GARY C. SEARLES Plaintiff
STEVEN GIROUARD and LINDA GIROUARD Defendants
ORDER ON DEFENDANTS' MOTION TO DISMISS
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.
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.)
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.)
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.)
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.)
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
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. 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 ...