Techentin v. Green

ee

TE OF MAINE

Ww se, County superior COUSL SPERTOR COURT

a

STATE OF MAINE.

WALDO, ss Docket No. CV-99-27

SEP - 4 aged PTF - WAL- 9/1 W20a

2 -

DEBORAH W. TECHENTIN, REC'D AND FILED

Plaintiff, joyce M. Page: 2°

)

Vv. ) ORDER ON MOTION

) FOR SUMMARY JUDGMENT

WALTER C. GREEN and )

MARIKA K. GREEN, ) TITLE TO REAL ESTATE INVOLVED

Defendants. )

This matter is before the Court on Plaintiff's Motion for Partial Summary

Judgment on Count I of Plaintiff's Amended Complaint. Plaintiff's Motion for

Partial Summary Judgment on Defendant’s Counterclaim was granted on June 8,

2000.

FACTS

The following facts are undisputed: Title to each parties’ own real property

and the fact that there were no buildings on defendants’ property when they

received title. Defendant is constructing a primary residence on lot one.

The following additional facts are disputed and are viewed most favorably to

Defendant: Defendants’ violation of restrictive covenant one, seven, eight, and ‘ten.

Defendants’ compliance with the plumbing code. Defendants’ additional

undisputed facts are either irrelevant, insufficient to establish a genuine issue of

material fact, or not in compliance with the rules.

DISCUSSION

A party is entitled to summary judgment if there are no genuine factual

disputes and the party on the undisputed facts is entitled to judgment as a matter of

l

law. M.R.Civ.P. 56(c). The Court must review the evidence in the light most

favorable to the nonmoving party. Northeast Coating Techs., Inc. v. Vacuum

Metallurgical Co., Ltd., 684 A.2d 1322, 1324 (Me. 1996). Because Plaintiff would have

the burden of proof at trial, however, she must produce evidence sufficient to

establish a prima facie case for each element of each cause of action advanced. Id.

The party opposing a motion for summary judgment is “obligated to produce

specific controverting facts exposing the existence of a genuine issue.” Id. at [7

(quoting Cloutier, Barrett, Cloutier & Conley, P.A. v. Wax, 604 A.2d 42, 44 (Me.

1992)). Failure to controvert specific paragraphs in the moving party’s statement of

material facts constitutes noncompliance with MLR. Civ. P. 7(d)(2) and will result in

the facts not properly controverted being deemed admitted. Prescott v. State Tax

Assessor, 721 A.2d 169, 172 Me. 1998).

Defendant Marika Green does not object to entry of summary judgment on

Count I of the Amended Complaint.

Plaintiff has established a violation of restrictive covenant one prohibiting

commercial use of the property by referencing deposition testimony. That -

testimony establishes Mr. Green’s commercial use of the property for Red Bear

Logging Company. Walter Green testified that: “I have loaded, parked the truck

next to, adjacent to my property, and on the subdivision road [overnight] with

timber ready to go to the mill.” (Plaintiff’s Undisputed Statement of Facts - Ex. C -

Dep. T. at 28, 1. 2-7). Green admits that he sharpens the chain saw on the vice in the

shop for his business, changes tires and oil, repairs the bed, replaces hydraulic hoses,

and inspects the operation of vehicles on the lot (Plaintiff’s Undisputed Statement

of Facts - Ex. C - Dep. T. at 28, 1. 8-24).

Defendant submitted letters attempting to establish that logging work was

done off-site, however, his own testimony establishes that he maintains and stores

equipment on lot one. Walter Green’s claims that commercial use is not prohibited

by the restrictive covenants or comes under ordinary emergency uses are not

supported by the record nor in case law. See Bennett v. Tracy, 740 A.2d 571 (Me.

1999) (holding restrictive covenant in deed, limiting use of property to only purpose

of erecting one single family residence and outbuildings appropriate to residence,

unambiguously prevented commercial use of primary structure built on property).

Plaintiff also establishes by deposition testimony that Defendant violated

restrictive covenant number seven by not completing construction within eighteen

months from the start of construction. Defendant’s statement of undisputed fact

five states he commenced structure in 1992. Defendant’s obtained a building permit

in 1994. Marika Green testified the foundation was dug approximately five years

ago. (Plaintiff's Undisputed Statement of Facts - Ex. B - Dep. T. at 18, 1. 3-16). -

Defendant, Walter Green, testified, that the house construction was ongoing in 1997,

and that 2,000 board feet of lumber was used for posts, floor joist beams, floor joists,

and sills in 1998 and 1999 (Plaintiff's Statement of Undisputed Facts - Ex. E - Dep. T.

at 22, 1.5.).

:

Mr. Walter’s claim that the preliminary injunction, issued by the District

Court upon the parties’ filing for divorce, prevented him from changing the real

estate is of no moment. Even if the injunction affects Defendant’s construction

progress, Plaintiff has established a violation of restrictive covenant seven based on

Defendants’ own testimony and Green’s argument fails to establish a genuine issue

of material fact.

Occupation of the cottage and shop prior to connection to the septic system is

established by both Defendants’ testimony. In fact, Walter Green admits having

violated the plumbing code by using an outhouse (Plaintiff’s Statement of

Undisputed Facts - Ex.G- Dep. T. at 5, 1. 1-15).

Defendant’s letter from the plumbing inspector indicates that plumbing

violations may be remedied. That letter, however, is not an affidavit and is not

proof upon which this Court may rely in finding a genuine issue of material fact.

MLR. Civ. P. 56(c).

Finally, Defendants have failed to raise a genuine issue of material fact to

rebut Defendants’ violation of restrictive covenant ten. Defendant admits parking

vehicles greater than three quarter tons on or near lot one. (Plaintiff’s Statement of

Undisputed Facts - Ex. G. - Dep. T. at 8, 1. 1-24). Letters submitted in attempts to’

justify the use of equipment in the subdivision are not in affidavit or proper form

pursuant to M.R. Civ. P. 56(c). Even if the letters were in proper form, the

information is insufficient to rebut Defendant’s admission establishing his

violation of the restrictive covenants.

The Court finds that the meager evidence proffered by Defendant is not

enough. Furthermore, Defendant's opposition does not comply with MLR. Civ. P.

7(d)(2) as it does not controvert specific paragraphs in plaintiff's statement of

undisputed facts. Plaintiff’s statement of undisputed facts are deemed admitted.

Defendant’s statement is unsupported speculation which does not generate a

genuine issue of material fact to preclude summary judgment for plaintiffs. MLR.

Civ. P. 7(d)(2).

The docket entry is:

Plaintiff's Motion for Partial Summary Judgment on Count I of Plaintiff’s

Amended Complaint is GRANTED.

Defendant is enjoined from violating restrictive covenants one, eight and

ten.

Defendant shall comply with restrictive covenant seven no later than

six months from the date of this Order.

Dated: B31 | 9.09 Je T\ Wrst

oe

Hon. Paul Pierson

JUSTICE, SUPERIOR COURT