MAINE SUPREME JUDICIAL COURT                                                      Reporter of Decisions
Decision: 2020 ME 7
Docket:   Cum-18-499
Argued:   September 25, 2019
Decided:  January 21, 2020

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



                                        TOWN OF GORHAM

                                                    v.

                                      SUSAN DUCHAINE et al.


JABAR, J.

          [¶1] This matter arises from a land use dispute between the Town of

Gorham (the “Town”) and Gorham property owners Susan Duchaine and her

company, Design Dwellings, Inc. (hereinafter “DDI”). DDI appeals from a

District Court (Portland, J. French, J.) order granting the Town’s motion to

enforce a consent decree entered earlier in the land-use dispute. Because there

is not a proper record to support the trial court’s findings, we vacate the order

and remand for further proceedings.




   *
    Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified justice may participate in a decision even though not
present at oral argument.”).
   **   Although Justice Hjelm participated in the appeal, he retired before this opinion was certified.
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                                       I. BACKGROUND

        [¶2] On June 1, 2017, the Town filed a land-use-enforcement claim in the

District Court pursuant to Maine Rule of Civil Procedure 80K. The citation and

complaint charged DDI with multiple violations of the Gorham Land Use and

Development Code. DDI denied the allegations.

        [¶3] In February 2018, the parties settled the dispute by agreeing to

terms set forth in a consent decree.1 The court (Powers, J.) ordered the consent

decree to be entered as a judgment in the case on March 1, 2018. As part of the

consent decree, a compliance plan listed nine items that DDI was required to

complete by specified deadlines. The decree provided that upon completion of

the nine items, DDI “may request the [Town’s code enforcement officer] to issue

a permanent Certificate of Occupancy for the Property.” Pursuant to the decree,

DDI was required to pay a $2,000 civil penalty and the Town’s costs, as

authorized by 30-A M.R.S. § 4452(3) (2018). The decree included a $10,000

penalty that would be suspended, contingent on DDI’s completion of the

compliance plan items, and prospective penalties in the amount of $100 per day

to be imposed in the event DDI failed to comply.



    Although the parties refer to the consent decree as a “consent order,” we use the interchangeable
    1

term “consent decree,” which is the term more commonly found in reported decisions. See Pike
Indus., Inc. v. City of Westbrook, 2012 ME 78, ¶ 9 n.1, 45 A.3d 707.
                                                                                3

      [¶4] On October 4, 2018, the Town filed a motion to enforce the consent

decree, alleging that DDI failed to comply with the plan and was liable for the

full $10,000 suspended penalty, $45,000 in per-day penalties, and the Town’s

costs of enforcement. In support of the allegations, the Town attached affidavits

of its engineer and code enforcement officer (CEO) to its motion. In its

opposition filed on November 2, 2018, DDI disputed the Town’s allegations of

material noncompliance, contending that it had complied with all items within

its control. The Town filed a reply to DDI’s opposition on November 8, 2018.

      [¶5] Seven days later, on November 15, 2018, without holding a hearing

or informing the parties how it would decide the motion, the court (J. French, J.)

granted the Town’s motion to enforce the consent decree and ordered DDI to

(1) complete the remaining items in the compliance plan within 30 days;

(2) pay the full suspended civil penalty ($10,000); (3) pay per-day penalties for

the total 450 violation days alleged by the Town ($45,000); and (4) pay the

Town’s costs incurred in enforcing the consent decree. The court made no

express findings of fact in support of its order and provided no rationale for its

calculation of penalties and fees in excess of $55,000. Neither party filed a

motion for findings of fact. See M.R. Civ. P. 52. DDI timely appealed. M.R.

App. P. 2B(c).
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                                        II. DISCUSSION

        [¶6] DDI argues that the court order is not supported by competent

evidence in the record.2 When the judgment reviewed on appeal contains no

findings of fact, and there is no motion for findings of fact, we will assume that

the trial court found for the prevailing party on all facts necessary to support

the outcome to the extent that they are supported in the record. Coastal

Ventures v. Alsham Plaza, LLC, 2010 ME 63, ¶ 19, 1 A.3d 416. However, when

there is no competent evidence to support the trial court’s decision, vacating

the order is appropriate. Lewisohn v. State, 433 A.2d 351, 354 (Me. 1981).

        [¶7] We must determine whether there is competent evidence in the

record to support the trial court’s conclusion that DDI failed to complete five of

the nine items required by the compliance plan; that DDI’s failure to comply

subjected it to the suspended civil penalty of $10,000; that there were 450

violation days when the Town filed its motion on October 4, 2018; that DDI was

required to pay $45,000 in $100-per-day penalties for the 450 violation days;



    2Although DDI asserts that the District Court should have followed the contempt procedures set
forth in Rule 66 of the Maine Rules of Civil Procedure, the Town did not file a motion for contempt.
Even if the Town had filed a Rule 66 motion for contempt, DDI could not have been in contempt
because DDI did not have an existing obligation to pay the Town the prospective penalties under the
consent decree. That obligation could only arise after the District Court had found that DDI did not
timely comply, therefore triggering the imposition of the penalties by operation of the consent
decree’s terms.
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and that DDI was responsible for the Town’s costs incurred in the enforcement

of the consent decree.

      [¶8] The Town’s motion asked the trial court to enforce a consent decree

entered as a judgment by the court on March 1, 2018. The procedures for

enforcing a consent decree hinge on the language of the decree itself. When a

consent decree has allegedly been violated, the trial court has broad discretion

to fashion an appropriate remedy, but only in accordance with the terms of the

decree. Perez v. Danbury Hosp., 347 F.3d 419, 425-26 (2d Cir. 2003); see State

v. Shattuck, 2000 ME 38, ¶¶ 17-20, 747 A.2d 174. Contrary to the Town’s

argument that the court employed a “thorough procedural process” where

there was no disagreement as to the decree’s penalties, the calculation of

penalties necessitated a finding of noncompliance—a factual issue that the

parties disputed. Even if the amount of the penalties had been definite, the

Town would still need to present evidence that DDI failed to comply with the

order.

      [¶9]   The Town asked the trial court to determine that DDI was

noncompliant with the consent decree, thereby triggering imposition of the

prospective penalties described in the decree. To make that determination, the
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court must rely on evidence presented at a hearing or, as anticipated by Maine

Rule of Civil Procedure 43(e), through affidavits. Rule 43(e) states:

      When a motion is based on facts not appearing of record the court
      may hear the matter on affidavits presented by the respective
      parties, but the court may direct that the matter be heard wholly or
      partly on oral testimony or depositions.

      [¶10] When a party raises an issue in a motion reliant upon facts that

must be proven, it is the party’s burden to properly present evidence

establishing the claims made. The Town urges us to conclude that the court’s

implicit findings are supported by competent evidence in the record because

Rule 43(e) allows the trial court to hear matters on affidavits. We cannot

conclude that simply because the rule allows a court to hear a matter on

affidavits that the court did hear the matter on affidavits. The problem here is

that the trial court did not hold a hearing, did not inform the parties it would

decide the motion on affidavits, and did not give DDI an opportunity to submit

affidavits in opposition to the affidavits the Town submitted with its motion. In

Wiseman v. Wieschoff, 469 A.2d 847, 848 (Me. 1984), we stated that “[i]f the

court acts on the basis of affidavits, both parties should be afforded an

opportunity to file affidavits pertaining to the [ ] issue.”

      [¶11] Furthermore, simply attaching documents to a motion is not the

equivalent of properly introducing or admitting them as evidence. Documents
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attached to motions are not part of the record and therefore cannot be

considered evidence in the record on appeal. See Denoux v. Vessel Mgmt. Servs.,

Inc., 2007-2143, p. 6 (La. 5/21/08); 983 So. 2d 84, 88 (“Documents attached to

memoranda do not constitute evidence and cannot be considered as such on

appeal.”); Shah v. Star Anesthesia, P.A., 580 S.W.3d 260, 266 (Tex. App. 2019)

(“Exhibits attached to pleadings are not evidence in a case until the exhibits are

properly introduced and admitted . . . .”); Landis Constr. Co. v. State, 2015-1167,

p. 3 (La. App. 1 Cir. 2/29/16); 199 So. 3d 1, 2-3 (evidence “cannot be

considered, even if it is physically placed in the record” where it has not been

officially offered and introduced); Morrison v. Carruth, 2015 Ark. App. 224, at 6,

459 S.W.3d 317, 321 (documents attached to a pleading are not evidence and

must be introduced to be considered); see also Deutsche Bank Nat. Trust Co. v.

Wilk, 2013 ME 79, ¶ 14, 76 A.3d 363 (“[A] fact-finder may not consider facts not

properly in evidence or made part of the record.”).

      [¶12] The trial court should have considered affidavit evidence from

both parties to determine whether sufficient disputed facts or the necessity for

credibility determinations would require a further hearing, or it could simply

have held a hearing. We cannot assume that the trial court made all the findings

necessary to support its judgment for the Town because no evidence was
8

properly introduced or admitted, and therefore there is no record of any

evidence to support those findings. See Lewisohn, 433 A.2d at 354.

        The entry is:

                           Judgment vacated. Remanded to the District
                           Court for further proceedings consistent with
                           this opinion.



John C. Bannon, Esq. (orally), and Sage M. Friedman, Esq., Murray, Plumb &
Murray, Portland, for appellants Susan Duchaine and Design Dwellings, Inc.

Mark A. Bower, Esq. (orally), and Benjamin T. McCall, Esq., Jensen Baird
Gardner & Henry, Portland, for appellee Town of Gorham


Portland District Court docket number CV-2017-245
FOR CLERK REFERENCE ONLY
