The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. RE-2018-273
DEBORAH L. OGLE, Trustee of the
Deborah Lee Ogle Revocable Trust,
Plaintiff /Counterclaim
Defendant,
DECISION AND JUDGMENT
Vv.
OVERLOOK ROAD AT BRIDGTON
ASSOCIATION,
Defendant/ Counterclaim
Plaintiff.
eee eet ee See See ot” he me” Stee” Sie” Steet” “tinge Steer”
Trial in this matter was held on June 15 and 16, 2023. Trial was limited to Count I
of the Complaint, breach of contract. All remaining counts of the Complaint and
Counterclaim were resolved before trial. Plaintiff/Counterclaim Defendant Deborah L.
Ogle (Ms. Ogle”) introduced her own testimony as well as the testimony of James Curtis
and Hileen Barry. Defendant /Counterclaim Plaintiff Overlook Road at Bridgton
Association (“the Association”) introduced the testimony of Kenneth Ainsley. Based on
the evidence admitted at trial, the Court makes the following findings of fact and
conclusions of law.
I. Findings of Fact
The Association is a homeowners’ association in Bridgton, Maine. The Deborah Lee
Ogle Revocable Trust is a member of the Association and the record title holder of real
property with frontage on Kezar Heights Road in Bridgton. Ms. Ogle resides on the
property.
Kezar Heights Road is roughly U-shaped, intersecting at either end with Knights
Hill Road. Ms. Ogle’s property does not have frontage on Knights Hill Road. There is one
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lot between Ms. Ogle’s property and Knights Hill Road. Ms. Ogle’s lot is large enough to
be subdivided, but it had not been subdivided at the time of trial.
At meetings in 2000 and 2002, members of the Association discussed a plan to
bring electrical service to the entirety of Kezar Heights Road, to be accomplished in
phases as lots were developed. (P1’s Exs, 1, 3.) The Association’s plan to bring power
“around” Kezar Heights Road was also discussed at a 2006 meeting for which Ms. Ogle
was present. (P1.’s Ex. 12.)
Ms. Ogle’s property was one of the last lots on Kezar Heights Road to be
developed. When she was ready to develop her property, electrical service had not yet
been brought as far as her property.
Prior to the commencement of this action, the parties engaged in litigation
regarding the extension of an electrical line to Ms. Ogle’s property. That litigation
resolved with the execution of a mutual release in 2010 (the “Mutual Release”). (See Pl.’s
Ex. 15.)
The Mutual Release provides, in pertinent part:
The parties also agree that the Association will pay to have the electrical
service completed along the length of Kezar Heights Road and specifically
brought in front of Ogle’s property when Ogle its successor or assigns
receives a building permit for the property at no direct or indirect expense
to or as an assessment against Ogle, her heirs or assigns or the Ogle
property.
(PL’s Ex. 15.) The parties dispute the meaning of this language.
Ms. Ogle testified to her understanding that the Board of Directors of the
Association (“the Board”) had committed to electrifying the entirety of Kezar Heights
Lane prior to execution of the Mutual Release. Ms. Ogie introduced a redlined draft of
the Mutual Release, in which Ms. Ogle requested the addition of the “along the length”
language. (See Pl.’s Ex. 16-4.) The initial draft already included the “brought in front of
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Ogle’s property” language. (See PL.’s Ex. 16-4.) Ms. Ogle intended the Mutual Release
language to reflect her understanding of the Board’s plan.
James Curtis, who signed the Mutual Release as Acting President of the Board,
testified that he understood the disputed language to obligate the Association to bring
power to one point on Ms. Ogle’s property, but no farther.
On June 19, 2011, Ms. Ogle emailed members of the Board to inform them that she
had secured a building permit and contacted Central Maine Power to bring electrical
service to her property. Electrical service was extended only as far as necessary to reach
the permitted structure. It was not extended along the entire frontage of Ms. Ogle’s
property. The Association reimbursed Ms. Ogle for the expense she incurred. (See PL’s
Ex. 21; Def.’s Ex, 64.)
In 2016, Ms. Ogle notified the Association of her intent to build an additional
structure on her property. She requested that the Association pay for electrical service to
be extended farther along the frontage of her property on Kezar Heights Road to reach
the new structure. On November 6, 2016, the Association voted to take no action on Ms.
Ogle’s request. (PI.’s Ex. 25.)
IL Conclusions of Law
Ms. Ogle argues that the Association had an obligation under the Mutual Release
to extend electrical service along the entire frontage of Ms. Ogle’s property and beyond,
to the intersection of Kezar Heights Road and Knights Hill Road. She argues that each
time she receives a building permit, the Association is obligated to extend electrical
service to that building. When the Association voted to take no action on Ms. Ogle’s 2016
request, she argues that the Association breached the Mutual Release.
The Association argues that it was obligated to reimburse Ms. Ogle for extending
electrical service only as far as necessary to reach the first structure for which she received
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a building permit. The Association argues that it had no continuing obligation triggered
by subsequent building permits.
At trial, the Association moved for judgment as a matter of law on the grounds
that Ms. Ogle’s claim is time-barred and that she failed to introduce evidence of damages
in her case-in-chief, The Court took the motion under advisement.
A. Statute of Limitations
Civil actions must be commenced “within 6 years after the cause of action accrues
and not afterwards.” 14 M.R.S. § 752 (2023). Whether or not this action is time-barred
depends on when the breach of contract claim accrued. “A breach of contract claim
accrues ‘when the defendant breaches the contract,” which occurs when one party fails
to provide the bargained-for benefit. York County v. PropertyInfo Corp., 2019 ME 12, { 18,
200 A.3d 803 (quoting Gile v, Albert, 2008 ME 58, J 8, 943 A.2d 599). If the contract does
not specify the time for performance, “a reasonable time is implied.” Me. Mut. Fire Ins.
Co. v. Watson, 532 A.2d 686, 689 (Me. 1987).
To determine whether and when the Association breached the Mutual Release, the
Court must interpret the disputed language in the Mutual Release. The Court construes
contracts “in accordance with the intention of the parties, which is to be ascertained from
an examination of the whole instrument. All parts and clauses must be considered
together that it may be seen if and how one clause is explained, modified, limited or
controlled by the others.” Am. Prot. Ins. Co. v. Acadia Ins. Co., 2003 ME 6, J 11, 814 A.2d
989 (quoting Peerless Ins. Co. v. Brennon, 564 A.2d 383, 384-85 (Me. 1989)). “Ultimately, we
seek to give effect to the plain meaning of the words used in the contract and avoid
rendering any part meaningless.” Dow v. Billing, 2020 ME 10, {| 14, 224 Add 244. If,
however, the language of the contract is ambiguous, “the interpretation of the ambiguous
language becomes a question for the fact-finder to resolve by taking extrinsic evidence.”
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Id.
i. Required Performance
The language, “the Association will pay to have the electrical service completed
along the length of Kezar Heights Road and specifically brought in front of Ogle’s
property” is ambiguous. The language could be reasonably understood to mean that the
Association is obligated to pay to have electrical service installed along the entire length
of the Kezar Heights Road, including a pole or poles on Ms. Ogte’s property’s frontage.
Alternatively, the language might mean that the Association must pay for electrical lines
to be strung parallel to Kezar Heights Road from the last existing pole to Ms. Ogle’s
property’s frontage on Kezar Heights Road, but not from the property’s frontage to any
structure to be built on Ms. Ogle’s property, Accordingly, it is appropriate for the Court
to consider extrinsic evidence of the language’s meaning.
From Board meeting minutes, it is apparent that the Association planned for
electrical service to eventually run continuously from one end of Kezar Heights Road to
the opposite end. Ms. Ogle’s testimony made clear that the language she proposed to add
to the Mutual Release was meant to obligate the Association to carry out the plan to
electrify the entire length of Kezar Heights Road. The choice of the word “complete”
rather than “extend” or “bring” also reflects this intention.
Although the Association argues that this interpretation makes surplusage of the
phrase “and specifically brought in front of Ogle’s property,” the Court disagrees.
Testimony explained that this language was intended to ensure that the power lines were
installed along Ms. Ogle’s property’s frontage, rather than on the opposite side of Kezar
Heights Road.
The Court finds that the Mutual Release obligated the Association to pay for the
extension of electrical service from the last pole on Kezar Heights Road to Knights Hill
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Road, including the frontage of Ms. Ogle’s property, so that the entirety of Kezar Heights
Road was electrified.
ii. Timing of Breach
Having concluded that the Association was obligated to extend power the entire
length of Kezar Heights Road, the Court must next determine when this performance
was due. Ms. Ogle’s interpretation that each building permit she received would trigger
a further extension of power is inconsistent with her position (and the Court’s
interpretation) that the Association was obligated to extend power beyond her property
line to the intersection of Knights Hill Road. Under Ms. Ogle’s interpretation, the
Association would never become obligated to extend power past Ms. Ogle’s property
line, no matter how many permits she received.
Ms. Ogle argues that the language “Ogle its successor or assigns” suggests that, if
Ms. Ogle were to subdivide her property, the Association would become obligated to
perform each time the purchaser of a lot received a building permit. In other words, Ms.
Ogle claims that the language does not foreclose the possibility of multiple building
permits triggering the Association’s obligation at different times. Ms. Ogle’s lot, however,
has not been subdivided.
The Court finds that the Association became obligated to perform in full when Ms.
Ogle first notified the Association that she had obtained a building permit. When the
Association did not pay for completion of the electrical line to the end of Kezar Heights
Road within a reasonable time after Ms. Ogle received her first building permit in 2011,
it breached the Mutual Release.
In York County v. PropertyInfo Corporation, Inc. the Law Court discussed the
“continuing breach doctrine,” which provides that a new cause of action repeatedly or
continuously arises when a party’s actions or omissions constitute repeated or continuous
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breaches of a contract. 2019 ME 12, 9 20-25, 200 A.3d 803. The Law Court noted that
states that recognize the continuing breach theory typically apply it only in the context of
installment contracts or contracts that call for periodic non-payment performances. Id, {
22, Other states do not recognize the theory under any circumstances. Id. 23.
The Law Court held that, even if it were to recognize the continuing breach theory,
it would not apply to the facts of that case, “where a material breach of a service contract
occurred when the defective database was delivered.” Id, { 25.
Having found that the Mutual Release obligated the Association to pay for
completion of electrical service along the entire length of Kezar Heights Road and that
performance was due within a reasonable time after Ms. Ogle received her first building
permit, the Mutual Release is not the kind of contract to which the continuing breach
doctrine would apply, even if Maine law recognized the theory. The Association
breached the Mutual Release in 2011 or early 2012, at the latest. The decision to take no
action on Ms. Ogle’s 2016 request was not a new breach giving rise to a new cause of
action. Because more than six years passed between the breach and Ms. Ogle’s
commencement of this action in October 2018, this action is time-barred.
B. Breach of Contract Claim
Even if Ms. Ogle’s claim was not time-barred, she failed to establish the elements
of breach of contract. To establish a valid contract, a party must show consideration and
mutual assent to be bound by the material terms of the agreement. Tobin v. Barter, 2014
ME 51, J 9, 89 A.3d 1088 (quoting Sullivan v. Porter, 2004 ME 134, { 13, 861 A.2d 625). To
obtain relief for breach of contract, the plaintiff must demonstrate that the defendant
breached a material term of the contract, and that the breach caused the plaintiff to suffer
damages. Id, { 10.
The parties did not dispute at trial that the Mutual Release was valid and binding.
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Ms. Ogle, however, did not present evidence of damages in her case-in-chief. After the
Association rested, Ms. Ogle was recalled to testify about the value of her property and
how it was affected by the Association’s breach. Although the Court allowed Ms. Ogle to
be heard, the Court will not consider this testimony because it did not serve to rebut
evidence generated by the Association’s witnesses. See M.R. Evid. 611 (a).
And although property owners may generally testify as to their opinion about the
value of their property, the Court would accord no weight to Ms. Ogle’s opinion about
the reduction in value of her property caused by the incomplete electrical service or the
cost of completing the installation of electrical service along her property’s frontage. See
Hutz v. Alden, 2011 ME 27, J 15, 12 A.3d 1174.
Moreover, Ms. Ogle has not shown that she is entitled to specific performance.
“TA]n equitable remedy such as specific performance will not be granted where there
exists an adequate remedy at law.” McIntyre v. Plummer Assocs., 375 A.2d 1083, 1084 (Me.
1977). The Mutual Release obligates the Association “to pay to have the electrical service
completed.” The Association’s breach would presumably be adequately remedied by
money damages in the amount it would cost for Ms. Ogle to complete electrification of
her property.' In any event, Ms, Ogle has not shown that she lacks an adequate remedy
at law.
Having failed to introduce competent evidence of damages that she would be
entitled to recover, Ms. Ogle has not upheld her burden,
Ik. Conclusion
For the foregoing reasons, judgment is entered in favor of the Association on
Count I of the Complaint.
1 Ms. Ogle’s own testimony about a reduction in the value of her property suggests that there
exists an adequate remedy at law.
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The entry is:
Judgment is entered for Defendant Overlook Road at Bridgton Association
on Count I of the Complaint filed by Plaintiff Deborah L. Ogle, as Trustee
of the Deborah Lee Ogle Revocable Trust.
The Clerk is directed to incorporate this Decision and Judgment into the docket by
reference pursuant to Maine Rule of Civil Procedure 79{a).
Dated: Pl 11/23 /
/ / Mary(éay Kennedy, Justice)
Méizte Superior Court
a
Entered on the Docket £/ \\/Ao23
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