Oral arguments are at the Cumberland County Courthouse in Portland unless otherwise indicated. Additional dates may be scheduled to accommodate workload.
Caution: This schedule is subject to change. The case summaries are prepared by Court staff for the convenience of the public and are not to be construed as statements of the Court.
Oral Arguments: Tuesday, February 7, 2023
At the Capital Judicial Center, Augusta
Katherine E. Bozeman; Katherine M. Hudson-MacRae; Verne E. Paradie
Topics and summary to be announced
David Hunt was convicted of two counts of gross sexual assault (Class A), and two counts of unlawful sexual contact (Class B). On appeal, Hunt argues that the trial court erred by (1) allowing expert testimony from two unqualified witnesses; (2) denying his motion for a mistrial after the prosecutor committed misconduct by improperly vouching for the credibility of the victim and suggesting to the jury that he had a burden to show a motive for the victim making false allegations; (3) denying his request for a continuance to allow him to obtain records that the court had previously ordered be provided; (4) requiring witnesses and trial participants to wear masks, which deprived him of his right to adequately confront witnesses; (5) excluding evidence of communications from the victim’s mother to Hunt; and (6) admitting evidence of prior bad acts of his that occurred in other states.
2:20 p.m.
BCD-22-216
Kinderhaus North LLC et al. v. Karl Nicolas et al.
Christopher Pazar; William J. Kennedy; Brendan O'Rourke; Jason Dionne
Topics and summary to be announced
The Business and Consumer Docket entered a judgment declaring that the rights of Karen and Brian Fullerton, Kinderhaus North LLC, and Prime Properties ME LLC (collectively the Fullertons) to an easement that they possessed over the land of Karl and Stephanie Nicolas were limited in that the Fullertons could drive vehicles over only a small portion of the easement. The judgment prohibited the Fullertons from removing obstructions in the remaining portions of the easement and awarded the Nicolases damages for the Fullertons’ removal of trees from the easement.
The Fullertons appeal, arguing, among other things, that the trial court erred in (1) determining that the deeds establishing the easement were ambiguous as to the purpose and scope of the easement; (2) determining that the easement was not intended to allow vehicular traffic along its entire length; (3) applying Maine’s trespass statute to the removal of trees and other obstructions from an easement; and (4) awarding treble and punitive damages for the Fullertons’ removal of obstructions from the easement and trespassing on the easement.
11:30 a.m.
BCD-22-201
Debra Morgan et al. v. Erik S. Townsend
David A. Soley; Glenn Israel; Andrew W. Sparks; William J. Kennedy
Restrictive covenants; short-term rental as permissible use
The parties own properties that are subject to restrictive covenants limiting use of the properties to private, non-business, single-family residential purposes. Erik Townsend’s neighbors sued him to enforce the covenant and prevent him from renting out his property on short-term bases. The trial court entered summary judgment in favor of the neighbors.
Townsend appeals, arguing that the trial court erred in determining that the restrictive covenant unambiguously prohibits Townsend from using his property for short-term rental purposes and entering summary judgment in favor of the plaintiffs.
1:30 p.m.
Yor-22-206
Richard Tominsky v. Town of Ogunquit et al.
William A. Hahn; Mary E. Costigan; Zahcaray B. Brandwein; Matthew J. Williams
Action of town Zoning Board of Appeals; residential building permits; certificate of occupancy
The code enforcement officer of the Town of Ogunquit issued six building permits for a single residential house lot to 477 Shore Road, LLC. Richard Tominsky, who owns a home across the street from the lot, appealed from the issuance of the permits to the town’s Zoning Board of Appeals (ZBA), and the ZBA denied his appeal. Tominsky appealed to the Superior Court, which denied his appeal.
In a separate matter involving the same lot, the code enforcement officer issued a certificate of occupancy to the LLC. Tominsky appealed to the ZBA, and the ZBA determined that it lacked jurisdiction to consider the appeal. Tomisky appealed to the Superior Court, which dismissed the complaint, determining that it failed to state a claim and was an impermissible collateral attack on the permits involved in the previous appeal.
Tominsky appeals from both final judgments of the Superior Court, arguing that the ZBA (1) erred in denying his appeal regarding the building permits and (2) violated his due process rights by entering a decision not based on substantial evidence in the record. Tominsky further argues that the Superior Court erred in dismissing his appeal regarding the certificate of occupancy because it was not of a “similar nature” to the prior building-permit appeal.
2:20 p.m.
Pen-21-256
State of Maine v. Derric McLain
Jason Horn; Donald W. Macomber; Hunter J. Tzovarras; Mark A. Rucci; Carol Garvan; Zachary L. Heiden; Anahita Sotoohi
Suppression of evidence; right to counsel in interrogation
After a jury trial, Derric McLain was convicted of aggravated trafficking of scheduled drugs (Class A) and violating a condition of release (Class E). McLain appeals, arguing that the trial court erred in (1) determining that law enforcement officers had a reasonable articulable suspicion to justify the stop of the vehicle McLain was riding in and denying his motion to suppress evidence obtained during the stop and (2) determining that McLain had waived his right to counsel after being read his Miranda rights and denying his motion to suppress evidence obtained in the interrogation that followed.
The Law Court invited amicus briefs and supplemental briefs from the parties on issues relating to a defendant’s rights to counsel under the Maine Constitution before being interrogated by law enforcement.
2:20 p.m.
Pen-21-256
State of Maine v. Derric McLain
Jason Horn; Donald W. Macomber; Hunter J. Tzovarras; Mark A. Rucci; Carol Garvan; Zachary L. Heiden; Anahita Sotoohi
Suppression of evidence; right to counsel in interrogation
After a jury trial, Derric McLain was convicted of aggravated trafficking of scheduled drugs (Class A) and violating a condition of release (Class E). McLain appeals, arguing that the trial court erred in (1) determining that law enforcement officers had a reasonable articulable suspicion to justify the stop of the vehicle McLain was riding in and denying his motion to suppress evidence obtained during the stop and (2) determining that McLain had waived his right to counsel after being read his Miranda rights and denying his motion to suppress evidence obtained in the interrogation that followed.
The Law Court invited amicus briefs and supplemental briefs from the parties on issues relating to a defendant’s rights to counsel under the Maine Constitution before being interrogated by law enforcement.
Oral Arguments: Wednesday, February 8, 2023
At the Capital Judicial Center, Augusta
After a jury trial, Daniel Warner was convicted of unlawful sexual contact (Class C). Before the second day of the trial, a juror reported that she had been exposed to COVID-19. With the parties’ agreement, the trial court excused this juror, told the jury that “nobody wants this trial to end today in what would be called a mistrial,” and let the remaining jurors decide whether to immediately proceed with the second day of trial or delay the trial and resume in 11 to 15 days.
Warner appeals, arguing that (1) the trial court’s jury instructions, in combination with the prosecutor’s closing argument, improperly suggested to the jury that the defendant had a burden to prove that the victim had fabricated the allegations, in violation of the Maine and United State Constitutions, and (2) the trial court created an improper risk of coercion in its presentation to the jury regarding its options after potential exposure to COVID-19 because it encouraged jurors to reach a hasty verdict.
11:30 a.m.
Yor-22-166
Brian K. Smith v. City of Sanford
Mark V. Franco; Jeana M. McCormick
Topics and summary to be announced
The City of Sanford terminated Brian Smith’s employment as a firefighter after Smith developed a medical condition that limited how much weight he could carry. Smith sued the City, alleging that the City had failed to provide reasonable accommodations and had discriminated against him. After a jury trial, the trial court entered a judgment in favor of the City. Smith appeals, arguing that the trial court erred by not instructing the jury that it is unlawful for an employer to impose a “100% fit” or “100% healed” requirement on a disabled employee.
1:30 p.m.
Ken-22-281
In re Child of Joanne T.
Hunter C. Umphrey; Julian Richter
Topics and summary to be announced
In 2021, the trial court determined that the maternal grandparents of a child were the child’s de facto parents. In 2022, after a contested hearing, the trial court entered an order terminating the parental rights of the grandparents to the child. The grandparents appeal, arguing that (1) the evidence was not sufficient to support a finding of parental unfitness against the grandparents and that termination of parental rights is in the child’s best interest and (2) they were not accorded due process because the Department of Health and Human Services did not provide sufficient visitation throughout the case.
2:20 p.m.
Som-22-182
State of Maine v. Nicholas Norris
Jason Horn; James M. Mason
Topics and summary to be announced
Nicholas Norris was charged in Penobscot County with aggravated trafficking of scheduled drugs (Class A), unlawful trafficking of scheduled drugs (Class B), and criminal forfeiture. On the day that the trial was scheduled to begin, the State moved to dismiss the charges without prejudice on the ground that they had been brought in the wrong county. Over Norris’s objection, the court dismissed the charges.
Norris was then charged for the same conduct in Somerset County. After a jury trial, Norris was convicted of two counts of trafficking of scheduled drugs (Class A), unlawful trafficking in scheduled drugs (Class B), and criminal forfeiture. After a jury trial, Norris was convicted of all charges and ordered to forfeit related property.
Norris appeals, arguing that (1) the dismissal of the Penobscot County charges on the day of trial and the refiling of the charges in Somerset County violated his rights to a speedy trial; and (2) the trial court erred in denying his motion to suppress because there was insufficient information to support the finding of probable cause in the issuance of two warrants that led to the discovery of certain evidence.
1:30 p.m.
Yor-22-205
Sarah B. Bolduc v. Daniel J. Bolduc
Pamela Holmes; Robert A. Levine
Divorce; jurisdiction to determine interest of non-party; time of valuation of property
The District Court entered a judgment of divorce between the parties. Daniel Bolduc appeals, arguing that (1) the trial court did not have jurisdiction to determine that Sarah’s father still owned a one-half interest in the marital home, which Sarah and her father had purchased during the marriage as joint tenants but which her father did not contribute to after the initial purchase, because Sarah’s father is not a party to the divorce action; and (2) considering the value of the marital home at the time that the parties separated, rather than at the time of entry of judgment, in determining the property division between the parties.
Oral Arguments: Thursday, November 3, 2022
At the Penobscot Judicial Center, Bangor
Fair Elections Portland, Inc., et al. v. City of Portland
John Brautigam; Benjamin Gaines; Jen Thompson
Municipal charters, citizen initiatives; "revision" versus "amendment" of charter
A group of Portland voters submitted to the city a citizen’s initiative calling for public funding of candidates for city offices. The city classified the initiative as a proposed “revision” of the city charter, which is submitted to voters only if it is first recommended by a charter commission, and not as a proposed “amendment,” which is submitted directly to voters. See 30-A M.R.S. §§ 2102(2), 2104(2). Fair Elections Portland and fifteen voters (collectively Fair Elections) sought judicial review in the Superior Court. The Superior Court affirmed the city’s decision.
Fair Elections appeals, arguing that (1) the city’s process violated the voters’ due process rights because it did not consider evidence or adopt findings based on any evidence and (2) because the initiative does not call for a “profound and fundamental alteration to the essential character or core operations” of city government, it is an “amendment” to the charter, not a “revision,” and therefore must be submitted directly to the voters.
11:30 a.m.
PUC-22-8
Maine Coalition to Stop Smart Meters v. Public Utilities Commission
Scott L. Sells; Jordan McColman; Amy Mills
Public utilities; safety of solid-state non-transmitting electric meters
The Public Utilities Commission approved the request of Central Maine Power Company (CMP) to revise its terms and conditions relating to customers who opt out of using smart meters. The revised terms and conditions allow CMP to replace its electromechanical meters with solid-state meters that do not transmit data via radio waves.
The Maine Coalition to Stop Smart Meters appeals, arguing that the Commission erred by (1) relying on determinations by the Federal Communications Commission (FCC) that the levels of radiofrequency (RF) radiation that the solid-state meters emit (even though they do not transmit data) are safe and failing to give deference to a decision of a federal appeals court that held that the FCC must consider recent evidence that exposure to even low levels of RF radiation may cause negative health effects; and (2) disregarding the evidence before it that there is, in fact, a “growing body of substantial evidence . . . demonstrating a credible threat of harm from low level RF radiation,” especially to the environment and to people sensitive or vulnerable to the radiation.
3:10 p.m.
Pen-21-362
State of Maine v. Damien Osborn
Jason Horn; Timothy E. Zerillop
After a jury trial, Damien Osborn was convicted of aggravated trafficking of a scheduled drug, namely fentanyl, based on a “scheme or course of conduct,” see 17-A M.R.S. § 1106-A(1), between August 22 and December 5, 2019. At the same time, he was acquitted of aggravated trafficking of cocaine base that was alleged to have occurred on December 5, 2019, and was convicted of the lesser-included offense of possession of cocaine base. Osborn argues on appeal that (1) the trial court erred in instructing the jury that they must agree on one, and only one, of the three transactions alleged as part of the “scheme or course of conduct”; (2) the trial court erred in failing to instruct the jury on a definition of “scheme or course of conduct”; (3) section 1106-A is unconstitutionally vague because it fails to define “scheme or course of conduct”; (4) the prosecutor committed misconduct in closing argument by arguing that society must be protected from drug dealers and that the confidential informant played an important role in that; and (5) the trial court erred in admitting evidence of uncharged transactions between the informant and Osborn.
3:10 p.m.
Pen-21-362
State of Maine v. Damien Osborn
Jason Horn; Timothy E. Zerillop
After a jury trial, Damien Osborn was convicted of aggravated trafficking of a scheduled drug, namely fentanyl, based on a “scheme or course of conduct,” see 17-A M.R.S. § 1106-A(1), between August 22 and December 5, 2019. At the same time, he was acquitted of aggravated trafficking of cocaine base that was alleged to have occurred on December 5, 2019, and was convicted of the lesser-included offense of possession of cocaine base. Osborn argues on appeal that (1) the trial court erred in instructing the jury that they must agree on one, and only one, of the three transactions alleged as part of the “scheme or course of conduct”; (2) the trial court erred in failing to instruct the jury on a definition of “scheme or course of conduct”; (3) section 1106-A is unconstitutionally vague because it fails to define “scheme or course of conduct”; (4) the prosecutor committed misconduct in closing argument by arguing that society must be protected from drug dealers and that the confidential informant played an important role in that; and (5) the trial court erred in admitting evidence of uncharged transactions between the informant and Osborn.
3:10 p.m.
Pen-21-362
State of Maine v. Damien Osborn
Jason Horn; Timothy E. Zerillop
After a jury trial, Damien Osborn was convicted of aggravated trafficking of a scheduled drug, namely fentanyl, based on a “scheme or course of conduct,” see 17-A M.R.S. § 1106-A(1), between August 22 and December 5, 2019. At the same time, he was acquitted of aggravated trafficking of cocaine base that was alleged to have occurred on December 5, 2019, and was convicted of the lesser-included offense of possession of cocaine base. Osborn argues on appeal that (1) the trial court erred in instructing the jury that they must agree on one, and only one, of the three transactions alleged as part of the “scheme or course of conduct”; (2) the trial court erred in failing to instruct the jury on a definition of “scheme or course of conduct”; (3) section 1106-A is unconstitutionally vague because it fails to define “scheme or course of conduct”; (4) the prosecutor committed misconduct in closing argument by arguing that society must be protected from drug dealers and that the confidential informant played an important role in that; and (5) the trial court erred in admitting evidence of uncharged transactions between the informant and Osborn.
3:10 p.m.
Pen-21-362
State of Maine v. Damien Osborn
Jason Horn; Timothy E. Zerillop
After a jury trial, Damien Osborn was convicted of aggravated trafficking of a scheduled drug, namely fentanyl, based on a “scheme or course of conduct,” see 17-A M.R.S. § 1106-A(1), between August 22 and December 5, 2019. At the same time, he was acquitted of aggravated trafficking of cocaine base that was alleged to have occurred on December 5, 2019, and was convicted of the lesser-included offense of possession of cocaine base. Osborn argues on appeal that (1) the trial court erred in instructing the jury that they must agree on one, and only one, of the three transactions alleged as part of the “scheme or course of conduct”; (2) the trial court erred in failing to instruct the jury on a definition of “scheme or course of conduct”; (3) section 1106-A is unconstitutionally vague because it fails to define “scheme or course of conduct”; (4) the prosecutor committed misconduct in closing argument by arguing that society must be protected from drug dealers and that the confidential informant played an important role in that; and (5) the trial court erred in admitting evidence of uncharged transactions between the informant and Osborn.
Oral Arguments: Thursday October 6, 2022, at the Capital Judicial Center in Augusta
The District Court terminated Jennifer N.’s parental rights to her children. Jennifer N. appeals, arguing that the evidence was not sufficient to support a finding of parental unfitness or that termination of her parental rights is in the children’s best interest. Specifically, she argues that she has been sober for eighteen months, that she has been committed to services to resolve her mental health issues but the Department of Health and Human Services did not provide sufficient reunification services, and that the children have been moved several times since being placed in the Department’s care and there is therefore no permanency at stake were she to be given a “fair chance to reunify.”
10:40 a.m.
Pen-22-114
In re Children of Traci D.
Hunter C. Umphrey; Ashley T. Perry
The District Court terminated Traci D.’s parental rights to her children after she failed to appear for the final hearing. Traci D. appeals, arguing that the evidence was not sufficient to support the trial court’s findings and that the trial court erred by using a draft order terminating her parental rights that had been prepared by the Department of Health and Human Services and that failed to make sufficient independent factual findings.
11:30 a.m.
Aro-21-312
Dennis F. Winchester v. State of Maine
Lawrence C. Winger; Todd R. Collins
The trial court denied Dennis Winchester’s petitions for post-conviction review of his convictions for various burglaries and thefts. On appeal, Winchester argues that his attorneys in the original criminal proceedings provided ineffective assistance of counsel by failing to pursue speedy-trial claims in the trial court and on appeal. This Court invited amicus briefs to address whether Winchester’s right to a speedy trial was violated under article 1, section 6 of the Maine Constitution or under the Sixth Amendment of the United States Constitution.
1:30 p.m.
Ken-22-53
State of Maine et al. v. Moosehead Mountain Resort et al.
Lauren E. Parker; Elliott R. Teel; Jonathan M. Flagg
The Superior Court granted summary judgment and awarded damages to the State of Maine in its suit against Moosehead Mountain Resort that sought to enforce covenants on a ski area once owned by the state and now owned by Moosehead, to ensure that the land remained available to the public. Moosehead appeals, arguing that the trial court erred in determining that (1) the deed to a predecessor-in-interest of Moosehead’s required that the land be maintained in a certain way; (2) a covenant can run with the land without a benefited parcel, (3) there were no genuine issues of material fact regarding whether a certain parcel retained by the State was a benefitted parcel or whether the defense of latches applied, (4) the ambiguities in the deed regarding the covenants must be resolved in favor of the state, (5) the covenant requiring that the land be available for “public use” is reasonable, and (6) the state was not required to give notice of its interpretation of the public-use covenant before suing Moosehead.
2:20 p.m.
Was-22-75
Francis Janusz et al. v. Eric Bacon et al.
William N. Palmer; Jonathan E. Selkowitz
The District Court granted summary judgment in favor of Francis and Maryann Janusz on their complaint for foreclosure against Eric Bacon. Bacon appeals, arguing that the trial court erred in determining that (1) the parties had completed mediation, which is a statutory prerequisite to a judgment of foreclosure; and (2) Bacon received proper notice of the motion for summary judgment even though the Januszes did not mail a copy of the motion to Bacon’s address of record.
3:10 p.m.
Lin-22-85
Michael Zani et al. v. Medora Zani et al.
Laura P. Shaw; Christopher K. MacLean; Marie Mueller; George T. Dilworth; Amy K. Olfene; Andre G. Duchette
In 2018, while she was the subject of a guardianship and conservatorship, Patricia Spofford executed a will that was admitted to probate upon her death. Spofford’s sons, Michael Zani and Peter Zani, filed suit in the Superior Court seeking a declaratory judgment that their mother lacked testamentary capacity when she executed the 2018 will and the imposition of a constructive trust on Spofford’s property, and alleging wrongful interference with an expectancy of inheritance against a beneficiary of the will and fraud against a witness to the will.
The Superior Court entered summary judgment against the Zanis on all counts. The Zanis appeal, arguing that the Superior Court erred in determining that there was no dispute of material fact regarding Spofford’s testamentary capacity on the date that she executed the 2018 will given that there was evidence of Spofford’s lack of testamentary capacity both before and after that date.
COURT ALERTS IN EFFECT.