The Ruling
Sun 2.23.20
I have received a ruling from the court:
“Maine law provides that a party seeking injunctive relief by a . . . preliminary injunction has the burden of demonstrating to the court that four criteria are met. The moving party must demonstrate that 1) it will suffer irreparable injury if the injunction is not granted; 2) such injury outweighs any harm which granting the injunctive relief would inflict on the other party; 3) it has a likelihood of success on the merits (at most, a probability; at least a substantial possibility); and 4) the public interest will not be adversely affected by granting the injunction.
“Ms. Saint Pierre has neither alleged nor proven any of these 4 elements. No showing of irreparable harm has or can be made since, by her own admission, she has retained the gazebo and intends to reinstall it if granted the injunction. Having failed to allege or prove that she is entitled to injunctive relief, Plaintiff’s request for injunctive relief is denied.
“It is not clear to the court whether any additional issues remain to be tried in this case. The clerk shall schedule a conference in this matter on the first available date so that the court can determine whether there are any issues for trial.”
I get upset just writing that down. The 4 points judge singles out were all well laid out in the amended petition and memo of law that she refused to accept. But that’s neither here nor there. Why the judge thinks I went to court to retrieve my gazebo is puzzling, The question at hand is my ability to place the gazebo in the yard, why judge reached her conclusion I have no idea, since the trial was about whether lease allowed it, but I’m sure to find out. After the trial, I filed another broader request to add the amended petition and memo of law including more information on what I intended to present at trial.
One thing comes to mind, I could be off base, then again . . . I learned in Housing Court, Manhattan NYC where I stood before Judge Wendt seeking to get landlord to remove the surveillance cameras pointing down into my backyard that something was amiss. Judge Wendt did everything he could, and more not to hear my case. The HPD lawyers, that is the Department of Housing Preservation and Development, are part of housing court hearings. They are there to represent the city’s interest in maintaining its housing stock and are most often the tenant’s ally in fixing up apartments. They pointed out why Wendt wouldn’t deal with my case, not up front, but in so many words.
The problem with my case was that, same as the current one, the concept of curtilage is not really settled law as far as apartments, condos, multiple-family units are concerned. Curtilage is the ground around your home, maybe even the garage, etc. which has 4th amendment protection. The police have to have a warrant to go there for their evidence. Apartments have common areas, driveways, halls etc. and there are as many cases ruling for or against the inclusion of curtilage in multi-family setups. At the district court level, judges tend to be conservative in such cases; they don’t want to get shot down at the appellate level. Wendt did everything he could not to hear the case, and he didn’t, talked me right out of it. Is this why my amended petition was not accepted and I’m being given the bum’s rush? The judge’s ruling took a long time to be published. It was not released till way after I handed in my second request to file an amended petition and memo outlining my intention to assert my 4th amendment rights. What’s more, the evidence presented at trial disproves the judge’s statement that there was no evidence that contribute to the 4 arguments I should have presented.
In granting the gazebo, management stated, the gazebo “is not attached to the property, preventing egress or obstructing another resident’s view, you will be allowed to keep,” it, thus addressing 4), that the public interest will not be adversely affected by granting the injunction. . 2) can also fit under that argument; i.e., such injury outweighs any harm which granting the injunctive relief would inflict on the other party. There are 30 to 40 pictures in evidence showing that other tenants have been allowed all sorts of structures in front of their apartments that Management already allowed which is an acknowledgment that these arrangements were not a problem. Do I have a possibility of success, number 3? I absolutely have! Opposing party breached the lease by removing the gazebo and had no ready explanation for doing so at trial. That leaves the first point; I would consider that a given. If someone takes away your ability to sit in the yard under the gazebo and your ability to garden, yes, that is seriously harmful compared to the minimal discomfort management would suffer in the exchange considering they allow others to do as much.
After I calmed down from Judge Kelly’s ruling, I ordered a transcript of the trial I had not been prepared for, for the appeal. In the meantime, opposing attorney belatedly decided to respond to my second request to submit an amended petition and memo of law, a good piece of luck. I responded by including part of my amended petition and memo, which are now part of the court record. I’ll post those next week.
I’ve also posted a new podcast today entitled, Mirror Self & The Matrix. https://www.luhrenloup.com/podcasts/2020/2/17/mirror-self-amp-the-matrix
The favorite essay this month has been, Nagual
