Auritt v. Auritt

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. RE-19-48
SHANNON AURITT, )
)
Plaintiff )
)
V. ) ORDER ON DEFENDANT TWIN
) MEADOWS HOMEOWNERS
GARY AURITT, STEPHANIE ) ASSOCIATION'S MOTION FOR
WILKINSON, CARLL WILKINSON, ) SUMMARY JUDGMENTS'f:)-r.t:.Q" N}N\'i:
TD BANK N.A., TWIN MEADOWS ) nla;;;;. . i1 ; . ) om. .
ri,mh~,t~nn ti~ Ciel~ s HI~~
HOMEOWNERS ASSOCIATION, )
and BANGOR SAVINGS BANK, )
)
JUL 16 2019
Defendants. )
RECBVED
Before the Court is Defendant Twin Meadows Homeowners Association's ("Twin~: 1~
Meadows") motion for summary judgment on all counts of Plaintiff Shannon Auritt's

complaint. This motion, along with a memorandum of law, statement of material facts,

and supporting affidavit, was filed on June 14, 2019. Ms. Auritt filed an opposition on

July 2, 2019. Twin Meadows did not file a reply brief, and this motion is in order for

decision. For the following reasons, the motion is granted.

I. Background

The Court first notes that Ms. Auritt failed to comply with M.R. Civ. P. 56(h)(2t

and all properly supported facts contained in Twin Meadows 1 s statement of material facts

are therefore deemed admitted. M.R. Civ. P. 56(h)(4). The Court finds each of Twin

Meadows' s statements of material fact is properly supported by record citation and thus

draws the following account from Twin Meadows' s statement of material facts.

Twin Meadows is a nonprofit corporation duly organized and existing under the

laws of the State of Maine. The Articles of Incorporation were filed with the Maine

Secretary of State on October 26, 2005, and Twin Meadows was given the Charter

Number 20060253ND. Pursuant to the Twin Meadows Declaration of Covenants and

Plaintiff-Pro Se
Defendant Auritt-Andre Hungerford, Esq.
1 of 6 Defendants Wilkinsons-William Kennedy, Esq.
Def TD Bank-Elizabeth Lacombe, Esq.
Def Twin Meadows-David Hi rs hon, Esq.
Def Bangor Savings Bank-Ryan Dumais, Esq.
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Restrictions (the "Declaration") dated November 4, 2005 as amended, and recorded in

the Cumberland County Registry of Deeds in Book 23379, Page 148, Twin Meadows is

responsible for, among other things, the governance of the five residential lots which

comprise the Twin Meadows Subdivision located on Woodville Road, Falmouth, C~unty

of Cumberland, Maine.

Ms. Auritt and Defendant Gary Auritt (collectively, the "Auritts") acquired 27

Twin Meadows Lane, Falmouth, Maine (the "Property/I) by deed dated October 19, 2009

and recorded in the Cumberland County Registry of Deeds in Book 27334, Page 104. The

Auritts occupied the Property for a period of time. On or about July 21, 2015, the Auritts

were divorced in the Portland District Court, Docket No. FM-13-742, and the Court

awarded Ms. Auritt' s interest in the Property to Mr. Auritt.

Article VII of the Declaration imposes upon each owner of property in the Twin

Meadows Subdivision, including the Auritts as owners of the Property, an obligation to

pay Twin Meadows assessments and charges, including reasonable attorneys' fees and

costs of collection. Pursuant to Sections 7.1 and 7.2• of the Declaration, the assessments,

charges, attorneys' fees and costs "shall be a lien against such lot." Additionally, "[e]ach

such assessment and charge, together with the interest thereon and costs of collection

thereof, shall also be the personal obligation of the Member owning such assessed Lot at

the time when the assessment fell due."

Ms. and Mr. Auritt were each, at all times relevant1 a Member owning an assessed

Lot, as defined in the Declaration. The Auritts failed to pay to Twin Meadows dues as

properly assessed as of July 23, 2013; August 1, 2014; and January 1, 2015. As a result, and

1 Twin Meadows' s right to recovery of attorneys' fees is derived from Section 7.2 of the Declaration, which
is not specifically referenced in Twin Meadows's Statement of Material Fact 7. The Court is also unable to
locate within the Declaration the quoted language in Statement of Material Fact 7 but has identified and
quoted similar language from Section 7.l(a) of the Declaration.

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as authorized by the Declaration, Twin Meadows caused to be recorded in the

Cumberland County Registry of Deeds Notices of Lien against Ms. and Mr. Auritt on

October 23, 2013; October 20, 2014; and January 21, 2015.

Pursuant to a Judgment and Order of Sale dated June 4, 2015, the Property was to

be sold at public sale. Twin Meadows has never taken any action personally against the

Auritts to collect the assessments, charges and other costs owed to Twin Meadows. Twin

Meadows was not a party to the Intercreditor Agreement referenced in Ms. Auritt' s

Complaint at Page 7 in connection with an action docketed in the Cumberland County

Superior Court as PORSC-RE-10-537.

By Deed dated October 28, 2015 as recorded in the Cumberland County Registry

of Deeds in Book 32707, Page 280, Defendants Carll and Stephanie Wilkinson• acquired

the Property from Hammond Lumber Company pursuant to the public sale as authorized

by the Court in the June 4, 2015 Judgment and Order of Sale. To the extent any work was

done on the Property, Twin Meadows did not receive any benefit therefrom. Twin

Meadows never authorized Mr. Auritt or the Wilkinsons to act on its behalf. Twin

Meadows took no action to interfere with the Auritts' ownership of the Property. Twin

Meadows never received any money from the sale of the Property.

IL Standard of Review

Summary judgment is appropriate if, based on the parties' statements of material

fact and the cited record, there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep' t ofTransp., 2008

ME 106, 91 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case.

A genuine issue of material fact exists when the factfinder must choose between

2 All claims against the Wilkinsons were dismissed on June 18, 2019.

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competing versions of the truth." Dyer, 2008 ME 106, 114, 951 A.2d 821 (internal citation

and quotation marks omitted). When deciding a motion for summary judgment, the

court reviews the evidence in the light most favorable to the non-moving party. Id.

If the moving party's motion for summary judgment is properly supported, the

burden shifts to the non-moving party to respond with specific facts indicating a genuine

issue for trial in order to avoid summary judgment. M.R. Gv. P. 56(e). When a defendant

moves for summary judgment, the plaintiff must respond with evidence establishing a

prima fade case. Watt v. UniFirst Corp., 2009 ME 47, i 21, 969 A.2d 897. The evidence

proffered by the plaintiff "need not be persuasive at that stage, but the evidence must be

sufficient to allow a fact-finder to make a factual determination without

speculating." Estate of Smith v. Cumberland Cnty., 2013 ME 13, CJI 19, 60 A.3d 759. If a

plaintiff fails to present sufficient evidence, then the defendant is entitled to

a summary judgment. Watt, 2009 ME 47, i 21, 969 A.2d 897.

III. Discussion

The Court finds there is no genuine issue of material fact with respect to Ms.

Auritt's claims against Twin Meadows. Rule 56(e) provides:

When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of that party's pleading, but must respond by affidavits or as
otherwise provided in this rule, setting forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse
party.

Ms. Auritt' s opposition to Twin Meadows' s motion fails to set forth any specific facts

showing that there is a genuine issue for trial. In her memorandum in opposition, Ms.

Auritt refers to an Order Pending Divorce entered by the Portland District Court on

October 21, 2013 in order to argue that at that time, "Mr. Gary Auritt was awarded the

marital residence along with being responsible for the bills associated with it." (Pl.'s

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Opp'n to Def.'s Mot. Summ. J. 1.) However, the October 21 Order only awards to Mr.

Auritt exclusive possession of the Property and makes no order concerning ownership of

the Property. Rather, each of the liens filed against Ms. Auritt by Twin Meadows was

filed before entry of the Judgment of divorce, which awarded Ms. Auritt's interest in the

Property to Mr. Auritt. To the extent that Ms. Auritt's claims against Twin Meadows rest

upon an allegation that the liens were improperly filed against her, she has failed to

respond with evidence establishing a prima facie case. Moreover, Ms. Auritt's opposition

makes no further argument and identifies no further relevant facts in support of any of

her claims against Twin Meadows.

In short, Ms. Auritt has wholly failed to properly oppose Twin Meadows's motion

for summary judgment. Ms. Auritt having identified no genuine issue of material fact

with respect to her claims against Twin Meadows, Twin Meadows is entitled to summary

judgment in its favor.'

IV. Conclusion

For the foregoing reasons, Defendant Twin Meadows Homeowners Association's

Motion for Summary Judgment is GRANTED. Plaintiff Shannon Auritt's Complaint

against Defendant Twin Meadows Homeowners Association is dismissed with prejudice.

Defendant Twin Meadows Homeowners Association is awarded its costs against Plaintiff

Shannon Auritt.

3 The Court further notes that many, if not all, of Ms. Auritt' s claims against Twin Meadows are subject to
dismissal for failure to state a claim upon which relief can be granted, for the same reasons discussed more
fully in the Court's June 18, 2019 Order dismissing all claims against the Will<lnsons and Bangor Savings
Bank The Court agrees with Twin Meadows that "[i]t is difficult to discern from the Complaint what
grounds Plaintiff believes she has to sue the Association." (Def.'s Memorandum of Law 1.) Indeed, as
explained in the Court's previous Order, many of the Counts in Ms. Auritt's Complaint fail to properly
allege any legal claim. Ms. Auritt's failure to properly controvert Twin Meadows's motion for summary
judgment further confirms that she has raised no triable issue with respect to Twin Meadow.s.

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

pursuant to M.R. Civ. P. 79(a).

h· J
Entered on the Docket: jll~'? ync
3: Sof~

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. RE-19-48
SHANNON AURITT, )
)
Plaintiff )
)
v. ) ORDER ON DEFENDANTS
) STEPHANIE AND CARLL
GARY AURITT, STEPHANIE ) WILKINSON AND BANGOR
WILKINSON, CARLL WILKINSON, ) SAVIN GS BANK'S MOTIONS TO
TD BANK N.A., TWIN MEADOWS ) DISMISS
HOMEOWNERS ASSOCIATION, )
and BANGOR SAVING BANK, )
)
Defendants. )

Pending before the Court are two motions to dismiss Plaintiff Shannon Auritt's

complaint. The first was filed by Defendants Stephanie and Carll Wilkinson (collectively,

"the Wilkinsons") on March 14, 2019. The second was filed by Defendant Bangor Savings

Bank ("BSB") on March 19, 2019. Ms. Auritt filed a document the Court accepts as an

opposition to both motions to dismiss on March 26, 2019. The movants did not file reply

briefs, and these motions are in order for decision. For the following reasons, both

motions to dismiss are granted.

I. Background

Ms. Auritt filed a 20-count complaint in this Court on March 7, 2019. The following

facts are drawn from the complaint and its attachments.' The complaint concerns the

property located at 27 Twin Meadows Lane, Falmouth, Cumberland County, Maine,

which Ms. Auritt alleges was the marital residence of herself and Defendant Gary Auritt.

1 A court may consider "official public documents, documents that are central to the plaintiff's claim, and
documents referred to in the complaint, without converting a motion to dismiss into a motion for summary
judgment when the authenticity of such documents is not challenged." Moody v. State Liquor & Lottery
Comm'n, 2004 ME 20, 'II 10, 843 A.2d 43. There has been no challenge to the authenticity of any of the
documents relied on by the Court in making this Order.

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(PL's Compl. 2.)' Mr. and Ms. Auritt divorced in 2015, at which time the subject property

was encumbered by a number of liens. (PL's Compl. 2-5.) Pursuant to their divorce

decree, Ms. Auritt conveyed the property to Mr. Auritt, subject to the debts associated

with the property. (PL's Compl. 5.) More specifically, Mr. Auritt was awarded the

property subject to an Intercreditor Agreement: entered into by the various lienholders,

as detailed in the Abstract of Divorce Judgment Regarding Real Estate, attached to Ms.

Auritt' s complaint. The Divorce Judgment further states. that "Gary Auritt shall be

responsible for any deficiency claim and all obligations pertaining to the real estate except

for that portion of the deficiency or for any obligation arising out of any lien or claim by

Shannon's parents."

On or about October 23, 2015, the property was conveyed by quitclaim deed to the

Wilkinsons, subject to the liens which Ms. Auritt alleges had not been discharged. (PL's

Comp 1. 5.) On October 30, 2015, the Wilkinsons executed a mortgage in favor of BSB. (PL' s

Compl. 5.) Ms. Auritt generally complains that the various named defendants failed to

clear the liens on the property and that she has been financially damaged by the

unresolved debts. (See PL's Compl. 7-8.) The complaint includes counts for, inter alia,

breach of contract, negligent misrepresentation, fraud, tortious interference, and unjust

enrichment.

2 Because the paragraphs in Ms. Auritt' s complaint are not numbered, citations to the complaint refer to

page numbers only.
3 As explained by the District Court (Cumberland, Darvin, J.) in the course of the divorce proceeding,

[u]nder the Intercreditor Agreement, the marital creditors have agreed that the sale of the
marital real estate ... and the distribution of the proceeds among them in accordance with
the appended Superior Court Judgment and Order of Sale shall constitute a full accord and
satisfaction of the marital claims .... Gary Auritt ... shall assume the responsibility for
satisfying the marital claims secured thereby by joining in the marital creditors' motion to
the Superior Court for its approval of the Judgment and Order of Sale.

Auritt v. Auritt, No. FM-13-742 (Me. Dist. Ct., Portland, May 11, 2015).

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III. Discussion

The Wilkinsons note in their motion, and the Court agrees, based on the

documents attached to Ms. Auritt's complaint, that the Wilkinsons did not enter into any

contractual agreement with Ms. Auritt or make any kind of representation whatsoever to

Ms. Auritt. Instead, Ms. Auritt's claim against the Wilkinsons seems to be grounded on

her theory that "[t]he Wilkinsons by having a quit claim deed on said property are also

now 'in the same boat' as Mr. Auritt." (Pl.'s Compl. 17.)

The Court appreciates that the Wilkinsons have painstakingly analyzed each count

of Ms. Auritt' s complaint with respect to their role in this litigation and agrees that none

of the counts of the complaint states a claim against the Wilkinsons, either because the

count fails to state a claim altogether or because the count states a claim that is wholly

irrelevant to the Wilkinsons. For instance, in Count 1 - Breach of Contract, Ms. Auritt fails

to identify any contract between herself and the Wilkinsons, much less make any

allegations regarding how such contract was breached. Similarly, in Count 2 - Negligent

Misrepresentation, Ms. Auritt fails to identify any misrepresentation that was made to

her by the Wilkinsons. Count 3 - Fraud, does not reference the Wilkinsons at all. Each of

the other counts is similarly baseless, and much of the complaint is overly vague if not

nonsensical.

Considering the facts alleged by Ms. Auritt in the light most favorable to her, the

Court discerns no legal basis for any claim against the Wilkinsons, and the Wilkinsons

are therefore entitled to dismissal.

Moreover, BSB' s motion to dismiss will likewise be granted. The Court fails to

discern any viable claim stated against BSB by Ms. Auritt.

IV. Conclusion

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For the foregoing reasons, Defendants Stephanie and Carll Wilkinson's motion to

dismiss is GRANTED. Defendant Bangor Savings Bank's motion to dismiss is likewise

GRANTED. All counts of Plaintiff Shannon Auritt's complaint are dismissed with

prejudice as to Defendants Stephanie Wilkinson, Carll Wilkinson, and Bangor Savings

Bank.

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

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

Dated:

Plaintiff-Pro Se
Def Auritt-A.J. Hungerford, Esq.
Defs Wilkinsons-William Kennedy, Esq.
Def TD Bank-Brett Messinger, Esq.
Def Twin Meadows-David Hirshon, Esq.
Def BSB-Ryan Dumais, Esq.

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