Rodway v. Weber Way LLC

• Decision Date: 28 September 2020
• Docket Number: SUPERIOR COURT CIVIL ACTION DOCKET NO: PORSC-RE-2019-73
• Parties: PETER E. RODWAY AND MAURA H. RODWAY, Plaintiffs, v. WEBER WAY LLC, Defendant AND SACO AND BIDDEFORD SAVINGS INSTITUTION JOSEPH L. SOLEY FREEDOM HOUSE, LLC PARTIES IN INTEREST
• Court: Maine Superior Court

PETER E. RODWAY AND MAURA H. RODWAY, Plaintiffs, v. WEBER WAY LLC, Defendant ANDSACO AND BIDDEFORD SAVINGS INSTITUTIONJOSEPH L. SOLEY FREEDOM HOUSE, LLC PARTIES IN INTEREST

SUPERIOR COURT CIVIL ACTION DOCKET NO: PORSC-RE-2019-73

Superior Court of Maine

September 28, 2020

For Plaintiffs: Peter Rodway, Esq. and

Maura H. Horodyski, Esq.

For Defendant and PII Joseph Soley: Richard Olson, Esq.

and Jason Theobald

For PII Saco & Biddeford Savings: William Kany, Esq.

STATE OF MAINE

CUMBERLAND, ss.

ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Before the Court is Plaintiffs' Motion for Summary Judgment. For the following reasons, Plaintiffs' Motion is denied.

I. Background

This is a nuisance action involving an alleged encroachment on the Plaintiffs' right of way over the Defendant's land. The parties dispute whether the alleged nuisance should be considered "continuous" or "permanent." This Court has previously denied the Defendants' Motion for Summary Judgment on the grounds that a genuine issue of material fact existed on this issue. After considering the Plaintiffs' Motion for Summary Judgment, this Court finds that the same genuine issue of material fact exists and the Plaintiffs' Motion should therefore be denied.

II. Facts

Defendant, Webber Way LLC, is the owner of a building that the Plaintiffs allege encourages, in part, upon the Plaintiffs' right of way over the Defendant's property. (Pl.'s Compl. ¶¶ 59-70.) The Plaintiffs allege that the encroachment constitutes a statutory and common law nuisance. (Pl.'s Compl. ¶¶ 69-99.) The encroachment alleged has existed since at least 1996. (Pl.'s Mot. Sum Judg. at 3.) The Plaintiffs have provided credible testimony that it will cost approximately $35,000 to remove and repair the structure. (Pl.'s Mot. Sum Judg. at 4.)

III. Summary Judgment

Summary judgment is granted to a moving party when "there is no genuine issue of material fact" and the moving party "is entitled to judgment as a matter of law." M. R. Civ. P. 56(c). "A material fact is one that can affect the outcome of the case[.]" Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quotation omitted). There is a genuine issue of fact "when there is sufficient evidence for a fact finder to choose between competing versions of the fact." Id.

On summary judgment, the court considers specific facts and any reasonable inferences that may be drawn from the facts. Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18. The nonmoving party benefits from all "favorable inferences that may be drawn from the facts presented." Id. (quotation omitted). "When facts or reasonable inferences are in dispute on a material point, summary judgment may not be entered." Id.

IV. Discussion

The parties still dispute whether the alleged nuisance is a continuing or permanent nuisance because a permanent nuisance carries a six-year statute of limitations but a continuing nuisance does not. 14 M.R.S. § 752; Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 506 (Me. 1996) (holding that a continuing nuisance constitutes a new injury each day that the nuisance exists). The Law Court has defined a continuing nuisance as one that "is not of such a permanent nature that it cannot readily be removed and thus abated." Jacques, 676 A.2d at 507 (quoting Caron v.Margolin, 147 A. 419 (Me. 1929)). Whether an alleged nuisance is abatable is "the deciding factor in [the] determination of whether a nuisance . . . is continuous or permanent." Id. Abatability is a question of fact. Id. This court has previously ruled on this issue in the Defendant's Motion for Summary Judgment, stating:

"The Plaintiffs provide a credible opinion that the abatement of these structures will cost approximately $30,000 - $35,000. When considering the facts and reasonable inferences therefrom, in a light most favorable to the non-moving party, one fact finder may deem these costs and the labor associated with the removal of the structures to be reasonable and, therefore, the nuisance to be 'readily abatable'; whereas another may reasonably conclude these structures are not readily abatable. It is this issue of material fact that prevents the court from granting the Defendant's motion."

(Order on Def.'s Mot. Sum Judg. at 5.)

The Plaintiffs attempt to overcome this prior ruling by arguing that "the cost to remove and remedy the nuisance is marginal with relation to the value of the property." (Pl.'s Mot. Sum. Judg. at 9.) At deposition, the Defendant LLC's sole member, Joseph Soley, estimated the value of the property upon which the encroaching building is located to be approximately $700,000. (Soley Dep. pg 74, ¶¶ 12-20.) The Plaintiffs argue that because the cost to remove and repair the encroaching building would be insignificant in relation to the value of the property, there is no longer a genuine issue of material fact regarding whether the alleged nuisance is abatable. (Pl.'s Mot. Sum. Judg. at 9.) However, the Plaintiffs' have not cited any authority to suggest that this value/cost matrix is dispositive on the issue of abatability as a matter of law.

Here, the Plaintiffs' argument fails to overcome this Court's prior ruling because reasonable jurors can still interpret the Plaintiffs' own cost estimate differently. Although Soley's testimony and deposition will certainly be of great importance should this matter go to trial, there remains a genuine factual dispute regarding whether it would be feasible to remove the structure at issue. Furthermore, the Court cannot rule as a matter of law that abatability is determined by calculating the value of property in relation to how much it might cost to remove an alleged nuisance. As such, there remains a genuine issue of material fact here because reasonable jurors can still differ as to whether the alleged nuisance is abatable.

V. Conclusion

Whether the nuisance alleged by the Plaintiffs is permanent or continuous is of critical importance here. Abatability is crucial to this determination and is a question of fact. Jacques 676 A.2d at 507-06. Because reasonable jurors could differ on whether the alleged nuisance is abatable, the Plaintiffs' Motion for Summary Judgment cannot be granted.

The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).

Dated: 9/28/2020

/s/_________

MaryGay Kennedy, Justice

Maine Superior Court

ORDER ON PLAINTIFFS' MOTION IN LIMINE RE: EXPERT TESTIMONY OF JOSEPH SOLEY

Before the Court is Plaintiffs' Motion in Limine Re: Expert Testimony of Joseph Soley. For the following reasons, Plaintiffs' Motion is granted.

I. Background

This is a nuisance action involving the Plaintiffs' right of way over the Defendant's property. This Court has previously stated that "the essential fact in determining the character of a nuisance is abatability" and that whether a structure is abatable depends on, among other things, "the lengths one must go to remove the structure[.]" (Order on Def. Mot. Sum. Judg. at 1, 4). The Defendant has proffered Joseph L. Soley ("Soley") as an expert to testify on the issue abatability and the Plaintiffs have filed this Motion in Limine in response.

II. Facts

Defendant, Webber Way LLC, is the owner of a building that the Plaintiffs allege encroaches, in part, upon the Plaintiffs' right of way over the Defendant's property. (Pl.'s Compl.¶¶ 59-70.) The Plaintiffs claim that the encroachment constitutes a statutory and common law nuisance. (Pl.'s Compl. ¶¶ 69-99.)

A. Joseph Soley

Soley is the sole member of the Defendant LLC. (Def. Des. Of Exp. Wit. at 2.) Soley has been engaged in building and construction for over fifty years. (Id.) Soley is a graduate of Massachusetts Institute of Technology, with a master's degree in architecture and city planning. (Id. at 3.) The Defendant has proffered that Soley will testify:

"it would be both impracticable and costly to remove certain building structures or portions thereof existing at the subject property and that such removal would cause extensive damage to the remaining portions of the structures not alleged to be in the right-of-way. Mr. Soley will testify that the cost for removal of buildings and repair to remaining portions of the structures is approximately $55,000-$60,000 and that they are not reasonably removable."

(Id.)

Soley was deposed by Plaintiffs' counsel on January 21, 2020. Soley was asked multiple times to state how many building and demolition projects he has been a part of. (Soley Dep. 28, 29, 30, 40, 41.) Soley never gave a numeric answer or estimate, but answered "many dozens," "I don't know," or "I don't remember" at various intervals. (Id.) Soley was asked multiple times to provide the basis upon which he concluded that tearing down and repairing the encroaching structure would cost between $50,000 and $60,000. (Soley Dep. 49, 50, 55, 56, 57, 58, 68, 69, 70, 73, 79.) Soley did not give a numeric answer, stating only that his estimates are based upon hisexperience. (Id.) Soley was unable to form an opinion regarding how much damage the structure would sustain if he was forced to remove the alleged encroachment. (Soley Dep. 56, 68, 69, 70).

III. Discussion

Maine Rule of Evidence 702 provides that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, training, or education, may testify thereto in the form of opinion or otherwise." M. R. Civ. P. 702. Maine employs a two-part test to determine the admissibility of expert testimony.¹ However, "[b]efore engaging in this two-prong inquiry, the trial court must make a preliminary finding that the testimony meets a threshold level of reliability." State v. Bickart, 2009 ME 7, ¶ 14, 963 A.2d 183. The Law Court has routinely excluded testimony in cases where an expert's testimony is not narrowly tailored to the facts of the case. See e.g. State v. Burbank, 2019 ME 37, ¶...