ST ATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss DOCKET NO. CV-18-128
City of Lewiston, ) ) Plaintiff. ) ) V. ) Judgment ) William Verrinder, ) ) Defendant. )
This land use violation case came before the court for final hearing on March 17, 2021.
Plaintiff was present through its agent, Nicholas Richard, and was represented by Michael Carey,
Esq. Defendant was present and represented himself. This court had previously entered
summary judgment in Plaintiff's favor on the Complaint, and the matter was set for hearing on
the penalty, costs, fees and/or other remedy to be imposed.
At the time of the hearing, Plaintiff confirmed the only remedy it seeks is a daily civil
penalty for the violations together with attorney's fees and costs. No abatement or corrective
order was sought as the violations have been corrected.
Based on the evidence produced at the hearing, the court finds that the Lewiston Property
Maintenance Code violation as set forth in the Notice of Violation regarding the accumulation of
rubbish or garbage on Defendant's property existed from November 16, 2017 1 through at least
July 17, 2018; abatement or correction occurred after that date. This is a total of 243 days. The
court also finds that the Lewiston Property Maintenance Code violation as set forth in the Notice
of Violation regarding the missing part of the exterior stairs on Defendant's property existed
1November 16 is the date upon which Defendant called the code enforcement officer about the Notice of Violation dated November 8, 2017 and thus had clear notice. The conditions were actually observed and existed before that date.
1 from November 16, 2017 through at least April 12, 2018; abatement or correction occurred after
that date. This is a total of 147 days.
Plaintiff asks the court to impose a civil penalty of $100 per day for 243 days, or
$24,300.00, for the violation involving the accumulation of rubbish or garbage on Defendant's
property. Plaintiff also asks the court to impose a ci vi I penalty of $100 per day for 147 days, or
$14,700.00, for the violation involving the damaged front stairs on Defendant's property. Thus,
Plaintiff seeks a total civil penalty of $39,000.00 from Defendant.
Pursuant to 30-A M.R.S. § 4452(3),
3. Civil penalties. The following provisions apply to violations of the laws and ordinances set forth in subsection 5. Except for paragraph H, monetary penalties may be assessed on a per-day basis and are civil penalties. A. The minimum penalty for starting construction or undertaking a land use activity without a required permit is$ 100, and the maximum penalty is$ 2,500. B. The minimum penalty for a specific violation is $100, and the maximum penalty is $5,000 .... C. The violator may be ordered to correct or abate the violations .... E. In setting a penalty, the court shal I consider, but is not limited to, the following: (1) Prior violations by the same party; (2) The degree of environmental damage that cannot be abated or corrected; (3) The extent to which the violation continued following a municipal order to stop; and (4) The extent to which the municipality contributed to the violation by providing the violator with incorrect information or by failing to take timely action. F. The maximum penalty may exceed the amounts set forth in paragraphs B and B-1, but may not exceed $25,000, when it is shown that there has been a previous conviction of the same party within the past 2 years for a violation of the same law or ordinance.
This provision is applicable to Defendant's violation of Lewiston's code pursuant to 30-A
M.R.S. § 4452(5). Although it states that "monetary penalties may be assessed on a per-day
basis", § 4452(3), the statute also states that the "minimum penalty for a specific violation is
2 $100." The Law Court has held that when another provision of law provides that each day the
violation continues constitutes a separate violation, this court has no discretion to impose less
than the minimum penalty of $100 for each day of the continuing violation. Town of Orono v.
Lapointe, 1997 ME 185, ,i,i 9-12; Dep't. of Envtl. Protection v. Emerson, 616 A.2d 1268, 1272
(Me. 1992). In this case, the Lewiston Code states as follows:
Each day that a violation continues after due notice has been served shall be deemed a separate offense.
City of Lewiston Code of Ordinances, Chapter 18, § 18-52, IPMC §106.4. Therefore, this court
is without discretion to impose less than $24,300.00 for the 243 days of continuing violation
involving the accumulation of rubbish or garbage, and $14,700.00 for the 147 days of continuing
violation involving the damaged front stairs.
In this case, there are no aggravating factors that would cause the court to impose greater
than the mandatory minimum required. The court is unaware of any prior violations and there is
no environmental damage. See 30-A M.R.S. § 4452(3)(E).
To be clear, the court considers the total civil penalty sought to be disproportionate to the
offenses, particularly since the rubbish strewn about was not visible for much of the time when
there was snow on the ground. Nonetheless, this is the minimum penalty required by statute and
the Code.
The Law Court has made it clear that this comt is also without discretion to suspend any
portion of the minimum penalty imposed. Lapointe, 1997 ME 185, ,i 12,698 A.2d at 1062.
The Law Court has not addressed the issue whether the two penalties may run concurrently to
each other in the situation presented here, namely, where the violations existed at the same time
and were the subject of a unitary Notice of Violation and Land Use Enforcement action.
Certainly in the criminal context the court has the ability to specify that fines not be cumulative.
3 See 17-A M.R.S. § 1707 2 . And, fines may be made non-cumulative even if they may not be
suspended. Applying the same reasoning, therefore, this court finds that the civil penalties ought
not to be cumulative and shall run concurrently with each other.
Plaintiff also seeks attorney's fees and costs in the amount of $28,257.00. Pursuant to
30-A M .R.S. § 4452(3 )(D), when the City is the prevailing party, it "must be awarded reasonable
attorney fees, expert witness fees and costs, unless the court finds that special circumstances
make the award of these fees and costs unjust." Although the attorney's fees sought in this case
are certainly high, the court recognizes that a significant amount of the legal maneuvering was
caused by Defendant, who removed the case to the U.S. District Court, then to the Superior
Court, and who filed a number of unsuccessful motions. While such moves are Defendant's
right, they come at the cost of increasing fees sought by the City. The court finds that the fees
sought by the City are reasonable under all the circumstances and therefore awards those fees
and costs to the City.
For the foregoing reasons, it is ordered as follows:
The court imposes a civil penalty of $24,300.00 for the violation involving the
accumulation of rubbish or garbage, and $14,700.00 for the violation involving the damaged
front stairs. The court orders that the civil penalties are non-cumulative or concurrent, so that the
total penalty that must be paid is $24,300.00. In addition, the court awards to Plaintiff attorney's
2 17-A M.R.S. § 1707 provides "When multiple fines are imposed on a convicted person at the same time or when a fine is imposed on a convicted person already subject to an unpaid or partly unpaid fine, the fines must be cumulative, unless the court specifies that only the highest single fine must be paid in the case of offenses based on the same conduct or arising out of the same criminal episode or for other good cause stated on the record or in the sentences."
4 fees in the amount of $28,257.00. Therefore, the total judgment awarded in favor of Plaintiff and
against Defendant is $52,557.00, plus post judgment interest.
This Judgment may be incorporated on the docket of the case by reference pursuant to
Me. R. Civ. P. 79(a).
Valerie Stanfill Justice, Maine Superior Court
~-
5 STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. DOCKET NO. CV-18-128
CITY OF LEWISTON, ) ) Plaintiff, ) ) v. ) ORDER ON MOTIONS FOR SUMMARY ) JUDGMENT WILLIAM VERRINDER, ) ) Defendant )
Before this Court are both the Plaintiff and Defendant's Motions for Summary Judgment.
For the forgoing reasons, Plaintiff's Motion is granted in part and Defendant's Motion is denied.
I. Factual Background
The following facts are undisputed based on the statements of material fact unless
otherwise noted. Defendant William Verrinder owns real estate located at 65 Jill St., Lewiston
Maine. On November 8, 2017, the Lewiston Code Enforcement Officer ("CEO") inspected
Defendant's property and observed what he described as damage to the front step and "trash and
construction debris strewn about the lawn[.]" (PSMF j 5; Richard Aff. ! 7 .) Defendant alleges
that there was no damage to the front step and that he "used household items, sheetrock, and tires
to express political speech in the form of political art on his private property." Defendant's
Opposing Statement of Material Fact [DOSMF] j 5. The CEO issued a Notice of Violation
("Notice") to Defendant for violations of the Lewiston Code of Ordinances.
The Notice1 alleged two violations of the Lewiston Property Maintenance Code, stating:
"[u]pon inspection, the property was found to be in violation of Chapter 18, Article III, Property
Maintenance Code, Sections 18-51 and 18-52 as per the Code of Ordinances of the City of
1A copy of the signed Notice is Exhibit 5 to Plaintiff's motion. Page 1 of 10 Lewiston." The Notice also cited specific provisions of the International Prope1ty Maintenance
Code that outlined the particular conditions Defendant's property must maintain in order to comply
with the Code. The Notice also informed Defendant he had the ability to appeal the Notice, stating:
You may appeal this order and request a hearing before the Lewiston Board of Appeals by filing a written petition at the office of the Director of Planning/Code Enforcement within (10) days of receipt of this notice. This petition shall be submitted on a form provided by this office along with the one hundred and fifty dollars ($150.00) appeal fee. Should you fail to appeal you will be barred from any opportunity to contest or challenge the content or terms of this Notice and Order in any further legal proceedings.
The Notice was sent to Defendant by both certified mail, return receipt requested, and regular mail,
postage prepaid. The return receipt was not returned and the U.S. Postal Service did not return as
undeliverable the Notice sent by regular mail. Defendant made no attempt to appeal the Notice.
Defendant did not remedy the violations alleged in the Notice and the City filed this Land
Use Citation and Complaint in Lewiston District Court on December 11, 2017 as a result. After
Defendant unsuccessfully removed the matter to the U.S. District Court, Defendant removed the
case to the Superior Court for jury trial and these motions followed.
II. Summary Judgment Standard
When there are cross-motions for summary judgment, the rules for consideration of
summary judgment are applied separately to each motion. F.R. Carroll, Inc. v. TD Bank, N.A.,
2010 ME 115,, 8, 8 A.3d 646. The record on each summary judgment issue must be considered
most favorably to the party objecting to the grant of summary judgment on that issue. Blue Star
Corp. v. CKF Properties LLC, 2009 ME 101, 1123, 980 A.2d 1270. A party is entitled to summary
judgment when review of the parties' statements of material facts and the record to which the
statements refer, demonstrates that there is no genuine issue as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law. Dyer v. Dep't o/Transp., 2008 ME
Page 2 of 10 106,114,951 A.2d 821; M.R. Civ. P. 56(c). A contested fact is "material" if it could potentially
affect the outcome of the case. Id. A "genuine issue" of material fact exists if the claimed fact
would require a factfinder to "choose between competing versions of the truth." Id. (quotations
omitted).
Once a properly supported motion is filed, the party opposing summary judgment must
show that a factual dispute exists sufficient to establish a prima facie case for each element of the
defense raised in order to avoid summary judgment. Watt v. Unifi..rst Corp., 2009 ME 47,121,
969 A.2d 897. A party who moves for summary judgment is entitled to judgment only if the party
opposed to the motion, in response, fails to establish a prima facie case for each element of the
defense raised. Lougee Conservancy v. Citi Mortgage, Inc., 2012 ME 103, ~ 12, 48 A.3d 774.
III. Discussion
A. Plaintifps Motion for Summary Judgment
The City argues that it is entitled to judgment as a matter of law because the Defendant's
liability on this Land Use Citation and Complaint has been determined by operation of
administrative res judicata. The City further argues that because the Defendant's liability is not
in dispute, this Court should award attorney's fees, costs, and civil penalties to it. Defendant
disagreed, and filed his own summary judgment motion.
"Res judicata is a common law doctrine aimed at preventing the relitigation of claims that
were tried or could have been tried between the same parties ... in an earlier suit on the same
cause of action." Town of Ogunquit v. Cliff House & Motels, Inc., 2000 ME 169, ~ 10,759 A.2d
731.) (internal quotations and citations omitted). Res judicata applies to an administrative
tribunal's determinations if the administrative proceeding "entailed the essential elements of
adjudication." North Berwick v. Jones, 534 A.2d 667,670 (1987). The Law Court has held that a
Page 3 of 10 CEO's Notice of Violation alone may trigger administrative res judicata "if a party does not
challenge [the Notice] through an available [administrative] appeal that contains the essential
elements of adjudication[.]" Town of Boothbay v. Jenness, 2003 ME 50, ~ 21,822 A.2d 1169. To
trigger administrative res judicata, a CEO's Notice must: (1) refer to the provisions of the
ordinance allegedly violated; (2) inform the violator of both the right to dispute the order and how
that right is exercised; and (3) specify the consequences of the failure to appeal. Freeport v.
Greenlaw, 602 A.2d 1156, 1161 (Me. 1992).
Here, the CEO's Notice is sufficient to trigger administrative res judicata. First, the Notice
refers to the specific ordinances Defendant is alleged to have violated and included specific
excerpts from the provisions of the International Property Maintenance Code at issue. Second, the
Notice specifically informed Defendant that he could "appeal [the] order and request a hearing
before the Lewiston Board of Appeals" and gave Defendant specific instructions on how he was
to initiate the appellate process, including the timing, cost, and paperwork required. Third, the
Notice specifically informed Defendant that "[s]hould you fail to appeal you will be barred from
any opportunity to contest or challenge the content or terms of this Notice and Order in any future
legal proceedings." Therefore, the CEO's Notice is sufficient to trigger administrative res
judicata.
Defendant does not dispute the contents of the CEO's Notice, nor does he allege that he
made any attempt to appeal the Notice to the Lewiston Board of Appeals. However, Defendant
argues res judicata does not apply for six reasons: (l) the Notice failed to state that he has the right
to dispute the order; (2) the Due Process Clause of the Fourteenth Amendment and Article I Section
19 of the Rights of the Constitution of the State of Maine are violated by the $150.00 fee required
to appeal the Notice; (3) the Notice was not properly served on Defendant; (4) Berry v.
Page 4 of 10 Maines/ream Finance prohibits res judicata because the $150.00 denied Defendant a fair
opportunity to litigate the Notice; (5) res judicata is inapplicable because the Lewiston Zoning
Board of Appeals lacks jurisdiction to hear constitutional challenges; and (6) the City failed to give
the Defendant the proper amount of time to appeal the Notice.
Defendant first argues that the Notice is insufficient to trigger res judicata because the
Notice must specifically state that he has a "right to dispute the order" before administrative res
judicata can be triggered, citing Freeport, 602 A.2d 1156, 1161, and that it fails to do so.
Defendant's argument is misplaced. Although the Law Comt has since stated generally that a
CEO's notice must "inform the violator of "the right to dispute the order", see Town of Boothbay
v. Jenness, 2003 ME 50, ~ 22,882 A.2d 1169, there is no authority to suggest that the Notice itself
must use specific language describing the appeals process as a "right." The Notice properly
informed Defendant he had the opportunity to appeal the Notice which is all that is required.
Defendant next argues that res judicata does not apply because the City's appeal process
and $150.00 administrative fee violate the Maine and United States Constitutions. However,
Defendant made no attempt to appeal the CEO's Notice, and thns this court is without any facts as
to whether the $150.00 fee affected Defendant's ability to appeal the Notice, whether it was
waivable or would have been waived. As such, Defendant's constitutional arguments are not ripe
for this court to review.
Defendant also argues that res judicata does not apply because the Notice was not served
properly. The Defendant cites irrelevant portions of the Lewiston Zoning and Land Use Code to
support of this argument. The Notice alleges violations of Lewiston's Property Maintenance Code,
which allows for service in the following manner:
A notice of violation or order may be ... mailed by certified mail, return receipt requested, to the last known address. If the return receipt is not returned, the notice
Page 5 of 10 shall be conclusively presumed to have been served if it is also sent by regular mail, postage prepaid, which is not returned as undeliverable by the postal service.
Lewiston Code§ 18-29(c). The Notice was sent by certified mail, return receipt requested, and
via regular mail, postage prepaid. The return receipt was not returned, and the Notice sent via
regular mail was not returned as undeliverable. Thus, the Notice is conclusively presumed to have
been served properly.
The Defendant next argues that the City's $150.00 appeal fee prevented him from a fair
opportunity to litigate the Notice, thereby contravening Berry v. Mainstream Finance, 2019 ME
27, ~ 8,202 A.3d 1195. However, as stated above, Defendant cannot claim that he was not afforded
a fair opportunity to litigate the Notice when he made no attempt to avail himself of the City's
adjudicative process. Therefore, Berry v. Mainstream Finance does not render res judicata
inapplicable here.
Defendant next argnes that the City's Zoning Board lacks jurisdiction to hear Defendant's
above-mentioned constitutional challenges. Defendant's argument misconstrues the res judicata
doctrine. Res judicata applies here because the Defendant failed to make any attempt to appeal
the CEO's Notice in the first place. The Zoning Board's jurisdiction to hear constitutional
challenges is irrelevant not only because those challenges are not ripe for review, but also because
Defendant could have sought review of the Board's decision in front of an adjudicative body with
jurisdiction over Defendant's constitutional claims. See 30-A M.R.S. § 2691(3)(G); M.R. Civ. P.
80B. As such, the Zoning Board's jurisdiction does not render res judicata inapplicable here.
Finally, Defendant argues that res judicata does not apply because the City did not allow
the full ten days to appeal the Notice in violation of Defendant's due process rights. Although the
City's Motion incorrectly cites November 20, 2017 as the deadline to appeal the CEO's Notice,
Page 6 of 10 that was not stated in the Notice itself. Rather, the Notice correctly informed Defendant he had 10
days from receipt of the notice to appeal, which he failed to do.
In short, Defendant has failed to show that there is a disputed issue of material fact on any
of the defenses raised.
B. Defendant's Motion for Summary Judgment
Defendant has also moved for summary judgment in his favor, and so the court addresses
whether Defendant shown that there is no genuine issue of material fact and he is entitled to
judgment irrespective of administrative res judicata.
Defendant argues that the $150 appeal fee violates both the due process and equal
protection clauses of the both the Maine and United States Constitutions. As stated above, issues
regarding the City's appeal fee are not ripe for review by this court because Defendant did not
attempt to appeal the CEO's Notice. The court simply cannot find that he was denied due process
or discriminated against on account of indigency; for all the court knows, the fee would have been
waived had he asked or tried to file an appeal. Defendant is not entitled to summary judgment
with regard to his due process or equal protection arguments.
Defendant next argues that the City "cannot overcome [the] legal burdens placed on it" by
the United States Supreme Court in Citizens United v. FEC, 558 U.S. 310 (2010), a First
Amendment case regarding limits on corporate political speech. In any First Amendment case, a
court must first identify the category of speech at issue and determine what level of scrutiny to
apply to the alleged infringement. See e.g. Janus v. AFSCME, 585 U.S._ (2018); Cent. Hudson
Gas & Elec. Corp. v. Public Serv. Conun'n,447 U.S. 557 (1980); Chicago Police Dept. v. Mosley,
408 U.S. 92 ( 1972). Here, Defendant argues the City is imposing a fine for debris on his lawn that
was used to construct political "art" and thus strict scrutiny applies. Strict scrutiny requires the
Page 7 of 10 government to show that a law is narrowly tailored to achieve a compelling government interest.
Texas v . .lohnson,491 U.S. 397 (1989).
Defendant, however, has failed to raise a genuine issue of material fact on his First
Amendment claim. The only evidence put forth by Defendant is his own affidavit wherein he
claims that the yard debris is political speech. (DSMF 1 4; Verrinder Aff. 12.) Defendant has not
included any record citation or other evidence showing the conditions of his yard at the time the
Notice or Land Use Citation was issued, nor has he included any evidence suggesting how the
debris in his yard was deliberately, as opposed to haphazardly, situated. His bare assertion is
insufficient to establish a prima facie case under the First Amendment and he is not entitled to
summary judgment on such grounds.
Defendant next argues that this court lacks jurisdiction because: (1) the City failed to serve
the Notice pursuant to the Lewiston Zoning and Land Use Code; (2) an unsigned Notice was filed
along with this Land Use Citation; and (3) CEO Richard lacks certification to sign this Land Use
Citation.
As previously stated, Defendant was properly served with the Notice pursuant to the
applicable City Code. As for the unsigned Notice attached as an exhibit to the Complaint, the
official or signed Notice of Violation issued by a CEO is not required to be attached to the Land
Use Citation and Complaint. See 30-A M.R.S. § 4452; M. R. Civ. P. 80K. Moreover, the
Complaint was properly signed by counsel pursuant to M. R. Civ. P. ll(a).
The final part of Defendant's argument regarding this court's jurisdiction is that CEO
Richard, who issued the Notice and signed as "complainant" on the Land Use Citation and
Page 8 of 10 Complaint, is not an attorney and not otherwise authorized to file it. 30-A M.R.S. § 4452(1)2;
M.R. Civ. P. 80K(h). Defendant's argument misconstrues the law and facts. The complaint was
signed by the City's attorney, and the City is being represented in the case by an attorney, not by
the CEO.
Nothing alleged by Defendant deprived this court of jurisdiction, and Defendant is not
entitled to summary judgment on those grounds.
Defendant next argues that his due process rights were violated because the Land Use
Citation and Complaint failed to comply with the requirements of Rule 80K of the Maine Rules of
Civil Procedure. Rule 80K requires that if a Land Use Citation alleges a municipal ordinance
violation, "a statement describing the place where the complete text may be obtained[] shall be
attached to the original Land Use Citation[.]" M. R. Civ. P. 80K(c)(l). Here, the City attached to
the Complaint a certification from Kelly Brooks, the Deputy City Clerk, properly attesting to the
copies of the City Ordinances attached to the complaint. She specifically stated that she is the
custodian of the City Ordinances, and her address and location are listed on the certification.
Assuming Rule 80K requires the Land Use Citation to be accompanied by a description of the
physical location of the ordinances at issue, the Brooks certification attached to the original Land
Use Citation complies and does just that. Defendant is not entitled to summary judgment on that
basis.
Finally, Defendant argues his procedural due process rights were violated because the City
did not allow him the full ten days to appeal the original Notice. This argument is without merit.
2"A municipal official, such as a code enforcement officer, ... who is designated by ordinance or law with the responsibility to enforce a particular law or ordinance ... may ... represent the municipality in District Court in the prosecution of alleged violations of ordinances or laws[.]" 30-A M.R.S. § 4452(l)(C).
Page 9 of 10 The Defendant failed to make any attempt to appeal the Notice; his appeal was not disallowed as
untimely or in any way.
For all of the reasons set forth in this section, Defendant has not shown he is entitled to
summary judgment in his favor, and his Motion is denied.
IV. Conclusion
There is no genuine issue of material fact regarding the Defendant's liability on this Land
Use Citation and Complaint by operation of administrative resjudicata, and Defendant has failed
to allege facts sufficient to establish any defense to the City's claim. Therefore, the City is entitled
to judgment in its favor on this Land Use Citation and Complaint as a matter of law. The City
asks this court to (1) impose a civil penalty on Defendant for his violations in the amount of
$39,000 and (2) award the City its attorney's fees and costs of $19,404, plus pre- and post-
judgment interest. The Court shall set this matter for hearing, limited to the remedies sought, on
the next available date.
The entry is: Defendant's Motion for Summary Judgment is DENIED. Plaintiff's
Motion for Summary Judgment is GRANTED IN PART. Summary Judgment is entered in
Plaintiff's favor on the Complaint. The clerk shall set a hearing on the penalty, costs, fees and/or
other remedy to be imposed. This order may be incorporated on the docket of the case by reference
pursuant to Me. R. Civ. P. 79(a).
1 /,___i_cf_/_M Dated: _ ______, __'2-_(_ I I Valerie Stanfill Justice, Maine Superior Court
Page 10 of 10 STA TE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss DOCKET NO. CV-18-128
City of Lewiston, ) ) Plaintiff, ) ) V. ) Order on Pending Motions ) William Verrinder, ) ) Defendant. )
On August 14, 2020, Plaintiff moved for summary judgment. Defendant filed a timely
opposition on September 3, 2020, and filed his own motion for summary judgment on September
4, 2020. Plaintiff filed a timely opposition to Defendant's motion on September 28, 2020.
Before the Court are a number of other pending replies, motions and letters. Upon consideration,
the court orders as follows:
1. Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary
Judgment was filed September 21, 2020, more than 14 days after Defendant's
opposition, and is therefore untimely. M.R. Civ. P. 7(e).
2. Defendant's Response to Plaintiff's reply statement of material facts was filed
September 28, 2020, also untimely and mooted by the fact that Plaintiff's Reply was
untimely.
3. On September 29, 2020, Defendant moved to file a Sur-reply to Plaintiff's Reply in
support of its Motion for Summary Judgment. That motion is denied as sur-replies are
not contemplated by M.R. Civ. P. 7. 4. On October 13, 2020, Defendant moved to strike a majority of the Exhibits attached
to Plaintiff's Motion for Summary Judgment. That motion is untimely pursuant to
M.R. Civ. P. 7(c) and is denied.
5. Also on October 13, 2020 Defendant filed a motion to hold Plaintiff, CEO Richard,
and Attorney Carey "in criminal contempt of court and contempt of court."
Defendant has not followed any of the procedures for moving for remedial contempt
as set forth in M.R. Civ. P. 66(b). The court also specifically notes that the pleading
does not state a sufficient basis for this court to make a request for prosecution under
M.R. Civ. P. 66(c)(2)(B) for punitive (criminal) contempt. Therefore, the motion for
contempt is denied without hearing.
6. The rulings on the pending motions for summary judgment are contained in a
separate order.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to
Maine Rule of Civil Procedure 79(a).
Dated: _ _ 1_/._4-+-/i_o_~I I ( ! flJ?i= Valerie Stanfil Justice, Maine Superior Court ST ATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss CIVIL ACTION DOCKET NO. CV-18-128 ~
CITY OF LEWISTON, )
Plaintiff, ) ) MAR- --J. r''H\lfi 1,11,.,Ro 1-. '?O ..::. PM1:07 C;j !Dt:oroo • !i I1 ....<..,, '-r... • ;, cru l!J'l ) uw-e~ ~
V. ) Order on Pending Motions I WILLIAM VERRINDER, ) ) I ) Defendant. )
This land use complaint was filed on December 11, 2017 in the Lewiston District
court. It alleges that Defendant Verrinder violated Lewiston's Code of Ordinances and
failed to remedy the violations after notice was given. Specifically, Plaintiff alleges that
on November 8, 2017, the Lewiston Code Enforcement Officer (CEO) went to Defendant's
property at 65 Jill Street and observed numerous violations of the Lewiston Code of
Ordinances. He thereafter issued Defendant a Notice of Violation (NOV) which notified
Defendant he was in violation regarding trash and construction demolition debris
throughout the premises as well as damage to the front stairs. The NOV ordered
remediation. According to the Complaint, Plaintiff sent the NOV to Defendant via regular
mail and it was not returned to Plaintiff as undeliverable. Defendant did not remedy the
violations as of November 20, 2017, and did not appeal the NOV. Plaintiff seeks injunctive
relief, award of attorneys' fees, and award of civil penalties.
Defendant tried unsuccessfully to remove the case to the U.S. District Court for the
District of Maine, and then on September 24, 2018, Defendant removed the matter to this
court for a jury trial. (
On June 12, 2019, Plaintiff filed three motions: (1) a motion in limine seeking to
limit the scope of the trial due to res judicata; (2) a motion to strike Defendant's jury
demand; and (3) a motion to remand this matter back to Lewiston District Court. On
August 16, 20 I 9, Defendant opposed the motions and simultaneously moved to enlarge the
time to respond pursuant to M.R. Civ. P. 6(b). Plaintiff has opposed that request.
"When a party moves to enlarge the time to complete an act after the deadline to
complete the act has passed, that party must show that the failure to act was the result of
excusable neglect." Gregory v. City of Calais, 2001 ME 82, ~ 6, 771 A.2d 383. "[S]elf-
represented parties are subject to the same standards as represented parties, and they are
not excused from complying with procedural rules." Dyer Goodall & Federle, LLC v.
Proctor, 2007 ME 145, i 18,935 A.2d 1123. "Excusable neglect will be found only when
there are extraordinary circumstances that work an injustice." Id.
When Plaintiff filed its motions on June 12, 2019, the filings stated that Defendant
was required to file any opposition within 21 days as required by Rule 7. M.R. Civ. P.
7(b)(l)(A); 7(c). Despite the rules and the notice, Defendant did not respond to the motions
for over two months. Defendant states that his responses were late because "a severely
debilitating and grave life-long illness prevented [him] from learning of the motions and
filing a response." (Def.'s Opp'n to Pl.'s Mots. 1.) He also states that he learned about the
motions when he went to the court house on August 2, 2019. Defendant did not file
anything until August 16, 2019. Defendant has not provided any evidence of his "severely
debilitating and grave life-long illness" nor provided an explanation as to why he waited at
least two additional weeks to file a motion for enlargement of time to respond to plaintiff's
2 motions. See Proctor, 2007 ME 145, ! 21,935 A.2d 1123 (finding that the tardy party had
"presented no evidence of extraordinary circumstances" and that the delay was not minimal
because it "was filed over a month past the deadline"). Under the circumstances, Defendant
has not shown "excusable neglect" required for enlargement of time, and therefore his
motion for enlargement of time is denied and his response will not be considered.
Nonetheless, Plaintiff's motions will also be denied. Plaintiff's motions are all
based on the premise that res judicata excludes issues or claims that Defendant could have
raised in an appeal to the Lewiston Zoning Board of Appeals. Plaintiff also alleges that
the violations have now been cleaned up, essentially leaving only penalties and attorney's
fees for decision, issues not triable before a jury.
Plaintiff has moved in limine to limit the issues at trial, arguing that res judicata
prevents the relitigation of many issues Defendant raises. "Principles of res judicata apply
to administrative proceedings on both the state and municipal levels." Freeport v.
Greenlaw, 602 A.2d 1156, 1160 (Me. 1992). In order to apply res judicata to a case where
an individual has received an NOV and subsequently failed to appeal to the city's Board
of Appeals, "an order to refrain from taking or continuing certain action because it violates
a zoning ordinance should refer to the provisions of the ordinance allegedly being violated,
inform the violator of the right to dispute the order and how that right is exercised by
appeal, and specify the consequences of the failure to appeal". Id. at 1161. ,,
However, although Plaintiff alleges that all the requirements for res judicata were
met when Defendant failed to appeal the NOV, those facts have not yet been determined.
Indeed, Defendant entered a general denial in the district court as to all facts. Plaintiff did
3 not file a motion for summary judgment, supported as required under M.R. Civ. P. 56.
Rather, Plaintiff is simply alleging at this stage that the requirements for the application of
res judicata are met. The contents of the NOV and whether Defendant appealed the NOV
to the Lewiston Zoning Board of Appeals are questions of fact. If Plaintiff is successful at
trial in establishing the prerequisites for the application of res judicata, then it will be
applied. The motion in limine is therefore denied at this stage.
For these reasons, the motions to strike the jury demand and for remand to the
Lewiston District Court are also denied. "[A] defendant ... who is charged with a violation
of land use laws and ordinances in the District Court pursuant to Rule SOK may avail
himself of his constitutional right to a jury trial by a removal to the Superior Court for a
jury trial pursuant to Rule 76C." City of Biddeford v. Holland, 2005 ME 121,, 14, 886
A.2d 1281. Defendant Verrinder properly removed the case for jury trial. Although
ultimately there may be no jury issues, that has not yet been established, and so Plaintiff's
motions to strike the jury demand and for remand are denied.
In summary, therefore, the entry is: Defendant's motion for enlargement of time and
Plaintiff's motions in limine, for remand and to strike the jury demand are all denied. This
order may be incorporated on the docket of the case by reference pursuant to Me. R. Civ. P. 79(a).
Dated:_9'_/l_t_,_/_.;-;_0_?-0 _ __ I Valerie Stanfill Justice, Maine Superior Court
4 STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss CIVIL ACTION G._~ OC DOCKET NO. CV-18-128 f~ ....,b C. V, Z'.0 - I:).. CITY OF AUBURN,
Plaintiff,
V. Order on Motion to Remand
SEVENTY-SIX SPRING, LLC,
Defendant.
This land use complaint was filed on November 22, 2019 in the Lewiston District court
pursuant to M.R. Civ. P. 80K. It alleges that Defendant violated various life safety provisions of
Auburn's Lewiston's Code of Ordinances in the multi-unit prope1ty and has failed to remedy the
violations after notices were given. Plaintiff seeks to have Defendants remove the occupants,
abate the violations, pay civil penalties and pay attorneys' fees and costs. Pursuant to M.R. Civ.
P. 76C, Defendant removed the matter to Superior Court on the date set for the answer to the
complaint. Plaintiff has now moved to remand the matter to District Court, arguing the removal
was improvident as there is not a right to a jury trial. M.R. Civ. P. 76C(c).
"[A] defendant ... who is charged with a violation of land use laws and ordinances in the
District Court pursuant to Rule 80K may avail himself of his constitutional right to a jury trial by
a removal to the Superior Court for a jury trial pursuant to Rule 76C." City of Biddeford v.
Holland, 2005 ME 121,, 14,886 A.2d 1281. If there is not a right to a jury trial, however, the
court will remand the matter to the district court. The question in this case is whether Defendant
has a right to a jury trial.
The Constitution of Maine guarantees that "in all civil suits, and in all controversies
concerning property, the parties shall have a right to a trial by jury, except in cases where it has
1 heretofore been otherwise practiced .... " Me. Const. art. I.§ 20. The Law Court has been clear
that there is a right to a jury trial on all legal claims, but not on equitable claims. E.g., Bowden v.
Grindle, 651 A.2d 347,349 (Me. 1994); Town of Falmouth v. Long, 578 A.2d 1168, 1171 (Me.
1990). The determination depends on the type of relief requested in the claim. Bowden, 651
A.2d at 350. As noted above, Plaintiff seeks injunctive relief coupled with a claim for civil
penalties, fees and costs.
In Long, the Law Court stated as follows:
We have consistently held that the determination of remedies for zoning violations is an exercise of the court's equitable powers. See Town of Shapleigh v. Shikles, 427 A.2d 460,464 (Me. 1981). The mere inclusion of an ancillary request for a civil penalty does not convert an equitable proceeding into an action at law .. . . The Town in the instant case does not 11 exclusively seek a money recovery." Instead, it primarily pursues injunctive relief and requests the imposition of a civil penalty only as a secondary measure. This distinguishes the case at bar from DePaolo and leads us to conclude that the comt properly considered this enforcement action as equitable in nature and therefore committed no error in denying Long ajury trial on the civil penalty issue.
Long, 578 A.2d at 1171-72. On the other hand, in Holland, the claim for injunctive relief had
already been determined, and the only issues before the court related to penalties and fees. In
that case, the Law Court held that there was a right to a jury trial. Holland, 2005 ME 121, ! 14.
The question, then turns on whether a claim for injunctive relief coupled with the request
for penalties permits removal for a jury trial.
To determine whether a claim is legal or equitable, we consider the basic nature of the issue presented and the remedy sought by the plaintiff. If the damages sought are not incidental to equitable relief but in the alternative as full compensation for the injury alleged plaintiffs are entitled to a jury trial.
Avery v. Whatley, 670 A.2d 922, 924-25 (Me. 1996), citing Cyr v. Cote, 396 A.2d 1013, 1019
(Me. 1979) (emphasis added). Because the civil penalties and attorney's fees sought here are
not alternative and "full compensation for the injury alleged" but rather are ancillary to the
2 primary remedy sought, this case must be considered equitable in nature. Therefore, there is no
right to a jury trial and removal was improvidently granted.
For these reasons, Plaintiff's motion to remand is granted; the case is remanded to
Lewiston District Court forthwith. This order may be incorporated on the docket of the case by
reference pursuant to Me. R. Civ. P. 79(a).
Dated: _ _3-'"/_t_/....J-/c.._)'{)_..:__:)-0 I __ '81. F Valerie Stm11 Justice, Maine Superior Court