MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2022 ME 9 Docket: Ken-21-147 Argued: December 9, 2021 Decided: February 3, 2022
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
GEOFFREY S. STIFF et al.
v.
STEPHEN C. JONES et al.
MEAD, J.
[¶1] Geoffrey S. Stiff and Carolyn B. Stiff appeal from a partial summary
judgment entered by the Superior Court (Kennebec County, Stokes, J.) in favor
of Stephen C. Jones and Jody C. Jones on the Stiffs’ claim of violations of common
restrictions in the parties’ deeds. The Stiffs contend that the Superior Court
erred when it found that there was no common scheme of development
applicable to the Joneses’ lot and that the court failed to resolve disputed facts
in the Stiffs’ favor. Because we conclude that the court improvidently granted
the Stiffs’ motion to certify the partial summary judgment as a final judgment
pursuant to M.R. Civ. P. 54(b)(1), we dismiss the appeal as interlocutory and do
not reach the merits. 2
I. BACKGROUND
[¶2] The following facts are derived from the summary judgment record
viewed in the light most favorable to the Stiffs as the non-prevailing party. See
Cach, LLC v. Kulas, 2011 ME 70, ¶ 8, 21 A.3d 1015. Edmund W. Hill was the
owner of land in Belgrade, Maine, near Sandy Cove Road during the 1950s and
1960s. In 1961, he sold ninety-seven acres to Parker Lake Shores, Inc. (PLS).
PLS created and recorded two subdivision plans for its Belgrade property
acquired from Hill: a 1962 plan titled “Section No. 1 of Plot Plan for Lake Shores
at Belgrade” (the 1962 Plan) and a 1964 plan titled “Section No. 2 of Plot Plan
for Lake Shores at Belgrade” (the 1964 Plan). The 1962 Plan depicted thirty
house lots, and the 1964 Plan depicted twenty-nine separate house lots. In
1968, Hill recorded his 1963 “Plan of Property of E.W. Hill Sandy Cove
Point – East Shore Long Pond” (the 1963 Plan) which depicts twelve house lots
adjacent to and numbered sequentially with the lots on the 1964 Plan.
[¶3] PLS sold fifty of the fifty-nine house lots depicted on the 1962 and
1964 Plans, all of which included twelve deed restrictions. According to the
Stiffs, the twelve deed restrictions included: 3
1. No building or other structure shall be erected . . . within fifteen (15) feet of any side lines of the premises (“Restriction 1”);[1] and
2. No building shall be constructed or erected on the premises other than a one-family dwelling with private garage and boathouse for private use only . . . . (“Restriction 2”).
Hill leased out and eventually conveyed the seven lots at the south end of the
1963 plan. For a time, these seven lots were known as “Hills Half Acres” and
were marked with a sign stating the same until Hill recorded his twelve-lot
1963 Plan and the sign was removed. In 1967, PLS conveyed its unsold lots
from the 1962 and 1964 Plans back to Hill. Hill—and eventually his widow—
sold the remainder of the lots on the 1962 and 1964 Plans in addition to the five
remaining lots on the 1963 Plan.
[¶4] The Stiffs own most of what is depicted as Lot 68 on the 1963 Plan
as well as additional land to the east. The Joneses own an adjacent lot that is
most of Lot 69 on the 1963 Plan as well as additional land to the east. The Stiffs’
and the Joneses’ parcels were both originally conveyed by Hill to different
parties on August 16, 1969, with twelve deed restrictions, including
Restrictions 1 and 2. The Joneses’ deed states, “This deed is subject to the
restrictions and limitations contained in a Warranty Deed to Gavin L.
1Restriction 1 as quoted in the Stiffs’ pleadings differs slightly from the summary judgment record and the restriction in the deeds for the lots at issue which states, “No building or structure shall be erected . . . within fifteen feet (15’) of any of the side lines of said premises . . . .” 4
MacKnight dated August 16, 1969 and recorded in the Kennebec County
Registry of Deeds in Book 1501, Page 871.”
[¶5] From 2017 to 2018, the Joneses constructed a two-story
free-standing building on their lot. The Stiffs assert, and the Joneses deny, that
this new two-story structure is a second free-standing one-family dwelling in
violation of Restriction 2. After the Joneses finished construction, both the
Joneses and the Stiffs commissioned surveys of their land that, while not
aligning, each determined that the new two-story building on the Joneses’ lot is
within fifteen feet of the side lines of the premises.
[¶6] On October 8, 2019, the Stiffs filed a complaint against the Joneses
in the Superior Court alleging violation of common restrictions subject to the
doctrine of implied restrictive covenants2 (Count 1) and seeking a declaratory
judgment on the disputed property line between the Stiffs’ and the Joneses’ lots
(Count 2). On December 2, 2019, the Joneses filed an answer denying they had
2 The doctrine of implied restrictive covenants is also known as the “common scheme of development” doctrine. Tisdale v. Buch, 2013 ME 95, ¶ 13, 81 A.3d 377. “We have acknowledged, but never expressly adopted, the common scheme of development doctrine . . . .” Id; see also Thompson v. Pendleton, 1997 ME 127, ¶ 11 n.2, 697 A.2d 56; 3 W Partners v. Bridges, 651 A.2d 387, 389 (Me. 1994); Olson v. Albert, 523 A.2d 585, 588 (Me. 1987); Chase v. Burrell, 474 A.2d 180, 181-82 (Me. 1984). A factual finding that a common scheme of development exists would be a prerequisite to an action seeking to enforce a deed restriction because the reciprocal servitudes arising from the common scheme provide a party standing to challenge a property owner’s alleged violation. See Restatement (Third) of Servitudes § 2.14 (Am. L. Inst. 2000). Because of the interlocutory nature of this appeal, we express no opinion regarding the viability or applicability of the common scheme of development doctrine. 5
violated any restrictions and counterclaiming for a declaration of a boundary
line with the Stiffs (Counterclaim 1); trespass (Counterclaim 2); and nuisance
(Counterclaim 3). The Stiffs and the Joneses filed cross-motions for partial
summary judgment on Count 1 of the Stiffs’ complaint.3 The Stiffs’ pleadings
put forth at least three configurations for their common scheme of
development theory: a seventy-one-lot theory, a twelve-lot theory, and a
five-lot theory. The Joneses’ motion for partial summary judgment argued that
only the twelve lots on the 1963 Plan could be considered because they were
the only lots that shared Hill as their common owner.
[¶7] Following oral arguments on the parties’ cross-motions and the
court’s in-person view of the properties, on March 12, 2021, the court denied
the Stiffs’ motion for partial summary judgment because “there are disputed
issues of material fact as to [the Stiffs’] claim that Edmund Hill and PLS ‘worked
together’ to create a single, large common scheme of development
encompassing all [seventy-one] lots within the 1962, 1963, and 1964 Plans.”
The court granted the Joneses’ motion for partial summary judgment on
3 Although the parties’ respective statements of material fact and opposing statements did not comply with M.R. Civ. P.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2022 ME 9 Docket: Ken-21-147 Argued: December 9, 2021 Decided: February 3, 2022
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
GEOFFREY S. STIFF et al.
v.
STEPHEN C. JONES et al.
MEAD, J.
[¶1] Geoffrey S. Stiff and Carolyn B. Stiff appeal from a partial summary
judgment entered by the Superior Court (Kennebec County, Stokes, J.) in favor
of Stephen C. Jones and Jody C. Jones on the Stiffs’ claim of violations of common
restrictions in the parties’ deeds. The Stiffs contend that the Superior Court
erred when it found that there was no common scheme of development
applicable to the Joneses’ lot and that the court failed to resolve disputed facts
in the Stiffs’ favor. Because we conclude that the court improvidently granted
the Stiffs’ motion to certify the partial summary judgment as a final judgment
pursuant to M.R. Civ. P. 54(b)(1), we dismiss the appeal as interlocutory and do
not reach the merits. 2
I. BACKGROUND
[¶2] The following facts are derived from the summary judgment record
viewed in the light most favorable to the Stiffs as the non-prevailing party. See
Cach, LLC v. Kulas, 2011 ME 70, ¶ 8, 21 A.3d 1015. Edmund W. Hill was the
owner of land in Belgrade, Maine, near Sandy Cove Road during the 1950s and
1960s. In 1961, he sold ninety-seven acres to Parker Lake Shores, Inc. (PLS).
PLS created and recorded two subdivision plans for its Belgrade property
acquired from Hill: a 1962 plan titled “Section No. 1 of Plot Plan for Lake Shores
at Belgrade” (the 1962 Plan) and a 1964 plan titled “Section No. 2 of Plot Plan
for Lake Shores at Belgrade” (the 1964 Plan). The 1962 Plan depicted thirty
house lots, and the 1964 Plan depicted twenty-nine separate house lots. In
1968, Hill recorded his 1963 “Plan of Property of E.W. Hill Sandy Cove
Point – East Shore Long Pond” (the 1963 Plan) which depicts twelve house lots
adjacent to and numbered sequentially with the lots on the 1964 Plan.
[¶3] PLS sold fifty of the fifty-nine house lots depicted on the 1962 and
1964 Plans, all of which included twelve deed restrictions. According to the
Stiffs, the twelve deed restrictions included: 3
1. No building or other structure shall be erected . . . within fifteen (15) feet of any side lines of the premises (“Restriction 1”);[1] and
2. No building shall be constructed or erected on the premises other than a one-family dwelling with private garage and boathouse for private use only . . . . (“Restriction 2”).
Hill leased out and eventually conveyed the seven lots at the south end of the
1963 plan. For a time, these seven lots were known as “Hills Half Acres” and
were marked with a sign stating the same until Hill recorded his twelve-lot
1963 Plan and the sign was removed. In 1967, PLS conveyed its unsold lots
from the 1962 and 1964 Plans back to Hill. Hill—and eventually his widow—
sold the remainder of the lots on the 1962 and 1964 Plans in addition to the five
remaining lots on the 1963 Plan.
[¶4] The Stiffs own most of what is depicted as Lot 68 on the 1963 Plan
as well as additional land to the east. The Joneses own an adjacent lot that is
most of Lot 69 on the 1963 Plan as well as additional land to the east. The Stiffs’
and the Joneses’ parcels were both originally conveyed by Hill to different
parties on August 16, 1969, with twelve deed restrictions, including
Restrictions 1 and 2. The Joneses’ deed states, “This deed is subject to the
restrictions and limitations contained in a Warranty Deed to Gavin L.
1Restriction 1 as quoted in the Stiffs’ pleadings differs slightly from the summary judgment record and the restriction in the deeds for the lots at issue which states, “No building or structure shall be erected . . . within fifteen feet (15’) of any of the side lines of said premises . . . .” 4
MacKnight dated August 16, 1969 and recorded in the Kennebec County
Registry of Deeds in Book 1501, Page 871.”
[¶5] From 2017 to 2018, the Joneses constructed a two-story
free-standing building on their lot. The Stiffs assert, and the Joneses deny, that
this new two-story structure is a second free-standing one-family dwelling in
violation of Restriction 2. After the Joneses finished construction, both the
Joneses and the Stiffs commissioned surveys of their land that, while not
aligning, each determined that the new two-story building on the Joneses’ lot is
within fifteen feet of the side lines of the premises.
[¶6] On October 8, 2019, the Stiffs filed a complaint against the Joneses
in the Superior Court alleging violation of common restrictions subject to the
doctrine of implied restrictive covenants2 (Count 1) and seeking a declaratory
judgment on the disputed property line between the Stiffs’ and the Joneses’ lots
(Count 2). On December 2, 2019, the Joneses filed an answer denying they had
2 The doctrine of implied restrictive covenants is also known as the “common scheme of development” doctrine. Tisdale v. Buch, 2013 ME 95, ¶ 13, 81 A.3d 377. “We have acknowledged, but never expressly adopted, the common scheme of development doctrine . . . .” Id; see also Thompson v. Pendleton, 1997 ME 127, ¶ 11 n.2, 697 A.2d 56; 3 W Partners v. Bridges, 651 A.2d 387, 389 (Me. 1994); Olson v. Albert, 523 A.2d 585, 588 (Me. 1987); Chase v. Burrell, 474 A.2d 180, 181-82 (Me. 1984). A factual finding that a common scheme of development exists would be a prerequisite to an action seeking to enforce a deed restriction because the reciprocal servitudes arising from the common scheme provide a party standing to challenge a property owner’s alleged violation. See Restatement (Third) of Servitudes § 2.14 (Am. L. Inst. 2000). Because of the interlocutory nature of this appeal, we express no opinion regarding the viability or applicability of the common scheme of development doctrine. 5
violated any restrictions and counterclaiming for a declaration of a boundary
line with the Stiffs (Counterclaim 1); trespass (Counterclaim 2); and nuisance
(Counterclaim 3). The Stiffs and the Joneses filed cross-motions for partial
summary judgment on Count 1 of the Stiffs’ complaint.3 The Stiffs’ pleadings
put forth at least three configurations for their common scheme of
development theory: a seventy-one-lot theory, a twelve-lot theory, and a
five-lot theory. The Joneses’ motion for partial summary judgment argued that
only the twelve lots on the 1963 Plan could be considered because they were
the only lots that shared Hill as their common owner.
[¶7] Following oral arguments on the parties’ cross-motions and the
court’s in-person view of the properties, on March 12, 2021, the court denied
the Stiffs’ motion for partial summary judgment because “there are disputed
issues of material fact as to [the Stiffs’] claim that Edmund Hill and PLS ‘worked
together’ to create a single, large common scheme of development
encompassing all [seventy-one] lots within the 1962, 1963, and 1964 Plans.”
The court granted the Joneses’ motion for partial summary judgment on
3 Although the parties’ respective statements of material fact and opposing statements did not comply with M.R. Civ. P. 56(h), the court did not indicate whether it deemed any of the Stiffs’ facts admitted as a result of the Joneses’ failure to properly controvert them pursuant to M.R. Civ. P. 56(h)(4) or that any of the Stiffs’ facts were not admitted for lack of appropriate record citations. See Cach, LLC v. Kulas, 2011 ME 70, ¶ 9, 21 A.3d 1015. 6
Count 1 of the Stiffs’ complaint as the court found that five to seven deeds out
of twelve from the 1963 Plan did not constitute the “vast majority” that the
Stiffs were required to show as an element of a common scheme of
development and thus they could not support their claim. On April 8, 2021, the
Stiffs filed a motion requesting that the court amend its March 12, 2021, order
by certifying it as a final judgment. Following an unrecorded telephone
conference, on April 16, 2021, the court issued a written order granting the
Stiffs’ motion and directing the entry of a final judgment in favor of the Joneses
on Count 1 of the complaint. See M.R. Civ. P. 54(b)(1). The Stiffs’ additional
claim and the Joneses’ three counterclaims remain pending. The Stiffs timely
appealed.
II. DISCUSSION
A. Certification of Partial Summary Judgment
[¶8] As a threshold question, we must first determine if this appeal is
proper because it is not taken from a final judgment that disposes of all claims
against all parties. See Corinth Pellets, LLC v. Arch Specialty Ins. Co., 2021 ME 10,
¶ 12, 246 A.3d 586. In relevant part, M.R. Civ. P. 54(b)(1) states that “when
more than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, . . . the court may direct the 7
entry of a final judgment as to one or more but fewer than all of the claims.” We
recently expounded on this exception to the final judgment rule, stating:
Rule 54(b) of the Maine Rules of Civil Procedure creates a limited exception to the strong policy against piecemeal review of litigation. In limited instances, when the resolution of one part of an action may be dispositive of the remaining unresolved components of the action, the parties may seek appellate review of one component alone by obtaining a certification of final judgment pursuant to M.R. Civ. P. 54(b)(1). In its certification, the trial court must make specific findings and a reasoned statement explaining the basis for its certification under M.R. Civ. P. 54(b)(1).
Corinth Pellets, LLC, 2021 ME 10, ¶ 12, 246 A.3d 586 (citations and quotation
marks omitted). We have previously set out factors for the trial court to
consider before certifying a partial final judgment. See Chase Home Fin. LLC v.
Higgins, 2008 ME 96, ¶ 10, 953 A.2d 1131. We consider similar factors before
deciding whether to review the judgment. See McClare v. Rocha, 2014 ME 4,
¶¶ 8, 8 n.1, 86 A.3d 22; Kittery Point Partners, LLC v. Bayview Loan Servicing,
LLC, 2018 ME 35, ¶ 8 n.4, 180 A.3d 1091; Guidi v. Town of Turner, 2004 ME 42,
¶¶ 10, 12, 845 A.2d 1189. We review the trial court’s grant of a
M.R. Civ. P. 54(b)(1) certification for abuse of discretion “but do not simply
accept the trial court’s determination; there must be a valid justification for the
determination.” McClare, 2014 ME 4, ¶ 8, 86 A.3d 22. 8
[¶9] When evaluating the Joneses’ cross-motion for summary judgment,
the court unequivocally rejected the Stiffs’ twelve-lot theory. If the issue
presented to the court were based only upon the twelve-lot configuration, the
court’s subsequent certification would have been a full and final resolution of
Count 1 of the Stiffs’ complaint. However, the Stiffs’ pleadings advanced several
independent theories under Count 1—such as a seventy-one-lot theory4 and a
five-lot theory—that if accepted by the court might result in a verdict for the
Stiffs even though their twelve-lot theory failed. The fact that the court did not
mention the alternative theories in its order might lead to an inference that the
court rejected them. However, that is an inference we cannot make on this
record.
[¶10] In this unique circumstance, although the court determined that
summary judgment was appropriate on the Stiffs’ twelve-lot theory, viable
factual configurations that might satisfy the common scheme of development
doctrine remained unresolved by the court. Considering the facts and
4The court’s order denying the Stiffs’ motion for summary judgment found that a genuine issue of material fact existed concerning the seventy-one-lot theory. Additionally, if the Joneses did properly deny the Stiffs’ statement that a smaller common scheme of development was created among only five lots in the 1963 Plan, that denial would evidence a genuine dispute of a material fact and summary judgment in favor of the Joneses would still be improper. Tisdale, 2013 ME 95, ¶ 13, 81 A.3d 377 (explaining that the determination of whether a lot is part of a common scheme of development is a factual finding). 9
circumstances of the case, the court’s certification of a partial final judgment
was based on the flawed premise that the partial summary judgment entered
in favor of the Joneses could produce a full and final resolution of Count 1 of the
Stiffs’ complaint. See Sager v. Town of Bowdoinham, 2004 ME 40, ¶ 11,
845 A.2d 567. We therefore must dismiss the appeal.
The entry is:
Appeal dismissed. Remanded for further proceedings consistent with this opinion.
Chris Neagle, Esq. (orally), Neagle Law LLC, Cumberland, for appellants Geoffrey S. Stiff and Carolyn B. Stiff
Judy A.S. Metcalf, Esq. (orally), Eaton Peabody, Brunswick, for appellees Stephen C. Jones and Jody C. Jones
Kennebec County Superior Court docket number RE-2019-57 FOR CLERK REFERENCE ONLY