Sunset Hill Investments, LLC v. The Lodges Condo. Assn.

• Court: Superior Court of Maine
• Decided: June 10, 2014
• Docket: CUMre-14-84
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-14-84

SUNSET HILL INVESTMENTS, LLC, 1A-W-Gl1H- o~-to --Jtt et. al.

Plaintiffs ORDER ON MOTION TO v. DISMISS COMPLAINT AND COMPEL ARBITRATION THE LODGES CONDOMINIUM ASSOCIATION,

Defendant

and STATE OF t.WNE Cumberland. ss. Clerk's Office PETER RICE, et. al. JUN 10 2014 Parties-in-Interest. RECEIVED This matter is before the Court on defendant's motion to dismiss the

complaint and compel arbitration. For the following reasons, the motion is

granted.

BACKGROUND The following facts are taken from plaintiffs' complaint. The defendant

condominium association deeded an easement to plaintiff Sunset Hill

Investments, LLC and its assigns, granting access over Whip Willow Farm Road.

(Compl.

Lodges Mountain Homes Subdivision. (Compl.

for maintaining the easement, but plaintiffs and the other subdivision owners are

responsible for reimbursing the defendant for their "percentage share" of the

costs as defined in the easement deed. (Compl.

for easement costs to plaintiffs. (Compl. <[<[ 28, 30, 32.) After receiving each

invoice, the plaintiffs demanded that defendant provide copies of bills for the

incurred expenses, but each time defendant refused to provide any

documentation. (Compl. <[<[ 29, 31, 33.) On December 20, 2013, defendant filed

Notices of Assessment for each of the lots in the Lodges Mountain Homes

Subdivision. (Compl. <[<[ 35-36.) One of the lots in the subdivision came under

contract in January 2014. (Compl. <[ 37.) After the purchaser's attorney

discovered the amount of the unpaid lien, however, the purchaser backed out of

the deal. (Compl. <[<[ 37-40.) This suit followed.

Plaintiffs' complaint includes three counts: slander of title (count I),

tortious interference with a contractual relationship (count II), and breach of

contract (count III). Defendant argues that plaintiffs agreed that all claims

relating to the easement must be arbitrated at defendant's election. The easement

deed contains the following provision:

Section 7. Dispute, Venue and Jurisdiction. At the election of Grantor and upon written notice by Grantor to Grantee: (a) any dispute or claim arising from or relating to this Easement Deed shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association, which shall take place in Portland, Maine, unless otherwise agreed to by Grantor ....

(Pl.s' Compl. Ex. D.)l Plaintiffs do not dispute that its claims are subject to the

arbitration provision (Pls.' Opp. Mem. at 5.), but argue that defendant has

waived its right to arbitration.

1 The Court can look at the easement deed on this motion to dismiss because it is attached to the complaint. Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, «j[ 10, 843 A.2d 43.

2 DISCUSSION

Because this is a motion to dismiss, the Court accepts the facts alleged in

plaintiffs' complaint as true. Richardson v. Winthrop Sch. Dep't, 2009 ME 109, <[

5, 983 A.2d 400. When facts are not in dispute, "the determination of whether a

party has waived its contractual right to arbitration is a question of law ...."

Saga Commc'ns of New England v. Voornas, 2000 ME 156, <[ 7, 756 A.2d 954. "In

evaluating whether waiver has occurred, each case must be evaluated upon its

specific facts; there are no bright line rules." Id. <[ 11. Because of the strong

presumption in favor of arbitration, "waiver is not to be lightly inferred." M,; see

also V.I.P., Inc. v. First Tree Dev., LLC, 2001 ME 73, <[ 4, 770 A.2d 95 ("Maine has

a broad presumption favoring substantive arbitrability.").

A party may have waived its right to arbitrate if it has "undertaken a

course of action inconsistent with its present insistence upon its contractual right

to arbitration." Saga Commc'ns of New England, 2001 ME 73, <[ 12, 770 A.2d 95.

Waiver is present if "the party now seeking to compel arbitration ... ha[s]

demonstrated a preference for litigation over arbitration." Id. (quotation marks

omitted). Even where a party has initiated the litigation, it may not have waived

its right to arbitration. See Hall v. Internet Capital Group, Inc., 338 F. Supp.2d

145, 153 (D. Me. 2004) (finding no waiver where plaintiffs filed complaint and

moved to compel arbitration twenty-two months later).

In this case, defendant did not initiate the litigation. Defendant has only

filed the present motion to compel arbitration, which it promptly filed in lieu of

an answer. Plaintiffs argue that by issuing plaintiffs the invoices, refusing to

provide the requested bills, and then filing the Notices of Assessment, defendant

waived its right to arbitration. The Court rejects this argument. Waiver occurs

3 when a party initially chooses to pursue litigation and then attempts to compel

arbitration after availing itself of court processes. Defendant has not pursued

litigation in this case; it has therefore not waived its right to arbitration.

The entry is:

Defendant's motion to compel arbitration is GRANTED and this matter is stayed pending arbitration.

Dated: k7 \ \.0 \ \'-\ ~eBer Jus ce, Superior Court

PA-Maura Horodyski Esq DA (The Lodges Condo Assoc.)-Frank Chowdry Esq