The opinion
spy fe ke
STATE OF MAINE vee SUPERIOR COURT
CUMBERLAND, ss sn 77, (J 1) AN ‘OI CIVIL ACTION
POCKET NO. Cy-00-31f*
~CUM 4/ad/a00l
HELEN M. OLCOTT, M 2 /
Plaintiff
ORDER ON DEFENDANT'S MOTION
Vs. FOR SUMMARY JUDGMENT AND
PLAINTIFF’S MOTION FOR
PORT RESORT REALTY PARTIAL SUMMARY JUDGMENT
CORP., ,
Defendant
In her complaint, the plaintiff alleges that the defendant breached the parties’
agreement dated 6/11/96 and failed to pay liquidated damages. See Complaint, 11 4
6. The plaintiff seeks damages of $50,000.00. The defendant moves for a summary
judgment on the complaint and argues that the language of the parties’
Replacement Agreement dated 6/11/96 makes clear that any obligation on the part
of the defendant to provide piping to the plaintiff's property and to pay more than
$10,000.00 to the plaintiff was "all contingent upon PORT receiving Planning Board
approval from the Town for its pending application to construct a new building."
See Det.'s SMF, {7 8, 9, 10; Replacement Agreement, Exhibit B attached to Bruno
Affidavit. The plaintiff moves for a partial summary judgment and argues that the
liquidated damages clause in the Replacement Agreement is enforceable. For the
following reasons, the defendant's motion is granted in part and denied in part; the
plaintiff's motion is denied.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The defendant filed a 15-paragraph Statement of Material Facts Not in
Dispute.! The plaintiff filed a 4-paragraph Response to Port Resort's Statement of .
Material Facts and a 35-paragraph Statement of Facts Supporting Plaintiff's Motion
for Partial Summary Judgment. A party opposing a summary judgment “shall
submit with its opposition a separate, short, and concise statement of material facts.
The opposing statement shall admit, deny or qualify the facts by reference to each
numbered paragraph of the moving party’s statement of material facts... .” M.R.
Civ. P. 56(h)(2); see also Saucier v. State Tax Assessor, 2000 ME 8, {| 4, 745 A.2d 972,
974. Facts contained in the statement of facts that are properly supported by record
citations “shall be deemed admitted unless properly controverted.” M.R. Civ. P.
56(h)(4); see also Saucier, 2000 ME 8, { 4, 745 A.2d at 974. The facts contained in the
defendant's statement of facts are, therefore, deemed admitted. See Def.’s SMF, 74
1-15. The plaintiff's responsive statement of facts and statement of facts in support
of her own motion will be considered for any additional facts that may be material.
See Prescott v. State Tax Assessor, 1998 ME 250, { 6, 721 A.2d 169, 172; see also
Bennett _v. Tracy, 1999 ME 165, 914, 740 A.2d 571, 574 (court need not decide whether
it was appropriate for defendant to neglect to file statement in opposition to
plaintiffs motion; even if defendant could rely on statement offered in support of
his own motion, no genuine issue of fact raised).
1The testimony regarding damages that is included in the defendant’s memorandum but not in
the statement of facts is not considered. See Def.’s Mem. at 2-4; M.R. Civ. P. 56(h)(1).
Plaintiff's Response to Defendant’s Statement of Facts
In her 4-paragraph responsive statement of facts, the plaintiff raises an
additional issue of fact with regard to an excavation hole. See Pl.'s SMF qq 24, 25.
This issue is not material to this case because the hole predated the parties’ original
agreement, which expired. See Def.’s SMF, { 7; Pl.’s SMF, 77 4, 9, 16; Olcott
Affidavit, J 5.
The plaintiff has not raised an issue of fact regarding whether the plaintiff
demanded or requested that the sewer line be extended to her property. See Def,’s
SME, J 15; Pl.'s SMF, 7 26. The referenced letters do not document a request for
extension of the sewer line. The sewer line is discussed only in the context of
settlement negotiations and a proposed revised Replacement Agreement. See id.,
Bruno Dep. Exhibits 10, 11. The referenced testimony of Mr. Bruno does not
concern requests for extension of the sewer line. See Bruno Dep. at 75-81. Because
no paragraph to the Olcott affidavit is specified, the court assumes paragraphs 12 and
14 are the appropriate paragraphs because they track the language of paragraph 26 of
the responsive statement of facts. See M.R. Civ. P. 56(h)(4) (“The court may
disregard any statement of fact not supported by a specific citation to record material
....”). In those paragraphs of her affidavit, the plaintiff does not discuss extension
of the sewer line. See Olcott Affidavit, J] 12, 14. Further, she refers to deposition
exhibits that were not submitted with the plaintiff's papers. See Olcott Affidavit, ]
14. Finally, the notice issue is not material because notice is not required under the
Replacement Agreement.
Plaintiffs Statement of Facts Supporting Plaintiffs Motion
The plaintiff has raised an issue of fact regarding construction of the road and
access to the plaintiff's property. See Pl.’s SMF, 74 11A, 11B; Replacement
Agreement, {7 3-4.
The defendant's obligation regarding the screen of trees and extension of
piping was contingent on Planning Board approval. See Replacement Agreement,
{{ 6, 11; Exhibit D, 7 2; Pl’s SMF, {7 11C, 11D. Based on this record, any failure by
the defendant to obtain written joinder by any mortgagee did not damage the
plaintiff because the deeds were exchanged. See PI.’s SMF, | 17; Def.’s SMF, { 12.
Some of the plaintiffs allegations are not supported by the record reference.
See Pl.’s SMF, {{ 11F, 13, 17, 19 (criteria and obligations Port Resort “was unable or
unwilling to meet”). Some of the allegations in the Olcott affidavit are not cited in
the statement of facts and are not supported by the record, even assuming the
allegations would be otherwise admissible. See Olcott Affidavit, J 1C (“ I learned
during the deposition of Ralph Bruno that financing was never obtained, a clear
prerequisite to doing the work contemplated in the agreement. As a result, Port
Resort did not live up to its good faith obligations concerning expansion, including
the piping.”). There is no evidence on this record to support the plaintiff's
allegation that the defendant “never attempted, in good faith, to obtain planning
board approval.” See Pl.’s Mem. at 7; Pl.’s SMF, J] 19-20 (citing Bruno Dep. 43-44 &
46-47).
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
The plaintiff seeks a judgment that the liquidated damages provision in the
Replacement Agreement is enforceable. The defendant’s response to the plaintiff's ©
motion suffers from the same procedural defects as the plaintiffs response to the
defendant’s motion. The plaintiff filed a 35-paragraph statement of facts in support
of her motion. The defendant responded with a two-paragraph Statement of
Material Facts in Dispute. See M.R Civ. P. 56(h)(2). The defendant’s statement of
facts will be considered for any additional facts.
The plaintiff argues that paragraph 1(e) of Exhibit D of the Replacement
Agreement provides for an additional $60,000.00 as liquidated damages “in the
event of any default” by the defendant. See id., 1 1(e). The defendant has raised an
— issue of fact regarding whether the liquidated damage clause is enforceable. See
Def.’s Responsive SMF, { 2; Brignull v. Albert, 666 A.2d 82, 84 (Me. 1995).
The entry is
The Defendant's Motion for Summary Judgment is
DENIED with regard to the Defendant's alleged breaches of
Paragraphs 3 and 4 of the Replacement Agreement and
Paragraph 1(e) of Exhibit D of the Replacement
Agreement. The Defendant’s Motion for Summary
Judgment is GRANTED with regard to the Defendant's
other alleged breaches of the Replacement Agreement.
The Plaintiff's Motion for Paytial Summary Judgmentis
DENIED.
Dated: March 22, 2001 L,
anes Mills
stice, Superior Court
Date Filed 05-16-00 CUMBERLAND
Docket No. _CV_ 00-311
Action DAMAGES
County
HELEN M. OLCOTT
VS.
PORT RESORT REALTY CORP.
Plaintiff’s Attorney
PETER CLIFFORD, ESQ 985-4009
PO BOX 1069, KENNEBUNK ME 04043
Date of
Cntr...
Defendant’s Attorney 985-6184
ALAN SHEPARD ESQ
56 Portland Rd. Kennebunk, ME 04043