MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2016	ME	173	
Docket:	      Wal-15-529	
Submitted	
  On	Briefs:	 September	29,	2016	
Decided:	     December	1,	2016	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                  ADAM	P.	PAUL	et	al.	
                                           	
                                          v.	
                                           	
                                  TOWN	OF	LIBERTY	
	
	
MEAD,	J.	

    	   [¶1]		Adam	P.	Paul,	Debra	M.	Paul,	and	George	E.	Paul	(the	Pauls)	appeal	

from	a	judgment	of	the	Superior	Court	(Waldo	County,	R.	Murray,	J.)	denying	

their	 motion	 for	 leave	 to	 amend	 their	 complaint	 and	 granting	 the	 Town	 of	

Liberty’s	 motion	 to	 dismiss.	 	 The	 Pauls	 contend	 that	 the	 court	 erred	 by	 not	

permitting	 them	 to	 amend	 Count	 I	 of	 their	 complaint	 to	 assert	 a	 declaratory	

judgment	 claim	 rather	 than	 seek	 review	 of	 governmental	 action	 pursuant	 to	

M.R.	Civ.	P.	80B.		They	also	contend	that	the	court	erred	by	determining	that	

they	 are	 not	 entitled	 to	 damages,	 which	 they	 sought	 pursuant	 to	 23	 M.R.S.	

§	 3029	 (2015)	 in	 Count	 II	 of	 the	 complaint	 based	 on	 a	 determination	 by	 the	

Town	 of	 Liberty	 Select	 Board	 that	 a	 road	 abutting	 their	 property	 had	 been	
2	

abandoned	pursuant	to	23	M.R.S.	§	3028	(2015).1		We	vacate	the	court’s	denial	

of	the	motion	for	leave	to	amend	and	remand	for	the	court	to	readdress	it	in	

accordance	 with	 the	 principles	 set	 forth	 herein;	 we	 affirm	 the	 dismissal	 of	

Counts	I	and	II	of	the	complaint.	

                                             I.		BACKGROUND	

         [¶2]		Because	our	review	involves	the	trial	court’s	dismissal	of	a	claim	

pursuant	to	M.R.	Civ.	P.	12(b)(6),	“we	view	the	facts	alleged	in	the	complaint	as	

if	 they	 were	 admitted.”	 	 Ramsey	 v.	 Baxter	 Title	 Co.,	 2012	 ME	 113,	 ¶	 2,	

54	A.3d	710.		The	Pauls	own	parcels	of	real	estate	in	Liberty	that	are	accessed	

by	 a	 public	 road	 called	 Bolin	 Hill	 Road.	 	 The	 Town	 has	 failed	 to	 repair	 or	

maintain	 the	 road	 to	 keep	 it	 safe	 for	 motor	 vehicle	 travel.	 	 In	 August	 2014,	

Debra	 Paul	 requested	 in	 writing	 that	 the	 Town	 repair	 the	 road,	 and	 she	 and	

George	 Paul	 subsequently	 petitioned	 the	 Waldo	 County	 Commissioners	 to	

order	the	Town	to	repair	the	road.		They	voluntarily	withdrew	their	petition	in	

November	2014	based	on	the	Town’s	stated	intention	to	determine	whether	

Bolin	 Hill	 Road	 had	 been	 abandoned	 or	 discontinued	 and	 its	 belief	 that	 the	

County	 Commissioners	 did	 not	 have	 jurisdiction	 to	 address	 that	 issue.	 	 On	



     1		Title	23	M.R.S.	§	3028	(2015)	has	since	been	amended,	though	not	in	any	way	that	affects	the	

present	 case.	 	 See	 P.L.	 2015,	 ch.	 464,	 §	 7	 (effective	 July	 29,	 2016)	 (to	 be	 codified	 at	 23	 M.R.S.	
§	3028(5)).	
                                                                                     3	

December	 29,	 2014,	 the	 Town	 held	 a	 public	 meeting	 where	 the	 Town	 Select	

Board	voted,	without	later	issuing	a	written	order,	that	the	“upper	portion”	of	

Bolin	Hill	Road	had	been	abandoned	pursuant	to	23	M.R.S.	§	3028(2),	and	that	

a	public	easement	was	retained	over	the	abandoned	portion.		The	Pauls	assert	

that	 the	 abandonment	 determination	 conflicts	 with	 evidence	 indicating	 the	

Town’s	intent	to	use	Bolin	Hill	Road	as	a	public	way,	and	that	the	Town’s	failure	

to	maintain	the	road	has	resulted	in	a	reduction	of	the	fair	market	value	of	their	

property.			

	     [¶3]		On	February	27,	2015,	the	Pauls	filed	a	two-count	complaint	in	the	

Superior	Court.		Count	I	sought	relief	pursuant	to	M.R.	Civ.	P.	80B,	challenging	

the	 Town’s	 determination	 that	 the	 road	 has	 been	 abandoned,	 and	 Count	 II	

sought	an	award	of	damages	pursuant	to	23	M.R.S.	§	3029.		The	Town	moved	to	

dismiss	the	complaint	on	March	18,	2015,	asserting	that	the	Rule	80B	complaint	

was	not	timely	filed	and	the	Pauls	could	not	recover	damages.	

      [¶4]	 	 On	 April	 8,	 2015,	 two	 other	 property	 owners	 filed	 a	 motion	 to	

intervene,	 which	 the	 court	 granted	 on	 June	 4,	 2015.	 The	 complaint	 was	

amended	accordingly,	and	the	Town	resubmitted	an	answer	and	again	moved	

to	 dismiss	 on	 June	 11,	 2015.	 	 The	 Pauls	 moved	 for	 leave	 to	 amend	 their	

complaint	 a	 second	 time	 on	 July	 2,	 2015.	 	 The	 second	 amended	 complaint	
4	

sought	to	change	Count	I	from	a	Rule	80B	action	to	an	action	for	a	declaratory	

judgment	as	to	the	parties’	rights	and	obligations	with	regard	to	the	road.	

         [¶5]	 	 On	 September	 28,	 2015,	 the	 Superior	 Court	 granted	 the	 Town’s	

motion	to	dismiss	pursuant	to	M.R.	Civ.	P.	12(b)(1)	and	12(b)(6),	finding	that	

the	Pauls’	Rule	80B	complaint	was	untimely	and	determining	that	they	could	

not	recover	damages	pursuant	to	23	M.R.S.	§	3029.		In	the	same	order,	the	court	

denied	the	Pauls’	motion	for	leave	to	amend	after	concluding	that	a	Rule	80B	

action—not	 a	 declaratory	 judgment	 action—was	 the	 proper	 means	 to	

challenge	 the	 Town’s	 decision,	 and	 that	 they	 could	 not	 use	 a	 declaratory	

judgment	action	to	circumvent	the	time	limits	of	Rule	80B.		The	Pauls	timely	

appealed.2	

                                          II.		DISCUSSION	

         [¶6]		We	turn	our	attention	first	to	the	sequence	in	which	the	court	denied	

the	 Pauls’	 motion	 to	 amend	 and	 granted	 the	 Town’s	 motion	 to	 dismiss.	 	 The	

sequence	 is	 significant	 because	 a	 full	 and	 final	 dismissal	 of	 all	 counts	 of	 a	

complaint	arguably	leaves	nothing	remaining	to	amend.	

         [¶7]		Ordinarily,	a	trial	court	should	rule	on	a	motion	for	leave	to	amend	

before	 acting	 on	 another	 motion,	 such	 as	 a	 motion	 to	 dismiss,	 that	 could	 be	


     2		The	two	plaintiffs	added	pursuant	to	the	motion	to	intervene	dismissed	their	appeals	to	the	Law	

Court	in	January	2016.	
                                                                                                      5	

dispositive	of	the	original	complaint.	 	Sherbert	v.	Remmel,	2006	ME	116,	¶	8,	

908	A.2d	622;	see	also	Jones	v.	Suhre,	345	A.2d	515,	517-18	(Me.	1975).		In	this	

case,	 both	 the	 Pauls’	 motion	 for	 leave	 to	 amend	 and	 the	 Town’s	 motion	 to	

dismiss	 were	pending	and	in	order	for	action	 by	 the	 court	 at	 the	 time	 of	 the	

September	 2015	 order.	 	 The	 order	 discusses	 the	 motion	 to	 dismiss	 before	

addressing	the	motion	for	leave	to	amend,	thus	suggesting	that	the	motion	to	

dismiss	 was	 granted	 prior	 to	 the	 consideration	 and	 denial	 of	 the	 motion	 to	

amend.		However,	the	order	provides	a	separate	analysis	for	each	motion	and	

notes	 the	 effect	 of	 the	 denial	 for	 leave	 to	 amend	 on	 the	 motion	 to	 dismiss.3		

Accordingly,	the	sequence	in	which	the	court	addressed	the	parties’	motions	is	

of	 no	 significance	 and	 we	 discern	 no	 error	 in	 the	 court’s	 order.	 	 Cf.	 Sherbert,	

2006	ME	116,	¶¶	9-10,	908	A.2d	622	(holding	that	when	it	was	unclear	whether	

the	court	had	acted	on	a	pending	motion	for	leave	to	amend	before	acting	on	a	

motion	to	dismiss,	the	ruling	on	the	motion	to	dismiss	was	in	error).	

       [¶8]		We	turn	to	a	discussion	of	the	court’s	rulings	on	the	motions.	

A.	    Motion	for	Leave	to	Amend	
   	
       [¶9]		We	review	the	denial	of	a	motion	for	leave	to	amend	for	an	abuse	of	



   3		The	court	explained	that	“[b]ecause	[it]	denies	Plaintiffs’	Motion	for	Leave	to	Amend,	the	[c]ourt	

has	not	considered	Plaintiffs’	proposed	Second	Amended	Complaint	in	its	evaluation	of	Defendant’s	
Motion	to	Dismiss.”		
6	

discretion.		America	v.	Sunspray	Condo.	Ass’n,	2013	ME	19,	¶	7,	61	A.3d	1249.		

Once	a	responsive	pleading	is	served,	a	party	may	amend	the	pleading	“by	leave	

of	 court,”	 which	 “shall	 be	 freely	 given	 when	 justice	 so	 requires.”		

M.R.	Civ.	P.	15(a).		On	appeal,	a	party	who	was	denied	leave	to	amend	“must	

demonstrate	(1)	that	the	court	clearly	and	manifestly	abused	its	discretion	and	

(2)	that	the	amendment	was	necessary	to	prevent	injustice.”		Sunspray	Condo.	

Ass’n,	2013	ME	19,	¶	7,	61	A.3d	1249	(alteration	and	quotation	marks	omitted).		

“[U]ndue	 delay,	 bad	 faith,	 undue	 prejudice,	 or	 futility	 of	 amendment”	 are	

grounds	for	denying	a	motion	to	amend.		Montgomery	v.	Eaton	Peabody,	LLP,	

2016	ME	44,	¶	13,	135	A.3d	106.	

      [¶10]		The	court	predicated	its	denial	of	the	Pauls’	motion	for	leave	to	

amend	their	complaint	upon	its	conclusion	that	the	Pauls	could	not	maintain	a	

declaratory	judgment	action	because	23	M.R.S.	§	3029	prescribes	a	Rule	80B	

action	 as	 the	 exclusive	 means	 to	 challenge	 a	 municipal	 board’s	 decision.		

Section	3029	provides	that	“[a]ny	person	aggrieved	by	the	action	or	nonaction	

of	 municipal	 officers	 .	 .	 .	 in	 proceedings	 under	 [chapter	 304],	 other	 than	 a	

determination	of	damages,	may	appeal	to	the	Superior	Court	.	.	.	pursuant	to	

Rule	80B	of	the	Rules	of	Civil	Procedure.”		23	M.R.S.	§	3029.	

      [¶11]	 	 In	 contrast,	 the	 specific	 statute	 in	 chapter	 304	 governing	 road	
                                                                                                      7	

abandonment	provides,	in	relevant	part:	

     It	 is	 prima	 facie	 evidence	 that	 a	 town	 or	 county	 way	 not	 kept	
     passable	 for	 the	 use	 of	 motor	 vehicles	 at	 the	 expense	 of	 the	
     municipality	or	county	for	a	period	of	30	or	more	consecutive	years	
     has	been	discontinued	by	abandonment.	.	.	.	Any	person	affected	by	
     a	presumption	of	abandonment	.	.	.	may	seek	declaratory	relief	to	
     finally	resolve	the	status	of	such	ways.			
     	
23	M.R.S.	§	3028(1)	(emphasis	added).		The	statute	further	provides	that	“[t]he	

determination	of	the	municipal	officers	regarding	the	status	of	a	town	way	.	.	.	

is	binding	on	all	persons	until	a	final	determination	of	that	status	has	been	made	

by	a	court.”		23	M.R.S.	§	3028(2).	

	       [¶12]		The	plain	language	of	section	3028	provides	that	any	person	may	

seek	 declaratory	 relief	 to	 finally	 resolve	 the	 question	 of	 whether	 a	 road	 has	

been	abandoned.		Despite	the	broad	sweep	of	the	section	3029	reference	to	the	

availability	of	Rule	80B	review	in	chapter	304	actions,	we	confirm	that	section	

3028	 specifically	 and	 expressly	 authorizes	 parties	 to	 challenge	 a	 road	

abandonment	determination	by	seeking	declaratory	relief,	independent	from	

any	relief	that	may	also	be	available	pursuant	to	Rule	80B.4		See	Bd.	of	Selectmen	



    4		We	recognize	the	principle	of	exclusivity,	which	provides	that	

    	
        when	a	legislative	body	has	made	provision,	by	the	terms	of	a	statute	or	ordinance,	
        for	a	direct	means	by	which	the	decision	of	an	administrative	body	can	be	reviewed	
        in	 a	 manner	 to	 afford	 adequate	 remedy,	 such	 direct	 avenue	 is	 intended	 to	 be	
        exclusive.		Resort	to	the	courts	by	alternative	routes	will	not	be	tolerated,	subject	only	
        to	an	exception	for	those	circumstances	in	which	the	course	of	“direct	appeal”	review	
8	

v.	 Kennebec	 Cty.	 Comm’rs,	 393	 A.2d	 526,	 528	 (Me.	 1978)	 (“The	 statutory	

framework	in	which	section	3028	is	set	indicates	that	the	legislature	intended	

the	 action	 for	 a	 declaratory	 judgment	 to	 be	 the	 exclusive	 method	 for	

determining	finally	any	dispute	as	to	whether	a	town	or	county	way	has	been	

discontinued	by	abandonment.”).	

        [¶13]		Abandonment	is	distinct	from	other	methods	by	which	a	town	may	

disclaim	property,	such	as	discontinuance,	where	a	municipality	affirmatively	

elects	 to	 “discontinue”	 a	 town	 way.	 	 See	 P.L.	 2015,	 ch.	 464,	 §	 5	 (effective	

July	 29,	 2016)	 (to	 be	 codified	 at	 23	 M.R.S.	 §	 3026-A)	 (providing	 that	 the	

municipal	 legislative	 body	 votes	 to	 approve	 or	 disapprove	 an	 order	 of	

discontinuance	filed	by	municipal	officers).5		Discontinuance	is	well	suited	for	

judicial	 review	 pursuant	 to	 the	 language	 of	 section	 3029	 and	 Rule	 80B.	 	 See	


        by	a	court	is	inadequate	and	court	action	restricting	a	party	to	it	will	cause	that	party	
        irreparable	injury.	
   	
Colby	v.	York	Cty.	Comm’rs,	442	A.2d	544,	547	(Me.	1982)	(quoting	Fisher	v.	Dame,	433	A.2d	366,	372	
(Me.	 1981)).	 	 We	 have	 also	 stated	 that	 “when	 direct	 review	 is	 available	 pursuant	 to	 Rule	 80B,	 it	
provides	the	exclusive	process	for	judicial	review	unless	it	is	inadequate.”		Gorham	v.	Androscoggin	
Cty.,	2011	ME	63,	¶	22,	21	A.3d	115.	
	
   	    The	 exclusivity	 principle	 does	 not	 bar	 an	 action	 for	 declaratory	 relief	 pursuant	 to	 section	
3028	 because	 the	 declaratory	 relief	 action	 is	 not	 necessarily	 a	 mechanism	 for	 judicial	 review	 of	 a	
municipal	 action	 or	 nonaction	 regarding	 road	 abandonment.	 	 Rather,	 the	 declaratory	 relief	
prescribed	by	section	3028	seeks	a	final	resolution	as	to	the	status	of	a	road,	and	such	an	action	may	
be	pursued	absent	a	municipality	first	acting	on	a	presumption	of	abandonment.	
   	
   5		Title	23	M.R.S.	§	3026	(2015)	was	effective	during	the	events	of	this	case	and	has	since	been	

repealed	and	replaced	by	P.L.	2015,	ch.	464,	§§	4,	5	(effective	July	29,	2016)	(to	be	codified	at	23	M.R.S.	
§	3026-A).	
                                                                                                              9	

M.R.	Civ.	P.	80B(a)	(“When	review	by	the	Superior	Court	.	.	.	of	any	action	or	

failure	or	refusal	to	act	by	a	governmental	agency	.	.	.	is	provided	by	statute	or	

is	otherwise	available	by	law,	proceedings	for	such	review	shall	.	.	.	be	governed	

by	these	Rules	of	Civil	Procedure	as	modified	by	this	rule.”		(Emphasis	added.)).		

In	contrast,	a	municipality’s	determination	that	a	road	is	abandoned	is	not	an	

“action”	 by	 a	 governmental	 agency.	 	 When	 a	 municipality	 makes	 a	

determination	 that	 a	 road	 is	 abandoned	 pursuant	 to	 section	 3028	 it	 is	 not	

engaging	in	any	legislative	action	to	abandon	the	road;	rather,	the	municipality	

is	merely	positing	that	a	road	has	or	has	not	been	abandoned	due	to	the	passage	

of	time	and	maintenance	history.		See	23	M.R.S.	§	3028(1).		Because	a	person	

aggrieved	by	road	abandonment	has	become	aggrieved	only	by	the	operation	

of	 law—not	 by	 a	 municipal	 board’s	 observation	 that	 the	 abandonment	 has	

occurred—there	is	no	municipal	action	to	form	the	basis	of	a	Rule	80B	appeal.		

Therefore,	 a	 declaratory	 judgment	 action,	 as	 expressly	 permitted	 in	

section	 3028,	 is	 the	 appropriate	 and	 statutorily	 authorized	 process	 for	

resolving	the	status	of	a	presumptively	abandoned	town	way.6	



   6	 	 The	 Pauls	 allege	 in	 their	 amended	 complaint	 and	 second	 amended	 complaint	 that	 the	 Board	

“voted	to	determine	that	the	‘upper	portion’	of	Bolin	Hill	Road	[has	been]	abandoned	pursuant	to	
23	 M.R.S.	 §	 3028(2)	 and	 that	 a	 public	 easement	 is	 retained	 over	 the	 abandoned	 portion	 by	 the	
inhabitants	 of	 the	 Town	 of	 Liberty.”	 	 As	 with	 the	 determination	 of	 abandonment,	 the	 Board’s	
“determination”	 that	 a	 public	 easement	 is	 retained	 is	 not	 legislative	 action,	 and	 the	 existence	 or	
nonexistence	of	a	public	easement	may	be	appropriately	addressed	in	a	declaratory	judgment	action.	
10	

	     [¶14]		In	denying	the	Pauls	leave	to	amend	their	complaint,	the	court	also	

reasoned	that	the	Pauls	could	not	use	a	declaratory	judgment	action	to	enable	

them	to	bring	an	action	that	was	otherwise	time-barred.		Cf.	Sold,	Inc.	v.	Town	of	

Gorham,	 2005	 ME	 24,	 ¶	 10,	 868	 A.2d	 172	 (“A	 declaratory	 judgment	 action	

cannot	be	used	to	create	a	cause	of	action	that	does	not	otherwise	exist.	.	.	.	Thus,	

a	declaratory	judgment	action	cannot	be	used	to	revive	a	cause	of	action	that	is	

otherwise	 barred	 by	 the	 passage	 of	 time.”).	 	 The	 court’s	 reasoning,	 however,	

was	based	on	the	erroneous	conclusion	that	a	Rule	80B	appeal	was	the	method	

by	 which	 to	 challenge	 a	 town's	 determination	 that	 the	 passage	 of	 time	 has	

resulted	 in	 a	 road	 abandonment.	 	 As	 noted	 above,	 an	 action	 for	 declaratory	

relief	is	the	appropriate	avenue	for	determining	the	abandonment	status	of	a	

town	way,	and	thus	is	not	subject	to	the	time	limits	of	Rule	80B(b).		See	Colby	v.	

York	 Cty.	 Comm’rs,	 442	 A.2d	 544,	 547	 (Me.	 1982)	 (“[I]n	 the	 present	

circumstance	where	the	action	is	filed	after	the	expiration	of	thirty	days,	the	

existence	of	an	independent	basis	for	judicial	intervention	or	an	exception	to	

the	exclusivity	of	direct	review	is	crucial.”).		Because	the	Pauls	could	properly	

assert	 a	 declaratory	 judgment	 action	 as	 specifically	 provided	 by	 statute,	 any	

untimeliness	of	an	80B	appeal	would	have	no	effect	on	the	issues	raised	in	the	
                                                                                                       11	

motion	to	amend.7	

        [¶15]	 	 We	 note	 also	 that	 the	 factors	 typically	 supporting	 the	 denial	 of	

requests	for	leave	to	amend	seem	not	to	be	present	here.		The	fact	that	the	Pauls’	

second	 motion	 to	 amend	 was	 filed	 about	 fifteen	 weeks	 after	 the	 Town	

responded	 to	 the	 original	 complaint	 does	 not,	 on	 this	 record,	 constitute	 an	

undue	delay.		Compare	Montgomery,	2016	ME	44,	¶	15,	135	A.3d	106	(affirming	

the	 denial	 of	 a	 third	 motion	 to	 amend	 a	 complaint	 made	 three	 years	 after	

commencement	 of	 the	 suit),	 with	 Kelly	 v.	 Michaud’s	 Ins.	 Agency,	 Inc.,	

651	A.2d	345,	347	(Me.	1994)	(vacating	the	denial	of	a	motion	to	amend	made	

six	weeks	after	a	responsive	pleading	was	filed	and	seven	months	before	the	

discovery	deadline).		Moreover,	there	is	no	apparent	undue	prejudice	from	the	

delay,	 because	 the	 declaratory	 judgment	 action	 addresses	 issues	 already	

presented	 by	 the	 inapplicable	 Rule	 80B	 complaint.	 	 See	 Bangor	 Motor	 Co.	 v.	

Chapman,	452	A.2d	389,	393	(Me.	1982).		Finally,	the	record	offers	no	evidence	

of	 bad	 faith	 or	 futility	 of	 amendment;	 amending	 the	 complaint	 would	 have	

saved	the	complaint	from	dismissal	by	asserting	a	cause	of	action	that	was	both	

permitted	and	timely	pursuant	to	23	M.R.S.	§	3028.	


   7		To	the	extent	that	the	Pauls’	declaratory	judgment	action	challenges	the	process	and	procedures	

under	 which	 the	 Town	 “voted	 to	 determine”	 the	 status	 of	 the	 abandonment	 and	 public	 easement,	
these	are	issues	that	are	ordinarily	addressed	in	a	Rule	80B	appeal.		The	declaratory	judgment	action	
cannot	be	used	to	revive	or	litigate	80B	issues	that	are	otherwise	lost	due	to	untimeliness.		
12	

       [¶16]		For	the	aforementioned	reasons,	we	conclude	that	the	court	erred	

in	denying	the	Pauls’	motion	for	leave	to	amend	Count	I	of	the	complaint	upon	

the	assumption	that	declaratory	judgment	was	not	available	as	a	matter	of	law.	

B.	    Motion	to	Dismiss	
   	
   	   1.	   Count	I	(Relief	Pursuant	to	Rule	80B)	
   	
       [¶17]		The	court	dismissed	Count	I	of	the	Pauls’	amended	complaint	on	

the	grounds	that	it	did	not	have	subject	matter	jurisdiction	because	the	original	

Rule	 80B	 complaint	 was	 untimely.	 	 See	 M.R.	 Civ.	 P.	 12(b)(1).	 	 “Statutory	

limitations	 on	 appeal	 periods	 are	 jurisdictional.”	 	 Davric	 Me.	 Corp.	 v.	 Bangor	

Historic	Track,	Inc.,	2000	ME	102,	¶	11,	751	A.2d	1024.		We	review	the	grant	of	

a	motion	to	dismiss	challenging	the	court’s	jurisdiction	de	novo	but	make	no	

inferences	in	favor	of	the	plaintiff.		Gorham	v.	Androscoggin	Cty.,	2011	ME	63,	

¶	9,	21	A.3d	115.	

       [¶18]	 	 As	 discussed	 supra,	 23	 M.R.S.	 §	 3029	 permits	 an	 aggrieved	

landowner	to	appeal	a	municipal	action	pursuant	to	M.R.	Civ.	P.	80B.		The	rule	

provides	that	

       [t]he	time	within	which	review	may	be	sought	shall	be	as	provided	
       by	statute,	except	that	if	no	time	limit	is	specified	by	statute,	the	
       complaint	shall	be	filed	within	30	days	after	notice	of	any	action	or	
       refusal	to	act	of	which	review	is	sought	unless	the	court	enlarges	
       the	time	in	accordance	with	Rule	6(b)	.	.	.	.	
       	
                                                                                                                    13	

M.R.	Civ.	P.	80B(b).		Because	sections	3028	and	3029	do	not	provide	a	time	limit	

for	 Rule	 80B	 appeals,	 Rule	 80B’s	 thirty-day	 time	 limit	 applies.	 	 See	 id.	 	 The	

Board’s	vote,	confirming	that	the	road	had	been	abandoned	by	the	passage	of	

time	and	operation	of	law,	took	place	on	December	29,	2014.8		Accordingly,	the	

Pauls’	Rule	80B	appeal	should	have	been	filed	on	or	before	January	28,	2015,	

but	was	not	filed	until	February	27,	2015.		Thus,	because	the	Rule	80B	action	

was	untimely,	it	was	subject	to	dismissal	for	lack	of	subject	matter	jurisdiction.		

We	discern	no	error	in	the	court’s	dismissing	Count	I	of	the	amended	complaint	

pursuant	to	M.R.	Civ.	P.	12(b)(1).	

   	    2.	      Count	II	(Damages	Pursuant	to	Section	3029)	
   	
        [¶19]		A	court	properly	dismisses	a	complaint	when	the	complaint	fails	

“to	state	a	claim	upon	which	relief	can	be	granted.”		M.R.	Civ.	P.	12(b)(6).		We	

review	 a	 court’s	 decision	 on	 a	 motion	 to	 dismiss	 pursuant	 to	

M.R.	Civ.	P.	12(b)(6)	by	examining	the	plaintiff’s	complaint	“in	the	light	most	

favorable	to	the	plaintiff	to	determine	whether	it	sets	forth	elements	of	a	cause	


   8	 	 In	 the	 context	 of	 Rule	 80B,	 “‘notice	 of	 any	 action’	 refers	 to	 an	 action	 that	 fully	 decides	 and	

disposes	 of	 the	 whole	 cause	 leaving	 no	 further	 questions	 for	 .	 .	 .	 future	 consideration	 and	
judgment	 .	 .	 .	 .”	 Gorham,	 2011	 ME	 63,	 ¶	 12,	 21	 A.3d	 115	 (quotation	 marks	 omitted);	 see	
M.R.	Civ.	P.	80B(b).		For	example,	in	Gorham,	we	held	that	“for	purposes	of	Rule	80B(b),	‘notice	of	any	
action’	involving	the	dismissal	of	a	county	employee	.	.	.	occurs	when	the	employee	receives	a	copy	of	
the	written	decision	of	the	[agency],”	rather	than	when	the	agency	voted	on	the	matter,	because	the	
applicable	statute	requires	the	agency	to	issue	a	written	decision.		Id.	¶¶	17-20.		In	contrast,	23	M.R.S.	
§	3028	did	not	require	the	Board	to	issue	a	written	decision	regarding	its	December	2014	vote,	so	
the	Rule	80B	appeal	period	commenced	upon	the	affirmative	vote	of	the	Board.	
14	

of	 action	 or	 alleges	 facts	 that	 would	 entitle	 the	 plaintiff	 to	 relief	 pursuant	 to	

some	 legal	 theory.”	 	 Bean	 v.	 Cummings,	 2008	 ME	 18,	 ¶	 7,	 939	 A.2d	 676.		

(quotation	marks	omitted).		We	will	affirm	a	dismissal	“only	when	it	appears	

beyond	doubt	that	a	plaintiff	is	entitled	to	no	relief	under	any	set	of	facts	that	

he	might	prove	in	support	of	his	claim.”		Id.		Our	review	of	issues	of	statutory	

interpretation	is	de	novo.		Fox	Islands	Wind	Neighbors	v.	Dep’t	of	Envtl.	Prot.,	

2015	ME	53,	¶	11,	116	A.3d	940.	

       [¶20]		With	respect	to	damages,	23	M.R.S.	§	3029	provides:	

     Any	 person	 aggrieved	 by	 the	 determination	 of	 the	 damages	
     awarded	 to	 owners	 of	 property	 or	 interests	 therein	 under	 this	
     chapter	may,	within	60	days	after	the	day	of	taking,	appeal	to	the	
     Superior	Court	.	.	.	.		The	court	shall	determine	damages	.	.	.	.	
     	
We	conclude	that	the	plain	language	of	section	3029	does	not	create	a	separate	

cause	 of	 action	 to	 obtain	 damages	 in	 appeals	 from	 proceedings	 undertaken	

pursuant	to	the	subsections	of	chapter	304;	rather,	it	provides	a	basis	to	appeal	

the	amount	of	damages	awarded	pursuant	to	other	sections	in	the	chapter.		As	

we	have	explained,	because	compensation	“pursuant	to	section	3029	depends,	

first,	on	the	municipality’s	award	of	damages	pursuant	to	.	.	.	some	other	section	

of	chapter	304,	section	3029	essentially	provides	a	subsequent	procedure	that	

allows	for	a	de	novo	determination	of	damages.”		Frustaci	v.	City	of	S.	Portland,	

2005	 ME	 101,	 ¶	 10,	 879	 A.2d	 1001.	 	 That	 other	 section	 is	 the	 “underlying	
                                                                                                             15	

authority	for	[an]	award	of	damages”	pursuant	to	section	3029.		Id.	

        [¶21]		Section	3028	does	not	reference	or	provide	for	an	assessment	of	

damages	due	to	road	abandonment,9	and	thus	does	not	provide	an	“underlying	

authority”	for	a	damages	award	as	a	result	of	road	abandonment.10		Because	

statutory	damages	are	not	available	pursuant	to	section	3028	and	section	3029	

does	not	create	a	separate	basis	for	damages,	there	is	no	claim	for	relief	stated	

in	Count	II	of	the	Pauls’	complaint.		Therefore,	the	court	did	not	err	in	dismissing	

Count	II	of	the	amended	complaint	pursuant	to	M.R.	Civ.	P.	12(b)(6).			



   9	 	 Unlike	 section	 3028,	 other	 sections	 in	 chapter	 304	 do	 discuss	 damages	 in	 the	 context	 of	
permitting	 a	 municipality	 to	 acquire	 or	 disclaim	 property.	 	 See	 23	 M.R.S.	 §	 3023	 (2015)	 (eminent	
domain);	 23	 M.R.S.	 §	 3025	 (2015)	 (dedication	 and	 acceptance);	 P.L.	 2015,	 ch.	 464,	 §	 5	 (effective	
July	 29,	 2016)	 (to	 be	 codified	 at	 23	 M.R.S.	 §	 3026-A)	 (discontinuance);	 23	 M.R.S.	 §	 3027	 (2015)	
(vacation)	 (Title	 23	 M.R.S.	 §	 3027	 has	 since	 been	 amended.	 	 P.L.	 2015,	 ch.	 464,	 §	 6	 (effective	
July	29,	2016)	(to	be	codified	at	23	M.R.S.	§	3027(1)));	23	M.R.S.	§	3028	(abandonment).	
    	
    10		We	recognize	that	this	interpretation	of	section	3029	could	be	read	as	conflicting	with	other	

language	from	our	decision	in	Frustaci.		In	that	case,	we	explained:	
         	
         Section	3029	provides	the	authority	for	any	landowner	harmed	by	government	action	
         discussed	 in	 any	 provision	 in	 chapter	 304	 to	 seek	 a	 de	 novo	 determination	 of	 the	
         entitlement	to	and	appropriate	amount	of	damages	in	the	Superior	Court	following	a	
         municipality’s	 administrative	 decision	 .	 .	 .	 .	 [Section	 3029]	 allows	 damages	 to	 be	
         sought	in	the	Superior	Court	from	the	many	assorted	government	actions	mentioned	
         in	chapter	304	.	.	.	including	the	discontinuance	or	abandonment	of	town	ways	.	.	.	.	
	
Frustaci	v.	City	of	S.	Portland,	2005	ME	101,	¶	11,	879	A.2d	1001	(citing	23	M.R.S.	§§	3023,	3026,	3027,	
3028).	 	 In	 Frustaci,	 we	 held	 that	 a	 constitutionally	 significant	 taking	 is	 not	 required	 to	 pursue	
damages	caused	by	municipal	actions	pursuant	to	chapter	304,	id.	¶	9,	but	we	did	not	intend	to	create	
a	 cause	 of	 action	 for	 damages	 pursuant	 to	 section	 3028	 where	 one	 did	 not	 previously	 exist.	 	 In	
conjunction	with	our	prior	statements	in	 Frustaci—that	another	section	provided	the	“underlying	
authority”	for	section	3029	damages	and	that	section	3029	is	a	“subsequent	procedure”	for	de	novo	
review	 of	 damages—we	 clarify	 that	 section	 3029	 should	 not	 be	 construed	 to	 create	 a	 basis	 for	
damages	in	the	context	of	section	3028	abandonment.	
    	
16	

                                        III.		CONCLUSION	

	        [¶22]		We	remand	to	allow	the	court	to	address	the	motion	for	leave	to	

amend	in	accordance	with	the	principles	set	out	in	section	A,	above.		Although	

our	 affirmance	 of	 the	 dismissal	 of	 Counts	 I	 and	 II	 (the	 only	 counts	 of	 the	

complaint)	 would	 seemingly	 leave	 nothing	 to	 amend,	 the	 Superior	 Court’s	

action	on	the	motion	to	amend	necessarily	occurs	before	action	on	the	motion	

to	dismiss.		Accordingly,	our	remand	effectively	resets	the	court’s	action	on	the	

motion	to	amend	to	a	prior	point	in	time	when	the	complaint	remained	viable.	

    	    The	entry	is:	
                               	
                            The	order	denying	the	Pauls’	motion	for	leave	to	
                            amend	 is	 vacated.	 	 The	 motion	 for	 leave	 to	
                            amend	 is	 remanded	 to	 the	 Superior	 Court	 for	
                            further	proceedings	consistent	with	this	opinion.		
                            The	order	granting	the	Town	of	Liberty’s	motion	
                            to	dismiss	Counts	I	and	II	is	affirmed.	
    	
	        	        	         	     	     	
  	
On	the	briefs:	
  	
     Adam	P.	Paul,	Debra	M.	Paul,	and	George	E.	Paul,	appellants	
     pro	se	
     	
     Kristin	 M.	 Collins,	 Esq.,	 and	 William	 S.	 Kelly,	 Esq.,	 Kelly	 &	
     Collins,	LLC,	Belfast,	for	appellee	Town	of	Liberty	
	
	
Waldo	County	Superior	Court	docket	number	RE-2015-04	
FOR	CLERK	REFERENCE	ONLY	
    	
