The opinion
t NTERED NOV 0 4 ZOlt
STATE OF MAINE SUPERIOR COURT
Sagadahoc, ss.
St\Cr--AM H- Vl-JO- Jlf
MICHAEL DRAKE
Plaintiff
v. Docket No. SAGSC-CV-13-006
TOWN OF WEST BATH et als.
Defendants
ORDER ON PLAINTIFF'S MOTION TO ENFORCE
SETTLEMENT AGREEMENT
This case came before the court July 8, 2014 for oral argument on Plaintiff Michael
Drake's Motion to Enforce Settlement Agreement, with attorneys Reben and Therriault
present for Plaintiff and Defendant.
At the outset, Attorney Therriault advised the court that the West Bath Board of
Selectmen has agreed to honor the Settlement Agreement signed in November 2013 after
mediation, and will call a Town meeting at which the voters will be asked to consider whether
to approve one of the two settlement options outlined in the Settlement Agreement. Attorney
Reben advised the court that he had learned of the Board's decision only within the past day or
so. He also noted that Plaintiff had to incur significant delay and additional legal expense in
getting the Board to follow through on the agreement reached at mediation, and renewed
Plaintiffs request for the court to impose a sanction. Attorney Therriault spoke in opposition
to any sanction.
There was also discussion among the attorneys and the court about what obligation the
Board of Selectmen have under the Settlement Agreement to recommend approval of one or the
other of the two options mentioned in the settlement agreement. To help avoid fur:ther
disputes, the court in this Order is outlining its view of what the Settlement Agreement calls
for hereafter, and is also addressing Plaintiffs request for a sanction due to the delay.
1. The Obligations Under the Signed Settlement Agreement
The written Settlement Agreement dated November 27, 2013 includes the following
prOVISIOnS:
"1. This Settlement Agreement contains two settlement options, which the
undersigned Town officials agree to discuss with the Board of Selectmen and agree to
recommend that the Town meeting approve at least one of the options.
S. The pending Superior Court litigation will be stayed through February 28, 2014 to
provide time for the Defendants to present Option One and/ or Option Two to the Town
Meeting for approval.
7. If the Town Meeting rejects all Options, then the pending Superior Court litigation
will proceed.
In the court's view, these provisions read together call for there to be a Town meeting
at which the Town would recommend approval of"at least one of the options." There is
nothing in the document saying that the two Selectmen who did not participate in the
mediation have the right to veto the settlement. If that had been the understanding, the
agreement would have said so, instead of calling for the caseto be stayed for three months
pending the Town meeting vote.
As this court's May 6, 2014 Order indicated, Rule 16B of the Maine Rules ofCivil
Procedure required the Town to have a representative at the mediation who was authorized to
speak for the Board of Selectmen and make agreements on behalf of the Board. The Settlement
Agreement is crystal-clear that the Town Board of Selectmen could not agree to anything that
obligates the voters-only the voters can do that-but the Board of Selectmen can certainly
obligate itself, which is what the signed Settlement Agreement appears to do. If the signed
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Settlement Agreement in fact was not binding at least on the Board of Selectmen, then the
mediation was a waste oftime. In the court's view, which the Board ofSelectmen has now
apparently accepted, the signed Settlement Agreement calls for the Board to call a Town
meeting and recommend that the voters approve one or the other of the two options outlined in
the Settlement Agreement. Whichever option the Board does not recommend could still be
presented to the voters for consideration, along with the option recommended.
If the Board is not prepared to recommend one of the two settlement options for
approval, in good faith, there is little point to going forward with the process. In fact, for the
Board to call a Town meeting and fail to recommend one of the options for approval would give
the Plaintiff an addition ground on which to request sanctions against the Town. However,
unless the court is advised otherwise, the court will trust and assume that the Board's decision
to honor the signed Settlement Agreement includes calling the Town meeting and making a
recommendation.
2. Plaintiffs Requestfor Sanctions
The Settlement Agreement dated November 28, 2013 gave the Board until February 28,
2014 to schedule the Town meeting. When the court approved the Settlement Agreement
December 3, 2013, the court stayed the case to April 1, 2014 to allow a settlement to be
completed if one was approved by the voters.
According to the e-mail correspondence between the attorneys filed with the Plaintiffs
Motion, it was not until after the February 28 deadline had passed that attorney Reben learned
that the Board did not intend to call a Town meeting because the two Board members who did
not go to the mediation did not agree with the Settlement Agreement. See Exhibits B and C to
Plaintiffs Motion. Why it took from November until March for the Town to notify the
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Plaintiff that the Board was not going to honor the Settlement Agreement has not been
explained.
In any event, now that the Board has changed course, the Town meeting evidently will
occur about six months after it was supposed to under the Settlement Agreement. Plaintiff
had to file the Motion to Enforce in order to convince the Board to follow the terms ofthe
Settlement Agreement. The court agrees that, under the circumstances, some sanction is
called for. Rule 16B authorizes a sanction for a party's failure to comply with any order made
under the rule, see M.R. Civ. P. 16B(l). The order in this case was entered on December 3,
2013, when the court approved the Settlement Agreement and ordered that it be carried out,
with the case to be stayed until April.
. In the court's view, a $300 sanction is appropriate. 1 This amount is derived from two
factors. The first is the fact that Plaintiff has incurred the effort and expense of preparing his
Motion to Enforce and also attending a conference of counsel May 6 and the motion hearing
July 8. The second factor has to do with the six-month delay described above. Depending on
what happens at Town meeting, the delay will be either in payment of the settlement amount
approved by the voters or in the forward progress of this case, and in either circumstance, the
Plaintiffhas been prejudiced by the delay.
For these reasons, it is hereby ORDERED:
1. Plaintiffs Motion to Enforce is hereby granted.
1
The court has set this amount without considering Plaintiffs actual attorney fees incurred in
connection with the Motion to Enforce. If the Town objects and requests reconsideration within 10
days as permitted by M.R. Civ. 59, the court will authorize Plaintiffs counsel to submit a fee affidavit
documenting the time spent preparing the motion and attending the May 6 conference and July 8
conference, and will reconsider the sanction amount based on the affidavit.
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2. Unless the Defendant files a timely motion for reconsideration, which motion will
stay the following deadline, Defendant shall pay Plaintiffs counsel $SOO within 14 days of this
Order.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by
f!~
reference in the docket.
Dated July 10, 2014
I
/ A. M. Horton
Justice, Superior Court
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MICHAEL DRAKE - PLAINTIFF SUPERIOR COURT
PO BOX 535 SAGADAHOC, ss.
B~'"'B: ME 04530 Docket No BATSC-CV-2013-00006
rney for: MICHAEL DRAKE
DONALD FONTAINE - RETAINED
LAW OFFICES OF DONALD FONTAINE DOCKET RECORD
97 INDIA STREET
PO BOX 7590
PORTLAND ME 04112
Attorney for: MICHAEL DRAKE
HOWARD REBEN - RETAINED
REBEN, BENJAMIN & MARCH
97 INDIA STREET
PO BOX 7060
PORTLAND ME 04112-7060
vs
TOWN OF WEST BATH - DEFENDANT
219 FOSTERS POINT ROAD
WEST BATH ME 04530
Attorney for: TOWN OF WEST BATH
ROGER THERRIAULT - RETAINED
LAW OFFICE OF ROGER THERRIAULT
48 FRONT STREET
BATH ME 04530
MT~~EL DEMERS - DEFENDANT
NE HILL DRIVE
BATH ME 04530
Attorney for: MICHAEL DEMERS
ROGER THERRIAULT - RETAINED
LAW OFFICE OF ROGER THERRIAULT
48 FRONT STREET
BATH ME 04530
BARRY MACARTHUR - DEFENDANT
3 CANDY LANE
BRUNSWICK ME 04011
Attorney for: BARRY MACARTHUR
ROGER THERRIAULT - RETAINED
LAW OFFICE OF ROGER THERRIAULT
48 FRONT STREET
BATH ME 04530
Filing Document: COMPLAINT Minor Case Type: OTHER CIVIL
Filing Date: 02/12/201:3
Docket Events:
02/12/2013 FILING DOCUMENT - COMPLAINT FILED ON 02/12/2013
02/12/2013 Party(s): MICHAEL DRAKE
ATTORNEY - RETAINED ENTERED ON 02/12/2013
Plaintiff's Attorney: DONALD FONTAINE
Page 1 of 5 Printed on: 07/10/2014