ORDER TO DISMISS PLAINTIFF'S COMPLAINT
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.
Factual and Procedural Background
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).
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 ¶
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.
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
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
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).
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.
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.
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
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).
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