The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP 02-047
SAG a > } UY / 12) qu
ROGER HARE,
Plaintiff . OOiNaLrA RT
babege cof
Vv. ORDER
JAN 36 2004
TOWN OF BUXTON,
Defendant
Before this court is Plaintiff, Roger Hare’s Application for Award of Attorney
Fees and Motion to Amend his Complaint. Both are Denied.
FACTS
Plaintiff, Roger Hare is the Chairman of the Personnel Review Committee for
Defendant, Town of Buxton. Mr. Hare and the other members of the Personnel Review
Committee disagreed with the interpretation which the Board of Selectmen and
Defendant Town’s Attorney had given to Article Five.’ In addition, Plaintiff believed
that the Board of Selectmen had failed to follow the mandatory procedures for placing
that Article on tie ballot on June 12, 2002. Accordingly, Plaintiff filed a suit in the York
County Superior Court.
On August 8, 2003, this court issued an order invalidating the June 11, 2002, town
meeting vote approving Article Five. The Defendant did not appeal from that order.
Subsequent to this, on October 7, 2003, Plaintiff directly requested that the Defendant
reimburse him for his legal fees and costs for btinging this action, but Defendant
For the details of this disagreement see the earlier “Order” dated August 8, 2003.
refused his request. As of September 2003, Plaintiff's fees and costs expended upon this
matter totaled $11,024.31. Consequently, the Plaintiff has filed this request for attorney
fees.
DISCUSSION
The Plaintiff argues that there is either express authority within the Town’s
ordinances for the committee to hire outside counsel or, in the unique circumstances of
this case, there is implied authority. However, because Mr. Hare did not include a
claim for attorney fees in the complaint and the Motion to Amend is untimely, it is
unnecessary to reach the issue of authority.
“An award of attorney fees must be based on: (1) a contractual agreement
between the parties; (2) a specific statutory authorization; or (3) the court’s inherent
authority to sanction serious misconduct in a judicial proceeding.” Truman v. Brown,
2001 Me. 18, 788 A.2d 168. Here, there is no contractual or statutory basis for an award
of attorney fees and the Town has not engaged in misconduct in the judicial proceeding.
Rather, Mr. Hare claims that, the Town’s ordinances provide either express or implied
authority to retain outside counsel.
A request for attorney fees must be plead and proven. Truman, supra. This is
particularly important when the claim is not based on a clear contractual or statutory
entitlement. The issue of whether a town’s ordinances provide express authority for a
town board or committee to retain outside counsel usually involves intricate questions
of statutory construction, and the issue of whether implicit authority exists remains
unsettled under Maine law. See, South Portland Civil Service Commission, et al. v. City of
South Portland, et al., 667 A.2d 599 (Me. 1995). Here, the complaint did not contain such
a request and the demand for attorney fees was not presented to the court until October
7, 2003, nearly 60 days after judgment. When the basis for such a claim is unclear and
may require both factual development and fairly sophisticated legal analysis, fairness
dictates that a defendant have formal notice of such a substantial claim before
judgment.
The entry will be as follows:
Plaintiff's Motion to Amend is Denied.
Plaintiff's Application for Attorney Fees is Denied.
Ll Sue
ur Brenhan
hast e, Superior Court
Dated: January 7.2004
PLAINTIFF:
John B. Shumadine, Esq.
John C. Bannon, Esq.
MURRAY PLUMB & MURRAY
PO BOX 9785 /
PORTLAND ME 04104-5085
DEFENDANT:
William L. Plouffe, Esq.
Gregg R. Frame, Esq.
DRUMMOND WOODSUM & MACMAHON
PO BOX 9781
PORTLAND ME 04104-5081