The opinion
STATE OF MAINE SUPERIOR COURT
YORK, ss. Civil Action
Docket No. AP-16-0037
TIBOR & IBOL YA KORMENDY
Plaintiffs, 1
ORDER ON PENDING MOTIONS
v. & AMENDED BRIEFING SCHEDULE
TOWN OF KENNEBUNK,
Defendant.
A. Motions
The court hereby rules on the following pending motions filed by Plaintiffs in
this matter.
1. Motion to Reconsider
The motion for reconsideration of the June 9, 2017 order that denied Plaintiffs'
motion for reimbursement for extra costs of service of process is DENIED. It is
premature to request and/ or award any costs at this time.
2. Motion to Amend Pleadings
Plaintiffs have moved to amend the pleadings. The Town of Kennebunk's
opposition asserts that the subject matter of the proposed amendment(s) relate to two
separate and distinct administrative board decisions, one on January 31, 2017 and the
1 The initial complaint in this matter names Tibor and Ibolya Kormendy as plaintiffs. All
subsequent pleadings have been styled as "Tibor Kormendy, et al." All pleadings bear only
Tibor Kormendy's signature. Unless licensed as an attorney at law, Tibor Kormendy is
prohibited from practicing law by representing another individual before the court. See 4
M.R.S. § 807. If Ibolya Kormendy intends to remain a party to this action, she may represent
herself, in which case she shall sign all pleadings going forward, or she may retain counsel to
represent her.
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other on April 4, 2017; and to the extent that the amended complaint purports to appeal
either of the two decisions, it is untimely.
Because amendments should be freely granted, and because it is difficult to
determine from the motion itself whether the "subsequent actions" referenced pertain
to the instant administrative action on appeal or other, separate actions, the motion to
amend is GRANTED. These issues will be sorted out in the briefing and argument of
this appeal. The court deems the representations set forth in the motion to constitute
the amended complaint, and waives the necessity for the Town to file a responsive
pleading. Plaintiffs shall submit an amended brief and supplemental record as set
forth below.
3. Motion for Writ or Injunction
Plaintiffs' motion for writ or injunction asserts that members of the Board of
Assessment Review are acting in violation of their legal duties and that the Board's
procedural rules are deficient. The motion seeks to enjoin the Board and its members
from undertaking any action with regard to Plaintiffs and to enjoin the Town of
Kennebunk from using, applying or enforcing the Board's procedural rules. It appears
that the motion raises issues already before the court in the complaint, as amended.
The court will consider these issues in the context of the instant Rule SOB appeal. The
motion is DENIED.
4. Motion to Vacate
This motion requests an order vacating a 2013 tax increase as well as
consequential tax increases based thereon in subsequent years, and seeks a refund of
said increases as well as costs incurred in bringing the motion. Again, to the extent the
motion addresses issues that overlap with the instant Rule SOB appeal, the court will
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address them in that context. If the motion otherwise purports to raise issues arising
out of prior administrative actions, it is untimely. The motion is DENIED.
5. Motion for Trial on the Facts
Along with the complaint, Plaintiffs filed a motion for trial on the facts pursuant
to Rule SOB(d). The rule requires that along with such a motion the moving party
"shall also file a detailed statement, in the nature of a an offer of proof" that "shall be
sufficient to permit the court to make a proper determination as to whether any trial of
the facts as presented in the motion and offer of proof is appropriate under this rule and
if so to what extent." M.R. Civ. P. 80B(d). No such "detailed statement" was filed
with the motion. The motion for trial on the facts is therefore DENIED. Adelman v.
Town of Baldwin, 2000 ME 91 en: 6, n.5; Ryan v. Camden, 582 A.2d 973, 974 (Me. 1990).
B. Amended Briefing Schedule
The briefing schedule in this case is amended as follows:
1. Plaintiffs' Filed Brief/Record
If he has not already done so, Plaintiffs shall serve Defendant with a copy of the
brief and record already filed with the court no later than 40 days from the date of this
order.
2. Plaintiffs' Amended Brief/Supplemental Record
Plaintiffs shall file and serve an amended brief by that same deadline, i.e. no later
than 40 days from the date of this order. Plaintiffs shall also supplement the record
with respect to issues presented by way of the amended complaint, and shall submit a
complete copy of the record of the proceedings, as supplemented, on or before the
foregoing date (i.e. no later than 40 days from the date of this order), with a copy to
Defendant.
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3. Defendant's Brief
Defendant's brief shall be filed 30 days after service of Plaintiffs' amended
brief.
4. Reply Brief
Plaintiffs have 14 days after service of Defendant's brief to file a reply brief.
A timely motion under the Maine Rules of Civil Procedure may suspend the
running of these time limits. FAILURE OF PLAINTIFFS TO COMPLY WITH THESE
REQUIREMENTS WILL RESULT IN DISMISSAL OF THIS APPEAL. FAILURE
OF DEFENDANT TO COMPLY WITH THESE REQUIREMENTS MAY FORFEIT
THE RIGHT TO BE HEARD AT ORAL ARGUMENT.
The clerk may incorporate this order upon the docket by reference pursuant to
Rule 79(a) of the Maine Rules of Civil Procedure.
SO ORDERED.
Dated: July 5, 2017
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AP-16-037
PLAINTIFFS PRO SE
TIBOR & IBOL YA KORMENDY
17 TIDEVIEW TERRACE
KENNEBUNK ME 04043
ATTORNEY FOR DEFENDANT:
SALLY J DAGGETT
JENSEN BAIRD GARDNER & HENRY
PP O BOX 4510
PORTLAND ME 04112
STATE OF MAINE SUPERIOR COURT
YORK, SS. Civil Action
Docket No. AP-16-0037
TIBOR KORMENDY,
Petitioner,
v. ORDER
TOWN OF KENNEBUNK,
Respondent.
Petitioner Tibor Kormendy filed this Rule SOB complaint on October 13, 2016, in
connection with his request to the Town of Kennebunk Board of Assessment Review
("Board") for tax abatement. The complaint asserts that the Board failed to hear his
appeal from the denial of an abatement of his 2013 taxes, and also alleges violations of
due process and equal protection rights, requests a trial, and seeks refunds for the years
2013 through 2016.
On November 18, 2016 Petitioner filed a motion for service by alternate means
pursuant to M.R. Civ. P. 4(g), which authorizes service by other means "upon a
showing that service cannot with due diligence be made by another prescribed
method." Petitioner's motion stated that service of the complaint was "made onto all
Defendants, with full compliance with Rule 4(c)(l)" and that "Defendants had failed to
return the notice and acknowledgement form within the allowed 20 day time window,
ad the time window expired on November 9, 2016." Pl.'s Mot. for Serv. By Alt. Means,
<JI<JI 2, 3.
The court did not act upon the motion for alternate service until January 19, 2017.
The motion was denied because it did not appear that Petitioner had attempted service
under Rule 4(c)(2) and therefore had not demonstrated that "service cannot be made by
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another prescribed method," namely service by "a sheriff or deputy within the sheriff's
county, or other person authorized by law, or by someone specially appointed by the
court for that purpose." M.R. Civ. P. 4(c)(2).
On January 30, 2017, Petitioner filed an "Affidavit of 'Personal Service' in
support of Rule 4(h) 'Return of Service,"' stating, among other things:
"I have Personally Served five (5) enveloped packets, each containing
true copies of the Complaint and its own attachment, . . . addressed
separately and individually, one for each Defendant, who are all either
persons, or officers, or agents, or employees, etc. having a usual official
address at the Town Hall of Kennebunk, and Defendant Town of
Kennebunk itself, and such personal service was made by me hand
delivering said (5) packets to the Office of the Clerk of the Town of
Kennebunk at the Kennebunk Town Hall, and handing the said (5)
packets directly over to the Deputy Clerk on duty at the Office front
counter, and said Deputy Clerk received the packages and signed the
receipt for taking such delivery, and a true copy of said signed receipt of
or about Oct. 20, 2016, endorsed by me as service provider, is attached
hereto, and made part of this AFFIDAVIT, together to be returned to the
Court, in compliance with the requirements of the Rule 4(h) 'Return of
Service."'
Pl.'s Rule 4(h) "Return of Service" (emphasis in original). The attempted service
described above does not comply with M.R. Civ. P. 4. Petitioner may not act as
"service provider"-that is, personally effect service upon the opposing party or its
agents-without specific authorization or appointment; nor is this method otherwise
permitted by rule or statute. M.R. Civ. P. 4(c)(2), (3).
The date for filing a return of service under M.R. Civ. P. 3 was on or about
January 13, 2017, which was approximately 90 days from the filing of the complaint on
October 13, 2016. Because of its delay in acting on Petitioner's motion for service by
alternate means (about 60 days), the court is extending sua sponte the date for filing a
return of service in this matter for an additional 60 days from the date this order is
entered on the docket. Petitioner is cautioned, however, that his status as a self
represented litigant does not exempt him from compliance with the rules, including the
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rules of service. Brown v. Thaler, 2005 l'v1E 75, 1 8, 880 A.2d 1113. Failure to comply
with the extended Rule 3 deadline may result in a dismissal of this action.
The clerk may incorporate this order upon the docket by reference pursuant to
Rule 79(a) of the Maine Rules of Civil Procedure.
Dated: April 11, 2017
Wayne
Justice,
Date Entered on Docket: ·t;k·t',/tr
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AP-16-37
PLAINTIFFS PRO SE:
TIBOR KOMENDY
IBOL YA KOMENDY
17 TIDEVIEW TER
KENNEBUNK ME 04043
DEFENDANTS PRO SE:
TOWN OF KENNEBUNK
1 SUMMER STREET
KENNEBUNK ME 04043