Osprey Cove Rd. v. Kempin

Maine Superior

Osprey Cove Rd. v. Kempin

DecidedDecember 12, 2013

DocketCUMcv-12-281

StatusUnpublished

This text of Osprey Cove Rd. v. Kempin (Osprey Cove Rd. v. Kempin) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Osprey Cove Rd. v. Kempin, (Me. Super. Ct. 2013).

Pincite

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., .~ ";i ;~ C:o!,;: '~.; ~ ::._ .._,. ! ... __ ,:!._, .. ":-! .,: :; ~-: _::_

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.

All individual parties own lots in the subdivision. (Pis.' S.M.F.

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.

owns property located at 58 Osprey Cove Road in Freeport. (Pis.' S.M.F.

Defendant Fiona Kempin, daughter of Ellen M. Kempin, and defendant Alecia

Nelson live at 58 Osprey Cove Road. (Pis.' S.M.F.

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.

Reply Pis.' S.M.F.

Each lot is served by a single private road, Osprey Cove Road. (Pis.'

S.M.F.

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.

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.

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.

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

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