Orser v. Chase

• Court: Superior Court of Maine
• Decided: May 28, 2004
• Docket: CUMcv-03-533
• Status: Unpublished

Opinion

STATE OF MAINE Ce SUPERIOR COURT CUMBERLAND, ss. ee 8 CIVIL ACTION ps OE DOCKET NO. CV08, 033

AEG OCH PS Ae a ELIZABETH AND JAMES ORSER and SIDNEY L. STRATTON, Plaintiffs Vv. ORDER SUSAN CHASE and SCOTT VERRILL, Defendants, : saat poe f ; . fee TOWN OF CUMBERLAND, jun g 2008 Party-in-Interest. .

Susan Chase and Scott Verrill (collectively the Defendants) move this court to dismiss this action pursuant to MLR. Civ. P. 12(b)(5) and 12(b)(1). The Plaintiffs Elizabeth and James Orser (collectively the Orsers) oppose this motion.

This case deals with a dispute over the Defendants’ right to build a driveway over a parcel of land known as the Bruce Hill Road Extension.

The Defendants argue that the court should dismiss the Orsers’ claims because process was insufficient under Rule 12(b)(5). Here, a motion for a temporary restraining order was filed on October 1, 2003. The next day, the Defendants appeared through their counsel. The Defendants’ counsel were provided with the complaint and other pleadings, and were ordered to complete their filings in opposition to the TRO by October 6, 2003. Negotiations between the parties continued throughout the next several months. On January 22, 2004, this court’s clerk telephoned the plaintiffs’

counsel, who responded with a letter dated January 22, 2004, explaining the plaintiffs’ position regarding service. On January 29, 2004, Defendants’ attorney signed an acceptance of service which was filed on February 2, 2004.

“The purpose of timely service is to provide a court with assurance that the party being served has adequate notice and will not be prejudiced by having to defend a stale

claim.” Town of Ogunquit v. Dep’t of Pub. Safety, 2001 ME 47, 911, 767 A.2d 291, 294.

“A defect in service of process does not automatically create the type of prejudice

requiring dismissal.” Id. (quoting Jackson v. Borkowski, 627 A.2d 1010, 1012-13 (Me.

1993)). In no way were the Defendants prejudiced or caught by surprise, because they were involved in the entire negotiation process and were well familiar with the Plaintiffs’ claims. Therefore, the Defendants’ motion to dismiss for insufficiency of service of process is denied.

The Defendants also argue that the Orsers do not have standing. “To have standing, a party must have suffered an injury that is distinct from any harm suffered

by the public-at-large.” Delogu v. City of Portland, 2004 ME 18, n.1,__ A.2d __; see also

Madore v. Maine Land Use Regulation Comm’n, 1998 ME 178, 98, 715 A.2d 157, 160.

“{S]tariding is a threshold issue bearing on the court’s power to adjudicate disputes.”

Franklin Property Trust v. Foresite, Inc., 438 A.2d 218, 220 (Me. 1981).

“The court has discretion to determine what evidence is necessary to resolve the disputed facts” regarding a finding of personal jurisdiction or justiciability. Dorf v.

Complastik Corp., 1999 ME 133, 415, 735 A.2d 984, 989. This court will look to

affidavits, pleadings, or other documentary evidence to determine whether a party has standing. Id. If necessary, the court could hold a hearing to seek oral testimony. Id.

Cf., Unisys Corp. v. Dep't of Labor, 600 A.2d 1019, 1023 (Conn. 1991) (stating that when

jurisdictional facts are in dispute, the court should hold a hearing). The plaintiff cannot rest on allegations but must set forth facts, in affidavits or otherwise, demonstrating

standing. See Libertad v. Welch, 53 F.3d 428, 436 (1st Cir. 1995).

On the record presented, it is clear that the Orsers own property abutting the Bruce Hill Road Extension. It is the rights in the Bruce Hill Road Extension which are at issue in this case. At this preliminary stage of the proceedings, the court should resist the invitation of the parties to resolve the dispute on the merits by determining what rights the Orsers have in the disputed portion of the road.

The Orsers have demonstrated that they have standing because they have set forth sufficient facts in their pleadings and other documents to demonstrate that the harm that they claim to have suffered is distinct from the harm suffered by the public at

large.

Therefore, the entry :

Defendants’ motion to dismiss is DENIED.

Dated:May 28, 2004

Obert E. Crowley Justice, Superior Court ELIZABETH ORSER - PLAINTIFF

Attorney for: ELIZABETH ORSER JOHN B SHUMANDINE

MURRAY PLUMB & MURRAY

75 PEARL STREET

PO BOX 9785 . PORTLAND ME 04104-5085

Attorney for: ELIZABETH ORSER JOHN BANNON

PO BOX 9785

PORTLAND ME 04104-5085

Attorney for: ELIZABETH ORSER MICHAEL TRAISTER

JAMES ORSER - PLAINTIFF

Attorney for: JAMES ORSER JOHN B SHUMANDINE

Attorney for: JAMES ORSER JOHN BANNON

Attorney for: JAMES ORSER MICHAEL TRAISTER

SIDNEY STRATTON - PLAINTIFF Vs SUSAN CHASE - DEFENDANT

SUPERIOR COURT CUMBERLAND, ss.

Docket No PORSC-CV-2003-00533

DOCKET RECORD

Printed on:

06/01/2004 PORSC-CV-2003-00533 DOCKET RECORD Attorney for: SUSAN CHASE JEFFREY PETERS PRETI FLAHERTY BELIVEAU PACHIOS & HALEY THIRTY FRONT STREET PO BOX 665 BATH ME 04530-0665

Attorney for: SUSAN CHASE

JONATHAN G MERMIN :

PRETI FLAHERTY BELIVEAU PACHIOS & HALEY ONE CITY CENTER

PO BOX 9546

PORTLAND ME 04112-9546

SCOTT VERRILL - DEFENDANT

Attorney for: SCOTT VERRILL

JEFFREY PETERS

PRETI FLAHERTY BELIVEAU PACHIOS & HALEY THIRTY FRONT STREET

PO BOX 665

BATH ME 04530-0665

JONATHAN G MERMIN

TOWN OF CUMBERLAND - PARTIES IN INTEREST

Attorney for: TOWN OF CUMBERLAND KENNETH COLE

JENSEN BAIRD ET AL

10 FREE STREET

PO BOX 4510

PORTLAND ME 04112

Attorney for: TOWN OF CUMBERLAND NATALIE BURNS

Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT Filing Date: 10/01/2003

Docket Events: 10/01/2003 FILING DOCUMENT - COMPLAINT FILED ON 10/01/2003 VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES, TITLE TO REAL ESTATE INVOLVED WITH EXHIBITS A,B AND C, FILED. (ST) Page 2 of 8 Printed on: 06/01/2004