The opinion
*
STATE OF MAINE SUPERIOR COURT
WASHINGTON, SS. CIVIL ACTION
Doc. No. CV-00-012
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TREASURES OF THE SEA, INC., SEP 7 2000
Plaintiff
vs. ORDER ON MOTION FOR
SUMMARY JUDGMENT
G. DENNIS JOHNSON
Defendant
This matter is before the court on the motion of the plaintiff for
summary judgment on its complaint for monies had and received (Count J),
account annexed (Count II) and breach of contract (Count III).
FACTUAL STATEMENT
The plaintiff asserts in its unopposed Statement of Uncontested Facts
(hereinafter “R.”) that it is owed $43,439.64 by the defendant “for monies
had and received” and for business services provided from October 2, 1999
to December 22, 1999. R. at 11. In support of this claim, the plaintiff
relies on “invoices” attached “as Exhibit A” to the undated affidavit of its
president, Franciso Velez.! Id; see also Affidavit at 1 2. Although the
affidavit suggests that there are two or more attached documents, there is in
1Although the affidavit is undated, it does recite that the information is
determined “[a]s of June 26, 2000”. See Affidavit at I 6.
fact only one. It is not labelled “Exhibit A” and does not appear to be an
invoice. Rather, it is styled a “Reconciliation of Cash” and presents an
ambiguous chronological listing of eleven debit memos and checks for a few
specified (e.g., “Rent & Power Reimb”, “Rent”) and several unspecified
purposes.” It also includes a chronological listing of eight checks relating to
the purchase of scallops? and lists six wire transfers for scallops sold.*
Finally, it includes a “Profit” category which appears to represent the
plaintiffs characterization of what a conservative “profit should be”.
The plaintiff also asserts that it enteted into a contract with the
defendant on or about October 2, 1999, to loan him monies. In return, the
defendant agreed “to pay the Plaintiffs usual and customary charges for such
monies and services”. R. at I 2 (emphasis added). The unopposed facts do
not disclose how much money was loaned under the contract or what the
“usual and customary charges” were. Further, there is no evidence that the
plaintiff contracted to provide any “services”. Even if that is somehow
implied, there is no indication of what those services were or what they
were worth.
DISCUSSION
Summary judgment will be granted only if the evidence demonstrates
2Of these Debit Memos and Checks, two refer to the defendant, three to the
“Johnsons” (presumably the defendant and “Cindy Johnson”) and most to neither of
them.
30Of these checks, two refer to the defendant, one to “Cindy Johnson” and the
remainder to neither of them.
4Each of these wire transfers only refers to “Pier 7”. However, it is not clear
whether this relates to the defendant, Cindy Johnson or some other entity.
2
that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Denman v. Peoples Heritage Bank,
nc., 1998 ME 12, 93, 704 A.2D 411, 413. When a court rules on a motion
for a summary judgment, it is to consider only (1) the portions of the record
referred to in the Rule 7(d) statements and (2) the material facts contained
in those statements. Gagnon’s Hardware & Furn., Inc. v. Michaud, 1998 ME
265, I 5, 721 A.2d 193, 194. The court may deem facts admitted from the
statement of material facts accompanying the motion for a summary
judgment if they are not properly controverted pursuant to M.R. Civ. P.
7(d)(2). Panasonic, 1997 ME 43, 7 10, 691 A.2d at 194 (citing Casco N.
Bank, N.A. v. Edwards, 640 A.2d 213, 215 (Me. 1994)). The defendant did
not file any response to the motion and, accordingly, the facts set forth in
the plaintiffs’ Statement of Material Facts are deemed admitted by him. °
M.R. Civ. P. 7(d)(2).
Since there is no genuine issue of material fact, the decision of
whether to grant summary judgment turns on whether the plaintiff is
entitled to judgment as a matter of law. Because the plaintiff would bear the
burden of proof at trial, it must have presented evidence sufficient to resist a
motion for a directed verdict if it produced nothing more at trial. See Keyes
Fibre Company v. Lamarre, 617 A.2d 213, 214 (Me. 1992).
A. Monies Had and Received (Count I)
An action for monies had and received is proper when “one has in his
possession money in equity and good conscience belonging to another.”
Ketch v. Smith, 161 A. 300, 300 (Me. 1932). See also Chapman v. Board of
-
County Commissioners, 107 U.S. 348, 356 (1883). Privity of contract is not
required. See Lewis v. Sawyer, 44 Me. 332 (1857). To maintain such an
action, the plaintiff must prove the receipt of the money by the defendant
and prove that it was received to plaintiffs use, that is, plaintiffs title to it.
See Titcomb v. Powers, 80 A. 851 (Me. 1911). The Company has not proven
that the defendant received all of the money claimed to be owed. Under
“Issue #1” of the “Reconciliation of Cash”, most of the checks and debit
memos do not specify whether the amounts were received by the defendant
or Cindy Johnson or both. “Issue #2” of the “Reconciliation of Cash” lists
eight checks. Of these, only two were made out to the defendant; five were
made out to cash with no specification as to the recipient; and one was
made out to Cindy Johnson. The obvious inference from these
uncontroverted facts, viewed in the light most favorable to the nonmoving
party, is that the defendant did not receive all or most of the funds claimed
to be owed.
Accordingly, the plaintiff has not presented evidence sufficient to
resist a directed verdict if it produced nothing more at trial and it is not
entitled to summary judgment on Count I.
B. Account Annexed (Count ID
An account is some matter of debt and credit and implies that one is
responsible to another for money. See Mugerdichian v. Goudalion, 186 A.
611, 612 (Me. 1936). An itemized account must be a detailed and specific
statement of items of debt and credit. See id.
An action brought on an itemized account annexed to the complaint
may be supported by an affidavit of the plaintiff that the account is a true
statement of the defendant’s indebtedness, that all proper credits have been
given and that the prices or items charged in the account are just and
reasonable. 16 M.R.S.A. § 355 (1999). Such an affidavit is prima facie
evidence of the truth of the statement made in the affidavit and entitles a
plaintiff to judgment unless statements in the affidavit are rebutted by
competent and sufficient evidence. Id. See also Cianchette v. Hanson, 123
A.2d 772 (Me. 1956). The affidavit of Francisco Velez does not meets this
standard and, therefore, is not prima facie evidence of the truth of the
statements contained therein. See Brunswick Artesian Well Co. v.
Hutchinson, 420 A.2d 1227, 1229 (Me. 1980). The attached
“Reconciliation of Cash”, although detailed and specific, does not fairly
imply that the defendant is responsible to the plaintiff for all of the specified
amounts. Accordingly, the plaintiff has not presented evidence sufficient to
resist a directed verdict if it produced nothing more at trial and it is not
entitled to summary judgment on Count II.
C. Breach of Contract (Count II)
To establish a binding agreement between two parties, “the mutual
assent to be bound by all its material terms must be reflected and
manifested either expressly or impliedly in the contract and the contract
must be sufficiently definite to enable a court to determine its exact
meaning and fix any legal liability of the parties.” Smile, Inc. v. Moosehead
Sanitary District, 649 A.2d 1103, 1105 (Me. 1994). See also June Roberts
Agency, Inc. v. Venture Properties, Inc., 676 A.2d 46, 48 (Me. 1996). The
plaintiff, as the party seeking to enforce the contract, bears the burden of
establishing its existence. See id.
According to the unopposed record evidence, on or about October 2,
1999, the parties entered into a contract. The plaintiff agreed to loan
money to the defendant and he in turn agreed to pay the plaintiffs usual and
customary charges for such money. The defendant also agreed to pay usual
and customary charges for services rendered by the plaintiff. However,
there is no evidence that the plaintiff agreed to provide any services or, if it
did, what those services were.®
Although the defendant has not denied the existence of a contract
between himself and the plaintiff, the unopposed facts are not sufficient to
enable the court to determine its exact meaning or to fix the legal liability of
the defendant. The evidence suggests that the contract was an implied ‘one
based upon a course of dealing between the parties. As such, the court must
exercise extreme caution when deciding whether to grant summary
judgment.
“We find it difficult to imagine a real-life situation in which a
‘course of dealing’ between the parties can upon motion for
summary judgment be properly postured to eliminate issues of
fact. An evidentiary exploration of the ‘course of dealing’ must
necessarily involve all communications written and oral as well
as the action of the parties in reliance thereon.”
Wallingford v. Butcher, 413 A.2d 162, 165 (Me. 1980). Accordingly, the
plaintiff is not entitled to summary judgment on Count III.
5The “Reconciliation of Cash”, so-called, does not refer to any indebtedness for
services rendered by the plaintiff. It only categorizes amounts for “Checks and Debit
Memo” items that presumably relate to the loan and amounts for scallops bought and
sold.
D. Conclusion
Based on all of the foregoing, it is ORDERED that the plaintiffs motion
for summary judgment is DENIED as to all counts of the complaint.
Pursuant to Rule 79{a) M.R.Civ.P., the Clerk is directed to enter this
Order on Motion for Summary Judgment on the Civil Docket by a notation
incorporating it by reference.
Dated: August 31, 2000 Myp-
Justice, Superior Court
Date Filed __ 93/23/00 Washington
Docket No, __Cv-00-012
Action Contract
County
Treasures of the Sea, Inc.
VS.
sep 7
G. Dennis Johnson
ot
Plaintiff's Attorney
Brett D. Baber, Esq. Bar # 3143
Rudman & Winchell
P.O. Box 1401
Bangor, Maine 04402-1401
Date of
Entry
Defendant’s Attorney
G. Dennis Johnson
Pro Se
118 Smithville Road
Steuben, Maine 04680