Opinion

Harrington v. Seaside Condominium Ass'n

Court: Superior Court of Maine
Filed: Nov 7, 2014
Status: Unpublished
On the bench: John O'Neil, Jr.
Cited by: 0 cases
Authority: More cited than 34.2%

The opinion

~a.

£ N T E RED NOV 1 8 Z014

STATE OF MAINE SUPERIOR COURT

YORK, SS. DOCKET NO. ~-12-250

~t:

ROBERT G. HARRINGTON and

30N- YDR- 11-07-14-

BETH E. MCDERMOTT

HARRINGTON,

Plaintiffs,

v. ORDER

SEASIDE CONDOMINIUM

ASSOCIATION et al.,

Defendants.

I. Background

A. Procedural Posture

Plaintiffs Robert G. Harrington and Beth E. McDermott Harrington ("the

Harringtons") bring this suit against the Seaside Condominium Association ("Seaside" or

"the Association") and several of its officers, alleging they violated provisions of the

governing documents, improperly accounted for various fees assessed and assessed some

in a discriminatory manner, and that use of an easement by other units for utility access

damaged the Harringtons' unit. (Compl. 3.) The complaint further seeks injunctive relief

ordering Seaside to comply with the governing documents. Seaside answered,

counterclaimed for unpaid condominium fees, and moved to dismiss. Before the court is

Seaside's motion for summary judgment on its counterclaim.

B. Facts

The parties agree on the following facts. Seaside Condominium is a condo

complex in York, Maine. The Declaration of the Seaside Condominium Association is

recorded in the York County Registry of Deeds ("the Registry") at Book 4554, Page 198-

240. (Def. 's S.M.F. ~ 1.) The Harringtons purchased Unit #1 ("the Harrington Unit") on

March 18, 2008. (Def. 's S.M.F. ~ 3.) The Harrington Unit deed is recorded at Book

15377, Page 139 and references the Seaside Condominium Declaration. (Def.'s S.M.F. ~

4.) On March 22, 2012, Seaside filed a lien on the Harrington Unit for unpaid

assessments. (Def.'s S.M.F. ~ 6.)

Article 3, Section 3.3(c) of the Declaration, which governs maintenance

responsibilities states:

Water service to all Units will be included in the Common Expenses.

Electric and propane gas service to units 4 through 9 will be charged as a

Limited Common Expense to those six Units and such charges will be

allocated equally among such Units. Electric service to Unit 1 through 3

and sewer, telephone and cable television service to all Units will be

separately metered and each such unit owner shall be responsible for the

cost of such services furnished to his Unit.

(Pl.'s S. Addt'l M. F.~ 22.) Article 5, § 5.2 governing common expenses states:

The liability of each Unit for the Common Expenses of the Condominium

shall be the same percentage share as the Percentage Interest set forth on

Exhibit B, and as such shall be determined by dividing the approximate

square footage of each Unit as of the date of the Declaration (exclusive of

Limited Common Elements) by the total square footage of all the Units

(exclusive of Limited Common Elements) in the Condominium.

(Pl.'s Mem. Opp. Mot. Summ. J., Ex. A). Exhibit B sets forth that Unit 1, the Harrington

Unit, is approximately 2,018 square feet and therefore the percentage governing property

The parties dispute nearly every other material fact asserted by Seaside in support of its motion

for summary judgment. Those facts related to the manner in which the assessments were

calculated and administered, which the Harringtons assert was erroneously conducted. (Pl.'s

Reply Def. 's S.M.F. ~~ 7-27.)

interest stake, voting power, and Common Expense liability (excluding Limited Common

Elements) is 38.7%. Id

II. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate where there are no material facts in dispute and

the moving party is entitled to judgment as a matter oflaw. M.R. Civ. P. 56. "A material

fact is one having the potential to affect the outcome of the suit." Burdzel v. Sobus, 2000

ME 84, ,-r 6, 750 A.2d 573. Where there is sufficient evidence to support competing

versions of material facts, the outcome must be decided by the factfinder at trial. Id

B. Validity of the Fees Assessed to the Harrington Unit

The issue in this case is whether Seaside has properly allocated expenses in

assessments, specifically with regards to utility costs. In the Harringtons' view, starting in

2011, an amendmene was made to the Declaration that improperly allocated utility costs

based on certain percentages, rather than separately metering the units. (Pl.'s S. Addt'l M.

F. ,-r,-r 20-25; Pl.'s Mem. Opp. Summ. J. 6.) The Harringtons point to minutes from a

2007 Association meeting explaining their understanding of Seaside's assessment

allocation methodology. The Harringtons contend Tony LaRosa, then President of the

Exhibit B states "The percentage is derived by dividing the approximate square footage of each

Unit (exclusive of Limited Common Elements) by the total square footage of all Units (exclusive

of Limited Common Elements) and multiplying the result by 100."

The Harringtons assert evidence of an amendment precludes summary judgment. (Pl.'s Mem.

Opp. Summ. J. 5.) ("[B]ased on the Association's admission to Plaintiffs that it had amended the

Declaration, a factfinder could determine that the Association did in fact modify the Declaration

to incorporate the established methodology in use through 20 11.")

This methodology accounted for the fact the complex is composed of two buildings: "the

House" (units 1, 2, and 3) and "the Motel Building" (units 4 through 9). Rather than calculating

methodology conducted separate calculations for each building. (Pl.'s S. Addt'l M. F.,

the square footage and percentage allocation of Seaside as a single space, it appears the

5.)

Association, represented that this methodology was in effect and the Declaration would

be amended to reflect this change. (Pl.'s S. Addt'l M. F.~~ 3-10.)

Seaside denies that any amendments were made, all meetings and budgets were

legal, and all business was conducted in accordance with the Declaration and Bylaws of

the Association. (See Def. 's S.M.F. ~~ 8-28.) In moving for summary judgment on its

counterclaim, Seaside seeks the full amounts assessed by the Association to date. The

Harringtons have refused to pay more than the 2011 assessment amount, and Seaside

seeks the difference. (Def. 's Reply Pl.'s Opp. Summ. J. 3-4.)5

1. The Purported Amendment to the Declaration

Whether a condominium's declaration of rights is ambiguous is a question of law.

Farrington's Owners' Ass 'n v. Conway Lake Resorts, Inc., 2005 ME 93, ~ 10, 878 A.2d

504 (citations omitted). "Language is considered to be ambiguous if it is reasonably

susceptible to different interpretations." Acadia Ins. Co. v. Buck Canst. Co., 2000 ME

154, ~ 9, 756 A.2d 515. If ambiguous, interpreting that language is a question of fact.

Farrington's Owners' Ass 'n, 2005 ME 93, ~ 10, 878 A.2d 504.

Seaside also presses in its Reply that ( 1) a civil complaint filed by the Harringtons in a separate

case against the Realty Company, and (2) a complaint filed with the Maine Department of

Professional and Financial Regulation Real Estate Commission contain facts that contradict the

Harringtons' positions in this litigation. (Def 's Reply Pl.'s Opp. Summ. J. 1-2.) This argument

lacks merit. According to Seaside, the Harringtons cannot simultaneously argue the fees were

invalid and improperly assessed in this case, while also asserting in these other matters that the

Realty Company failed to disclose the fees the Harringtons would incur as owners of their unit.

The civil complaint alleges Y ark Realty Co. and other named parties breached obligations to

provide various documents, including the Association's budget calculation, and failed to fully and

truthfully advise them in their purchase of the Condominium. (Def. 's Reply Pl.'s Opp. Summ. J.,

Ex. A. at 3.) In neither document is there an admission, express or implied, that the specific fee

amounts sought by Seaside in this case are valid. Instead, the complaints generally allege York

Realty Co. failed to provide information or provided false information. If the Harringtons are

ultimately found responsible for the difference in the fees here, that could be relevant to those

proceedings, but at the present stage in this case, the court need not speculate. The Harringtons

are entitled to pursue their rights against the Realty Company.

The Harringtons' allegations largely rely on the theory the Declaration was

"amended" based on oral representations by Tony LaRosa, and the apparent methodology

for calculating budgets and assessments prior to 2012. (Pl.'s S. Addt'l M. F.~~ 3-10.;

Pl.'s Mem. Opp. Mot. Summ. J. 4.) It is undisputed that an amended Declaration was

never filed or recorded at the Registry of Deeds. (Pl.'s Resp. Def. 's S.M.F. ~ 2.) The

Harringtons do not contend that the assessments were contrary to the recorded

Declaration, but rather that the assessments are "contrary to the methodology used prior

to that time." (Pl.'s Mem. Opp. Mot. Summ. J. 4.)

Even assuming that Tony LaRosa made these representations and these

representations can be imputed to the Association, 6 the Harringtons' argument fails as a

matter of law. The Condominium Act explicitly provides "Every amendment to the

declaration must be recorded and is effective only upon recordation." 33 M.R.S. § 1602-

117(c). While the Harringtons argue the Declaration is a contract, and thus could

conceivably be amended without a writing, Pl.'s Mem. Opp. Mot. Summ. J. 5, the

express language ofthe Condominium Act controls.

The Declaration as recorded and in effect is therefore the proper measure for the

validity of the assessments in this case.

2. Whether the Assessments Were Proper

Having concluded that an oral representation could not have amended the

Declaration, there remains whether the methodology used to calculate the budget and

make assessments was proper under Maine law and the Declaration. Under the Maine

Condominium Act,

This is not very clear, as the Harringtons do not explain when, where, or how the representation

was made.

The declaration shall allocate a fraction or percentage of undivided

interests in the common elements and in the common expenses of the

association and a portion of the votes in the association to each unit and

state the formulas used to establish those allocations.

33 M.R.S. § 1602-107.

The manner in which the Association interpreted and implemented the

Declaration and Bylaws on budgeting and assessment calculations is a factual question.

Viewing the summary judgment record before the court, it remains unclear why the

Harrington assessment more than doubled after 2011, how the assessments were

calculated pre- and post-2011, and whether those calculations remained consistent with

the Declaration and Bylaws. The court has no obligation to search the record outside the

statements of material facts. Levine v. RB.K. Caly Corp., 2001 ME 77, ~9, 770 A.2d 653.

Seaside principally relies on the affidavits of Sean Nolan, Treasurer of the Association

Board, and Nancy Tewksbury, President of the Board. These affidavits declare without

any further explanation that the budgets and assessments were accurate and in accordance

with the governing documents. (Def. 's S.M.F. ~ 18: "The budgets from 2011 through

2014 were passed in accordance with the Declaration and Bylaws.") Conclusory

assertions do not entitle Seaside to summary judgment: "Conclusions of fact and law do

not properly belong in an affidavit filed in support of a motion for summary judgment.

Nor should a movant rely upon statements purporting to ... interpret the contents of

documents." Town of Orient v. Dwyer, 490 A.2d 660, 662 (Me. 1985) (citations omitted).

It is undisputed that the Harrington Unit was responsible for a 38.7% assessment of

common expenses (excluding limited common elements), Def.'s S.M.F. ~ 5, but the

parties' affidavits dispute how this percentage was to be applied to what utilities. Abbott

v. LaCourse, 2005 ME 103, ~ 10, 882 A.2d 253 ("Trial by affidavit when there are issues

of fact in dispute is inappropriate.").

At a minimum, the Association has not followed Article 3, Section 3.3(c) of the

Declaration, which requires electric, sewer, telephone, and cable services be separately

metered. Seaside points out "there are no separate meters, which makes it impossible

completely [sic] separate the utilities." (Def.'s Resp. Pl.'s Addt'l S.M.F. ~ 23.) While

perhaps a valid practical explanation, failing to separately meter these utilities

contravenes the express terms of the Declaration and raises questions as to whether costs

were allocated equitably. In lieu of separate metering, Seaside has divided utilities "by

square footage of ownership in accordance with the spirit of 5.3(a) of the Bylaws." It is

not clear the methodology used to calculate those allocations comports with the "spirit"

of that provision. If the Association's allocation methods changed without amending the

Declaration, and the allocation method remained consistent the Declaration, the

Declaration is reasonably susceptible to more than one interpretation and thus ambiguous.

An ambiguous condominium declaration provision presents a question of fact-adequate

grounds to deny summary judgment. Farrington's Owners' Ass 'n, 2005 ME 93, ~~ 10,

14, 878 A.2d 504.

In sum, disputed issues of material fact remain that preclude the entry of summary

judgment on Seaside's counterclaim. While the Harringtons raise a number of allegations

in their suit, the narrow issue remaining in this case is whether the assessments are valid

under the Declaration, the Bylaws, and the Maine Condominium Act. If Seaside

ultimately prevails, the Harringtons may be liable for attorney's fees pursuant to the Act.

33 M.R.S. § 1603-116(g) ("A judgment or decree in any action or suit brought under this

section shall include costs and reasonable attorney's fees for the prevailing party."); see

also Stage Neck Owners Ass 'n v. Poboisk, 1999 ME 52,~~ 9-10, 726 A.2d 1261.

The clerk will make the following entry, by reference, on the docket:

The Defendants' Motion for Summary Judgment on the counterclaim for outstanding

assessments is hereby DENIED.

SO ORDERED.

John O'Neil, Jr.

Justice, Superior Court

RE-12-250

ATTORNEY FOR PLAINTIFF:

MARSHALL J TINKLE

HIRSHON LAW GROUP PC

208 FORE STREET

PORTLAND ME 04101

ATTORNEYS FOR DEFENDANT SEASIDE CONDOMINIUM ASSOCIATION:

MATTHEW W HOWELL

JOSEF P WINKLER

CLARK & HOWELL LLC

POBOX545

YORK ME 03909

ATTORNEYS FOR DEFENDANTS AGNES LAROSA, NICHOLAS G XENOS AND

NANCY H TEWKSBURY:

MARTICA DOUGLAS

CHRISTINE KENNEDY-JENSEN

DOUGLAS DENHAM BUCCINA & ERNST

PO BOX 7108

PORTLAND ME 04112-7108

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVJL ACTION

DOCKET NO. RE-12-250 /

ROBERT HARRINGTON, ) . . •' . \ /0 l /' I.; . . '/

/ / -." · "' ~ V"j· ;;> _ ~or_>

)

Plaintiff, )

)

v. ) ORDER

)

SEASIDE CONDOMINIUM )

ASSOCIATION, et al, )

)

Defendant. )

I. Background

Plaintiff owns unit # 1 in the Seaside Condominium in York, Maine. The Seaside

Condominium has nine units, unit #1 holds a 38.7% interest in the condominium, units #2 & 3

each hold approximately 9%, and units# 4-9 each hold approximately 7% each. Plaintiffs unit

includes the basement of the building, however, there is an easement over part ofthe basement

area for the owners of units #2 & 3 to reach to utility installations. Plaintiff alleges that the condo

fees for the current year were improperly assessed in violation of the condominium's governing

documents. Plaintiff paid fees according to those assessed in 2011, and argues that the fees

which Plaintiff has not paid have improperly been attached to Plaintiffs condo. Plaintiff also

alleges that the easement over part of his unit has been overused. Plaintiff asks the Court to order

the Association to:

1) adhere to the condominium governing documents,

2) reassess the 2012 and 2013 budget and remove all liens on Unit #1,

3) acknowledge Plaintiffs rights to exclusive use of the basement and parking spots,

and to clarify those rights in the condominium governing documents,

4) an audit of the Associations financial records for the last 4 years and repayment of

any Association monies inappropriately paid out,

5) separate access be provided to the units #2 & 3 utility installation through unit #3 or

eliminate access rights through unit # 1,

6) reimburse Plaintiffs legal fees and costs for having to bring this action,

7) any other relief the Court deems just.

Defendant moves the Court to dismiss the case for failure to state a claim upon which relief may

be granted.

II. Standard of Review

The purpose of a motion to dismiss is to determine the legal sufficiency of the complaint.

Livonia v. Town of Rome, 707 A.2d 83, 85 (Me. 1998). The Court will review the motion in the

light most favorable to the plaintiff, taking the facts as stated in the complaint to be true. !d. The

Court will grant a motion to dismiss only where "it appears beyond doubt that a plaintiff is

entitled to no relief under any set offacts that he might prove in support of his claims." McAfee

v. Cole, 637 A.2d 463, 465 (Me. 1994) (citations omitted).

ill. Discussion

A. Condominium Fees

Plaintiff argues that the condominium fee has been improperly assessed. Currently,

Plaintiff holds a 3 8. 7% interest in the condominium. According to the governing document,

Plaintiff must pay fees according to their interest in the condominium. Bylaws s.5.3. The fees

are a division of the final budget, which is determined by the Executive Board of the

Association, subject to disapproval of the unit owners. Bylaws s. 5 .2. Plaintiff is contesting his

fees in comparison to other unit owners in the condominium, however, Plaintiff has not offered

the actual monetary amount of fees charged Plaintiff and fees charged other unit holders to the

Court. Nonetheless, due the nature of notice pleading the Court will deny Defendant's Motion to

Dismiss and allow Plaintiff the opportunity to prove its claim.

B. Basement Easement

Where an easement is being used for something other than its intended purpose, a party

may seek relief from the court. The Court will not rewrite easement agreements "The

construction oflanguage in an easement deed is a question oflaw. If the language of the deed is

unambiguous, the scope of a party's easement rights is determined solely from that language."

Maritimes & Ne. Pipeline, LLC v. Echo Easement Corridor, LLC, 604 F. 3d 44 (1st Cir. 201 0),

citing Crispin v. Town of Scarborough, 736 A.2d 241, 249 (Me.1999) Plaintiff has not

specifically pled that the easement is being used for its intended purpose- to access the utility

installations. Furthermore, according to the pleadings of both parties, there is an easement across

part ofunit #1 for unit #2 & 3 to access utility installations. However due to the fact of notice

pleading , the Plaintiff may use discovery to attempt to flesh out any theory that there may be an

overburdening of an existing easement and to attempt to establish a basis for the requested

relief The motion is accordingly denied at this time. 1

IV. Conclusion

Defendant's Motion to Dismiss is DENIED.

DATE:

John O'Neil, Jr.

Justice, Superior Court

The Court is however currently unaware of any theory of liability or lawful authority which

would allow as a remedy the rewriting of the Condominium's Declaration or Bylaws to order the

Association to create a new access to that area in order to make the easement unnecessary.

ATTORNEY FOR PLAINTIFFS:

SANFORD ROBERTS

SANFORD ROBERTS PA

POBOX4608

PORTSMOUTH NH 03802

ATTORNEY FOR DEFENDANTS:

MARTICA DOUGLAS

CHRISTINE KENNEDY-JENSEN

DOUGLAS DENHAM BUCCINA & ERNST

PO BOX 7108

PORTLAND ME 04112-7108

ATTORNEY FOR DEFENDANT SEASIDE CONDOMINIUM ASSOCIATION;

MATTHEW HOWELL

CLARK & HOWELL

POBOX545

YORK ME 03909

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. RE-12-~5~

ROBERT HARRINGTON AND BETH )

E. McDERMOTT HARRINGTON, )

,')0 r\l- Yo~ -l.:y/'s/'ot ~

) '

Plaintiffs, )

)

v. ) ORDER

)

SEASIDE CONDOMINIUM )

ASSOCIATION, et al, )

)

Defendants. )

I. Background

Plaintiffs have brought this action against Defendants in order to challenge the condominium fees

assessed against their condominium and the use of an easement across their condominium. Plaintiffs have

filed Motions for Sanctions against Attorney Josef Winkler and Attorney Christine Kennedy-Jensen,

Motions to Compel, Motions to Waive Alternative Dispute Resolution, a Motion to Compel Registered

Agent to Refile Annual Report, and a Motion for Hearing on the Motions. Defendants have moved the

court for costs and fees associated with Plaintiffs' Motions for Sanctions and have moved the court to

declare Plaintiff Robert Harrington in violation of the rule prohibiting the unauthorized practice of law.

The Court raises, sua sponte, the issue of the "assented" to proposed orders submitted by Plaintiffs.

II. Discussion

A. Plaintiffs' Motion for Sanctions against Attorney Josef Winkler

Plaintiffs have moved the court for sanctions against Attorney Josef Winkler on the basis that he filed

with the court a cover letter to Attorney Kennedy-Jensen's 26(g)(2) Motion requesting an order to compel•

discovery. Attorney Winkler's law firm had already entered an appearance in the small claims case,

which had been consolidated with the present matter. Plaintiffs contend that Attorney Winkler's action

was fraudulent because he did not personally enter an appearance prior to filing the letter with the court,

and that they were damaged because they had to return to Maine to address Attorney Winkler's request.

The court takes all allegations of attorney misconduct very seriously. However, Attorney Winkler's

conduct pointed to by Plaintiffs is entirely compliant with the rules. Plaintiffs' sustained finger pointing,

insisting that Attorney Winkler acted willingly and knowingly in an attempt to defraud Plaintiffs, is

without merit. The court expects parties to disagree on the merits of the case and to strongly advocate for

their opinions. Nordberg, Inc. v. Telsrnith, Inc., 82 F.3d 394, 398 (Fed. Cir. 1996). The court also expects

parties to express these positions civilly, and without personal attack. See Id.

B. Plaintiffs' Motion to Compel

Plaintiffs have moved to compel the requests made by Plaintiffs of Defendants in a letter dated

October 27, 2013 1 Plaintiffs argue that because the requests are for information and documents

requestable through the Maine Condominium Act, the Plaintiffs' request is made pursuant to the Act and

therefore Defendants have only the 10 days permitted in the Act to provide the information and

documentation. 33 M.R.S. § 1603-118 (b)(2) (2012). Defendants argue that Plaintiffs have made a mixed

discovery request for documents and interrogatories. Therefore, Defendants argue that they have the 30-

days permitted by Rules 33 and 34 of the Maine Rules of Civil Procedure to provide the information and

documentation. M.R. Civ. P. 33 & 34.

Blacks Law Dictionary defmes discovery as: "[ c]ompulsory disclosure, at a party's request, of

information that relates to the litigation." Black's Law Dictionary (9th ed. 2009). Furthermore, The

Condominium Association has the right to withhold information that would otherwise be subject to

inspection pursuant to the Condominium Act if it pertains to ongoing litigation. 33 M.R.S. § 1603-118

(c)(3) (2012). Because Plaintiffs have made the requests for information as part of their case, the requests

are categorized as discovery, and are exempt from inspection pursuant to the Condominium Act. They are

afforded the timeline set out in the Maine Rules of Civil Procedure.

Finally, Rule 26(g) requires parties to confer with one another in good faith prior to involving the

court in disputes over discovery. Not only did Plaintiffs fail to civilly discuss their dispute with

Plaintiffs have moved the court to compel or raised Defendant's alleged non-compliance with their requests six

separate times.

Defendants' counsel prior to filing their Motion to Compel, Plaintiffs threatened to involve the court in

the discovery process in their initial written request for information and documents. This motion is not

compliant with the Maine Rules of Civil Procedure. Plaintiffs' motion to compel is denied.

C. Plaintiffs' Motion for Sanctions against Attorney Christine Kennedy-Jensen

Plaintiff has moved for sanctions against Attorney Christine Kennedy-Jensen for failing to respond to

Plaintiffs' requests as set forth in the October 27th letter in the time set by Plaintiffs. As Plaintiff did not

afford Defendants the time allotted by the Maine Rules of Civil Procedure for discovery requests,

Defendants' were not required to respond by the date appointed by Plaintiff. Because Defendants were

not required to respond by the date appointed by Plaintiff, Defendants' attorney, Attorney Christine

Kennedy-Jensen, has acted in an appropriate manner. Plaintiffs' motion for sanctions is inappropriate.

The court reiterates the seriousness of allegations of attorney misconduct and the expectation that

parties will civilly advocate for the merits of their respective positions. The court denies Plaintiffs'

motion for sanctions.

D. Plaintiffs' Motion to Waive Alternative Dispute Resolution

Plaintiff moves the court to waive the required Alternative Dispute Resolution. Rule 16B of Maine

Rules of Civil Procedure requires all contested civil actions be subject to the alternative dispute resolution

process. M.R. Civ. P. 16B. Plaintiffs argue that mediation should be waived because "Defendants choose

not to plan to mediate in good faith as is evidenced by the record in the case file and as evidenced by the

documentation provided in this Motion to Waive ADR." Defendants oppose the waiver of ADR, arguing

that they hope to mediate in good faith. The court takes Defendants at their word, that they plan to

mediate in good faith. The court denies Plaintiffs' motion to waive Alternative Dispute Resolution.

E. Plaintiff's Motion to Compel Registered Agent to Refile Annual Report

Plaintiff has moved the court to compel Defendant Seaside Condominium Association's registered

agent to refile its annual report alleging that the registered agent registered the association as a nonprofit

corporation in good standing when it was not, in fact, in good standing. As explained in Defendant's

opposition, a registered agent does not make the determination of whether a nonprofit corporation is in

good standing. The Maine Secretary of State makes the determination. The court has no reason to second

guess the Maine Secretary of State's acceptance ofthe Seaside Condominium Association's Annual

Report as complete or to doubt the determination made by the Maine Secretary of State that the

Association is in good standing. The court denies Plaintiff's Motion to Compel Registered Agent to

Refile Annual Report.

F. Unauthorized Practice of Law and Draft Orders

Defendants argue that Plaintiff Robert Harrington, Ph. D., is not an attorney and may not enter an

appearance on behalf of his wife, Beth Harrington. "No person may practice law or profess to practice

law within the State or before its courts ... unless that person has been admitted to the bar of this State". 4

M.R.S. § 807(1) (2012). The unauthorized practice of law is a class E crime. Id. at§ 807(2). This rule

does not apply to an individual representing him or herself. Id. at§ 807(3)(b). Ms. Beth Harrington must

sign all filings herself, they must not be signed by Robert Harrington on behalf of Beth Harrington.

Additionally, Ms. Beth Harrington must represent herself in court.

Plaintiffs have submitted multiple proposed orders with their filings stating that the suggested order is

"Assented" to. This terminology means that the parties are in agreement. Plaintiffs do not state in their

motions that they have the consent of Defendants in proposing the requested orders. The Defendant's

opposition demonstrates that Defendants do not agree to the suggested orders Plaintiffs propose.

Plaintiffs' acts of filing these proposed orders with the court without "belief there is good ground to

support [them]", are sanctionable.

G. Motion for Hearing

The court denies Plaintiffs' request for oral argument on the motions. Plaintiffs' motions do not have

merit and do not warrant oral argument. Plaintiffs will be given "the chance to meet [Defendants'

Counsel] and perhaps get to know each other better" in Alternative Dispute Resolution. The court relies

upon both parties' good faith efforts in "establish[ing] a working relationship". However, that is not the

purpose of oral argument, nor is a hearing appropriate at this time.

H. Defendant's Motion for Costs and Fees

Defendants have moved the court for costs and fees accrued in defending against Plaintiff's motions

for sanctions against Attorneys Winkler and Kennedy-Jensen.

The signature of an attorney or party constitutes a representation by the signer that the

signer has read the pleading or motion; that to the best of the signer's knowledge,

information, and belief there is good ground to support it; and that it is not interposed for

delay .... If a pleading or motion is signed with intent to defeat the purpose of this rule,

the court, upon motion or upon its own initiative, may impose upon the person who

signed it, upon a represented party, or upon both, an appropriate sanction, which may

include an order to pay to the other party or parties the amount of the reasonable expenses

incurred because of the filing of the pleading or motion, including a reasonable attorney's

fee.

Plaintiffs brought repeated meritless motions that Defendants were forced to defend against. The Law

Court has "repeatedly held that pro se parties are subject to the same standards as represented parties."

Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994). These motions are ofthe type Rule 11 was written to

protect parties against. In fact, Plaintiff has repeatedly submitted motions containing the same arguments

and requests, requiring Defendants to respond more than once to the same motions. The court awards

reasonable costs to the Defendants but will suspend execution of the award pending ongoing compliance

by the Plaintiffs with court rules, particularly those requiring attempts to work out discovery disputes

before requesting court orders.

III. Conclusion

The court DENIES Plaintiffs' Motions for Sanctions, Motions to Compel, Motion for Waiver of

Alternative Dispute Resolution, Motion to Compel Registered Agent to Refile Annual Report, and

Motion for Hearing. The Defendants may submit a bill of costs and fees with regards to the defense of

Plaintiff's Motions for Sanctions so that all may be aware of what is at stake if the sanctions award

becomes unsuspended.

DATE:

John O'Neil, Jr.

Justice, Superior Court

PLAINTIFFS ARE PRO SE

ROBERT G HARRINGTON

BETH E MCDERMOTT HARRINGTON

2023 HOGAN DRIVE

LAWRENCE KS 66047

ATTORNEY FOR DEFENDANT SEASIDE CONDOMINIUM ASSOCIATION :

MATTHEWWHOWELL

JOSEF P WINKLER

CLARK & HOWELL

POBOX545

UYORK ME 03909

ATTORNEY FOR DEFENDANTS NANCY H TEWKSBURY, AGNES LAROSA,

NICHOLAS G XENOS AND SEASIDE CONDOMINIUM ASSOCIATION:

MARTICA DOUGLAS

CHRISTINE KENNEDY -JENSEN

DOUGLAS DENHAM BUCCINA & ERNST

PO BOX 7108

PORTLAND ME 04112-7108

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. RE-12-:SJ.

ROBERT HARRINGTON AND BETH )

E. McDERMOTT HARRINGTON, )

tJO t\1-Yo~ -t:;Js;Jor ~

) -'

Plaintiffs, )

)

v. ) ORDER

)

SEASlDE CONDOMINIUM )

ASSOCIATION, et al, )

)

Defendants. )

I. Background

Placintiffs have brought this action against Defendants in order to challenge the condominium fees

assessed against their condominium and the use of an easement across their condominium. Plaintiffs have

filed Motions for Sanctions against Attorney Josef Winkler and Attorney Christine Kennedy-Jensen,

Motions to Compel, Motions to Waive Alternative Dispute Resolution, a Motion to Compel Registered

Agent w Refile Annual Report, and a Motion for Hearing on the Motions. Defendants have moved the

court fi)r costs and fees associated with Plaintiffs' Motions for Sanctions and have moved the court to

declare Plaintiff Robert Harrington in violation of the rule prohibiting the unauthorized practice of law.

The Court raises, sua sponte, the issue of the "assented" to proposed orders submitted by Plaintiffs.

II. Discussion

A. Plaintiffs' Motion for Sanctions against Attorney Josef Winkler

Plaintiffs have moved the court for sanctions against Attorney Josef Winkler on the basis that he filed

with the court a cover letter to Attorney Kennedy-Jensen's 26(g)(2) Motion requesting an order to compel'

discovery. Attorney Winkler's law firm had already entered an appearance in the small claims case,

which had been consolidated with the present matter. Plaintiffs contend that Attorney Winkler's action

was fraudulent because he did not personally enter an appearance prior to filing the letter with the court,

and that they were damaged because they had to return to Maine to address Attorney Winkler's request.

The court takes all allegations of attorney misconduct very seriously. However, Attorney Winkler's

conduct pointed to by Plaintiffs is entirely compliant with the rules. Plaintiffs' sustained fmger pointing,

insisting that Attorney Winkler acted willingly and knowingly in an attempt to defraud Plaintiffs, is

without merit. The court expects parties to disagree on the merits of the case and to strongly advocate for

their opinions. Nordberg, Inc. v. Telsmith, Inc., 82 F.3d 394, 398 (Fed. Cir. 1996). The court also expects

parties to express these positions civilly, and without personal attack. See Id.

B. Plaintiffs' Motion to Compel

Plaintiffs have moved to compel the requests made by Plaintiffs of Defendants in a letter dated

October 27, 2013. 1 Plaintiffs argue that because the requests are for information and documents

requestable through the Maine Condominium Act, the Plaintiffs' request is made pursuant to the Act and

therefore Defendants have only the 10 days permitted in the Act to provide the information and

documentation. 33 M.R.S. § 1603-118 (b)(2) (2012). Defendants argue that Plaintiffs have made a mixed

discove:ry request for documents and interrogatories. Therefore, Defendants argue that they have the 30-

days pe:rmitted by Rules 33 and 34 of the Maine Rules of Civil Procedure to provide the information and

documentation. M.R. Civ. P. 33 & 34.

Blacks Law Dictionary defmes discovery as: "[ c]ompulsory disclosure, at a party's request, of

information that relates to the litigation." Black's Law Dictionary (9th ed. 2009). Furthermore, The

Condominium Association has the right to withhold information that would otherwise be subject to

inspection pursuant to the Condominium Act if it pertains to ongoing litigation. 33 M.RS. § 1603-118

(c)(3) (2012). Because Plaintiffs have made the requests for information as part of their case, the requests

are cau:gorized as discovery, and are exempt from inspection pursuant to the Condominium Act. They are

afforded the timeline set out in the Maine Rules of Civil Procedure.

Finally, Rule 26(g) requires parties to confer with one another in good faith prior to involving the

court in disputes over discovery. Not only did Plaintiffs fail to civilly discuss their dispute with

Plaintiffs have moved the court to compel or raised Defendant's alleged non-compliance with their requests six

separate: times.