Ogle v. Overlook Road at Bridgeton Association

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. RE-2018-273

DEBORAH L. OGLE, )
)
Plaintiff/ Counterclaim )
Defendant, ) ORDER ON
) DEFENDANT/COUNTERCLAIM
v. ) PLAINTIFF'S MOTION TO AMEND
) OR SUPPLEMENT JUDGMENT
OVERLOOK ROAD AT BRIDGTON )
ASSOCIATION, )
)
Defendant/ Counterclaim )
Plaintiff. )

Before the Court is Defendant/ Counterclaim Plaintiff Overlook Road at Bridgton

Association's ("the Association") Motion to Amend or Supplement Judgment. For the

following reasons, the Court denies the motion.

On November 25, 2019, the Association moved for summary judgment on all

counts of its Counterclaim and Plaintiff/Counterclaim Defendant Deborah L. Ogle's

Complaint. The Court, by order dated August 18, 2020 ("the Order"), granted the

Association's Motion for Summary Judgment as to Counts I and II of the Counterclaim

and Counts II, III, and IV of Ms. Ogle's Complaint. Regarding Counts I and II of the

Counterclaim, the Order concluded that "[t]he liens placed against Ogle [for unpaid

assessments and interest] totaling $1852.50 plus accruing interest of $147.50 per year are

valid." 1 Following entry of the Order, only Count I of the Complaint, breach of contract,

remains.

The Association now requests that the Court (1) permit testimony at trial on

1Counterclaim Counts I and II concerned Ms. Ogle' s failure to pay certain assessments to the Association.
The summary judgment record established that Ms. Ogle had failed to pay a 2018-19 assessment and
supplemental assessment as well as accrued interest on 2016-17 and 2017-18 assessments.

Page 1 of 2
"additional assessments, fees, and interest, having come due during the pendency of this

litigation," and (2) modify the Order to "account for" those additional assessments, fees,

and interest. (Def.'s Mot. to Am. or Suppl. J. 2.) Ms. Ogle opposes the motion.

The parties dispute whether the Order was a final judgment. The Order was not a

final judgment because it did not dispose of all claims in this matter. See M.R. Civ. P.

54(b)(l). Nor did it contain an express finding that there was no just reason for delay of

entry of final judgment on the Counterclaim. See id. The Association is therefore correct

that the Order may be revised at any time before entry of final judgment. See id.; Dep't of

Env't Prat. v. Woodman, 1997 ME 164, 'l[ 4, 697 A.2d 1295.

The Court, however, declines to revise the Order in the manner requested.

Although the Court recognizes that the long pendency of this case is not entirely

attributable to the parties, the Court is reluctant to permit testimony at trial related to an

issue on which the Association chose to move for summary judgment.' Moreover, with

trial very near, prejudice may result to Ms. Ogle if the Court were to grant the

Association's motion. Accordingly, the Court denies the motion.

The entry is:

Defendant/Counterclaim Plaintiff Overlook Road at Bridgton
Association's Motion to Amend or Supplement Judgment is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Cr
y Kennedy, Ju~ce
Superior

2It is at least arguable that the relief the Association requests in the present motion exceeds the scope of the
relief sought in its Counterclaim and Motion for Summary Judgment.

Page 2 of2
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: RE-18-273

)
DEBORAH L. OGLE, )
)
Plaintiff, ) ORDER ON DEFENDANT'S MOTION
) FOR SUMMARY JUDGMENT
V. )
)
)
OVERLOOK ROAD AT ) C STATE OF MAINE
BRIDGTON ASSOCIATION, )
um/JQrland, S!, Clerk's OffietJ
) AUG 18 2020
Defendant, )
RECEIVED
I. INTRODUCTION

Before the Court is Overlook Road at Bridgton Association's ("Association" or

"Defendant") motion for summary judgment. Deborah Ogle ("Ogle" or "Plaintiff') filed a four-

count complaint and the Association filed a two-count counterclaim. The Association's motion

seeks summary judgment on ail six counts.

For the following reasons, the Defendant's motion for summary judgment as it pertains to

Count I of the Plaintiff's Complaint is hereby DENIED and the Defendant's motion for snmmary

judgment as it pertains to Counts II, III, and IV of the Plaintiff's Complaint and Counts I and II

of the Defendant's Counterclaim is hereby GRANTED.

II. SUMMARY .JUDGMENT RECORD

The Association was formed in 1996 by the owners of property abutting a road in

Bridgton formally known as Overlook Road and now known as Kezar Heights Road ("Road").

(Def.'s S.M.F. ! 1.) The Association's original bylaws were executed by all owners along the

road, including Robert and Jahala Porto, and bound all of them and their heirs and assigns.

1 For Defendant: David Ginzer, Esq.
For Plaintiff: Elliott R. Teel, Esq.
(Def. 's S.M.F., 2.) The Association was formed for the purposes of maintaining the Road and

allowed the Association to collect fees from the members to do so. (Def.' s S .M.F., 3.) In 2002,

Ogle purchased her property from Robert and Jahala Porto. (Def.'s S .M.F., 4.) The Association

documents were both recorded and provided to Ogle at the time she purchased her property.

(Def.'s S.M.F.' 5.)

In 2005, Ogle conveyed her property to Deborah L. Ogle, Trustee of the Deborah Lee

Ogle Revocable Trust. (Def.'s S.M.F., 6.) From 2003 to 2006, Ogle was listed as the

Secretary/Clerk of the Association, but in practice, according to Ogle, she was only the Clerk.

(Def.'s S.M.F., 7.) The fee interest in the Road was held by property owners abutting the roads

subject to an easement. (Def.'s S.M.F., 8.) Prior to 2005, Association members, including those

along Kezar Heights Road, agreed, without opposition, to the following to better organize the

Association: Peter Mahar would obtain subdivision approval for the Kezar Heights subdivision

that had not been obtained by the original developer; they would allow for additional

development within the Association; Mahar would improve the Association road; to the extent

they had a fee interest in Kezar Heights Road, the owners along the Road would deed ownership

of the road to the Association; and they would update the Association documents. (Def.'s S.M.F.

, 9.) In 2005, Mahar was the president of the Association. (Def.'s S.M.F., 10.) Mahar had

counsel prepare a deed from the abutting property owners conveying the Road to the

Association. (Def.'s S.M.F., 11.) Mahar also obtained signatures of all the abutting owners for

the deed either in person or by mail. (Def.'s S.M.F., 12.) According to Mahar, he asked Ogle to

sign the deed on behalf of her Trust before a notary public. (Def.'s S.M.F., 13.) Ogle, however,

denies the document presented to her was the deed in question. Id. Mahar received a signed deed

from Ogle, however, Ogle reasserts her belief that she was not given the correct and/or entire

2
deed. (Def. S.M.F., 16.) Mahar then recorded the deed at the Cumberland County Registry of

Deeds. (Def.'s S.M.F., 17.)

In 2005 and 2006, the Association adopted the First, Second, and Third Amendments.

(Def.'s S.M.F., 18.) The primary effect of these Amendments was to include the properties on

White Mountain Way and David's Way in the Association membership. Id. At the Association

annual meeting on May 21, 2006, Mahar provided a binder containing the 2005 deed and the

Association documents created to date. (Def.'s S.M.F., 19.) At the same meeting, Ogle said to

Mahar that she believed that the deed was fraudulently obtained. (Def.'s S.M.F., 20.)

In 2008, the Association filed a small claims matter against Ogle to recover assessments.

(Def.'s S.M.F., 21.) The Association prevailed in the small claims matter and Ogle, while

represented by counsel, appealed the judgment. (Def.'s S.M.F., 22.) Ogle argued that the

Association was not properly formed, the Association documents were invalid, and she was not

bound by them. (Def.'s S.M.F., 23.) The parties then attended a judicial settlement conference

with Justice Bradford where the parties reached a Mutual Release. (Def.'s S .M.F. ,, 24-25; Pl.'s

Opp. S.M.F., 1.) The Mutual Release incorporated a Fourth Amendment to the Association

Bylaws and Restated Articles of Incorporation which were part of the settlement agreement.

(Def.' s S .M.F. , 25 .) Ogle agrees that she executed the Mutual Release and that it is binding on

the parties. (Def.'s S.M.F., 26.) The Fourth Amendment and Articles of Incorporation contained

certain concessions to Ogle in consideration of the resolution of the lawsuit. (Def.'s S.M.F., 27.)

Those concessions included, but were not limited to, how Ogle was to be assessed and a

requirement that any change in Association assessment formula or allocations would require a

100% vote. (Def.'s S.M.F., 28.) The purpose was to protect Ogle from any changes. (Def.'s

S.M.F., 29.) By agreeing to the Mutual Release and the new Association Documents, Ogle

3
released any claim she had regarding the invalidity of any of the Association Documents. (Def.'s

S.M.F. lJ 30.) The return consideration was that by signing on to a release incorporating a Fourth

Amendment and the Articles of Incorporation that met her satisfaction; the concerns regarding

the legitimacy of the Association; the Association's right to assess the property; the Association

membership, including the developments on White Mountain Way and David's View; and the

rights and obligations of Ogle and the Deborah Lee Ogle Revocable Trust as a member of the

Association were all resolved. (Def.'s S.M.F. lJ 31.) The litigation was dismissed with prejudice.

(Def.'s S.M.F. lJ 32.)

As part of the Mutual Release, the Association agreed to extend electricity along the

length of Kezar Heights Road to Ogle's property once she obtained a building permit. (Def.'s

S .M.F. lJ 33 .) The Association had previously provided electrical service to residents when they

built a home. (Def.'s S.M.F. lJ 34.) Ogle obtained a building permit and paid CMP to extend

electricity. (Def.'s S.M.F. lJ 35.) On July 20, 2011, Ogle submitted the invoice to the Association

asking for reimbursement. (Def.'s S.M.F. lJ 36.) By October 2011, Ogle was reimbursed. (Def.'s

S.M.F. lJ 37 .) Then, in July 2016, Ogle informed the Association that she had obtained a building

permit for a "garage" to "store stuff" and asked the Association to extend power to the structure.

(Def.'s S.M.F. l)l) 38-39; Pl.'s Opp. S.M.F. lJ 2.) On November 6, 2016, a Special Meeting of the

Membership was held, and the Association voted to deny Ogle's request to pay for the further

extension of electric service. (Pl.'s Opp. S.M.F. lJ 3.)

In April of 2017, Ogle filed a Motion to Enforce the Mutual Release regarding the

Association's decision not to provide electrical service to her garage. (Def.'s S.M.F. lJ 59; Pl.'s

Opp. S.M.F. l) 6.) The Association filed a Response to the Motion to Enforce, however, the Court

dismissed the motion as moot. (Def.'s S.M.F. l) 60; Opp. S.M.F. l) 60; Pl.'s Opp. S.M.F. l) 7.)

4
Through interrogatories, Ogle was asked to identify all her damages, as well as documentation of

those damages, but only identified damages arising out of the denial of her request that the

electrical service be extended. (Def.'s S.M.F., 61.) Ogle was unable to identify an agreement for

constructing a garage due to no electric nor provide a value for those damages. (Def.'s S.M.F.,

62.) Ogle was unable to identify why she could not sell lots "due to no electric," or that she has

tried to sell a lot. (Def.'s S.M.F., 63.) She could provide no reason she contd not extend

electricity to a new lot on her own. Id. The only exact value she provided on damages was the

cost of a building permit which she testified was $25. (Def.'s S.M.F., 64.)

The 2014 Restated Articles of Incorporation permit the Association to assess the

members. (Def.'s S.M.F., 41.) When a member does not pay, the Articles permit a lien against

the lot for unpaid assessments, allow for 10% interest, and allow the expenses of collection

including attorney's fees. (Def.'s S .M.F., 42.) Ogle eventually paid the 2016-2017 and the

2017-2018 assessments, but failed to pay the cost of liens and interest on her overdue payments

totaling $290. (Def.'s S.M.F., 43.) Since then, Ogle has failed to pay the 2018-2019

assessments in the amount of $600 and a supplemental assessment of $275 due by December 20,

2018. (Def.'s S.M.F., 44.) Pursuant to the Paragraph Seventh 2010 Restated Articles of

Incorporation, the Articles of Incorporation specifically incorporate and include "the Bylaws of

the Corporation as amended from time to time." (Def.'s S.M.F., 45.) At subsequent meetings of

the Association, Ogle was denied the right to vote. (Pl.'s Opp. S.M.F., 5.) However, the Seventh

Amendment to the Bylaws suspends the right of members to vote or actively participate in

meetings unless they are up to date with their assessments. (Def.'s S.M.F., 46.) After execution

of the Mutual Release, the Association adopted and recorded the Fourth Amendment and the

2010 Restated Articles of Incorporation. (Def.'s SM.F., 47 .)

5
On February 13, 2018, Ogle filed a Notice to Prevent Acquisition of Easement and/or

Property at the Registry of Deeds. (Def.'s S.M.F., 40; Pl.'s Opp. S.M.F., 9.)

Also In 2018, the Town of Bridgton gave notice that the conveyance of the road may

have violated the subdivision approval that the Town granted to the Kezar Heights subdivision.

(Def.'s S.M.F., 49.) The conveyance of the Road by the 2005 deed may have reduced some of

the lot sizes to less than 5 acres. Id. When the Association deeded ownership back to some of the

residents, the deed required that the residents acknowledge the Association's rights to maintain

and regulate the road and allow all of its members to use the road. (Def.'s S.M.F., 51.) Most, if

not all, of the original owners of property that included the road accepted the Association's offer

to retain the right to maintain and regulate the road in exchange for deeding ownership back to

the residents. (Def.'s S.M.F., 52.) Ogle, however, refused to sign the deed presented to her.

(Def.'s S.M.F.' 53 .)

As of November 15, 2019, the interest on the late 2018-2019 assessments was $87.50.

(Def.'s S.M.F., 55.) The 2019-2020 assessment in the amount of $600 became due on August 1,

2019 and has not been paid. (Def.'s S.M.F., 56.) In total, Ogle owes $1852.50; this total

includes $1475.00 in assessments, interest accrued as of November 15, 2019, and the cost of

liens. (Def.'s S.M.F., 57 .) In addition, Ogle owes accruing interest of $147.50 per year, as well

as attorney's fees. (Def.'s S.M.F., 58.)

III. ANALYSIS

a. Summary Judgment Standard

Summary judgment is not a substitute for trial when a material fact is in dispute, Cookson

v. Brewer Sch. Dep't, 2009 ME 57,, 12, 974A.2d 276, nor an arena for trial by affidavit, Hutz v.

Alden, 2011 ME 27,, 16, 12A.3d 1174. Instead, summary judgment is proper only when a

6
review of the parties' statements of material facts and the record evidence to which they refer,

considered in the light most favorable to a nonmoving party, establishes that there is no genuine

issue of material fact in dispute and that the moving party is entitled to judgment as a matter of

law. Estate of Kay v. Estate a/Wiggins, 2016 ME 108, lJ 9,143 A.3d 1290. A contested fact is

"material" if has the potential to influence the outcome of the case. Lewis v. Concord General

Mut. Ins. Co., 2014 ME 34, lJ 10, 87 A.3d 732. A "genuine" issue of material fact exists if the

factfinder must decide between competing versions of the truth. Lewis, 2014 ME 34, 87 A.3d

732. Judgment as a matter of law is not warranted if "any reasonable view of the evidence could

sustain a verdict for the opposing party pursuant to the substantive law that is an essential

element of the claim." Merriam v. Wanger, 2000 ME 159, lJ 7,757 A.2d 778. When material

facts are contested, the dispute must be resolved through fact-finding at trial- "even if the

likelihood of success at trial by one party or another is small." Rose v. Parsons, 2014 ME 73, lJ 4,

118 A.3d 220; Curtis v. Porter, 2001 ME 158, lJ 7,784 A.2d 18.

If a properly supported motion is filed, then the burden shifts to the nonmoving party to

demonstrate that a factual dispute exists sufficient to establish a prima facie case

for each element of the claim or defense in order to avoid summary judgment. Watt v. Unifirst

Corp., 2009 ME 47, lJ 21, 969 A.2d 897. The evidence proffered by the nonmoving party is

assessed for sufficiency-not persuasiveness-such that a court can make a factual

determination without speculating. Estate of Smith v. Cumberland County, 2013 ME 13, lJ 19, 60

A.3d 759.

b. Complaint Count I: Breach of Contract (Mutual Release Agreement)

7
Count I of the Plaintiff's Complaint comes down to whether or not, under the Mutual

Release, the Association was obligated to pay to have power extended to Ogle's new structure.

The language in question reads as follows:

The parties also agree that the Association will pay to have the electrical
service completed along the length of Kezar Heights Road and specifically
brought in front of Ogle's property when Ogle its successor or assigns
receives a building permit for the property at no direct or indirect expense to
or as an assessment against Ogle, her heirs or assigns or the Ogle property.

(Mutual Release lJ 3.)

The Association puts forward three reasons why this claim should be dismissed. First, the

Association argues that it provided electricity in accordance with the Mutual Release when it

extended power in front of Ogle's home in 2011. In the Association's reading of the Mutual

Release, "[t]here is nothing in the agreement that requires the Association to provide any

additional building permits other than the one that they already provided power for. There is

certainly no requirement that the Association provide electricity to a 'garage' so Ogle can 'store

stuff."' (Def.'s Mot. Summ. J. 12.) In response, Ogle argues that "[t]here is no additional

language in the Mutual Release to support the Association's claim that there are any limits to

Ogle's right to require the Association pay for electric service along the road, the only

prerequisite is to provide a building permit." (Pl.'s Opp. to Def.'s Mot. Summ. J. 4.) There is no

dispute as to the language of the Mutual Release. However, the parties clearly disagree on the

basic obligations under the Mutual Release. The Association believes its obligations ceased in

2011 when it brought power to the front of Ogle's home. Ogle, however, seems to believe the

Association's obligations continue into perpetuity and are triggered whenever she obtains a

building permit to build a structure on her property.

8
The Court is struggling to find where in the summary judgment record the Association

has established that it "completed [the electrical service] along the length of Kezar Heights

Road[.]" (Mutual Release lf 3.) Viewing the language of the Mutual Release in a light most

favorable to Ogle, as the non-moving party, a reasonable court conld certainly read the language

of the Mutual Release-namely 'along the length of Kezar Heights Road' -as requiring the

Association to install power along the entire length of Kezar Heights Road, which the

Association has not done. Therefore, at this stage in the litigation, the Defendant cannot succeed

on this theory.

Next, the Association believes Count I is barred by the statute of limitations. "All civil

actions shall be commenced within 6 years after the cause of action accrues ...." 14 M.R.S. §

752 (2017). "A breach of contract claim accrues when the defendant breaches the contract. More

particularly, the breach of contract is cognizable when a party to the contract fails to provide the

bargained-for benefit." York Cty. v. Propertylnfo Corp., 2019 ME 12, lf 18,200 A.3d 803

(internal quotations and citations omitted). The Court agrees with the Plaintiff that the alleged

breach of contract did not occur until the Association voted to deny any further payment for the

continuation of electrical service at the November 2016 meeting. Because the complaint was

filed in 2018, the Association cannot succeed on this theory.

Finally, the Association argues that this claim is barred by res judicata. This simply

cannot be. Res judicata is triggered when "(1) the same parties or their privies are involved in

both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters

presented for decision in the second action were, or might have been, litigated in the first action."

Berry v. Mainstream Fin., 2019 ME 27, lf 8, 202A.3d 1195 (quoting Pushard v. Bank ofAm.,

NA., 2017 ME 230, lf 20, 175 A.3d 103). The Association points the Court to no cases-let

9
alone any Maine cases-where a court's denial of motions as moot constituted a valid final

judgment. Therefore, the Association cannot rely on res judicata to have Count I dismissed.

c. Complaint Count II: Declaratory Judgment {Validity of Lieris) and Counterclaim
Count I: Breach of Covenant and Contract

Count II asks this Court to enter a declaratory judgment stating that the Association's

alleged breach of the Mutual Release justified Ogle' s non-payment of assessments, therefore

invalidating any liens the Association filed against Ogle.

Ogle argues that she rightfully withheld her dues because the Association materially

breached the Mutual Release. Ogle clams that"[o]ne cannot recover sums not paid under a

contract 'if the non-paying party seeking damages has materially breached the contract."' Porter

v. Moosehead Highlands Rd. Maint. Prop. Owners Ass'n, CV-16-1 (Piscataquis May 24, 2018)

(quoting Island Terrace Owners Ass'n v. Unit 91, 2012 Me. Super. LEXIS 54). Further, "[a]

material breach is non-performance that is so important that the other party is justified in

regarding the transaction as having ended." Id.

Ogle, however, is attempting to justify her non-payment of association dues-which she

owes pursuant to the articles of incorporation-with an alleged breach of a different contract: the

Mutual Release. This Court is unaware of any case or settled rule of Contracts Law that would

allow for this type of transference between two contracts. Therefore, since there is no dispute of

material fact as to the language of the articles of incorporation-which grant the Association the

power to impose liens upon members for non-payment of dues-or the dollar amount of said

liens, $1852.50 and accruing interest of $147.50 per year, the Association's motion with respect

to Count II of the Complaint must be granted.

Therefore, the Count II of the Complaint is hereby dismissed and Count I of the

Defendant's Counterclaim is hereby granted.

10
d. Complaint Count III: Breach of Contract (Denial of Voting Rights)

In Count III, Ogle argues that the Maine Non-Profit Corporation Act denies the

Association the ability to suspend a member's voting rights because the Association's articles of

incorporation do not expressly grant the Association the power to do so. The Association argues

that the articles of incorporation incorporate the by-laws which expressly grant the Association

the power to limit a member's voting rights.

The Maine Non-Profit Corporation Act states that "[t]he right of the members or any

class or classes of member to vote may be limited, enlarged or denied to the extent specified in

the articles of incorporation." 13-B M.R.SA. § 604. The relevant provision of the Association's

articles of incorporation state that "[t]here are no other provisions of these articles, including

provisions for the regulation of the internal affairs of the Corporation ... other than those set

forth in 13-B M.R.SA. (and the Bylaws of the Corporation as amended from time to time.)."

(Def.' s Mot. Summ. J. 17 .) The Court agrees with the Association that the Articles of

Incorporation successfully incorporate the By-laws. Further, the By-laws expressly state that

"(a]ny member whose assessments are in arrears at the date any such meeting is held shall be

prohibited from participation or voting at such meeting." (Seventh Amend. of Ass'n. By-laws

Art. III, Section 4.)

There is no dispute of material fact as to the language of the By-laws or that Ogle was in

arrears at the time she was denied the right to vote at Association meetings. Therefore, the Court

must agree with the Association that Count III of Ogle' s complaint should be dismissed.

e. Complaint Count IV: Declaratory Judgment (Road Ownership)

In Count IV of Ogle's complaint, she asks the Court for a declaratory judgment requiring

the Association to "release back to Ogle the exact rights it acquired in the Road Deed"; and "a

11
judgment against the Defendant in the amount of damages to be determined at trial, costs and

interest". (Pl.'s Comp!. 6.)

The Court agrees with the Association, however, that the statute of limitations has long

run on this count. Although it was not until 2018 that the Town of Bridgton "gave notice that the

conveyance of the road may have violated the subdivision approval that the Town granted to the

Kezar Heights subdivision," (Def.'s S.M.F. l/ 49), the conveyance in question occurred in 2005.

This is well past the six-year statute of limitations for civil actions. See 14 M.R.SA. § 762.

Further, Ogle was actively involved in the Association at the time of the conveyance, as

evidenced by her role as the Clerk. (Def.'s S.M.F. l/ 7.) Therefore, Ogle should have been on

notice in 2005 that the conveyance may have violated the town's subdivision approval. To be

even more sure, in 2006, "Ogle said to Mahar that she believed that the deed was fraudulently

obtained.'' (Def.'s S.M.F. l/ 20.) This shows that Ogle objected to the conveyance back in 2006

and, yet, she waited well past the six-year statute of limitations to file suit.

Therefore, the Court agrees with the Defendant that Count IV of the Plaintiff's complaint

should be dismissed.

f. Counterclaim Count II: Declaratory Judgment

In Counterclaim Count II, the Association asks for the Court to issue a declaratory

judgment stating that the Association has fee ownership in the Road; the Association has the

right to use and maintain the road; the Association's Bylaws are valid; order Ogle to strike or

modify Ogle's Notice to Prevent Easement; and that the Association's assessment of Ogle is

consistent with the requirements of the Association's Bylaws.

The Mutual Release plainly addresses some of these issues. First,

Ogle ... has remised, released and forever discharged ... [the Association]
... of and from any and all claims, debts, liabilities, obligations, demands,

12
damages, actions, causes of action, suits or any other thing done, omitted or
suffered to be done, relating to any decisions, votes, adoption of Bylaws and
Articles and their respective amendments, assessments or method of
calculating assessments, which Ogle may have against [the Association]
from the beginning of the world to the date of this Release.

(Mutual Release lJ 2.) Further, Ogle agreed that "the Fourth Amendment to the By-laws ... will

be enacted and recorded. [Ogle] further agree[d] that the restated articles ... will be enacted and

recorded." Id. atl/ 3. The language of the Mutual Release makes it clear that Ogle agreed that the

Fourth Amendment to the By-laws and the restated articles of incorporation were enacted and

recorded, therefore, making them valid. Any claim Ogle may have had in regard to the

Association documents before the execution of the Mutual Release was signed away by the

stroke of her own pen.

Now we come to the issue of Ogle's Notice to Prevent Easement. While there is language

in the Notice that challenges the validity of Association documents and the Association's

ownership of the Road, this Notice does nothing more than put other's on notice they may not

acquire a prescriptive easement. This notice does nothing to degrade the Association's legal

rights under the Mutual Release. At this point in the litigation, the Court does not deem it

necessary to issue a declaratory judgment compelling Ogle to strike or modify her Notice to

Prevent Easement.

In conclusion, because Ogle agreed that the Fourth Amendment to the By-laws and the

restated articles were valid and applied to her, it is hereby declared that: 1) the Association has

fee ownership in the Road; 2) the Association has the right to use and maintain the Road; 2) the

Association's By-laws are valid; and 3) the Association's assessment of Ogle is consistent with

the requirements of the Association's By-laws.

IV. CONCLUSION

13
In conclusion, because of the expansive nature of the Mutual Release most of these issues

have already been decided. Going forward, the only issue to be litigated are the parties'

obligations under the Mutual Release as they relate to Count I. All other issues raised in the

Complaint and Counterclaims are covered by the Mutual Release.

The entry is:

1. The Defendant's motion for summary judgment as it pertains to Count I of the Plaintiff's
Complaint is hereby DENIED.

2. The Defendant's motion for summary judgment as it pertains to Counts II, III, and IV of
the Plaintiff's Complaint is hereby GRANTED.

3. The Court hereby DECLARES the following:

a. The Association has fee ownership in the Road;

b. The Association has a right to use and maintain the Road;

c. The Association's By-laws are valid;

d. The Association's assessment of Ogle is consistent with the requirements of the
Association's By-laws; and

e. The liens placed against Ogle, totaling $1852.50 plus accruing interest of $147.50
per year, are valid.

Pursuant to M.R. Civ. P. 79(a) the Clerk is hereby directed to incor orate this Order by reference
in the docket.

yKennedy
, Superior Court

Entered on the Docket: 3ftq/o1J.w

14
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: RE-18-273

)
DEBORAH L. OGLE, )
)
Plaintiff, ) ORDER ON PLAINTIFF'S MOTION
) FOR SUMMARY JUDGMENT
V. )
) STATE OF MAINE
) Cumberland. S!, Clerk's Offi~
OVERLOOK ROAD AT )
BRIDGTON ASSOCIATION, ) AUG 18 2020
)
Defendant, ) RECEIVED
I. INTRODUCTION

Before the Court is Deborah L. Ogle' s ("Ogle" or "Plaintiff') motion for summary

judgment. Ogle argues that the terms of a settlement agreement between the two parties in this

action are unambiguous and she is entitled to summary judgment as a matter of law. Overlook

Road at Bridgton Association ("Association" or "Defendant") puts forth multiple arguments for

why the Plaintiff's motion should be denied. For the following reasons, the Plaintiff's motion for

summary judgment is hereby denied.

II. SUMMARY .JUDGMENT RECORD

Ogle is the Trustee of the Deborah Lee Ogle Revocable Trust. (''Trust") (Pl.'s S.M.F. lJ

1.) The Trust owns a parcel of land in the Town of Bridgton, Maine, more particularly described

in the deed form Ogle to the Trust dated August 24, 2005 and recorded in the Cumberland

County Registry of Deeds in Book 23104, Page 319. (Pl.'s S.M.F. lJ 2.) The Association is a

registered Maine non-profit organization established on February 12, 1996. (Pl.'s S.M.F. lJ 3.)

For Plaintiff: Elliott R. Teel, Esq. For Defendant: David Ginzer, Esq.
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The subdivision plan for the Kezar Heights subdivision was approved by the Town of

Bridgton Planning Board on July 6, 2004 and recorded in the Cumberland County Registry of

Deeds in Plan Book 204, Page 439. (Pl.'s S.M.F. lJ 4.) The Ogle property is within the Kezar

Heights subdivision in Bridgton, Maine. (Pl.'s S.M.F. lJ 5.) The Ogle property is about 36.15

acres and has approximately 1070 feet of frontage on Kezar Heights Road. (Pl.'s S.M.F. lJ 6.)

In 2008, the Association initiated a small claims matter against Ogle in Bridgton District

Court (BRIDC-SC-2008-110) ("Prior Lawsuit"). (Pl.'s S.M.F. lJ 7.) The Association prevailed in

that lawsuit and Ogle appealed; the matter was then settled through the execution of a settlement

agreement ("Mutual Release"). (Pl.'s S.M.F. lJ 8.) The Mutual Release states the "[t]he parties

also agree that the association will pay to have the electrical service completed along the length

of Kezar Heights Road and specifically brought in front of Ogle' s property when Ogle its

successor or assigns receives a building permit for the property at no direct or indirect expense to

or as an assessment against Ogle, her heirs or assigns or the Ogle Property." (Pl.'s S.M.F. lJ 9.)

As part of the settlement, the parties agreed to comprehensive amendments to both the Bylaws

and the Articles of Incorporation; specifically, the Mutual Release provided that the Fourth

Amendment to the Bylaws and the restated articles were to be enacted and recorded. (Def.'s

SA.M.F. lJ 11.) Those amendments made it clear that the residents of the White Mountain Way

were part of the Association, that Ogle had the rights and obligations of a member of the

Association, and the powers of the Association to make assessments for the ownership,

operation, and use of the Road. (Def.' s S A.M.F. lJ 12.)

In 2011, Ogle received a building permit from the Town of Bridgton to build a residence

on the western side of her property, and, pursuant to the Mutual Release, the Association paid to

have electrical service brought to a point on the Ogle Property approximately 215 feet along

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Kezar Heights Road, which reached in front ofOgle's home. (Pl.'s S.M.F. ll 10; Def.'s SA.M.F.

lJ 1.) The electrical service stops at the Ogle residence and does not continue to the end of Kezar

Heights Road where it meets Knights Hill Road. (Pl.'s S.M.F. lJ 11; Def.'s SA.M.F. lJ 5.)

In 2016, Ogle received a building permit from the Town of Bridgton for a structure on

the eastern side of the Ogle Property. (Pl.'s S.M.F. ll 12.) Ogle testified that she obtained the

building permit to build a garage. (Def.'s SA.M.F. ll 2.) On or about July 10, 2016, Ogle

provided a copy of the building permit to the Association and, pursuant to the Mutual Release,

requested to have the cost of the electrical service to the proposed structure paid for by the

Association. (Pl.'s S.M.F. ll 13.) On or about November 6, 2016 the Association voted to"...

take no action to fulfill the Ogle request ..." because the Association believed it had already

fulfilled its obligation under the Mutual Release. (Pl.'s S.M.F. lJ 14; Def.'s SA.M.F. lJ 3.)

Electrical service in the subdivision starts at the northern end of Kezar Heights Road where it

intersects with Knights Hill Road and extends until it ends at the western side of the Ogle

Property." (Pl.'s S.M.F. lJ 15.) Ogle's property is the last lot along the Kezar Heights Road that

does not also border a public road. (Pl.'s S.M.F. lJ 16.) Extending the electricity along the entire

length of Kezar Heights Road, as described by the Plaintiff in their motion would mean

extending it along the length of the Ogle property, along the length of the Hague property, to

Knights Hill Road.forming a semicircle. (Def.'s S.A.M.F. lJ 4.) Ogle was asked in an

interrogatory for all information regarding her damages and she stated she lost an agreement for

the construction of the garage, that she could not sell lots without electricity, the cost of the

building permit, and attorney's fees. (Def.'s SA.M.F. lJ 6.) At her deposition, Ogle could not put

any value on any of the categories of damages except for the $25 building permit. (Def.'s

SA.M.F. lJ 7.)

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Finally, Ogle is currently in arrears on her assessments. (Def.'s SA.M.F. ! 15.) Ogle

previously filed a Motion to Enforce the Mutual Release, however, the court denied her motion,

along with a motion from the Association, as moot. (Def .'s S A.M.F. !! 16-17 .)

III. ANALYSIS

a. Summary Judgment Standard

Summary judgment is not a substitute for trial when a material fact is in dispute, Cookson

v. Brewer Sch. Dep't, 2009 ME 57, ! 12, 974A.2d 276, nor an arena for trial by affidavit, Rutz v.

Alden, 2011 ME 27, ! 16, 12 A.3d 1174. Instead, summary judgment is proper only when a

review of the parties' statements of material facts and the record evidence to which they refer,

considered in the light most favorable to a nonmoving party, establishes that there is no genuine

issue of material fact in dispute and that the moving party is entitled to judgment as a matter of

law. Estate of Kay v. Estate of Wiggins, 2016 ME 108, ! 9, 143 A.3d 1290. A contested fact is

"material" if has the potential to influence the outcome of the case. Lewis v. Concord General

Mut. Ins. Co., 2014 ME 34, ! 10, 87 A.3d 732. A "genuine" issue of material fact exists if the

factfinder must decide between competing versions of the truth. Lewis, 2014 ME 34, 87 A.3d

732. Judgment as a matter of law is not warranted if "any reasonable view of the evidence could

sustain a verdict for the opposing party pursuant to the substantive law that is an essential

element of the claim." Merriam v. Wanger, 2000 ME 159, ! 7, 757 A.2d 778. When material

facts are contested, the dispute must be resolved through fact-finding at trial- "even if the

likelihood of success at trial by one party or another is small." Rose v. Parsons, 2014 ME 73, ! 4,

118 A.3d220; Curtisv.Porter,2001 ME 158,!7, 784A.2d 18.

If a properly supported motion is filed, then the burden shifts to the nonmoving party to

demonstrate that a factual dispute exists sufficient to establish a prima facie case

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for each element of the claim or defense in order to avoid summary judgment. Watt v. Unijirst

Corp., 2009 ME 47, lJ 21,969 A.2d 897. The evidence proffered by the nonmoving party is

assessed for sufficiency- not persuasiveness- such that a court can make a factual

determination without speculating. Estate ofSmith v. Cumberland County, 2013 ME 13, lJ 19, 60

A.3d 759.

b. Complaint Count I

Ogle's motion for summary judgment comes down to the issue of whether or not the

relevant provision of the Mutual Release is unambiguous and, if it is unambiguous, whether or

not the language supports her reading. In her motion for summary judgment, Ogle argues that the

Mutual Release is in fact unambiguous and that the Association must pay to have electrical

service along the entire length of Kezar Heights Road. The Association argues that Count I is

barred by the statute of limitations; the Association met its obligation under the Mutual Release

as a matter of law; plaintiff cannot seek to recover for breach of contract when she has not

substantially complied with the contract; Count I is barred by res judicata; and the Plaintiff has

not provided evidence of any damages.

Whether or not a contract is ambiguous is a matter of law. Hare v. Lumbermens Mutual

Casualty Company, 471 A.2d 1041, 1044 (Me. 1984). "The interpretation of an unambiguous

contract is a matter of law." Chadwick-BaRoss, Inc. v. T. Buck Constr. Inc., 627 A.2d 532,534

(Me. 1993). A contract is considered to be ambiguous when it is reasonably susceptible to

different interpretations. Id.

Viewing the relevant language of the Mutual Release in a light most favorable to the

Association, as the non-moving party, the Court believes that the language is ambiguous.

Reasonable courts could certainly disagree on the meaning of" ... along the length of Kezar

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Heights Road and specifically brought in front of Ogle's property when Ogle its successor or

assigns receives a building permit for the property ...." (Pl.'s S.M.F. ! 9.) One court could agree

with Ogle that 'along the length of Kezar Heights Road' means that the Association is required

to install electrical service along the entirety of Kezar Heights Road.' However, another

reasonable court could rightfully question the purpose and utility of the language that states "and

specifically brought in front of Ogle's property when Ogle its successor or assigns receives a

building permit for the property" when considered in context of the entire Mutual Release.

Further, if the language of the Mutual Release meant what Ogle says it does, why would she not

insist that the electricity be extended along the entire length of Kezar Heights Road when she

obtained a building permit back in 2011? It would also be curious why the Association's

obligation to extend property beyond the Ogle Property would be triggered by the condition of

Ogle obtaining a building permit for her property. Viewing the language of the Mutual Release

in the light most favorable to the non-moving party, the Court finds the relevant provision of the

Mutual Release to be ambiguous. Therefore, the Court hereby denies Ogle's motion for summary

judgment.

IV. CONCLUSION

In conclusion, the parties have very different views on the other's obligations under the

Mutual Release. The language of the relevant provision could reasonably support multiple

constructions which renders this issue unsuitable for summary judgment.

• Interestingly, the Association actually uses the phrase 'along the length of' to mean 'along the entire length of' in
its statement of material fact. In Def.'s S.A.M.F. lJ 4, the Association states that "[e]xtending the electricity along the
entire length of Kezar Heights Road ... would mean extending it along the length a/the Ogle property [and] along
the length of the Hague property ....'' In the scenario where electricity is extended 'along the entire length' of Kezar
Heights Road, the electricity would also be extended along the entire length of the Ogle and Hague properties; or, as
the Association puts it, 'along the length of' the Ogle and Hague properties.

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The entry is:

1. Plaintiff's Motion to for Summary Judgment is hereby DENIED.

Pursuant to M.R. Civ. P. 79(a) the Clerk is hereby directed to incorporate this Order by reference
in the docket.

E"il!nd on the Docket: ~,, q IJOol..0

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