The opinion
£NTfR£D JAN 1 4 2015
STATE OF MAINE BUSINESS AND CONSUMER COURT
Cumberland, ss. AMH -Ct<A'Yl t1-t3-t tt
DL PROPERTIES, LLC
Plaintiff
v. Docket No. BCD-CV-14-45 /
DR. RICHARD S. STOCKWELL
d/b/a Atlantic Laser Clinic
Defendant
ORDER ON DEFENDANT'S MOTION TO DISMISS
Defendant's Motion to Dismiss came before the court for oral argument October 27,
2014, with attorneys Mooney and Bryant presenting argument for Plaintiff and Defendant
respective} y.
Factual Background
The following facts are drawn from the Amended Complaint docketed August 29,
2014, and from other material that both parties have put into the record in connection with
the Motion to Dismiss:
At all times relevant to this case, PlaintiffDL Properties, LLC ["DL"] owned Unit
209, Cottage Place Condominiums, a commercial condominium unit in the Town ofYork. 1
When DL purchased Unit 209 in 2006, it was leased to a David Bouthot, doing business as
Atlantic Laser Clinic (ALC). In 2007, Bouthot sold the assets of ALC to a Peter de Puy.
The transaction was an asset purchase, but specifically excluded the laser used by ALC.
DePuy continued operating ALC's business in Unit 209.
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The court is advised that DL has since sold the Unit 209 condominium unit but retains possession of
the laser that was left on the premises, as described below,
In 2009, DL as lessor and de Puy as lessee entered into a written lease of the Unit
209 premises. Dated August 26, 2009, the document is titled Commercial Lease, and on its
face it is between de Puy individually and DL. The Lease includes the following provisions:
• Section 2 provides for a two-year lease term commencing September 1, 2009 .
• Section 3 provides for base rent of $1,250/month
• Section 27 provides that if de Puy remains in possession after expiration of the two-
year term, the tenancy becomes month-to-month, terminable on 30 days' written
notice by either party, at the same monthly base rent
• Section 8 provides for de Puy to use the premises "solely for the purpose of
conducting a Laser Clinic."
• Section 9 addresses "alterations, decorations, sign, awnings, canopies, fixtures,
additions and improvements," and provides that unless all such are removed at the
expiration or termination of the Lease, they become property ofDL.
• Section 10(b) includes a provision requiring the lessee to remove "trade fixtures" on
expiration or termination.
• Section IO(d) includes the following integration provision: "This Lease constitutes
the entire agreement between Lessor and Lessee with respect to the subject matter
contained herein and there are no understandings or agreements between Lessor
and Lessee with respect to said subject matter which are not contained herein."
DePuy continued to operate ALC until January 2014, when, according to the
Amended Complaint, he and ALC abandoned the premises. However, left on the premises
was a laser unit, inferentially one used in the operations of ALC. DL took possession of the
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laser and is now keeping it in storage pending the outcome of this case. DL claims to be
owed more than $.'30,000 in amounts due under the Lease.
Defendant Richard Stockwell is a physician licensed and practicing in Maine, and he
claims to own the laser that ALC left at the Unit 209 premises. According to an invoice
entered in the record, Stockwell purchased the laser for $.'31,000 from Laser Concepts, Inc.
around the time de Puy acquired ALC. According to Stockwell and de Puy, the laser was
leased by Stockwell to de Puy and/or ALC under an oral agreement for a monthly
payment.
Material outside the pleadings submitted by DL in response to the material outside
the pleadings submitted by Stockwell indicates that ALC was operated "under the
direction" of Stockwell. Based on this and also its contention that Stockwell supervised, or
at least was legally required to supervise, all laser treatment performed at ALC, DL claims
that Stockwell had much more involvement in ALC than as an equipment lessor, and that
Stockwell is liable to DL for amounts due under the lease, on theories of partnership, joint
venture and agency. De Puy and Stockwell deny that Stockwell was a partner or owner of
ALC. Stockwell also asserts that, even if he and de Puy were partners in ALC, the fact that
the Lease is between DL and de Puy only, with no mention of Stockwell or ALC, means
that Stockwell cannot be liable to DL for amounts claimed under the Lease.
Analysis
Defendant Stockwell's Motion To Dismiss is brought under Rule 12(b)(6) ofthe
Maine Rules of Civil Procedure, and is directed to Plaintiff DL' s Amended Complaint.
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the
complaint and, on such a challenge, the material allegations of the complaint must be taken as
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admitted." Shaw v. S. Aroostook Comm. Sch. Dist., 68.3 A.2d 502, 50.3 (Me. 1996) (quotation marks
omitted). When reviewing a motion to dismiss, this court examines "the complaint in the light
most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or
alleges facts that would entitle the plaintiff to reliefpursuant to some legal theory." !d. A
dismissal under M.R. Civ. P. 12(b)(6) will be granted only "when it appears beyond a doubt that
the plaintiff is entitled to no relief under any set offacts that he might prove in support ofhis
claim." !d. (quotation marks omitted). SeealsoBellAtl. Corp. v. Twombly, 550 U.S. 544,555
(2007) ("a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do .... Factual allegations must be enough to raise a right to relief above the
speculative level .... ") (alteration in original) (citations omitted).
In this case, however, Defendant Stockwell's motion relies on material outside the
pleadings, including but not limited to, the Lease. When materials outside the pleadings are
incorporated or referred to in a Rule 12(b)(6) motion, the court must decide whether to
consider or exclude the additional materials, and if they are considered, the motion to dismiss is
ordinarily converted into a motion for summary judgment. See Beaucage v. City of Rockland,
2000 ME 184, ~ 5, 760 A.2d 1054, 1056; In re Magro, 655 A.2d 341, .342 (Me. 1995). See also
M.R. Civ. P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of
the pleading to state a claim upon which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for summary
. dgment .....
JU ")
However, the Law Court has recognized an exception to this general rule, covering
three types of material outside the pleadings: "[O]fficial public documents, documents that are
central to the plaintiffs claim, and documents referred to in the complaint [can be considered]
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without converting a motion to dismiss into a motion for a summary judgment when the
authenticity of such documents is not challenged." See Moody v. State Liquor and Lottery
Commission, 2004 ME 20, ~ 10, 843 A.2d 43, 48. The focus of these exceptions is on documents
relevant to the plaintiffs position ("central to the plaintiffs claim", "referred to in the
complaint"), consistent with the principle that a Rule 12(b)(6) motion requires the complaint to
which it is directed to be viewed in a light most favorable to the plaintiff
Both parties have submitted material outside the pleadings well beyond the limits on
such materials defined by the Moody exception.
Essentially, Stockwell's position is that he cannot be deemed liable to DL for amounts
due under the Lease because the Lease was entered into by de Puy alone, and contains no
reference to Stockwell, and because the Lease contains an integration clause that disclaims any
understandings not within the four corners of the Lease. Stockwell has also tendered an
affidavit from de Puy that denies that he and Stockwell were partners in ALC.
DL's response is that Stockwell is potentially liable under theories of de facto
partnership and agency, and that DL should be permitted to develop its theories through
discovery. Specifically, DL notes that the Lease specifically contemplates that the premises
would be used to operate a laser clinic. DL's material includes an affidavit from its principal,
David Ferland, to the effect that DL relied on ALC, and also includes copies of advertising in
which ALC is described as operating "[u]nder the direction of Dr. Richard Stockwell, DO ... "
Based on a Board of Licensure in Medicine consent agreement with a physician, DL contends
that Maine law requires laser treatment to be administered under the supervision of a
physician, thereby mandating Stockwell's active involvement in the operation of ALC.
DL cites the Law Court case of QAD Investors, Inc. v. Kelly, in arguing that the law of
partnership and the law of agency could, under a plausible set of facts to be developed, impose
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liability on Stockwell. 2001 ME 116, 776 A.2d 1244. However, QAD Investors is
distinguishable in that the promissory note included the name and a blank signature line for the
partner whom the plaintiffs sought to hold liable, whereas the Lease here does not mention
Stockwell. On the other hand, ALC was already operating on the premises when the Lease was
executed in 2009, and the Lease makes reference to the premises being used for a laser clinic, so
the QAD Investors ruling is not entirely irrelevant to this analysis.
To DL's allegations, Stockwell responds by arguing that, even if he and de Puy were
partners in ALC, the Lease itselfis plainly an obligation of de Puy individually, so any
involvement by Stockwell in ALC, as a partner or otherwise, does not make him personally
liable on the Lease. This assertion is not necessarily correct. If the leasehold interest that
DePuy acquired was partnership property, which it could have been if paid for with partnership
assets, seeS 1 M.R.S. § 1024(S) (presumed partnership property), then it might not be not too
long a logical leap to deem the obligation to pay rent a partnership obligation for which all
partners are jointly and severally liable.
Dr. Stockwell's relationship with ALC appears clearly to be more than that of an
equipment lessor. If he was as integrally and actively involved in the operations of ALC as the
advertising in the record seems to suggest, and if the leasehold interest nominally acquired by
de Puy was partnership property, then there could be a basis for DL to recover. Moreover,
whether DL or Stockwell has the superior right to possession of the laser that DL has retained
is clearly going to be an issue in this case regardless of whether Stockwell is liable for amounts
due under the Lease.
For these reasons, and because there is more extrinsic material before the court than the
Rule 12(b)(6) analysis contemplates, even under the Moody exception, the court in its discretion
declines to apply the Moody exception, and excludes all material extrinsic to the pleadings.
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Based on that step, the court concludes that the Amended Complaint states valid claims for
relief, and denies the Motion to Dismiss. The case shall proceed as outlined in the October 17,
'2014 Case Management Order.
IT IS HEREBY ORDERED: Defendant's Motion to Dismiss is denied.
Pursuant to M.R. Civ. P. 79(a), the clerk is directed to incorporate this Order by
reference in the docket.
Dated November 1.3, '2014
A.M. Horton
Justice
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DL Properties, LLC v. Dr. RichardS. Stockwell d/b/a Atlantic Laser
Clinic
BCD-CV-14-45
DL Properties, LLC
Plaintiff
Counsel: James Bartlett, Esq.
David Mooney, Esq.
28 Long Sands Rd. Suite 3
PO Box 836
York, ME 03909
Dr. RichardS. Stockwell d/b/a Atlantic Laser Clinic
Defendant
Counsel: Timothy Bryant, Esq.
John Cronan, Esq.
One City Center
Po Box 9546
Portland, ME 04112-9546