summary judgment

Sun 5.31.20

      I have this week filed a motion for Summary Judgment against Respondent in my suit to maintain a gazebo in the yard facing my apartment; my current salvo in the paper war, which I fear will turn into a tele-conference rather than a court appearance per covid-19 dictates.  I filed the paperwork on Monday.  One can file via email now, and the old standard, post mail, but I always go down to the courthouse and file my paperwork in person.  I want to maintain solemnity, to respect the action I have taken and imbue it with formality.  There is a fee of $225 for filing a motion for Summary Judgment, for which I request a reprieve from the court that it cover the cost as I am indigent. 

      I decided on the motion because, to date, Respondent’s only defense has been that I’m breaking house rules, and since I have evidence that those house rules don’t apply, why not?  Of course, there is the question of whether the yard is a common area for all to use or the curtilage of tenants whose building encompasses the yard. The question of curtilage for lease-holds, condos, multi-family buildings is not settled law as yet; it’s a toss-up how a court will rule on it, but more and more states have decided in favor of applying 4th amendment protection to all not just home owners.  Opposing counsel is sure to jump on that one, and is as fully capable as I was to find a slew of cases with a contrary opinion on the matter.

      One is required for this motion to add a separate section titled Statement of Undisputed Facts, listing your unassailable facts to which your opponent will have to respond with either, Admit, Deny, or Qualify.  Opposing counsel keeps her cards close to her chest in this case.  Is there more to her defense than the house rules?  The stats on gaining a Summary Judgment ruling are at 10%.  Nevertheless, I decided that it was worth the risk of exposing my strategy with this motion to find out what her cards hold.  Then of course there is the problem as a pro se of having to prove you know what you’re doing.  The court surely was planning to ease me out the door at the preliminary injunction hearing, I could see that clearly.

      I filed my brief on Monday and have as yet to receive opposing counsel’s Reply.  I did hear from the Judge; she chose to respond to a request I made to have the court pay fees, no, not for Summary Judgment motion, but for a subpoena to landlord to appear at trial.  I have two thoughts on the matter.  Judge obviously sees merit in my case and has agreed to a trial.  One does not get a fee reprieve if one has not convinced the court that one has a case worthy of adjudication. Judge did not rule on the fee reprieve for the Summary Judgment motion because she has yet to hear from opposing attorney who may have evidence to qualify or disprove my facts.

MOTION FOR SUMMARY JUDGMENT

NOW INTO COURT, comes Petitioner, Lorraine Saint Pierre, a Tenant at  _________, Portland Maine, appearing herein pro se, and hereby files this Rule 56 Motion for Summary Judgment.

 In support of this Motion for Summary Judgment, Petitioner has attached its Second Affidavit, with accompanying evidence setting forth the particulars of this motion.

 ► Opposition to this motion must comply with the requirements of Rule 56(h) including specific responses to each numbered statement in the moving party’s statement of material facts, with citations to points in the record or in affidavits filed to support the opposition; and (ii) that not complying with Rule 56(h) in opposing the motion may result in entry of judgment without hearing.

1.      Petitioner Saint Pierre, was given written permission (prelim Injunction hearing ex. D) as directed by Petitioner’s Department of Housing and Urban Development (HUD) lease, page 4, section 12, (ex. K) to place a gazebo in the yard facing her apartment by Respondent, a maintenance company employed by property owner.  Fifteen days later the permission was rescinded, the gazebo was later dismantled, and all of Petitioner’s property within the gazebo was seized.  Vice President of maintenance company stated in his response to Petitioner’s Order to Show Cause that, “Complainant erected a large gazebo-type structure which is large and intrusive,” and not a trellis as stated in permission document.  Respondent at Preliminary Injunction Hearing asserted that Petitioner was in violation of its House Rules by defacing property owner’s yard.

Permission

2.      There is evidence with the court that Respondent was told in plain writing that it was a gazebo, that it had been at another site managed by maintenance company0 for the past two years.  There is photographic (Respondent’s partial photo of gazebo showing flooring) and top connecting bars (prelim Injunction hearing ex. G holding it together) and documented evidence (“again emails” ex. B presented at preliminary injunction hearing) with the Court that it was not a trellis.  Tenant’s lease made clear in unambiguous language what was needed for permission, and Tenant herself described it in full, it was a gazebo, and had been up for the past 2 years at another Respondent site.  Landlord property itself houses its own gazebo; it is not an unknown item. 

3.      It is a matter of fact that Respondent has lied volubly and at length to the Court about how it obtained knowledge of the gazebo’s standing in yard facing Petitioner’s apartment which is disproved by Petitioner’s “Again email” (ex.B) announcing its standing in the yard on the day after it was erected, Sunday, office are closed on weekends; it lied when stating it was a trellis, not a gazebo, and providing jerry-rigged photo evidence showing only a partial view of it to support its trellis assertion.  It lied in Discovery document Request for Admission when denying that it does not threaten Tenants (see Spring Cleanup Memo ex.E, 2nd graph and also ex. J, Winter Cleanup Memo, 3rd graph) in same document, it lied when denying that it does not keep secret files on Tenants.  RS Coordinator for maintenance company, on the stand at Preliminary Injunction hearing when asked about the Tenants who reported on gazebo, “That’s confidential.  I can’ t go into that;” it lied when it denied that Vice President was not a party to this suit, especially considering he chose to respond, as its company representative, to the initial Order to Show Cause filed with court.  Respondent is not a reliable witness.

The Lease

4.        According to HUD Multi-Family lease agreement between Lease Holder and Landlord, under section 12, page 4, Restrictions and Alterations, is the statement, “No alterations, additions or improvements shall be made in or to the premises without the prior consent of the Landlord in writing.”  HUD, the lease’s major obligor and principal funding source for the Northfield Green complex is as such, the primary policy-maker for the services it demands be furnished to Tenants.  Stated in its Occupancy Handbook, page 419, section 6. Prohibited provisions, part b., is a rule denoting that Landlord is not at liberty to seize Tenant property because Tenant did not remove the gazebo as requested.  Landlord, and its subcontractor, PMI may not seize Petitioner’s property.

 House Rules

5.      Respondent, a maintenance company, does not have a contractual relationship with Tenant Saint Pierre.  Rather said company is subcontractor to property owner.  PMI is not at liberty to interfere in the relationship between Tenant and Landlord, regardless of property owner’s demands, if those demands interfere with HUD rules. PMI claims in its response to Petitioner’s plaint that she has broken House Rules by placing gazebo in yard’s common area. In its Occupancy Handbook: page 417, Required attachments, line D, it states: House Rules, if such rules have been developed by the owner.  And more, HOUSE RULES, Overview, page 428, section 2.: The decision about whether to develop house rules for a property rests solely with the owner.

6.      Even if such House Rules were valid, they do not, Per HUD, replace the lease.  Petitioner is protected by lease from such infringements of her rights.  Section 3 of the overview, page 428, emphasizes that: House rules are listed in the lease as an attachment to the lease.  It is important, however, to recognize that House Rules do not replace the lease.

7.      Nor may Respondent create House Rules and attach them to the lease.  HUD is adamant that only property owner may do so.  Tenants are the Landlord’s responsibility; he may not slough them on to a third party.  The federal agency offers instructions on creating reasonable guidelines to protect both Tenant and Landlord, which they urge Landlord to create, if only for its own protection.  Property owner has not created such rules, but rather relied on its subcontractor to do so against HUD policy. 

Maintenance Company.

8.      In the Discovery document Request for Admission, section 7, Respondent readily denies that it conferred with Landlord when granting written permission to place gazebo in yard facing her apartment.  Its memos, both spring and winter, assert regulations that are not in Tenant’s lease, nor in nonexistent Landlord rules.  Respondent has taken the liberty, and/or been allowed, to make its own rules by an absentee Landlord, which is precisely what HUD seeks to prevent with its policies, i.e. speculators who invest in properties, set up a third non-invested party to relieve them of their responsibility to Tenants, then at the appropriate fiduciary moment flip it for the profit accrued. In that role, maintenance company has governed what’s permitted in the enclosed yard 0 0because, Respondent avers, it is a common area.

9.      Respondent, which is not party to lease, is not at liberty to void sections of it at will or to arbitrarily enforce them.  Nor can it discriminate between Tenants as to those who are responsible for abiding by lease and others who may ignore it at will.  There is no mention whatsoever in the lease about what one may place or plant in front of one‘s apartment, save for the written open-ended permission proviso.  Respondent, in its Spring Clean-up memo, (ex.E) states, “[W]e have been asked to convey to residents [by Landlord] what is allowed and not allowed at the property regarding gardens and exterior structures.”  This memo was circulated on May 30, 2019 and Petitioner’s permission was given on May 15, 2019.  Respondent and property owner may not contravene the lease at will.  Rather, according to HUD rules any addition to the lease involves a lengthy process whereby Landlord has to first apply to the Department of Housing and Urban Development for approval of the addition, and Tenants must be given a 60 day notice of the change in their lease, (HUD Handbook, page 437, Modifying the Lease, Key Requirements, sections 2 and 4.)

Common Area v. Curtilage

10.   Respondent without proper authority refers to what can and cannot be done to “the front of their units,” what the courts have considered the home’s fourth amendment-protected curtilage where residents have created permanent gardens and patios.  Respondent’s claim that the yard is common ground is trounced by their written permissions, one to Petitioner to place a gazebo in front of her unit and another to Tenant at unit 6 for a patio, which is forbidden per Respondent’s own memos. Respondent has also slyly ignored Tenants who, without permission, have for years spent time and energy developing gardens and furnished terraces in front of their units.  Assigning spaces in the yard to specific Tenants to conduct their private affairs on it, or ignoring others who are allowed to claim yard unit frontage demonstrates that it is not a common area.

11.   Were Petitioner given open ended permission to place her office with desk, computer, printer, speakers, microphone, filing cabinet in a specific section of the lobby in her building, Tenant at unit 6 allowed to install her art studio in another, and other Tenants claiming sections of their own to set up shop, would it still be considered a common area?  Logic disavows such a contention.  The yard, as it stands now and has for many years, is not a common area, but wholly established by Tenants and Landlord through its delegate PMI as the curtilage of their home.  The phrase “in front of your units,” which is sprinkled throughout maintenance memos indicating what may or may not be done there, planting flowers, container gardens and so forth belies its common area status.

12.   Respondent does not have the authority to seize Petitioner’s property, nor can it dictate what may be installed in Tenants’ yards, only the Landlord has that privilege through its contract with Tenant.  It has not done so as can be seen from the proliferation of Tenants’ personal possessions in yards.  Respondent is not property owner’s security force, but rather a janitorial/superintendency agency that maintains Landlord’s property and fulfills the duties of collecting rent receipts, providing maintenance for the residential units; and complying with HUD legal, regulatory and program requirements. 

13.      Mindful of factors the Court weighs in assigning permanent injunctions, below are the following  relevant components:

PERMANENT INJUNCTION FACTORS

per eBay Inc. v. MercExchange, L.L.C and amended by Monsanto Co. v. Geertson Seed Farms

PETITIONER HAS AND WILL SUFFER IRREPARABLE HARM:

Petitioner has been and is deprived of its property, has had its gazebo dismantled, the chairs, bench, coffee table, garden tools, soil, etcetera, seized, and along with it the ability as an athletic person, a former street runner, to participate in nature, to be a part of the physical world in the privacy of the yard.  Petitioner would suffer irreparable injury to her well-being and overall health if denied the yard to garden, to workout, yoga, to socialize with neighbors in the gazebo, relegating her to her apartment.

REMEDIES AVAILABLE AT LAW ARE INADEQUATE TO COMPENSATE THAT INJURY:

Can the courts replace the pleasure of the morning stroll through the garden to snip chives for the breakfast toast, then sit in the gazebo with coffee watching insects at their work?  The court cannot make good the loss of what nature provides; there is no monetary value to it.  Respondent may claim Spring and Winter Cleanup, as reason for clearing Petitioner’s yard but as can be seen in exhibit 11 and 14, these cleanups do not even rise to the level of the implied warranty and covenant of habitability, Title 14, Part 7, §6021.3A.  There has been standing water in the yard for years, which has caused mold to infest the property.  Petitioner is highly allergic to it and has been taken to the emergency room by ambulance from a reaction to it, (ex. 10.)  In order to prevent this from happening again Petitioner has had to buy 3 air purifying systems and along with a previously acquired fourth air purifier that operate 24/7 at their highest setting to clear the apartment of mold spores.  When Petitioner asked Respondent to at least eradicate visible mold on side of building, it demurred.  It was left to Petitioner to clean up (ex. 10.)  Respondent may not claim spring and winter cleanup under such circumstances.

THE BALANCE OF EQUITIES FAVORS THE INJUNCTIVE RELIEF PETITIONER SEEKS: 

The harm to Petitioner far outweighs the minimal burden to Respondent, if any, which has allowed all types of structures to be erected in yard enclosed by building; two weeks after Petitioner received written permission another much broader written permission “to keep the patio outside your unit” was issued to Tenant at unit 6; the gazebo stands unattached and is above ground causing no damage to property or grounds, indeed Respondent benefits from the welcoming atmosphere created by the gazebo, the flowers, tomato plants, and vegetables, which is kept neat and attractive.  Respondent itself has stated that gazebo is not “attached to the property, preventing egress, or obstructing another resident’s view.”  At heart of the situation is Respondent’s prohibition from interference in lease provisions and inserting rules prohibited by HUD lease.  They may offer guidelines, make requests, but they may not issue rules.

A PERMANENT INJUNCTION IS IN THE PUBLIC INTEREST:

Petitioner’s request is simple: enjoin Respondent from violating Tenant’s rights and abide by Petitioner’s lease.  Respondent has disrupted the lives of residents with arbitrary and discriminatory decisions upsetting their lives.  Contrary to Respondent claim that a decision in favor of Petitioner would adversely affect other Tenants, they would favor such a ruling clarifying their rights according to their leases and an elucidation of lease covenants.  A permanent injunction is the first step in correcting the imbalance of power at the senior living project.  It is not only Petitioner who suffers, as things stand other residents are also being subjected to Respondent’s erratic decrees.  They, along with Petitioner, would stand to lose the ability to enjoy their yards if denied the injunction, or as is presently the case, Tenants would continue to be pitted against each other with some gaining privileges while others not, (again against HUD policy) creating a hellish atmosphere.  The ruling against injunction would become permanent.  Public interests therefore counsels in favor of an injunction that will prevent Respondent from further encroachments in Tenant’s yard.  The Department of Housing and Urban Development whose lease Petitioner signed on February 9, 2019 does not recognize Respondent’s rules.  It is a maintenance company and is not at liberty to make rules governing Tenant behavior, which HUD has recognized is not appropriate.  Undoubtedly the ruling is to protect Tenants from exactly what is occurring where Tenants are at the mercy of mercenary companies, nor does it condone the seizing of personal property, and is very clear about fair and even treatment of Tenants.  Maintenance companies have no legal obligation to Tenants, or financial incentive to serve them.  If left to create its own rules would, as is amply evident in this case, indulge in abusive behavior toward Tenants for its own benefit. Respondent may offer guidelines, make requests, but they may not issue rules.

It was surely not HUD’s intention when sponsoring senior housing programs to have them treated in such an arrogant manner, to have Landlord expect landscaping duties in order to enjoy outdoor grounds.  Would a reasonable person consent to be given a day to dismantle their yard?  The state’s paramount interest is always in the health, welfare and safety of its citizens.

Statement Of Undisputed Facts

Now Into Court, comes Petitioner Saint Pierre which respectfully submits that the following listed facts are material to the Petitioner's Motion, and there is no genuine dispute between the parties as to these facts. On the basis of these undisputed material facts, Petitioner asserts that it is entitled to judgment as a matter of law, granting Summary Judgment.

1f.     Petitioner was given written permission to have “gazebo” in yard as  stated in  “Again” email, (ex. B filed with Court at Preliminary Injunction hearing,) required by lease clause 12, page 4, executed on   February 9, 2019.

2f.     Respondent’s application of lease clause prohibiting any alterations, additions or improvements to the premises is patently proscribed once Petitioner garners written permission as stated in lease.

3f.     Per Petitioner’s lease and permission granted document there are no restrictions, limitations attached to the authorization.

4f.     At no time does Petitioner deceive management of its intentions.

5f.     Respondent may not, per HUD lease bylaws, interfere in contractual relationship between Landlord and Tenant.

                  HUD Occupancy Handbook: page 417, Required attachments, line D: House Rules, if such rules have been developed by the owner. 

                  HOUSE RULES, Overview, page 428, section 2.The decision about whether to develop house rules for a property rests solely with the owner.

6f.     Per HUD lease, Respondent may not seize, hold, or damage Petitioner’s property comprised of:

 (flooring, tools, - cultivator, trowel, transplanter, pruner, grass clippers, garden gloves; furniture, - wooden bench and matching chair, 2 white plastic chairs, a red coffee table, 2 blue storage bins, and one grey storage bin, 50 lb. bag top soil, fertilizer, bricks, 4 concrete blocks, stones, outdoor temperature thermometer, green cording, 4 cushions for chairs, bench, floor mat, house keys, 8 clips to hold down canvass top, seeds, straw basket, trash can.) 

7f.     Respondent may not attach House Rules to Tenant’s lease, nor may it seek to impose its rules, only Landlord has that right.

8f.     Respondent is violating Petitioner’s 4th amendment’s rights to privacy in the curtilage of her home.  (See Second Affidavit, pages 9 – 11.)

 Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. (Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986.) In the instant case, an examination of the pleadings and evidence presented shall demonstrate that there are no genuine issues as to any material facts, and Petitioner is entitled to judgment as a matter of law.

CONCLUSIONS

 WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed before this court that, a) Respondent  be permanently enjoined from removing Petitioner’s gazebo, b)from seizing Petitioner’s property, c) that Petitioner return seized property to the place where it was taken from within Petitioner’s yard facing her home, d)that it make good what has been damaged, or is missing, and that it compensate Petitioner for the labor of assembling and securing the gazebo, which will have to be reinstalled, and lastly e) that Respondent refrain from violating Petitioner’s right to privacy in the curtilage of her home together with such other and further relief to which this Court deems just, proper and equitable.

 TO MY NEIGHBORS

To the Tenants in our building: I seek a ruling in court acknowledging the fait-accompli fact that the yard encased within the U shape of our building is not a common area, but rather the 4th amendment protected right to privacy of the curtilage facing our home.  Any land outside the U shaped yard encompassed by the building, I assert, is common ground and one has to deal with management about its use.  If you disagree, feel free to post comment. 

note:

In the section above under the heading , Statement of Undisputed Facts, I have unknowingly not followed the court’s rules. Each entry must be supported by a record citation, i.e., evidence, the appropriate laws, relevant cases, etc.

The favorite essay this month has again been, Karpman drama triangle