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Halliday v. Henry

Superior Court of Maine, Cumberland

December 6, 2016

INGIGERDUR HALLIDAY and MALCOLM HALLIDAY Plaintiffs,
v.
KATHRYN HENRY and ROBERT CENTER Defendants.

          ORDER TO DISMISS PLAINTIFF'S COMPLAINT

          Lance Walter Justice.

         Before the court is what purports to be a new complaint by Plaintiffs Ingigerdur and Malcolm Halliday ("the Hallidays") against Defendants Kathryn Henry and Robert Center ("Henry/Center".) Based on the following, the Hallidays' complaint is dismissed.

         I. Factual and Procedural Background

         Defendants Henry/Center own property sharing a common boundary with, and uphill from, property owned by the Hallidays. Robert N. Center and Kathryn W. Henry v. Malcolm F. Halliday and Jngigerdur K. Halliday, CUMRE-10-317 (Me. Super. Ct., Cumberland Cty., Apr. 29, 2011); letter from William Wells, Code Enforcement Officer, Town of Harpswell, to the Hallidays dated December 22, 2011. After purchasing the property, Henry/Center removed a pre-existing cottage and garage, built a new house, garage, driveway, and septic field, and undertook ditching and "other landscape features" to improve upon the drainage conditions that existed prior to the reconstruction undertaken by Henry/Center. Id. The Henry /Center property is burdened by an easement for ingress and egress in the path, route, and width of a preexisting gravel road to the benefit of the Halliday property, as was depicted in the Cumberland County Registry of Deeds Plan Book 204 ("the Plan".) Robert N. Center and Kathryn W. Henry v. Malcolm F. Halliday and Ingigerdur K. Halliday, CUMRE-10-317 at ¶ 3 (Me. Super. Ct. Cumberland Cty., Apr. 29, 2011).

         On April 29 2011, as the result of a real estate lawsuit filed by Henry/Center against the Hallidays, there was a stipulated judgment permanently enjoining the Hallidays from parking or storing anything on their easement on the Henry /Center property, from deviating from the right of way when exercising their easement right of ingress and egress, from interfering with or obstructing the use of the easement on the Halliday property, and from altering or disturbing the easement on the Halliday property. Id. at ¶¶ 6, 9. The judgment stated the only easement burdening the Henry/Center property was an existing gravel road shown on the Plan and no other easement as claimed by the Hallidays was supported by evidence. Id. at ¶ 4. Furthermore, the judgment explicitly provided that any violations of the permanent injunctions described in the judgment were enforceable by a Motion of Contempt as governed by Maine Rule of Civil Procedure 66. Id. at ¶ 13.

         On July 29, 2011, Malcolm Halliday, in response to a request made by him, received a letter/report from E.S. Coffin Engineering & Surveying, Inc. describing observations made by James E. Coffin, who stated that a swale constructed by Henry/Center on their property to intercept runoff was being bypassed near its top and was still allowing water to reach the Halliday property at a lower elevation, but noted that the Halliday property is near the bottom of a watershed.

         On December 22, 2011, in response to a complaint filed by the Hallidays, they received a letter from the Code Enforcement Office of the Town of Harpswell stating that Henry / Center received a Certificate of Compliance on January 5, 2005, certifying they had adhered to the pertinent land use standards for the reconstruction of their house and garage. The letter also stated the Code Enforcement Office, Planning Board and Board of Appeals found that the new house and garage were designed in accordance with the Town's Ordinances, including a provision that the structures be designed to minimize storm water runoff from the site in excess of the natural pre-development conditions. Letter from William Wells, Code Enforcement Officer, Town of Harpswell, to the Hallidays dated December 22, 2011

         On October 18, 2012, the Hallidays retained an attorney to send letter to Henry/Center alleging that redirection of natural flow and drainage by Henry/Center was damaging the Hallidays' cottage, and that Henry /Center had placed rocks and a split rail fence and performed ditching in a manner that was blocking the Hallidays' easement on the Henry/Center property.

         On June 20, 2013, the Hallidays filed a complaint against Henry/Center asserting a nuisance claim pursuant to 17 M.R.S.A. § 2808, alleging the Henry/Center's construction of their house, driveway, garage, and septic field and a raising of the level of their site had altered the flow of surface water in such a way as to cause damage to the Halliday property. Pl.'s 2013 Compl. ¶¶ 10-12; Halliday v. Henry, No. CV-13-0275, 2014 Me. Super. LEXIS 76, at *1 (Aug. 12, 2014). In June of 2014, Henry/Center moved for summary judgment on the ground that the Halliday complaint was barred by the statute of limitations. The Hallidays did not oppose the motion. On August 12, 2014, the Henry / Center motion was granted. Id. at *3. The Hallidays filed an appeal to the Maine Supreme Judicial Court, but on May 12, 2015, the Court affirmed the trial court's determination that the Hallidays' complaint was barred by the statute of limitations, Halliday v. Henry, 2015 ME 61, ¶ 10, 116 A.3d 1270. The Court noted that although the Hallidays might have attempted to establish a later accrual date by arguing that the runoff constituted a continuing nuisance, they had failed to do so. Id. ¶ 9. The Hallidays filed a motion for reconsideration which was denied on June 8, 2015, because the Hallidays' failure to oppose the summary judgment motion precluded the Court from considering evidence that may have established a continuing nuisance such that the statute of limitations period could have been extended. Halliday v. Henry, No. CUM-14-349, (Me. Jun. 8, 2015).

         On June 8, 2015, the Hallidays filed a second complaint against Henry/Center which included three charges: (1) falsifying physical evidence/perjury in first lawsuit, pursuant to 17-A M.R.S. § 455, (2) nuisances: alteration of surface water flow, pursuant ; to 17 M.R.S. § 2808, and (3) public and private rights in proposed, unaccepted ways in subdivisions, pursuant to 23 M.R.S. § 3031. The complaint alleged that Henry/Center were causing flooding on the Halliday property, and raised several explanations for the flooding including the removal of trees by Henry/Center on their property which the Hallidays alleged had previously soaked up water, the swale on the Henry/Center property, the septic system, and the lack of drainage. Pl.'s 2015 Compl. 2, 4. The complaint alleged Henry/Center placed impediments, including the ditch, in the Hallidays' easement on the Henry/Center property blocking access to the Halliday property. Id. at 4. The complaint alleged Henry/Center were blocking the Hallidays from using a turnaround on the Henry/Center property. Id. The complaint also raises the issue, again, that their failure to oppose the motion for summary judgment on the 2013 complaint was due to a lack of notice of the motion. Id. at 3.

         On October 5, 2015, Henry/Center filed a motion to dismiss the complaint as barred by res judicata. They argued that the Hallidays were seeking to sue over the same core set of facts as the first (2013) complaint, in specific the same water diversion issues as were made in the first (2013) action. Def.'s Mot. Dismiss 2015 Compl. 4-5. Henry/Center acknowledged the Hallidays potentially raised two new claims: (1) perjury in the first action, and (2) the placement by Henry/Center of impediments in the Hallidays' easement. Id. 5. But, Henry/Center argued that both of these allegations could have been asserted in the first complaint, that all issues relating to property access were resolved in the 2010 real estate lawsuit, and that the perjury claim was frivolous. Id. 5-6. On October 9, 2015, the Hallidays responded that lies were made to the judge in the first action regarding the completion dates of the Henry/Center construction, that the impediments to their easement and turnaround included the split rail fence with stone posts, the swale, the drainage culvert (i.e., ditching), and four new gardens added by Henry/Center in the summer of 2015, and that the flooding on their property was due to the house, garage, and shed constructed by Henry/Center and the tree removal by Henry / Center. The Hallidays also referred to the contents of the 2011 Coffin engineering report and the 2012 attorney letter sent to Henry / Center. Pl.'s Response to Def.'s Mot. Dismiss 2015 Compl. 2, 4-7.

         On February 8, 2016, the Center/Henry motion to dismiss was granted on the grounds that the Hallidays had advanced the same set of facts that formed the predicate to the first lawsuit, that the claims of perjury and blockage of the Hallidays' easement and turnaround were or could have been litigated in the prior case, and that the Hallidays did not plead their claims with particularity as required. Halliday v. Center, CV-15-0257, 2016 Me. Super. LEXIS 22, at *3-5 (Feb. 8, 2016). On February 23, 2016, the Hallidays filed a letter with the court which was interpreted as a motion to reconsider, in which they again disputed the date of completion of the Henry/Center construction, reiterated that they had not received notice of the Henry/Center motion on the 2013 action, and mentioned the ditching and split rail fence that they claimed were blocking their easement and turnaround. Pl.'s Mot. Reconsider J. on Pl.'s 2015 Compl. 3. The motion was denied on February 26, 2016.

         On March 25, 2016, the Hallidays filed an appeal with the Maine Supreme Judicial Court regarding the 2010 real estate lawsuit, which was docketed as CUM-16-131. But, on May 31, 2016, an order was issued dismissing the appeal for want of prosecution because the Hallidays did not timely file a replacement brief and appendix as ordered. Halliday v. Center, No. CUM-16-131 (Me. May 31, 2016).

         On August 3, 2016 the Hallidays filed, pro se, a complaint against Henry/Center, which they indicated was an initial complaint, alleging property negligence pursuant to 17 M.R.S. § 2808 and 23 M.R.S. § 3031, and seeking a money judgment. A typed letter from the Hallidays, which appears to be their complaint, alleges water damage to their home caused by Henry/Center and that there are impediments, including trees, a split rail fence with marble posts, and ditching blocking and narrowing their easement on the Henry/Center property. A hand-written letter was also filed with the court by the Hallidays, dated August 2016, in which they allege the same issue of flooding as a result of construction on the ...


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