Dube v. Maine-Ly Lakefront Props., LLC, SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-18-30
| Decision Date | 18 December 2019 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. RE-18-30 |
| Parties | DENNIS AND DAWN DUBE, Plaintiffs v. MAINE-LY LAKEFRONT PROPERTIES, LLC, and TIMOTHY S. O'BRIEN, Defendants |
| Court | Maine Superior Court |
KENNBEC, SS
This matter is before the court on the Motion for Summary Judgment filed by Defendants Maine-ly Lakefront Properties, LLC, and Timothy O'Brien.1 Oral argument on the motion was held on December 13, 2019.
This action arises out of a real estate transaction between Denis and Dawn Dube (Dubes) and Timothy O'Brien (O'Brien). O'Brien and his wife purchased the property, located in South China, Maine, in 2005 to use as their personal camp. (Def's SMF ¶3). In 2013, O'Brien transferred the property to Maine-Ly Lakefront Properties, LLC (MLP), an LLC O'Brien formed for the purpose of either renting orselling the property. (SMF ¶ 4-7). Because O'Brien is the sole member of MLP, and because it was formed solely to facilitate the sale/rental of the camp, MLP does not conduct any independent business. (SMF ¶ 8). The O'Brien's decided to sell the property because they were looking to purchase a new camp and had no reason to keep the old one. (SMF ¶ 10, 11).
Around Spring 2017, the Dubes began looking for a camp in Maine to purchase, and visited the O'Brien's property twice, first in June 2017, and again in July. (SMF ¶ 14-18). The Dubes had some prior experience in purchasing property; they had purchased a handful of properties in the years prior, namely apartment buildings, and Mr. Dube was familiar with the Registry of Deeds and understood that documents relating to properties are recorded there. (SMF ¶ 12, 13). After visiting the property first in June 2017 with their Broker, Allison Smiley, the Dubes visited the property again in July, this time while the O'Brien's were present. (SMF ¶ 16, 24). During this visit, Mr. Dube spoke briefly with Mr. O'Brien. Mr. Dube states that he asked O'Brien about the property, and that O'Brien stated that he was not going to convey a portion of the land because the Town would not allow such a conveyance. (SMF ¶ 24, 25). Mr. Dube states that this was the extent of their conversation - that O'Brien provided no other information regarding the property. (SMF ¶ 26, 27).
During this second visit, the Dubes also (1) executed an Exclusive Buyer Representation Agreement with Ms. Smiley and (2) initialed two maps, both with arrows pointing towards portions of the property that stated language similar to "ROW will be conveyed to neighbor." (SMF ¶ 20-22). Mr. Dube indicated that he understood the maps to mean that "part of the property was going to be conveyed to a neighbor." (SMF ¶ 23). Mrs. Dube also believes that Ms. Smiley informed her by July 1, 2017, that the property was subject to an easement or right of way, and that Ms. Smiley probably told her the encumbrance was a "walking and dockingeasement." (SMF ¶ 28). Mrs. Dube also remembers telling Mr. Dube about this easement around the same time that she learned of it from Ms. Smiley. (SMF ¶ 29). Neither of the Dubes asked any further questions about the easement, and they had no further discussions with anyone involved about the easement. (SMF ¶ 30, 31).
On or about July 8, 2017, the Dubes made an offer to purchase the property for $175,000, even though Mr. Dube thought that offer was a little high. (SMF ¶ 32-33). This offer was accepted the next day. (SMF ¶ 35). Paragraph 17 of the fully executed purchase agreement included a clause that required submitting all disputes to mediation; a failure to abide would result in the complainant paying the other parties' attorney fees if they lost in court. (SMF ¶ 36). At closing, the parties signed a number of documents, including one entitled a "Survey Affidavit." (SMF ¶ 71, 72). At the closing, Mr. O'Brien is alleged to have signed this Survey Affidavit under oath, which stated, in relevant part, that "[t]he undersigned has allowed no easements, rights of way, continuous driveway usage, drain, sewer, water, gas or oil pipeline or other rights of passage to others over the premises above described and has no knowledge of such adverse rights." (Survey Affidavit, Pl.'s Exhibit E). It is the court's understanding that a signed version of this Survey Affidavit has not been located.
The title commitment the Dubes received included an exceptions list in Part II of Schedule B, which included a "[w]alking and dock easement granted to Bruce M. Cole and Elizabeth A. Cole by Maine-ly Lakefront Properties, LCC by instrument dated December 22, 2016 and recorded in Book 12517, Page 83." (SMF ¶ 37-40). The Legal description of the parcel also included the clause "[s]ubject to a 25-foot walking easement and dock easement from Maine-ly Lakefront Properties, LLC to Bruce M. Cole and Elizabeth A. Cole, as set forth in Easement dated December 22, 2016, and recorded in the Kennebec County Registry of Deeds in Book 12517, Page 831." (SMF ¶ 46). The Dubes did not ask anyone at closing aboutthe easement, and thought that the clause meant the Coles would only "have the right to have a dock" and to "go back and forth on the property to go to the dock." (SMF ¶ 47, 48, 50). Mr. Dube states that he learned about the full extent of the easement sometime after the closing, after he gained "additional information" from Bruce Cole, and that he learned that the easement was recorded in Book 12517, Page 83, rather than 831. (SMF ¶ 52). Mr. Dube conducted some basic research and found the proper page, and learned of the full extent of the easement, which is significantly more expansive than the Dubes understood it to be. (SMF ¶ 55). The Dubes are not sure of the pecuniary impact that the easement has had, but they believe that the easement decreases the value of the land, and they believe that they are paying extra taxes for land which belongs to them in name only. (SMF ¶ 56-62).
"Summary judgment is appropriate where 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by subdivision (h) show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to judgment as a matter of law.'" Town of Windham v. Christopher A. Bond, No. CV-16-94, 2016 Me. Super. LEXIS 108, at *2 (July 13, 2016) (citing M.R. Civ. P. 56(c)). "In examining the statements of material facts submitted pursuant to subdivision (h), [a] genuine issue of material fact exists when the evidence requires a fact-finder to choose between competing versions of the truth." Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ¶ 15, 917 A.2d 123 (citing Farrington's Owner's Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, ¶ 9, 878 A.2d 504). Even if one party's version of the facts appears significantly more credible and persuasive, summary judgment is inappropriate "if a genuine factual dispute exists that is material to the outcome." Arrow Fastener, 2007 ME 34, ¶ 17, 917 A.2d 123; see also Emerson v. Sweet, 432 A.2d 784, 787 n.6 (Me. 1981) (). As the Law Court has stated, although summary judgment "is no longer an extreme remedy, it is not a substitute for trial." Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18.
The Dubes bring four counts against MLP and O'Brien: Counts I and III allege Misrepresentation and Fraud against MLP and O'Brien, respectively, and Counts II and IV allege unfair trade in violation of the Maine Unfair Trade Practice Act (5 M.R.S.A. § 206 et seq.), also against MLP and O'Brien, respectively.2 For the reasons outlined below, the court grants the Defendants' Motion for Summary Judgment as to Counts II and IV, but denies it as to Counts I and III.
5 M.R.S.A. § 207 states that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful." In order for an unfair or deceptive act to be actionable under the Maine Unfair Trade Practices Act, the unfair or deceptive act must be "in the conduct of any trade or commerce." See State v. DeCoster, 653 A.2d 891, 895-96 (Me. 1995). The UTPA does not apply to all commercial transactions. See id. In DeCoster, for example, the Law Court quoted the Massachusetts Supreme Judicial Court with approval, stating "[h]owever, broad as this protection is, we believe that the Legislature did not intend the statute to cover employment contract disputes between employers and employees who work in the employer's organization, nor to disputesbetween members of that organization arising out of the employment relationship." Id. at 896 (quoting Manning v. Zuckerman, 444 N.E. 2d 1262, 1262 (Mass. 1983)).
In addition to ruling that the UTPA does not apply to employer-employee disputes, the Massachusetts Court also ruled that the UTPA does not apply to strictly private transactions, where neither party is in the business of that transaction. See Lantner v. Carson, 373 N.E. 2d 973, 974-75 (Mass. 1978). Lantner is particularly relevant to this case, because the transaction there was also a private real estate sale, where none of the parties were in the business of real estate. Lantner, 373 N.E. 2d at 974. There, the Massachusetts Supreme Judicial Court ruled that, because the UTPA "must be read to apply to those acts or practices which are perpetrated in a business context," and because the sale of a private house between private, non-business parties was not perpetrated in a business context, the UTPA did not apply. Id. at 977.
In Binette v. Dyer Library Ass'n, 688 A.2d 898, 907 (Me. 1996), the Law Court addressed the question of whether a non-profit library association, which sold donated property through a broker, was subject to UTPA. The Court held that the...
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