STATE OF MAINE SUPERIOR COURT /
CUMBERLAND, ss. CIVIL ACTION 1'- DOCKET NO. CV-04-584 *. \ iq - (j ' , !
JOSEPH TEDESCHI, ET AL, * * Plaintiffs * v. * ORDER * HELEN TRUMAN,
Defendant * *
B-~ L;--Eb~I- ED >q F
This case comes before the Court on Defendant Helen Truman's Motion
for Tudgment on the Pleadings pursuant to M.R. Civ. P. 12(c). /
FACTUAL BACKGROUND
On July 2, 1996, Defendant Helen Truman (Defendant) granted Plaintiffs
Joseph Tedeschi and Lillian Serrechia (Plaintiffs)a right of first refusal on
Defendant's property located at 366 Pine Point Road in Scarborough, Maine. The
right of first refusal came about after Plaintiffs purchased property located at 372
Pine Point Road from Nicolas Truman and Peter Truman. In the same
transaction, Defendant reserved an easement over 372 Pine Point Road. In
exchange for the burden of the easement over 372 Pine Point Road, the parties
agreed that Plaintiffs would have a right of first refusal over Defendant's
property. Notwithstanding t h s agreement, on September 23, 1998, without
notifying Plaintiffs, Defendant deeded the property located at 366 Pine Point
Road to Nicolas Truman.
Plaintiff's filed a complaint on September 17,2004 seekng relief for breach
of contract (Count I), specific performance (Count 11), fraudulent conveyance
(Count 111), and tortious interference with contractual relations (Count IV). On July 21,2005, Defendant filed a motion for judgment on the pleadings based on
the assertion that the right of first refusal violates the rule against perpetuities.
DISCUSSION
A motion for judgment on the pleadings pursuant to M.R. Civ. P. 12(c)
examines only the legal sufficiency of the complaint. Monopoly, Inc. v. Aldrich,
683 A.2d 506,510 (Me. 1996)."A complaint is not dismissed for insufficiency of
the claim unless it appears to a certainty that under no facts that could be proved
in support of the claim is the plaintiff entitled to relief. Id. Defendant argues that
because the "Binding Effect" clause in the right of first refusal "binds the heirs,
executors, administrators, successors and assigns of Grantor and Grantee," the
agreement on its face runs afoul of the rule against perpetuities.
"The purpose of the rule against perpetuities is to prevent the tying up of
property to the detriment of society." LOTUv. Spellman, 629 A.2d 57, 59 (Me. 1990).
A right of first refusal that intends to apply to all the heirs and assigns of the
original parties to the contract runs afoul of the rule against perpetuity. Low v.
Spellman, 629 A.2d 57, 59 (Me. 1990).
The rule against perpetuities is not a rule of construction, but a peremptory command of the law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Therefore, every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed[,] the rule is to be remorselessly applied.
\mite v. Fleet Bank, 1999 ME 148, qlql 10-11, 739 A.2d 373, 377.'
The task before the Court is to examine the right of first refusal together
with paragraph ten, the binding effect clause. At the outset, the right of first
"Maine follows the traditional common law rule against perpetuities that, no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." refusal states that Helen Truman, grantor; Lillian Serracchia, and Joseph
Tedeschi, grantees, covenant and agree that Helen Truman may not sell, transfer,
alienate, or assign her property voluntarily or involuntarily without first offering
it to Plaintiffs. The binding effect clause states that "[tlhe rights, terms and
conditions of t h s right of first refusal shall apply to and bind the heirs, executors,
administrators, successors and assigns of the Grantor and Grantee."
Defendant interprets the binding effect clause to mean that the heirs,
executors, administrators, successors and assigns share the same rights as
Plaintiffs and Defendant, thus creating a perpetual restrain on alienation. In
support of this interpretation, Defendant cites Low v. Spellnzalz. Similar to the
agreement in Low, Defendant asserts that this agreement applies to all the heirs
and assigns of the original parties to the contract. In Low, the right of first refusal
stated as follows:
That Elizabeth M. Towle covenants and agrees for Izerse6 her heirs and assigns, and her husband J. Frank Towle further covenants and agrees for hmself, his heirs and assigns, that in the event that they or either of them should desire to sell and convey the above described real estate, that they shall first offer to sell and convey the same to the Gradys, their heirs or assigns, for the sum of $ 6500.00, plus the cost of any capital improvements made on said premises by Elizabeth M. Towle, J. Frank Towle and their heirs and assigns.
Low v. Spelllnan, 629 A.2d 57 (Me. 1993) (emphasis added).'
Plaintiffs, on the other hand, contend that the binding effect clause does not
redefine the terms "grantor" and "grantee," but rather clarifies that the heirs,
executors, administrators, successors and assigns are bound by the agreement.
Plaintiffs further expIain that t h s clause is important to make dear that the
The Court also held that a fixed price violates the rule against perpetuities.
3 grantor's obligations under the agreement cannot be avoided by her heirs,
executor's, administrators, successors and assigns.
The Court agrees with Plaintiffs interpretation. The right of first refusal in
Lo70 explicitly stated that the grantors, Mr. and Mrs. Towle, made the agreement
in their names and in the names of their heirs and assigns. Thus, in holding the
same rights as the grantors, the heirs and assigns essentially became grantors
themselves. Here, the agreement is clear that Defendant is the sole grantor and
Plaintiffs are the sole grantees3 A reasonable reading of the binding effect clause
is that it gives notice to the heirs, executor's, administrators, successors and
assigns that any property transferred to them, voluntarily or involuntarily, is first
subject to the Plaintiff's right of first refusal.
In reading the entire document, it is clear that in the event of Defendant's
death, or the transfer of the property to someone else, Plaintiffs' rights to
purchase the property would vest. At that point there would be no restraint on
alienation because Plaintiffs would have the option to purchase the property.
Likewise, there would be no restrain on alienation if they did not exercise their
rights to purchase the property. The property would merely pass on as directed
by the Grantor or via intestacy.
The Defendant's Motion for Judgment on the Ple
DATE: /'$;266f
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT /
CUMBERLAND, ss. CIVIL ACTION 1'- DOCKET NO. CV-04-584 *. \ iq - (j ' , !
JOSEPH TEDESCHI, ET AL, * * Plaintiffs * v. * ORDER * HELEN TRUMAN,
Defendant * *
B-~ L;--Eb~I- ED >q F
This case comes before the Court on Defendant Helen Truman's Motion
for Tudgment on the Pleadings pursuant to M.R. Civ. P. 12(c). /
FACTUAL BACKGROUND
On July 2, 1996, Defendant Helen Truman (Defendant) granted Plaintiffs
Joseph Tedeschi and Lillian Serrechia (Plaintiffs)a right of first refusal on
Defendant's property located at 366 Pine Point Road in Scarborough, Maine. The
right of first refusal came about after Plaintiffs purchased property located at 372
Pine Point Road from Nicolas Truman and Peter Truman. In the same
transaction, Defendant reserved an easement over 372 Pine Point Road. In
exchange for the burden of the easement over 372 Pine Point Road, the parties
agreed that Plaintiffs would have a right of first refusal over Defendant's
property. Notwithstanding t h s agreement, on September 23, 1998, without
notifying Plaintiffs, Defendant deeded the property located at 366 Pine Point
Road to Nicolas Truman.
Plaintiff's filed a complaint on September 17,2004 seekng relief for breach
of contract (Count I), specific performance (Count 11), fraudulent conveyance
(Count 111), and tortious interference with contractual relations (Count IV). On July 21,2005, Defendant filed a motion for judgment on the pleadings based on
the assertion that the right of first refusal violates the rule against perpetuities.
DISCUSSION
A motion for judgment on the pleadings pursuant to M.R. Civ. P. 12(c)
examines only the legal sufficiency of the complaint. Monopoly, Inc. v. Aldrich,
683 A.2d 506,510 (Me. 1996)."A complaint is not dismissed for insufficiency of
the claim unless it appears to a certainty that under no facts that could be proved
in support of the claim is the plaintiff entitled to relief. Id. Defendant argues that
because the "Binding Effect" clause in the right of first refusal "binds the heirs,
executors, administrators, successors and assigns of Grantor and Grantee," the
agreement on its face runs afoul of the rule against perpetuities.
"The purpose of the rule against perpetuities is to prevent the tying up of
property to the detriment of society." LOTUv. Spellman, 629 A.2d 57, 59 (Me. 1990).
A right of first refusal that intends to apply to all the heirs and assigns of the
original parties to the contract runs afoul of the rule against perpetuity. Low v.
Spellman, 629 A.2d 57, 59 (Me. 1990).
The rule against perpetuities is not a rule of construction, but a peremptory command of the law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Therefore, every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed[,] the rule is to be remorselessly applied.
\mite v. Fleet Bank, 1999 ME 148, qlql 10-11, 739 A.2d 373, 377.'
The task before the Court is to examine the right of first refusal together
with paragraph ten, the binding effect clause. At the outset, the right of first
"Maine follows the traditional common law rule against perpetuities that, no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." refusal states that Helen Truman, grantor; Lillian Serracchia, and Joseph
Tedeschi, grantees, covenant and agree that Helen Truman may not sell, transfer,
alienate, or assign her property voluntarily or involuntarily without first offering
it to Plaintiffs. The binding effect clause states that "[tlhe rights, terms and
conditions of t h s right of first refusal shall apply to and bind the heirs, executors,
administrators, successors and assigns of the Grantor and Grantee."
Defendant interprets the binding effect clause to mean that the heirs,
executors, administrators, successors and assigns share the same rights as
Plaintiffs and Defendant, thus creating a perpetual restrain on alienation. In
support of this interpretation, Defendant cites Low v. Spellnzalz. Similar to the
agreement in Low, Defendant asserts that this agreement applies to all the heirs
and assigns of the original parties to the contract. In Low, the right of first refusal
stated as follows:
That Elizabeth M. Towle covenants and agrees for Izerse6 her heirs and assigns, and her husband J. Frank Towle further covenants and agrees for hmself, his heirs and assigns, that in the event that they or either of them should desire to sell and convey the above described real estate, that they shall first offer to sell and convey the same to the Gradys, their heirs or assigns, for the sum of $ 6500.00, plus the cost of any capital improvements made on said premises by Elizabeth M. Towle, J. Frank Towle and their heirs and assigns.
Low v. Spelllnan, 629 A.2d 57 (Me. 1993) (emphasis added).'
Plaintiffs, on the other hand, contend that the binding effect clause does not
redefine the terms "grantor" and "grantee," but rather clarifies that the heirs,
executors, administrators, successors and assigns are bound by the agreement.
Plaintiffs further expIain that t h s clause is important to make dear that the
The Court also held that a fixed price violates the rule against perpetuities.
3 grantor's obligations under the agreement cannot be avoided by her heirs,
executor's, administrators, successors and assigns.
The Court agrees with Plaintiffs interpretation. The right of first refusal in
Lo70 explicitly stated that the grantors, Mr. and Mrs. Towle, made the agreement
in their names and in the names of their heirs and assigns. Thus, in holding the
same rights as the grantors, the heirs and assigns essentially became grantors
themselves. Here, the agreement is clear that Defendant is the sole grantor and
Plaintiffs are the sole grantees3 A reasonable reading of the binding effect clause
is that it gives notice to the heirs, executor's, administrators, successors and
assigns that any property transferred to them, voluntarily or involuntarily, is first
subject to the Plaintiff's right of first refusal.
In reading the entire document, it is clear that in the event of Defendant's
death, or the transfer of the property to someone else, Plaintiffs' rights to
purchase the property would vest. At that point there would be no restraint on
alienation because Plaintiffs would have the option to purchase the property.
Likewise, there would be no restrain on alienation if they did not exercise their
rights to purchase the property. The property would merely pass on as directed
by the Grantor or via intestacy.
The Defendant's Motion for Judgment on the Ple
DATE: /'$;266f
' The opening paragraph of the document states as f0ll0~7~: For good and valuable consideration received, including the mutual promises and agreements contained herein, Helen Truman a / k / a Helen Tlvoumoulos ("Grantor") and Lillian Serrecchia and Joseph Tedesch (collectively "Grantees"), hereby covenant and agree as follo~vs: OF COURTS ?rland County 1. Box 287 laine 041 12-0287
NICHOLAS SCACCIA ESQ PO BOX 9 2 9 SANFORD ME 04073
OF COURTS erland County I. Box 287 Aaine 041 12-0287
GmGORY HANSEL ESQ PO BOX 9 5 4 6 PORTLAND ME 04112 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION . . .. \,. - - . c;: ,-'>,.'.,'.::.2-y - .3 DOCKET 7 .-iNO. CV-04-584 / -.c . ~... . .- . ,., ?'" gS. .", .t
. I\p1.. / C [ Q ' . / ! ! ~ ~ ? : C ~ ; , '- ,-,,
..,Ls,$.., .:I.,; - JOSEPH TEDESCHI, ET AEIcrS~? -... c yJ$ * REGE\vzv' ORDER C;
v.
HELEN TRUMAN,
T h s case comes before the Court on Defendant Helen Truman's Motion to
Amend its Order denying Defendanys Motion for Judgment on the Pleadings
dated October 19, 2005.
Defendant takes issue with the Court's recitation of the facts of the case.
Specifically, Defendant argues that rather than stating the facts as alleged in the
complaint, the Court should clarify that the facts alleged in the complaint are
mere allegations. The Court agrees with Defendant in that the facts section of the
October 19,2005, Order are mere allegations. However, a motion for judgment
on the pleadings pursuant to M.R. Civ. P. 12(c)examines only the legal
sufficiency of the complaint. Monopoly, Inc. v. Aldrich, 683 A.2d 506, 510 (Me.
1996). Accordingly, for purposes of a motion for judgment on the pleadings, the
Court takes the allegations of the complaint as true.
The entry is as follows:
The Motion to Amend the Order is DENIED.
DATE: 9-7, ~ w C ' COURTS i d County X I 287 e 041 12-0287
NICHOLAS SCACCIA ESQ P O BOX 929 \I SANFORD ME 0 4 0 7 3
IF COURTS snd County 30x 287 ne 041 12-0287
GREGORY HANSEL ESQ P O BOX 9546 PORTLAND ME 0 4 1 1 2