The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-~2f81
;J M· CAJJ'A- "~j I ~o t5 7/
OSPREY COVE ROAD
HOMEOWNERS
ASSOCIATION, et al.,
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Plaintiffs
v. ORDER ON PLAINTIFFS'
MOTION FOR PARTIAL
SUMMARY JUDGMENT
ELLEN M. KEMPIN, et al.,
Defendants
Before the court is the plaintiffs' motion for summary judgment on count I
of the plaintiffs' complaint. The plaintiffs ask the court to declare that the
defendants' activity on their residential lot violates covenants limiting the lot to
residential uses and prohibiting commercial activity. For the following reasons,
plaintiffs' motion for partial summary judgment is granted.
BACKGROUND
Osprey Cove Road Homeowners Association (OCRHA) is a non-profit,
non-stock corporation duly organized under the laws of the State of Maine.
OCRHA was formerly known as Partridge Cove Road Homeowners Association,
which was incorporated in the State of Maine on September 21, 1993. (Pis.' S.M.F.
<j[ 1.) OCRHA is a five-lot-residential subdivision. (Pis.' S.M.F. <j[ 2.)
All individual parties own lots in the subdivision. (Pis.' S.M.F. <j[<j[ 3-9.)
Plaintiffs Robert V. Toothaker, II and Dimitra Toothaker own a subdivision lot
located at 57 Osprey Cove Road in Freeport, Maine. The Toothaker plaintiffs'
real property abuts the real property owned by defendant Ellen M. Kempin.
1
(Pis.' S.M.F. <J[ 4.) Defendant Ellen M. Kempin resides in Malibu, California, but
owns property located at 58 Osprey Cove Road in Freeport. (Pis.' S.M.F. <J[ 7.)
Defendant Fiona Kempin, daughter of Ellen M. Kempin, and defendant Alecia
Nelson live at 58 Osprey Cove Road. (Pis.' S.M.F. <J[<J[ 8-9.) In addition to residing
at 58 Osprey Cove Road, defendants Fiona Kempin and Alecia Nelson co-own
and operate a dog kennel, which includes daycare and boarding facilities, on the
property under the business name "It's A Dogs Life." 1 (Pis.' S.M.F. <J[ 9; Defs.'
Reply Pis.' S.M.F. <J[ 9.)
Each lot is served by a single private road, Osprey Cove Road. (Pis.'
S.M.F. <J[ 10.) The deeds to all of the lots in OCRHA contain binding restrictive
covenants, including that the lots are to be "used solely for residential purposes"
and that "[n]o livestock, poultry or other animals shall be kept or maintained on
any part of any lot, except dogs, cats or other household pets may be kept
thereon in reasonable numbers for the pleasure and use of the occupants, but not
for any commercial use or purpose." (See Pis.' S.M.F. <J[<J[ 12-15; Ex. B). In
addition, a restrictive covenant provides: "No signs and advertising devices,
other than temporary signs less than three feet in size, will be allowed on any lot
or parcel of land without the prior written consent of Declarant." (Pis.' S.M.F. <J[
16.)
In January 2012, defendant Alicia Nelson obtained a license from the State
of Maine to operate the dog care and boarding facility at 58 Osprey Cove Road.
1
Defendants object to plaintiffs' characterization of "It's A Dogs Life" as a "commercial
dog kennel" as a misleading description. (Defs.' Reply Pls.' S.M.F. ~~ 8-9.) The
defendants admit the facility has a capacity for twenty-five dogs at one time, that they
own and operate a dog care and boarding facility on their property, and that they
market and advertise the facility to the general public. (Compl. ~~ 18-20; Answer~~ 18,
20; Defs.' Reply Pis.' S.M.F. <JI<Jl 8-9.).
2
(Pis.' S.M.F. <][ 20; Compl. <][ 19; Answer <][ 19.) Defendants subsequently
published a website and produced other advertising and marketing materials for
"It's A Dogs Life," which advertise the dog kennel as an "exclusive boutique
hotel and day camp for dogs," open seven days a week. (Pis.' S.M.F. <][ 22; Ex. C.)
The website states that the defendants operate the business as both a "day camp"
and "boarding facility" for dogs, and charge its customers fees for all services
provided. (Pis.' S.M.F. <][ 22.) In addition to the website, defendants have placed a
large sign related to their dog kennel business on their property. (Pis.' S.M.F. <][
25.)
In March 2012, the OCRHA held a meeting at which defendant Fiona
Kempin attended on behalf of defendant Ellen Kempin (Pis.' S.M.F. <][ 26.) At the
meeting, the members of OCRHA discussed whether defendants' operation of
"It's a Dogs Life" violated any of the restrictive covenants of the subdivision.
(Pis.' S.M.F. <][ 27.) At the conclusion of the meeting, the Board of Directors voted
4-1 to obtain a legal opinion regarding the applicability and enforceability of the
covenants with regard to defendants' dog kennel. Ms. Kempin cast the only
dissenting vote. (Pis.' S.M.F. <][ 28.)
In May 2012, OCRHA held another meeting to review and discuss the
legal opinion obtained from counsel; none of the defendants was present. (Pls.'
S.M.F. <][ 29.) At the meeting the Board of Directors voted to pursue legal action,
including litigation, to prevent the operation of the dog kennel located at 58
Osprey Cove Road. (Pis.' S.M.F. <][ 30.)
PROCEDURAL HISTORY
Plaintiffs filed their complaint in June 2012. They seek a declaratory
judgment that defendants' actions are prohibited under the restrictive covenants,
3
an injunction to prevent the violations from continuing, and costs and attorneys'
fees. Plaintiffs contest both the operation of "It's A Dogs Life" and the use of a
sign to advertise the dog kennel. Defendants deny that they violated the
covenants by operation of the kennel or by advertising at the location.
Defendants additionally argue that even if they are operating a commercial dog
kennel, other members of the association are also in violation of the covenants
and thus are prohibited from prosecution of the complaint. Plaintiffs now move
for partial summary judgment on count I, declaratory judgment, with regard to
the restrictive covenants proscribing commercial activity and signs and
advertising devices at 58 Osprey Cove Road.
DISCUSSION
1. Summary Judgment Standard
Summary judgment is appropriate when there is "no genuine issue as to
any material fact ... and that any party is entitled to a judgment as a matter of
law." M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, Cj[ 4,
770 A.2d 653. A "genuine issue of material fact exists when there is sufficient
evidence to require a fact-finder to choose between competing versions of the
truth at trial." Inkell v. Livingston, 2005 ME 42, Cj[ 4, 869 A.2d 745 (quoting Lever
v. Acadia Hosp. Corp., 2004 ME 35, Cj[ 2, 845 A.2d 1178). In considering a motion
for summary judgment, the court views the facts in the light most favorable to
the non-moving party, and considers only the portions of the record referred to
and the material facts in the parties' Rule 56(h) statements. Johnson v. McNeil,
2002 ME 99, Cj[ 8, 800 A.2d 702. Rule 56(h) requires a party that is opposing a
motion for summary judgment to support any qualifications or denials of the
4
moving party's statement of material facts with record references. Levine, 2001
ME 77, CjJ: 6, 770 A.2d 653.
2. Additional Discovery Request
Defendants contend first that no action should be taken on the motion at this
stage in the case, before discovery has been substantially started. Defendants'
arguments are focused on discovery required to support their defenses 2 rather
than their objection to the motion for partial summary judgment before the court.
The narrow issue to be decided on this motion is whether, as a matter of law, the
ownership and operation of "It's a Dogs Life" is a violation of OCRHA restrictive
covenants.
3. Partial Summary Judgment
Plaintiffs seek a declaratory judgment that defendants have violated sections
one and six of the Declaration. The court has the power to issue declaratory
judgments concerning legal rights. 14 M.R.S. §5953 (2012). "An action for
declaratory judgment is appropriate for the determination of the validity ... of a
deed. " Colquhoun v. Webber, 684 A.2d 405, 411 (Me. 1996) (citations omitted).
A declaratory judgment remedy should be used to obtain "a binding judicial
determination of [a party's] legal rights, status, or relations pursuant to statutes
or written instruments." Id. "Construction of a deed, including a restrictive
2
Defendants argue the restrictive covenants are unenforceable against them because
"the covenants have been terminated by abandonment, Plaintiffs have waived, and are
estopped from enforcing, their rights; and plaintiffs are barred from selectively
enforcing the covenants in unequal and arbitrary fashion .... " (Defs.' Opp'n to Pls.'
Mot. Summ. J. 6.) To support their position, defendants contend that they "are merely
doing what three of the other four lot owners in the neighborhood are doing: conducting
some kind of revenue-generating activity on their property." (Defs.' Opp'n to Pls.' Mot.
Summ. J. 6.) Although the defendants' claims may raise a genuine issue of material fact
regarding the plaintiffs' request for equitable relief in count II, the claims are not
relevant to the court's determination of whether defendants violated the restrictive
covenants through their ownership and operation of "It's a Dogs Life" on their property.
5
covenant, is a question of law." River Dale Assn. v. Bloss, 2006 ME 86, 'IT 6, 901
A.2d 809.
To construe a deed, the "language must be given its ordinary meaning,
and if there is no ambiguity the plain meaning controls. If the language is
ambiguous, then extrinsic evidence may be consulted to ascertain the grantor's
intent." Id. (citations omitted). The covenants in all OCRHA deeds explicitly
prohibit commercial activity and any uses other than residential. The first
section, "Use," provides: "[a]ll lots or parcels of land conveyed shall be used
solely for residential purposes and the usual and natural uses in connection
therewith .... " (Pis.' S.M.F. 'IT 14.) The sixth section, "Restrictive Uses," provides:
No livestock, poultry or other animals shall be kept or maintained
on any part of any lot, except dogs, cats or other household pets
may be kept thereon in reasonable numbers for the pleasure and
use of the occupants, but not for any commercial use or purpose.
(Pis.' S.M.F. 'IT 15.) The sixth covenant further provides: "No signs or advertising
devices, other than temporary signs less than three square feet in size will be
allowed on any lot or parcel of land without the prior written consent of
Declarant.'' (Pis.' S.M.F. ']I16.) These restrictions are not ambiguous.
As noted, the defendants object to the term "commercial dog kennel" and
its misleading connotations. They argue that '"It's a Dogs Life' is a relatively
small dog care and boarding facility that usually has 12 dogs at any one time, has
never more than 20 dogs at any one time, and that has a maximum capacity of 25
dogs at any one time." (Defs.' Reply Pis.' S.M.F. 'IT 8.) Defendants admit,
however, they charge fees to customers of "It's a Dogs Life." (Pis.' S.M.F. 'IT 22.)
Under Maine law, anyone maintaining a boarding kennel must obtain a license
from the Department of Agriculture, Conservation and Forestry. See 7 M.R.S. §
6
3932(1) (2012). 3 Defendant Nelson obtained this license. (Pis.' S.M.F. Cj[ 9.)
Further, defendants do not dispute that they have placed a sign related to their
dog kennel business on their property.
In spite of these facts, defendants argue further that because they "are not
operating a commercial farm, allowing animals to roam free, raising howling
coyotes, paving their front lawn to create a massive parking lot, or doing
anything else to change the character of the neighborhood[,]" they have not
violated the restrictive covenants. (Defs.' Mem. 6.) Although defendants argue
that it is misleading to describe the operation of a facility of less than 25 dogs as a
"commercial dog kennel," they fail to cite any legal authority to support their
position. "Commercial activity" is defined as "[a]n activity, such as operating a
business, conducted to make a profit." BLACK'S LAW DICTIONARY 38 (9th ed.
2009). Considering the for-profit nature of "It's a Dogs Life," defendants' use of
their lot is not "solely for residential purposes, and the usual and natural uses in
connection therewith."
The entry is
Plaintiffs' Partial Motion for Summary Judgment is
granted on Count I of the Complaint as follows: the
Court declares that Defendants' operation of "It's a
Dogs Life" at 58 Osprey Cove Road in Freeport, Maine
violates the following restrictive covenants in their
deed:
3
Maine Law further defines "boarding kennel" as,
any place, building, tract of land or abode in or on which 3 or more
privately owned companion animals are kept at any one time for their
owners in return for a fee or compensation and includes a facility where 3
or more companion animals are kept for training purposes for
compensation.
7 M.R.S. §3907(8) (2012).
7
Section 1, "Use" ("All lots or parcels of land conveyed
shall be used solely for residential purposes and the
usual and natural uses in connection therewith, unless
otherwise designated by Declarant, its successors and
assigns.") and
Section 6, "Restrictive Use" (No signs and advertising
devices, other than temporary signs less than three feet
in size, will be allowed on any lot or parcel of land
without the prior written consent of Declarant.
No livestock, poultry or other animals shall be kept or
maintained on any part of any lot, except dogs, cats or
other household pets may be kept thereon in
reasonable numbers for the pleasure and use of the
occupants, but not for any com ercial use or
purpose.")
•
Date: Aprill7, 2013
Nancy Mills
Justice, Superior Court
8
OSPREY COVE ROAD HOMEOWNERS ASSOCIATION - SUPERIOR COURT
PLAINTIFF CUMBERLAND, ss.
Docket No PORSC-CV-2012-00281
Attorney for: OSPREY COVE ROAD HOMEOWNERS
K~I:OM.£ - RETAINED 06/25/2012
JENSEN BAIRD ET AL DOCKET RECORD
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
Attorney for: OSPREY COVE ROAD HOMEOWNERS
~Ji\\lrnwER -RETAINED 06/25/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
ROBERT V TOOTHAKER III - PLAINTIFF
Attorney for: ROBERT V TOOTHAKER III
KENNETH COLE -RETAINED 06/25/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
Attorney for: ROBERT V TOOTHAKER III
MARK A BOWER -RETAINED 06/25/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX 4510
PORTLAND ME 04112
DIMITRA TOOTHAKER - PLAINTIFF
Attorney for: DIMITRA TOOTHAKER
KENNETH COLE -RETAINED 06/25/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
Attorney for: DIMITRA TOOTHAKER
MARK A BOWER -RETAINED 06/25/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
vs
ELLEN M KEMPIN - DEFENDANT
Attorney for: ELLEN M KEMPIN
DANIELL ROSENTHAL -RETAINED 07/09/2012
MARCUS CLEGG & MISTRETTA PA
ONE CANAL PLAZA SUITE 600
PORTLAND ME 04101-4035
PORSC-CV-2012-00281
DOCKET RECORD
Attorney for: ELLEN M KEMPIN
GENE LIBBY -RETAINED 11/20/2012
LIBBY O'BRIEN KINGSLEY & CHAMPION LLC
62 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
Attorney for: ELLEN M KEMPIN
TYLER SMITH -RETAINED 11120/2012
LIBBY O'BRIEN KINGSLEY & CHAMPION LLC
62 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
FIONA KEMPIN - DEFENDANT
Attorney for: FIONA KEMPIN
DANIELL ROSENTHAL -RETAINED 07/09/2012
MARCUS CLEGG & MISTRETTA PA
ONE CANAL PLAZA SUITE 600
PORTLAND ME 04101-4035
Attorney for: FIONA KEMPIN
GENE LIBBY -RETAINED 11120/2012
LIBBY O'BRIEN KINGSLEY & CHAMPION LLC
62 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
Attorney for: FIONA KEMPIN
TYLER SMITH -RETAINED 11120/2012
LIBBY O'BRIEN KINGSLEY & CHAMPION LLC
62 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
ALECIA NELSON - DEFENDANT
Attorney for: ALECIA NELSON
DANIELL ROSENTHAL -RETAINED 07/09/2012
MARCUS CLEGG & MISTRETTA PA
ONE CANAL PLAZA SUITE 600
PORTLAND ME 04101-4035
Attorney for: ALECIA NELSON
GENE LIBBY -RETAINED 11120/2012
LIBBY O'BRIEN KINGSLEY & CHAMPION LLC
62 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
Attorney for: ALECIA NELSON
TYLER SMITH - RETA IN ED 11120/2012
LIBBY O'BRIEN KINGSLEY & CHAMPION LLC
62 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
PORSC-CV-2012-00281
DOCKET RECORD
RALPH L HARDING -THIRD PARTY DEFENDANT
I6 OSPREY COVE ROAD
FREEPORT ME 04032
Attorney for: RALPH L HARDING
KENNETH COLE -RETAINED 08/24/20I2
JENSEN BAIRD ET AL
I 0 FREE STREET
PO BOX4510
PORTLAND ME 04I12
Attorney for: RALPH L HARDING
MARK A BOWER -RETAINED 08/24/20I2
JENSEN BAIRD ET AL
I 0 FREE STREET
PO BOX45IO
PORTLAND ME 04I12
KATHERINE H HARDING -THIRD PARTY DEFENDANT
I6 OSPREY COVE ROAD
FREEPORT ME 04032
Attorney for: KATHERINE H HARDING
KENNETH COLE -RETAINED 08/24/20I2
JENSEN BAIRD ET AL
I 0 FREE STREET
PO BOX45IO
PORTLAND ME 04112
Attorney for: KATHERINE H HARDING
MARK A BOWER -RETAINED 08/24/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX 45IO
PORTLAND ME 04112
DAVID BRENNAN -THIRD PARTY DEFENDANT
45 OSPREY COVE ROAD
FREEPORT ME 04032
Attorney for: DAVID BRENNAN
KENNETH COLE - RET AI NED 08/24/2012
JENSEN BAIRD ET AL
I 0 FREE STREET
PO BOX45IO
PORTLAND ME 04II2
Attorney for: DAVID BRENNAN
MARK A BOWER -RETAINED 08/24/20I2
JENSEN BAIRD ET AL
IO FREE STREET
PO BOX4510
PORTLAND ME 04I12
PAMELA BRENNAN -THIRD PARTY DEFENDANT
45 OSPREY COVE ROAD
FREEPORT ME 04032
Attorney for: PAMELA BRENNAN
PORSC-CV -2012-00281
DOCKET RECORD
KENNETH COLE -RETAINED 08/24/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
Attorney for: PAMELA BRENNAN
MARK A BOWER -RETAINED 08/24/2012
JENSEN BAIRD ET AL
10 FREE STREET
PO BOX4510
PORTLAND ME 04112
Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT
Filing Date: 06/25/2012
Docket Events:
06/25/2012 FILING DOCUMENT- COMPLAINT FILED ON 06/25/2012
06/25/2012 Party(s): OSPREY COVE ROAD HOMEOWNERS ASSOCIATION
ATTORNEY- RETAINED ENTERED ON06/25/2012
Plaintiff's Attorney: KENNETH COLE
Party(s): ROBERT V TOOTHAKER III
ATTORNEY- RETAINED ENTERED ON06/25/2012
Plaintiff's Attorney: KENNETH COLE
Party(s): DIMITRA TOOTHAKER
ATTORNEY- RETAINED ENTERED ON06/25/2012
Plaintiff's Attorney: KENNETH COLE
06/25/2012 Party(s): OSPREY COVE ROAD HOMEOWNERS ASSOCIATION
ATTORNEY- RETAINED ENTERED ON06/25/2012
Plaintiff's Attorney: MARK A BOWER
Party(s): ROBERT V TOOTHAKER III
ATTORNEY- RETAINED ENTERED ON06/25/2012
Plaintiff's Attorney: MARK A BOWER
Party(s): DIMITRA TOOTHAKER
ATTORNEY- RETAINED ENTERED ON06/25/2012
Plaintiff's Attorney: MARK A BOWER
06/26/2012 Party(s): OSPREY COVE ROAD HOMEOWNERS ASSOCIATION
OTHER FILING- OTHER DOCUMENT FILED ON 06/25/2012
EXHIBITS OMITTED FROM ORGINAL COMPLAINT
07112/2012 Party(s): ELLEN M KEMPIN,FIONA KEMPIN,ALECIA NELSON
MOTION- MOTION FOR ENLARGEMENT OF TIME FILED ON 07/09/2012
DEFS' ASSENTED TO MOTION TO ENLARGE TIME TO RESPOND TO COMPLAINT WI PROPOSED
ORDER.(RU)
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKE: ~~~V-12-281
/l/!11- 'a.;, aot3
OSPREY COVE ROAD 7
HOMEOWNERS
ASSOCIATION, et al.,
Plaintiffs ORDER ON PLAINTIFFS'
MOTION TO ENFORCE AND
v. TO AMEND COMPLAINT
ELLEN M. KEMPIN, et al.,
Defendants
Before the court is the plaintiffs' motion to enforce settlement agreement
and amend complaint. 1 The plaintiffs argue they entered a settlement agreement
with the defendants on 8/18/13 and seek to enforce the terms of that agreement.
(Ex. H attached to Rielly Aff.) The defendants argue that even if a settlement was
reached, the agreement was not binding on the defendants because Attorney
Libby did not have authority to settle the claim. (Ex. I attached to Rielly Aff.,
email from Attorney Libby dated 8/20/13.)
In Maine, "an attorney clothed with no other authority than that arising
from his employment in that capacity has no power to compromise and settle or
release and discharge his client's claim." Perkins v. Philbrick, 443 A.2d 73, 74
(Me. 1982) (quoting Pomeroy v. Prescott, 106 Me. 401, 76 A. 898 (1910)). The
party seeking to enforce a settlement bears the burden of proving that the
opposing counsel acted within his authority. Lane v. Me. Cent. R.R., 572 A.2d
1
The defendants argued that no evidentiary hearing was necessary; the plaintiffs
disagreed. (Defs.' Mem. 3-4; Pls.' Rep. Mem. 2.)
1
1084, 1085 (Me. 1990). In this case, there is no evidence that the defendants
authorized Attorney Libby to compromise their claim.
In Lane, the trial judge granted the "motion to confirm settlement" and
concluded, "it is important that one lawyer be able to accept another lawyer's
representation." Lane, 572 A.2d at 1084. The Law Court stated that "such
considerations might support the imposition of sanctions" but were insufficient
to discharge a party's claim. Id.; see Pls.' Mem. at 8. The issue of an award of
sanctions will be addressed at trial.
The entry is
The Motion to Enforce Settlement Agreement and
Amend Complaint is DENIED. This case is restored to
the docket and will be scheduled for trial on the
March-April2014 trial list.
Date: December 12, 2013
Nancy Mills
Justice, Superior
2
OF COURTS
:rland County
y Street, Ground Floor
td, ME 04101
GENE LIBBY ESQ
LIBBY O'BRIEN KINGLSEY & CHAMPION
6 2 PORTLAND RD
UNIT 17
KENNEBUNK ME 04043
OF COURTS
land County
"Street, Ground Floor
i, ME 04101
BRENDAN RIELLY ESQ
JENSEN BAIRD GARDNER & HENRY
PO BOX 4510
PORTLAND ME 04112