Opinion
Civil Action CV-18-0099
08-20-2018
TOWN OF LEBANON, Plaintiff, v. ANTHONY MCDONOUGH, and MCDONOUGH TRUST, Defendants.
ATTORNEYS FOR PLAINTIFF: DAVID KALLIN, ESQ, TIMOTHY STEIGELMAN, ESQ. DRUMMOND WOODSUM. ATTORNEYS FOR DEFENDANT ANTHONY MCDONOUGH: JOSEPH TALBOT, ESQ. JOSEPH SIVISKI, ESQ. PERKINS THOMPSON PA. PARTY-IN-INTEREST MCNOUGH TRUST, PRO SE:
ATTORNEYS FOR PLAINTIFF: DAVID KALLIN, ESQ, TIMOTHY STEIGELMAN, ESQ. DRUMMOND WOODSUM.
ATTORNEYS FOR DEFENDANT ANTHONY MCDONOUGH: JOSEPH TALBOT, ESQ. JOSEPH SIVISKI, ESQ. PERKINS THOMPSON PA.
PARTY-IN-INTEREST MCNOUGH TRUST, PRO SE:
ORDER ON PLAINTIFF'S MOTION TO SPECIFY COURSE OF FURTHER PROCEEDINGS
John O'Neil, Jr. Justice.
I. BACKGROUND
Before the court is plaintiff Town of Lebanon's (the "Town") land use enforcement action brought pursuant to 30-A M.R.S. § 4452 and Rule 80K of the Maine Rules of Civil Procedure. After plaintiff originally filed this action in the District Court, defendants Anthony McDonough ("McDonough") and the McDonough Trust (the "Trust") removed the case to this court pursuant to Rule 76C, seeking a trial by jury. On June 7, 2018, plaintiff filed a motion to specify course of further proceedings requesting this court remand the case to the District court because defendants do not have a right to jury trial. Further plaintiff asserts that no discovery is needed and that the court should not apply rules requiring alternative dispute resolution ("ADR") to the instant case if the court finds that removal was proper.
The allegations in the Complaint are as follows. Defendant McDonough is the trustee of the McDonough Trust, which owns the real property in question located at 330 Sewell Shore, Lebanon, Maine and identified in the York County Registry of Deeds at Book 17517, Page 385 (the "Property"). (Am. Compl. ¶ 5.) On September 18, 2017, the Town's Code Enforcement Officer ("CEO") issued a Stop Work Order for construction being performed on the Property. (Am. Compl. ¶ 7.) The Stop Work Order was issued because defendant had engaged in new construction of a principal structure and installation of a septic tank within 100 feet of the normal high-water mark of Northeast Pond in violation of the Town's Shoreland Zoning Ordinance and State law. (Am. Compl. ¶¶ 8-12.) On October 20, 2017, the CEO issued a Notice of Violation (the "NOV"), finding that McDonough had continued to engage in construction after receipt of the Stop Work Order. (Am. Compl. ¶¶ 14-15.) After McDonough failed to comply with the NOV by removing the offending structures, the Town filed the instant Complaint in the Springvale District Court, alleging that defendants were in violation of Sections 15(B)(1), 15(K)(1), and 16(B) of the Town's Shoreland Zoning Ordinance as well as 38 M.R.S. § 439-A(4). (Am. Compl. ¶¶ 16-18.) The Town sought (1) permanent injunction; (2) civil penalty; (3) removal/abatement of the violation; and (4) costs and reasonable attorney's fees. On May 17, 2018, defendants removed the case to this court and requested a trial by jury.
II. DISCUSSION
Removal from the District Court to the Superior Court is governed by Rule 76C. This Rule provides:
[A] defendant or any other party to a civil action or proceeding in the District Court may remove that action to the Superior Court for jury trial in the county in which the division of the District Court is located by filing notice of removal, serving a copy of the notice upon all other parties, and paying to the clerk of the District Court the jury fee.Me. R. Civ. P. 76C(a).
In its motion to specify further course of proceedings, the Town primarily argues that defendants do not have a right to a trial by jury in a Rule 80K action It further argues that that, even if defendants are entitled to a jury trial, there is no need for discovery or ADR in this case.
a. Whether There Is a Right to a Jury Trial in a Rule 80K Land Use Enforcement Action
The primary issue presented in plaintiffs motion is whether there is a right to a trial by jury in Rule 80K land use enforcement actions. The Maine Constitution enshrines, "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 heretofore been otherwise practiced. . . ." Me. Const., art. I, § 20. However, this right is limited to cases involving legal, but not equitable claims. Falmouth v. Long, 578 A.2d 1168, 1171 (Me. 1990), citing King v. King, 507 A.2d 1057, 1059 (Me. 1986). Generally, "the determination of remedies for zoning violations is an exercise of the court's equitable powers." Id., citing Town of Shapleigh v. Shikles, 427 A.2d 460, 464 (Me. 1981).
Plaintiff draws the court's attention to earlier precedent stating that there is no right to a jury trial for equitable claims such as zoning enforcement actions, specifically Falmouth v. Long, 578 A.2d 1168, and Dep't of Envtl. Prot. v. Emerson, 616 A.2d 1268 (Me. 1992).
In Falmouth v. Long, plaintiff town brought a zoning enforcement action against the defendant, requesting an order of abatement, attorney's fees, and a civil penalty. 578 A.2d at 1168-1169. On appeal, defendant argued that the trial court improperly deprived him of a jury trial on the civil penalty issue in violation of the Maine Constitution. Id. at 1171. The Law Court, however, disagreed. Id. The Court noted that although the Maine Constitution provides a right to a trial by jury for legal claims, equitable claims are not entitled to such a right. Id., citing King v. King, 507 A.2d at 1059. Because the request for a civil penalty was ancillary to the request to remedy the zoning violation, which invokes the court's equitable powers, the action was not converted from an equitable action into one at law. Id., citing In re Martin Baker Well Drilling, Inc., 36 Bankr. 154, 156 (Bankr. D, Me. 1984). Instead, the Law Court held that Maine's Constinrtions gives defendants the right to a jury trial in civil actions "exclusively seeking a money recovery." Id., quoting DePaolo, 531 A.2d at 671 (quotation marks omitted). Because the primary pursuit of the town's action was injunctive relief, the Court held that the trial court properly denied defendant's request for a jury trial. Id. at 1172.
The Law Court addressed a similar issue soon after the Falmouth decision in Dep't of Envtl. Prot. v. Emerson, 616 A.2d 1268. In Emerson, the Department of Environmental Protection ("DEP") brought an action to enforce environmental and safety laws against the defendant, seeking injunctive relief and civil penalties. Id. at 1269. As in Falmouth, defendant argued that he was entitled to a jury trial because the DEP sought money damages. Id. at 1271. Again, the Court rejected this argument, explaining:
Here, the equitable jurisdiction of the Superior Court was invoked to grant injunctive relief authorized by statute. Courts of equity have traditionally proceeded "to dispose of the entire controversy and render complete relief." 1 Field, McKusick& Wroth, supra at 551. Recently we recognized the vitality of that tradition in Town of Falmouth v. Long, 578 A.2d 1168 (Me. 1990). The present action is equitable in nature and involves only ancillary coercive civil penalties. Because of the contrary practice at common law, a jury trial is not required by the Constitution,Id.
Following these cases, the Law Court decided City of Biddeford v. Holland, 2005 ME 121, 886 A.2d 1281. In Holland, the Court addressed removal of a Rule 80K complaint pursuant to Rule 76C. Id. ¶ 15. Although the town had originally sought injunctive relief, it withdrew its request before the defendant answered the Complaint and proceeded only seeking monetary penalties. Id. ¶ 2. Although the primary issue involved was whether defendant's removal was timely and complete due to defendant's failure to pay the removal fee, the Law Court stated, "Because of the confusion surrounding removal of complaints filed pursuant to Rule 80K~and the nature of the right at issue-we do not conclude that Holland knowingly waived his right to a jury trial." Id. ¶ 16; see also Town of Lebanon v. Wright, Mem-10-22 (Feb. 25, 2010). Thus, the Law Court vacated the District Court's denial of defendant's request for removal and instructed the District Court to give defendant twenty days to comply with Rule 76C. Id. ¶ 17.
In addition to Falmouth and Emerson, the Superior Court has also held that there is no right to a jury trial in 80K actions involving injunctive relief following the Holland decision. In Town of Vinalhaven v. Stevens, No. ROCSC-CV-13-49 (Oct. 13, 2015), the Knox County Superior Court (Billings, J.) cited Falmouth and Emerson and held, "Because Plaintiffs claims are primarily equitable in nature Defendant has no right to a jury trial under Maine law." (Pl.'s Ex. E.). In State v. Winterwood Acres, Inc., No. CUMSC-CV-06-339 (March 7, 2007), the Superior Court (Cumberland County, Brennan, J.) came to the same decision after requesting additional briefing from the parties concerning Holland, concluding "The Court finds that this matter has been improvidently removed from the District Court to the Superior Court because a right of trial by jury of the issues in this matter does not exist under the Constitution or statutes of the State of Maine." (Pl.'s Exs. F and G.) (citing Emerson, 616 A.2d 1268).
The court finds that the instant case is more analogous to Falmouth and Emerson than to Holland. The key reason for this distinction is plaintiffs primary pursuit. In this case, as in Falmouth and Emerson, the Town seeks injunctive relief as well as monetary damages. In Holland, however, the town withdrew its request for injunctive relief and instead only pursued monetary relief. Because an ancillary claim for civil penalties does not make a primarily equitable claim into a legal one, the court finds that plaintiffs claim is primarily equitable despite the request for civil penalties. Thus, defendants do not have a right to a jury trial in this action.
i. Whether Defendants May Still Proceed in Superior Court
Defendants admit that it is unclear whether there is a right to a jury trial in this case. (Defs.' Opp. 7.) (citing Manahan et al., A Practical Guide to Land Use in Maine 16.5.11 (2016) ("There is an unanswered question as to whether, if a municipality or the DEP requests injunctive relief, there is still a right to a jury trial because a jury cannot award injunctive relief')). However, defendants argue that they may nonetheless proceed in this court even if the court finds that there is no right to a jury trial in this case. (Defs.' Opp. 7.) Plaintiff moves for remand "[if] the Court is inclined" but otherwise requests this court conduct a bench trial if the court finds that there is no right to a trial by jury, (Pl.'s Mot Specify 6 n. 2.)
Both parties agree that the Superior Court has concurrent jurisdiction with the District Court over actions involving Shore, land Zoning Ordinances such as the instant dispute. 4 M.R.S.A. § 152(6-A)(C). Defendants contend that because the Superior Court has concurrent jurisdiction, removal is proper. (Defs.' Opp. 7.) Specifically, defendants state:
Defendants cite to City of Ellsworth v. Doody, 629 A.2d 1221 (Me. 1993) in support of this argument as an example of an instance where the Law Court affirmed an 80K nonjury trial in the Superior Court after removal from the District Court. (Defs.1 Opp. 7.) However, there is no indication that any motion in. accordance with Rule 76(c) was made tor the Superior Court to review whether the removal was proper and the Law Court did not consider ti\e issue in its decision.
[T]here is nothing in the Rules of Civil Procedure to suggest that the jury trial right is coextensive with the right to removal under 76C. In other words, the Court's decision as to whether Mr. MeDonough has a right to a jury trial for any or all issues in this case docs not determine the appropriateness of 76C removal.(Defs.' Opp. 7.) However, Rule 76C, explicitly provides, "[T]he defendant or any other party to a civil action or proceeding in the District Court may remove that action to the Superior Court for jury trial in the county in which the division of the District Court is located . . ." M.R. Civ. P. 76C(a) (emphasis added). Subsections (b) and (c) of the Rule also reference this qualification. Thus, the Role only contemplates removal to this court for a jury trial and not simply for a change of venue to another court with jurisdiction. Because the Rule explicitly allows removal only upon request for a jury trial, removal is not proper where a jury trial is either not requested or not permitted, even though the Superior Court may have jurisdiction to address the claims.
See M.R. Civ. P. 76C(b) (specifying the procedure in relation to "payment of the jury fee required by subdivision (a) of the rule") (emphasis added); M.R. Civ. P. 76C(c) ('The removal to the Superior Court for trial by jury may be reviewed by the Superior Court on. motion") (emphnsis added).
Since a jury trial is not permitted in this action, removal pursuant to Rule 76C is improvident and the court will remand this case to the District Court for further proceedings.
III. CONCLUSION
Because defendants do not have the right to request a jury trial and removal to this court pursuant to Rule 76C is predicated on the availability of a jury trial, removal to this court was improvident. Thus, plaintiffs motion to specify further course of further proceedings is granted and the matter is hereby remanded to the District Court for resolution.
The clerk shall make the following entry on the docket;
Plaintiffs motion to specify course of further proceedings is granted. The case is remanded to the District Court, SO ORDERED.