curtilage!

Sun 3.1.20

      As promised last week I am posting first, opposing attorney’s filed objection to my 2nd motion to amend my petition.  Let’s backtrack a bit: this past summer I filed an Order to Show Cause with a complaint that management company where I live was threatening to remove the gazebo I placed in my yard with their written permission, and I included in my filing a motion for a preliminary injunction to prevent them from taking it down.  As I explained last week I lost the preliminary injunction, primarily because the court would not accept an amended petition.  My request didn’t go into enough specific detail to warrant it.  So after I lost the hearing, I filed another request to file another amended petition because there’s not enough in the documents I originally filed and I would get hammered if I had to rely on just that.

      Opposing attorney did not at first respond to my request, then thought better of it.  This is her response:

DEFENDANT’S OBJECTION TO MOTION

FOR LEAVE TO FILE AMENDED PETITION

      NOW COMES the Defendant, Management X, by and through its undersigned counsel, and objects to the Motion for Leave to File an Amended Petition filed by the Plaintiff on or about February 4, 2020 on the following grounds:

      Procedural History

1.  The Plaintiff delivered documents akin to a Complaint and Motion for Preliminary Judgment upon X on or about July 10. 2019.

2.  X responded to both on July 10, 2019

3.  Due to deficiencies in service, the case was delayed.  Service was completed on or about September 16, 2019.

4.  Discovery was requested by the Plaintiff on or about November 19, 2019 and responded to by the Defendant on or about December 18, 2019

5.  Defendant filed a request that the hearing on Motion for Preliminary Judgment be consolidated with a hearing on the merits on or about January 4, 2020.

6. Said request was not addressed by the Court, but a thorough testimonial hearing was completed on January 28, 2020.

7.  parties spent over an hour examining witnesses and providing ample documentary evidence to the Court regarding the claims made by the Plaintiff.  Since that testimonial hearing, there has been no change in the relevant facts at issue in this case.

Argument

The Plaintiff states, as the primary grounds for her Motion to Amend, “consummation of action sought by Petitioner in its motion for preliminary injunction has occurred . . . Petitioner’s property was seized . . . [and] [r]ules initiated to enhance owner’s property but limiting what tenants choose to enjoy in front of their apartments that were not included in the original plaint [sic].”  Essentially, the management company informed resident that, as stated in their leases, tenants should not be erecting any structure on the common area of (X.)  The management company then removed Plaintiff’s gazebo and personal property from the common area of (X) after she failed to do so.  These facts were all thoroughly addressed at the testimonial hearing on January 28, and the court decided against Plaintiff’s request for an injunction.  The “new” facts listed in Plaintiff’s motion were brought before the court at hearing and do not give rise to grounds for an amended Complaint.  Lastly, the Plaintiff seeks to add a cause of action related to “curtilage.”  Putting aside the principle inapplicability in a case against a non-governmental actor, a significant body of case law has already decided that a common area does not qualify as curtilage of a unit in a multi-family dwelling.  See, United States v. Cruz Vegan, 537 F.2d 554, 558 (1st Cir. 1976); United States v. Hawkins, 139 F.3d 29, (1st Cir. 1998); State of Maine v. Bollard, No. CUMCR-18-3666 (Me. Super., Cumb. Cty., Sept 24 2019).  The court should not allow the Plaintiff to delay this matter by amending the Complaint to include a cause of action completely devoid of merit.

      The Defendant intends to largely rest on the testimony and evidence admitted at the hearing on January 28, 2020, as provided by M.R>Civ.P.65(2), in any future proceedings, allowing Plaintiff to amend her Complaint at this point would result in undue burden and cost to the Defendant.

      Wherefore, the Defendant respectfully requests that the Plaintiff’s motion for Leave to File Amended Petition be denied.

Dated February 19, 2020

And now my reply:

 PETITIONER’S REPLY TO RESPONDENT’S

OBJECTIONS TO AMENDED PETITION

Petitioner Saint Pierre responds to the objections of Respondent Management X respectfully, as follows:

1.      On July 11, 2019 Petitioner filed a motion for a Preliminary Injunction to prevent Respondent from removing a gazebo from yard area facing her apartment until a trial could be held to decide the merits of a permanent injunction.

 2.      On November 19, 2019 Petitioner, as part of Discovery process requested production of documents with a demand for affidavit affirming the truthfulness of copies.  None of Petitioner’s requests were fulfilled, including the affidavit, save for a tampered tenant’s file.  Had Petitioner’s requests been granted this case would have been quickly settled.

 3.      A hearing was held on January 28, 2020, which became a trial for which Petitioner was not prepared.  But she did have documentation with her, which she had planned to file with the court if allowed to submit the amended petition and memo of law that very day.

 4.      At trial, witnesses’ testimony and the exhibits proffered, the photos, the memos and documents support Petitioner’s claim that she received Landlord written permission as specified in her lease, that she did not deceive Respondent as claimed, that her request was in line with other structures already present in the yard.

RESPONDENT’S ARGUMENTS:

Respondent misconstrues Petitioner’s statement concerning unconscionability:  Rules initiated to enhance owner’s property but limiting what tenants choose to enjoy in front of their apartments. .”   Petitioner was referring to their assertion that, “The owners have always allowed residents the freedom to plant flowers throughout the community and in front of their units benefitting lessor, not lessee, and limiting what tenants may do in front of their units.   Petitioner was not referring, as Respondent states that  “  . . . management company informed residents that as stated in their leases, tenants should not be erecting any structures in the common area of [property] (there is no such statement in the lease.)  In its assertion Respondent omits an important fact:  the memo Respondent quotes from was issued on June 12, 2019.  Petitioner received an open-ended permission to place the gazebo in the yard on May 15, 2019.

 There is no mention whatsoever of the “common area of [property]” in the lease that refers to the yard attached to Petitioner’s building in Portland Maine.  No common area, and there are many, is referred individually.  Is the above mentioned yard a common area?  There is no evidence that would support such a claim.

 Contrary to Respondent’s assertion of the curtilage principle’s inapplicability in a case against a non-governmental actor, there are undoubtedly cases every week in this country in which someone brings a neighbor to court for violating the curtilage of his home by causing a rotted tree to fall in his yard, for the noisy neighbor’s blasting rock & roll at unreasonable hours, or a case of installing surveillance cameras, etc.

 In the Jardines case, (Florida v. Jardines 2013)  the Supreme Court did not even consider if an expectancy of privacy exists on one’s front porch due to a trespass onto a constitutionally protected area of appurtenance to the home because it is one and the same.  In his decision, Judge Scalia noted that, If a member of the public did that (brought a drug sniffing dog to one’s front porch,) it would “inspire most of us – well, to call the police[,]”  as would Petitioner should she find someone in the yard standing in the curtilage of her ground floor apartment.

 In the case of Katz v. the United States, 1967 and the reasonable expectation of Privacy test, it ruled that: “what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 

 Petitioner’s building is U shaped, its yard contained within the U. There are two bisecting paths on its periphery.  Every tenant’s self-designated curtilage is not violated by others.  No one comes to take vegetables from Petitioner’s garden or sits on bench or chairs in the gazebo.  No one picks roses from unit two’s garden or sits at table of unit 6 garden enclosure without permission. These self-designated curtilage boundaries are based on individual apartment frontage.  Woe betides the tenant who expands her area beyond the boundaries of her apartment windows.  She will shortly be apprised of her error and it will be corrected.  Tenants have made it abundantly clear what is private and enclosed as per Katz.  Landlord itself fosters the notion of curtilage proprietorship by promoting the planting of flowers and bushes, adding potted plants and container gardens to tenants “in front of their units.”

 There are many, many cases that support privacy for condos, multi-family structures, complexes.  Below are two relevant cases both upheld on appeal:

 In Joyner v. State,  Fla.Dist. Court, App1974 one has the convoluted case in which the State finds itself in the position of arguing in a drug case for the concept of curtilage to apply where the warrant used only covered the apartment.  The drugs were found in Joyner’s car situated in adjacent parking lot.  In its decision, the State ruled: “We now hold that yards, courtyards, driveways and parking areas used and customarily used in common by occupants of apartment houses, condominiums and other such complexes with other occupants thereof constitute a part of the curtilage of a specifically described apartment or condominium or other living unit thereof . . .”

In the case of People v. Bonilla, Ill 2018 the court ruled, referring to Jardines, that “It would just be unfair to say you can’t come up on a person who lives in a single family residence and sniff their door but you can go into someone’s hallway and sniff their door.  Beyond the concept of fairness is the common sense fact that, according to U. S. census data more U. S. households are headed by renters than at any point since at least 1965.   This reality begs consideration.  Per cases cited Petitioner is afforded fourth amendment rights in the front yard, and Respondent erred in seizing property in the curtilage of her home.

 The court may allow the filing of an amended petition or it may not.  But there is the lease’s wording that every codes of law established since recorded history from Hammurabi down through to Blackstone considers the contract to be sacred.  Otherwise chaos.  Respondent may finesse the facts, but the contract will not.

Respectfully submitted on

 February 20, 2020

The favorite essay this month has again been, Dandy