STATE OFMAINE CUMBERLAND, ss.

APPLEGATE ASSOCIATION NO. 1, Plaintiff,

V. MARJORIE COLLINS, Defendant. ) ) ) SUPERIOR COURT CIVIL ACTION Docket No. RE-2021-057

) ORDER ON DAMAGES, ATTORNEY ) FEES, AND COSTS ) ) ) )

This matter is before the Court following an evidentiary hearing on damages on March 13, 2023. The Court awards Plaintiff Applegate Association No. 1 ("the Association") damages, attorney fees, and costs as follows. 

### I. Background Defendant Marjorie Collins owns a condominium unit within the Association. This case arose when sheinstalled a gas line to serviceherunitwithoutprior approval of the Board of Directors of the Association ("the Board"). By Order dated November 18, 2022, the Court entered summaryjudgment for the Association and against Mrs. Collins

on all counts of the Association's Complaint and Mrs. Collins's Counterclaim, except as to the issue of damages on Counts III and IV of the Complaint. Count III is a claim for reimbursement of the cost ofremoving and reinstalling the gas line. Count IV is a claim for fines assessed by the Association against Mrs. Collins. At the damages hearing, the Association presented the testimony of MaryEllen Joyce, Vice President of the Board, and Steve Caiazzo, a masterplumber and licensed gas technician. Mrs. Collins introduced her own testimony and the testimony of Beau Atwater-Wood, a master plumber and gas line technician.

Page 1 of 9The Association submitted AttorneyJohn Turcotte's fee affidavit in support of its request for an award of attorney fees and costs. Mrs. Collins was given an opportunity, post-hearing, to respond inwriting on the issue of attorney fees. II. Findings ofFact and Conclusions ofLaw Based on the testimony and exhibits admitted at hearing, the Court makes the following findings offact and conclusions oflaw. A. Cost of Removal and Reinstallation Mr. Caiazzo testified that he estimated the cost of removing and reinstalling the gas line would be approximately $2,000.00. Mr. Atwater-Wood testified that he had previouslyprovided anestimate of$750.00, butthat the costwouldhave increased in the time since he provided the estimate. He estimated that the cost at the time of thehearing wouldbe about $1,000.00. Mr. Atwater-Wood said thathewould notbe surprised,based

on his experience, 

### if another local plumber quoted $2,000.00 for the work. He also said thathe would no longer performworkwithin the Association at his regular rate. Based onthe testimony ofMr. Atwater-Wood and Mr. Caiazzo, both experienced plumbers and gas technicians, the Courtfinds thatMr. Caiazzo's estimate of$2,000.00 for the removal and reinstallation ofthe gas line is reasonable. The Association is entitled to judgmentin that amount on CountIII of the Complaint. B. Fines As declared in the Court's Order on the parties' cross motions for summary judgment, the Associationhas the authority to levy a reasonable fine for violations ofthe Association's Declaration, Bylaws, and Rules and Regulations. See 33 M.R.S. §1603- 102(11). Section 5.3(d) of the Bylaws provides that $50.00 is the maximum daily fine the Board is authorized to levy for an ongoing violation.

Page2 of 9On April 10, 2021, the Board sent a letter to Mrs. Collins notifying her of the violationand settinga thirty-daydeadlineto submitaplantoremedytheviolation. When she failed to comply, the Board voted to impose a daily fine of $50.00 per day, commencing on July 13, 2021, until the violation was remedied. Ms. Joyce testified that the Board did not consider setting the daily fine at less than the maximum authorized. She testified that the Board imposed the fine to compelMrs. Collins to comply. Mrs. Collins argues that the Board was motivated by racial bias when it voted to impose the maximum daily fine and that the fine was, therefore, unreasonable. Mrs. Collins explained that she believed other decisions, such as the Board's vote to remove her as hospitality chair, were motivated by racial animus because she could not think of any other reason for the adverse decisions. Other than her own suspicions, the only evidence of racialbias that Mrs. Collins put forth was a comment made by one member of the Board shortly after Mrs. Collins moved into her home. 1 This comment was not connected in time to Mrs. Collins's application to install a gas line or the Board's vote to impose fines. There was, therefore, insufficient evidence that racial bias existed among Board members when the Board voted to assess a daily fine against Mrs. Collins. 2 However, considering the relatively minor impact of Mrs. Collins's violation, selecting the maximum fine was not reasonable. There is no evidence in the record to support imposing the maximum fine. The Court finds that a daily fine of no more than $25.00 is reasonableunder the circumstances. See 48 Bramhall St. Condo. Ass'n v. Stone, No. RE-13-150, 2014 Me. Super. LEXIS 120, at *18-19 (June 13, 2014) (notingthatimposition of

a $25.00 fine for violation of rules and regulations is common practice among

1 The Boardmembercommented that she thoughtpropertyvalues woulddeclinebecause anAsianperson had movedinto the neighborhood. 2 As the Court ruled at hearing, evidence that Mrs. Collins sought to introduce regarding denial of a subsequent application to renovate the second floor ofher unitmore than a year lateris irrelevant. Page3 of 9condominiumassociations,butexpressingconcernaboutthe absence ofa maximumtotal penaltyin connectionwith a $25.00 per day fine). Moreover, the Courtwillnot award the fines that accrued during the pendency of this suit. A fine that stifles one'srightto access the courts is notreasonable. 

### See Stonington Landing Condo. Ass'n v. Toto/is, No. CV075003218S, 2009 Conn. Super. LEXIS 3398, at *26 (Dec. 16, 2009). To avoid imposing a penalty for Mrs. Collins's exercise of her right to contestthis suit, theCourtwill award a dailyfine onlyfor the twenty-sevendaysbetween July 13, 2021, and August 9, 2021, the date of the Association's Complaint. Accordingly, the Courtfinds that the Associationmay recover $675.00 for daily fines imposed onMrs. Collins for violation ofthe Bylaws. C. Attorney Fees The Association requests an award of reasonable attorney fees. In support, the Association submitted an affidavit of John Turcotte, with a letter of engagement and invoices attached. The Association is entitled to reasonable attorney fees pursuant to Section 5.3(d) of the Bylaws. The following factors are relevant to determining a reasonable award of attorney fees: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal services; (4) the preclusion of other employmentby the attorneys due to acceptance of the case; (5) the customaryfee inthe community; (6) whetherthe fee is fixed or contingent; (7) the time limitations imposedby client or circumstances; (8) the degree of success; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 

### Homeward Residential, Inc. v. Gregor, 2017 ME 128, 'I[ 15, 165 A.3d 357 (quoting 

### Gould v. A-1 Auto, Inc., 2008 ME 65, 'I[ 13,945 A.2d 1225). Counsel's hourly rate is $285.00, which the Court finds reasonable based on the Page4 of 9skill required, counsel's degree of success, and counsel's experience and reputation, among otherfactors. The SupplementalFee Affidavit ofAttorney Turcotte states thatthe invoices attached to the first fee affidavit total $27,903.00. The Court agrees with Defendant, however, thatthe total amountbilled for services rendered, asreflected in the invoices, was $27,618.00. 3 Mrs. CollinsdoesnotdisputethattheAssociationis entitledto reasonable attorney fees. Nor does she contend that counsel's hourly rate is unreasonable or that the time billed for any specific task was unreasonable. Instead, Mrs. Collins takes issue with counsel's billing practices. She criticizes some entries as "block billing" and others as vague or imprecise. She asks the Court to make no award for any of the entries she challenges or, in the alternative, to discount the fees to account for possible inaccuracies. "Block billing," also referred to as "lumping," is the practice of listing an entire day's tasks related to a case in one time-entry rather than itemizing specific tasks. 

### See Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998). Blockbillingjustifies

a reduction of the award when its appears that an attorney may be claiming compensation for tasks that would not otherwise be compensable or if it is difficult to gauge the reasonableness of the time billed for the described tasks. 

### See Ceres Env't Servs.

v. Colonel Mccrary Trucking, LLC, 476 F. App'x 198, 203 (11th Cir. 2012) (reducing total award by ten percent because block billing made it "difficult for the court to gauge reasonableness"); 

### In re LeonardJed Co., 103 B.R. 706, 713 (Bankr. D. Md. 1989) (describing

reasons for disallowance of "lumping" entriesbybankruptcy courts).

3 The Court is unable to account for the discrepancy of $285.00 between the Association's calculation and the Court's (and Mrs. Collins's) calculation. Other items appear on the invoices, including some the costs that the Association seeks to recover (sheriff costs, filing fees, etc.), as well as other expenses that the Association has not expressly claimed. The invoices also reflect a $2,000.00 "courtesy discount." The expenses and discount, however, do not account for the discrepancy. Page5 of 9Most ofthe cases Mrs. Collins cites involve egregiousblockbilling. 4 

### See, e.g., Ceres Env't Servs., 476 F. App'x at 203 (reducing award by ten percent because of "vague" entries for "halfa dozen or more separate tasks");

### Architectural Ingenieria Siglo v. Domican Republic, No. 13-20544-CIV, 2020 U.S. Dist. LEXIS 178904, at *20 (S.D. Fla. Apr. 16, 2020) (reducing award by fifteen percent because of "[c]onsiderable" block billing in time records that were reconstructed years after the fact); 

### Est. ofShultz v. Potter, No. 05-1169, 2010 U.S. Dist. LEXIS 19850, at* 13 (W.D. Penn. Mar. 5, 2010) (disallowing blockbilling offifty-two hours for "amountoftime spent onbriefs, petitions

..." on "various dates"). Of the entries Mrs. Collins identifies as block-billing, the largest entry is for 3.7 hours onFebruary 3, 2023, for "Telephone conference with client; Work on Witness and Exhibit list; Prepare Motion in Limine; Correspondences with Attorney Kennedy regarding." Including thatentry, the Courthas found only four problematic entries: 2.10 hours on August 4, 2021, for "Finalize Complaints; Prepare Clerk's Certificate; Correspondences with client regarding status and the inherent lien available under the Maine Condominium Act"; 2.6 hours on July 21, 2022 for "Prepare for and attend discovery conference; Telephone conference with and correspondences to Attorney Kennedy; Prepare proposed Order; Correspondence to Clerk of Court; Follow up with client"; and 2.8 hours onFebruary 21, 2023 for "Correspondenceswith client; Prepare for damages hearing; Prepare trial memorandum; Amend Exhibit List." Thenumber of distinct tasks listed in each of these time entries and the vagueness ofsome of the described tasks makes it difficult for the Courtto determinewhether all of

4 AlthoughtheAssociation correctlynotesthatMrs. Collins didnotcite any case from Maine orthe United States Court ofAppeals for theFirst Circuitcriticizingblockbilling or reducing an awardbecause ofblock billing, the Court did find a few such cases. See, e.g., Heien v. Archstone, 837 F.3d 97, 102 (1st Cir. 2016) (upholdingdistrictjudge'sreduction ofattorneyfee awardforblockbilling); Torres-Rivera v. O'Neill-Cancel, 524F.3d 331,340 (1st Cir. 2008) (holdingthatlowercourt'sreductionofattorneyfee award for blockbilling was not an abuse of discretion); Callaghan v. City ofSouth Portland, No. CV-11-428, 2014 Me. Super. LEXIS 78, at *8 n.4 (Mar. 31, 2014) (describing blockbilling as a "problem"). Page 6 of 9the time billed was reasonably expended. To account for this, the Court will reduce the award for these entries by twenty-five percent, or $798.00. 5 These four entries do not, however, justify an across-the-board reduction. Although the other entries Mrs. Collins challenges for block billing may include time for two or three related tasks, they do not suffer from the same lack of clarity as the entries described above. Mrs. Collins also identifies many other entries that she contends are too vague or imprecise. Entries need notbe perfectly precise, however; the issue is whether a court is able to determine from the description whether the time was reasonably expended. 

### Marisol A. 

### v. Giuliani, 111 F. Supp. 2d 381, 397 (S.D.N.Y. 2000) ("If the time records lack such specificity that the court is unable to determine a proper fee allocation, then plaintiffs' fee recovery may be reduced."); 

### Kirsch v. Fleet St., Ltd., 148 F.3d 149, 172-173 (2d Cir. 1998) (upholding twenty percent reduction in attorney fees award for "vague" entries such as "letter to court," "staffconference," and "work on motion"). Most of the entries Mrs. Collins contends are too vague concern the parties' cross motions for summaryjudgment. Although the several entries that read "work on MSJ"

or "continuework onMSJ" are not models ofprecision, the subject matter ofthe work is apparent. 

### See Hensley v. Eckerhart, 461 U.S. 424, 437 n.12 (1983) ("Plaintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures."), 

### superseded in part by statute, Prison Litigation Reform Act, Pub. L. No. 104-134, tit. VIII, 110 Stat. 1321 (1996) (codified at 41 U.S.C. § 1997e). As compared to the "work on motion" entry that the United States Court of Appeals for the Second Circuit found too vague, "work on MSJ" at least specifies the motion, which is helpful for

5 By the Court's calculations, these four entries total 11.2 hours at a rate of $285.00, or $3,192.00. Twentyfive percent of$3,192.00 is $798.00. Page 7 of 9determiningwhetherthetimewasreasonablyexpended. Thetimebilled for thoseentries, individually and cumulatively, is reasonable. Other entries Mrs. Collins challenges are not at all vague. For example, she challenges an entry for 3.10 hours from September 27, 2022 for "Prepare Affidavits of Robert Hammer and John Turcotte in support of MSJ" and an entry for 0.7 hour from October 6, 2022, for "Begin work on Opposing Material Facts." The time billed for these entries is reasonable. The Court has reviewed each remaining entry and did not find any to be unreasonable for the task or tasks described. The Association has demonstrated that it is entitled to anaward of$26,820.00 for reasonable attorney fees. Cf Villas by the Sea Owners Ass'n v. Garrity, No. CV-96-430, 2000 Me. Super.LEXIS 273, at *6 (Dec. 20, 2000) (awarding $15,031.90 for attorney fees to condominium unit owners who prevailed against condominium associationin action regardingfines for alleged violation ofbylaws). D. Costs The Association also seeks to recover $515.34 for sheriff costs, a witness fee, and filing fees. As the prevailingparty, the Associationis entitled to recover these costs. M.R. Civ. P. 54(d). III. Conclusion For the foregoing reasons, Plaintiff is entitled to judgment in its favor in the amounts of $2,000.00 and $675.00 on Counts III and IV of the Complaint, respectively. Plaintiffis also awarded $515.34 in costs and $26,820.00 in attorney fees. The entry is: 1. On CountIII of PlaintiffApplegate Association No. l's Complaint,judgmentis entered for Plaintiff and against Defendant Marjorie Collins in the amount of $2,000.00 plus interest;

Page 8 of 92. On Count IV of Plaintiff's Complaint, judgment is entered for Plaintiff and against Defendantin the amount of $675.00 plus interest; 3. Plaintiffis awarded $515.34 in costs; and 4. Plaintiffis awarded $26,820.00 in attorney fees. The Clerk is directed to incorporate this Order into the docket by reference pursuantto MaineRule ofCivil Procedure 79(a).

Dated: 

# Opd J~' )WJ

Page 9 of9

### STATE OF MAINE CUMBERLAND, ss.

APPLEGATE ASSOCIATION NO. 1,

V. 

### Plaintiff/Counterclaim Defendant,

MARJORIE COLLINS, ) ) ) ) ) ) ) ) ) 

### Defendant/Counterclaim ) Plaintiff. ) SUPERIOR COURT CIVIL ACTION Docket No. RE-2021-057

ORDER ON MOTIONS FOR SUMMARYJUDGMENT



### REC'D cu~~1B CLERKS rn=-c ~~~[il} 

### i8 '22 PM2:()4 

### This matter is before the Court on Plaintiff/Counterclaim Defendant Applegate Association No. l's ("the Association") Motion for Partial Summary Judgment and Defendant/Counterclaim Plaintiff Marjorie Collins's ("Mrs. Collins") Motion for Summary Judgment. For the following reasons, the Court grants the Association's Motion and denies Mrs. Collins's Motion. I. Background 

### The following is drawn from the parties' statements of material facts. The Association owns certain realpropertyinFalmouth, Maine. (Pl.'s Supp'gS.M.F. ']I 

### 3; Pl.'s Add'l S.M.F. ']I 

### 3.) Mrs. Collins owns Unit 31 in Building Cluster No. 11 within the Association by way of deed recorded in the Cumberland County Registry of Deeds at Book 36210, Page 92. (Pl.'s Supp'g S.M.F. <JI 

### 5; Def.'s Supp'g S.M.F. <JI 

### 1; Pl.'s Add'l S.M.F. <JI 5.) 

### All units within the condominium, including Mrs. Collins's, are subject to the Declaration, as amended and restated, recorded in the Cumberland County Registry of Deeds atBook36945, Page 40, as well as the Plats, Bylaws, and all properlypromulgated

### Rules and Regulations (the Declaration, Plats, Bylaws, and Rules and Regulations collectively, the "Governing Documents"). (PL's Supp'g S.M.F. <[ 

### 4; Def.'s Supp'g S.M.F. <_[ 

### 2; Pl.'s Add'l S.M.F. <[ 

### 4.) Declaration§ 5.2 provides that the Board of Directors ("the Board") shall govern the affairs of the Association. (Pl.'s Supp'g S.M.F. <[ 

### 20; Pl.'s Add'l S.M.F. <[ 

### 14.) In September 2020, Mrs. Collinsnotified theBoard thatshewasplanningto install gas heat to her unit. 1 

### (Pl.'s Supp'g S.M.F. c_![ 

### 26; Pl.'s Add'l S.M.F. <_[ 

### 20.) The Board provided Mrs. Collins with forms for an application for approval of the project. (Pl.'s Supp'g S.M.F. <[ 

### 30; Pl.'s Add'l S.M.F. <_[ 

### 24.) Mrs. Collins submitted a partial application. (Pl.'s Supp'g S.M.F. <[ 

### 31; Pl.'s Add'I S.M.F. <_[ 

### 25.} InearlyJanuary 2021, Mrs. Collins retained the services ofBeau

## J. Atwater-Wood ofRedwoodPlumbing and Heating to install a gas line to herunit. (Pl.'s Supp'g S.M.F. <[ 

### 35; Def.'s Supp'g S.M.F. <_[ 

### 4; Def.'s Add'l S.M.F. <[ 

### 1; Pl.'s Add'I S.M.F. <_[ 

### 29.) Although Mr. Atwater-Woodhad initially proposed running the gas line through the garage, Mrs. Collins and Mr. Atwater-Wood arrived at a different configuration for the gas line after discussing Mrs. Collins's plans for modifications to the interior of her unit, practical considerations, and safety considerations. (Pl.'s Supp'gS.M.F. <_[<_[ 

### 40-41; Def.'s Resp. Pl.'s Supp'g S.M.F. <_[<[ 

### 40-41; Def.'s Supp'g S.M.F. <_[<[ 

### 9-12; Def.'s Add'l S.M.F. <_[<JI 

### 6-9; Pl.'s Add'l S.M.F. <_[<_[ 

### 34-36.) The configuration involved running a gas line six feet up the exterior face of the building, approximately ten feet across the face of the building and

overthe door, then approximately eightfeet downthebuilding'sface parallel to the door before entering the unit. (Pl.'s Supp'g S.M.F. <JI 

### 42; Def.'sResp. Pl.'s Supp'g S.M.F. <JI 

### 42.}

1 Mrs. Collins denies several admissible statements of material fact without providing a record citation. Each ofthose statements is deemed admitted byMrs. Collins. See M.R. Civ. P. 56(h)(2), (4). 

### Page 2 of 13Sometime around the first week of January 2021, Mrs. Collins installed her gas line. (PI.1s Supp'g S.M.F. 

### 'iI 36; Pl.'s Add'l S.M.F. 

### 'iI 30.) Mr. Atwater-Wood affixed the gas line to the exterior face ofthebuilding with clamps screwedintothe exteriorwith twelve drywall screws and secured by split rings and F&M plates. 2 (Pl.'s Supp'g S.M.F. 'iJ:9[ 43, 44; Pl.'s Add'l S.M.F. 

### 'iI 38.) Mr. Atwater-Wood testified that to affix the gas piping, he screwed through the siding into the plywood beneath and into the drywall beyond the plywood. (Pl.'s Supp'g S.M.F. 

### 'iI 45; Pl.'s Add'l S.M.F. 

### 9I 39.) Mr. Atwater-Wood also drilled a hole at the end of the exterior gas piping through the exterior siding, plywood, and drywall. (Pl.'s Supp'g S.M.F. 

### 'iI 48; Pl.'s Add'l S.M.F. 

### 9I 42.) The gas line, which services onlyMrs. Collins's unit, was installed to service a gas range and gas fireplace within Mrs. Collins's unit. (Pl.'s Supp'g S.M.F. cir 37; Pl.'s Add'l S.M.F. 

### 9I 31; Def.'s Supp'g S.M.F. 

### 9I 6; Def.'s Add'l S.M.F. 

### 9I 3.) The gas line was safely installed. (Def.'s Supp'g S.M.F. 

### 9I 8; Def.'s Add'l S.M.F. 

### 9I 5.) Mrs. Collins did not submit a complete application to the Board before commencing the work, nor did she provide notice to the Board as to the timing of the workto be performed. (Pl.'s Supp'g S.M.F. 9[9[ 51, 52; Def.'sResp. Pl'sSupp'gS.M.F. 

### 9I 52; Pl.'sAdd'lS.M.F. 

### 9ICJI 45, 46.) Mrs. Collins statedthatshe "assumedthat [the] maintenance requestwas approved by the Board." (Pl.'s Supp'g S.M.F. cir 55; Pl.'s Add'l S.M.F. 

### 9I 49.) Section 3.4 ofthe Declarationprovides: Subject to the provisions ofthis Declaration, the Bylaws, and the Rules and Regulations of the Association, a Unit Owner may make nonstructural improvements and alterations within the interior of the Unit without approval of the Association.

2 Paragraphs 11-14, 46, 47, 49, and 50 of the Association's Supporting Statement of Material Facts and paragraphs 9, 11, 12, and 22 of the Association's Additional Statement of Material Facts constitute legal conclusions and will not be considered. The portion of paragraph 53 of the Association's Supporting Statement ofMaterialFacts thatcontains a legal conclusionwiU notbe considered. Similarly, paragraphs 7 and 14 ofMrs. Collins's Supporting Statement ofMaterial Facts and paragraphs 4 and 11 of Mrs. Collins's Additional Statement ofMaterial Facts will notbe consideredbecause they contain legal conclusions. Page 3 of 13Any alteration or improvement which is structural or which does not conform with the provisions in the previous sentence may be made only with the written approval of the Board ofDirectors. Applications for such alterations or improvements shall be made in accordance with the procedures set forth in § 4.3 herein. Alterations or improvements outside the boundaries of the Unit, as defined in § 3.2, also shall require written approval of the Board of Directors after application made in accordance with§ 4.3. (Pl.'s Supp'g S.M.F. 'l[ 6; Def.'s Supp'g S.M.F. 'l[ 18; Def.'s Add'! S.M.F. 'l[ 16; Pl.'s Add'! S.M.F. 'l[ 8.) Similarly, Declaration§ 4.3 provides inpart: No UnitOwner shall alter anyportion ofthe CommonElements, including the Limited CommonElements, without the express writtenpermission of the Board of Directors. Prohibited alterations without Board consent include exterior paint, exterior doors, replacement windows, addition of a second story, alterationofa garage orbasement, and all other alterations or additions to the portions of the Property considered Common or Limited CommonElements. (Pl.'s Supp'g S.M.F. 'l[ 15; Def.'s Supp'g S.M.F. 'l[ 19; Def.'s Add'! S.M.F. 'l[ 17.) Declaration § 4.1 defines the "Common Elements" as "all of the Property, excluding the Units." (Pl.'s Supp'g S.M.F. 'l[ 9; Def.'s Supp'g S.M.F. 'l[ 20; Def.'s Add'! S.M.F. 'l[ 18; Pl.'s Add'! S.M.F. 'l[ 6.) Declaration§ 1.1 defines "theProperty" as the "metes and bounds description ofthe real property andbuildings and improvementsprovided

as Exhibit A to the Declaration." (Pl.'s Supp'g S.M.F. 'l[ 10; Pl.'s Add'! S.M.F. 'l[ 7.) Section 3.2 ofthe Declaration defines the boundaries of a Unit: (a) The upper horizontal boundary is the unfinished/undecorated lower interior side of the wallboard, gypsum, or other surface attached to the lower edge ofthe second floor or atticjoists. (b) The lower horizontal boundary is the unfinished/undecorated interior side ofthe subflooringormaterial attached to the top edge ofthe floorjoists or any concrete floor slab. (c) The vertical boundaries are the unfinished/undecorated interior side of the wallboard, gypsum, or other surface attached to the inner edge of the exterior wall studs, interior surfaces of exterior doors, windows, skylights, and glass walls, and the unfinished/undecorated surface of party walls between abutting Units. Page 4 of 13By way of example and not of limitation, specific components of Units include interior partitions, finished flooring or floor covering

... and gas lines servicing Unit equipment and systems, even if any portions of such lines or systems are located outside of the Unitboundaries, provided that they do not service another Unit. Any portion ofthe utility system or other apparatus serving more than one Unit (e.g., pipes, conduits, ducts) which is partially within and partially without the Unit, is part ofthe CommonElements. (Pl.'s Supp'g S.M.F. 'l['l[ 7, 8; Def.'s Supp'g S.M.F. 'l[ 17; Def.'s Add'! S.M.F. 'l[ 15.) Declaration§ 5.3 authorizes the adoption of Rules and Regulations pertaining "to the operation, use, appearance, and occupancy of the Units and Common Elements." (Pl.'s Supp'g S.M.F. 'l[ 21; Pl.'s Add'! S.M.F. 'l[ 15.) The most current version of the Rules and Regulations was adopted inJune 2020. (PL's Supp'g S.M.F. 'l[ 22.; Pl.'s Add'! S.M.F. 'l[ 16.) Rule and RegulationIII provides: Owners are permitted to make alterations to the interior of their personal unit without having to seek the permission of the Board of Directors provided those alterations have no effect on the structure and are confined to the interior space. If the alterations affect the structure or the exterior appearance in any way, then a Request for Alteration/Maintenance must be submitted to the Alterations and Maintenance Committee with plans and contractor information for evaluation and recommendation for approval/denialby the Board ofDirectors. (Pl.'s Supp'g S.M.F. 'l[ 23; Pl.'s Add'! S.M.F. 'l[ 17.) Section 5.3(d) of the Bylaws provides: The violation of any rule or regulation adopted by the Association, or the breach of anyBylaw, or thebreach ofanyprovision ofthe Declaration shall give the Directors the right, in addition to any otherrights setforth inthese Bylaws: (1) After reasonable written notice and opportunity for the Owner to remedy the violation, to enter the Unit in which, or as to which, such violation or breach exists and to summarily abate and remove, at the expense of the defaulting member, any structure, thing or condition that may exist therein contrary to the intent and meaning of the provisions hereof, and theBoard ofDirectors shallnottherebybe deemed guilty inany Page 5 of 13

### manneroftrespassprovided,however, the BoardofDirectors shallnotalter or demolish any items of construction before instituting appropriate judicialproceedings; (2) To enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any suchbreach at the cost, including reasonable attorneys' fees, of suchmember; (3) 

### Ifthe personal conductofanypersonviolates the Association Rules and Regulations governing the use of the Common Elements, to suspend such useby any suchpersonfor violation of such rule orregulation for a period notto exceed thirty (30) days, in addition to the period ofviolation, for any single violation. (4) If, 

### after thirty (30) days written notice, a person continues to continuously or repeatedly, and flagrantly, violate a rule or regulation, summary charges may be levied against a member for such violation, in addition to anydamages, providedthatno summarychargesmaybelevied for more than $50.00 for any one violation; but each day a violation continues after such notice shall be considered a separate violation. Collection of charges for damages or summary charges may be enforced against the member as 

### if the charge were a common charge owed by a particularmember ormembers. (Pl.'s Add'l S.M.F. «JI 

### 70.) The Board obtained an estimate of $803.31 to rework the gas line. (Pl.'s Supp'g S.M.F. «JI 

### 67; Pl.'s Add'l S.M.F. «JI 

### 61.) Mrs. Collins refused to work with the Board to alter the gas line. (Pl.'s Supp'gS.M.F. «JICJI 

### 69, 70; Pl.'s Add'l S.M.F. <JI63, 64.) Pursuant to§ 5.3(d)(4) of the Bylaws, the Board sent a written Notice ofViolation to Mrs. Collins on April 10, 2021. (Pl.'s Add'l S.M.F. «JI 

### 71.) Mrs. Collins did not remedy the purported violation within thirty days of receipt of the Notice of Violation. (Pl.'s Add'l S.M.F. «JI 

### 73.) The Board voted to set a daily fine of$50.00. {Pl.'s Add'l S.M.F. <Jr 

### 72.) The Associationhas assessed and continues to assess Mrs. Collins a fine of$50.00 per day for each day that her gas line remains in place. (Def.'s Supp'g S.M.F. «JI 

### 16; Def.'s Add'l S.M.F. <JI 13.) Mrs. Collins moves for summary judgment on Counts I through IV of the Association's Complaint and Count I of her Counterclaim. The Association moves for Page 6 of 13 

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# Isummary judgment on Counts I and II of its Complaint and Counts I and II of Mrs. Collins's Counterclaim. II. Legal Standard A party is entitled to summaryjudgment when review of the parties' statements of material facts and the record to which the statements refer demonstrates that there is

no genuine issue as to any material fact in dispute, and that the moving party is entitled tojudgmentas a matter oflaw. M.R. Civ. P. 56(c); 

### Dyerv. Dep't ofTransp., 2008 ME 106, 'l[ 14,951 A.2d 821. A contested fact is "material" ifit could affect the outcome of the case. 

### Dyer, 2008 ME 106, 'l[ 14, 951 A.2d 821. A "genuine issue" of material fact exists if a factfinder must "choosebetween competingversionsofthe truth." 

### Id. (quoting

### Farrington's Owners'Ass'n

v. Conway Lake Resorts, Inc., 2005 ME 93, 'l[ 9, 878 A.2d 504). The court considers the record in the lightmost favorable to the party objecting to the grant of summaryjudgment. F.R. 

### Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, 'l[ 8, 8 A.3d 646; 

### Blue Star Corp. v. CKF Props., LLC, 2009 ME 101, 'l[ 23, 980 A.2d 1270. "Facts containedin a supporting or opposingstatement ofmaterial facts, ifsupportedbyrecord citations as required by this rule, shall be deemed admitted unless properly controverted." M.R. Civ. P. 56(h)(4). To controvert an opposingparty's statement offact,

a party must "support each denial or qualification by a record citation." M.R. Civ. P. 56(h)(2). The evidence offered in support of a genuine issue of material fact "need notbe persuasive atthat stage, butthe evidencemustbe sufficient to allow a fact-finder to make

a factual determinationwithout speculating." 

### Est. of Smith v. Cumberland County, 2013 ME 13, 'l[ 19, 60 A.3d 759.

Page 7 of 13

### When appropriate, summary judgment may be rendered against the moving party.M.R. Civ. P. 56(c). Summaryjudgmentmaybeentered ontheissue ofliabilityalone although there is a genuine issue as to the amountofdamages. Id. III. Discussion 

### Theundisputedfacts for eachofthependingmotions are substantiallysimilar,but not identical. The Court will first consider Mrs. Collins's motion, viewing the record developed in connection with that motionin the light most favorable to the Association. Then, the Courtwill consider the Association'smotion, viewing the record developed in connection with that motionin the lightmostfavorable to Mrs. Collins. A. Mrs. Collins's Motion for Summary Judgment 

### i. Counterclaim Count I 

### Count I 

### ofMrs. Collins's Counterclaim requests a declaratoryjudgmentthatMrs. Collins has the right to install gas lines without Board approval. Mrs. Collins contends thatthe GoverningDocuments allowUnitownersto modifytheinterior ofUnitswithout Board approvat and thatgaslines areincludedinthe definitionof 11

### Unit." To resolve this issue, the Courtmustinterpret the Governing Documents. "A condominium association's bylaws and declaration are contracts, and '[t]he interpretation of a contract, including whether or not its terms are ambiguous, is a question of law."' 

### Scott v. Fall Line Condo. Ass'n, 2019 ME 50, 

### lJI 6, 

### 206 A.3d 307 (quoting 

### Farrington 's Owners'Ass'n, 2005 ME 93, <]I 

### 9, 878 A.2d 504). Language is ambiguous "if

### it is reasonably susceptible to different interpretations." 

### Farrington's Owners' Ass'n, 2005 ME 93, <JI 

### 9, 878 A.2d 504. 

### If the court determines that language in 

### the contract is ambiguous, then the interpretation of that language becomes a question of fact for the factfinder. 

### Scott, 2019 ME 50, <JI 

### 6, 206 A.3d 307. Declarations andbylawsmustbe"construedinaccordancewith Page 8 

### of 13 

### Ii it II I: :11 \f.

### the intention of the parties, which is to be ascertained from an examination of the whole instrument. All parts and clauses mustbe considered together that it may be seen 

### if and how one clause is explained, modified, limited or controlled by the others." 

### Scott, 2019 

### ME 50, <jJ: 7,206

### A.3d 307 

### (quoting

### Am. Prof. Ins. Co. v. AcadiaIns. Co., 2003 

### ME 

### 6 1 <J[ 11,814 

### A.2d 989). 

### The Declaration is unambiguous. The Common Elements may not be modified withoutpriorwritten approval ofthe Board. The CommonElements include the exterior sidingandexterior wallsbecausetheyfall outsideofthedefinitionofa "Unit." Moreover, Rule and Regulation III 

### makes abundantly clear that any alteration that "affects the structure or the exterior appearance in any way" requires approval. Mrs. Collins's interpretation-thatgas lines are a componentof aUnit and maybe installed outside of a Unit and attached to CommonElements withoutprior approval of the Board as long as the gas line services only one Unit-isnot a reasonable reading. Mrs. Collins'sinterpretationdependsonreading§ 3.2

### inisolation. Butthe Courtmustconsider the meaning of § 3.2 

### within the context of the Declaration as a whole, which includes §§ 3.4, 4.1, 

### and 4.3, 

### and the incorporated Rules and Regulations. Reading the Governing Documents as a whole, it is apparent that Mrs. Collins's interpretation is unreasonable. Summaryjudgmentwill be entered against Mrs. Collins and in favor of the Association

on CountI 

### ofthe Counterclaim. 

### ii. Complaint Count I 

### The Association seeks a judgment declaring that Mrs. Collins violated the Governing Documentsby installing her gas line and that the gas line is anunauthorized alteration to the Association's Common Elements. As discussed above, the Governing Documents unambiguously prohibit alteration of the Common Elements without prior

Page 9 

### of 13Board approval, which Mrs. Collins did not obtain. Because installation of the gas line altered the exterior siding and walls, Mrs. Collins violated the GoverningDocuments. There are genuine disputes of fact regarding the aesthetic compatibility of Mrs. Collins's gas lines with gas lines servicing other units. These disputes, however, are not material because they do not affect the undisputed fact that Mrs. Collins did not receive approvalfor the gas line installation. Accordingly, theAssociationis entitledto summary judgmentinits favor and againstMrs. Collins onCountI ofits Complaint. 

### iii. Complaint Count II The Association seeks an orderenjoining Mrs. Collins from interfering withwork by the Association 

### to remove and reinstall the gas line. A court may award injunctive reliefwhen a plaintiff has shown: (1) thatplaintiffwillsufferirreparable injuryiftheinjunctionis notgranted, (2) thatsuchinjuryoutweighs anyharmwhichgrantingthe injunctiverelief would inflict on the defendant (3) that plaintiff has exhibited a likelihood of success on the merits (at most, a probability; at least, a substantial possibility), (4) that the public interest will not be adversely affected by granting the injunction. 

### Ingraham v. Univ. ofMe., 441 A.2d 691, 693 (Me. 1982). When a plaintiff requests a permanent injunction, the third element requires that the plaintiffhas succeeded on the merits. 

### Fitzpatrick v. Town of Falmouth, 2005 ME 97, <JI 18,879 A.2d 21. There are no genuine disputes of material fact as to any of the elements. As discussed in detail in the following section, the Association has succeeded in demonstrating the existence of the violation and its right to remedy the violation pursuant to the Governing Documents. 

### See Bylaws § 5.3(d)(1). The Association has demonstrated the harm 

### to its property rights from the continuing violation of the Governing Documents. Thatharm outweighs any harmthatwould come to Mrs. Collins from the reconfiguration and reinstallation of the gas line1 which is minimal. Finally, itis

Page 10 of 13

### apparentthatthepublicinterestwillnotbeadversely affectedbythereinstallationproject

orbypreventing Mrs. Collins from interfering with the work. The Association, therefore, is entitled to injunctive relief. Summaryjudgmentwill be entered against Mrs. Collins and in favor of the Association on Count II of the Complaint. An order will enter to enjoin Mrs. Collins from interfering with the Association's removal and reinstallation of the gas line servicing her Unit directly or throughher agent(s). iv. Complaint Counts III and IV 

### Count III of the Complaint is a claim for reimbursement of the cost ofremoving andreinstallingthe gas lines. CountIV is a claim for the fines assessed bythe Association against Mrs. Collins. Section 5.3(d)(l) of the Bylaws provides that the Association may abate and remove any "structure, thing or condition" that exists in 

### violation of the Governing Documents at the expense of the unit owner after reasonable written notice and opportunity for the unit owner to remedy the violation. Section 5.3(d)(4) of the Bylaws provides that the Board may fine a person fifty dollars per day after notice of a violation "[i]f, after thirty (30) days writtennotice, a person continues to continuously or repeatedly, andflagrantly, violate a rule orregulation." Installation of the gas line required affixing brackets to the exterior siding and drilling a hole through the exterior siding and wall, which are Common Elements, thereby altering the exterior appearance of the building. Mrs. Collins violated the Declaration andRule and RegulationIII byfailing to obtain approval ofthe Boardbefore proceeding with the project. A writtenNotice ofViolationwas sentto Mrs. CollinsonApril 10, 2021. TheBoard also offered Mrs. Collins an opportunity to remedy the violation by reworking the gas line, which she refused. The violation continued for more than thirty days. These facts Page 11 of 13are undisputed. The Board, therefore, has authority to fine Mrs. Collins for the violation pursuant to Bylaws§ 5.3(d)(4). The Board also has authority to remove the gas line at Mrs. Collins's expense. Summaryjudgment will be entered in favor of the Association and againstMrs. Collins on theissue ofliability for CountsIII andIV; however, a hearing

on damages will be necessary. B. The Association's Motion for Partial SummaryJudgment i. Complaint Count I As decided above, the Association is entitled to entry of summaryjudgmentinits favor and against Mrs. Collins on Count I ofits Complaint. ii. Complaint Count II As decided above, the Association is entitled to entry of summaryjudgmentin its favor and againstMrs. Collins on Count II ofits Complaint. iii. Counterclaim Counts I and II The Court has already ruled in favor of the Association and against Mrs. Collins

on Count I of the Counterclaim. Thus, in the context of the Association's Motion1 the Courtneed only discuss Counterclaim CountII. Count II ofMrs. Collins's Counterclaim requests an injunction prohibiting the Association from fining Mrs. Collins for the installation of the gasline. As discussed above, the Association has authority pursuant to Bylaws§ 5.3(d)(4) to fine Mrs. Collinsfor eachdaythegaslineremainsinplaceinviolationofthe Governing Documents. The Court will not issue the requested injunction. Summary judgment is entered in favor of the Association and against Mrs. Collins on Count II of her Counterclaim. IV. Conclusion

Page 12 of 13

### For the foregoing reasons, the Courts denies Mrs. Collins's Motion for Summary Judgment and grants the Association's Motion for Partial SummaryJudgment. The entry is: 1. 

### Defendant/Counterclaim Plaintiff Marjorie Collins's Motion for Summary Judgment is DENIED. Summaryjudgmentis entered against Mrs. Collins and in favor ofPlaintiff/CounterclaimDefendantApplegate AssociationNo. 1 onCount I of Mrs. Collins's Counterclaim, and summaryjudgment is entered against Mrs. Collins and in favor of the Association on Counts I and II of the Association's Complaint. Summaryjudgment as to the issue of liability is entered against Mrs. Collins and in favor of the Association on Counts III and IV of the Complaint; however, hearing on the issue of damages as to Counts III and IV is necessary before the Courtmaymake an award ofdamages. 2. The Association's Motion for Partial Summary Judgment is GRANTED. Summaryjudgmentis entered infavor oftheAssociation and againstMrs. Collins onCountsI and II ofits Complaint, and summaryjudgmentis entered infavor of the Association and againstMrs. Collins on Counts I and II ofthe Counterclaim. 3. Mrs. Collins is hereby ENJOINED from interfering with the Association1s removal and reinstallation of the gas line servicing her Unit directly or through her agent(s). The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).

Dated:

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