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Town of Stonington v. Galilean Gospel Temple
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 2
Docket:	Han-97-725
Argued:	November 2, 1998
Decided:	January 6, 1999

Panel:	WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.




TOWN OF STONINGTON et al. v. GALILEAN GOSPEL TEMPLE et al.


ALEXANDER, J.

	[¶1]  Francis A. Cormier and the Galilean Gospel Temple (Temple)
appeal from the judgments entered in the Superior Court (Hancock County,
Marsano, J.) following a bench trial.  By separate judgments in this
consolidated action, the court awarded $5,000 to the Town of Stonington
(Town) for violations of its Noise Control Ordinance and $5,000 to Manford
and Helen Eaton for damages caused by negligent infliction of emotional
distress (NIED).  The Eatons cross-appealed, contending, inter alia, that the
court erred in concluding that their claim for nuisance was not properly
before the court.  We affirm the judgment for the Town.  We vacate the
judgment as to Cormier and the Temple because the Eatons' complaint gave
adequate notice of their claim that the operation of the quarry created a
nuisance.
	[¶2]  The Temple is a non-profit corporation that owns land in
Stonington.  Cormier, the founding pastor of the Temple, receives a small
stipend for his pastoral services, but earns his living primarily as a building
contractor.  The Eatons own land adjoining the Temple's property.  In
1978, when the Eatons purchased their property, a non-functioning quarry
existed on the Temple's property.  In 1986, Cormier began operating the
quarry, paying the Temple a "stumpage fee" for each cubic foot of stone that
he removed.  The stone is removed by the use of a "stone burner":  a device
that cuts a vertical channel into the granite.
	[¶3]  In 1994, due to complaints about the noise made by the "stone
burner" and other quarry operations, the Town passed the Noise Control
Ordinance (Ordinance).  The Ordinance prohibits "Daytime" noise that
exceeds 65 decibels "at the lot line of the receiving property."
	[¶4]  Following continued citizen complaints the Town filed a land use
citation and complaint against Cormier and the Temple on June 7, 1996,
seeking monetary and injunctive relief.  The complaint stated, "while it is
believed that the violation is an ongoing one, three specific violations have
been measured":  May 16, June 3 and June 4, 1996.
	[¶5]  The District Court (Ellsworth, Romei, J.) issued a temporary
restraining order (TRO) against Cormier and the Temple on June 7, which
the District Court (Ellsworth, Anderson, J.) then dissolved on June 13.  On
June 20, the District Court (Ellsworth, Staples, J.) granted the Town's
request for a preliminary injunction, enjoining the defendants from
operating the quarry in violation of the Ordinance.  In addition, the court
stated that the Town could seek an order of contempt if the defendants
continued to violate the Ordinance.
	[¶6]  On July 12, after measuring noise levels in violation of the
Ordinance on more than three occasions, the Town filed a contempt
complaint.  On July 17, the Superior Court (Hancock County, MacInnes,
A.R.J.) conducted a contempt hearing, but continued the proceedings until
after August 8, when a hearing was scheduled on the defendants' motion to
set aside the preliminary injunction.  At the end of the August 8 hearing, the
Superior Court (Hancock County, Marsano, J.) noted that the defendants
were not complying with the June 20 preliminary injunction order and
reissued the order "until [the] matter is finally heard and reviewed."  On
February 7, 1997, the Town amended its contempt complaint to include
alleged violations on eight more occasions:  August 19, September 13,
September 20, September 23 on two occasions, December 6 and December
10, 1996; and January 13, 1997.
	[¶7]  Meanwhile, the Eatons filed a complaint against the Temple and
Cormier on January 24, 1996, requesting monetary and injunctive relief. 
The Eatons alleged that the defendants' operation of the quarry had
deprived the Eatons of the safe and quiet enjoyment of their home and that
the defendants' negligence caused the Eatons to suffer serious emotional
distress.  On the same day, the Eatons requested a TRO.
	[¶8]  On January 31, 1996, the Superior Court (Hancock County,
Mead, J.) denied the Eatons' motion for a TRO.  On May 22, the Eatons
renewed the motion, alleging that since the January 31 order the
defendants had "engaged in a pattern of burning and quarrying activities of
far greater intensity and regularity than ever engaged in before."  The
Superior Court (Hancock County, Mead, J.) again denied the motion, stating
that "this issue cannot be adequately explored in absence of a testimonial
hearing."  The Superior Court (Hancock County, Marsano, J.) held a hearing
on the Eatons' motion for a TRO on August 8.  At the end of the day, the
court suspended the hearing and scheduled it to resume on August 29.{1} 
The court also consolidated the Town of Stonington v. Cormier, CV-96-76,
and Eaton v. Cormier, CV-96-8, pursuant to M.R. Civ. P. 42.
	[¶9]  On October 14 and 15, 1997, the Superior Court (Hancock
County, Marsano, J.) conducted a bench trial on the consolidated matter. 
After the trial, the court issued an order denying injunctive relief and
awarding $5,000 to the Eatons and $5,000 to the Town.  As preliminary
matters, the court found that Cormier was the primary defendant and that
the Eatons had not properly pled a claim for nuisance.  With regard to the
Town's claim, the court found that "there were violations [of the Ordinance]
on at least the following dates":  July 1, September 13, September 20,
September 23, October 10, October 25, and December 10, 1996; and
January 6 and 13, 1997.  With regard to the Eatons' NIED claim, the court
found that the Eatons had suffered "distress and anguish."
I. THE EATONS' CLAIMS A. Negligence Per Se
	[¶10]  Cormier contends that the court erred by treating the violation
of the Ordinance as negligence per se.  We have stated that the "violation of
a safety statute is not negligence per se, but only evidence of negligence." 
French v. Willman, 599 A.2d 1151, 1152 (Me. 1991) (quoting Dongo v.
Banks, 448 A.2d 885, 889 (Me. 1982)).  There is no language suggesting
that the court treated the violation of the Ordinance as negligence per se. 
Rather, the court explicitly referred to the violations of the Ordinance as
"evidence of negligence."
B. Negligent Infliction of Emotional Distress
	[¶11]  Cormier contends that the court erred in awarding the Eatons
damages for NIED because there is no evidence that the Eatons suffered
serious{2} emotional distress.  Serious emotional distress exists "'where a
reasonable person normally constituted, would be unable to adequately cope
with the mental stress engendered by the circumstances of the event.'" 
Gayer v. Bath Iron Works Corp., 687 A.2d 617, 622 (Me. 1996) (quoting
Rowe v. Bennett, 514 A.2d 802, 805 (Me. 1986)).  The distress does not
have to be manifested by "objective symptomatology."  Gammon v.
Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1284 (Me. 1987) (quoting
Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 437 (Me. 1982)).
	[¶12]  Competent evidence supports the court's finding that the
Eatons suffered from serious emotional distress.  Mr. Eaton testified that he
suffered from throbbing headaches and depression.  Mrs. Eaton testified that
the noise has caused her neck muscles to tighten.  As a result, she was given
muscle relaxants and a collar.  Given this testimony, the court did not err in
finding that the Eatons suffered serious emotional distress.  See Gammon,
534 A.2d at 1283 (holding that the evidence supported plaintiff's NIED
claim where plaintiff had nightmares, his personality was affected and his
relationship with his family deteriorated).
C. Nuisance
	[¶13]  The Eatons contend that the trial court erred in concluding
that their nuisance claim was not properly before the court.  We agree.
	[¶14]  Modern notice pleading practice requires "a short and plain
statement of the claim" to provide fair notice of the cause of action, M.R. Civ.
P. 8(a)(1), but use of any particular "magic" words are not required to state a
particular claim.  We construe the "pleadings in favor of the pleader and in
the interests of substantial justice."  Chiapetta v. LeBlond, 505 A.2d 783,
785 (Me. 1986); M.R. Civ. P. 8(f).  "'The function of the complaint is to
provide fair notice of a claim.' . . . It must sufficiently apprise defendants of
the nature of the action against them."  Bolton v. Caine, 584 A.2d 615, 617
(Me. 1990) (quoting Rubin v. Josephson, 478 A.2d 665, 669 n.4 (Me.
1984)).  
	[¶15]  "The essence of a private nuisance is an interference with the
use and enjoyment of land."  W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 87, at 619 (5th ed. 1984).  In their complaint, the Eatons
state that the defendants' operation of the quarry "generated noise, dust and
interfered with Plaintiffs' possession and use of their property and
residence," and that the defendants' "cutting and burning . . . deprived
Plaintiffs of the safe and quite enjoyment of their home."  By echoing
language that describes the essence of a private nuisance complaint, the
Eatons' complaint provided Cormier and the Temple fair notice of a claim
that the operation of the quarry resulted in a nuisance. {3} 
	[¶16]  The Eatons requested both injunctive and monetary relief as
remedies for their nuisance claim. 
D. Damages
	[¶17]  The Eatons contend that the court erred in awarding them only
$5,000 for NIED.  The amount of damages to be awarded is a "factual matter
generally within the sole province of the [factfinder]."  Lawrence v.
Saunders, 539 A.2d 1102, 1103 (Me. 1988) (citation omitted).  We will not
disturb an award of damages unless "it is plain that there is no rational basis
upon which the amount of the award may be supported . . . or the jury acted
under some bias, prejudice, or improper influence, or reached its verdict by
compromise."  Id. (citations omitted).  No error is indicated in the court's
award of $5,000 on the Eatons' NIED claim. 
E. Joint and Several Liability
	[¶18]  Finally, the Eatons argue that the trial court erred in treating
Cormier as the primary defendant rather than holding Cormier and the
Temple jointly and severally liable.  We disagree.
	[¶19]  Proximate cause is a question of fact, Searles v. Trustees of St.
Joseph's College, 1997 ME 128, ¶ 8, 695 A.2d 1206, 1209, which we will
set aside only if clearly erroneous, McGraw v. S.D. Warren Co., 656 A.2d
1222, 1224 (Me. 1995).  A factual determination is clearly erroneous only if
"there is no competent evidence in the record to support it."  Id.
	[¶20]  The Temple owns the land, but Cormier operates the quarry. 
Given that Cormier was directly responsible for the complained of conduct
- stone burning - there was competent evidence in the record to support a
finding that Cormier was the primary defendant.
	[¶21]  On remand, the court must determine whether Cormier and
the Temple are jointly and severally liable for causing a nuisance.  An owner
of land that consents to an activity on his or her land that causes a nuisance
is subject to liability for the nuisance if "the possessor knows or has reason
to know that the activity is being carried on and that it is causing or will
involve an unreasonable risk of causing the nuisance."  Restatement (Second)
of Torts § 838 (1979).
II. THE TOWN'S CLAIM A. Land Use Citation and Complaint
	[¶22]  Cormier contends that the trial court erred in imposing a
penalty for violations of the Ordinance on days not specifically alleged in the
Town's land use citation and complaint.  We disagree.
	[¶23]  A land use citation and complaint "shall contain . . . the time
and place of the alleged violation or, if they are not known, the time and
place at which it was first observed by the complainant . . . ."  M.R. Civ. P.
80K(c)(1) (emphasis added).  The language of the Rule does not limit the
complainant's recovery to the times and places alleged in the complaint. 
Instead, it contemplates occasions when the complainant will not know the
exact time and place of all violations.  Therefore, Cormier's contention that
the court cannot impose a penalty for violations at times not specifically
alleged in the complaint is without merit.		
	[¶24]  In addition, Cormier and the Temple had fair notice that the
Town was accusing them of violating the Ordinance on occasions not
specifically alleged in the original complaint.  See Rubin, 478 A.2d at 669
n.4. ("The function of the complaint is to provide fair notice . . . .").  The
original complaint, after alleging three specific violations, proceeded to
state that "it is believed that the violation is an ongoing one . . . ." 
(Emphasis added.).  Following the complaint, the Town filed a contempt
complaint and an amended contempt complaint which together alleged
more than eleven additional violations.  The original complaint and the
subsequent contempt complaints sufficiently apprised Cormier and the
Temple of the "nature of the action against them."  See Bolton, 584 A.2d at
617.
B. Noise Control Ordinance
	[¶25]  Cormier also contends that the court erred in finding that the
individuals who measured the noise level were qualified to do so pursuant to
the  Ordinance.  We disagree.
	[¶26]  The Ordinance provides that "the town's Noise Control Officer,
equipped with a [sic] approved sound level meter, may investigate" a citizen
complaint.  "Noise Control Officer" is defined as "[t]he municipal employee
trained in the use of sound level meters as authorized under this ordinance."
	[¶27]  Either Paul Blanchette or Roger Stone measured the level of
noise on those occasions for which the court found violations of the
Ordinance.  Both Blanchette and Stone were municipal employees when
they recorded the level of noise.  Blanchette is the town manager.  Stone is
the Town's alternate local plumbing inspector.  In addition, Stone serves as
the superintendent of the Stonington Water Company.  Both Stone and
Blanchette testified that as superintendent, Stone was an employee of the
Town.  Blanchette and Stone were also both trained in the use of the sound
level meters.  Given that both Stone and Blanchette were municipal
employees and trained in the use of sound level meters, the court did not
err in finding that they were qualified as noise control officers as defined by
the Ordinance.
	The entry is
Judgment affirmed as to the Town of
Stonington v. Cormier, CV-96-76.  Judgment
vacated as to Eaton v. Cormier, CV-96-8. 
Remanded for further proceedings consistent
with this opinion.

Attorney for appellants: Edmond J. Bearor, Esq., (orally) Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1401 Attorney for cross-appellants Manford & Helen Eaton: Christopher James Whalley, Esq., (orally) P O Box 516 Ellsworth, ME 04605-0516 Attorney for appellee Town of Stonington: Mary N. Kellett, Esq., (orally) Law Offices of Ellen S. Best P O Box 386 Blue Hill, ME 04614
FOOTNOTES******************************** {1} . This hearing never occurred. {2} . The decided cases use the term "severe" and "serious" interchangeably to describe the degree of emotional distress necessary to support a negligent infliction of emotional distress claims. Compare Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1283 (Me. 1987) (using "severe") with Gayer v. Bath Iron Works Corp., 687 A.2d 619, 622 (Me. 1996); Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 437-438 (Me. 1982) (using "serious"). For consistency "serious" is used in this opinion. {3} . This does not mean that an opposing party does not have the right to know, in advance of trial, exactly what causes of action will be pressed. The nature of the cause of action and the legal theories to be presented must be set out with clarity in any pretrial memorandum, M.R. Civ. P. 16(d), or report of conference of counsel, M.R. Civ. P. 16(c). Moreover, the exact nature of the cause of action may be the subject of discovery. M.R. Civ. P. 26(b)(1).