DL Properties, LLC v. Stockwell

• Court: Superior Court of Maine
• Decided: November 13, 2014
• Docket: CUMcv-14-45
• Status: Unpublished

Opinion

£NTfR£D JAN 1 4 2015

STATE OF MAINE BUSINESS AND CONSUMER COURT

Cumberland, ss. AMH -Ct

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.

1 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

2 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

3 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]

4 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

5 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.

6 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

;nt~ fJrl !tie DoCket: ( l { t.'3/t':f._ ·..;(){)JaS sent Via Mail - El"'"'- • .· "- / ""·"u"'carrv .JL

7 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