Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-15-246
07-28-2016
APPLETREE COTTAGE LLC, Plaintiff, v. CHRISTOPHER BOND Defendant.
STATE OF MAINE
CUMBERLAND, ss ORDER
Before the court are the following motions:
(1) a motion by plaintiff Appletree Cottage LLC and third party defendants Thomas Egan and Captain Elliott LLC to dismiss counts II through VI of defendant Christopher Bond's amended counterclaim and his amended third party complaint;
(2) a Rule 56(f) motion by Appletree to stay any response to Bond's motion for summary judgment pending discovery.
1. Motion to Dismiss
For purposes of a motion to dismiss, the material allegations of the counterclaim must be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ¶ 2, 54 A.3d 710. The counterclaim must be read in the light most favorable to Bond to determine if it sets forth elements of a cause of action or alleges facts that would entitle Bond to relief pursuant to some legal theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 101. Dismissal is appropriate only when it appears beyond doubt that Bond would not be entitled to relief under any set of facts that he might prove in support of his claim. Moody v. State Liquor & Lottery Commission, 2004 ME 20 ¶ 7, 843 A.2d 43. However, Bond may not proceed if the counterclaim fails to allege essential elements of the cause of action. See Potter, Prescott, Jamieson & Nelson P.A. v. Campbell, 1998 ME 703 ¶¶ 6-7, 708 A.2d 283.
The causes of action set forth in Bond's counterclaim and his third party complaint are essentially identical. Moreover, Bond's claims against Egan and Captain Elliott LLC are not proper third party claims. M.R.Civ.P. 14(a) allows a defendant to assert claims as a third party plaintiff against a person "who is or may be liable to such third party plaintiff for all or part of the plaintiff's claim against the third party plaintiff." In this case Bond is not contending that Egan and Captain Elliott LLC should be found liable to him if Bond is found liable to Appletree but is instead asserting independent claims against Egan and Captain Elliott LLC. Rather than third party defendants, Egan and Captain Elliott LLC are more properly considered to be additional parties on Bond's counterclaim pursuant to M.R.Civ.P. 13(h).
2. Count II - Statutory Trespass
In Count II of Bond's amended counterclaim and third party complaint, Bond asserts a statutory trespass claim under 14 M.R.S. § 7551-B. He has also brought a common law trespass claim in Count I of the amended counterclaim and third party complaint. On the instant motion Appletree and the third party defendants are not challenging the common law trespass claim but are seeking dismissal of the statutory trespass claim.
14 M.R.S. § 7551-B provides a statutory trespass cause of action for specifically enumerated damages. While damage need not be proven to recover at least nominal damages for common law trespass, proof of damages is an essential element of a statutory trespass claim. See Medeika v. Watts, 2008 ME 63 ¶ 6, 957 A.2d 980. Bond has not alleged any of the damages specifically enumerated in § 7551-B and count II of the amended counterclaim and third party complaint is therefore dismissed.
It applies if a person enters on the property of another without permission and "damages or throws down any fence, bar or gate; leaves a gate open; breaks glass; damages any road, drainage ditch, culvert, bridge, sign or paint marking, does other damage to any structure [on the property] or throws, drops, deposits, discards, dumps or otherwise disposes of litter" on the property. 14 M.R.S. § 7551-B(1).
Count III - Nuisance
Bond alleges that Appletree has interfered with the use and enjoyment of Bond's property. A review of the allegations in his amended counterclaim and third party complaint demonstrates that the only factual allegations that could be encompassed within a claim for nuisance are assertions that Appletree has insisted that no contractor may work on an easement leading to Bond's properly without Appletree's express permission. Amended Counterclaim ¶¶ 28-29; Amended Third Party Complaint ¶¶ 30-31.
This is also the basis for count IV of the amended counterclaim and third party complaint, discussed immediately below.
If Bond's easement rights are being wrongfully interfered with, he would have a claim for injunctive relief. Notably, however, Bond's claim for injunctive relief does not seek any relief for the alleged interference with his easement rights. See Amended Counterclaim ¶¶ 50-51; Amended Third Party Complaint ¶¶ 52-53.
It is less clear that his allegations are legally sufficient to state a claim for damages based on nuisance. Nuisance consists of "the use of one's own property" in a manner that causes injury to another's interest in the use and enjoyment of his property. Johnson v. Maine Energy Recovery Co. LP, 2010 ME 52 ¶ 15, 997 A.2d 741, quoting Norcross v. Thoms, 51 Me. 503, 504 (1863). In every case of which the court is aware, nuisance has involved the physical use of the tortfeasor's property in a manner that interferes with a neighbor's property rights. See, e.g., Johnson v. Maine Energy Recovery Co. LP, 2010 ME 52 ¶ 1 (emission of odors); Rutland v. Mullen, 2002 ME 98 ¶¶ 3, 18, 798 A.2d 1104 (parking of cars on tortfeasor's property to block access to easement). The court is not aware that insistence on a purported legal right can constitute a nuisance but is also not aware of authority to the contrary.
The other elements of nuisance - (1) either intent to interfere with use and enjoyment of land or full knowledge that harm to another's use of land is substantially certain to follow, (2) interference substantial enough to reduce the value of the land, and (3) interference that was unreasonable in duration or extent, see Johnson, 2010 ME 52 ¶ 15 - have been adequately pleaded. Whether Bond will be able to prove those elements, particularly that the alleged interference was sufficiently substantial and unreasonable, is an issue for summary judgment or trial.
At this time, therefore, the court will deny the motion to dismiss as to Count III of the amended counterclaim and third party complaint to the extent that Bond is seeking damages for alleged interference with his easement rights.
Count IV - Tortious Interference with Easement Rights
Count IV of the amended counterclaim and third party complaint alleges a claim for "common law tortious interference" with easement rights. Bond has not cited any authority for the existence of a common law claim of tortious interference with easement rights, and the court is not aware of any. In any event, such a claim is subsumed by Bond's nuisance claim. Count IV is dismissed for failure to state a claim.
Count V - Tortious Interference with Contractual Relationships
In Maine a claim for tortious interference with a contractual or advantageous economic relationship requires proof of interference through the use of fraud or intimidation. Rutland v. Mullen, 2001 ME 98 ¶¶ 13-16. Bond alleges that Appletree, Egan, and Captain Elliott LLC used fraud and intimidation to have Bond's predecessor in title, Russell Wright, agree to a restrictive covenant which forms the basis for Appletree's claim against Bond in this action.
Specifically the fraud and intimidation claimed by Bond consists of allegations that Appletree, Egan, and Captain Elliott LLC coerced Wright to sign the restrictive covenant by threatening legal action to have an outbuilding that Wright was building torn down. The Law Court has held that a person who claims to have or threatens to protect a property right that the person believes to exist cannot be found to have engaged in fraud or intimidation even if the property right is later proved invalid. Rutland v. Mullen, 2002 ME 98 ¶ 16. In this case, however, Bond alleges that Appletree and the third party defendants knew that they did not have any legal power to force Wright to tear down the outbuilding. Amended Counterclaim ¶ 17; Amended Third Party Complaint ¶ 19.
Nevertheless, Bond does not have standing to seek damages on his own behalf based on allegations that his predecessor in title was the victim of fraud or intimidation. Count V therefore fails to state a claim on which relief can be granted to Bond.
Count VI - Injunctive Relief
In Count VI of his amended counterclaim and third party complaint Bond seeks what he characterizes as injunctive relief although it appears that he is actually seeking declaratory relief. This involves two issues: (1) Bond's claim that the Restrictive Covenant held by Appletree was void ab initio because it was obtained from Russell Wright by fraud and/or intimidation and (2) his claim that aspects of the Restrictive Covenant are too vague and ambiguous to be enforced. Amended Counterclaim ¶¶ 50-51; Amended Third Party Complaint ¶¶ 52-53.
Initially, because the restrictive covenant is held by Appletree and not Egan or Captain Elliott LLC, Egan and Captain Elliott LLC are not proper parties on Count VI.
Secondly, the issue of whether the restrictive covenant is too vague and ambiguous to be enforced is more properly an affirmative defense to Appletree's complaint rather than a counterclaim. On the face of the pleadings, Bond is entitled to raise that defense. See M.R.Civ.P. 8(c) (if a party has mistakenly designated a defense as a counterclaim, the court shall treat the pleading as if the defense had been properly designated). Appletree's motion to dismiss is denied as to that aspect of Count VI.
The Restrictive Covenant is attached to the complaint and Appletree suggests that the court can read the covenant and conclude that it is sufficiently definite and clear to be enforceable. See Moody v. State Liquor and Lottery Commission, 2004 ME 20 ¶¶ 9-10, 843 A.2d 43. Without knowing exactly what is disputed between the parties, however, the court is hesitant to assess the restrictive covenant in the abstract.
The remaining issue under Count VI involves Bond's claim that the restrictive covenant is unenforceable because it was obtained by fraud and/or intimidation against his predecessor in title. This is also properly considered as an affirmative defense rather than an independent claim. On the issue of whether a restrictive covenant can be invalidated due to alleged duress or intimidation, the Restatement of Contracts is clear that contract obtained by improper threats are not void but voidable and that they are voidable "by the victim" of the improper threat. Restatement (Second) Contracts § 175; see id. cmt d. Bond does not contend that he was the victim of the alleged duress.
Similarly on the issue of whether a restrictive covenant can be invalidated due to alleged fraud or misrepresentation, the Restatement is clear that contracts that are induced by fraud or misrepresentation are voidable "by the recipient" of the alleged misrepresentation. Restatement (Second) Contracts § 164. Bond does not contend that he was the recipient of the alleged misrepresentation.
Accordingly, Bond does not have standing to assert that the restrictive covenant is voidable due to duress, improper threats, fraud, or misrepresentation against his predecessor in title. This does not appear to be inequitable because a purchaser would have been aware of the restrictive covenant when the property was purchased and any limitations that the restrictive covenant placed on the property would have been priced in at the time of purchase.
Appletree's Rule 56(f) Motion
Bond's summary judgment motion is based on his own affidavit, which asserts that he is not in violation of the restrictive covenant. Appletree promptly filed a Rule 56(f) motion pointing out that it had served a number of discovery requests, that many were still outstanding, and that relevant evidence as to whether there has been any violation of the restrictive covenant was in the possession of Bond and a contractor performing renovation work for Bond. Appletree's Rule 56(f) motion complies with the rule as interpreted in Bay View Bank N.A. v. Highland Golf Mortgagees Realty Trust, 2002 ME 178 ¶ 22, 814 A.2d 449, and has convinced the court that Appletree needs the requested discovery in order to respond to Bond's motion for summary judgment.
In addition to filing a Rule 56(f) motion, Appletree originally opposed Bond's motion because there was no separate statement of material facts and because Bond's affidavit did not state that it was on personal knowledge. Bond thereafter filed a second affidavit and a separate Rule 56(h) statement to correct those deficiencies. --------
Some time has now passed since the filing of Appletree's Rule 56(f) motion and the issuance of this order. The discovery requested by Appletree may have been provided during the interim. Accordingly, the clerk shall undertake to schedule a telephone or in person conference to determine the future scheduling of a response to the summary judgment motion. The entry shall be:
1. The motion by plaintiff and the third party defendants to dismiss Counts II, IV, and V of the amended counterclaim and third party complaint is granted.
2. The motion to dismiss Count III of the amended counterclaim and third party complaint is denied.
3. The motion to dismiss Count VI of the amended third party complaint is granted as to third party defendants Egan and Captain Elliott LLC.
4. To the extent that defendant contends that the restrictive covenant is too vague and ambiguous to be enforced, plaintiff's motion to dismiss Count VI of the counterclaim is denied. That aspect of Count VI will be treated as an affirmative defense.
5. To the extent that defendant contends that the restrictive covenant cannot be enforced because it was obtained by fraud and/or intimidation against defendant's predecessor in title, Count VI of the counterclaim is dismissed.
6. Plaintiff Appletree Cottage LLC's Rule 56(f) motion to stay its obligation to respond to defendant Bond's pending motion for summary judgment is granted. Once plaintiff has had the opportunity to conduct discovery to obtain evidence that is within the possession, control, or knowledge of defendant Bond or third parties affiliated with Bond, the court will set a schedule for the filing of opposition papers to the pending motion for summary judgment.
7. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: July 28, 2016
/s/_________
Thomas D. Warren
Justice, Superior Court