MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 7 Docket: Cum-18-499 Argued: September 25, 2019 Decided: January 21, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN*, JABAR, and HUMPHREY, JJ.**
TOWN OF GORHAM
v.
SUSAN DUCHAINE et al.
JABAR, J.
[¶1] This matter arises from a land use dispute between the Town of
Gorham (the “Town”) and Gorham property owners Susan Duchaine and her
company, Design Dwellings, Inc. (hereinafter “DDI”). DDI appeals from a
District Court (Portland, J. French, J.) order granting the Town’s motion to
enforce a consent decree entered earlier in the land-use dispute. Because there
is not a proper record to support the trial court’s findings, we vacate the order
and remand for further proceedings.
* Although not available at oral argument, Justice Gorman participated in the development of this opinion. See M.R. App. P. 12(a)(2) (“A qualified justice may participate in a decision even though not present at oral argument.”). ** Although Justice Hjelm participated in the appeal, he retired before this opinion was certified. 2
I. BACKGROUND
[¶2] On June 1, 2017, the Town filed a land-use-enforcement claim in the
District Court pursuant to Maine Rule of Civil Procedure 80K. The citation and
complaint charged DDI with multiple violations of the Gorham Land Use and
Development Code. DDI denied the allegations.
[¶3] In February 2018, the parties settled the dispute by agreeing to
terms set forth in a consent decree.1 The court (Powers, J.) ordered the consent
decree to be entered as a judgment in the case on March 1, 2018. As part of the
consent decree, a compliance plan listed nine items that DDI was required to
complete by specified deadlines. The decree provided that upon completion of
the nine items, DDI “may request the [Town’s code enforcement officer] to issue
a permanent Certificate of Occupancy for the Property.” Pursuant to the decree,
DDI was required to pay a $2,000 civil penalty and the Town’s costs, as
authorized by 30-A M.R.S. § 4452(3) (2018). The decree included a $10,000
penalty that would be suspended, contingent on DDI’s completion of the
compliance plan items, and prospective penalties in the amount of $100 per day
to be imposed in the event DDI failed to comply.
Although the parties refer to the consent decree as a “consent order,” we use the interchangeable 1
term “consent decree,” which is the term more commonly found in reported decisions. See Pike Indus., Inc. v. City of Westbrook, 2012 ME 78, ¶ 9 n.1, 45 A.3d 707. 3
[¶4] On October 4, 2018, the Town filed a motion to enforce the consent
decree, alleging that DDI failed to comply with the plan and was liable for the
full $10,000 suspended penalty, $45,000 in per-day penalties, and the Town’s
costs of enforcement. In support of the allegations, the Town attached affidavits
of its engineer and code enforcement officer (CEO) to its motion. In its
opposition filed on November 2, 2018, DDI disputed the Town’s allegations of
material noncompliance, contending that it had complied with all items within
its control. The Town filed a reply to DDI’s opposition on November 8, 2018.
[¶5] Seven days later, on November 15, 2018, without holding a hearing
or informing the parties how it would decide the motion, the court (J. French, J.)
granted the Town’s motion to enforce the consent decree and ordered DDI to
(1) complete the remaining items in the compliance plan within 30 days;
(2) pay the full suspended civil penalty ($10,000); (3) pay per-day penalties for
the total 450 violation days alleged by the Town ($45,000); and (4) pay the
Town’s costs incurred in enforcing the consent decree. The court made no
express findings of fact in support of its order and provided no rationale for its
calculation of penalties and fees in excess of $55,000. Neither party filed a
motion for findings of fact. See M.R. Civ. P. 52. DDI timely appealed. M.R.
App. P. 2B(c). 4
II. DISCUSSION
[¶6] DDI argues that the court order is not supported by competent
evidence in the record.2 When the judgment reviewed on appeal contains no
findings of fact, and there is no motion for findings of fact, we will assume that
the trial court found for the prevailing party on all facts necessary to support
the outcome to the extent that they are supported in the record. Coastal
Ventures v. Alsham Plaza, LLC, 2010 ME 63, ¶ 19, 1 A.3d 416. However, when
there is no competent evidence to support the trial court’s decision, vacating
the order is appropriate. Lewisohn v. State, 433 A.2d 351, 354 (Me. 1981).
[¶7] We must determine whether there is competent evidence in the
record to support the trial court’s conclusion that DDI failed to complete five of
the nine items required by the compliance plan; that DDI’s failure to comply
subjected it to the suspended civil penalty of $10,000; that there were 450
violation days when the Town filed its motion on October 4, 2018; that DDI was
required to pay $45,000 in $100-per-day penalties for the 450 violation days;
2Although DDI asserts that the District Court should have followed the contempt procedures set forth in Rule 66 of the Maine Rules of Civil Procedure, the Town did not file a motion for contempt. Even if the Town had filed a Rule 66 motion for contempt, DDI could not have been in contempt because DDI did not have an existing obligation to pay the Town the prospective penalties under the consent decree. That obligation could only arise after the District Court had found that DDI did not timely comply, therefore triggering the imposition of the penalties by operation of the consent decree’s terms. 5
and that DDI was responsible for the Town’s costs incurred in the enforcement
of the consent decree.
[¶8] The Town’s motion asked the trial court to enforce a consent decree
entered as a judgment by the court on March 1, 2018. The procedures for
enforcing a consent decree hinge on the language of the decree itself. When a
consent decree has allegedly been violated, the trial court has broad discretion
to fashion an appropriate remedy, but only in accordance with the terms of the
decree. Perez v. Danbury Hosp., 347 F.3d 419, 425-26 (2d Cir. 2003); see State
v. Shattuck, 2000 ME 38, ¶¶ 17-20, 747 A.2d 174. Contrary to the Town’s
argument that the court employed a “thorough procedural process” where
there was no disagreement as to the decree’s penalties, the calculation of
penalties necessitated a finding of noncompliance—a factual issue that the
parties disputed. Even if the amount of the penalties had been definite, the
Town would still need to present evidence that DDI failed to comply with the
order.
[¶9] The Town asked the trial court to determine that DDI was
noncompliant with the consent decree, thereby triggering imposition of the
prospective penalties described in the decree. To make that determination, the 6
court must rely on evidence presented at a hearing or, as anticipated by Maine
Rule of Civil Procedure 43(e), through affidavits. Rule 43(e) states:
When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 7 Docket: Cum-18-499 Argued: September 25, 2019 Decided: January 21, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN*, JABAR, and HUMPHREY, JJ.**
TOWN OF GORHAM
v.
SUSAN DUCHAINE et al.
JABAR, J.
[¶1] This matter arises from a land use dispute between the Town of
Gorham (the “Town”) and Gorham property owners Susan Duchaine and her
company, Design Dwellings, Inc. (hereinafter “DDI”). DDI appeals from a
District Court (Portland, J. French, J.) order granting the Town’s motion to
enforce a consent decree entered earlier in the land-use dispute. Because there
is not a proper record to support the trial court’s findings, we vacate the order
and remand for further proceedings.
* Although not available at oral argument, Justice Gorman participated in the development of this opinion. See M.R. App. P. 12(a)(2) (“A qualified justice may participate in a decision even though not present at oral argument.”). ** Although Justice Hjelm participated in the appeal, he retired before this opinion was certified. 2
I. BACKGROUND
[¶2] On June 1, 2017, the Town filed a land-use-enforcement claim in the
District Court pursuant to Maine Rule of Civil Procedure 80K. The citation and
complaint charged DDI with multiple violations of the Gorham Land Use and
Development Code. DDI denied the allegations.
[¶3] In February 2018, the parties settled the dispute by agreeing to
terms set forth in a consent decree.1 The court (Powers, J.) ordered the consent
decree to be entered as a judgment in the case on March 1, 2018. As part of the
consent decree, a compliance plan listed nine items that DDI was required to
complete by specified deadlines. The decree provided that upon completion of
the nine items, DDI “may request the [Town’s code enforcement officer] to issue
a permanent Certificate of Occupancy for the Property.” Pursuant to the decree,
DDI was required to pay a $2,000 civil penalty and the Town’s costs, as
authorized by 30-A M.R.S. § 4452(3) (2018). The decree included a $10,000
penalty that would be suspended, contingent on DDI’s completion of the
compliance plan items, and prospective penalties in the amount of $100 per day
to be imposed in the event DDI failed to comply.
Although the parties refer to the consent decree as a “consent order,” we use the interchangeable 1
term “consent decree,” which is the term more commonly found in reported decisions. See Pike Indus., Inc. v. City of Westbrook, 2012 ME 78, ¶ 9 n.1, 45 A.3d 707. 3
[¶4] On October 4, 2018, the Town filed a motion to enforce the consent
decree, alleging that DDI failed to comply with the plan and was liable for the
full $10,000 suspended penalty, $45,000 in per-day penalties, and the Town’s
costs of enforcement. In support of the allegations, the Town attached affidavits
of its engineer and code enforcement officer (CEO) to its motion. In its
opposition filed on November 2, 2018, DDI disputed the Town’s allegations of
material noncompliance, contending that it had complied with all items within
its control. The Town filed a reply to DDI’s opposition on November 8, 2018.
[¶5] Seven days later, on November 15, 2018, without holding a hearing
or informing the parties how it would decide the motion, the court (J. French, J.)
granted the Town’s motion to enforce the consent decree and ordered DDI to
(1) complete the remaining items in the compliance plan within 30 days;
(2) pay the full suspended civil penalty ($10,000); (3) pay per-day penalties for
the total 450 violation days alleged by the Town ($45,000); and (4) pay the
Town’s costs incurred in enforcing the consent decree. The court made no
express findings of fact in support of its order and provided no rationale for its
calculation of penalties and fees in excess of $55,000. Neither party filed a
motion for findings of fact. See M.R. Civ. P. 52. DDI timely appealed. M.R.
App. P. 2B(c). 4
II. DISCUSSION
[¶6] DDI argues that the court order is not supported by competent
evidence in the record.2 When the judgment reviewed on appeal contains no
findings of fact, and there is no motion for findings of fact, we will assume that
the trial court found for the prevailing party on all facts necessary to support
the outcome to the extent that they are supported in the record. Coastal
Ventures v. Alsham Plaza, LLC, 2010 ME 63, ¶ 19, 1 A.3d 416. However, when
there is no competent evidence to support the trial court’s decision, vacating
the order is appropriate. Lewisohn v. State, 433 A.2d 351, 354 (Me. 1981).
[¶7] We must determine whether there is competent evidence in the
record to support the trial court’s conclusion that DDI failed to complete five of
the nine items required by the compliance plan; that DDI’s failure to comply
subjected it to the suspended civil penalty of $10,000; that there were 450
violation days when the Town filed its motion on October 4, 2018; that DDI was
required to pay $45,000 in $100-per-day penalties for the 450 violation days;
2Although DDI asserts that the District Court should have followed the contempt procedures set forth in Rule 66 of the Maine Rules of Civil Procedure, the Town did not file a motion for contempt. Even if the Town had filed a Rule 66 motion for contempt, DDI could not have been in contempt because DDI did not have an existing obligation to pay the Town the prospective penalties under the consent decree. That obligation could only arise after the District Court had found that DDI did not timely comply, therefore triggering the imposition of the penalties by operation of the consent decree’s terms. 5
and that DDI was responsible for the Town’s costs incurred in the enforcement
of the consent decree.
[¶8] The Town’s motion asked the trial court to enforce a consent decree
entered as a judgment by the court on March 1, 2018. The procedures for
enforcing a consent decree hinge on the language of the decree itself. When a
consent decree has allegedly been violated, the trial court has broad discretion
to fashion an appropriate remedy, but only in accordance with the terms of the
decree. Perez v. Danbury Hosp., 347 F.3d 419, 425-26 (2d Cir. 2003); see State
v. Shattuck, 2000 ME 38, ¶¶ 17-20, 747 A.2d 174. Contrary to the Town’s
argument that the court employed a “thorough procedural process” where
there was no disagreement as to the decree’s penalties, the calculation of
penalties necessitated a finding of noncompliance—a factual issue that the
parties disputed. Even if the amount of the penalties had been definite, the
Town would still need to present evidence that DDI failed to comply with the
order.
[¶9] The Town asked the trial court to determine that DDI was
noncompliant with the consent decree, thereby triggering imposition of the
prospective penalties described in the decree. To make that determination, the 6
court must rely on evidence presented at a hearing or, as anticipated by Maine
Rule of Civil Procedure 43(e), through affidavits. Rule 43(e) states:
When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
[¶10] When a party raises an issue in a motion reliant upon facts that
must be proven, it is the party’s burden to properly present evidence
establishing the claims made. The Town urges us to conclude that the court’s
implicit findings are supported by competent evidence in the record because
Rule 43(e) allows the trial court to hear matters on affidavits. We cannot
conclude that simply because the rule allows a court to hear a matter on
affidavits that the court did hear the matter on affidavits. The problem here is
that the trial court did not hold a hearing, did not inform the parties it would
decide the motion on affidavits, and did not give DDI an opportunity to submit
affidavits in opposition to the affidavits the Town submitted with its motion. In
Wiseman v. Wieschoff, 469 A.2d 847, 848 (Me. 1984), we stated that “[i]f the
court acts on the basis of affidavits, both parties should be afforded an
opportunity to file affidavits pertaining to the [ ] issue.”
[¶11] Furthermore, simply attaching documents to a motion is not the
equivalent of properly introducing or admitting them as evidence. Documents 7
attached to motions are not part of the record and therefore cannot be
considered evidence in the record on appeal. See Denoux v. Vessel Mgmt. Servs.,
Inc., 2007-2143, p. 6 (La. 5/21/08); 983 So. 2d 84, 88 (“Documents attached to
memoranda do not constitute evidence and cannot be considered as such on
appeal.”); Shah v. Star Anesthesia, P.A., 580 S.W.3d 260, 266 (Tex. App. 2019)
(“Exhibits attached to pleadings are not evidence in a case until the exhibits are
properly introduced and admitted . . . .”); Landis Constr. Co. v. State, 2015-1167,
p. 3 (La. App. 1 Cir. 2/29/16); 199 So. 3d 1, 2-3 (evidence “cannot be
considered, even if it is physically placed in the record” where it has not been
officially offered and introduced); Morrison v. Carruth, 2015 Ark. App. 224, at 6,
459 S.W.3d 317, 321 (documents attached to a pleading are not evidence and
must be introduced to be considered); see also Deutsche Bank Nat. Trust Co. v.
Wilk, 2013 ME 79, ¶ 14, 76 A.3d 363 (“[A] fact-finder may not consider facts not
properly in evidence or made part of the record.”).
[¶12] The trial court should have considered affidavit evidence from
both parties to determine whether sufficient disputed facts or the necessity for
credibility determinations would require a further hearing, or it could simply
have held a hearing. We cannot assume that the trial court made all the findings
necessary to support its judgment for the Town because no evidence was 8
properly introduced or admitted, and therefore there is no record of any
evidence to support those findings. See Lewisohn, 433 A.2d at 354.
The entry is:
Judgment vacated. Remanded to the District Court for further proceedings consistent with this opinion.
John C. Bannon, Esq. (orally), and Sage M. Friedman, Esq., Murray, Plumb & Murray, Portland, for appellants Susan Duchaine and Design Dwellings, Inc.
Mark A. Bower, Esq. (orally), and Benjamin T. McCall, Esq., Jensen Baird Gardner & Henry, Portland, for appellee Town of Gorham
Portland District Court docket number CV-2017-245 FOR CLERK REFERENCE ONLY