Slager v. Bell
| Decision Date | 15 July 2021 |
| Docket Number | BCDWB-RE-2019-14 |
| Parties | RANDY SLAGER, Plaintiff/Counterclaim-Defendant, v. LORI L. BELL and JOHN W. SCANNELL, Defendants/Counterclaim-Plaintiffs. |
| Court | Maine Superior Court |
Alan R. Atkins, Esq.
Fulton Rice, Esq.
Andrew Sparks, Esq.
William Kennedy, Esq.
Lori L. Bell
John W. Scannell
Daniel L. Rosenthal, Esq.
Jennie Clegg, Esq.
Trey Milam, Esq.
ORDER ON COUNTERCLAIM-DEFENDANT'S MOTION TO DISMISS
This case revolves around a dispute between neighbors on Ocean Avenue in Kennebunkport (the "Town"). Lori Bell and John Scannell ("Counterclaim-Plaintiffs") filed counterclaims against Randy Slager ("Counterclaim-Defendant") on May 5 2020.[1] Counterclaim-Defendant responded by filing a motion to dismiss the counterclaims pursuant to Maine Rule of Civil Procedure 12(b)(6). The Court held oral argument on the motion on June 2, 2021. After considering the allegations in the counterclaim, the parties' contentions in briefs and at oral argument, and the law on the various claims, the Court issues this decision.
"A motion to dismiss tests the legal sufficiency of the complaint, the material allegations of which must be taken as admitted . . . ." Packgen, Inc. v. Bernstein, Shur Sawyer & Nelson, P.A., 2019 ME 90, ¶ 16, 209 A.3d 116 (citations omitted). A complaint only needs to consist of a short and plain statement of the claim to provide fair notice of the cause of action. Johnston v. Me. Energy Recovery Co., Ltd. P 'ship, 2010 ME 52, ¶ 16, 997 A.2d 741. When deciding a motion to dismiss pursuant to Rule 12(b)(6), the complaint is viewed "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 6, 54 A.3d 710 (quotation marks omitted). The Court does not adjudicate facts, "but rather there is an evaluation of the allegations in the complaint in relation to any cause of action that may reasonably be inferred from the complaint." Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830.
While the Court must accept as true all well-pleaded factual allegations in the complaint, it is "not bound to accept the complaint's legal conclusions." Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994) (citing Robinson v. Washington Cnty., 529 A.2d 1357, 1359 (Me. 1987)). "A dismissal is only proper when it appears beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that [it] might prove in support of [its] claim." Packgen, 2019 ME 90, ¶ 16, 209 A.3d 116 (alterations in original).
ALLEGATIONS[2]
Counterclaim-Plaintiffs are the owners of 200 Ocean Avenue in the Town while Counterclaim-Defendant is the owner of the neighboring 196 Ocean Avenue. (Countercl. ¶¶ 1-2.) In pertinent part, Counterclaim-Plaintiffs allege that they "have on multiple occasions observed an electronic camera position in the house on the Slager Property pointing directly at" Counterclaim-Plaintiffs' house, including "[o]n at least one occasion ... at the area of the house . . . that includes the bedroom occupied by Counterclaim-Plaintiffs' teenage daughter." (Countercl. ¶¶ 6-7.) Counterclaim-Plaintiffs contend, "[u]pon information and belief," that the camera has taken pictures of Counterclaim-Plaintiffs, their family, and others on the property. (Countercl. ¶ 8.)
Further, Counterclaim-Plaintiffs allege that Counterclaim-Defendant has a generator located almost on the boundary line between the properties, the use and maintenance of which "violates industry safety standards" and is "unreasonably loud and noisy." (Countercl. ¶¶ 12-14, 18.) They assert that they "are reasonably concerned that a generator malfunction could result in a fire that could extend" onto their property. (Countercl. ¶ 15.) These circumstances with the generator "substantially diminish[]" and "unreasonably interfere" with the "use, enjoyment and value of their property." (Countercl. ¶¶ 19-20.) In addition to the camera and generator issues, Counterclaim-Plaintiffs allege that "Counterclaim-Defendant, or his agents acting at his direction, supervision or control, or subject to Counterclaim-Defendant's subsequent ratification, have entered upon the Bell/Scannell Property" without their consent, including placing and maintaining "objects" on Counterclaim-Plaintiffs' property such as "an irrigation water line, a garden, a fence, and gate posts." (Countercl. ¶¶ 23-24.)
Finally, Counterclaim-Plaintiffs allege that, around March 22, 2020, Counterclaim-Defendant filed a notice of lis pendens in the York County Registry of Deeds - therefore making a statement that he had a claim to title or other legal property interest - regarding litigation that did not concern title to their property. (Countercl. ¶¶ 27-28, 32.) Because title was not at issue in the litigation for which the lis pendens was filed, Counterclaim-Plaintiffs contend Counterclaim-Defendant's statement otherwise was false and disparaged Counterclaim-Plaintiffs' title to their property. (Countercl. ¶¶ 28-30, 32.) By filing this lis pendens, Counterclaim-Plaintiffs allege that Counterclaim-Defendant acted with an ulterior motive by using legal process in a manner that was improper in the regular conduct of litigation. (Countercl. ¶¶ 36-37.)
Counterclaim-Defendant moves to dismiss each of the counterclaims on various bases. The Court addresses each in turn.
The tort of invasion of privacy protects several interests from being invaded. As is relevant to the counterclaim, "intrusion upon the plaintiffs physical and mental solitude or seclusion" is one manner in which a defendant can commit the tort of invasion of privacy. Estate of Berthiaume v. Pratt, 365 A.2d 792, 795 (Me. 1976). In order to survive a motion to dismiss a claim of invasion of privacy by intrusion upon seclusion, a plaintiff must allege facts regarding four elements: "an (1) intentional, (2) physical intrusion (3) upon premises occupied privately by a plaintiff for purposes of seclusion, and (4) the intrusion must be highly offensive to a reasonable person." Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 16, 48 A.3d 774. "[T]he defendant must intend as the result of his conduct that there be an intrusion upon another's solitude or seclusion." Id. ¶ 19 (emphasis in original) (quotation marks omitted). Counterclaim-Defendant moves to dismiss the invasion of privacy claim because he contends the counterclaims do not contain adequate allegations of the first and second elements, i.e., intent or physical intrusion.
Regarding the intent element, Counterclaim-Defendant argues that there are no allegations pertaining to his intent in owning the camera.[3] The Court is not convinced. First, allegations regarding a tortfeasor's intent can be stated generally. M.R. Civ. P. 9(b) (). Counterclaim-Plaintiffs averred so generally. (Countercl. ¶ 9.) Counterclaim-Defendant's intent can also be reasonably inferred from the allegations that the camera has been pointed directly at Counterclaim-Plaintiffs' daughter's bedroom as well as the allegations that the camera has captured images of Counterclaim-Plaintiffs, their family members, and their invitees. Cf. Nadeau v. Frydrych, 2014 ME 154, ¶ 8, 108 A.3d 1254.
The allegation that Counterclaim-Defendant has captured images of Counterclaim-Plaintiffs, their family, and their invitees bleeds into Counterclaim-Defendant's argument on the physical intrusion element.[4] The Law Court has explained that an intrusion upon seclusion must involve an "actual invasion of something secret, secluded or private pertaining to the plaintiff." Nelson v. Me. Times, 373 A.2d 1221, 1223 (Me. 1977) (quotation marks omitted). As Counterclaim-Plaintiffs highlight, the Restatement section upon which the tort is based notes that an intrusion upon seclusion "may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires." Restatement (Second) of Torts § 652B cmt. b. "[A] complaint should minimally allege a physical intrusion upon premises occupied privately by a plaintiff for purposes of seclusion." Nelson, 373 A.2d at 1223. By alleging that Counterclaim-Defendant has pointed the camera at least once at Counterclaim-Plaintiffs daughter's bedroom and has also captured images with the camera, Counterclaim-Plaintiffs have effectively alleged that Counterclaim-Defendant's camera's image-capturing technology has invaded the physical space of Counterclaim-Plaintiffs' seclusion and privacy in their home. This is enough to withstand the motion to dismiss on this claim.
A claim for private nuisance under common law requires allegations of the following:
(1) the defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use, with intent meaning only that the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiffs interests are occurring or are substantially certain to follow; (2) there was some interference of the kind intended; (3) the interference was substantial such that it caused a reduction in the value of the land; and (4) the interference was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.
Johnston, 2010 ME 52, ¶ 15, 997 A.2d 741 (alteration and...
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