Dale J. Holman v. City of Portland

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. Civil Action
Docket No. AP-23-14

DALE J. HOLMAN,
Plaintiff,
ORDER

Vv.

CITY OF PORTLAND, and STJ,
INC.,

Defendants.

Se at Ngee Te eel tee et Steet Steet Samet “te” “hee

Before the Court are the City of Portland’s (“the City” or “Portland”)
motion to dismiss Count I of the complaint, which STU, Inc. (“STU”) has joined,
STJ’s motion for a Spiekler! order, and Holman’s M.R., Civ, P. 80B appeal, The
Court held oral argument on these matters on November 7, 2023. For the
reasons discussed below, the City’s motion to dismiss is GRANTED, STU’s
motion for a Spickler order is GRANTED, and Holman’s Rule 80B appeal is
DISMISSED.

I, Factual and Procedural Background

This matter comes before the Court as Holman’s latest attempt to
obstruct development at 73 Powsland Street in Portland through litigation.
Holman owns property located at 10 Willow Lane in Portland, which abuts the

Powsland Street property owned by STJU. Over the long history of Holman’s

' See Spickler v. Key Bank, 618 A.2d 204 (Me. 1992); Spickler ». Dube, 644 A.2d 465 (Me. 1994).

opposition campaign to any development at 73 Powsland Street, his principal
arguments have remained the same: the property was “illegally” zoned, and any
development of the property will cause stormwater drainage issues that will
negatively impact his property.

Holman filed his first complaint related to this dispute in 2007, Holman
v. STU, Inc., No. RE-07-188 (Me. Super. Ct., Cum. Cnty., Apr. 16, 2008). See
Holman v. STJ, Inc., No. CV-18-97, slip op. at 1-2 (Me. Super. Ct., Cum, Cnty.,
Oct. 30, 2019) {describing the history of Holman’s litigation). This first case was
dismissed with prejudice following a stipulation of dismissal. Id.

Approximately ten years later, Holman served STJ and a related entity,
Gorham Sand & Gravel, Inc., with a summons and complaint involving “similar
allegations” to the complaint filed in 2007. Id, The defendants in that case filed
their answer and counterclaim and at that time discovered that Holman had
“deliberately withheld filing the complaint with the court,” which led to the
complaint’s dismissal. Id, at 2. Holman was ordered to pay the defendants’
attorney’s fees in this action because the court found that the action was
“vyexatiously commenced.” Id. Holman appealed this order to the Law Court,
but his appeal was dismissed because he failed to file a brief. Id. at 2 & n.4.

After his unsuccessful appeal, Holman moved to set aside the judgment
against him, but the court found this motion to be lengthy, repetitive, and
meritless. Id. at 3. Holman then moved to amend the order denying his motion
to set aside the judgment, arguing that he should not be ordered to pay any

attorney’s fees. Holman v. STJ, Inc., No. CV-2018-97, slip op, at 1 (Me. Super.

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Ct., Cum. Cnty., June 30, 2020). The Superior Court (Cumberland County,
Kennedy, J.) evaluated defendants’ counsel’s fee affidavit and ordered Holman
to pay fees in the amount of $4,410.00. Id. Holman then moved for additional
findings of fact and conclusions of law. Holman v. STJ, Inc., No. CV-2018-97,
slip op. at 1 (Me. Super. Ct., Cum. Cnty., Aug. 17, 2020).

Defendants to the second matter, STJ and Gorham Sand & Gravel,
moved for a Spickler order, which was denied on jurisdictional grounds.
Holman v. STU, Inc., No. CV-18-97, slip op. at 1 (Me. Super. Ct., Cum. Cnty,,
Oct. 30, 2019). In the court’s order denying the Spickler motion, the court
warned Holman “that any future similar [litigious and vexatious] behavior on
his part or attempts to re-litigate old matters could result in the imposition of a
Spickler injunction against him.” Id. at 5. To this date, Holman has not paid the
attorney’s fees he was ordered to pay in the second matter. (Mot. Order to
Restrain Pl. from Filing Further Lawsuits 2 n.1,)

Approximately two months after Holman’s second complaint was
dismissed, Holman filed a third complaint against STJ, Gorham Sand & Gravel,
and the property itself, 73 Powsland Street, based on similar allegations to the
prior two complaints. Holman v. STJ, Inc., No. CV-18-97, slip op. at 2 (Me.
Super. Ct., Cum. Cnty., Oct. 30, 2019). The third complaint was dismissed on
the merits in part for failure to oppose defendants’ motion to dismiss and in
part because the complaint was an attempt to re-litigate issues from the 2007
litigation. Holman v. STJ, Inc., No. CV-2018-302, slip op. at 1-2 (Me. Super. Ct.,

Cum. Cnty., Nov. 13, 2018). After the complaint was dismissed, defendants in

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the third matter moved for a Spickler order, while Holman cross-moved seeking
to have the defendants declared in contempt of court. Holman v. STu, Inc., No,
CV-2018-302, slip op. at 1 (Me. Super. Ct., Cum. Cnty., Feb. 20, 2019). The
court determined that Holman’s cross-motion for contempt was frivolous. Id.
Although this third action was commenced later in time than the second
complaint, this Spickler motion was the first time the Superior Court had been
asked to consider such a measure. The court ultimately determined that it did
not have jurisdiction to enter a Spickler order as the underlying complaint had
already been dismissed, but on the merits characterized it as a “close question”
as to whether Holman’s conduct rose to the level of vexatiousness required to
enter a Spickler order against him. Id. at 1, 3. The court’s order stated that
“Holman is on notice that any future similar behavior on his part could result
in the imposition of a Spickler injunction against him.” Id. at 3.

In addition to Holman’s now four actions naming STJ as a defendant, the
court is aware of and takes judicial notice of five additional lawsuits filed by
Holman against various parties related to his 10 Willow Lane property. In
2018, he initiated two separate suits against nine parties including his
neighbors and the Willow Home Owners Association alleging water diversion
onto his property. Holman v. Johnson, No. CV-2018-68 (Me. Super. Ct., Cum.
Cnty.); Holman v. Johnson, No. CV-2018-143 (Me. Super. Ct., Cum. Cnty.).
Those cases were consolidated and resulted in a stipulation of dismissal, which
included an agreed-to Spickler order against Holman. Holman v, Johnson, No,

CV-2018-143 (Me. Super, Ct., Cum. Cnty., Stipulated Order entered Nov. 20,

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2018). Holman also filed a third lawsuit against the Willow Home Owners
Association in 2018 based on the same factual allegations he made in CV-
2018-143 (Me. Super. Ct., Cum. Cnty.). This action was dismissed as
duplicative. Holman v. Willow Home Owners Ass’n, No. RE-2018-179, slip op.

at 3 (Me. Super. Ct., Cum. Cnty., Order entered Sept. 11, 2018).

In 2019, Holman filed a complaint against R.E. Coleman, Inc., alleging
public and private nuisance related to work R.E. Coleman completed at 73
Powsland Street and the surrounding area. Holman v. R.E. Coleman, Inc., No.
CV-2019-127 (Me. Super. Ct., Cum. Cnty., complaint docketed Mar. 28, 2019).
That case concluded with a stipulation of dismissal, dismissing the case with
prejudice, Holman v. R.E. Coleman, Inc., No, CV-2019-127 (Me. Super. Ct.,

Cum. Cnty., order entered July 29, 2019).

Most recently, Holman sued the City of Portland in 2021 alleging that,
when the City changed the zoning for the area including 73 Powsland Street in
1997, it did so illegally because the City failed to “engagle] the public” on the
zone change. Holman v. City of Portland Maine, No. CV-2021-381 (Me. Super.
Ct., Cum, Cnty., complaint docketed Oct. 22, 202 1). This action was dismissed
as time-barred by the statute of limitations. Holman v. City of Portiand, No. CV-
2021-381 (Me. Super. Ct., Cum. Cnty., Order dated Mar. 8, 2022). Holman
appealed this decision to the Law Court, and the Law Court agreed that the
statute of limitations to challenge the 1997 zoning change had run. Holman v.

City of Portland, Mem-22-99 (Nov. 21, 2022).

Beyond the courts, Holman has a history of turning to administrative
and disciplinary bodies to air his grievances related to 73 Powsland Street.
Holman has filed three bar complaints against STJ’s counsel. Holman made
the first bar complaint just two hours after a damages hearing for attorney’s
fees in the second lawsuit he filed against STJ. Holman filed the second bar
complaint three days after STJ filed a motion for a Spickler order in the third
lawsuit Holman filed against STJ. Holman filed the third bar complaint on
June 14, 2019. The Court is unaware of any of these bar complaints resulting
in discipline. Holman also filed a formal complaint against the license of an
engineer for STU that performed work on the Powsland Street project. This

complaint was dismissed.

Through various email communications with STJ’s counsel, Holman has
expressed his intention to continue litigating the matter until he gets the
outcome that he wants, which is to block development at 73 Powsland Street.
In a February 14, 2018 email, Holman stated, “[p]iease allow your client to
know that I will not be going away, and that I will fight this forever! I have not
yet begun to fight, and I will prevail legally with all my pursuits and efforts.”
(Mot. Order to Restrain Pl. from Filing Further Lawsuits, Ex. C.) In a November

2, 2018 email, Holman stated:

1.) 1 am considering to hire [sic] the legal consultant services of F.
Lee Bailey to research possible criminal charges for the ongoing
antics of the landowner / contractors.

2.)1 am considering filing emotional distress action [sic] against
your client, and you/your firm.

Ud. Ex. D.) On December 14, 2018, Holman sent an email stating: “Tam
considering a restraining order against you and your client.” In a June 29,
2022 email, Holman expressed his opinion that STJ’s counsel “should be
disbarred” and that Holman wants to file a case against counsel for defamation
and “unethical antics.”

Holman has also taken to social media to discuss his intentions to
further litigate the matter. On November 28, 2021, Holman posted: “69 - 73
Powsland Street, Portland, Maine, is not developable land. The owner... is
trying to be Trump of Portland. His Attorney should be disbarred. There is a
Federal lawsuit awaiting [sic] to happen. Tortious Interference.” Holman has
solicited others to join him in a class action lawsuit regarding the Willow
neighborhood storm water in a public notice in the Portland Press Herald as
well as solicitations via email and Facebook,

This current litigation arises out of a City Planning Board decision of
April 19, 2023, approving STJ’s Major Site Plan Application to develop nine
affordable housing units at 73 Powsland Street. Holman contends that the
Planning Board’s decision must be vacated because the zoning for the parcel is
“egal” and the Planning Board erred when it found that STJ’s application
complied with the City Code’s site plan standards, granted a Department of
Environmental Protection waiver, and relied on a geotechnical study prepared
for a previous development proposal. Holman filed his two-count complaint on
May 9, 2023, seeking declaratory judgment that the City violated his rights to

equal protection under the Fourteenth Amendment to the United States

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Constitution and Article I, Section 6-A of the Maine Constitution (Count J), and
for M.R, Civ. P. 80B judicial review of governmental action (Count II).

At oral argument, Holman evinced no intention of accepting a result
adverse to his arguments. He openly admitted that he had been “doing this for
eighteen years.” He continued to argue that the zoning of the parcel is illegal
despite acknowledging that he had litigated the 1997 zoning change to its final
point at the Law Court and losing the argument there, stating, “to me its
illegal.” Holman represented that the merits of his arguments have never been
considered and contended that, by filing an answer and Holman’s complaint in
the matter that Holman served but never filed, STU’s counsel had acted
improperly.

il. Discussion

A. Motion to Dismiss

The City has moved, and STJ has joined, to dismiss Count I, Holman’s
request for declaratory judgment, for failure to state a claim and pursuant to
the exclusivity doctrine. On a motion to dismiss pursuant to MLR. Civ. P.
12(b)(6), the Court assumes all facts alleged in the complaint are true, and
examines the complaint “in the light most favorable to the plaintiff to
determine whether it scts forth elements of a cause of action or alleges facts
that would entitle the plaintiff to relief pursuant to some legal theory.” Oakes
v. Town of Richmond, 2023 ME 65, J 15,__ A.3d __ (quoting Moody v. State
Liquor & Lottery Comm’n, 2004 ME 20, { 7, 843 A.2d 43}. “A dismissal should

only occur when it appears beyond doubt that a plaintiff is entitled to no relief

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under any set of facts that [they] might prove in support of [their] claim,” Jd.
(quoting Moody, 2004 ME 20, { 7, 843 A.2d 43).

When a complaint is brought pursuant to M.R. Civ. P. 80B and it
contains an “ostensibly independent challenge to the law applied by the
municipal body, the latter may properly be dismissed as duplicative if it ‘relies
on the same factual allegations, and secks the same relief’ as the Rule
80B appeal.” Cape Shore House Owners Ass’n v. Town of Cape Elizabeth, 2019
ME 86, 7 8, 209 A.3d 102 (quoting Kane v, Comm’r of the Dep’t of Health &
Hum. Servs., 2008 ME 185, 7 32, 960 A.2d 1196). A claim for declaratory
judgment is proper as an anticipatory challenge, but after a municipal agency
has adjudicated a matter, the “contention that the decision was erroneous
because it infringes upon some superior legal authority becomes subsumed
within ‘the essence of matters that must be brought pursuant to Rule 80B to
question whether the particular action of a municipal administrative agency is
consistent with the requirements of law.” Jd. (quoting Sold, Inc. v. Town of
Gorham, 2005 ME 24, 7 13, 868 A.2d 172). This is true even of constitutional
challenges. Id. Therefore, after the municipal body has already decided an
issue, a claim for declaratory judgment that relies on the same facts and seeks
the same relief as a claim for review under M.R. Civ. P. 80B is properly
dismissed as duplicative because Rule 80B provides the exclusive means of
judicial review. See id.

Here, Holman’s complaint relies on the same factual allegations for both

the count seeking declaratory relief and the count seeking Rule 80B review

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because both counts incorporate the same nineteen paragraphs of background
information. (Compl. {4 20, 24.) The ultimate relief Holman seeks is to have
this Court determine that the Planning Board’s decision was based on legal
errors and to vacate and remand the decision granting STJ’s application to
develop 73 Powsland Street. Count I for declaratory judgment is duplicative of
Holman’s request for judicial review under Rule 80B and Count I must
accordingly be DISMISSED. Because Count I is dismissed as duplicative, the
Court need not reach whether Count I adequately states a claim for relief.

B. Spickler Motion

A court may enjoin a party from filing frivolous and vexatious lawsuits
upon a “detailed showing of a pattern of abusive and frivolous litigation.”
Spickler v. Key Bank of S. Me., 618 A.2d 204, 207 (Me. 1992). The court must
not issue “a more comprehensive injunction than is necessary.” Id.

The facts of the two Spickler cases that resulted in injunctions issued
against the Spicklers enjoining them from filing frivolous lawsuits are
instructive. In Spickler v. Key Bank of S. Me., the Superior Court’s injunction
restraining the Spicklers from commencing frivolous actions against the
defendants and their agents was upheld based on the Superior Court’s judicial
notice of “a number of lawsuits involving the Spicklers and their corporations.”
Id. The Superior Court “specifically found that ‘hjistory suggests that the
Spicklers will continue to sue individuals involved in this litigation unless the
injunction issues’ and that ‘intentions to file such a suit have already been

voiced,” Id.

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In Spickler v. Dube (Spickler I), the original litigation concerned a land
transaction between Dube and the Spickler’s closely held corporation. Spickler
vy, Dube (Spickler I), 644 A.2d 465, 466 (Me. 1994). After the Spicklers failed to
prevail at trial, the Spicklers filed a motion for a new trial alleging that a letter
Dube had put into evidence was fabricated. Id. This motion was denied and the
denial was affirmed at the Law Court, although the Law Court allowed Spickler
to assert fraud pursuant to M.R. Civ. P. 60(b}(3). Id. Spickler made the Rule
60(b)(3) motion but later withdrew the motion. Id. The next year, Robert
Spickler sued Dube and his counsel in federal court for allegedly
manufacturing the evidence, but Spickler failed to show up for trial and the
matter was dismissed for lack of prosecution. Id. The federal court also issued
an injunction preventing Spickler from bringing suit against the defendants
regarding the same issues in the complaint or the underlying land transaction
unless he could demonstrate a prima facie case to a district court judge. Id.
The First Circuit Court of Appeals affirmed. Id. The Spicklers then filed three
lawsuits concerning the alleged fabricated evidence in Maine courts and the
matters were consolidated. Id. at 466-67. The defendants were granted
summary judgment on the Spickler’s claims and the defendants’ counterclaims
and the Superior Court issued an injunction restraining the Spicklers from
commencing litigation against the defendants related to the underlying land
transaction or subsequent litigation unless they first satisfied the Superior
Court that they presented at least a prima facie case. Id. at 467. The injunction

was affirmed by the Law Court because the defendants made a detailed

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showing of abusive and frivolous litigation and the injunction was not more
comprehensive than necessary. Id. at 468-69.

This is the third time STJ has moved for a Spickler order, STJ argues
that the entry of a Spickler order is necessary to protect STJ and related
entities from having to respond to further litigation Holman brings attempting
to litigate old and already-decided issues. The first two Spickler motions were
denied because the underlying litigation had already been dismissed, leaving
the court without jurisdiction to enter the order. Holman v. STU, Inc, No, CV-
2018-302, slip op. at 1, 3 (Me. Super. Ct., Cum. Cnty., Feb. 20, 2019); Holman
v. STJ, Ine., No. CV-18-97, slip op. at 1, 5 (Me. Super. Ct., Cum, Cnty., Oct. 30,
2019). This motion was made before any dispositive action had been taken on
Holman’s underlying Rule 80B claim, therefore the jurisdictional defect present
in the first two Spickler motions does not prevent this Court from entering such
an injunction against Holman.

The Court concludes that STJ has made its required showing of a
detailed history of abusive and frivolous litigation related to Hoilman’s 10
Willow Lane property. Holman has filed four lawsuits naming STJ asa
defendant and the most recent three are based on the same or similar
allegations that Holman brought against STJ in 2007, mainly, that STJU’s
development at 73 Powsland Street will cause storm water to drain onto and
damage his property. The Superior Court has already found that the second
such lawsuit was deliberately withheld from filing with the court and was

vexatiously commenced. Holman v. STU, Inc., No. CV-18-97, slip op. at 1-2 (Me.

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Super. Ct., Cum. Cnty., Oct. 30, 2019). Holman then appealed that case to the
Law Court but failed to file a brief and his appeal was dismissed. Id. at 2 & n.4.
His third suit against STJ was dismissed in part for failure to oppose the
motion to dismiss, evidencing Holman’s failure to prosecute, and because the
action attempted to re-litigate the 2007 matter. Holman. v. STJ, Inc., No. CV-
2018-302, slip op. at 1-2 (Me. Super. Ct., Cum. Cnty., Nov. 13, 2018). Holman
has twice been warned by the Superior Court that litigious behavior and
attempts to re-litigate old matters could result in a Spickler injunction being
entered against him, yet he filed this suit in part based on the same allegations
he has repeatedly made against STJ since 2007 regarding activity at 73
Powsland Street that took place in 2007.

In addition to his suits against STJ and related entity, Gorham Sand &
Gravel, Holman has initiated five additional lawsuits against various parties
alleging various wrongdoings that he argues are causing water diversion onto
his property. In 2018 alone, he filed three lawsuits against his neighbors and
the Willow Home Owners Association on this basis, with the latter two lawsuits
filed while his other suits were pending, Two of the cases were consolidated
and the other was distnissed as duplicative. Holman v. Johnson, No. CV-2018-
143 (Me. Super. Ct., Cum. Cnty., Stipulated Order entered Nov. 20, 2018);
Holman v. Willow Home Owners Ass’n, No. RE-2018-179, slip op. at 3 (Me.
Super. Ct., Cum. Cnty., Order entered Sept. 11, 2018). He has filed two
additional lawsuits related to his property: one against the City’s contractor

doing work on 73 Powsland and the surrounding area, and one against the City

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for alleged illegal zoning. Holman has also filed four licensure complaints
against professionals involved in the Powsland Street project that appear to
have been meritless.

STJ has also made a showing that Holman does not intend to stop
litigating the matter until he prevails. He has expressed this to STU’s counsel
through email communications spanning from at least 2018 through 2022. In
one 2018 email, Holman explicitly stated “I will not be going away, and that I
will fight this forever! I have not yet begun to fight, and I will prevail legally with
all my pursuits and efforts.” (Mot. Order to Restrain PI. from Filing Further
Lawsuits, Ex. C.} Holman’s statements at oral argument evidence an inability
to understand or accept, perhaps deliberately so, that the 1997 zoning change
will not be disturbed by the courts because the statute of limitations has run
and he has litigated the matter to its final point at the Law Court and he did
not prevail. He further appears unable to understand or accept, again perhaps
deliberately so, that because of his failure to file the 2018 complaint with the
court he has been ordered to pay attorney’s fees and he has failed to pay them.
He continues to maintain that STJ’s counsel improperly filed his complaint for
him despite the court finding that, under MLR, Civ. P. Rule 3, the defendants
had no choice but to answer the complaint and file their compulsory
counterclaim. See Holman v. STJ, Inc., No. CV-2018-97, slip. op. at 1 (Me.
Super. Ct., Cum. Cnty., Order entered June 21, 2018).

Holman’s opposition to STJ’s Spickler motion fails to convince the Court

that a Spickler order should not be entered. His opposition is largely based on

14
irrelevant matters and fails to refute any of the showings STJ has made
demonstrating Holman’s litigious behavior. The opposition itself provides
further evidence that Holman is unwilling to let old and legally irrelevant
matters go. Contrary to Holman’s contention, the entry of a Spickler order
would not violate his First Amendment rights to “petition governmental entities
about... zoning issues,” He remains free to bring meritorious claims against
STJ and he remains free to use the political process to attempt to convince the
City to change its zoning laws. Nothing in the Court’s order will prevent him
from doing so.

in sum, Holman’s history of litigation related to 10 Willow Lane and 73
Powsland Street is analogous to the litigation history of the Spicklers for which
the vexatious litigant injunction is named. Like the Spicklers, Holman has
brought numerous lawsuits that are all related to the same or similar set of
facts. He has at times failed to prosecute these lawsuits. He has made his
intentions known that he does not intend to accept an adverse outcome and
will litigate until he prevails. STU has shown a detailed history of abusive and
frivolous litigation, therefore STJ’s motion for a Spickler order is GRANTED.

C. Rule 80B Appeal

The City argues that the Court should dismiss Holman’s Rule 80B appeal
under M.R. Civ. P. 80B(h). Specifically, the City argues that Holman’s failure to
follow Rule 80B’s strictures regarding filing the record has prejudiced the City

because the City had to use a significant amount of time in its reply brief

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window confirming whether the record was complete and accurate and
supplementing the record where it was not.

Under Rule 80B(e)(1), it is the plaintiff's responsibility to prepare and file
the record of the challenged proceedings with the Superior Court. M.R. Civ. P,
80B(c)(1). Rule 80B further provides that “tlhe parties shall meet in advance of
the time for filing the plaintiff's brief or motion for trial of the facts to agree on
the record to be filed.” M.R. Civ. P. 80B(e)(2). “The record shall include the
application or other documents that initiated the agency proceedings and the
decision and findings of fact that are appealed from, and the record may
include any other documents or evidence before the governmental agency and a
transcript or other record of any hearings.” Id. If the challenged decision was
based on a municipal ordinance, the relevant sections of the municipal
ordinance must be included in the record. Id. “If the plaintiff fails to comply
with subdivision (e) or (g) of this rule, the court may dismiss the action for want
of prosecution.” M.R. Civ. P. 80B(h); Blanchard v. Inhabitants of the Town of
Falmouth, No. AP-2002-49, 2004 WL 4093828, at *1 (Me. Super. Ct., Mar. 3,
2004) (dismissing 80B appeal.where the plaintiff failed to file the record or an
acceptable substitute}.

Holman failed to comply with Rule 80B(e) in several ways. He did not

confer with Defendants’ attorneys to discuss the contents of the record.* He

2 At oral argument, Holman represented that he “sent” the proposed record to Defendants’
attorneys but the attorneys did not receive it, but he failed to show any evidence of this or
refute the City’s representations that he did not confer with it about the contents of the record.
Even if Holman did send the proposed record to the Defendants before his brief was due, the
Court does not believe this was sufficient to satisfy his responsibility, as the plaintiff, to
prepare and file the record and meet with the City and STJ to agree on the record to be filed.

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also did not include within the record STJ’s application that initiated the
Planning Board proceedings or the relevant portions of the City Code. In his
reply brief, rather than attempting to remedy the deficient record, Holman
argued that the Court should limit its review to his record that provides alleged
factual evidence for his arguments. He contends that limiting the appeal to the
record before the agency would be prejudicial to him because the Planning
Board’s decision was averse to his interests. This is neither required nor
authorized by Rule 80B, “Except where otherwise provided by statute or by
order of court pursuant to subdivision (d) hereof, review shall be based upon
the record of the proceedings before the governmental agency.” M.R. Civ. P.
80B(f). Holman has not identified any statutory basis allowing for a different
record than the rule requires, nor has he moved for a trial of the facts under
Rule 80B(d). The proper record in this case is the record of the proceedings
before the governmental agency, which Holman has admitted in his reply
briefing he deliberately failed to file. Therefore, the Court DISMISSES his 80B
appeal for want of prosecution. MLR. Civ. P. 80B(h).

Ill. Order

For the reasons discussed above, the entry is:

1. Count I of the complaint for declaratory relief is DISMISSED.

2. STJ’s Motion for Order to Restrain Plaintiff from Filing Further

Lawsuits in GRANTED. The Court further orders on the motion as

follows:

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a. Unless and until Dale Holman has met the requirements of this

Order, Dale Holman is permanently restrained from attempting
to reopen any old lawsuit or filing any new lawsuit against any
of the following persons or entities: STU, Inc., Gorham Sand &
Gravel, Inc., the Property Known as 73 Powsland Street,
Portland, ME 04102, and any past, present, or future employee,
representative, agent, attorney, engineer, or officer of STU, Inc.
or Gorham Sand & Gravel, Inc.

. Prior to filing a motion or complaint or filing any recording
ericumbering real property of the protected parties with the
Registry of Deeds, Holman must first petition this Court,
attaching a copy of this Order, seeking permission to commence
litigation or encumber any such real property.

. Holman must copy any of the parties protected by this Order at
the same time he files a petition with the Court. The parties
protected by this Order shall have 21 days to respond to the
petition or to seek additional time if necessary.

. Holman must provide: (1) evidence with the petition that the
lawsuit is based on good cause and (2) evidence that he has
incurred actual and verifiable, as opposed to de minimus,
damages or that an actual and verifiable, as opposed to de

minimus, personal or property right is infringed,

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e. The Court may award any attorney’s fees of a party protected by
this Order at its discretion in the event it turns out cither that
the complaint or lawsuit is not based on good cause or that
there are no actual and verifiable damages or no actual and
verifiable personal or property right at stake, which said actions
and/or personal property rights must also be more than mere
de minimus damages or rights.

3. Count II of the complaint seeking review of governmental action
pursuant to M.R. Civ. P. 80B is DISMISSED for want of prosecution.
SO ORDERED.

The Clerk is requested to enter this Order on the docket for this case by

incorporating it by reference. M.R. Civ. P. 79(a).

DATED: Dean 7, Woz,

Deborah P. Cashman
Justice, Maine Superior Court

Entered on the Docket: (2 (| MES /

Plaintiff-Dale J Holman Pro Se

Defendant City of Port!
and-Amy McN
Defendant STJ lnc-Bruce Hepler Esa s4

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