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Searles v. Girouard

Superior Court of Maine, Cumberland

July 24, 2018

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

          ORDER ON DEFENDANTS' MOTION TO DISMISS

          Nancy Mills Justice

         Before the court is defendants Steven Girouard and Linda Girouard's motion to dismiss pursuant to M.R. Civ. P. 12(b)(6). For the following reasons, the motion is denied.

         Background

         Defendants Steven and Linda Girouard own property (the property) in the town of Harrison, Maine. (Pl.'s Compl. ¶ 4.) The property is located in the Ridgeview (Phase III) Subdivision. (Pl.'s Compl. ¶ 6.) Defendants acquired their interest in the property from plaintiff Gary Searles by deed dated October 16, 2009. (Pl.'s Compl. ¶ 5.) This deed was recorded in the Cumberland County Registry of Deeds on October 22, 2009. (Pl.'s Compl. ¶ 5.)

         All lots in the Ridgeview Subdivision, including defendants' lot, are subject to a Declaration of Restrictive Covenants dated October 15, 2009 (the declaration). (Pl.'s Compl. ¶ 7.) The declaration was recorded in the Registry of Deeds on October 22, 2009 in Book 27338, Page 187. (Pl.'s Compl. ¶ 7.) 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 . . . ." (Pl.'s Compl. ¶ 8.) The book and page number listed in the Searles to Girouard deed is incorrect and the result of a scrivener's error made by defendants' title attorney. (Pl.'s Compl. ¶ 9.) The title insurance policy issued to defendants included a coverage exception for the declaration and identified the correct book and page number in which the declaration is recorded. (Pl.'s Compl. 5 10.)

         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.

(Pl.'s Compl. ¶¶ 12, 16.)

         Defendants have commenced construction of a garage and driveway on the property. (Pl.'s Compl. 5 13.) Defendants have not provided plaintiff with a copy of their building plans. (Pl.'s Compl. 5 14.) Defendants have not contacted plaintiff about performing the site work and have not given plaintiff the opportunity to bid on the work. (Pl.'s Compl. ¶¶ 17, 18.)

         Standard of Review

         When reviewing a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), the court "examine[s] the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." In re Wage Payment Litig. v. Wal-Mart Stores, Inc., 2000 ME 162, ¶ 3, 759 A.2d 217. The court accepts as true the factual allegations in the complaint and "do[es] not address the credibility, or the provability, of [the] allegations." Nadeau v. Frydrych. 2014 ME 154, 5 8, 108 A.3d 1254. "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Johanson v. Dunnington. 2001 ME 169, ¶ 5, 785 A.2d 1244.

         Discussion

         Defendants argue that as a matter of law the deed does not reflect an intent of the parties to be bound by the declarations that plaintiff seeks to enforce.[1] Specifically, defendants argue that no ambiguity arises from the deed's reference to a declaration recorded in Book 209, Page 308 and therefore extrinsic evidence may not be introduced to ascertain whether the parties intended to be bound by the declaration recorded in Book 27338, Page 187. Defendants further argue that plaintiff fails to ...


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