# Center v. Halliday > Superior Court of Maine · November 10, 2016 URL: https://www.frixlaw.com/law-library/cases/10810923 ## Case - **Court:** Superior Court of Maine - **Decided:** November 10, 2016 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Nancy Mills - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10810923 ## Opinion text ( STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-10-317 j ROBERT N. CENTER, as Trustee of the Robert N. Center Living Trust dated December 13, 2007 .., • r , I •1 ..J of Waitsfield, Vermont, et al., - ) C. ._ ·-- . - •. 1 • . ..-- 1,, , - l..... • Plaintiffs v. ORDER ON PLAINTIFFS' MOTION FOR CONTEMPT MALCOLM F. HALLIDAY, Individually and as Trustee under the Halliday Family Trust dated May 18, 2006 of Potomac, Maryland, et al., Defendants Before the court is plaintiffs' motion for contempt filed August 16, 2016. On September 1, 2016, defendants were served with the subpoena for the hearing on plaintiffs' motion. The hearing was held on September 21, 2016. 1 Plaintiffs appeared and were represented by Attorney Metcalf. Defendants appeared and represented themselves. For the following reasons, the court finds by clear and convincing evidence that defendant Malcolm Halliday is in contempt of the terms of the 2011 stipulated judgment. Background Plaintiffs allege defendants have violated the terms of the stipulated judgment agreed to by the parties and signed by the parties' attorneys and a Superior Court justice on April 29, 2011. (Pis.' Ex. 2; Tr. of April 29, 2011 Hr'g.) The stipulated judgment resolved plaintiffs' 2010 complaint against defendants, in which plaintiffs sought, among other things, a declaratory 1 The September hearing was scheduled expeditiously and especially to accommodate defendants , who planned to travel very shortly after the hearing _to Maryland for the winter. 1 ( judgment with regard to easements and boundaries pertaining to the parties' adjoining properties. (Comp!. Counts I, II, IV, V; Pls.' Ex. 1.) The stipulated judgment provides, in relevant part: Plaintiffs' land described in paragraph 1 is burdened by an easement for the right of ingress and egress across the existing gravel road, in the path, route and width of that existing gravel road as depicted on the Standard Boundary Survey [the Plan] ... This easement is solely for the purpose of ingress and egress, by pedestrian and vehicular means, and does not include the right to park or store anything on any of the land of the Plaintiffs for any length of time. The Defendants, individually and as Trustees, their agents, servants, employees, representatives, guests and invitees, and successors in title and those that act in concert with them are hereby PERMANENTLY ENJOINED from parking or storing anything on the Plaintiffs' property as described in paragraph 1 hereof and when exercising their easement rights of ingress and egress they are further PERMANENTLY ENJOINED from deviating from the path, route, and width of the graveled right of way as depicted on the face of the earth as shown on the Plan and the tax map as attached to the complaint as Exhibit C. The Plan depicts a Path to Shore which is a pedestrian pathway. It is hereby found that the Plaintiffs have the right to use and maintain that pedestrian pathway without disturbance, interference or disruption. The Defendants, individually and as Trustees, their agents, servants, employees, representatives, guests and invitees, and successors in title and those that act in concert with them are hereby PERMANENTLY ENJOINED from altering or disturbing the pedestrian pathway and its components and from interfering with or obstructing the use of the pedestrian pathway by the Plaintiffs, their guests, invitees, agents, employees, servants, attorneys, and successors in interest. (Pls.' Ex. 2 !! 3, 6, 10, 11.) Plaintiffs now allege defendants have violated the terms of the permanent injunction by (1) parking their vehicle on plaintiffs' property; (2) trespassing on plaintiffs' property by moving a compost pile, dumping plaintiffs' flower pots and planters, throwing the planters into the woods, defacing landscaping rocks and fence posts across plaintiffs' property, and leaving notes on plaintiffs' car; and (3) erecting blockades to prohibit plaintiffs' use of their path to the shore. (Pls.' Mot. 4-8 .) Plaintiffs seek remedial sanctions, 2 ,, ( ( including compensatory and coercive fines, coercive imprisonment, and attorneys' fees. M.R. Civ. P. 66(d)(3). Findings of Fact Within days of the signing of the stipulated judgment, defendant Malcolm Halliday parked his car on plaintiffs' property and trespassed on plaintiffs ' property . (Pls. ' Ex . 3; Pls.' Ex. 2 ~ 3.) Plaintiffs have never given defendants permission to enter plaintiffs' property in violation of the terms of the stipulated judgment. In July or August 2011, defendant Malcolm Halliday trespassed again on plaintiffs' property and , in a fit of rage, dumped plaintiffs' flower pots. (Pis.' Ex. 2 ~ 6 .) Plaintiffs contacted defendants' attorney, who wrote to defendants and reminded them about the terms of the stipulated judgment and the conduct the stipulated judgment prohibited. (Pls.' Ex. 4.) Again in 2011, defendant Malcolm Halliday trespassed on plaintiffs' property. (Pls.' Ex. 3 7; Pis.' Ex. 2 ~ 6.) In the spring of 2012, plaintiffs tried to delineate defendants' right of way with landscaping based on the survey. (Pis.' Ex . 2 ~ 3 .) A surveyor visited the property to ensure the boundaries were correct. 2 Notwithstanding, defendant Malcolm Halliday trespassed on plaintiffs' property and painted plaintiffs' landscaping rocks and fence posts, which were not located in defendants' easement. (Pis.' Ex. 5; Pls.' Ex. 2 ~ 6.) Plaintiffs understood a deputy sheriff spoke to defendants about the rocks and fence posts. Defendant Malcolm Halliday admitted at the hearing he painted trees on plaintiffs' property with yellow paint. (Pis.' Exs. 12, 13 .) On September 8, 2016, plaintiff Henry was . standing on plaintiffs' property near the boundary line, several feet from the fence. (Pis .' Ex . 13 .) Defendant Malcolm Halliday 2 The surveyor set the pins but they disappeared. He set the pins again. Plaintiffs have paid nearly $2000 to the surveyor. 3 ( ( trespassed on plaintiffs' property by driving his car on plaintiffs' property at a fast pace toward plaintiff Henry. (Pis.' Ex. 2 '1 6.) Plaintiff Henry was fearful and stepped to the side. Also on September 8, 2016, both defendants approached plaintiffs and told them to get off defendants' property; plaintiffs were on their own property at the time. (Pis.' Ex. 12 3.) On September 13, 2016, plaintiffs found a wheelbarrow on their property that was not plaintiffs' wheelbarrow. (Pis.' Ex. 14.) After defendants returned from Maryland in spring 2016, a note from both defendants was placed on plaintiffs' car, stating, incorrectly, that plaintiffs were parked in the wrong place. (Pis.' Ex. 9 .) Plaintiffs' car was parked appropriately on their land, as depicted on the last page of exhibit 3, and placing the note required trespassing on plaintiffs' property. (Pis.' Ex. 3; Pis.' Ex. 2 '1. 6.) Plaintiffs do not park on the right of way reserved for defendants' benefit. (Pis.' Ex. 2 '1 3.) Plaintiffs photographed the note and contacted their attorney. They were concerned because this behavior was becoming more aggressive. A deputy went to defendants' property to speak to them. The next morning, on July 29, 2016, plaintiffs found that their pedestrian pathway to the shore had been blocked by defendants' car and by branches, leaves, and a rope. (Pis.' Ex. 11; Pis.' Ex. 2 '1! 10-11.) The right of way remains blocked. Defendant Malcolm Halliday agreed at the hearing he enlisted his grandson to put the rope across the path. After July 29, plaintiffs found a manila envelope on their car and received a letter signed by both defendants, who alleged, incorrectly, that plaintiffs were parking their car on defendants' right of way. (Pis.' Ex. 10 .) Plaintiffs were parked appropriately on their driveway. Placing the envelope required trespassing on plaintiffs' property. (Pis.' Ex. 2 ! 6.) 4 In August 2016, plaintiffs requested that surveyors mark the boundary between the parties' property. Defendant Malcolm Halliday challenged the surveyors, who left to avoid confrontation. The surveyors returned on September 8, 2016 and defendant Malcolm Halliday was again present on plaintiffs' property. (Pls.' Ex. 12; Pls.' Ex. 2, 6.) In 2013, after the stipulated judgment was signed, defendants sued plaintiffs for damages allegedly resulting from redirection of runoff water from plaintiffs' property after construction of plaintiffs' new home. Plaintiffs' construction was completed in 2004. In spring 2005, defendants complained to plaintiffs about the water. Defendants' complaint was filed in 2013. Summary judgment was granted in favor of plaintiffs because their complaint was not filed within the statute of limitations. (Pis.' Ex. 6.) Defendants appealed and the judgment in favor of plaintiffs was affirmed by decision dated May 12, 2015. (Pis.' Ex. 7.) The Law Court concluded defendants' complaint was barred either by the three-year or six-year statute of limitations. See 3 Halliday v. Henry, 2015 ME 61, ' ' 8-9, 116 A.3d 1270; 17 M.R.S.' 2808 ; 14 M.R.S. § 752. On June 8, 2015, fewer than 30 days after the affirmance, defendants filed another complaint against plaintiffs and alleged the same facts as in the 2013 complaint. The 2015 complaint was dismissed based on claim preclusion. (Pis.' Ex. 8.) Defendants also have reported three attorneys, including plaintiffs' Attorney Metcalf, to the Board of Bar Overseers based on the cases related to defendants' disputes concerning their property. (See Defs.' Docs. filed September 9 & 14, 2016.) Defendants appealed the dismissal of one of the complaints against an attorney. Defendants also have reported two Superior Court justices to the Committee on Judicial Responsibility and Disability based on these cases. (See Defs.' Docs. filed September 14, 2016.) 3 Defendants cited this statute several times during the hearing on the motion for contempt. 5 , I In conversation with plaintiff Robert Center, defendants have relied on the 2016 Cedar Beach decision to justify their refusal to obey the terms of the 2011 stipulated judgment. See Cedar Beach/Cedar Island Suppo,ters, Inc. v . Gables Real Estate. LLC , 2016 ME 114, _ A.3d _. At the hearing on the motion for contempt and in their filings, defendants continued to complain at length about the alleged runoff water from plaintiffs' property. (See Defs.' Docs. filed September 14, 2016.) Defendant Malcolm Halliday's opinions regarding the allegations in the motion for contempt and the accuracy of the attached survey appear in his handwriting on plaintiffs' exhibit 17. (Pls .' Ex. 17 .) The words, "lie, false, perjury, knowingly misrep" and various ad hominem attacks on Attorney Metcalf appear on the document. Defendant Malcolm Halliday asserts the survey, on which the stipulated judgment was based, is "false." The handwriting on exhibits 9 and 10 is the same as defendant Malcolm Halliday's handwriting on exhibit 17. He wrote the note and the envelope. (Pls.' Exs. 9-10.) He added defendant Ingigerdur Halliday's name to the note. (Pls.' Ex. 9.) She apparently signed the envelope. (Pls.' Ex. 10.) Based on his other conduct, the court reasonably infers defendant Malcolm Halliday trespassed on plaintiffs' property to place the note and envelope on plaintiffs' car. Both defendants participated at the hearing on the motion for contempt. They are capable people who can read, write, speak, and drive. (Pls.' Ex. 12.) Defendant Malcolm Halliday has a Ph.D. and described himself as a scholar and a former principal of a school. Both defendants have the power to conform their conduct to the terms of the 2011 stipulated judgment. M.R. Civ. P. 66(d)(2)(D)(ii). 6 Conclusions of Law In order for the court to find defendants in contempt, plaintiffs must prove by clear and convincing evidence that defendants have "failed or refused to perform an act required or continue[] to do an act prohibited by a court order, and" it is within defendants' "power to perform the act required or cease performance of the act prohibited." M.R. Civ. P. 66(d)(2)(D)(i) & (ii); see Sullivan v. Tardiff, 2015 ME 121, ! 18, 124 A.3d 652. Plaintiffs have proved by clear and convincing evidence that defendant Malcolm Halliday intentionally violated the terms of the parties' stipulated judgment when he (1) parked his vehicle on plaintiffs' property; (2) repeatedly trespassed on plaintiffs' property while he dumped flower pots, painted rocks, fence posts, and trees, challenged surveyors hired by plaintiffs, left notes on plaintiffs' car, and tried to hit plaintiff Henry while driving his car; and (3) interfered with and obstructed . plaintiffs' use of their path to the shore. (Pis.' Ex. 2 !! 3, 6, 10, 11.) Plaintiffs have not proved that defendant Ingigerdur Halliday violated the terms of the parties' stipulated judgment. Based on her conduct and statements at the hearing on the motion for contempt, she clearly disputes the terms of the stipulated judgment. During defendant Malcolm Halliday's testimony regarding plaintiffs' path to the shore, defendant Ingigerdur Halliday interjected, "It's my property." Signing a notice to plaintiffs is not, however, a violation of the terms of the stipulated judgment. Without question on this record, defendant Malcolm Halliday is the culpable party. Defendant Malcolm Halliday had been warned by his attorney and by deputies about continuing to engage in conduct that violates the terms of the stipulated judgment. (See~' Pls.' Ex. 4.) Defendant Malcolm Halliday had the power to cease parking on plaintiffs' property, 7 trespassing on plaintiffs' property, and obstructing plaintiffs' path. He intentionally refused to conform his conduct to the terms of the court's injunction. Defendants' lawsuits against plaintiffs, their reports of attorneys and justices to professional authorities, and defendant Malcolm Halliday's conduct directed toward plaintiffs and their property are mean spirited. Defendants' refusal to accept the determination of three courts that their allegations about runoff water from plaintiffs' property are not actionable reflects disrespect for the court. Defendants' conduct during the hearing on the motion for contempt also reflects disrespect for the court. Defendant Malcolm Halliday's intentional refusal to obey the 2011 injunctive order from the Superior Court because he does not agree with the terms further reflects disrespect for the court and plaintiffs and is without defense or mitigation. M.R. Civ. P. 66(d)(2)(D). Plaintiffs have attempted without success to resolve this difficult situation and achieve compliance with the terms of the stipulated judgment without resort to the court. Plaintiffs have now dealt with defendant Malcolm Halliday's contemptuous conduct for more than five years. Based on the above considerations, the court is concerned about defendant Malcolm Halliday's future compliance with the terms of the 2011 stipulated judgment and will order relief pursuant to Rule 66 to encourage compliance with the 2011 court order, which remains in full force and effect. M.R. Civ. P. 66(d)(3). Conclusion and Remedy By parking his car on plaintiffs' property, repeatedly trespassing on plaintiffs' property, and obstructing plaintiffs' path to the shore, defendant Malcolm Halliday has violated the provisions of the parties' stipulated judgment dated April 29, 2011 and is in contempt of the court's order. (Pls.' Ex. 2 ii 3, 6, 10, 11.) 8 ( The following is ORDERED: l. Defendant Malcolm Halliday is sentenced to five days at the Cumberland County Jail. Sentence is stayed until December 9, 2016 to give Defendant Malcolm Halliday an opportunity to purge his contempt by removing permanently every obstruction on Plaintiffs' Path to Shore. M.R. Civ. P. 66(d)(3)(B); (Pls.' Ex. 2 !1 10-11.) Defendant Malcolm Halliday has the ability to remove the obstruction personally or through an agent by December 9, 2016. See Wrenn v. Lew is, 2003 ME 29, 1 28, 818 A.2d 1005. 2. Defendant Malcolm Halliday will pay a $5 ,000 .00 coercive fine to the Treasurer, State of Maine. Payment of the fine is suspended to give Defendant Malcolm Halliday an opportunity to comply with the terms_ of the Stipulated Judgment dated April 29, 2011. (Pis.' Ex. 2.) The fine will be due in full if Defendant Malcolm Halliday violates any of the terms of the Stipulated Judgment. M.R. Civ. P. 66(d)(3)(B). 3. Within 21 days of the date of this order, Plaintiffs' attorney will file an affidavit of attorneys' fees and costs incurred in prosecuting Plaintiffs' Motion for Contempt. M.R. Civ. P. 66(d)(3)(C). In the affidavit, Plaintiffs' attorney shall address the factors specified in Gould v. A-1 Auto . Inc., 2008 ME 65, ! 13, 945 A .2d 1225 and shall include the language required by M.R. Civ. P. 7(b)(l)(A). The clerk is directed to incorporate this order into the docket by reference. M .R. Ci v . P. 79(a) . Date: November 10, 2016 Nancy Mills Justice, Superior Court 9 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-)}~-?;7 rvM - Cu Nl- J,;+ ,Y'°10 /0 ROBERT N. CENTER, et al., Plaintiffs ORDER ON MOTION FOR v. PRELIMINARY INJUNCTION MALCOLM F. HALLIDAY, et al., Defendants Before the court is a motion for preliminary injunction pursuant to M.R. Civ. P. 65. Plaintiffs Robert N. Center and Kathryn W. Henry request that this court enjoin the defendants, Malcolm F. Halliday and Ingigerdur K. Halliday, from (1) parking on the plaintiffs' lawn and from deviating from the graveled right of way as depicted on the tax map; (2) interfering with the plaintiffs' right of way across the defendants' land;1 and (3) altering or disturbing a pedestrian pathway over which the plaintiffs claim they have a right of passage. For the following reasons, the motion is granted in part and denied in part. BACKGROUND According to the verified complaint, the plaintiff, Robert N. Center, as trustees of the Robert N. Center Living Trust, and plaintiff Kathryn W. Henry, as trustee of the Kathryn W. Henry Living Trust, own land located in Harpswell, Maine. 2 The 1 The plaintiffs do not address this request in their memorandum. 2 The plaintiffs are also owners of a second, distinct parcel of land located in Harpswell, Maine. 1 defendants, as trustees of the Halliday Family Trust, are the owners of adjacent property and access their property by a gravel right of way, which the plaintiffs assert "has appeared on the face of the earth in an unchanged fashion for no less than 40 years." (Compl.