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Searles v. Girouard

Superior Court of Maine, Cumberland

July 20, 2018

GARY C. SEARLES Plaintiff
v.
STEVEN GIROUARD and LINDA GIROUARD Defendants

          MICHAEL G FRIEDMAN ATTORNEY FOR GARY C SEARLES

          TIMOTHY BRYANT, BENJAMIN S PIPER ATTORNEY FOR LINDA GIROUARD AND STEVEN GIROUARD

          ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          NANCY MILLS JUSTICE

         Before the court is plaintiff Gary C. Searles's motion for preliminary injunction. Plaintiff requests the court enjoin defendants to cease all site work on their property during the pendency of this lawsuit. For the following reasons, the motion is denied.

         Background

         Defendants Steven and Linda Girouard own property (the property) in the town of Harrison, Maine. (Searles Aff. ¶ 3.) The property is situated in the Ridgeview (Phase III) Subdivision. (Searles Aff. ¶ 3.) Defendants acquired their interest in the property from plaintiff Gary Searles by deed dated October 16, 2009. (Searles Aff. ¶ 4.) This deed was later recorded in the Cumberland County Registry of Deeds in Book 27338, Page 192 on October 22, 2009. (Searles Aff. ¶ 4.)

         All lots in the Ridgeview Subdivision are subject to a Declaration of Restrictive Covenants dated October 15, 2009 (the Declaration). (Searles Aff. ¶ 6.) The Declaration was recorded in the Cumberland County Registry of Deeds on October 22, 2009 in Book 27338, Page 187. (Searles Aff. ¶ 6.) The Searles to Girouard deed states that the property "is subject to the Declaration of Restrictive Covenants for Ridgeview (Phase III) Subdivision, Harrison, Maine recorded in Book 209, Page 308 .. . ." (Searles Aff. ¶ 7).

          Plaintiff contends that the book and page numbers listed in the Girouards' deed are incorrect and the result of a scrivener's error made by Robert Neault, the defendants' title attorney. (Searles Aff. ¶ 8.) Book 209, Page 308 is the same book and page number in which the legal description of the property is recorded. (Girouard Aff. ¶ 8; Girouard Aff. Ex. B; Searles Aff. Ex. A.)

         The Declaration contains the following two provisions:

2. Construction of any building shall not be commenced on any lot until the Declarant issues a certificate approving the plan for such building and the location thereof. Declarant shall approve any building plans which in its reasonable discretion (a) reflect an architectural design that is unobtrusive in form and color in relation to the natural setting and (b) specify a suitable location for building within the lot.
12. Declarant reserves the right to perform any site work on the premises including site preparation, excavation for foundations, installation of septic systems, and related work, so long as Declarant's price for any such site work is equal to or less than the price for comparable site work which may be performed by other site contractors having comparable expertise as Declarant.

(Searles Aff. ¶¶ 12, 16; Searles Aff. Ex. C.)

         In 2017, defendants began the process of building a home on the property and hired plaintiff to perform lot clearing and excavation work. (Girouard Aff. ¶ 10.) Defendants were not satisfied with the quality of work performed by plaintiff, the cost of which also exceeded plaintiff's original quotes. (Girouard Aff. ¶ 11.) Work performed by plaintiff on other subdivision lots also did not meet defendants' standards. (Girouard Aff. ¶ 11.)

         In late 2017, defendants hired another construction company to grade their lawn and driveway. (Girouard Aff. ¶ 13.) Defendants neither contacted plaintiff about performing this work nor allowed plaintiff to review the contractor's price, scope of work or experience. (Girouard Aff. ¶ 14; Searles Aff. ¶ 17.) After the contractor began work, plaintiff directed defendants to cease work on their property due to their failure to contact plaintiff about performing the work. (Girouard Aff. ¶ 17.) Defendants directed the contractor to cease work on the project and requested that plaintiff submit a bid on the project including the type of machinery that would be used to perform the work. (Girouard Aff. ¶¶ ...


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