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	 (201 5 )	in	Count	 II	of	 the	complaint based	on a	determination	by	 the Town	 of	 Liberty	 Select	 Board that	 a	 road	 abutting	 the ir	 property	 had	 been2 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
C ount s	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	o f	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. The y voluntarily	withdrew	their	petition	in
November	201 4 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	meetin g 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	asser t 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	 ha s	 been	 abandoned, and	 Count	 II sought	an	award	of	damages	pur suant	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	Pa uls	could	not	recover	damages. [¶4 ]	 	 O n	 April 8, 2015, two other property	 owners filed a	 motion	 to
i ntervene,	 which the	 court granted on	 June	 4,	 201 5

. The	 complaint	 was amended	accordingly,	and the	Town	resubmitted	an	answer	and again	moved to	 dismiss	 on	 June	 11, 2015. T he	 Pauls	 moved	 for	 leave	 to	 amend	 their complaint	 a	 second	 time o n	 July	 2,	 2015 .	 	 The	 second	 amended	 complaint4 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	r oad. [¶5 ]	 	 O n	 September 28, 2015, the	 Superior	 Court	 granted	 the	 Town’s

mo tion	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
I I

. 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,	5 17

- 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
S eptember	 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	 mo tion	 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	significa nce and we	discern	no	error	in	 the	court’s	order

. Cf.	She r bert , 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	dismis s 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	Plainti ffs’	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. [¶1 0 ]		The	court	predicated	its	denial of	 the	Pauls’ motion	 for leave	 to
amend	their compl aint	upon its conclusion that	the	Pauls	could	not	maintain	a declaratory	judg ment	action	because	23	M.R.S.	§ 3029	prescribes	a	Rule	80B action	 as	 the	 exclusive	 means	 to	 challenge	 a	 municipal	 board’s	 decision

. S ection 3029 provides	that	“[a]ny person	aggrieved	by	the	action	or	nonaction of	 municipal	 officers

.	 .	 . in	 proceedings	 unde r [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.	§	3 029. [¶1 1 ]	 	 In	 contrast,	 t he	 specific	 statute	 in	 chapter 304 governing	 road7 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	c ounty	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). [¶1 2 ]		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 s ection	3029	reference	to	the
avail ability	of	Rule	80B review in	chapter 304 actions,	we	confirm	that s ection 3028	 specifically	 and	 expressly	 authorizes parties	 to	 challenge	 a	 road abandonment	determination	by	seeking	declaratory	relief,	independent	 from any	relief	that	may	also	be	availabl e	pursuant	to	Rule	80B

. 4 See Bd.	of	Selectmen

4 We recognize the principle	of	exclusivity ,	which	provides	that

w hen	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	fo r	those	circum stances	in	which	the	course	of	“direct	appeal” review8 v.	 Kennebec	 C ty.	 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.”)

. [¶1 3 ] Abandonment	is distinct from other	methods	by	which	a	town	may disclaim	property,	such	as	disconti nuance , 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	C ty

. 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	 “w hen	 direct review	is	 avail able	 pursuant	 to	 Rule	 80B,	it provides	the exclusive process	for	judicial	review unless it	is inadequate. ” Gorham	v.	Androscoggin Cty. ,	201 1 ME	63,	¶	22,	21	A.3d	11 5

. T he 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	j udicial	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 ,	a nd	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	effec tive during	the	events	of	this	case and	has	since	been repealed	and	replaced by P.L.	2015,	ch.	464,	§§	4,	5	(effecti ve	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	o r is	otherwise	available	by	law, proceedings	for	su ch	review	shall

.	.	. be	governed by	these	Rules	of	Civil	Procedure	as	modified	by	this	rule.”		( E mphasis	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	m aintenance	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 th e	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 a mended c omplaint	and s econd a mended c omplaint	 that	 the Board

“ voted	 to	determine	 that	 the	‘upper	portion’	of	Bolin	Hill	Road [ ha s	been ] abandoned	pursuant	 to 23 M.R.S.	 § 3028(2)	 and	 tha t	 a	 public	 easement	 is	 retained over	 the	 abandoned	 portion	 by	 the inhabitants	 of	 the	 Town	 of	 Liberty.” As	 w ith	 the	 determination	 of	 abandonment,	 the Board’s

“ determination ” that	 a	 public	 easement	 is	 retained	 is	 not	 legislative	 actio n,	 and	 the	 existence	 or non existence	of	a	public	easement	may	be	appropriately	addressed	in a	declaratory	judgment	action.10 [¶1 4 ]		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

. C f. 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 rea soning,	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,	 a n	 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	 Ct y. 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	 p rovided	 by	 statute,	any untimeliness	of	an	80B	appeal	would	have	no	effect	on	the	issues	raised	in	the11 motion	to	amend. 7 [¶1 5 ] We	 note	 also	 that	 t he	 factors	 typically	 supporting	 the	 denial	 of requests	for	leave	to	amend seem not to	be present here.		The	f act	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,	1 35	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	s even	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
perm itted	and	timely	pursuant	t o	23 M.R.S.	§	3028.

7 To	th e	extent	that	the	Paul s ’ declaratory	judgment	action	challenge s 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 [¶1 6 ]		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) [¶1 7 ]		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. [¶1 8 ] As	 discussed supra , 23	 M.R.S.	 §	 3029 permits	 an	 aggrieved landowner	to	appeal	a municip al action	pursuant	to	M.R.	Civ.	P.	80B.		The	rule
p rovides	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	cou rt	enlarges the	time	in	acc ordance	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	 applie s . 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,	201 5 , b ut	was	not	filed until	February 27,	201 5

. 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) [¶1 9 ] 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 pur suant	 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, “‘ n otice	 of	 any	 action’	 refers	 to	 an	 action	 that	 fully	 decides	 and disposes	 of	 the	 whole	 cause	 lea ving	 no	 further	 questions	 for	 .	 .	 .	 future	 consideration	 and judgment

. . . .” Gorham ,	 2011	 ME	 63,	 ¶ 12,	 21 A.3d	 115	 (quotation	 marks	 omitted) ; see M.R. Ci v. P. 80B(b) .		For	example,	in Gorha m ,	we	held	that	“for	purposes	of	Rule	80B(b),	‘notice	of	any acti on’	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.1 4 of	action	 or	alleges	 facts	 that	would	entitle	 the	plaintiff	 to	 relief	pursuant	 to

som e	 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. , 2 015	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	.	.	.	.		T he	court	shall	det ermine	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 awa rded pursuant	to	other	sections	in	the	chapter.		As we	have	explained, because compensation “ pursuant	to	section	3029	depend s , 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.” Frusta ci	v.	City	of	S. Portland , 2005 ME	 101,	 ¶	 10,	 879	 A.2d	 1001.	 	 That	 other	 section is	 the	 “underlying15 authority	for	[an]	award	of	damages”	pursuant	to	section	3029. Id. [¶ 2 1]		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	availa ble	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 U nlike section	 3028, other section s in	 chapter	 304 do	 discuss	 damages	 in	 the	 context	 of pe rmitting 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 J uly 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 J uly 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 conflict ing with	other language	from	our	decision	in Frustaci

. In	that	case,	we	explained: Section	3029	provides	the	authority	for	any	landowner	ha rmed	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]	 allo ws	 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 (citi ng	23	M.R.S.	§§	3023,	3026,	3027, 3028).	 	 In Frustaci ,	 we	 held	 that	 a	 constitutional ly	 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	dama ges	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	 th e	 dismissal	 of	 Counts	 I	 and	 II	 ( t he	 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	Paul s’ 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	granti ng	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 F OR C LERK R EFERENCE O NLY