Giroux v. Indian Point Owners Ass'n

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DQCKET NC? CV-10-12p /

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RONALD E. GIROUX, SR,

Plaintiff

v. ORDER ON DEFENDANTS' MOTION

FOR SUMMARY JUDGMENT

INDIAN POINT OWNERS

ASSOCIAnON,

Defendant

Before the court is defendant Indian Point Owners Association's motion for

summary judgment on all counts of plaintiff Ronald E. Giroux, Sr.'s complaint. For the

following reasons, the motion is granted.

BACKGROUND

The following undisputed facts are taken from the defendant's statement of

material facts. l Since 1988, the plaintiff has owned a cottage unit number 14 located

within the Indian Point Seasonal Condominium Properties. (Def.'s S.M.F. <[ l.f The

defendant is a registered non-profit Maine corporation established pursuant to the

Declaration of Condominium dated April 28, 1988 and recorded in the Cumberland

1 The plaintiff failed to file an opposition to the defendant's motion for summary judgment

within 21 days. The plaintiff filed no motion for enlargement of time to respond to the

defendant's motion for summary judgment. M. R. Civ.P. 7(b)(4). A party failing to file a

/J

timely memorandum in opposition to a motion shall be deemed to have waived all objections to

the motion./J M.R. Civ. P. 7(c)(3). All of Indian Point's statements of material facts supported

by record citations are deemed admitted. M.R. Civ. P. 56(h)(4).

2In support of this statement of material fact, the defendant incorrectly cites to paragraph 1 of

the plaintiff's complaint. (Def.'s S.M.F. <j[ 1.) Paragraph 2 of the complaint supports this

statement. Because this fact is not material to the dispute, the court considers this statement.

1

County Registry of Deeds in Book 8268, Page 124, which operates and manages the

Condominium. (Id. err 2; Comp!., Ex. B.) The executive board, the body designated in

the defendant's by-laws to act on its behalf, primarily governs the defendant's affairs.

(Def.'s S.M.F. err 3; Comp!., Ex. CY

Immediately adjacent to the plaintiff's unit is Common Open Space H, which

includes a boat launch and turnaround area. (Def.'s S.M.F. err 4.) The plaintiff's unit is

subject to an easement encompassing its southwest corner, which provides extra room

to maneuver vehicles and trailers in the boat launch and turnaround area. (IQ. err 5.)

The easement is intended for use by the defendant's members. (Id.) A fence on the

plaintiff's Unit demarks the edge of the easement. (IQ. err 6.)

On August 1, 1996, the executive board granted the plaintiff special use

permission to park on the common element adjacent to his unit. (Def.'s S.M.F. err 15.)

The special use allowed only for the parking of a car on the common element. (IQ. err 17;

Giroux Dep., Ex. 3.) The plaintiff was not permitted to place other items on the

common property; the plaintiff did, however, place items on the common element,

which he admits was in violation of his special use permit. (lQ..; Def.'s S.M.F. errerr 17, 22.)

The special use permit was freely revocable by the executive board. (Def.'s S.M.F. err 18;

Giroux Dep., Ex. 3.) On December 5, 2006, the executive board revoked the plaintiff's

special use permit in response to complaints from other members of the defendant. (Ig.

errerr 19-20.)

The plaintiff has been cited for several violations of the defendant's rules and

regulations and bylaws. (Def.'s S.M.F. err 50.) Specifically, the plaintiff replaced the

3 Mr. Giroux served as a member of the defendant's executive board for at least three years. ag.

<j[ 12.)

2

split-rail cedar fence on his property with a white vinyl fence in violation of defendant's

rules and without approval of the executive board or a vote of any kind. (Def.'s S.M.F.

11 26-28.) Additionally, the plaintiff cut down trees without the executive board's

permission in violation of the defendant's rules. QQ. 1113-14, 23-25; Giroux Dep., Ex. 5

§ 21.) Finally, the plaintiff has placed obstructions in the easement located on the

common element on his property. (Def.'s S.M.F. 117-10.) The plaintiff has not paid the

fines assessed for the violations. (Id.153.)

The plaintiff filed a four-count complaint. In count I, he requests a declaratory

judgment that the defendant has no authority to take certain action; in count II, he

alleges a violation of the Maine Condominium Act, 33 M.R.S. §§ 1601, et seq.; in count

III, he alleges interruption of quiet use and enjoyment; and in count IV, he alleges

intentional and negligent infliction of emotional distress. The defendant now moves for

summary judgment on all counts of the plaintiff's complaint.4

DISCUSSION

1. Standard of Review

Summary judgment should be granted if there is no genuine dispute as to any

material fact and a party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c).

In considering a motion for summary judgment, the--court should consider the facts in

the light most favorable to the nonmoving party, and the court is required to consider

only the portions of the record referred to and the material facts set forth in the parties'

Rule 56(h) statements. See, e.g., Iohnson v. McNeil, 2002 ME 99, 18,800 A.2d 702, 704.

4 On February 24, 2010, the defendant filed an answer and counterclaim. The defendant

requested that the court order the plaintiff to remove the vinyl fence and any obstructions from

the common element and enter judgment for the amount of the fines assessed against the

plaintiff for violation of the defendant's rules. On April 30, 2010, the defendant filed a second

answer with no counterclaim.

3

Once a properly supported motion is filed, the party opposing a summary

judgment must establish a prima facie case for each element of the cause of action in

order to avoid a summary judgment. Watt v. Unifirst Corp., 2009 ME 47, <j[ 21, 969 A.2d

897, 902; Reliance Nat'l Indem. v. Knowles Indus. Servs., Corp., 2005 ME 29, <j[ 9, 868

A.2d 220, 224-25. "Failure to properly respond to a statement of material facts permits a

court to deem admitted any statements not properly denied or controverted." Dyer v.

Dep't of Transp., 2008 ME 106, <j[ 15, 951 A.2d 821, 825-26; M.R. Civ. P. 56(h)(4).

2. Count I: Declaratory Iudgment

In count I of his complaint, the plaintiff requests that the court issue a judgment

declaring that the defendant had no right to (1) revoke his special use permit without

cause; (2) impose violations against him in a random and unfair manner; (3) impose

violations for conduct that occurred over ten years ago; or (4) enforce the current

violations. (CompI. at 4, <j[<j[ i-iv.) The plaintiff also requests that the court instruct the

defendant on the voting procedures pursuant to the Rules and Regulations and Bylaws.

(CompI. at 4, <j[ v.) Based on the undisputed facts, the executive board revoked the

plaintiff's special use permit for cause. (Def.'s S.M.F. <j[<j[ 17-20.) The plaintiff's

violations were not determined in a random manner, but in response to complaints.

(Id.) The plaintiff admits that he has not paid the fines assessed against him, and

understands that the defendant was of the opinion that there were violations on his unit

and unpaid fines due during the summer of 2007. (M. <j[<j[ 36, 53, 54.) Further, the

plaintiff admits that the executive board's votes have been fair, and that his special use

permit was freely revocable at any time. (M. <j[<j[ 18, 34).

3. Count II: Violation of the Maine Condominium Act

The plaintiff alleges that the defendant has violated provisions of the Maine

Condominium Act, 33 M.R.S. § 1601-101, et seq. Specifically, the plaintiff alleges that

4

the defendant attempted to enforce unconscionable terms in the defendant's rules and

regulations in violation of 33 M.R.S. §§ 1601-112 and failed to act in good faith in

violation of 33 M.R.S. §§ 1601-113.5 (CompI. crrcrr 28-29.) The plaintiff also alleges that the

defendant failed to vote on and set forth the penalties against him in writing in

violation of the Act. (CompI. crr 30.) There is no evidence on the record to indicate that

the defendant or its executive board acted in bad faith. The plaintiff admits that he

violated Indian Point's rules by placing items on the common element, cutting down

trees, and putting up a vinyl fence. (DeL's S.M.F. crrcrr 10, 22-25, 26-28.) The record

shows that the executive board did vote and communicate with the plaintiff in writing.

(Id. crrcrr19-21, 29-30, 32, 34, 50, 55.)

4. Count III: Interruption with Quiet Use and Enjoyment

The plaintiff alleges that the defendant has interfered with the quiet use and

enjoyment of his unit and surrounding area. (CompI. crrcrr 32-38.) This claim is based on

conversations with and letters from members of the executive board since 2006. (DeL's

S.M.F. crrcrr 49-51.) To establish a claim for a private nuisance, the plaintiff must show

that:

(1) '[t]he defendant acted with the intent of interfering with the use and

enjoyment of the land by those entitled to that use,' with intent meaning

only that 'the defendant has created or continued the condition causing

the interference with full knowledge that the harm to the plaintiff's

interests are occurring or are substantially certain to follow';

(2) there was some interference of the kind intended;

(3) the interference was substantial such that it caused a reduction in the

value of the land; and

5 "Every contract or duty governed by this Act imposes an obligation of good faith in its

performance or enforcement." 33 M.R.S. § 1601-113 (2011).

5

(4) the interference 'was of such a nature, duration or amount as to

constitute unreasonable interference with the use and enjoyment of the

land.'

Iohnston v. Me. Energy Recovery Co., Ltd. P'ship, 2010 ME 52, <[ 15, 997 A.2d 741, 745

(quoting Charlton v. Town of Oxford, 2001 ME 104, <[<[ 36 & 37 n. 11, 774 A.2d 366, 377­

78 (quotation marks omitted)). The undisputed facts show that there was no

interference with the plaintiff's land because the executive board acted reasonably

pursuant to defendant's rules. (Def.'s S.M.F. <[<[ 10, 14,22,26-27.)

5. Count IV: Intentional or Negligent Infliction of Emotional Distress

The plaintiff alleges that the defendant intentionally caused him emotional

distress because it knew that his wife was dying and singled him out for violations

before and after her death. (CompI. <[<[ 42-44, 47.) "[T]o recover on a claim of

intentional infliction of emotional distress:

(1) the defendant intentionally or recklessly inflicted severe emotional

distress or was certain or substantially certain that such distress would

result from [the defendant's] conduct;

(2) the conduct was so extreme and outrageous as to exceed all possible

bounds of decency and must be regarded as atrocious, utterly intolerable

in a civilized community;

(3) the actions of the defendant caused the plaintiff's emotional distress;

and

(4) the emotional distress suffered by the plaintiff was so severe that no

reasonable person could be expected to endure it."

Lyman v. Huber, 2010 ME 139, <[ 16, 10 A.3d 707,711 (quoting Curtis v. Porter, 2001 ME

158, <[ 10, 784 A.2d 18, 22-23 (internal quotations omitted)).

The undisputed facts in this case demonstrate that the defendant did not know

that the summer of 2007 would be the plaintiff's wife's last. (Def.'s S.M.F. <[ 52.) There

is nothing on the record to show that the plaintiff suffered severe emotional distress.

(Id. <JI<JI 43-48.) Beginning in January of 2008, the plaintiff visited a psychotherapist,

6

attended a bereavement program, and received treatment from a physician for issues

arising out of his wife's death. (Id. errerr 43, 45,47.) The plaintiff never discussed with the

psychotherapist, program members, or the physician his dispute with the defendant.

(Id. errerr 44, 46, 48.)6 The actions taken by the defendant were not extreme and

outrageous. (Id. errerr IS, 19-22, 26, 29-30, 32, 34, 36, 53-54.)

In order to prevail on a claim for negligent infliction of emotional distress, a

plaintiff must show "(I) the defendant owed a duty to the plaintiff; (2) the defendant

breached that duty; (3) the plaintiff was harmed; and (4) the breach caused the

plaintiff's harm." Curtis, 2001 ME 158, err 18, 784 A.2d at 25. There is no "general duty

to avoid negligently causing emotional harm to others." Id. The "limited

circumstances" in which an individual has such a duty are either in "bystander liability

actions" or when "a special relationship exists between the actor and the person

emotionally harmed." Id. err 19, 784 A.2d at 25. Based on the undisputed facts, there is

no special relationship between the plaintiff and the defendant. Compare Bolton v.

Caine, 584 A.2d 615, 618 (Me. 1990) (physician-patient relationship); Rowe v. Bennett,

514 A.2d 802, 806-07 (Me. 1986) (psychotherapist-patient relationship).

Further, based on the undisputed facts, the defendant has not committed another

tort. Curtis, 2001 ME 158, err19, 784 A.2d at 25-26. Finally, as discussed above, the facts

do not show that the plaintiff suffered severe emotional distress, an element of a claim

of negligent infliction of emotional distress. Id. err 20, 784 A.2d at 26; (Def.'s S.M.F. errerr

43-48.)

6 The plaintiff also claims that after his wife's death, the defendant continues to cause his

emotional distress because the defendant will not allow him to have a memorial for his wife on

his land. (CompI. <JI 47.) The undisputed facts show that the plaintiff can move the memorial

bench so that it does not obstruct the easement. (Def.'s S.M.F. <JI 42.)

7

The entry is

The Defendant's Motion for Summary Judgment is

GRANTED. Judgment is entered in favor of the Defendant

Indian Point Owners Association and against the Plaintiff

Ronald E. Giroux, Sr. on Counts I, II, III, and IV of the

Plaintiff's Complaint.

Date: March 25, 2011

ancy Mills

Justice, Superior Court

CUM-CV-10-120

8

VVUIIlY

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04101

LAWRENCE SAWYER ESQ

DAWN DYER ESQ

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WINDHAM ME 04062

JOHN WHITMAN ESQ

MATTHEW CABRAL ESQ

RICHARDSON WHITMAN LARGE & BADGER

PO BOX 9545

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WINDHAM ME 04062

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

Docket No. CV-101.120 /

('J M- cUM - I c;~ .f,,J Oi/

RONALD E. GIROUX, SR.,

Plaintiff

v. JUDGMENT

INDIAN POINT OWNERS

ASSOCIATION,

Defendant

By order dated March 25, 2011, the court granted the defendant a summary

judgment on all counts of the plaintiff's complaint. In its counterclaim, the defendant

alleges the plaintiff violated the defendant's Bylaws and Rules and Regulations.

Specifically, the plaintiff replaced a split-rail cedar fence on his property with a white

vinyl fence; the plaintiff cut down two trees without permission; and the plaintiff

placed obstructions in the easement located on the common element on his property.

The defendant seeks injunctive relief and payment of fines and penalties, interest, costs,

and attorney's fees. Jury-waived trial was held on the defendant's counterclaim.

Based on the 3 I 25 I 11 decision on the defendant's motion for summary judgment

-"''--;:.,..-

and the 6 I 20 I 11 order on the defendant's order directing further proceedings,

the Cou~:order on the Defendant's Motion for Summary Judgment

resolves _all issues in the Defendant's Counterclaim with the exception of

the amount of damages due to the Defendant from the Plaintiff for fines

and attorney's fees and costs of litigation. The issues remaining [for trial

on the counterclaim] are injunctive relief preventing the Plaintiff from

continuing to violate the Defendant's Bylaws and Rules and Regulations,

the amount .. pf fines and penalties assessed against the plaintiff for

violations o'fthe Defendant's Bylaws and . Rules and Regulation~, costs,

and attorney's fees.

1

6/20/11 Order. 1

The defendant began assessing fines of $7.00 per day against the plaintiff in July

2007. (Def.'s Ex. 5.) Because the plaintiff did not pay the fines, the defendant increased

the fine rate to $25.00 per day in September 2008. (Def.'s Ex. 6.) The defendant assessed

a fine of $500.00 for each of the two trees cut by the plaintiff. (Def.'s Exs. 7-8, 13.)

Because the plaintiff did not pay the fines, the defendant increased the fine rate to

$100.00 per day in September 2009. (Def.'s Ex. 8.) The defendant notified the plaintiff

of the assessments and the plaintiff has not paid the fines. The defendant now seeks

$80,064.00 in fines, 12% interest, attorney's fees in the amount of $22,138.50, costs in the

amount of $222.86, and injunctive relief. (Amended Sawyer Aff.)

Section K(10) of the defendant's bylaws provides for the levy of reasonable fines

for violations of the defendant's declaration, bylaws and rules and regulations. (Def.' s

Ex. 14.) Article VI, section B(ii) of the bylaws provides for an award of costs and

attorney's fees~_£l_any proceeding commenced because a unit owner fails to comply with

the declaration, bylaws and rules and regulations and if the Association prevails. (Id.)

Paragraph 5 of the defendant's rules and regulations provides for 12% interest on

condominium fees in arrears. (Def.'s Ex. 13.)

Maine law allows condominium associations to "[i]mpose charges for late

payment of a~essments and, after notice and an opportunity to be heard, levy

~~~

.. reasonable fines for violations of the declaration, bylaws and rules and regulations of

the association." 33 M.R.S. § 1603-102(a)(ll) (2010). This statutory language is similar

1

Accordingly, the majority of the plaintiff's arguments have been waived. (Pl.'s Mem.)

2

to condominium laws in several other states. 2 A "reasonable fine" is not defined by

Maine statutes or case law.

In Connecticut, the Superior Court concluded that the fine must have a

relationship to a cost or expense incurred by the association. Stonington Landing

Condo. Ass'n, Inc. v. Totolis, 2009 Conn. Super. LEXIS 3398, *25-26 (Conn. Super. Ct.

Dec. 16, 2009) (noting that "where a fine is punitive rather than compensatory the court

might properly consider the behavior of the parties in determining its reasonableness.")

Additionally, the court noted that because no definition of "reasonable" is provided by

statute, courts may look to the ordinary meaning of the words. "Ballentine's Law

Dictionary, Third Edition, defines "reasonable" as, among other things, 'Not extreme.

Not arbitrary, capricious, or confiscatory ... What is reasonable depends upon a variety

of considerations and circumstances ... "' Id. at *24-25.

In Stewart v. Kopp, the court agreed that because "the purpose of such a fine is

to induce compliance with the condominium documents, much as a fine for civil

contempt is intended to induce compliance with a court order, a daily assessment of [a]

fine is appropriate .... " Stewart v. Kopp, 454 S.E.2d 672, 675 (N.C. Ct. App. 1995).

Courts have upheld fines of $100 per aay. See id. at 673-74 (permitting $100 per day

fine under N.C. statute that limited fines to $150 regardless of reasonableness); see also

Park Vill. W. Ass'n ex rei. Canter v. ~ugar, 1999 Mass. Super. LEXIS 539, *8 (Mass.

~~

Super. Ct. Dec. 8, 1999) (permitting $13,704.45 in fees and costs for harboring one dog) ..

2

Compare Mass. Gen. Laws ch. 183A, § lO(b)(S) (2011) (The association has power "[t]o impose

charges or to charge interest for the late payment of common expense assessments or other

charges, and to levy reasonable fines for violations of the master deed, trust, by-laws,

r~strictions, rules or regulapons of the organization <;>f unit owners."), and Conn. Gen. Stat.§ 47-

244(a)(11) (2011) (Association is permitted to "levy reasonable fines for 'violations of the

declaration, bylaws, rules and regulations of the association."), with N.C. Gen. Stat. § 47C-3-

102(a)(11) (2011) (The association may "[i]mpose charges for late payment of assessments ...

and levy reasonable fines not to exceed one hundred dollars ($100.00) for violations of the

declaration, bylaws, and rules and regulations of the association.").

3

Courts have, however, rejected as unreasonable fines of $25 per day. Stonington

Landing Condo. Ass'n, 2009 Conn. Super. LEXIS 3398 at *24 (declaring a $25 per day

fine for altering a floor and window unreasonable); see Tr. of the Residences at

Chestnut Hill Condo. Trust v. Jacobs, 2006 Mass. Super. LEXIS 386, *20 (Mass. Super.

Ct. Aug. 14, 2006) (finding that the $13,500 fine assessed for planting a vegetable garden

and digging dog graves reasonable but the $16,283.28 in fees and expenses

unreasonable; the court awarded $12,000 in fees and expenses).

In this case, the defendant seeks more than $100,000.00 for the plaintiff's

installing a fence, cutting two trees, and placing items in an easement. That is not

reasonable but is, instead, extreme and arbitrary.

Although authorized to do so, the defendant made no effort to collect the fines.

(Def.'s Ex. 14, Art. VI(B)(i).) If the plaintiff had not filed his complaint, prompting a

counterclaim, presumably the fines would still be accruing at the rate of $100.00 per

day. See Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Employees Ret. Sys., 2009 ME 108, 1

16, 983 A.2d 391, 396 ("Laches is negligence or omission seasonably to assert a right. It

exists when the omission to assert the right has continued for an unreasonable and

unexplained lapse of time, and :uhtler circumstances where the delay has been

prejudicial to an adverse party, and where it would be inequitable to enforce the right."

(quoting Fisco v. Dep't of Human~- 659 A.2d 274, 275 (Me. 1995))). Although the =<'"~

defendant threatened litigation, the defendant took no action until the plaintiff filed a

complaint. (Def.'s Ex. 8.)

Assuming, however, that the plaintiff's knowledge of his obligation to pay

precludes a determination of prejudice necessary to establish latches, a fine in the

amount of $100.00 per day for the fence and easement infractions is unreasonable

considering all of the circumstances of this case.

4

A similar analysis applies to the defendant's request for injunctive relief. Pisco v

Dep't of Human Servs., 659 A.2d 274, 276 (Me. 1995) (quoting Sargent v. Coolidge, 455

A.2d 738, 743 (Me. 1981)). Further, the defendant has not shown irreparable injury.

Ingraham v. Univ. of Maine, 441 A.2d 691, 693 (Me. 1982).

The court may consider the behavior of the parties and the circumstances of this

case. The court will impose a fine of $5.00 per day from July 15, 2007 until the date of

this judgment for the fence and easement infractions. This fine totals $7,820.00. The

fine for the cutting of two trees is $1,000.00. (Def.'s Ex. 13.)

The defendant submitted invoices for attorney's fees through July 26, 2011 only.

Further, the bylaws provide for recovery of reasonable attorney's fees and "the costs of

the proceeding." Attorney's fees of $16,986.00 are awarded plus costs as allowed by

rule and statute.

Interest at the rate of 12% is allowed on condominium fees, due April 1 of each

year, that are in arrears. No interest rate is specified for fines.

The entry is

Judgment is entered in favor of the Defendant Indian Point

Owners Association and against the Plaintiff Ronald Giroux

on the Defendant's Counterclaim in the amount of $8,820.00

plus attorney's fees of $16,986.00, plus prejudgment interest

at the rate of 3.41% and post-judgment interest at the rate of

6.30%, plus costs.

~~FThe Defendant's Request for Injunctive Relief is denied.

Date: October 26, 2011

5

MAINE JUDICIAL INFORMATION SYSTEM 08/05/2011 asoper

CUMBERLAND COUNTY SUPERIOR COURT mjxxi048

CASE PARTY ADDRESS BOOK

RONALD E GIROUX SR VS INDIAN POINT OWNERS ASSOCIATION

UTN:AOCSsr -2010-0025744 CASE #:PORSC-CV-2010-00120

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~R~O~N~A=L~D--=E~·_;G=I~R~O~U~X~,-=S~R~----------------------------------------- ~P=L_____________

FRANK, ERIKA L. Tel# (207) 892-8484

936 ROOSEVELT TRAIL UNIT 4 WINDHAM ME 04062

INDIAN POINT OWNERS ASSOCIATION DEF

SAWYER, LAWRENCE Tel# (207) 892-2112

PO BOX 1177 WINDHAM ME 04062

DYER, DAWN D. Tel# (207) 892 2112

PO BOX 1177 WINDHAM ME 04062