Porter v. Moosehead Highlands Road

• Court: Superior Court of Maine
• Decided: May 24, 2018
• Docket: PIScv-16-1
• Status: Unpublished

Opinion

...

STATE OF MAINE SUPERIOR COURT PISCATAQUIS, SS. CIVIL ACTION DOCKET NO CV-16-1

LORNA PORTER,

Plaintiff, v. ORDER MOOSEHEAD HIGHLANDS ROAD MAINTENANCE PROPERTY OWNERS ASSOCIATION,

Defendant.

Hearing was completed on January 22, 2018. The plaintiff was present and

represented by counsel, Pasquale J. Perrino, Esq., while the defendant was present

through a representative and represented by counsel, Donald Lawson-Stopps, Esq.

A. Background

This is a dispute between a property owner and a road maintenance association

in which the plaintiff asked the Court to issue a declaratory judgment that determines

whether she is exempt from the defendant's annual maintenance fee, and if not, order

the defendant to maintain the road used to access her Ridge Parkway residence in

exchange for paying the annual fee. She also requests that liens the defendant placed

on her property be removed and that she be credited with sums she has spent to

maintain her road against any annual fee arrearage. The defendant has answered and

counterclaimed, asking the Court to declare that plaintiff has been required to pay the

annual maintenance fee since the year 2000, and to order that plaintiff pay the sums

due, costs of collection, and attorney fees.

Earlier in the litigation, the parties filed motions for summary judgment

concerning the legal issue of whether the plaintiff was required to pay the annual fee. The Court ruled that because she owned a lot that was subject to the Declaration of

Restrictions that created the Association•, the plaintiff was subject to paying the annual

fee. Because a genuine issue of material fact existed concerning whether the Association

fulfilled its obligation to maintain Ridge Parkway, the Court denied summary judgment

as to amounts due.

B. Facts

After hearing, the Court makes the following factual findings:

1. Plaintiff purchased her property at 18 Ridge Parkway in 1996.

2. Defendant did not send plaintiff annual bills or assessments for the annual

fee until 2012.

3. Although Plaintiff was aware of the Declaration of Restrictions, she did not

pay the annual fee. The first attempt to collect an annual fee was in the year

2008 when an attorney for the Association wrote her a letter demanding

payment. The present collections effort was commenced in 2012 when

defense counsel wrote a letter demanding payment, filed a lien on plaintiff's

property, and began to send an annual notice of the assessment. Plaintiff has

still not paid any sums toward annual fees, although she has spent over

$3,000 to maintain Ridge Parkway.

4. In fact, the Moosehead Highlands Road Maintenance Property Owners

Association has not maintained Ridge Parkway by plowing in the winter,

grading when appropriate, or engaging in any other meaningful activities

1 In the Declaration of Restrictions, Moosehead Highlands Inc. (Highlands), the original developer, created the entity that was to maintain the common rights of way. The homeowners were required to pay a fee for that purpose to Highlands. Later, by the Second Amendment to Declaration of Restrictions, Highlands created the defendant Property Owners Association to fulfill the maintenance responsibilities. that could be construed as maintenance. The Court believes plaintiff' s

testimony on this issue and notes that her testimony is supported by the

Association's establishment at a September 12, 2000 meeting of an annual fee

of $100, based on an estimate for all roads owned by the association "with the

exception of Ridge Parkway."

C. Analysis

The incorporation of a declaration into the lot owners' deeds under these

circumstances creates enforceable contractual rights between the lot owners and

developer. Alexander v. Fairway Villas, 719 A,2d 103, 105 (Me. 1998). One cannot recover

sums not paid under a contract "if the non-paying party rightfully withheld payment

because the party seeking damages has materially breached the contract. Island Terrace

Owners Ass'n v. Unit 91, 2012 Me. Super. LEXIS 192, citing Restatement (Second)

Contracts§ 237 (1981). A material breach is non-performance that is so important that

the other party is justified in regarding the transaction as having ended. Cellar Dwellers

Inc. v. D'Alessio, 2010 ME 32, er[ 16, 993 A.2d 1. Whether or not there has been a material

breach is a question of fact. Jenkins v. Walsh Bros., 2001 ME 98, er[ 13, 776 A.2d 1229.

According to paragraph 19 of the Declaration of Restrictions, "(I)n order to

maintain any ... rights of way as may now of hereafter be laid out in the subdivision,

the owner of each lot ... agrees: (a) to pay annually to Moosehead Highlands, Inc ....

within thirty (30) days after the same has been billed, such proportionate yearly charge

as may be necessary and appropriate for the maintenance of said common facilities or

rights of way ... " The Second Amendment to the Declaration states that its purpose is

the "maintenance, repair, and improvement of the roads serving the Lots ... " (which

includes the Porter lot). These provisions does not contemplate maintaining the rights of way as may now or hereafter be laid out in the subdivision except for the one leading

to 18 Ridge Parkway. The Court construes the provision as requiring the Association to

maintain all of the rights of way in the development and, in return, all property owners

must pay the annual fee. The Court also finds that the Association's breach is material

and preceded the plaintiff's failure to pay an annual fee. For the first four years after the

Porters purchased their lot the Association' nonprofit corporation status was under

suspension and it was unable unable to transact business. Following its revival in the

year 2000 the Association clearly demonstrated its intent not to maintain Ridge

Parkway at the September meeting and furthermore failed to submit any annual billing

demanding payment of the fee as contemplated by the declaration.

The Court's Order is:

Henceforth plaintiff is required to pay the annual fee as set by the Association

and The Moosehead Highlands Road Maintenance Property Owners Association is

required to maintain Ridge Parkway. The defendant must immediately remove any

liens that it has filed on plaintiff's property and plaintiff owes no money to the

defendant. Neither side is awarded attorney fees. The plaintiff is not entitled to an

award because there is no statute or principle authorizing payment by the opposing

party, and defendant is not entitled because the Court does not consider the defendant

as having prevailed.

Dated: May 24, 2018 «~ JUSTICE, SUPERIOR COURT