# Muther v. Broad Cove Shore Ass'n

> Superior Court of Maine · September 14, 2007

URL: https://www.frixlaw.com/law-library/cases/10808836

## Case

- **Court:** Superior Court of Maine
- **Decided:** September 14, 2007
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Robert E. Crowley
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808836

## Opinion text

'-~ .~ b 0 F ;' :'1 f\ i ~i ~~~
STATE OF MAINE ~~U~~8ERLAHD.~~S SUPERIOR COURT
CUMBERLAND, ss CLERK'S OFfiCE CIVIL ACTION

1001 SEP 14 P 3' 5~~~~~ ~°tA~~~f;~
HELEN MUTHER and PAUL WOODS,
Trustees of the BUFFETT COASTAL TRUST
Plaintiffs
ORDER ON MOTION FOR
v. SUMMARY JUDGMENT
ON COUNT IX OF
BROAD COVE SHORE ASSOCIATION, and AMENDED COMPLAINT
BETH ELLEN HESS, and
LESLIE B. CONNOLLY, DONALD L. GARB RECHT
Defendants !,Jl \M U PJ? /\ - ,

JAN 1 5 2008

Before the Court is the Plaintiffs Helen Muther and Paul Woods', Trustees of the

Buffett Coastal Trust, Motion for Summary Judgment on Count IX of their Amended

Complaint.

BACKGROUND

The Plaintiffs Helen Muther and Paul Woods, Trustees of the Buffett Coastal

Trust, (the "Plaintiffs") commenced this litigation in November 2005. The Plaintiffs own

a parcel of land and the house thereon in Cape Elizabeth, Maine. Their land is burdened

by an easement. The Plaintiffs brought suit to determine, inter alia, the scope of the

easement and who has the right to use it and for what purposes. The Defendants include

the Broad Cove Shore Association, known by various names throughout its existence

(jointly, the "Association"), a Maine non-profit corporation that represents the owners of

243 lots who claim rights in the easement; Beth Ellen Hess, the President of the

Association and a homeowner in one of the subdivisions that the Association represents;
and Leslie Connolly, a homeowner in another subdivision of the Association. The

Association includes owners of lots in the J-lot Plan subdivision (which appears to

consist of approximately twenty lots) who have individually deeded rights to the

easement at issue, but who were not named as individual defendants in this case with the

exception of Beth Ellen Hess. The remaining lot owners in the Association have rights to

the easement only via the Association.

A judicial settlement conference was held on November 29, 2006 before Superior

Court Justice Carla. Bradford. At the settlement conference, the parties negotiated for

more than seven hours before reaching an agreement that was entered on the record. On

the record, parties on both sides confirmed that they had full authority to agree to the

terms of the settlement agreement, including Beth Ellen Hess and Peter Connolly as

directors for the Association who stated, via counsel, that they had authority to act for the

Association.

Thereafter, the Plaintiffs drafted a Stipulated Judgment purporting to be a

memorialization of the agreement reached at the settlement conference. The Defendants

objected to this Stipulated Judgment and refused to sign it, arguing that it does not

accurately reflect the terms discussed at the settlement conference. The Plaintiffs also

allege that the Defendants have failed to comply with the terms agreed to at the

settlement conference. The Defendants argue that the settlement conference produced no

legally binding agreement, but rather a mere agreement to agree or an agreement in

principle. The Defendants also claim that an error in punctuation was made in the

transcript of the recording of the settlement conference and that this error involves a

2
material term over which the parties disagree. l A subsequent conference between the

parties and Justice Bradford in April 2007 resolved some minor disagreements the parties

had concerning the settlement agreement, but did not resolve several other issues.

On May 3, 2007, this Court (Crowley, 1.) granted permission to the parties to

amend their pleadings to add a claim for breach of the settlement agreement. The

Plaintiffs timely filed an Amended Complaint and thereafter brought the present Motion

for Summary Judgment on Count IX of the Amended Complaint. Count IX is the claim

for breach of the settlement agreement. The Defendants answered the Amended

Complaint and also filed an Opposition to the Plaintiffs' Motion for Summary Judgment.

STANDARD OF REVIEW

Summary judgment is proper where there exist no genuine issues of material fact

such that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

Arrow Fastener Co., Inc. v. Wrabacon, Inc., 2007 ME 34, ~ 15,917 A.2d 123, 126. "A

court may properly enter judgment in a case when the parties are not in dispute over the

[material] facts, but differ only as to the legal conclusion to be drawn from these facts."

Tondreau v. Sherwin-Williams Co., 638 A.2d 728, 730 (Me. 1994). A genuine issue of

material fact exists "when the evidence requires a fact-finder to choose between

competing versions of the truth." Farrington's Owners' Ass 'n v. Conway Lake Resorts,

Inc., 2005 ME 93 ~ 9, 878 A.2d 504, 507. An issue of fact is material if it "could

potentially affect the outcome of the suit." Id. An issue is genuine if "there is sufficient

evidence to require a fact-finder to choose between competing versions of the truth at

trial." Lever v. Acadia Hasp. Corp., 2004 ME 35, ~ 2,845 A.2d 1178, 1179. If

1 To date, the parties have not been afforded an opportunity to challenge the accuracy of
the written transcript of the agreement that was entered on the record.

3
ambiguities exist, they must be resolved in favor of the non-moving party. Beaulieu v.

The Aube Corp., 2002 ME 79, ~ 2, 796 A.2d 683, 685.

DISCUSSION

The Defendants make two arguments that the Motion for Summary Judgment

should be denied. First, they argue that the Stipulated Judgment prepared by the

Plaintiffs is not binding on them and that they are not obligated to sign the Stipulated

Judgment. Second, the Defendants maintain that the agreement reached at the settlement

conference and put on the record on November 29,2006 is not a legally enforceable

agreement but rather an agreement only in principle.

This Court agrees with the Defendants as to their argument that the Stipulated

Judgment is not binding on them. Indeed, there is simply no evidence that the Defendants

agreed to this particular memorialization of the terms reached at the settlement

conference. Moreover, the Plaintiffs appeared to abandon the argument that the

Stipulated Judgment is a binding agreement both in their later pleadings and in oral

arguments at the motion hearing. Accordingly, the Stipulated Judgment is of no legal

effect and is not binding on any of the parties to this litigation.

The Court disagrees, however, with the Defendants' argument that they are not

bound by the settlement agreement reached at the settlement conference as reflected in

the transcript of the conference. The Law Court has held that settlement agreements are

binding so long as the parties to the agreement intend to be bound by it. White v. Fleet

Bank ofMaine, 2005 ME 72, ~ 11,875 A.2d 680, 683. The determination of whether or

not the parties intend to be bound by a settlement agreement must be supported by

"competent evidence." Jd. In White, the Law Court found such competent evidence from

4
three witnesses who were present during negotiations and testified in an evidentiary

hearing that an enforceable agreement had been reached and who agreed as to the

material terms and who made references to the "agreement" in their post-mediation

correspondence. Id. ~ 12, 875 A.2d at 683.

There is competent evidence to find that an enforceable settlement agreement

exists in this case. Indeed, at the hearing on the Plaintiffs' Motion for Summary

Judgment, both sides admitted that they thought the matter was settled when the

settlement conference concluded on November 29,2006 and, according to the

Defendants, it was only later that they thought something else. As the White court relied

on the testimony of three witnesses to find competent evidence that the settlement

agreement was enforceable, here there is a transcript of the agreement that supports the

finding that the parties intended to be bound it.

The Defendants maintain that the settlement reached at the November 29,2006

conference should not be honored because it is not sufficiently definite and likely will

spawn new lawsuits to decipher what is meant by certain provisions of the settlement

agreement. While the Defendants may be correct on this point, it does not negate the

existence of the settlement agreement in the first place. Indeed, it appears that the parties

to this litigation do not really dispute that an agreement was reached at the settlement

conference; they simply disagree as to what certain terms in the settlement agreement

mean. Moreover, the transcript of the settlement conference reveals in several instances

that the parties understood that they were to be bound by the agreement reached that day.

For instance, before the parties placed the terms of their settlement on the record, Justice

Bradford stated that "the parties for the past seven plus hours have been engaged in

5
settlement conference here, and I'm pleased to report for the record that the parties have

reached an agreement." Transcript, page 2, lines 12-15. Justice Bradford then invited

counsel for either side to recite the agreed-upon terms "with the other side being free to

make any corrections [ ] or additions." Id., page 2, lines 15-19. The transcript makes

clear that the parties took Justice Bradford's encouragement to heart as each made several

clarifications. Via counsel, the Defendants made several comments throughout the

hearing that indicate that they were aware that they were producing a binding agreement:

"I just want to be clear that-that it~it was the plaintiffs in this case have agreed to mow

and maintain the easement. So, I just want to be clear-," Id., pages 10-11, lines 25, 1-2;

"I just want to get on the record that the-I don't know if it was clear or not the way you

were trying to set it up ... ," Id., pages 23-24, lines 25,1-2; "I just didn't want to find

myself getting closed out later on by saying that-that if the dog's out at the owner's feet

getting a leash on and it's dry land that-that they violated the-the agreement. .. ," Id.,

page 25, lines 21-24.

In addition to his opening statements, Justice Bradford made several other

comments throughout the hearing that reinforce the finding that a binding agreement was

being placed on the record. At one point, Justice Bradford stopped the proceedings when

he noticed one of the parties shaking his head and said, "You keep nodding your head

and shaking your head. We either have an agreement here or we do not .. .I'll stay here

until whatever time it takes to get this matter resolved." Id., page 19, lines 19-25. Most

importantly, at the close of the hearing, Justice Bradford asked each party separately

whether the terms as set forth at the hearing are "a fair representation of your

understanding of the agreement?" Id., pages 28-29. Each party answered Justice

6
Bradford affirmatively. ld. The foregoing, coupled with the fact that the parties

negotiated for over seven hours before making sure to record the terms of their settlement

negotiations, support the finding that the parties intended to be bound by the agreement

reached at the settlement conference.

Finally, the fact that the parties did not fix their agreement in written form even

though they may have intended to is not sufficient to find that there is no agreement.

Indeed, the Law Court has recognized that there are times when an oral contract exists

even if the parties have agreed that a written contract should be drafted and no such

written contract was ever made. See Clements v. Murphy, 125 Me. 105,107,131 A. 136,

137 (1925) (Law Court held that it would have upheld a finding by the jury that the

parties had an enforceable oral contract even though they had agreed that a written

contract should be drafted because the written contract would "only [be] a convenient

memorial of their previous completed oral contract"). Thus, while it appears that the

parties in the instant case expected to reduce the agreement reached at the settlement

conference to written form, the fact that they have been unable to agree on a written

contract does not negate the existence or enforceability of the oral agreement reached on

November 29, 2006.

Therefore, the entry is:

All parties shall have thirty (30) days from the entry of this Order to object
to the accuracy of the transcript of the agreement that was entered on the
record. The Plaintiffs' Motion for Summary Judgment on Count IX of the
Amended Complaint is hereby GRANTED unless the parties to this
litigation can agree to a Stipulated Judgment within sixty (60) days of the
entry of this Order. Should the parties be unable to reach a Stipulated
Judgment, the agreement reached at the settlement conference as reflected

7
in the transcript of said conference shall be binding upon all the parties to
this suit.

The clerk shall incorporate this Order into the docket by reference
pursuant to M.R. Civ. P. 79(a).

Dated at Portland, Maine this /~It-. day of ~ ,2007.

~
RoBertE:CfOWleY
Justice, Superior Court

8
: COURTS
nd County
ox 287
Ie 04112-0287

ANDREW SPAR..T<S ESQ - "-.D.p/ d- 6 ~ cI cf~
DRU}{MOND & DRUMMOND 0
ONE MONUMENT WAY
PORTLAND ME 04101

THOMAS MCKEON ESQ -~ 6)
RICHARDSON WHITMAN LARGE & BADGER
PO BOX 9545
PORTLAND ME 04112-9545

: COURTS
nd County
ox 287
Ie 04112-0287

JUDY METCALF ESQ
EATON PEABODY
PO BOX 9
BRUNSWICK ME 04011-0009
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
Docket No. RE-0,5-199
/'/M- (U..II\- Cbj3'1.-"f~otl
HELEN MUTHER,
et al.,

Plaintiffs

v. ORDER ON PLAINTIFFS'
MOTION FOR CONTEMPT
BROAD COVE SHORE
ASSOCIATION, et al.,

Defendants

Before the court is the plaintiffs' motion for contempt against defendant Broad

Cove Shore Association (2005). The court has considered the testimony, the exhibits,

the transcript of the settlement dated 11 I 29 I 06, and the arguments of counsel.

The court concludes that the defendant is in contempt of the terms of the parties'

settlement dated November 29, 2006. The defendant has failed or refused to perform

the acts required in spite of the ability to do so. M.R. Civ. P. 66(d)(2)(D)(i) & (ii). Even

accepting, for the purposes of argument only, the defendant's position that everything

was in flux until the plaintiffs' Rule 60(b) was withdrawn, the motion was withdrawn

two months prior to the hearing on the motion for contempt.

The following is ordered:

1. The defendant will pay a $2,000.00 fine to the Treasurer, State of Maine.

M.R. Civ. P. 66(d)(3)(B); State v. Dhuy, 2006 Me. Super. LEXIS 36, *7 (Feb. 16,

2006). Payment of the fine is stayed for 60 days from the date of this order to

allow the defendant to purge its contempt as follows:

a. By 9 I 12 I 11, the defendant will pay for the gate, fencing, and access

control system. (Pis.' Exs. 1-3.)

1
b. By 9 I 12 I 11, the defendant will provide to the plaintiffs a list of people

who paid the additional fees for the key card as of 7 I 1 I 07, 7 I 1 I 08,

7 I 1 I 09, 7 I 1 I 10, and 7 I 1 I 11.

c. Within 60 days of the date of this Order, the defendant will correct the

corporate deficiencies in the Broad Cove Shore Association by legally

merging the 2005 Broad Cove Shore Association and the 1962 Broad

Cove Shore Association

d. Within 60 days of the date of this Order, the defendant will place a

marginal notation on the deed recorded from Allan Balfour to the

Broad Cove Shore Association recorded on or about October 5, 2005

and provide an affidavit associated with the deed, executed by a

person shown to have authority to act on behalf of the Broad Cove

Shore Association, to note that the deed is void ab initio and has no

effect.

The clerk is directed to incorporate this order into the docket by reference.

Date: August 30, 2011
Nancy Mills
Justice, Superior

STATE OF MAINE
Cumberland, ss, Clerk's Office

AUG :3 0 2011

RECEIVED

2
I
'Kt~os- --f(o 9

P/CA.·n -F~ ~~'5-
I
I ~·s Wo...l +~ r _MCJK{! .tL __
c.. -b " 'fer... boiJ '-(

DQ_~ e" J:l 1"1.!):s
1

C.o u n ;s e.. I ..
1 , · s -r"' ~ P m "c·~ " ;
1; Q..,

DruM rr'\onJ ~ £JrvfYlM0~ -
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket N.o. RE-05-16 9. /
HELEN MUTHER, et al,
T~VJ- (JJ/Y)-.
0
v5 I _,;OJ<_
(i I "
l

Plaintiffs .

v. ORDER

BROAD COVE SHORE ASSOCIATION, STATE OF MAINE
Cumberland, s::., Clerk's Office
et al,
MAY 08 2012
Defendants
RECEIVED
Before the court is the issue of whether defendant Broad Cove Association (2005)

has purged itself of contempt as found by the court (Mills, J.) in its order dated August

30, 2011.

By letter dated November 8, 2011 plaintiff's counsel contended that the Broad

Cove Association had not complied with the August 30, 2011 order and remained in

contempt. That letter went astray and did not get docketed in the court file at that time.

After some further delay occasioned by the recusal of Justice Mills, a hearing was held

on January 27, 2012, and the court issued an order on February 3, 2012 that resulted in

further submissions by the parties in mid February.

The court has now reviewed both the recent submissions and the extensive prior

record in this case, which is necessary to understand the various disputes between the

parties. 1

1
Simultaneously the court has been reviewing the equally extensive record in the
accompanying case of Flaherty v. Muther, RE-08-98, in order to rule on the issues that were
remanded by the Law Court in the various appellate decisions rendered in that case. See 2011
ME 32 11 72, 90; 2012 ME 34 'l[ll.
The August 30, 2011 order found that the Association had failed or refused to

comply certain aspects of a settlement agreement entered on November 29, 2006. The

court ordered the Association to pay a $2000 fine but stayed the fine for 60 days in order

to allow the Association to purge itself of contempt by performing the following acts:

1. By September 12, 2011, to pay for the gate, fencing, and access control system
that had been agreed to;

2. By September 12, 2011 to provide plaintiffs with a list of the people who paid
the additional fees for the key card as of July 1, 2007, July 1, 2008, July 1, 2009,
July 1, 2010, and July 1, 2011;

3. Within 60 days, to legally merge the 2005 Broad Cove Shore Association and
the 1962 Broad Cove Shore Association; and

4. Within 60 days, to place a marginal notation on the deed from I. Allan Balfour
to the Broad Cove Shore Association recorded on or about October 5, 2005
and provide an affidavit associated with the deed, executed by a person
shown to have authority to act on behalf of Broad Cove Shore Association, to
note that the deed is void ab initio and of no effect.

At this juncture in the case the Association has the burden of proof to show that

it has complied with the August 30, 2011 order. As to item 1, the Association has

demonstrated that it made the required payment for the gate, fencing, and control

system. As to item 2, the Association has demonstrated that it provided the lists in

question. As to item 4, the Association has demonstrated that it placed a marginal

notation on the deed and provided the necessary affidavit. As to item 3, however, there

is a dispute whether the Association has demonstrated that the 2005 Broad Cove Shore

Association has been legally merged with the 1962 Broad Cove Shore Association.

Plaintiffs contend that the Associations have not been legally merged. As the

court understands it, they further contend that a valid merger is important because

plaintiffs are entitled to be certain that members of the 1962 Broad Cove Association

(other than those who have independent rights as J-Lot owners) are bound by the

2
November 29, 2006 settlement,2 Plaintiffs also suggest that if the old and new

Associations have not been legally merged, the affidavit declaring the Balfour deed

recorded on October 5, 2005 to have been void ab initio may also be invalid since it was

not filed by a person with authority to act on behalf of the (merged) Broad Cove

Association.

The court is faced with two issues. First, are plaintiffs correct that the Association

has failed to demonstrate that the 1962 Broad Cove Association and the 2005 Broad

Cove Association have been legally merged? Second, if those associations have not been

shown to have been legally merged, what is the effect of that failure and what further

relief should be provided to plaintiffs?

1. Legal Merger

In its effort to comply with the legal merger requirement in Justice Mills's

August 30, 2011 order, the Association drew upon the services of James Hopkinson,

Esq., the attorney who in 2005 incorporated the new association and filed

documentation attesting to the merger of the old and new associations. While plaintiffs

note that no meeting of members - of either the 1962 Association or the 2005

Association - was ever held to approve the merger, the Association relies on Mr.

Hopkinson's advice that no meeting was necessary because the directors of the

associations had the authority to act on the merger.

2
Plaintiffs argue in passing that the allegedly invalid merger has resulted in bylaws that
potentially dilute the property rights of members of the 1962 Broad Cove Association with
respect to property rights in a beach owned by the Association that is separate and apart from
the beach known as Secret Beach. The only issues before the court involve implementation of
the November 29, 2006 settlement agreement, which involves Secret Beach. In any conflict
between Association bylaws and the settlement agreement with respect to Secret Beach, the
settlement agreement is controlling. The court expresses no opinion as to issues not controlled
by the settlement agreement, and this order is not intended to preclude any challenges that may
be made to Association bylaws on any other issues.

3
On this issue Mr. Hopkinson is correct up to a point. The governing statute

allows the directors of a nonprofit corporation to approve a merger unless the members

are specifically given the right to vote on mergers in the articles of incorporation or

bylaws. See 13-B M.R.S. § 903(1)(B).3 There was no express provision in the bylaws of

either the new association or the old association that requires a member vote on a

merger. 4

Nevertheless the court agrees with plaintiffs that it has not been shown that the

associations have legally merged. This is true for two reasons. First, the January 27

hearing established that Mr. Hopkinson relied on the representations of the persons

who retained him in 2005 that they were the board members of the 1962 association.

There is no evidence that this was correct. At least one of the supposed 1962 association

directors, Beth Hess, was never elected to the board and could not have been a director

at the time the 1962 association was administratively dissolved. Unless the persons who

voted for the merger on behalf of the old association can be shown to have been validly

elected directors at that time, their action cannot constitute valid approval on the part of

the 1962 association. 5

Second, even if the persons acting as directors of the 1962 association had been

validly elected, they did not adopt a plan of merger outright. Instead, they adopted a

resolution that the plan of merger be submitted to the members for approval. Hess

3
This differs from the procedure in for-profit corporations, where in most cases a shareholder
vote is required to effectuate a merger. 13-C M.R.S. §§ 1104(2), 1104(7), 1105. See Ziegler v.
American Maize Products Co., 658 A.2d 219, 222-23 (Me. 1995) (construing provisions of former
Title 13-A).
4
Article VI, Section 1 of the bylaws of the old association addresses the circumstances under
which members can vote - specifically requiring that they not be in arrears in the payment of
dues- but does not specify which matters have to be voted upon by the members.
5
In contrast, Mr. Hopkinson was the incorporator of the 2005 Association and had the authority
to elect its first board of directors. 13-B M.R.S. § 406(2). Those directors would have had the
authority to approve a merger under § 903(1)(B).

4
Deposition Ex. 23. A similar resolution was adopted by the directors of the new (2005)

association. Hess Deposition Exhibit 22. On the record before the court, neither the

members of the 1962 association nor the members of the 2005 association ever validly

approved the plan of merger. Such approval could only have occurred at a meeting of

the members pursuant to 13-B M.R.S. §§ 602-04 (and such a meeting was never held) or

by unanimous written consent pursuant to§ 606.

From the materials submitted to the court, it appears that ballots were circulated

but unanimous consent was not obtained. The ballots submitted might have constituted

valid proxies if a meeting had been held. Because no meeting was held, there was never

a valid merger. This is true even though it appears that all or almost all of the ballots

obtained were cast in favor of the merger and may have been cast in sufficient numbers

to constitute a quorum. 6

On this record the court concludes that although the Association may not have

acted unreasonably in relying on Mr. Hopkinson's advice, the 1962 and 2005

associations have not been legally merged and the Association has not purged itself of

contempt under the August 30, 2011 order.

2. Significance of Merger

Notwithstanding the above, as the court understands the facts, the significance of

the merger issue is questionable. The new (2005) Broad Cove Association appears to

have included all of the landowners who were originally members of the 1962 Broad

Cove Shore Association plus a substantial number of additional landowners from

subdivisions created subsequent to 1962. See Articles of Incorporation of the 2005

6
It appears that under the bylaws of the 1962 association, only 10 percent of the members in
person or by proxy were necessary for a quorum. Under the bylaws of the 2005 association, a
majority of the members either in person or by proxy were necessary to constitute a quorum.

5
Association. As a result, all of the old Association members are bound by the settlement

(as members of the new Association), and the affidavit filed on behalf of the new

Association is sufficient to declare the 2005 Balfour deed void ab initio regardless of

whether a merger has occurred.

As a result, while the court fully agrees that a merger of the 1962 and 2005

associations was contemplated in the November 2006 settlement agreement, this

appears to be the least significant of the requirements in the November 2006 settlement

agreement and the August 30 order. As far as the court can tell, the Association has

complied with the crucial aspects of the settlement agreement and the essential

provisions in the August 30 order.

The degree of importance that should be attached to the merger issue necessarily

affects what additional relief should be awarded to plaintiffs and what contempt

sanctions should be imposed on the Association. Under the circumstances, the court

will convene a hearing to consider two issues: (1) whether there is some significance to

a merger that the court has overlooked and (2) what further relief should be awarded

and/ or what further contempt sanction should be imposed. The court will hold

plaintiffs' request for attorneys fees in abeyance until those issues are resolved.

The entry shall be:

The court finds that the defendant has complied with three of the directives in
the August 30, 2011 order but has not complied with the requirement that the 1962
Association and the 2005 Association be legally merged. Hearing to be scheduled to
determine further relief and/ or contempt sanctions. The Clerk is directed to incorporate
this order in the docket by reference pursuant to Rule 79(a).

Dated: May '1 , 2012

Thomas D. Warren
Justice, Superior Court

6
HELEN MUTHER ET AL VS BROAD COVE SHORE ASSOCIATION ET ALS
CASE #:PORSC-RE-2005-00169

SELVD REPRESENTATION TYPE DATE

01003096 ATTORNEY: BLOOM, BARRI
ADDR: 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545
FOR: BETH ELLEN HESS DEF RTND 12112/2005
FOR: LESLIE B CONNOLLY DEF RTND 12/12/2005

02 003852 ATTORNEY: MANCINI, PHILIPP
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
FOR: BROAD COVE SHORE ASSOCIATION DEF RTND 12/22/2011

03 007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET PO BOX 258 AUGUSTA ME 04332-0258
FOR: BUFFETT COASTAL TRUST PL RTND 04/10/2008
FOR: PAUL WOODS PL RTND 04110/2008
FOR: HELEN MUTHER PL RTND 04/10/2008

04 007535 ATTORNEY: MCKEON, THOMAS
ADDR: 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545
FOR: BETH ELLEN HESS DEF RTND 12/12/2005
FOR: LESLIE B CONNOLLY DEF RTND 12/12/2005

05 003649 ATTORNEY: SPARKS, ANDREW
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
FOR:BETH ELLEN HESS DEF RTND 12112/2005
FOR:LESLIE B CONNOLLY DEF RTND 12/12/2005
FOR:BROAD COVE SHORE ASSOCIATION DEF RTND 12/12/2005
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION

HELEN MUTHER, et al,
--
Docket No. RE-05-169,
I --Vvv' u
,-·--.
•.• ') "
"
• - •
-;;~ / ..-,
1'/ I 1 \

Plaintiffs

v. ORDER

BROAD COVE SHORE ASSOCIATION,
et al,

Defendants

After a hearing on June 27, 2012 in response to the court's order dated May 7,

2012 and filed May 8, 2012, the court orders as follows:

1. The court adheres to the conclusion in its May 7 order that the merger of the

1962 Broad Cove Association and 2005 Broad Cove Association was the least significant

of the requirements set forth in Justice Mills's August 30, 2011 order and that the

Associuation has complied with the most important requirements of that order.

2. Nevertheless the November 29, 2006 settlement agreement called for a merger

of the two associations and such a merger was ordered on August 30, 2011. The

Association is found in contempt for its failure to comply with that aspect of the August

30, 2011 order.

3. As a sanction for that contempt, the Association shall be required to pay a $

2000 fine. The imposition of that fine is stayed for 90 days from the date of this order to

allow the Association to purge itself of contempt by either

(1) approval or ratification of the plan of merger at meetings of the members
of both the 1962 Broad Cove Shore Association and the 2005 Broad Cove
Shore Association as outlined in the November 8, 2011 letter from counsel
for plaintiffs; or
(2) approval or ratification of the plan of merger by duly authorized
directors of the 2005 Broad Cove Shore Association, along with approval or
ratification of the plan or merger at a meeting of the members of the 1962
Broad Cove Association.

4. The legal merger of the 1962 Association and the 2005 Association, which is

ordered herein, is intended to bring this action - commenced more than six years ago -

to a final conclusion.

5. The court will not impose the prior$ 2000 sanction proposed in Justice Mills's

August 30, 2011 order for three reasons. First, the court has found that the Association-

although failing to have effectuated a legal merger - complied with the significant

aspects of August 30, 2011 order. Second, the court concludes that although the

Association failed to accomplish a legal merger, the Association did not act

unreasonably in relying on Mr. Hopkinson's advice. Finally, although the November 29,

2006 settlement had previously been found to be a binding and enforceable agreement,

prior to the entry of the August 30, 2011 order, no court had ordered the Association to

legally merge the 2005 Association with the 1962 Association. 1

6. On the issue of attorneys fees the court concludes that although plaintiffs

sought attorneys fees when they filed their motion for contempt, Justice Mills did not

include such fees as a remedy in her August 30, 2011 order. Accordingly, the court

concludes that Justice Mills did not intend to include attomeys fees as part of her

contempt remedy. See M.R.Civ.P. 66(d)(3)(C).

7. As part of its contempt remedy in this order, however, the court will award

attom~ys fees and costs to plaintiffs for the time spent in preparing for and attending

the June 27, 2012 hearing and will award further attorneys fees and costs to plaintiffs if

1
For a party to be held in contempt, there must be a violation of a court order that informed the
party in definite terms of the obligations imposed by the order. Lewin v. Skehan, 2012 ME 31 9[
19, 39 A.3d 58.

2
they have to incur any such fees and costs in connection with any failure by the

Association to remedy the deficiencies identified in this order and in the court's May 7,

2012 order within 90 days. Plaintiffs shall submit an application for such fees within 21

days after it has been determined that a legal merger has been accomplished and the

deficiencies identified in this order and in the May 7 order have been remedied. The

Association shall have 21 days in which to submit any objections to the fees requested

and plaintiff shall have 7 days in which to submit any reply papers.

The entry shall be:

Defendant Association found in contempt with 90 days in which to purge itself
or face further sanctions. The Clerk is directed to incorporate this order in the docket by
reference pursuant to Rule 79(a).

Dated: June 2.j , 2012

Thomas D. Warren
Justice, Superior Court

3
HELEN MUTHER ET AL VS BROAD COVE SHORE ASSOCIATION ET ALS
CASE #:PORSC-RE-2005-00169

SEL VD REPRESENTATION TYPE DATE

01) 003096 ATTORNEY: BLOOM, BARRI
ADDR: 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545
FOR:BETH ELLEN HESS DEF RTND 12112/2005
FOR:LESLIE B CONNOLLY DEF RTND 12112/2005

02) 003852 ATTORNEY: MANCINI, PIDLIP P
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
FOR:BROAD COVE SHORE ASSOC. DEF RTND 12/22/2011

03) 007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET AUGUSTA ME 04330
FOR:BUFFETT COASTAL TRUST PL RTND 0411 0/2008
FOR:PAUL WOODS PL RTND 04/10/2008
FOR:HELEN MUTHER PL RTND 04/10/2008

04) 003649 ATTORNEY:SPARKS, ANDREW
ADDR:ONE MONUMENT WAY PORTLAND ME 04101
FOR:BETH ELLEN HESS DEF RTND 12/12/2005
FOR:LESLIE B CONNOLLY DEF RTND 12112/2005
FOR:BROAD COVE SHORE ASSOC. DEF RTND 12112/2005
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CMLACTION
Docket No. RE-05-J69 .- "', ?
-r-· .
1~ w-I' CV..;'i'I\1 . 'rj
lA
;;.. v../•...1(· I·7
HELEN MUTHER, et al,

Plaintiffs

v. ORDER

BROAD COVE SHORE ASSOCIATION,
et al, STATE OF MAINE
Cumberland, s~. Clerk's Office
Defendants JAN 24 2013
RECEIVED
Before the court are a second motion for contempt dated September 7, 2012

brought by plaintiffs Helen Muther and Paul Woods and a November 20, 2012 cross

motion for contempt filed by defendant Broad Cove Shore Association.

Plaintiffs' second motion for contempt argues that the Broad Cove Shore

Association is in violation of two aspects of the November 29, 2006 settlement

agreement: (1) that the Association provide a correct list of the households that have

paid yearly fees for use of the easement; and (2) that the Association purchase insurance

to cover the fence and gate. 1

For its part, the Association's motion for contempt argues that Muther and

Woods are in violation of an obligation to submit any disputes relating to the

November 29, 2006 settlement to arbitration.

The court held a hearing on these motions on January 3, 2013.

The first question before the court is whether the obligations imposed by the

November 29,2006 settlement- to the extent those obligations are discernable based on
1
In their original motion Muther and Woods also contended that the Association was in
violation of its obligation to maintain a $5,000 reserve account but that aspect of the motion was
withdrawn at the January 3, 2013 hearing.
the transcript of the proceeding - are directly enforceable through contempt or whether

the court must first issue specific orders to the parties to perform their obligations

under the settlement.

1. Whether Orders Determining that the November 2006 Settlement Agreement
Is Binding Are Directly Enforceable by Contempt

After the parties' failure to reduce the November 29, 2006 settlement to an agreed

judgment, Muther and Woods amended their complaint to seek an order "declaring"

that plaintiffs' draft of the proposed judgment should be entered as the final judgment

in the case. See Amended Complaint dated May 31, 2007. Muther and Woods then filed

a motion seeking summary judgment on that issue.

Ruling on that summary judgment motion in an order dated September 14, 2007

Justice Crowley concluded that the proposed judgment submitted by Muther and

Woods was not binding on the defendants and should not be entered. However, he held

that the parties were bound by the agreement reached at the November· 29, 2006

settlement conference as reflected in the transcript of that conference.

In a further "Order on All Pending Motions" dated April2, 2008 Justice Crowley

reiterated that his September 14, 2007 order held that "the parties to this litigation are

bound by the terms of the settlement agreement as reflected in the [November 29, 2006]

transcript." April 2, 2008 order at 2. That order further stated that "the transcript in its

present form is final and binding on the parties to this litigation" and that "[a]ny

disputes as to the meaning of the transcript must be brought in a separate suit." April 2,

2008 order at 3.

Justice Crowley's orders essentially granted declaratory relief. While concluding

that the statements placed on the record on November 29, 2006 constituted a binding

2
settlement agreement, those orders do not contain any injunctive language or any

language directing the parties to perform that agreement. Indeed, the April 2, 2008

order contemplated the possibility that in some cases further proceedings would be

necessary to establish the meaning of the agreement.

The Law Court thereafter affirmed Justice Crowley's orders. Muther v. Broad

Cove Shore Association, 2009 ME 37, 968 A.2d 539. Like Justice Crowley's orders, the

Law Court d~cision does not contain any language directing the parties to perform their

obligations under the agreement.

Accordingly, Justice Crowley's September 14, 2007 and April 2, 2008 orders do

not in themselves constitute the kind of judicial directives that are directly enforceable

in contempt. "For a person to be held in contempt for violating a court order, that court

order must inform the person in definite terms what duties the order imposes upon

him." Lewin v. Skehan, 2012 ME 31 «][ 19, 39 A.3d 58 (emphasis added)?

In this case there is no court order directing the Broad Cove Shore Association to

provide a list in the format sought by Muther and Woods and no court order directing

the Association to purchase insurance. In both cases the Association argues there is no

such obligation, and there is a basis to dispute whether the obligations asserted by

Muther and Woods are enforceable.

Thus the November 29, 2006 transcript discusses the list to be provided by the

Association in the following terms:

2
The court acknowledges that this ruling may be inconsistent with a previous orders
entered in this case. However, while the Association was found in contempt in the court's
August 30, 2011 order (Mills, J.), no sanctions were imposed on the Association in that order. By
the time an attorney fee sanction was imposed, the Association had been made subject to a clear
and definite court order. See June 29, 2012 order 4]1 5. Moreover, the obligations set forth in the
August 30, 2011 order were obligations that were clearly set forth in the November 29, 2006
transcript. The alleged violations of the settlement that are now before the court are more
ambiguous or otherwise problematic.

3
The Broad Cove Shore Association will provide the
Muther/Woods family the list of those persons who have
paid for the active right to use to get the key card by [the]
anniversary date every year.

November 29, 2006 Tr. 6. The dispute between the parties is whether the list needs to

include the full names of all members of each household (which Muther and Woods are

seeking) or whether the list requirement can be satisfied by a listing of last names,

addresses, and number of persons in the household (the information provided by the

Association to date). 3 While Muther and Woods may have a stronger position on this

issue, nothing in the November 29, 2006 transcript clearly establishes what information

is required to be included on the list.

The discussion of insurance on the November 29, 2006 transcript is somewhat

more clear. On its face, it seems to suggest that the Association was going to pay for

insurance on the fence out of the $ 5,000 reserve fund that was to be established.4

However, the Association argues that since it does not own the fence, it cannot obtain

insurance because it does not have an insurable interest in the fence. This argument

finds some support in the caselaw. See,~ Gendron v. Pawtucket Mutual Insurance

3
As Muther and Woods point out, in the case of one family, the list provided to date lists
the number of persons in one household as "4+", which is only slightly better than not
providing a number of household members.
At the January 3 hearing counsel the Association suggested that one of the reasons the
Association is concerned about the list is because it fears that Muther and Woods intend to
argue that only household members on the list can use the easement, thus excluding
households from bringing guests or out of town relatives. In this connection, the court notes
that, while the contents of the list may be relevant in determining the persons who can use the
easement under the November 29, 2006 settlement, the list would not necessarily be
determinative on issues such as the status of guests or out of town relatives.
4
The subject of insurance arose in following statement by Ms. Metcalf during her
discussion of the $ 5,000 reserve fund: "I think you [the Association] were gonna pay for your
insurance out of that, too, at least the insurance associated with the care and feeding of the
fence." November 29, 2006 Tr. 10. Because Ms. Metcalf prefaced this remark with the words "I
think," an argument can be made that she was venturing a supposition rather than setting forth
an agreed term of settlement. However, counsel for the Association did not take issue with Ms.
Metcalf's statement during the November 29, 2006 hearing.

4
Co., 384 A.2d 694, 697 (Me. 1978). The Association also argues that the existence of the$

5,000 reserve fund is sufficient to cover damage to the fence and that insurance is

therefore not necessary.

Similarly, on the Association's motion, there is no court order directing Muther

and Woods to submit any disputes under the November 29, 2006 settlement agreement

to arbitration. As discussed below, Muther and Woods dispute that the agreement to

arbitrate is applicable to the issues presently before the court, and the language of the

settlement transcript does not definitively resolve that issue.

Under these circumstances, neither party is entitled to a finding of contempt. If

the court can discern the intent of the settlement, it can direct the parties to perform any

appropriate conditions of the settlement agreement. Such a directive, if not complied

with, could form a basis for a future order of contempt. In that connection the court

must first consider the Association's claim that the November 29, 2006 settlement

contemplated that all disputes were to be subject to arbitration. If the Association is

correct on that issue, then resort to arbitration must precede any involvement by the

court in the parties' ongoing disputes with respect to the settlement.

2. Arbitration

The alleged requirement to arbitrate is derived from the following passage in Ms.

Metcalf's recitation of the settlement:

The parties have agreed that disputes with regard to the
exercise of this easement will be submitted to an arbitration
mechanism. The details of that have not been worked out
yet, and the parties have committed to work in good faith to
the details of such an agreement.

November 29, 2006 Tr. 8.

5
Initially there is a question whether an agreement to arbitrate is enforceable if the

mechanism for arbitration has not been agreed to. However, under 14 M.R.S. § 5929 the

court may appoint one or more arbitrators when an arbitration agreement does not

provide a method for appointment. Counsel for Muther and Woods did not argue at the

January 3 hearing that arbitration cannot be enforced because the arbitration

mechanism was not agreed to.

Counsel for Muther and Woods did point out that arbitration was not raised as a

defense to the first contempt motion, 5 and he noted that Ms. Metcalf's statement with

respect to arbitration was followed by the words "with regard to the exercise of this

easement." Based on this language, counsel for Muther and Woods contended that the

agreement to arbitrate applies to usage of the easement and not to other aspects of the

settlement, including the two matters on which Muther and Woods now seek contempt.

The Association responded that "the exercise of this easement'' language should

be broadly construed and not limited to usage issues. The Association also argued at

the January 3 hearing that on any issue where the November 29, 2006 transcript is not

clear, the court needs to offer the parties an opportunity to present parol evidence with

respect to the settlement negotiations before it construes potentially ambiguous

statements in the November 29, 2006 transcript.

If the court were limited solely to construing the statement relating to arbitration

in the November 29, 2006 transcript, it would be inclined to conclude that Muther and

Woods have the better of the argument. However, the November 29, 2006 transcript

does not constitute an integrated written contract that would exclude introduction of

parol evidence as to the parties' intentions with respect to arbitration.
5
Counsel for Muther and Woods did not argue that the Association has waived its rights to
arbitration but rather that the Association's failure to invoke arbitration on the first contempt
motion should cast doubt on its current insistence that arbitration is required.

6
Moreover, in reviewing the court file on whether the November 29, 2006

settlement is directly enforceable through contempt, the court found at least one item

which supports the Association's position that all disputes under the November 29,

2006 settlement are to be subjected to arbitration. The proposed judgment prepared by

counsel for Muther and Woods and submitted with their motion for summary

judgment to enforce the settlement provides for arbitration if "any disputes arise with

regard to the obligations and undertakings herein." Proposed Judgment submitted with

plaintiffs' motion for summary judgment filed July 20, 2007 '][ 13. The "obligations and

undertakings" in plaintiffs' proposed judgment include all aspects of the November 29,

2006 settlement and are not limited to usage of the easement. 6 This suggests that Muther

and Woods may have understood that arbitration would apply to all disputes arising

under the November 29, 2006 settlement, as the Association now contends.

The court concludes that a hearing may be necessary as to the Association's

contention that arbitration is called for with respect to any disputes under the

November 29,2006 settlement. Before holding such a hearing, the parties are ordered to

submit written offers of proof as to what parol or other evidence, if any, they would

submit at such a hearing? After reviewing the offers of proof, the court will determine

whether an evidentiary hearing is appropriate.

6
It might be noted that even if arbitration were limited to the usage of the easement, as
interpreted by Muther and Woods, the issue of whether households can bring guests and out of
town relatives, see footnote 3 above, would appear to be subject to arbitration.
7
In the interest of avoiding delay, the parties shall include in their offers of proof any
parol or other evidence they would intend to offer with respect to the content of the list to be
submitted by the Association and with respect to the subject of insurance on the fence. If the
court determines that arbitration is not required, it will therefore have a full record on which to
rule on those issues.

7
When the arbitration issue is resolved, if arbitration is not found to be required

as to the list and insurance issues raised by Muther and Woods, the court will issue a

ruling on those issues. 8

The entry shall be:

Plaintiff's second motion for contempt dated September 7, 2012 and defendant's
motion for contempt dated November 20, 2012 are denied. On the issue of whether
arbitration is required on all disputes arising under the November 29, 2006 settlement,
the parties shall serve and file written offers of proof by February 8, 2012.
The Clerk is directed to incorporate this order in the docket by reference
pursuant to Rule 79(a).

Dated: January <Z-'f , 2013
___/~
Thomas D. Warren
Justice, Superior Court

8
The court feels constrained to express its concern that a settlement agreement reached in
November 2006 and found to be binding by the Superior Court in April 2008 and by the Law
Court in April2009 is still the source of disputes and mutual distrust and appears to have
devolved into a war of attrition. At least one other aspect of the Secret Beach litigation is now
pending before the Law Court on a third round of appeals. Under these circumstances, counsel
are urged to cooperate to the extent possible in order to resolve any pending issues and to
present any such issues that cannot be resolved for adjudication. To the extent that certain
letters and emails have gone unanswered (as alleged by counsel for Muther and Woods), that
should not happen in the future.

8
HELEN MUTHER ET AL VS BROAD COVE SHORE ASSOCIATION ET ALS
CASE #:PORSC-RE-2005-00169

003307 ATTORNEY: PAZAR, CHRISTOPHER
ADDR:ONE MONUMENT WAY PORTLAND ME 04101
F FOR: BROAD COVE SHORE ASSOCIATION DEF RTND 11/26/2012

007848 ATTORNEY: MCKEE, WALTER
ADDR: 133 STATE STREET AUGUST A ME 04330
F FOR: HELEN MUTHER PL RTND 0411 0/2008
F FOR: PAUL WOODS PL RTND 04110/2008
F FOR: BUFFETT COASTAL TRUST PL RTND 04110/2008
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CNILACTION

HELEN MUTHER, et al,
---rDo~ket No. RE-05-1~ !; r·, .
i _f1,{/ ··~ II I - 'lJ _/
Plaintiffs

V. ORDER

BROAD COVE SHORE ASSOCIATION, STATE OF 1\i'lAINE
et al, Cumber!21nd s;,. Clerk's Ob

Defendants ~1AY 0 8 2013

RECEIVED
In response to the court's order dated January 24, 2013 plaintiffs Muther and

Woods have submitted an offer of proof but have also sought reconsideration of the

court's denial of their motion for contempt and have argued that the court no longer has

jurisdiction to consider whether it was the intent of the parties that all disputes under

the settlement be referred to arbitration.

The parties' latest submissions were filed almost three months ago, but this order

has been delayed because the court, which was initially puzzled by the plaintiffs'

jurisdictional objection raised at the same time as their renewed request for

enforcement, has since been considering the jurisdictional issue without finding any

clear answer.

Request for Reconsideration

In summary, the court denied Muther and Woods's motion for contempt for

three reasons: (1) because a person cannot be found in contempt unless that person "has

failed or refused to comply with a court order," (2) because a person cannot be held in

contempt when it is impossible for a person to comply, and (3) because a person cannot
be held in contempt for violating a court order unless that order informs the person "in

definite terms what duties the order imposes upon him." Lewin v. Skehan, 2012 ME 31

<[ 19, 39 A.2d 58.

On the first issue, in reviewing the history of the case, the court found that the

November 29, 2006 settlement had been found to constitute a binding agreement but

did not find that any court order had ever been entered directing the parties to comply

with the November 29, 2006 settlement.

In support of their request for reconsideration, Muther and Woods argue that it

is already the "law of the case" that the November 29, 2006 settlement agreement

should be given the effect of an enforceable court order. There are three answers to this

argument. The first was set forth in footnote 2 of the January 24, 2013 order. The second

is that trial court rulings (as opposed to appellate rulings) are always subject to

reconsideration, and the court - on a second motion for contempt - is not obliged to

adhere to an implicit ruling made on a prior contempt motion.

Third, and perhaps most importantly, the November 29, 2006 settlement did not

inform the Association in clear and definite terms that the Association was required to

provide a list in the format which Muther and Woods now contend is required. Nor did

it inform the Association in clear and definite terms that it was required to purchase

insurance on property that it did not own. Even if the November 29, 2006 settlement

were to be given the effect of a court order for purposes of contempt, therefore, the

Association cannot be held in contempt for failing to perform disputed obligations that

are far from clear. Nor can the Association be held in contempt for failing to insure

property in which it possessed no insurable interest.

2
Jurisdiction

Muther and Woods argue that once the court has denied the pending motions for

contempt, the court no longer has jurisdiction to resolve whether and when arbitration

is required under the November 29,2006 settlement agreement.

The court issued its order seeking an offer of proof because it understood from

the January 3, 2013 hearing that Muther and Woods were still seeking enforcement of

the agreement even if the motion for contempt was denied- e.g., that in the absence of

contempt they were at least seeking an order directing the Association to provide them

with more detailed list. 1 Muther and Woods now contend, however, that "the only

continuing jurisdiction this court has in the 2005 case and the dispute between the

parties is to enforce its prior orders." Plaintiffs' Memorandum dated February 8, 2013 at

4. Muther and Woods further contend that the court has ruled "that it will not do so."

Id.

To make its position clear, the court denied plaintiffs' second motion for

contempt for the reasons previously set forth but was prepared to entertain a motion by

Muther and Woods to enforce the November 29, 2006 settlement. In that connection the

court would have been required to consider the Association's argument that the parties

had agreed to arbitration. If arbitration were not required and an order enforcing the

settlement were issued, the court would have been prepared to enforce that order

through the contempt power to the extent that it was appropriate to do so.

1
The court understands that the Association is arguing that the list it has already provided is
consistent with the settlement agreement, see November 29, 2006 Tr. 5-6, and that if Muther and
Woods believed the list was deficient, they should have raised that issue at the time of the first
contempt motion. At this time the court reserves decision on all issues with respect to the
adequacy of the list.

3
If such a motion were now to be made, the first issue (in light of the jurisdictional

issue that has since been raised by Muther and Woods) would be whether the court has

jurisdiction to consider such a motion. 2 The second issue would be whether the dispute

should be referred to arbitration.

On the issue of arbitration, the court concludes from the offers of proof that have

been submitted that an evidentiary hearing would be required to determine whether, at

the time of the November 29, 2006 settlement, the parties intended that arbitration

would apply to all disputes or only those disputes relating to the exercise of the

easement (as that term is interpreted by Muther and Woods). If arbitration were

required, injunctive relief- enforceable in appropriate cases by contempt- would be

available to enforce the arbitrator's rulings.

If Muther and Woods are not currently seeking enforcement of the settlement

agreement or if they instead wish to commence a new action for that purpose, they are

correct that the court needs to take no further action in this case. In that connection,

Muther and Woods have pointed out that at an earlier stage the court (Crowley, J.)

contemplated that if there were any future disputes about the meaning of the terms of

the settlement agreement, those were "to be brought in a separate action." Order dated

April 2, 2008, quoted in Flaherty v. Muther, 2011 ME 32 <J[ 18. The court does not

necessarily read that statement as depriving the court of jurisdiction to hear subsequent

motions to enforce the settlement but would be prepared to consider that issue now that

it has been raised. Seen. 2 above.

2
Motions to enforce settlements are often brought in the actions in which the settlements have
been reached. A party also may seek to enforce a settlement agreement by commencing a new
action. The court is not aware of any instance where a jurisdictional challenge has been raised to
a motion to enforce brought in the same action in which the settlement was reached, but the
court would be obliged to consider such a challenge if it were raised.

4
Turning to any remedies that the Association may have, the court understands

that the Association has been primarily raising arbitration as a defense to plaintiffs'

second contempt motion and in support of the Association's cross motion for contempt.

Those motions have been resolved. There is no pending motion to compel arbitration. If

the Association has a dispute with Muther and Woods that it believes should be

referred to arbitration, it is free to make a motion to compel arbitration, subject to the

jurisdictional issue raised above and the potential need for an evidentiary hearing as to

whether arbitration was agreed to. In the alternative, the Association has the right to

commence a new action for the purpose of compelling arbitration if it sees fit to do so.

The entry shall be:

Plaintiff's request for reconsideration of the January 24, 2013 order is denied.
Procedural order entered. The Clerk is directed to incorporate this order in the docket
by reference pursuant to Rule 79(a).

Dated: May J , 2013
~
Thomas D. Warren
Justice, Superior Court

5
009353 ATTORNEY: BILLINGS, JAMES A
ADDR: 133 STATE STREET AUGUSTA ME 04330
F FOR: PAUL WOODS PL RTND 02/08/2013
F FOR: HELEN MUTHER PL RTND 02/08/2013

003649 ATTORNEY:SPARKS, ANDREW
ADDR:ONE MONUMENT WAY PORTLAND ME 04101
F FOR: BETH ELLEN HESS DEF RTND 12/12/2005
F FOR: BROAD COVE SHORE ASSOCIATION DEF RTND 12/12/2005
F FOR: LESLIE B CONNOLLY DEF RTND 12/12/2005

003307 ATTORNEY: PAZAR, CHRISTOPHER
ADDR: ONE MONUMENT WAY PORTLAND ME 04101
F FOR: BROAD COVE SHORE ASSOCIATION DEF RTND 11/26/2012

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808836. Public record. Not legal advice.