Heron v. Smith, 2012 NSSC 51

SUPREME COURT OF NOVA SCOTIA Citation: Heron v. Smith, 2012 NSSC 51 Date: 20120411 Docket: 324361 Registry: Port Hawkesbury Between: Brian Heron , Belinda Heron and Che Heron Plaintiff/Respondent v. Charles A. Smith , John MacDonell and Does 1-10 Defendant/Applicant Judge: The Honourable Justice Patrick Murray.

Heard: October 24, 2011 Written Decision: April 11, 2012 Counsel: Joseph Sekula, for the Plaintiff - not appearing Daniela Bassan and Mattew Pierce, for the Defendant By the Court : OVERVIEW: [ 1 ] The Plaintiffs commenced the within proceeding by Notice of Action dated and filed on February 15, 2010. [ 2 ] The Defendants filed Notices of Motion dated April 13, 2010 (on behalf of the Defendant, Charles A.

Smith, “Smith” ) and August 31, 2010 (on behalf of the Defendant, John MacDonell “MacDonell” ) seeking, inter alia , dismissal of the Action in its entirety on the basis that it is an abuse of process, is res judicata , and disclosed no cause of action.

[ 3 ] On or about May 17, 2010, the within Action was referred to Justice Cindy Bourgeois for case management. The parties conducted multiple case management conferences with regard to the scheduling of the Defendants’ Motion. The Defendants’ Motions were initially scheduled for September 1 and 2, 2010, but were adjourned until December 1 and 2, 2010 and again adjourned to May 16 and 17, 2011. [ 4 ] On or about March 10, 2011, the Plaintiff Brian Heron passed away in the United States. [ 5 ] On or about May 16, 2011, Joseph C.

Sekula, attorney in the United States, was appointed as Administrator (“ Administrator ”) of the Estate of Brian Heron (the “Estate” ). [ 6 ] On May 24, 2011, the Case Management Judge directed that the Defendants’ Motions were scheduled to be heard on October 24 and 25, 2011 in Sydney.

This direction was confirmed by the Case Management Judge on June 7, 2011. [ 7 ] On June 10, 2011, by way of Consent dismissal Order, the claims of the Plaintiffs Che Heron and Belinda Heron were dismissed against all Defendants and future proceedings relating to the subject properties were barred as res judicata. [ 8 ] On or about September 22, 2011, by way of written submissions responding to Smith’s Motion to dismiss the Administrator (on behalf of the Plaintiff Heron’s Estate) required that all claims as currently pleaded against the Defendant Smith in the within action should be “stricken”, but sought to amend the Notice of Action and Statement of Claim to plead other claims relating to the sale of the subject property. [ 9 ] On October 3, 2011, by way of Consent Dismissal Order, the claims of the Estate were dismissed against the Defendant MacDonell and future proceedings relating to the subject property barred as res judicata . [ 10 ] On October 21, 2011, the Administrator advised the Court and the Defendant Smith that the Administrator would not be attending the Motion to dismiss hearing scheduled for October 24 and 25, 2011. [ 11 ] The Defendant Smith proceeded with his Motion to dismiss on October 24, 2011.

BACKGROUND [ 12 ] This proceeding between Mr. Smith and Mr. Heron has a long history. Throughout Mr. Heron has been, for the most part, an unsuccessful judgment debtor in the litigation with Smith, the successful judgment creditor, before the courts in Canada and the United States, including the Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal. [ 13 ] The gist of the dispute between them relates to two (2) judgments for costs awarded to Smith in respect of California litigation, back in 1997.

These judgments were in the amount of $52,857 U.S. (in 1997) and the second judgment in 1997 for $9,856.17 U.S. The California Judgments were domesticated in Nova Scotia in the amounts of $91,970.97 and $15,149.75 Canadian, respectively. [ 14 ] In 1999 Smith commenced proceedings before the Nova Scotia Supreme Court (SHNo. 160780) seeking enforcement of the California judgments and the sale of property owned by Heron in Richmond County, Nova Scotia (“the Property”) in satisfaction of Heron’s unpaid judgment debts.

Summary Judgment in respect of those enforcement proceedings was granted to Smith in the year 2000. Mr. Heron attempted without success to appeal those decisions to the Nova Scotia Court of Appeal. (C.A. 166921) and the Supreme Court of Canada (File Number 28808). [ 15 ] In the meantime, Heron purported to convey the Property for which Smith was seeking a sale under execution. As a result Smith was forced to commence fraudulent conveyance proceedings in Nova Scotia in 2001 (SHNo. 171875), for which judgment was granted to Smith in 2002. Heron also appealed that decision unsuccessfully to the Nova Scotia Court of Appeal. (File No. 189018)

[ 16 ] Heron subsequently attempted, without success, to prevent Smith from exercising rights as a judgment creditor under the Sale of Lands under the Execution Act (the Act).

In 2005 the Nova Scotia Supreme Court (as per Edwards, J.) dismissed as a frivolous and vexatious claim (SN No. 252803) an Ex Parte Injunction Application brought by Heron and co-plaintiff Belinda Heron to try to prevent a Sheriff’s Sale under the Act. [ 17 ] In 2006 the Sheriff’s Sale took place under the Act whereby Smith was the successful purchaser of the Property. [ 18 ] In addition to the Nova Scotia proceedings, Heron commenced further proceedings before the U.S.

Bankruptcy Court in the middle district of Florida, Tampa Division (Case No. 8:.05EK-29393-KRM) in another attempt to prevent Smith from exercising his rights as judgment creditor. The Bankruptcy proceedings were ultimately dismissed in 2007 as being “little more than a device to delay Mr. Smith.” (per K. Rodney May, U.S. Bankruptcy Judge). [ 19 ] In 2009 Smith, lawfully converted his title to the Property under the Land Registration Act of Nova Scotia 2001, c. 6, s. 1 .and registered the Sheriff’s Deed conveying the Property to Smith.

Smith remains the owner of the Property at this time. [ 20 ] Smith relies on the final determinations of the Nova Scotia Supreme Court and Nova Scotia Court of Appeal in the above mentioned decisions which have repeatedly and consistently ruled against the Plaintiff, Heron, and in favour of the Defendant, Smith in respect of the Property.

A listing of reported decisions pertaining to the history of litigation in Nova Scotia is as attached as Appendix “A”. [ 21 ] On May 25, 2011 Justice Bourgeois advised the parties in a letter: “during the course of the conference, I felt it was prudent to set dates for the hearing of the motions brought by the Defendants seeking dismissal of the Plaintiff’s Claim. October 24 th and 25 th were assigned.

At present these are Sydney dates”. [ 22 ] On June 7 th , 2011 at a further convened case management conference, Justice Bourgeois in her confirming letter stated: “during the course of the conference the parties discussed and confirmed the scheduling of the outstanding motions for dismissal brought by the Defendant Smith and MacDonell. The motions will be heard October 24 and 25 in Sydney, Nova Scotia.” [ 23 ] At that point in time Mr.

Sekula was acting on behalf of the Estate and in respect of the Estate, Justice Bourgeois advised: “should the estate wish to file affidavits and a brief in response, this should be filed on or before September the 16 th , 2011 ". (emphasis added ) [ 24 ] On September 16 th , 2011 Justice Bourgeois wrote a further memo confirming the Case Management telephone conference wherein she stated, “The motion to dismiss brought by the Defendant continues to be scheduled for October 24 and 25, 2011.” She stated also “filing deadlines were adjusted to permit the Estate to have the materials filed by September 23 rd .” Further she stated “It is not anticipated that any affidavits will be filed on behalf of the Estate”.

No affidavits were filed on behalf of the Estate. [ 25 ] No mention at this time was made in respect of whether there would be an amendment of the pleadings by the Estate and as well an amendment of the relief being sought. On October 21 st , three (3) days prior to the hearing, Mr. Sekula, the Administrator, wrote Ms. Bassan for the Defendant, copied to the Court, an email as follows: “I have been preparing for a United States Court of Appeals case also to be heard on October 24 th , 2011 for oral argument. If this matter, Heron v Smith, was to require my actual physical appearance, I was unaware of this.

Regardless the Estate is unable to pay for my expenses to go to Nova Scotia for this case . ”(emphasis added) [ 26 ] With respect to this Motion the Administrator stated:

“I do not object to the dismissal of any all tort claims as they have been filed originally by Brian Heron. Mr. Heron is deceased and his family members are out of the case. I do not believe any of these causes of action are sustainable .” (emphasis added) [ 27 ] Mr. Sekula further goes on to state: “I do not object to the dismissal of the entire matter provided that the estate is not restrained from looking into the sale. I am not seeking to prolong this litigation. I recognize the age of the litigation and that your client has been pursuing this for many years.

If the sale is legal and proper there will not be further actions as the land is properly Mr.

Smith’s .” (emphasis added) LAW AND ANALYSIS [ 28 ] The Defendant, Charles Smith, asks for dismissal of the Plaintiff’s action on the basis that the claims are unsustainable, frivolous and vexatious, and barred by the doctrine of res judicata . [ 29 ] Before dealing with each of these arguments, I will reiterate several preliminary matters. [ 30 ] First since the filing of the Defendant’s Motion on April 13, 2010, the Plaintiff, Brian Heron, has passed away (on March 10, 2011). [ 31 ] Secondly, Consent Orders have been issued dismissing all claims of the Plaintiffs, Belinda Heron and Che Heron which Orders bar future proceedings on the basis that they are res Judicata .

Accordingly the Estate (as represented by its Administrator, Mr. Sekula) is the only remaining Plaintiff. [ 32 ] Rule 35.11 renders a proceeding “stayed” upon a party’s death. Although there has been no formal amendment to the pleadings adding the Estate as the Plaintiff, the Defendant in its brief recognizes the Estate as the Plaintiff for the purposes of this Motion to dismiss, stating in their brief that “the parties in this court have, at all material times, dealt with Mr.

Sekula, Administrator of the Estate as if he were the Plaintiff.” [ 33 ] Thirdly, by way of additional Consent Order, all claims against co-defendant John MacDonell were dismissed and future proceedings barred. Consequently Mr. Smith is the only remaining Defendant. [ 34 ] I turn now to address the Motion and whether the claims made by the Plaintiff estate have merit. SUSTAINABILITY OF THE ACTION [ 35 ] In his written submission on September 22 nd , 2011 the Administrator made the following admission, in stating his position on the present motion. In his letter Mr.

Sekula asked that his correspondence be accepted as the legal position of the Plaintiff Estate of Brian Heron “in this matter”: “The position of the Estate of Brian Heron is very simple. It is that the Defendant, Charles A. Smith, failed to comply properly with the law, Sale of Land Under Execution Act,

Chapter 409 of the revised statutes. This information is evident from the filings and briefs of Mr. Smith, as well as the dismissed Defendant, Charles A. Smith ( this was error and should have read, John MacDonell ).” [ 36 ] The Plaintiff Estate stated also: “Before proceeding it should be noted that all claims dealing with any type of behaviour other than the improper transfer of land are being asked by the Estate of Brian Heron to be stricken from the complaint.”(emphasis added)

[ 37 ] The improper behaviour referred to would include those tortious claims made against the Defendant which the Defendant (and now the Plaintiff) wishes dismissed against him. [ 38 ] It should be noted that the amended complaint (Statement of Claim) was received late, within 30 days or so before the hearing of the motion on October 24, 2011.

This motion had been filed April 13, 2010 and set for hearing months in advance, as per the letters of Justice Bourgeois, referred to herein. [ 39 ] The Amended Notice included also a Motion for leave of the Court to file a complaint and serve it upon John Snow, Sheriff, under the Proceedings against the Crown Act, c. 360 of 1989 (as amended 1991. c.16). Justice Bourgeois declined to give consideration to the Motion as it was not properly filed before her, no motion having been filed with the Court.

The Motion included joining all parties, alleging the sale of the Property was not properly held, under the Sale of Land under Execution Act, c. 409 of the revised statutes, 1989 as amended. [ 40 ] Clearly the Estate, as of September 22 nd , 2011 was saying, there is but one issue before the Court, the validity of the Sheriff’s sale in January, 2006. [ 41 ] Notwithstanding this “admission” described as such by the Defendant, it is prudent to address the issue of whether the Plaintiff’s claims are sustainable, separate from the issue of the validity of the sale.

I shall do so having regard to the Plaintiff’s admission that all Claims except the validity of the sale are not for the Court’s consideration at this time, and should be dismissed. THE STATEMENT OF CLAIM [ 42 ] It bears mentioning that the opening three (3) paragraphs of the Statement of Claim set the tone for the claims being made by the Plaintiff. These are recited below (in part only): 1.

For intentional interference by the Defendant, Smith, and others with the Plaintiff’s constitutional right to due process under the constitution of Nova Scotia by misrepresentation of the state of the law in the foreign jurisdiction of California... 2.

Fraud and misrepresentation, whereby the Defendant Smith and others intentionally, with knowledge and deceit commenced and continued unlawful actions and proceedings against the Plaintiff, Brian Heron, in Nova Scotia in 1999 to domesticate and enforce Orders for costs and attorney fees, knowing them to be unenforceable in the foreign jurisdiction of California... 3. Malicious prosecution by the Defendant Smith of Mr. Heron, whereby Mr.

Smith domesticated and pursued enforcement in the Supreme Court of Nova Scotia in 1999, judgments for costs and fees that were not final and enjoyed statutory automatic stays of enforcement pending appeal in the foreign jurisdiction of California and thus without jurisdiction in Nova Scotia. [ 43 ] Paragraph 4 claims malpractice by California and Nova Scotia counsel and conspiracy with Smith to misrepresent foreign and domestic laws (in) California and Nova Scotia respectively.

Paragraph 4 alone is one and a half pages in length, single spaced and it includes a brief reference to the validity of the sale, as “unlawful”: “Public notice misstated the date of the notice in the press and the unlawful sale was held on or about January 26 th , 2006 and unlawfully purchased by counsel on instruction by Defendant Smith.” (Emphasis added) [ 44 ] Paragraph 5 claims: “Intentional infliction of emotional distress” arising out of bad faith conduct, once again claiming the action was beyond the jurisdiction of the Nova Scotia Supreme Court, “in violation of international human rights and constitutional due process...” [ 45 ] Paragraph 6 launches a whole new series of allegations claiming intentional interference of a different kind, to the Plaintiff’s business for which the Property was acquired.

Once again the basis for this claim is the “Defendants’ unlawful pursuit of litigation in

Nova Scotia”. [ 46 ] Paragraph 7 pleads for the granting of the equitable remedy of an interim injunction pending the issuance of an interlocutory injunction, including a reference to the Plaintiff’s “CLEAR LEGAL RIGHT TO RELIEF”. [ 47 ] The Defendant, Smith, submits the Administrator has admitted the claims against Smith are without merit, signalled by his request for leave to amend, at this late stage, of virtually the entire Statement of Claim.

The Defendant further submits that with Justice Bourgeois’ ruling that the motion to Amend was not properly before the Court, “the admissions made by the Administrator mean there are no remaining claims for the Court’s consideration”. The Defendant states at paragraph 9 of it’s brief, “This alone is sufficient to warrant Smith’s motion for dismissal to be granted with costs”. [ 48 ] This is a compelling argument advanced by the Defendant.

Before settling on the admissions and their extent I repeat that all claims by the Plaintiff have been “physically” deleted by the Plaintiff with the exception of those related to Injunctive Relief and language suggesting that the sale was unlawful. The first and only mention of the Sale of Land under Execution Act is in the new amendments sought on September 22, 2011. Mr.

Sekula states: “I do not object to the dismissal of any of all tort claims as they have originally been filed by Brian Heron.” And further the striking of: “All claims dealing with any type of behaviour other than the improper transfer of land.” [ 49 ] Quite apart from the above admission there are several pronouncements dating back over the history of this litigation that warrant mention in relation to the claims which the Administrator now says should be dismissed.

These are as follows: “Notwithstanding clear and final findings of this Court, Heron has continued to challenge the jurisdiction of the Nova Scotia Courts on the registration of the California judgments...((C.A. in Chambers) at para. 3 Heron v Smith))” (Heron v Smith 2003 Carswell NS 338 ) “The correctness of the California Orders is not open for debate in this jurisdiction...It is clear from the record that all of the prerequisites for the enforcement of a foreign order by the Court’s of Nova Scotia have been satisfied. [ Heron v Smith 2001 Carswell NS 207 (C.A.) Para 3].” “Accordingly I dismiss Heron’s application to vacate and set aside all Canadian Court decisions made to date arising out of the California litigation between himself and Smith. [ Heron v Smith 2003 Carswell NS 338 (C.A. in chambers) Paras. 36 - 40].” “Throughout the appeal Heron has repeatedly raised what he called the “jurisdiction issue”, in a relentless and time consuming attempt to relitigate settled by this court in the 2001 Judgment.” [ Heron v Smith 2003 Carswell NS 620 (C.A. in Chambers) Para 12].” “He has pursued many futile and frivolous applications and has attempted appeals therefrom which actions have substantially impacted upon the expense of this matter.

He has persistently attempted to “relitigate” matters long ago settled by this court. He has not conducted the litigation in a way which indicates for concern for the efficient use of the Court’s time.” (Heron v Smith 2003 NSCA 113 ) [ 50 ] The above passages from the various rulings are cited to illustrate by comparison that the Statement of Claim here, in 2010 raises still the “jurisdiction issue”. The Defendant asks this Court to accept that these matters have been finally resolved and not to undermine the legitimacy of its previous decisions.

[ 51 ] With or without the amendments, I concur with the Defendant that the claims (which the Defendant now seeks to be deleted) are without merit and that the Plaintiff has “clung” to the argument that the Nova Scotia Courts have no basis to enforce the California Judgments, for far too long. I concur that these claims have been finally resolved by our Courts on multiple occasions, and that the Administrator has now as much as said so when three (3) days before the October 24, 2011 hearing he stated in the email on October 21, 2011: “Mr. Heron is deceased and his family members are out of this case.

I do not believe any of these courses of action are sustainable.” [ 52 ] It is evident from this position that it was Mr. Heron himself who drove the litigation during his lifetime. It can be reasonably inferred that his family have accepted that there is no merit to his previous challenges, at least at this time. Until the email received from Mr. Sekula on October 21, 2011, there was not much consideration shown for the efficient use of the court’s time by Mr. Heron, with the exception of the consent orders which came after his death in March of 2011.

His Estate chose not to appear, at the last minute, stating it was unaware it had to appear in person. [ 53 ] I concur with the Estate’s own language, that the claims sought to be deleted are unsustainable, as set out in Rule 13.03. [ 54 ] I turn now to consider the remainder of the Statement of Claim, having particular regard to the remaining claim that the Plaintiff seeks leave to litigate, the validity of the 2006 Sheriff’s sale. [ 55 ] Whether the Plaintiff’s claims are frivolous and vexatious and res judicata will also be addressed by this Court.

THE VALIDITY OF THE 2006 SHERIFF’S SALE [ 56 ] The Plaintiff asks that any and all claims (of behaviour), other than the “improper” transfer of land be stricken from the complaint of the late Mr. Heron, at this time. Mr. Sekula states as the last paragraph in his September 22, 2011 brief: “...this now a simple case of whether or not the Defendant, Charles A. Smith and Sheriff John Snow complied with the Sale of Land under Execution Act,

Chapter 409 of the Revised Statutes, 1989 as amended.” [ 57 ] The principal argument of the Estate is that the Act was not complied with in respect to the five (5) weekly insertions required to be published, of the Notice of Sheriff Sale, said insertions to precede the date of the sale. Section 11(2) of the Act under the heading “Notice of Sale” reads as follows: “ Notice of Sale” “

(2) The judgment creditor shall cause to be inserted by five consecutive weekly insertions preceding the day of sale, in one newspaper which is published, or if none is published, or if only one paper is published and the proprietor thereof refused to insert it at a reasonable rate, to be determined by the sheriff of the county in which the land to be sold is situate, such reasonable rate not to exceed the rates charged by the Royal Gazette for similar advertisements, in one which circulates, in the county in which the land is situated an advertisement containing a description of the land directed to be sold, stating that such land is to be sold under execution at the suit of the plaintiff or defendant, as the case may be, and the time and place fixed for such sale and having appended thereto the names of the sheriff and the solicitor of the judgment creditor.” [ 58 ] The Plaintiff (Respondent in the Motion) Estate’s submission is summarized below in its brief at page 2: “The Defendant placed the advertisement in the Chronicle Herald...This is not a newspaper published in Richmond County.

It is also not published in Inverness County where the Sheriff’s Sale took place. This newspaper is located in Halifax, 150/240 kilometres away from Port Hawkesbury. Pursuant to the statute there must be a reason given for the use of a paper at such a distance, and that must be related to the failure of the newspaper to print the advertisement or that the costs be more than the Royal Gazette.” [ 59 ] The Estate says further the advertisement was published one time only. With respect to evidence to support that and other

arguments, the Plaintiff has provided none. The Estate submitted: “The proofs in this matter are all, or should all be part of the record of the proceedings.” [ 60 ] And further the Estate says that the “one time publication of this event...has been verified independently”, stating it is the Defendant’s duty to show compliance with the Act.

The Plaintiff further states: “If more formal assurances are required then the Chronicle Herald will be contacted to obtain an affidavit concerning the publication in this matter.” [ 61 ] In stating this the Plaintiff is, at the same time, seeking leave to amend its Statement of Claim, to challenge the validity of the sale. The Estate alleges that the Sheriff failed to comply with the Act, stating “he failed to do so”. At the same time the Estate argues that as the Respondent (on the Motion) it has no duty to discharge.

Rather than requesting “formal assurances” from the Plaintiff, the Court would prefer and expect that the Estate provide evidence in support of its claim of illegality, rather than bare assertions. This is especially true since some 6 years have now passed since the sale in January of 2006. [ 62 ] There is evidence on this point which has been provided by the Defendant in Supplemental Affidavit of Matthew Pierce filed on October 18, 2011.

It confirms quite clearly that there were five (5) weekly insertions in the Chronicle Herald newspaper of the Notice of Public Auction, which notice was signed by the Sheriff in Port Hawkesbury. As is the practice, the notice stated that the sale was to take place at the Sheriff’s office, with the time, date and names of the Sheriff and the Solicitor of the judgment creditor. In this case, that was Mr. John E. MacDonell. [ 63 ] I interpret

section 14 of the Act to require the judgment creditor, Mr. Smith, to cause to be inserted five (5) consecutive weekly advertisements in a newspaper published in the county in which the land is situated. If none is published in the county where the land is situate, the advertisements shall be published in a newspaper which is circulated in that county.

If only one newspaper is published in the county in which the land to be sold is situated, then publication is required in it unless the owner/proprietor of the paper refuses to insert it at a reasonable rate, which rate is to be determined by the Sheriff and is not to exceed the rate charged by the Royal Gazette.

If the Sheriff determines the rate to be unreasonable, such that it exceeds the rate of the Royal Gazette, the ads may be published in a newspaper circulated in the County in which the land is situated. [ 64 ] The Defendant Smith submits that the Estate has adduced no evidence to challenge the validity of the Sheriff’s sale. In addition it argues that res judicata operates to prevent new issues, that should have been raised in the original pleadings but were not. For these reasons says the Defendant, the Estate should now be estopped from raising this cause of action. [ 65 ] Mr.

Heron previously challenged the validity of the first sale in August of 2005, before Justice Edwards. I have reviewed the affidavit evidence filed in support of that application for that Injunction sought by Mr. Heron as well as the affidavit of the solicitor for Mr. Smith. Mr. Heron’s affidavit focussed on the “jurisdiction issues” as opposed to a direct challenge under the Sale of Land under Execution Act, as he now attempts to do. [ 66 ] The affidavit of Mr. Smith’s solicitor however dealt with the procedures followed, including the five (5) insertions in the Chronicle Herald.

This affidavit is attached as Exhibit “A” to Mr. Pierce’s affidavit and the Order and Decision of Justice Edwards is attached as Exhibit “E” to Mr. Smith’s affidavit. Mr. MacDonell had been contacted by a Nova Scotia solicitor, at that time, on behalf of Mr. Heron as well as his son. Both of them had conversation with Mr. MacDonell concerning the upcoming Sheriff’s sale. [ 67 ] Justice Edwards ruled the challenge to the August 18 th , 2005 sale to be frivolous and vexatious. In dismissing Mr. Heron’s application, he adopted the written submissions of the Defendant and it’s solicitor “in their entirety”.

Those submissions included the following: “This application is a complete and utter abuse of the process of this Honourable Court, and not for the first time in the history of the proceedings” [ 68 ] The second sale held in January of 2006 was necessary because Mr. Heron successfully bid on the Property at the August, 2005 sale which he challenged unsuccessfully. However, he defaulted and did not complete the terms of the sale, thereby making it necessary for a second sale to be held.

[ 69 ] Just before the second sale Mr. Heron obtained an Order from the Bankruptcy Court in Florida and filed it at the Registry of Deeds in Richmond County on February 7 th , 2006. The Order was dated January 25 th , 2006. I repeat the Florida Court, when the Bankruptcy proceedings were concluded in May of 2007, stated they were “little more than an attempt to delay Mr. Smith”. [ 70 ] If this challenge is not barred by res judicata , then it is so only because it is not the identical issue as was challenged in the 2005 sale. It is not the identical issue only because it was not the identical sale.

Otherwise the issues, (and the procedure that followed) and in particular where the notices were published, were part of the record and was included in the affidavit evidence of Mr. MacDonell. At the very least the doctrine of res judicata can be said to be “hovering” over both sale proceedings, in my view. The point is the Plaintiff, Mr.

Heron, had the same opportunity to raise the challenge it is making now, when this litigation was filed, namely that the Act was not complied with. (See para 39 herein) [ 71 ] Notwithstanding the strength of the res judicata argument made by the Defendant Smith, I believe this matter can and should be resolved by looking at the evidence submitted, or if applicable, the lack of evidence in support of the respective position of the parties.

Section 14 of the Act: [ 72 ] Prior to addressing those positions, I turn to consider s. 14 of the Act. This

section was not referenced by the Estate but referenced by Mr. Smith. It was referenced by Estate, that the onus is upon the Defendant to establish the validity of the sale.

Section 14 of the Act is relevant to that issue and reads as follows: “ Deed as prima facie evidence 14 A deed executed by a sheriff, and purporting to convey land sold under execution, is prima facie evidence of the proceedings referred to therein, that the requirements of this Act were fully complied with and that the interest of the debtor bound by the judgment against the debtor had been conveyed by such deed to the purchaser, free from the judgment for which the land was sold and any lien or encumbrance recorded subsequent to it. R.S., c. 409.

S. 14; 2001, c. 6 , 3. 126.” (Emphasis added) [ 73 ] The Sheriff’s Deed in this matter is attached to Mr. Smith’s affidavit as Exhibit “U”. It is dated May 4, 2009 and was registered on October 22 nd , 2009. [ 74 ] The Defendant submits that

Section 14 expressly provides that a Deed executed by the Sheriff is prima facie evidence that the Sheriff’s sale complied with the requirements of the Act. In furtherance of this argument the Defendant states in their brief with respect the onus on them as alleged by the Estate: “This alone demonstrates compliance with the Act, thereby obliging the person challenging the sale to show how the sale was non- compliant. No evidence has been filed by the Estate to rebut the presumption of compliance.

This is a complete answer to the Estate’s claim.” [ 75 ] Where then does the onus lie, and upon whom is the burden to establish the validity of the sale? The difficulty is that the assertions by Mr. Sekula on behalf of the Estate are made as factual, but the Estate has chosen not to provide independent evidence. Certain things are part of the record, but there is no evidence as to whether there is a newspaper “published” in Richmond County or whether the rates charged are more or less than the Royal Gazette, to cite but two examples of evidence necessary to challenge the validity of the procedure followed.

We know the assertion made by the Estate as “factual”, that only one ad was published, was incorrect. The evidence is clear, and I find as a fact, that there were five (5) weekly insertions in the Chronicle Herald of the January 26, 2006 Sheriff Sale, a newspaper circulated throughout this province. [ 76 ] Having carefully considered this issue, in the absence of evidence to the contrary, the presumption is that the Sheriff’s sale was properly conducted. If, as the Estate suggests the onus is on the Defendant,

section 14 has the effect of reversing that onus to the person challenging the sale, once the Sheriff deed has been executed which it has been here. The Estate, in my respectful view has not met that onus or discharged same to prove otherwise either with evidence given or on the basis of the evidence which already exists, as part of the record.

[ 77 ] In the result I dismiss the Estate’s claim that the sale was improperly held, and that the Act was not complied with. I concur with the Defendant’s position that

section 14 of the Act is a complete answer to the Estate’s claim, in these circumstances for the reasons given. I am satisfied on the balance of probabilities that s. 14 of the Act applies here and operates to establish that the sale was properly held, there being no evidence to rebut the presumption that the requirements of the Act were fully complied with. Plaintiff’s Laches Argument [ 78 ] The Estate argues the Defendant is barred by laches and estopped from the transfer of the Property (which has already occurred in 2009), alleging “Mr. Smith has requested that the sale be cancelled”.

Also the Estate argues that for three (3) years, notices were sent to the Estate Solicitor, Mr. MacDonald without notice to Mr. Heron and that by 2009, the solicitor retired. The Estate states “no notice was given (by the Defendant) seeking to perfect the sale over 3 years later”. [ 79 ] The Estate then turns its attention to the Sheriff stating no authority exists to allow the Sheriff to hold the proceeds from a sale and not disburse the Property indefinitely.

The acts of the Sheriff in holding the proceeds they say, without notice to any party is not within the “purview of the statute”. [ 80 ] The Defendant Smith’s response is contained in its affidavit at paragraphs 26-28. His position is that the delay was as a result of attempts to reach a resolution with Mr. Heron through their respective counsel in Florida and Nova Scotia. As evidence of this Mr. Smith included seven (7) letters to the Sheriff as Exhibits to verify these negotiations. Further in paragraph 27 Mr.

Smith stated: “Through my counsel, I made multiple attempts between 2006 and 2009 to initiate contact with Heron for the purpose of seeking a mutually beneficial resolution to all Property matters. However, Heron did not respond to any of my settlements attempts and did not agree to any Consent Orders in respect of the Property.” [ 81 ] These were Mr. Smith’s funds which he was entitled to receive. He waited three (3) years in effect to avoid his having to record the Deed to himself for the Property. In effect he is stating he did this for he and Mr. Heron’s mutual benefit, to which Mr.

Heron did not reciprocate. [ 82 ] Once again, however, there is no evidence from the Estate. Instead it makes bald assertions based on the existence of certain circumstances known to be the case. Examples are the assertion that Mr. Smith requested the sale be cancelled and that he waited three (3) years for Mr. Smith to record his Deed. If Mr. Smith’s evidence is accepted, then the claims made by the Estate represent a serious mischaracterization of the issue. The context is that Mr. Smith did these things in an attempt to reach a resolution with Mr. Heron. This is supported by the affidavit evidence of Mr.

Smith and the supporting affidavits of Matthew Pierce and Shaun MacMillan. In view of this I concur and accept the Defendant’s position that the doctrines of laches and estoppel, equitable doctrines as they are, are inapplicable to these circumstances. The old adage applies, “to seek equity, one must do equity.” [ 83 ] Accordingly I reject the argument of the Estate that these doctrines afford relief to the Estate. In the face of the uncontradicted evidence submitted by the Defendant Smith, the Estate’s argument is without merit.

Abuse of Process/Frivolous and Vexatious [ 84 ] What all this means in my view is that the Estate’s claims, new and old are lacking in credibility. The latest claims against Mr. Smith based on the illegality of the sale, laches and estoppel, and the claim against the Sheriff represent yet again newer claims made late in the process of “piecemeal” litigation. At paragraph 39 of the Statement of Claim a brief reference was made to the sale being “unlawful”.

Beyond that no material facts were provided nor was an explanation of the basis of the claim included in the pleadings. [ 85 ] One of the hallmarks of abuse of process is to open up and continue a new set of pleadings and allegations. In the leading case of Lang Mitchener Lash Johnston v Fabian 1987, 57 OR 2d 353 (1987 Carswell Ont. 378 (Ont. S.C.) ), submitted by the Defendant, this is described as follows:

“(

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented , often with actions brought against lawyers who have acted for or against the litigant in earlier proceedings;” [ 86 ] In my view the Plaintiff’s claims is a last minute, last ditch effort at the 11 th hour to add yet another claim or series of claims, after 12 years of litigation.

There has been no payment of previous costs orders (also referenced in Lang ) and the idea of keeping the claim open (“as long as the Estate is not restrained from looking into the sale”) amounts in my view to an abuse of process. The Plaintiff had 6 years to challenge the validity of the sale in the manner the Estate is now alleging. This is plain and simple, unfair to Mr. Smith and amounts to “litigation by installment” as argued by the Defendant. Although the Administrator says otherwise, the actions of the Estate speak for themselves.

In my view for the foregoing reasons these actions are an abuse of process and are as well for similar reasons frivolous and vexatious proceedings. [ 87 ] In the result the Motion to Amend the Statement of Claim is denied. There shall be no further challenge to the sale and no further action pending or otherwise against the Sheriff, John Snow in respect of the sale. Justice Bourgeois did not dismiss the Motion for leave to amend, she simply refused to consider it as it had not been properly filed. It still has not been. Consequently I am dismissing it for similar reasons.

However even if I am incorrect in doing so, I am of the opinion the sale conducted on January 26, 2006 was not improperly held for the reasons given herein, and I hereby rule and so find that the January 26, 2006 sale be ratified and confirmed as a proper sale under the Act. [ 88 ] In the further result Defendant’s motion to dismiss the Notice of Action dated February 15, 2010 (and the propose amended Notice of Action dated September 22, 2011), is hereby granted. It is my conclusion that the Notice of Action and Statement of Claim amount to an abuse of process pursuant to Rule 88.01.

Order - re: Further Proceedings [ 89 ] The Defendant Smith asks that the Court issue an Order, under Rule 88.02 preventing the Estate, or anyone acting on it’s behalf from commencing further proceedings against the Defendant, Smith. [ 90 ] The Defendant has expended, over a period of five years of litigation (from 2005 -2010) alone in excess of $55,000 in legal fees and has recovered from the Plaintiff the sum of $6,546.72, representing the deposit less Sheriff’s fees from the first foreclosure sale on August 18 th , 2005, due to the Plaintiff defaulting on the terms of the sale as purchaser.

All of the other costs awards have gone unpaid by the Plaintiff. (See paragraphs 16, 33 of Smith affidavit) [ 91 ] The judgment of the Florida court relating to the bankruptcy is replete with indicators of abuse including repeated requests for reconsideration of decisions and defaults.

Several excerpts from the Court’s decision are as follows: “The debtor owns non-exempt real Property in Canada with a value greater than the amount the debtor then proposed to pay to unsecured creditors.” “According, by Order dated February 28, 2007 the Court dismissed the case again, ...for willful failure to abide by the Court’s prior orders.” “After considering the argument of counsel for the Creditor Smith, and counsel for the

Chapter 13 Trustee, the Court denied the Debtor’s motion for reconsideration, finding no new evidence or basis to overturn the Court’s decision that this case should be dismissed.” “The Debtor now asserts that the Court should reconsider it’s prior ruling because of the following new evidence...

(3) Creditor Smith is in contempt by unlawful attempts to enforce his judgments against the Debtor.”

[ 92 ] The Court in the U.S. discussed the remedy of reconsideration as being “an extraordinary remedy to be employed sparingly.” It is not extended they say to give a moving party another “bite at the apple” by allowing issues to be argued that “should have been raised prior to the judgment” (pages 6 and 7 of Exhibit “I” to Smith affidavit). The Court stated further that: “Evidence regarding whether Mr.

Smith is unlawfully enforcing his judgment is irrelevant to an inquiry of the Debtor’s failure to make payment to the trustee and to comply with other obligations imposed on him by orders of this Court.” [ 93 ] It was at this point, that the Court concluded that the case was “little more than a device to delay Mr. Smith.” In his concluding paragraph May, J. stated: “The Court has twice reinstated this case in an attempt to give the Debtor an opportunity to achieve compliance. For whatever reason, the Debtor has demonstrated a clear pattern of neglect in achieving confirmation of a plan.

The Court has considered the Debtor’s motion for rehearing, together with the record, and finds it is without merit, and therefore should be denied.” [ 94 ] These rulings of the Florida Bankruptcy Court are provided to show that the enforcement of the judgments by Mr. Smith was continually challenged by Mr. Heron, not only in Canada but in the U.S. and for a period well after the second sale in January, 2006. The date of the final decision of the Bankruptcy Court was May 29 th , 2007. [ 95 ] It should be noted that the day before the second sale (January 26, 2006), Mr. Heron obtained an order in the U.S.

Court which he proceeded to register against his title to the Property in Nova Scotia, Richmond County all without notice to Mr. Smith. ( Smith affidavit, paras 15 - 24 .) [ 96 ] Mr. Smith’s counsel argues: “Through the bankruptcy proceedings in Florida, Heron tried again to impugn the sale of the Property.” [ 97 ] Rule 88.02 allows a Judge who is satisfied a process of the Court has been abused to provide a remedy that is likely to control the abuse. Rule 88.02(2) allows a person to make a motion under

Section 45(

b) of the Judicature Act, R.S., c. 240, s. 1, in an allegedly vexatious proceeding or a proceeding allegedly conducted in a vexatious manner.

Section 45(

b) of the Judicature Act reads as follows: “45B

(1) Where a court is satisfied that a person has habitually, persistently and without reasonable grounds, started a vexatious proceeding or conducted a proceeding in a vexatious manner in the court, the court may make an order restraining the person from: (

a) starting a further proceeding on the person’s own behalf or on behalf of another persons; (

b) continuing to conduct a proceeding, without leave of the court;

(2) The court may make the order apply to a spokesperson or agent of a party or to any other person specified by the court who in the opinion of the court is associates with the person against whom the order is made...” [ 98 ] Is this proceeding being conducted in a manner that is vexatious and would seeking “another bite at the apple” by the Estate be considered as such? As recent as October 21 st , 2011 the Estate, through it’s Administrator stated the condition, “provided the Estate is not restrained from looking into the sale.”

[99] Without even relying on

section 45(b), having found an abuse of process, the Court is not limited in how it might remedy theabuse, something over which it has inherent authority. (Rule 88.01) I think however, it can be said that the actions of the Estate arevexatious and that the remedy under

Section 45(

b) is at the Court’s disposal, should the court be inclined to exercise it. [100] Mr. Sekula stated to the Court, just before the motion hearing, “I am not seeking to prolong this litigation.” He said also “if thesale was legal and proper then there will not be further actions as the land is properly Mr.

Smith’s.” The Court has had no opportunity to hear from the administrator further as he did not appear on the Motion date of October 24th, 2011. [101] In addition to reminding the court of the doctrine of res judicata, the Defendant, Smith has reminded the Court of statementsmade in the history of this litigation like that of the Honourable Justice Jill Hamilton of the Nova Scotia Court of Appeal, who in 2003, 8years ago said: “It is time to bring this litigation to a close.” [102] Can the Defendant then now proceed with confidence that there will not be further actions as suggested by the Administrator?

Relying on the history, only part of which has been cited, the answer must surely be a resounding “no”. [103] It is also surely the case that granting the remedy requested by the Defendant is an extreme remedy, perhaps without precedentin this province (save for the Consent Orders filed here).

In consequence, the extraordinary nature of the remedy demands that it beconsidered with all due caution and granted only in the rarest and most exceptional of circumstances. [104] For the foregoing reasons I believe the circumstances exist here for exercising the Court’s inherent authority to control abuseand respond to conduct that may amount to abuse.

I find that any further actions in regard to this matter would fall into that category. [105] Had I not dismissed the matter, I might have preferred the remedy employed by Justice Saunders, J.A. in the recent case ofLienaux v Campbell, 2011 NSCA 94 where he granted a motion requiring the Appellant to provide security for costs before continuinghis latest appeal in what the learned Justice characterized as “interminable litigation which stretched over more than 20 years.” TheCourt rejected the Appellant’s arguments that he was impecunious, but in any event the learned Justice added the following at paragraph21: “Had I reached the conclusion that the Appellant was impecunious, or that compelling him to post security would likely terminate theappeal, I would none the less have ordered security for costs in favour of the Respondents, so as to do justice between the parties in theface of this chronicle of discord which I would characterize as extraordinary and unparalleled.” [106] In the cases which follow Ms.

Bassan and Mr. Pierce for the Defendant, Charles A. Smith state that this is an appropriate casefor a vexatious Plaintiff to be precluded from commencing further proceedings without leave. In O’Neil v Deacons, 2007, ABQB 754(2207 Carswell Alta.1965), Serdahely Trust (Trustee of) v. Serdahely Estate, 2008 Carswell Alta 1028 and the well known and oftenquoted case of Lang Mitchener Lash Johnston v Fabien (ON SC), 1987 Carswell Ont. 378, the Courts granted anOrder precluding the Plaintiffs from commencing further proceedings without leave of the Court. [107] As stated, counsel for Mr.

Smith argue at paragraph 43 of their brief: “The extreme nature of the conduct of this case is akin to, if not worse than that in Land Mitchener, O’Neil and Serdalely.” [108] For the foregoing reasons I concur with this statement and hereby grant an order to the Defendant, Mr. Smith, which will requirethat any further action by the Plaintiff or an agent acting or spokesperson on his behalf including the Estate, the Estate Administrator,and previous Plaintiffs, Belinda and Che Heron, shall henceforth be prevented from commencing any further proceedings in Nova Scotiaagainst Mr.

Smith or his counsel in respect of the enforcement of the said judgements herein and/or as it relates to the validity of theSheriff’s sale or sales conducted in this matter, without leave being granted by this Court. This includes any action or proceeding whichin any way relates to the Property.

Costs: [ 109 ] In terms of costs the Defendant has requested solicitor/client costs. Those types of costs are to be granted only in exceptional circumstances. Arguably this is such a circumstance but a finding of abuse of process alone, while a strong indicator, does not automatically result in solicitor client costs being awarded. [ 110 ] As well the court has no details as to the estimate of fees or time spent. The process would be to invite further submissions from both parties. The Defendant states this can be provided quickly, arguing there have been months of planning and scheduling of this Motion.

I note as well Rule 77 provides a “multiplier” when the Motion results in a dismissal of the entire matter, as is the case here. [ 111 ] The Defendant is seeking closure and finality in this matter. Rather than prolong it further I note the Applicant/Defendant has made his request for costs known to the Plaintiff Estate, who has received the Defendant’s documents containing his request for costs.

In those documents the Defendant requested in the alternative to solicitor client costs , an award of costs “substantially above” the Tariff. [ 112 ] In Nova Scotia costs are intended to be a substantial but incomplete indemnity to a party. Rule 77.06 states that party in party costs of a proceeding, unless a Judge otherwise orders shall be fixed in accordance with the Tariff of costs and fees determined under the Costs and Fees Act. Rule 77.06(3) says that party in party costs of a motion must, unless the presiding Judge otherwise orders, be assessed in accordance with Tariff C.

Under Rule 77.07(1) Tariff C costs may be added or subtracted from, depending on the factors contained therein. [ 113 ] There are general principles which are stated both in the rules and under common law.

As Justice Hood stated in a recent decision of Salman vAl-Sheikh Ali 2011 NSSC 30 : "Successful Defendants are almost invariably awarded costs." [ 114 ] Similarly in Arab v Izsak , 2011 NSSC 30 the Court commented: "A decision not to award costs must be for a very good reason and based on principle." [ 115 ] In particular Rule 77.03(3) it confirms that "costs of a proceeding follow the result, unless the Court orders or a Rule provides otherwise”.

This is consistent with the principle that successful Defendants are almost invariably awarded costs. [ 116 ] The motion proceeding in this matter lasted more than a half day but less than a full day. Consequently the range under Tariff C would be from $1,000 to $2,000. [ 117 ] Under Rule 77, the following guidelines apply in relation to Tariff C costs:

(3) In the exercise of discretion to award costs following an application, a Judge presiding in Chambers, notwithstanding this Tariff C, may award costs that are just and appropriate in the circumstances of the application.

(4) When an order following an application in Chambers is determinative of the entire matter at issue in the proceeding, the Judge presiding in Chambers may multiply the maximum amounts in the range of costs set out in this Tariff C by 2, 3 or 4 times, depending on the following factors:

(

a) the complexity of the matter, (

b) the importance of the matter to the parties, (

c) the amount of effort involved in preparing for and conducting the application. (Emphasis added) [ 118 ] In terms of the complexity of the matter, the changing nature of the pleadings, the prolonged nature of the proceedings including the numerous and multiple tortious claims, the foreign jurisdiction issues, the allegations of misconduct by the Defendant, the abusive nature of the pleadings, have all added to the complexity of the matter. [ 119 ] It is also important to note that abuse of the Court’s process is something which is, and should be considered of fundamental importance to the Courts. [ 120 ] The effort by the Defendant in preparing for and conducting the Application has been more than substantial.

The Defendant's affidavit was organized to provide a history, the relevant evidence, and the Defendant's efforts at resolving the matter. The Defendant then provided a timely response to the new positions taken by the Defendant and received from the Plaintiff on September 22, 2011 and October 21, 2011. [ 121 ] Combining the three (3) factors to be addressed (Tariff C, 4 (a), (

b) and (c)), the prolonged and repetitive nature has added to the complexity. Bringing closure has contributed to the importance of the matter and made the required effort more substantial. The Defendant left nothing to chance in terms of evidence, evidence by the supplemental affidavits of Matthew Pierce and Shaun MacMillan. [ 122 ] There is a compelling case for maximum costs for the Defendant. I note the amount involved using the combined judgments amounts is $106,120.72. This would be tempered somewhat by the lesser land cost to the Defendant of $27,000.

An average of these two amounts would bring the matter in the range of $66,000. While there are other considerations in determining the amount involved under Tariff A, the tariff costs for $66,000 would be in the range of $9,063 (scale 2). I emphasize that Tariff A is not applicable here and is used for comparison only. [ 123 ] In terms of costs I have considered what would be just as between the parties.

As a result, I hereby grant costs to the Defendant, Charles Smith, payable by the Estate in the amount four (4) times the maximum allowed on the Motion ($2,000) for a total of $8,000. [ 124 ] I have considered the following cases submitted by the Applicant in support of his (the Defendant’

s) position that the Court should order that costs be paid by the Administrator. While the Defendant reserved that right, in oral argument the request was made for such a ruling at the motion hearing. The following cases were submitted by the Defendant: ( Olenchuk Estate 1991 Carswell Ont 431 ; Gray Estate v Winkfield 1992 Carswell Ont 4060 ).

In Olenchuk , the losing party was relieved from costs where there was justification in raising the issue of undue influence in an estate matter. [ 125 ] These cases, in particular, Gray Estate , in my view address the situation where the Administrator or Personal Representative had a direct role in “instituting” or “initiating” an action on behalf of the Estate. Such is not the case here.

I do agree the Administrator may be trying to walk a fine line, but in doing so, he is acting on behalf of the Estate. [ 126 ] The Estate is now the proper Plaintiff and recognized as such by the Applicant. [ 127 ] The Administrator did raise the (new) issue of the validity of the sale. The Applicant argues under Rule 35.11 you can’t prepare to be a party and at some point, not be “on the hook” as a willing participant.

[ 128 ] I repeat I have considered whether costs should be awarded against the Administrator and the Estate, jointly and severally, as argued by the Defendant. In this regard I have considered Rule 77 and the definition of “party” in the Judicature Act s. 2(e). The latter, in my view, would include a party entitled to attend a proceeding but not yet named on the record. (See para. 32 herein) [ 129 ] I am mindful the Administrator took an active role in the consent orders and did not dismiss against all Defendants.

As well there have been several dates scheduled since his involvement and including case management conferences. There has been significant costs since April of 2010 and a flurry of activity on October 21, 2011. As well the Defendant had to respond to and file a statutory declaration as a result of the "new flavour" added, the challenge to the validity of the sale. [ 130 ] Widdlefield on Executors and Trustees speaks of an Executor "raising an issue". Although raised in substance by the Administrator, the alleged illegality of the sale was mentioned briefly in the pleadings, but only touched upon.

Widdlefield speaks of the claim raised as being "entirely without merit". [ 131 ] Having considered this, I am inclined not to grant the award of costs payable by the Administrator as the particular Administrator’s involvement in this case has been relatively recent on behalf of Mr. Heron’s Estate. He was appointed Administrator of the Estate on May 16, 2011. Within several months he acknowledged that the claims of the Plaintiff had no merit, except one. [ 132 ] This decision in respect of costs has been aimed at finality and closure for the Defendant.

In addition to the party in party costs awarded, I will allow the reasonable disbursements of the Defendant. Conclusion: [ 133 ] The following is a

summary of the rulings made in this decision and the relief granted: 1. The Defendant’s Motion to Dismiss the claim of the Plaintiff in its entirety is hereby granted. 2. The Plaintiff’s challenge to the validity of the Sheriff’s Sale is dismissed. 3. The Sheriff’s Sale of January 26, 2006 is hereby ratified and confirmed as a valid sale. 4. An Order is granted preventing the Plaintiff and/or the Estate or any agent or spokesperson from commencing any further proceedings or action in relation to the Property, including enforcement of the judgments without leave of this Court. 5.

Costs in the amount of $8,000 plus reasonable disbursements are granted to the Defendant. [ 134 ] As a result the Draft Order for Dismissal will issue with the following changes: 3.(

c) shall now read: “that it is frivolous and vexatious. It is also res judicata with respect to the Notice of Action dated February 15, 2010.” 5. shall now read: “Costs in the amount of $8,000 plus reasonable disbursements, are awarded to Defendant Smith, payable forthwith by the Estate.” [ 135 ] Order accordingly. J.