MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:   2019 ME 104
Docket:     Yor-18-362
Submitted
 On Briefs: April 24, 2019
Decided:    July 9, 2019

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                              TOWN OF ARUNDEL et al.

                                            v.

                           DUBOIS LIVESTOCK, INC., et al.


SAUFLEY, C.J.

         [¶1] Dubois Livestock, Inc., a corporation based in Arundel, and Cynthia

Dubois, Trustee of the Randrick Trust (collectively, the Dubois entities) appeal

from an order entered by the Superior Court (York County, O’Neil, J.) denying a

motion for contempt filed by several individuals—Randy Dubois, Marcel

Dubois, and Sol Fedder (the individuals)—against the town and others and

granting the Town of Arundel’s motion for sanctions in the form of a vexatious

litigant order (VLO) in two consolidated land-use matters. The Dubois entities

now argue that the individuals lacked standing to file a motion in the matter,

and thus the court’s order on the merits of the motion and the VLO order should

be vacated. Because we agree that the individuals were not properly before the
2

court, the order on the motion for contempt must be vacated. Because the

individuals were dismissed as parties to this appeal, the VLO must be vacated

as well.

                                        I. BACKGROUND

       [¶2] In 2015, the Town filed two M.R. Civ. P. 80K complaints against the

Dubois entities alleging violations of land-use laws. In 2016, the parties agreed

to a consent order resolving the issues, and the court entered a consented-to

order that listed the Town and the Dubois entities as the only parties. The

individuals were not parties, and the order did not mention them.

       [¶3] One year later, the individuals filed a motion in that proceeding

seeking a contempt order against the Town, the Arundel Planning Board (APB),

and individual members of the APB,1 asserting that they had violated the

consent order by denying the Dubois entities a permit that it applied for a few

months earlier. See M.R. Civ. P. 66. The Town responded by defending against

the merits of the individuals’ arguments. In addition, the Town moved for

sanctions in the form of a VLO against both the individuals and the Dubois



    1 Except for the Town, the named alleged contemnors—the APB and individual APB members,

Richard Ganong, Chip Basset, Jamie Lowrey, Tom McGinn, and Roger Morin—were not named parties
at the origination of this matter or in the consent decree proceedings. They were not parties to either
M.R. Civ. P. 80K proceeding, and they were improperly named as defendants in the motion for
contempt of the consent order.
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entities. See Spickler v. Key Bank of Southern Maine, 618 A.2d 204, 207 (Me.

1992) (holding that “a court may enjoin a party from filing frivolous and

vexatious lawsuits”). The Town did not raise the issue of the individuals’

standing to file motions in the matter.

       [¶4] In addressing the individuals’ motion for contempt, the court heard

oral argument on the meaning of the consent order from only the individuals

and the Town.2 Following the hearing, the court issued an order denying the

motion for contempt on its merits. At the same time, the court entered a VLO

against the individuals, prohibiting them from filing any proceedings against

“individual town officials, . . . and others who [they] may try to sue in their

individual capacity” without prior approval of the court. The court denied the

motion for a VLO against the Dubois entities because the entities were not

named in the contempt proceedings and had not filed the allegedly vexatious

motion.

       [¶5] The Dubois entities and the individuals timely filed a notice of

appeal, see 14 M.R.S. § 1901 (2018); M.R. App. P. 2B(c)(1), and, after receiving

briefing on the issue of standing, we entered an order dismissing the



   2 The court briefly asked the parties to address their standing in the matter. The parties confused
the issue and failed to address it properly before the court.
4

individuals as parties to the appeal for want of standing. We also ordered, “The

appeal of [the] Dubois [entities] will proceed in the usual course.”        M.R.

App. P. 10(a)(4).

                                  II. DISCUSSION

A.    Motion for Contempt

      [¶6] The Town, asking that the court’s order denying the motion for

contempt be affirmed, now argues that the individuals did have standing to file

the motion, and therefore the court did not err in acting on that motion. The

Town supports its argument by reasoning that the consent order “represented

a global settlement of not only two Rule 80K land-use enforcement actions by

the Town against Dubois, but also six pending cases” initiated by the individuals

against the Town. Notably, none of the parties moved to consolidate the “six

pending cases” in the trial court, nor are the cases part of the record on this

appeal. See M.R. Civ. P. 42(a).

      [¶7] Contrary to the Town’s argument, nothing in the record before us

provides party status to the individuals. Although a previous nonparty may be

able to assert sufficient facts for a motion court to determine that it has an

interest that would confer standing, see Mortg. Elec. Registration Sys., Inc. v.

Saunders, 2010 ME 79, ¶¶ 7-8, 14, 2 A.3d 289, the nonparty must take
                                                                                  5

procedural steps to accomplish that result—for instance, by filing either a

motion to join, see M.R. Civ. P. 18-21, a motion to intervene, see M.R.

Civ. P. 24(a), or be substituted as the real party-in-interest, see M.R. Civ. P. 25—

before it can file any substantive motions in the matter. It is in such a motion

that the nonparty would assert the grounds upon which a court could

determine it had standing and allow it to become a party in the action.

      [¶8] Here, the individuals failed to file such a motion. No party sought to

name the individuals as the correct defendants to the existing action or, when

the trial court raised the issue, to substitute the Dubois entities as the correct

party to the contempt proceedings. Accordingly, the individuals were not

properly before the court. They were not parties, acknowledged parties-in-

interest, or intervenors.

      [¶9] Nevertheless, the Town argues that this procedural defect may be

cured on appeal by “substituting” the Dubois entities as the “real

party-in-interest” to the contempt proceedings. See M.R. Civ. P. 17(a), 25(c).

We have held,

            Both Rule 17 and 25 are concerned with ensuring that the
      real party in interest is conducting the litigation. Rule 17 is used to
      correct an action that was filed and then maintained by the wrong
      party, or was filed in the name of the wrong party. Rule 25, in
      comparison, is used to substitute a second party for the original
      party when, in the course of litigation or pendency of an appeal, the
6

      original party’s interest ends or is transferred, or the original party
      becomes incompetent.

Saunders, 2010 ME 79, ¶ 17, 2 A.3d 289 (citations omitted); see M.R. Civ. P. 17,

25. In the matter before us, the Dubois entities were the correct named

defendants at the commencement of the litigation, see M.R. Civ. P. 17(a), and the

parties do not argue otherwise. Nor could Rule 25(c) cure the procedural defect

because there are no record facts upon which we can conclude that there was a

“transfer of interest.” Instead, the record indicates that the interests have at all

times remained the same and remained held by the same entities.

      [¶10]    We must, therefore, reject the Town’s argument that the

individuals were parties before the court when the individuals filed their

motion for contempt. The individuals had no standing to file a motion for

contempt in the Rule 80K matters that were before the court. The order

entered on their motion must be vacated.

B.    The Vexatious Litigant Order

      [¶11] As to the second issue on appeal, although the VLO appears to have

been warranted by the actions of the individuals, see Spickler, 618 A.2d at 207,

we also must vacate the VLO because the individuals, who had no standing to

file the original motion for contempt, were earlier dismissed as parties to this
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appeal.3 If the individuals, or others, file further motions that are frivolous or

vexatious, the court certainly has the authority to act accordingly with a VLO or

other appropriate sanction, particularly given the trial court’s clear notice that

further frivolous, unfounded, or vexatious litigation will not be allowed. See

Spickler, 618 A.2d at 207.

        The entry is:

                           Judgment vacated.



Edward S. MacColl, Esq., Thompson, MacColl & Bass, LLC, P.A., Portland, for
appellant Dubois Livestock, Inc.

Leah B. Rachin, Esq., Bergen & Parkinson, LLC, Kennebunk, for appellees Town
of Arundel et al.


York County Superior Court docket numbers CV-2015-204 and CV-2015-275
FOR CLERK REFERENCE ONLY




   3  In this unique procedural posture, because we earlier declined to allow the individuals to be
heard on appeal, affirming the VLO would be inconsistent with due process requirements. The
individuals should not, however, assume that these unique circumstances will be repeated. To be
clear, they will not, in the future, escape the consequences of an appropriately entered VLO by
arguing that they had no standing to file a motion or complaint that is ultimately determined to be
vexatious, unfounded, or frivolous.
