Pro se
Def. Christopher Bond, PHF Appletree Collage LLC Sigmund
Schutz Esq Preti Flaherty Beliveau Pachios LLP
3rd
Party "Def Thomas Egan, J William Druary Esq Marden
Dubord Bender & Stevens PA LLP
3rd
Party "Def Thomas Egan, PHF Appletree Collage LLC, 3rd
Party "Def Caption Elliot LLC Jonathan Brogan Esq Norman
Hanson & Detroy LLC
ORDER
On
September 20-21, 2017 a bench trial was held on defendant
Christopher Bond's counterclaims for common law trespass
and nuisance against Appletree Cottage LLC, Captain Elliot
LLC, and Thomas Egan (collectively, the Appletree parties).
1. At
the conclusion of the evidence and after closing argument,
the court ruled from the bench for reasons stated on the
record that the Appletree parties were entitled to judgment
on Bond's counterclaim for nuisance. Bond has not proven
the necessary elements of his nuisance claim by a
preponderance of the evidence. See Charlton v. Town of
Oxford, 2001 ME 104 ¶ 36, 774 A.2d 366.
Specifically, Bond did not prove that the Appletree parties
substantially interfered with the use or enjoyment of his
land. Bond also did not prove by a preponderance of the
evidence that the Appletree parties intended to interfere
with the use or enjoyment of his land -except by seeking
compliance with the restrictive covenant and by enforcing the
Cape Elizabeth Zoning Ordinance. Bond does not have the right
to use his land in violation of the restrictive covenant or
the Zoning Ordinance, and the Appletree parties were entitled
to contest that issue.[1] Finally, Bond did not prove by a
preponderance of the evidence that the alleged interference
reduced the value of his land. Charlton, 2001 ME 104
¶ 38.
2.
Embedded in Bond's claim for nuisance is a claim for
wrongful use of civil proceedings, incorrectly referred to in
his amended counterclaim as abuse of process. Under Maine law
the tort of wrongful use of civil proceedings (the civil
analog of malicious prosecution) requires proof that the
defendant initiated or continued a lawsuit (1) without
probable cause, (2) with a motive other than that of securing
proper adjudication of the claim, and (3) the proceedings
have terminated in favor of the plaintiff. Pepper ell
Trust Co. v. Mountain Heir Financial Corp., 1998 ME 46
¶ 17, 708 A.2d 651.
3. With
respect to the Rule 80B proceeding brought by Appletree
Cottage LLC, Bond did not prove by a preponderance of the
evidence that the appeal was brought or continued without
probable cause. The court finds that Appletree's motive
was to secure a proper adjudication of its claim. In
addition, the Rule 80B proceeding has not terminated in
Bond's favor. See Appletree Cottage LLC v. Town of
Cape Elizabeth, 2017 ME 177.
4.
Appletree's declaratory judgment claim in the case at bar
has terminated in Bond's favor, but Bond did not prove by
a preponderance of the evidence that the claim was brought or
continued without probable cause, and the court finds that
Appletree's motive in bringing the declaratory judgment
action was to secure a proper adjudication of its claim.
5.
Under Maine law, abuse of process cannot be brought based on
the filing of an action but instead covers the improper use
of legal procedures (such as discovery or subpoenas) for an
ulterior motive "after a suit has been filed."
Pepperell Trust, 1998 ME 46 ¶ 16 n.8.
Accord, Potter Prescott Jamieson & Nelson P.A. v.
Campbell, 1998 ME 70 ¶ 7, 708 A.2d 283. In both the
Potter Prescott and Pepperell Trust
decisions the Law Court cited the First Circuit's
decision in Simon v. Navon, 71 F.3d 9 (1st Cir.
1995). However, to the extent that Simon v. Navon
suggests that an abuse of process claim may be based on an
express threat to file a baseless lawsuit solely for the
purpose of compelling the threatened party to perform an
unrelated action, the Law Court has not adopted that aspect
of the decision. In any event, the court finds that Bond did
not prove that the lawsuits filed by Appletree were baseless,
that any express threat was made, that Appletree's
lawsuits were in furtherance of any implied threat, or that
the lawsuits were filed for any ulterior motive or
purpose.[2]
6. The
court reserves decision on the merits of Bond's trespass
claim against the Appletree parties pending further
briefing.[3] However, the court finds that the alleged
trespass did not result in any harm or monetary damage and
that Bond did not prove by clear and convincing evidence that
the Appletree parties acted with malice or that their conduct
was in any way so reprehensible that malice may be implied.
The
entry shall be:
1. For the reasons stated on the record and in this order,
judgment is entered for Appletree Cottage LLC, Captain
Elliott LLC, and Thomas Egan and against Christopher Bond on
Bond's counterclaim for nuisance. Bond's nuisance
claim incorporates claims for wrongful use of civil
proceedings and abuse of process, and judgment is also
entered for Appletree LLC, Captain Elliott LLC, and Thomas
Egan on those claims.
2. The court reserves decision on Bond's common law
trespass claim against Appletree LLC, Captain Elliott LLC,
and Thomas Egan pending post-trial briefing. For the reasons
stated on the record and in this order, the court finds that
the alleged trespass did not result in any harm or monetary
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