Ocean State Job Lot of Me., 2017, LLC v. 20 Thames St., LLC

• Decision Date: 24 May 2021
• Docket Number: BCDWB-CV-2020-19
• Parties: OCEAN STATE JOB LOT OF MAINE, 2017, LLC, Plaintiff, v. 20 THAMES STREET, LLC, and 122 PTIP, LLC, Defendants.
• Court: Maine Superior Court

OCEAN STATE JOB LOT OF MAINE, 2017, LLC, Plaintiff, v. 20 THAMES STREET, LLC, and 122 PTIP, LLC, Defendants.

No. BCDWB-CV-2020-19

Superior Court of Maine, Cumberland

May 24, 2021

Ocean State Job Lot of Maine 2017, LLC Seth Brewster, Esq. Micha Smart, Esq.

20 Thames Street, LLC, and 122 PTIP, LLC. Glenn Israel, Esq. Bernstein Shur Sawyer, Nelson

ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

MICHAEL A. DUDDY, JUDGE

Defendants 20 Thames Street, LLC and 122 PTIP (collectively "Thames Street"), through their undersigned counsel, filed a Motion for Judgment on the Pleadings (the "Motion") pursuant to M.R. Civ. P. 12(c) requesting the court dismiss Plaintiff Ocean State Job Lot of Maine 2017, LLC's (herein after "Ocean State") claim for reimbursement of attorney fees relating to a 2018 Forced Entry and Detainer ("FED") Thames Street unsuccessfully brought against Ocean State (the "2018 Attorney Fees claim"). Thames Street argues that because Ocean State did not bring its 2018 Attorneys Fees claim as part of a separate action pending before the Superior Court Ocean State's fee claim is barred by the doctrines of res judicata and abatement. Thames Street also argues that the 2018 FED Attorneys Fees claim should be barred by the doctrine of judicial estoppel.^[1] For the reasons discussed below, the Court finds Ocean State's claims are not barred by any of the doctrines set forth by Thames Street. The Motion is therefore DENIED.

STANDARD OF REVIEW

When a motion for a judgment on the pleadings is filed by the defendant pursuant to M.R. Civ. P. 12(c), "only the legal sufficiency of the complaint is tested" and the "[d]efendant's motion for judgment on the pleadings is nothing more than a motion under M.R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted." Wawenock, LLC v. DOT, 2018 ME 83, ¶ 4, 187 A.3d 609 (quoting Cunningham v Haza, 538 A.2d 265, 267 (Me. 1988)). Therefore, a Rule 12(c) motion for judgment on the pleadings tests the legal sufficiency of the complaint in the same manner as a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6). Id. When reviewing the complaint, the court assumes that the factual allegations are true, examines the complaint in the light most favorable to plaintiff, and ascertains whether the complaint alleges the elements of a cause of action or facts entitling the plaintiff to relief on some legal theory[.]" Donahue v. Berube, No. CV-19-0099 2019 Me. Super. LEXIS 92, at *3-4 (Sep. 11, 2019) (quoting Cunningham, 538 A.2d at 267); See also Libby v. Roy, No. PORSC-CV-16-0357, 2017 Me. Super. LEXIS 135, at *1 (July 3, 2017) ("The standard of review applicable to a motion for judgment on the pleadings under Rule 12(c) of the Maine Rules of Civil Procedure is similar to that on a Rule 12(b)(6) motion-whether the pleading to which the motion is directed, viewed in a light most favorable to the non-moving party, states a valid claim."). The legal sufficiency of the challenged complaint is a question of law. See Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676, 679 ("The legal sufficiency of a complaint challenged pursuant to M.R. Civ. P. 12(b)(6) is a question of law.").

Dismissal is not warranted "unless it is beyond doubt that no relief can be granted under any facts that might be proved to support the plaintiff's claim." Donahue, 2019 Me. Super. LEXIS 92, at *3-4 (quoting Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994)). To successfully oppose a defendant's motion for judgment on the pleadings, a plaintiff need only plead facts, which the Court must take as true, sufficient to support a claim for relief under some legal theory. Brown v. Sirois, No. RE-02-001, 2002 Me. Super. LEXIS 65, *7 (Aug. 27, 2002).

Ordinarily, a defendant is not entitled to take advantage of an affirmative defense in presenting such a motion, because matters set forth in his answer are taken as denied or avoided. Cunningham, 538 A.2d at 267.M.R. Civ. P. 8(d). However, there is one narrow exception to the rule that affirmative defenses may not be invoked as a ground for dismissal when the complaint affirmatively demonstrates the existence and the applicability of the affirmative defense. Id. (citing Robinson v. Washington County, 529 A.2d 1357, 1361 (Me. 1987); MacKerron v. Madura, 445 A.2d 680, 682 (Me. 1982); see also Sargent v. Sargent, 622 A.2d 721, 723 (Me. 1993) ("A Rule 12(b)(6) motion is appropriate to raise the affirmative defense of res judicata only if the facts establishing the defense appear on the face of the complaint.").

If the court considers matters outside the pleadings, the motion is treated as one for summary judgment. M.R. Civ. P. 12(c). The court may, however, consider official public documents, documents that are central to the claim, and documents referred to in the complaint without converting the motion into a motion for summary judgment. Moody v. State Liquor &Lottery Comm'n, 2004 ME 20, ¶ 10, 843 A.2d 43.^[2]

PROCEDURAL AND FACTUAL BACKGROUND

The procedural history of this case is critical to the analysis of the issues before the Court, therefore, in the interest of efficiency and clarity, the procedural history and facts are presented together.

Ocean State is a Maine limited liability company with its principal place of business in Falmouth, Maine. Plaintiff's Complaint ("Pl.'s Compl.") ¶ 1. Defendant Thames Street LLC is a Maine limited liability company with its principal place of business in Cumberland County, Maine and is managed by Jonathan Cohen. (Pl.'s Compl. ¶ 2.) Defendant 122 PTIP LLC is a Maine limited liability company with its principal place of business in Cumberland County, Maine and is managed by Joseph Soley. (Pl.'s Compl. ¶ 3.) Defendants collectively, hereinafter "Thames Street," are owners of a commercial property known as Falmouth Shopping Center (the "Shopping Center") located at 251 U.S. Route 1 Falmouth, Maine. (Pl.'s Compl. 4.) Thames Street acquired the Shopping Center on March 23, 2018 from Falmouth Realty Associates. (Pl.'s Compl. ¶¶ 4-5.)

Ocean State entered into a lease (the "Lease") with Falmouth Realty Associates for a unit at the Shopping Center on August 3, 2017. (Pl.'s Compl. ¶ 10; Pl.'s Compl. Ex. 1.) The Lease was for a term of approximately ten years, running until July 31, 2028, with three five-year extension terms with the last one expiring on July 31, 2043. Id. In May 2017, during the course of lease negotiations, Ocean State expressed concerns over an issue with the roof, which resulted in Section 2 of the Lease providing that the rented space was to be delivered weather tight. (Pl.'s Compl. ¶¶ 13-14; Pl.'s Compl. Ex. 1, p. 2-3.) The roof was not delivered to Ocean State as being weather tight, and Ocean State continued to communicate to its landlords at the time, Falmouth Reality Associates, that the roof was leaking. (Pl.'s Compl. ¶¶ 14-15.) Falmouth Reality Associates took action to make the necessary repairs. (Pl.'s Compl. ¶ 16.)

After the Lease was signed in August 2017, Ocean State invested significant resources into the Shopping Center. (Pl.'s Compl. ¶ 19.) Those resources included $600, 000 for a space that it subleased to a gym, $800, 000 for construction within the remaining 36, 000 square feet, and $300, 000 in store setup fixtures, for a total of $1.7 million.

In November 2017, Ocean State invoked its right under Section 38(c) of the Lease and requested a memorandum lease from Falmouth Reality Associates. (Pl.'s Compl. ¶¶ 17-18; Pl.'s Compl. Ex. 1, p. 25.) The underlying document was rejected by the Cumberland County Registry of Deeds, so Ocean State did not have an acceptable form of the memorandum of lease to file with the registry of deeds. (Pl.'s Compl. ¶ 18.)

Ocean State opened its store at the Shopping Center on November 15, 2017. Even after the store opened, the store continued to have issues with a leaking roof, which Falmouth Reality continued to address. (Pl.'s Compl. ¶¶ 20-21.)

On March 23, 2018, Thames Street acquired the Shopping Center from Falmouth Realty Associates. (Pl.'s Compl. ¶¶ 4-5.) Before Thames Street purchased the Shopping Center, it did not seek any estoppel certificate from Ocean State to investigate whether there were any issues with Ocean State's lease. (Pl.'s Compl. ¶ 23.)

The 2018 FED Action

Between April 4 and April 18, 2018, a Thames Street representative corresponded with multiple representatives from Ocean State via email regarding repairs to the fire alarm system, as well as the roof issue. (Pl.'s Compl. Ex. 3, at 3.) In the middle of the ongoing correspondences, Thames Street sent Ocean State an estoppel certificate and subordination agreement to review and execute on April 10, 2018. (Pl.'s Compl. Ex. 3, at 3.) Ocean State was requested to comply within 10 days in accordance with Sections 27 and 29 of the Lease.^[3] Id. Ocean State's and Thames Street's agents had a phone conversation eight days after Ocean State had received the request. (Pl.'s Compl. Ex. 3, at 3-4.) Ocean State's agent insisted that Thames Street connect with their attorney to discuss the request. (Pl.'s Compl. Ex. 3, at 4-5.) Thames Street did not contact Ocean State's attorney, and instead sent Ocean State a notice of default and termination on April 25, 2018. (Pl.'s Compl. Ex. 3, at 5.) Ocean State responded by sending an estoppel certificate to Thames Street, which was received on April 27, 2018. Id. However, Thames Street found the estoppel certificate unacceptable. Id. Ocean State's attorney also informed Thames Street by letter on May 3, 2018 that Ocean State was disputing the notice of default and termination. Id.

Thames Street filed a one-count FED with the Portland District Court on May 7, 2018 against Ocean State. (Pl.'s Compl. ¶ 24; Pl.'s...