Opinion
Civil Action RE-15-246
03-22-2017
APPLETREE COTTAGE, LLC, Plaintiff, v. CHRISTOPHER BOND Defendant.
ORDER
Thomas D. Warren Justice, Superior Court
Before the court is defendant Christopher Bond's motion for partial summary judgment seeking dismissal of the claims for declaratory and injunctive relief asserted against him by plaintiff Appletree Cottage, LLC. The court has previously ruled on Appletree's motion to dismiss Bond's counterclaims in an order dated July 28, 2016. Regardless of the outcome of this motion, Bond's counterclaims for common law trespass and nuisance currently remain for trial.
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficierft to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.
This is the kind of case that gives summary judgment a bad name. Although the statements of material fact include an excess amount of quibbling over immaterial issues (particularly by, but not limited to, Bond in his 38-page Reply SMF), the court is able to discern whether there are disputed issues for trial.
Three issues are presented on Bond's motion for summary judgment. The first is whether there is a genuine dispute for trial as to whether Bond is making any use of the garage on his property that violates a restrictive covenant placed on the property by the former owner.
On that issue the court concludes that, under any interpretation of the restrictive covenant, there is no evidence of any use by Bond that would violate the covenant's requirement that the garage (referred to as the "Outbuilding" in the covenant)
As discussed below, there is a dispute between the parties as to whether the covenant is ambiguous and whether, for purposes of this motion, Bond can concede that the covenant is unambiguous.
shall not be used for any use other than as a residential garage, shall at no time be occupied as a dwelling or place of habitation of any kind and shall not be used for any commercial or industrial use whatsoever or any other use which is not permitted under the zoning ordinances of the Town of Cape Elizabeth.This follows from the undisputed facts in Bond SMF ¶¶ 14-18, 20 (admitted). The storage of construction materials and tires in a garage (Bond SMF ¶ 20) does not constitute a non-garage use. Moreover, while Bond's insertion of a partition to create a space in the garage that is separate from the garage bay itself (Appletree Statement of Additional Material Facts ¶¶ 46-49) may theoretically provide Bond with the ability to use the garage in a manner that would violate the covenant, the insertion of a partition does not violate the covenant unless the partitioned space is in fact "used" in violation of the covenant.
The second issue is whether Bond's renovation of the garage by inserting a chimney for a wood, stove constitutes a violation of the restrictive covenant that no fixtures or appurtenances shall be attached to the Outbuilding which would extend beyond the existing height, width or length of the building.
On this issue there is a disputed issue of fact based on Egan's deposition testimony that he does not recall any chimney on the structure prior to the chimney installed by Bond. Egan Dep. 49, 79-80, cited in Appletree's response to Bond SMF ¶ 9. However indistinct Egan's recollection may be on that point and regardless of the strength of any opposing evidence, on a motion for summary judgment all inferences must be drawn in favor of the party opposing summary judgment.
Whether the prior owner had installed a chimney and if so, whether Bond's chimney exceeds the prior chimney in height are issues for trial.
The remaining dispute between the parties is whether it is proper for Bond to argue that for purposes of his motion the court can assume that the restrictive covenant is unambiguous even though Bond has elsewhere argued the contrary. Appletree contends that this is not appropriate. The court disagrees. As discussed above, without having to determine whether the restrictive covenant is vague or ambiguous as applied to other proposed uses, the court has found above that, on the existing summary judgment record, Bond's current use of the garage does not violate the covenant.
E.g., Amended Counterclaim ¶ 51.
As far as the court can tell, Appletree's primary argument is that the court should resolve all disputes relating to the restrictive covenant because Appletree is seeking a declaratory judgment and because the court has construed count VI of Bond's counterclaim as possibly seeking a declaratory judgment. However, the court ultimately decided that count VI should be treated as a defense pursuant to M.R.Civ.P. 8(c). July 28, 2016 order at 6.
On the current record, with the exception of whether Bond's installation of a chimney violates the restrictive covenant, the court does not perceive that there is currently a justiciable controversy. As noted above, Bond's renovations of the garage may provide the possibility of uses that would require interpretation of the restrictive covenant and require the court to resolve whether in light of a specific use the restrictive covenant is too ambiguous to be enforced. On the current state of the record, however, all of the arguments (except those relating to the chimney) involve hypothetical future uses that are not susceptible to resolution through a declaratory judgment. See Ten Voters of the City of Biddeford v. City of Biddeford, 2003 ME 59 ¶ 7, 822 A.2d 1196. The decision to entertain a declaratory judgment action is discretionary, Linnehan Leasing v. State Tax Assessor, 2006 ME 33 ¶ 30, 898 A.2d 408, and the court would decline to entertain a declaratory judgment action with respect to hypothetical future uses that Bond might make of the garage.
Appletree's primary concern seems to be that Bond will attempt to use the garage to provide sleeping accommodations notwithstanding the restrictive covenant's limit on any use of the garage as "a dwelling or place of habitation." This stems from Bond's initial desire to put a bedroom in the garage. However, Bond has testified that once he learned of the restrictive covenant, he abandoned that idea and instead designed and built two accessory structures to accommodate extra living and bedroom space. Bond Dep. 69-71. Appletree has challenged those accessory structures in a separate lawsuit (AP-15-45) that is now on appeal to the Law Court.
At this time, as the court understands it, what remains for trial are Appletree's claim that the garage chimney violates the restrictive covenant, Bond's counterclaim for common law trespass, and Bond's counterclaim for nuisance. The court has previously expressed some doubt as to whether Bond's nuisance claim is viable and would expect some further briefing on that issue at the time of trial.
July 28, 2016 order at 3-4.
The entry shall be:
Defendant Christopher Bond's motion for summary judgment dismissing the claims of plaintiff Appletree Cottage, LLC is granted with respect to the issue of whether Bond's current use of his garage violates the restrictive covenant and is denied with respect to whether the chimney installed by Bond on the garage violates the restrictive covenant. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).