and was only made at the
hearing for the first time. As a practical matter, parties
subject to a Temporary Restraining Order may reasonably be
expected to conduct themselves more cautiously than to
cavalierly act in a way that violates it under the auspices
that the conduct falls just outside the prohibition. Second,
the alleged conduct was performed by Mr. Smith while in the
presence of his attorney of record in the present case,
somewhat undermining the Defendant's original argument
that he thought the post was on his property and therefore,
he believed that he could remove it. On its face the Order
does not admit to such a tortured interpretation. In fact the
Order speaks of removal of a post near Plaintiffs property,
which by definition would include posts on other people's
property. Finally, there was no other post with which the
Order's prohibition could reasonably have been confused.
The post in question sits a couple of paces adjacent to
Fissmer's driveway. The fortuity that the ownership of
that land may be in dispute somewhat misses the point of a
Temporary Restraining Order generally and this one in
particular, which is to maintain the status quo while the
underlying dispute is resolved in an orderly manner through
the course of litigation.
alternative to coercive sanctions that are available under
the Rule, the Court imposes the following remedial sanctions:
attorney's fees and costs incurred by Fissmer arising out
of or connected to the removal of the post, attempted
communication between attorneys for the parties regarding the
same, time expended on the motion for contempt and motion for
sanctions, along with time to prepare for and attend the
hearing on the motion for contempt.
on the foregoing, Plaintiffs motion for contempt is granted.