Kelley v. Rancourt

• Court: Superior Court of Maine
• Decided: November 10, 2016
• Docket: YORcv-16-0149
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT YORK, SS. Civil Action Docket No. CV-16-0149

PETER and MARCIA KELLEY,

Plaintiffs,

v.

DUANE E. RANCOURT, TRUSTEE OF LINDBERGH'S LANDING TRUST, ORDER BARBARA A. BOUTET, TRUSTEE OF OCEANSIDE LOUNGE TRUST,

HFY ENTERPRISES, INC. d/b/a OCEANSIDE GRILLE AT THE BRUNSWICK, and

THOMAS LaCASSE,

Defendants,

Plaintiffs Peter and Marcia Kelly own a residential condominium unit in Old

Orchard Beach, Maine. Their condominium, unit# 210, is on the second floor of The

Brunswick, an establishment on West Grand Avenue with both residential and

commercial units. Defendants are owners or lessees of two commerical units, units A

and B, which are operated as an inside and outside patio, restaurant, and bar.

Plaintiffs' complaint asserts common law and statutory nuisance claims and

seeks both injunctive relief and compensatory damages. Defendants HFY Enterprises,

Inc. and Thomas LaCasse have moved to dismiss pursuant to M.R. Civ. P. 12(b)(6),

contending that the complaint does not adequately plead a claim for common law

nuisance and that 17 M.R.S. § 2701; which is the basis for the statutory clain1, does not

apply to the nature of the nuisance alleged here. For the reasons recited below, the

motion to dismiss is denied~

1 Maine is a notice pleading state. Johnston v. Me. Energy Recovery Co., Ltd. P'ship,

2010 ME 52, 9I 16, 997 A.2d 741. A complaint need only contain "a short and plain

statement of the claim showing that the pleader is entitled to relief." M.R. Civ. P.

8(a)(l). The court examines "the complaint in the light most favorable to the plaintiff to

ascertain whether the complaint alleges the elements of a cause of action or facts

entitling the plaintiff to relief on some legal theory." Washington County, 529 A.2d 1357,

1359 (Me. 1987). The complaint easily meets this standard. The elements of a private

nuisance cause of action at common law are plainly, and adequately, set forth. See

Johnston, 2010 ME 52, 9I 15, 997 A.2d 741.

With regard to the statutory nuisance claim, section 2701 provides: "Any person

injured in his comfort, property or the enjoyment of his estate by a common and public

or a private nuisance may maintain against the offender a civil action for his damages,

unless otherwise specially provided." Although Defendants cite a 1978 Law Court

decision, Johnson v. Whitten, 384 A.2d 698 (Me. 1978), to support a limited construction

of 17 M .R.S. § 2701, more recent authority clearly holds that this statute "provides a

statutory cause of action for damages when either the common law elements or

statutory elements of nuisance are met." Joh1"{ston, 2010 ME 52, 9I 12, 997 A.2d 741.

Accordingly, the motion to dismiss is DENIED.

SO ORDERED

The clerk may incorporate this order upon the docket by reference pu7&nt to Rule 79(a) of the Maine Rules of Civil Procedure. //f DATE: November 10, 2016 j - /I I ~a~L~~~~~ ,~ ./~.f.....-______ Hon. Wayne R.'bo9l1a Zf Ju ticl!, Superior rt

2 CV-16-149

ATTORNEYS FOR PLAINTIFFS: WILLIAM CHILDS CHILDS RUNDLETT FIFIELD SHUMWAY LLC 350 E BRIDGE STREET WESTBROOK ME 04092

ERIC COTE PO BOX 350 SACO ME 04072

ATTORNEYS FOR DEFENDANT BARBARA A BOUTET. TRUSTEE OF OCEANSIDE LOUNGE TRUST: DAVID ORDWAY SHAHEEN & GORDON PA PO BOX 1179 SACO ME 04072

ATTORNEYS FOR DEFENDA TS HFY ENTERPRISES INC & THOMA ACASSE: GUY D LORANGER DANIELLE CAMPBELL LAW OFFICE OF GUY D LORANGER ONE GRANNY SMITH COURT SUITE 3 OLD ORCHARD BEACH ME 04064