Cote v. Gary's Olde Town Tavern, Inc.

(

STATE OF MAINE SUPERJOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-21-50

MANON COTE, et al.,

Plaintiffs
V. ORDER

GARY'S OLDE TOWN TAVERN, INC.,
et al., Plaintiffs-Gene Libby, Esq.
and Tyler Smith, Esq.
Defendants Defendants-Stephean Chute, Esq.

Before the court are a flurry of motions in the above captioned case: (I) plaintiffs Manon

Cote and Sylvain Theriault's second motion for contempt; (2) plaintiffs' motion for an order

pursuant to M.R.Civ.P. 70 appointing another person to execute the easement modification

agreement given that defendants have failed to do so; (3) a motion by defendants Gary's Olde

Town Tavern Inc., Checkpoint 70 Inc. and Gary Skellett for relief from judgment pursuant to Rule

60(b)(4); (4) a motion by defendants to stay this action; and (5) a motion by defendants to strike

certain exhibits annexed to plaintiffs' opposition to defendants' Rule 60(b)(4) motion.

Defendants' Rule 60(b )( 4) motion is denied. Rule 60(b )( 4) is available to provide relief

from a judgment that is "void." A judgment is void when the court lacked subject matter or

personal jurisdiction, and in such a case the trial court does not have discretion but must set aside

the judgment. Foley v. Adam, 638 A.2d 718, 719-20 (Me. 1994).

The judgment in this case was entered by this court on March 26, 2021 when it confirmed

the October 16, 2020 arbitration award. Defendants are not arguing that this court lacked personal

or subject matter jurisdiction to enter that order. Instead, they are attempting to set aside the
arbitration award on the grounds that they did not agree to arbitrate the issue decided and that the

arbitrator did not have authority to enter equitable relief.

These are not issues that go to this court's subject matter or personal jurisdiction. Rather,

they are arguments that defendants could have raised on a motion to vacate the arbitration award

pursuant to 14 M.R.S. § 5938. Defendants did not do so, and the time in which they could have

filed a motion to vacate has long expired.

The above is sufficient to defeat defendants' supposed Rule 60(b)(4) motion. Moreover,

defendants' arguments would have been unavailing even if timely raised on a motion to vacate.

Attached to plaintiffs' motion to confinn is an October 8, 2019 agreement between plaintiffs Cote

and Theriault and defendants Gary's Olde Town Tavern, Gary Skellett, and Checkpoint 70 setting

forth various agreements and contemplating a more detailed agreement. Also attached is a more

detailed January 31, 2020 agreement between the same parties. Both of those provided, inter alia,

for the execution of an amended easement and the placement of certain rocks to prevent the

passage of vehicles onto a leach field.

The first agreement provided that if there was any failure to reach a formal settlement

agreement or if there was any disagreement on settlement document language, the parties agreed

that any remaining controversy or claims between them shall be settled by arbitration with

Attorney Andrew Sparks. The second agreement provided that any disputes "shall be resolved

through binding arbitration" with Attorney Sparks.

There were disputes over the terms of the easement and about compliance with the

agreements, which led to arbitration on September 16, 2020, as set forth in the arbitration decision

annexed as Exhibit C to plaintiffs' motion to confirm. That decision sets forth that the parties had

agreed to the issues to be arbitrated.

2
For all the above reasons, defendants' contention that they did not agree to arbitrate the

issues decided in the October 16, 2020 arbitration award is without merit. 1

Defendants' second contention - that the arbitrator was without jurisdiction to award

equitable relief because only a court could do so -fares no better. The arbitration decision resolved

the dispute between the parties, but that decision has not been given the effect of a mandatory

injunction. See this court's May 18, 2021 order on plaintiffs' first motion for contempt. Instead,

the court itself entered a mandatory injunction directing defendants to execute the easement

modification agreement, to enclose their dumpster, and to place the rocks as required by the

arbitration award. See May 18, 2021 order directing compliance with arbitration award. The court

had jurisdiction to enter that order in furtherance of its express authority under 14 M.R.S. § 5940

to enforce orders confoming arbitration awards.

There is also no basis on which to grant defendants' motion for a stay. Remaining to be

decided are plaintiffs' verified second motion for contempt and plaintiffs' motion pursuant to

Rule 70 for an order appointing another person to execute the easement modification agreement

in light of defendants' failure to comply with the court's May 18 order .

With respect to the first of those motions, the court will set a date for a contempt hearing

and shall issue a subpoena to plaintiffs for service on defendants pursuant to M.R.Civ.P.

66(d)(2)(B). With respect to the second of those motions, there is no dispute that defendants have

not executed the easement modification agreement and the court will therefore grant plaintiffs'

motion. See acc01npai1ying order.

1 Based on the two agreements in the file, the cou11 does not have to consider the exhibits attached to

plaintiffs opposition to defendants' Rule 60(b)(4) motion, and defendants' motion to strike those exhibits
is dismissed as moot.

3
The entry shall be:

1. On plaintiffs' verified second motion for contempt, the court shall schedule a hearing
and order that a contempt subpoena be served on defendants pursuant to Rule 66(d)(2)(B).

2. Plaintiffs' motion for an order pursuant to M.R.Civ.P. 70 appointing another person to
execute the easement modification agreement is granted as set forth in the accompanying order.

3. Defendants' Rule 60(b)(4) motion for relief from judgment is denied.

4. Defendants' motion for a stay is denied.

5. Defendants' motion to strike certain exhibits is dismissed as moot.

6. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: September-1_, 2021

Thomas D. Warren
Justice, Superior Court

Entered on the Docket: oJfoqJIT
~el

4
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State of Maine Superior Court
Cumberland, ss Location: Portland
Docket No. CV-21-50

MANON COTE and SYLVAIN THERIAULT,

Plaintiffs Order on Plaintiffs' Motion to Appoint
Another Person to Execute Easement
v. Modification Agreement on Behalf of
Defendants
GARY'S OLDE TOWNE TAVERN, INC.,
CHECKPOINT 70, INC., and GARY SKELLETT, M.R. Civ. P. 70

Defendants.

Upon consideration of Plaintiffs' Motion to Appoint Another Person to Execute

Easement Modification Agreement on Behalf of Defendants, together with any

opposition and reply thereto, Plaintiffs' motion is GRANTED.

It is hereby ORDERED, pursuant to Rule 70 of the Maine Rules of Civil

Procedure, that Gene R. Libby, Esq. is authorized to take all necessary action to execute
~e,t__ lw,e,.J.o
the Easement Modification Agreement as pr P i21:Bl3 fihd with the Court on behalf of

Defendants Gary's Olde Towne Tavern, Inc., Checkpoint 70, Inc., and Gary Skellett, and

to then record the Easement Modification Agreement with the Cumberland County

Registry of Deeds.

This Order may be incorporated on the docket by reference pursuant to M.R. Civ.

P. 79(a).

Dated: __]-1--...,,~=1-=--~'-=-"--'--':::.__-­
"' Court
Justice, Superior
Thomas Warren I
1
EASEMENT MODIFICATION AGREEMENT

This EASEMENT MODIFICATION AGREEMENT is made and entered into effective as
of the 25th day ofJune, 2020, by and between SYLVAIN F. THERIAULT and MANONL. COTE,
individuals domiciled in the State of Maine with a mailing address at 198 Old Port Road, Arundel,
Maine, 04046(together with their grantees, successors, heirs and assigns, "Theriault /Cote") and
CHECKPOINT 70, INC., a Maine corporation with a place of business in Naples, Maine, with a
mailing address at 678 Roosevelt Trail, Naples, Maine, (together with its grantees, successors, heirs
and assigns, "Checkpoint") agree to modify those certain easement rights and obligations set forth in
their respective deeds as set forth herein.

WITNESSETH:

WHEREAS, Theriault/ Cote jointly own certain real estate situated on the easterly side of Bay
Village Road in Naples, Maine, which is more particularly described in the deed dated June 1, 2015,
and recorded at the Cumberland County Registry of Deeds in Book 32321, Page 321, and expressly
subject to certain easement rights expressly set forth therein (the 'Theriault/Cote Property"); and

WHEREAS, Checkpoint owns certain real estate situated at 678 Roosevelt Trail, Naples,
Maine, which is more particularly described in the deed dated May 9, 2017, and recorded at
Cumberland County Registry of Deeds in Book 34000, Page 58, and expressly benefited by certain
easement rights expressly set forth therein (the "Checkpoint Property"); and

WHEREAS, Theriault/ Cote and Checkpoint desire to forever modify those express
easements terms that both benefit the Checkpoint Property and burden the Theriault/ Cote Property
(the "Easement") over the particular land expressly described in the Easement (the "Easement
Area");

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
being hereby acknowledged, Theriault/ Cote and Checkpoint agree as follows:

1. Released Easement Area. The Easement Area shall forever exclude that certain real
estate located on the Theriault/Cote Property that is illustrated and labeled as the
"Released Area" on Exhibit A, and more particularly described by the metes and bounds
set out in Exhibit B.

2. Dumpster Rights. The Easement shall forever include the right and option for
Checkpoint or the Checkpoint Property to place no more than two (2) dumpsters located
along the easterly boundary of the Easement Area, however any Checkpoint dumpster on
the Easement Area shall be screened with a sight-blocking fence of a commercially
reasonable color to be maintained by Checkpoint.
~.,.... __

1 __:_~·-·t
3. Toinder in Agreement. To the extent either wry Skellett or Gary's Olde Town Tavern,
Inc. have any interest in the original easement area or the easement area as herein modified
as tenant or otherwise, they join this agreement to evidence their consent to convey the
rights granted herein.

4. Construction and Effect. This Easement Modification Agreement shall run with the land
of the Theriault/Cote Property and the Checkpoint Property, and shall inure to benefit
and/or burden the grantees, successors, heirs, and assigns of both parties. This Agreement
and shall be construed in accordance with the laws of the State of Maine.

In Witness Whereof the parties have interchangeably set their. hands and seals all as of the day
and date above written.

Sylvain F. Theriault

STATE OF MAINE _ _ _ _ _ _,2021
YORI<:, ss.

Personally appeared the above named SYLVAIN F. THERIAUI:r, and acknowledged the
foregoing instrument to be his free act and deed.

Before me,

Notary Public/Attorney at Law

ManonL Cote

STATE OF MAINE _ _ _ _ _ _, 2021
YORK,ss.

Personally appeared the above named MANON L. COTE, and acknowledged the foregoing
instrument to be her free act and deed.

Before me,

Notary Public/Attorney at Law

2
;
I

Checkpoint 70, Inc.
By Gary Skellett, Its President

STATE OF MAINE ~~~~~_,2021
YORK, ss.

Personally appeared the above named GARY SKELLETT who, being by me duly sworn did
say that he/she is the President of the corporation named in the foregoing instrument; and
acknowledged said instrument to be the free act and deed of said corporation.

Before me,

Notary Public/Attorney at Law

Gary's Olde Towne Tavern, Inc.
By Gary Skellett, Its President

STATE OF MAINE ~~~~~_,2021
YORK, ss.

Personally appeared the above named GARY SKELLETT who, being by me duly sworn did
say that he/she is the President of the corporation named in the foregoing instrument; and
acknowledged said instrument to be the free act and deed of said corporation.

Before me,

Notary Public/Attorney at Law

3
/
I

Gary Skellett, Individually

STATE OF MAINE _ _ _ _ _ _ , 2021
YORK,ss.

Personally appeared the above named GARY SKELLETT, and acknowledged the foregoing
instrument to be his free act and deed.

Before me,

Notary Public/Attorney at Law

4
EXHIBIT

A
O Iron Pipe Found· (ipf)

a EnsUng BuJld;ng

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CU.l
- -
Ulili.ty Pole

Edge o:f Pavement

- a - c - Stockade Fenee

&, Survey Control PoHJ.t

St.ke
Se<

I
I
Owner of Record
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Sylvain F. Theriault

,~
Manon L. Cote
32321/321 "';
Lot-2
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0, C.
a/
43.7' Right of Way Location
( Bay Village Road, Naples, Maine
i:nade for
Manon Cote
Sylvain F. Theriault
198 Old Post Road, Arundel, Maine
June 12, 2019
CWTeDt st.andsrds
by
• Prafessio'nnl Land
Stephen J. Martin, PLS
Professi.onal Land Surveyor
Go,ham, J,laine 04038
Job#l
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