CourtListener 10345765

Gesamter Gesetzestext

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO-RE-2019-57

GEOFFREY S. STIFF, and
CAROLYN B. STIFF,
Plaintiffs
CERTIFICATION OF FINAL JUDGMENT
M.R.CIV .P.54(b)
V.

STEPHEN C. JONES and
JODY C. JONES,
Defendants

In a Decision and Order dated March 12, 2021, the court granted the
Defendants' (the Joneses) Cross Motion for Partial Summary Judgment as to
Count 1 of the Plaintiffs' (the Stiffs) complaint and denied the Plaintiffs'
similar motion for summary judgment on that count. In Count 1, the Stiffs
alleged that the Joneses had violated certain restrictions that applied to their
property because it was part of a "common scheme of development." In its
Decision and Order, the court concluded that there was no common scheme
of development applicable to the Joneses' lot.
Thereafter, the Stiffs filed a Motion to Amend pursuant to M.R.Civ.P.
59(e) essentially asking the court to amend its Decision and Order to certify it
as a final judgment in accordance with M.R.Civ.P. 54(b). The Joneses
con di tion ally opposed the motion to amend on procedural grounds, namely,
that a motion under Rule 54(b) should have been filed rather than a motion to
amend under Rule 59(e). The court held an unrecorded telephone conference
with counsel for the parties on April 16, 2021. The parties agree that the
common scheme of development claim in Count 1 of the complaint is the
driving issue in this litigation and that the remaining claims in the complaint
or the counterclaims are not closely interconnected to the common scheme of
development issue and are likely to be resolved once that issue is finally
determined. For example, the outstanding claims are a dispute over a common
boundary line, a counterclaim for trespass and a counterclaim for nuisance,
none of which have anything to do with the common scheme of development
issue.
M.R.Civ.P. 54(b) provides:
... when more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim ... the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims ... only upon an
express determination that there is no just reason for delay and
upon an express direction for the entry of judgment.

The Law Court has stated that "[a] partial final judgment should be
entered pursuant to this rule only in limited circumstances because there is a
strong public policy against piecemeal review of litigation." Chase home Fin.
LLC v. Higgins, 2008 ME 96, ~ 10, 953 A.2d 1131. See generally C. Harvey,
Maine Civil Practice§ 54:3 at 180-185 (3d ed. 2011).
The court finds that several relevant factors, as identified by the Law
Court, support the certification of the partial summary judgment in this case
as a final judgment. As noted above, the common scheme of development
issue in Count 1 is independent of the remaining claims and counterclaims. It
is highly unlikely that review will be mooted by future developments in the
trial court. An immediate appeal will facilitate overall resolution of this
litigation and, therefore, the work of the trial court. While the Law Court has
acknowledged the common scheme of development doctrine, it has not
expressly adopted it. In that sense, then, it may be said that the legal question

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is close. An immediate appeal is economically beneficial to the parties. Wells
v. Fargo, 2007 ME 116, ~ 13 n.l, 930 A.2d at 1028.
Based on these considerations, the court expressly determines that there
is no just reason for delay and expressly directs the entry of final judgment as
to Count 1 of the complaint in favor of the Defendants.
The entry is:
Final judgment is entered in favor of the Defendants on Count 1 of the
Plaintiffs' complaint pursuant M.R.Civ.P. 54(b).

The clerk is directed to incorporate this order into the docket of this
civil case by notation reference in accordance with M.R.Civ. 9(a).

Dated: April 16, 2021

William R. Stokes
Justice, Superior Court

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GEOFFREY S STIFF - PLAINTIFF SUPERIOR COURT
1151 MARNEY COURT KENNEBEC, ss.
HENRICO VA 23299 Docket No AUGSC-RE-2019-00057
Attorney for: GEOFFREY s STIFF

LAW OFFICE OF THADDEUS V DAY
440 WALNUT HILL ROAD DOCKET RECORD
PO BOX 11
CUMBERLAND CENTER ME 04021

CAROLYN B STIFF - PLAINTIFF
1151 MARNEY COURT
HENRICO VA 23299
Attorney for: CAROLYN B STIFF

LAW OFFICE OF THADDEUS V DAY
440 WALNUT HILL ROAD
PO BOX 11
CUMBERLAND CENTER ME 04021

v.
STEPHEN C JONES - DEFENDANT
918 TIRRILL FARMS
ST LOUIS MO 63124
Attorney for: STEPHEN C JONES
JOHN CUNNINGHAM - RETAINED 10/08/2019
EATON PEABODY
167 PARK ROW
PO BOX 9
BRUNSWICK ME 04011-0009

Attorney for: STEPHEN C JONES
JUDY METCALF - RETAINED
EATON PEABODY
167 PARK ROW
PO BOX 9
BRUNSWICK ME 04011-0009

JODY C JONES - DEFENDANT
918 TIRRILL FARMS
ST LOUIS MO 63124
Attorney for: JODY C JONES
JOHN CUNNINGHAM - RETAINED 10/08/2019
EATON PEABODY
167 PARK ROW
PO BOX 9
BRUNSWICK ME 04011-0009

Attorney for: JODY C JONES
JUDY METCALF - RETAINED
EATON PEABODY
167 PARK ROW
PO BOX 9
BRUNSWICK ME 04011-0009

RE-200 Page 1 of 7 Printed on: 04/16/2021
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO-RE-2019-57

GEOFFREY S. STIFF, and
CAROLYN B. STIFF,
Plaintiffs
DECISION AND ORDER

STEPHEN C. JONES and
JODY C. JONES,
Defendants

INTRODUCTION
The Plaintiffs in this action, Geoffrey and Carolyn Stiff (the Stiffs), own
the property at 324 Sandy Cove Road in Belgrade, Maine. Their next-door
neighbors, the Defendants Stephen and Jody Jones, own the property at 326
Sandy Cove Road. In October 2019, the Stiffs filed a complaint against the
Joneses alleging that they had violated "common" restrictions by building "a
new garage structure ... within 15 feet of its sideline," and by completing the
structure "into a second one-family dwelling." See Count 1. The Stiffs also
sought declaratory relief to have the court determine the common boundary
line between their property and the Joneses' parcel. See Count 2.
In December 2019, the Joneses filed their answer, denying that they had
violated any restrictions, and counterclaiming for a declaration as to the
correct boundary line with the Stiffs (Count 1); for trespass (Count 2), and;
for nuisance (Count 3).
On June 1, 2020, the Stiffs moved for partial summary judgment as to
Count 1 only. Later in June, the Joneses filed their opposition to the motion
for partial summary judgment, and cross-moved for partial summary
judgment in their favor as to Count 1 of the complaint. Oral argument was
held on October 19, 2020, and the court took a view of the property on October
21, 2020.
The following factual summary is taken from the summary judgment
record.
FACTUAL BACKGROUND
In the background of this dispute is a man named Edmund Hill, who
apparently owned over 200 acres of property in and around Sandy Cove Road
back in the 1950's and 1960's. Many of the statements of material fact
relating to how Mr. Hill subdivided his property are disputed by the Joneses.
The fallowing description of Hill's activities pertaining to the property he
owned and divided into lots, however, is presented in order to place the
positions of the Stiffs and Joneses in context.
It is alleged that Mr. Hill acquired over 200 acres of land in the area of
Sandy Cove Road between 1952 and 1969. In 1961, Hill allegedly sold
approximately 97 acres of his land to Parker Lakes Shores (PLS) and provided
financing for the purchase through a purchase money mortgage. The Stiffs
further allege that PLS sold approximately 29 house lots that are depicted on
a 1962 Plan and approximately 29 lots shown on a 1964 Plan. The Joneses
maintain that the 1962 and 1964 Plans are irrelevant to this litigation because
the lots ultimately purchased by them and the Stiffs were never part of those
plans.
The Stiffs contend that the vast majority of the deeds to the lots sold by
PLS on the 1962 and 1964 Plans contained 12 restrictions. Restrictions 1 and
2, which are the ones relevant to this lawsuit, prohibited any building or
structure from being within 15 feet of any sidelines and limited the buildings

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on the premises to "a one-family dwelling with private garage and boathouse
for private use only."
It is alleged that in 1967, PLS re-conveyed unsold house lots back to
Mr. Hill. What appears to be undisputed is that Hill sold additional lots
depicted on what has been referred to as the 1963 Plan. It is further undisputed
that portions of the Stiff parcel and Jones parcel "encompass the approximate
location of what would have been lots 68 and 69 on the 1963 Plan." The
parties also agree that there were 12 house lots on the 1963 Plan. Based on a
"composite" of the 1962, 1963 and 1964 Plans, marked as Exhibit A to the
Motion for Partial Summary Judgment filed by the Stiffs, the parties do not
dispute that 5 of the 12 house lots on the 1963 Plan had deeds containing all
12 restrictions, including restrictions 1 and 2 as to sideline setback and one
family dwellings; 5 of the 12 had no restrictions at all, and; 2 of the 12
restrictions had a side setback restriction only. As depicted on that composite,
the Stiffs and Jones parcels (portions of which encompass lots 68 & 69
respectively) had deeds that originally contained all 12 restrictions, including
restrictions 1 and 2 pertaining to setback and one-family dwellings.
In a deed dated September 27, 1995, the Jones es acquired their property
at 326 Sandy Cove Road, a portion of which includes Lot 69 on the 1963 Plan.
The deed states that it "is subject to the restrictions and limitations contained
in a Warranty Deed to Gavin L. MacKnight dated August 16, 1969 ...." The
MacKnight deed came from Edmund Hill and was subject to 12 "restrictions
and limitations which are to be covenants running with the land." Restrictions
1 and 2 provide:
(1) No building or structure shall be erected within twenty-five
feet (25') of any of the front lines of these premises, within
fifteen feet (15') of any of the side lines of said premises, or

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within twenty feet of any of the back lines of said premises ..

(2) No building shall be constructed or erected on the premises
other than a one-family dwelling with private garage and
boathouse for private use only, said building to have a
minimum floor area of four hundred eighty (480) square feet.
All buildings constructed of wood or metal shall be either
shingled, stained or painted with two coats of paint (no light
colors).

In a Warranty Deed dated August 22, 2005, the Stiffs acquired their
property at 324 Sandy Cove Road. See Exhibit 11. The conveyance to the
Stiffs was also made "subject to restrictions, covenants and easements set out
in a warranty deed dated August 16, 1969, and recorded in the Kennebec
County Registry of Deeds, Book 1501, Page 877 ...." 1
Sometime in 2007-2008, the Stiffs renovated or rebuilt the residence on
their property and moved it closer to the side line they shared with the Joneses.
At that time no survey had been done of the boundary line between the two
properties. In 2017-2018, the Joneses began construction of a new building
on their property. The building is a two-story structure with a garage and
several rooms above it. The parties strongly dispute whether a kitchen was
part of that construction project, but there appears to be no dispute that there
are several bedrooms, a playroom, a room with a refrigerator and a covered
porch. Numerous photographs of the building, including a photograph of the

'This appears to be a reference to the MacKnight deed of August 16, 1969, that is also
referred to in the conveyance to the Joneses, although the page number of 877 in the deed
to the Stiffs is different from the page number of 871 in the deed to the Joneses.

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interior, are part of the summary judgment record. 2 As noted earlier, the court
took a view of the exterior of the premises on October 21, 2020.
It is the construction of this new building by the Joneses that is at the
heart of this lawsuit between the parties, and it ultimately led to both parties
having surveys done of their properties, including the boundary line between
them. As a result, a discrepancy was discovered in the two surveys
commissioned by the parties as to where their side boundary line is actually
located. That boundary dispute is not part of the court's summary judgment
analysis, and will be resolved at a later point in this litigation.
What is pertinent to the cross-motions for partial summary judgment,
however, is that the parties' competing surveys raised the issue that both of
their structures -the residence moved by the Stiffs in 2007-2008, and the new
building erected by the Joneses in 2017-1018 - were less than 15 feet from
the side line boundary of their properties and, therefore, not in compliance
with restriction 1. In particular, depending on which survey is relied upon,
portions of the Stiffs' building were as close as 10 feet from the common
boundary line, while portions of the Joneses' building were between 13 feet
and 14.2 feet from the common boundary line.
SUMMARY JUDGMENT STANDARD
"The function of a summary judgment is to permit a court, prior to trial,
to determine whether there exists a triable issue of fact or whether the
question[s] before the court [are] solely ... of law." Bouchard v. American
Orthodontics, 661 A.2d 1143, 44 (Me. 1995). Summary judgment is
appropriate where there are no genuine issues of material fact and the moving

'One photograph, apparently taken by Mrs. Stiff, shows a room with a stove, microwave,
sink, refrigerator and island. See Exhibit 13 to Carolyn Stiff Affidavit. It is the court's
understanding that the cooking appliances are no longer there.

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party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also
Levine v. R.B.K. Caty Corp., 2001 ME 77, ~ 4, 770 A.2d 653. A "material
fact" is one that can affect the outcome of the case, and a genuine issue exists
when there is sufficient evidence for a fact finder to choose between
competing versions of the facts. Lougee Conservancy v. City-Mortgage, Inc.,
2012 ME 103, ~11, 48 A.3d 774.
DISCUSSION
At oral argument in this matter held on October 19, 2020, counsel for
the Stiffs acknowledged that the sole basis for their argument that they are
entitled to enforce the 12 restrictions against the Joneses, including
restrictions 1 and 2 at issue here, is pursuant to the doctrine or theory of a
"common scheme of development." It has been said that the "common" or
"general" scheme or plan of development was originated as a way of
circumventing the limitations on creating servitude benefits in third parties.
Restatement (3d) of Property: Servitudes § 2.14, comment (b) - Historical
Note.
On several occasions, the Maine Law Court has "acknowledged, but
never expressly adopted, the common scheme of development doctrine, also
known as the doctrine of implied equitable servitudes or implied restrictive
covenants." Tisdale v. Buch, 2013 ME 95, ~ 13, 81 A.3d 377. See also
Thompson v. Pendleton, 1997 ME 127, ~ 11 n.2, 697 A.2d 56; 3W Partners v.
Bridges, 651 A.2d 387, 389 (Me. 1994); Olson v. Albert, 523 A.2d 585,588

(Me. 1987) (per curiam); Chase v. Burrell, 474 A.2d 180, 181-82 (Me. 1984).3
The Court has described the doctrine as applying when

' Although the Law Court may not have expressly adopted the doctrine, it appears that it
may have applied it in an action for damages in Leader v. LaFlamme, 111 Me. 242, 2456

6
(l)A common owner subdivides property into a number of
lots for sale; (2) the common owner has a "general scheme
of development" for the property as a whole, in which the
use of the property will be restricted; (3) the vast majority
of subdivided lots contain restrictive covenants which
reflect the general scheme; (4) the property against which
application of an implied covenant is sought is part of the
general scheme of development; and (5) the purchaser of
the lot in question has notice, actual or constructive, of the
restriction.
Chase, 474 A.2d at 181.
The Court has further stated that a "common grantor may establish a
general scheme by conveying the majority of his subdivided lots subject to a
restriction that reflects the general scheme." 3 W Partners, 651 A.2d at 389.
It is a question of fact whether a lot is part of a general scheme of development.
Tisdale, 2013 ME 95, ~ 13 citing Chase, 474 A.2d at 181-82.
In this case, where both sides have claimed an entitlement to partial
summary judgment on the issue of whether the Joneses' lot is part of a
common scheme of development, two somewhat interrelated questions
present themselves to the court. Who is the "common owner or grantor," and
what are the subdivided lots alleged to comprise the common scheme of
development?
The Stiffs take the position that the deeds in all three plans (1962, 1963
and 1964 Plaris) constituted "one subdivision" consisting of 71 lots, as to
which the deeds 60 of the lots contained the 12 restrictions. See Plaintiffs'
SOMF 1111 20 and 33. Specifically, the Stiffs have argued that "Edmund Hill
and PLS worked together to create one subdivision of 71 lots on 3 related
plans with consecutive lot numbers." Id. at 11 33. In essence, the Stiffs

46, 88 A. 859 (1913). See generally, Cowan, Maine Real Estate Law and Practice, §
321 at 274 (West 1990).

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contend that "PLS and Hill were the common owners who created the large
Sandy Cove subdivision." Plaintiffs' Motion for Partial Summary Judgment
at 8.
The Joneses strongly dispute these assertions of fact. They contend that
there is no admissible evidence that PLS and Hill "worked together" or that
they were "common owners" of the property or that the house lot deeds in the
1962 and 1964 Plans have anything to do with the deeds in the 1963 Plan,
which are, they maintain, the only deeds and plan relevant to this controversy.
For their part, the Joneses argue that Edmund Hill was the only common
owner/grantor of the deeds to the lots in the 1963 Plan.
It seems to the court that the initial question that needs to be addressed
is whether, as a matter of law, it can be determined that PLS and Hill were the
"common owners" as urged by the Stiffs and/or whether Hill alone was the
common owner of the 12 lots from the 1963 Plan. In attempting to answer
these questions, the court has found it helpful to consult some of the comments
and illustrations from the Restatement (3d) of Property: Servitudes, § 2 .14.
Comment (g) makes the point that it is typical that the development of a tract
of land into subdivisions occurs in phases over a period of time. "When a
tract is developed in phases, with separate units or subdivisions, the
imposition of servitudes in one phase should not give rise to the implication
of reciprocal servitudes burdening the remaining units or subdivisions ...."
Illustration 11 gives the following example:
D developed a large tract of land into subdivisions A, B, and C.
For each subdivision D filed a separate plat and declaration of
covenants restricting use to detached single-family dwellings.
Each declaration states that the burden of the covenants runs with
the land for the benefit of all lots within the particular
subdivision. The conclusion is justified that subdivisions A, B,

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and C are not part of one general plan, but the lots included in
each subdivision are part of separate general plans.

Admittedly, this illustration is not precisely on point with the case
before the court, but it does suggest that granting the Stiffs' motion for partial
summary judgment as to Count 1 of their Complaint would not be appropriate
where there are disputed issues of material fact as to their claim that Edmund
Hill and PLS "worked together" to create a single, large common scheme of
development encompassing all 71 lots within the 1962, 1963 and 1964 Plans.
With respect to the motion for partial summary judgment filed by the
Joneses, there does not appear to be any genuine issue of material fact that
Edmund Hill was the common owner of the 12 house lots within the 1963
Plan. Only 5 of the original deeds to those 12 lots contained the 12
restrictions, including restrictions 1 and 2. Another 5 deeds had no restrictions
at all, while 2 deeds only contained a restriction of a 15-foot side set back.
The Law Court has been consistent that in order to have a common
scheme of development the "vast majority of subdivided lots [must] contain
restrictive covenants which reflect the general scheme." See Tisdale, 2013
ME 95, 1f 13 and cases cited therein. Five to 7 deeds out of 12 does not, in
the court's view, constitute the "vast majority." The court concludes that the
Joneses are entitled to summary judgment as to Count 1 of the Stiffs'
Complaint on the basis that there is no common scheme of development
applicable to their lot.

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CONCLUSION
The entry is:
Plaintiffs' Motion for Partial Summary Judgment as to Count 1 of their
Complaint is DENIED.
Defendants' Motion for Partial Summary Judgment as to Count 1 of the
Complaint is GRANTED.
The Clerk is directed to incorporate this Order into the docket of this
case by notation reference in accordance with M.R.Civ. .

Dated: March 12, 2021

r:,,torf)n on the docket 3j 1.:)/ aGQr Justice, Superior Court

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GEOFFREY S STIFF - PLAINTIFF SUPERIOR COURT
1151 MARNEY COURT KENNEBEC, ss.
HENRICO VA 23299 Docket No AUGSC-RE-2019-00057
Attorney for: GEOFFREY S STIFF