The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-01-165
. por / - | ,
ALEXANDER DAVID MANN,
Plaintiff
JUDGMENT, ORDER
AND DECISION
v. (TITLE TO REAL ESTATE AFFECTED)
LAW LIBRARY
Defendants
NOV 21 20m
1. THE PARTIES ,
The plaintiff is Alexander David Mann of Kittery, Maine who was represented
by Attorney Patrick Bedard of Eliot, Maine. — On
The defendants are Elmer Lewis of Kittery, Maine and Priscilla and Galen Gavel
of New Durham, New Hampshire. They were represented by Attorney Robert
Nadeau of Wells, Maine.
2. DOCKET NUMBER
The docket number is CV-01-165.
3. NOTICE — All parties have received notice of the proceedings in accordance with
the applicable provisions of the Maine Rules of Civil Procedure.
4. DESCRIPTION OF THE REAL ESTATE ~ This suit is primarily concerned with a
request that specific performance of alleged contracts for the sale of real estate be
_ ordered. The claimed contracts are from July 20, 1999 and January 10,2001 and
involved real estate on or near Haley Road in Kittery which is described at Book
9762, Page 77 in a quitclaim deed of July 29, 1999 from Pauline Grover, Elmer
Lewis and Priscilla Gavel to Elmer Lewis and Priscilla Gavel, excepting property
conveyed to Christopher Stevens and Mary Gibbons by warranty deed of June
21, 2000 which is recorded at Book 10085, Page 241, and in a separate deed from
Pauline Grover, as personal representative, to Priscilla Gavel of October 21, 1995
recorded at Book 7603, Page 116.
The plaintiff has brought a seven count complaint concerning proposed land
transactions that were never completed. Count I seeks specific performance of a
claimed July 20, 1999 contract while Count II seeks specific performance of a claimed
January 19, 2001 agreement. Counts III and Iv are for breach of contract for the 1999
and 2001 transactions while Counts V and VI are claims based on a theory of implied
contracts. Lastly, Count VII is for unjust enrichment for work done by the plaintiff for
land clearing, road building, survey work, and the installation of utilities. An answer
and counterclaim based on slander of title were filed. A hearing has been held.
The plaintiff is a real estate developer and builder while the defendants are the
owners, in various ways, of relatively large adjoining parcels of undeveloped real
estate. Mr. Mann had contact with the defendants primarily through the defendant Mr.
Lewis. The transactions in this case were put together without the benefit of lawyers,
ware often not signed by all necessary parties, were often vague, were frequently
modified or delayed, and lack many useful details. A central question is whether an
actual agreement was ever reached.
The first of the two alleged contracts is the July 20, 1999 agreement to purchase
supposedly between the plaintiff and Elmer Lewis and Priscilla Gavel. This document
was never signed by Ms. Gavel and was modified as time passed. While construction
did begin and one house was built and sold, I cannot determine what was actually
agreed to once the modifications were made. There was an evolving relationship rather
than a contract. In addition, one of the sellers never signed the agreement to purchase.
The second alleged agreement is from January 19, 2001 between A. David Mann
and Galen and Priscilla Gavel. This agreement also fails as the required planning board
approval was never obtained and as the provision that “Legal papers will be drawn up
to reflect this agreement” was never complied with by either side. The parties in both
instances came close to reaching an enforceable agreement but their inexpensive,
trusting, loose way of doing business, while understandable and even admirable in
some situations, produced this litigation when those informal relationships proved
inadequate.
The next issue is whether the defendants Elmer Lewis and Priscilla Gavel owe
anything to the plaintiff for the work he did in surveying, land clearing, installing
utilities and building a road as part of the first transaction and the sale of a house. The
claim is that a portion of that work benefits the remaining land of the defendants and
that they would be unjustly enriched if they did not pay something. The plaintiff has
met all of the requirements for making a claim for unjust enrichment. See Howard &
Bowie, P.A. v. Collins, 2000 ME 148 713, 759 A.2d 707, 710. Placing a value on the claim
is more difficult.
The proper measure of damages is “the value of the benefits that the plaintiff
proves are actually received and retained by the defendant.” See A.F.A.B., Inc. v. Town
of Old Orchard Beach, 639 A.2d 103, 106 (Me. 1994). Here the evidence from Mr. Mann
focused on his costs not the value of the benefits. Among those costs, see plaintiff’s -
exhibit 27, were some that were withdrawn, some that had little documentation to
support them, and some that, if costs were the measure of damages, would be
disallowed. Mr. Lewis on cross-examination agreed, however, that some of the costs
3
should be paid as those costs benefited one or more of the defendants. Given the status
of the record the plaintiff will be awarded $4,000 on his claim for unjust enrichment.
The plaintiff shall also recover any. down payments or other payments made to any of
the defendants relating to the January 2001 “agreement”.
The defendants have brought a counterclaim for slander of title. See Raymond v.
Lyden, 728 A.2d 124, 126, n. 6 (Me. 1999). That claim does not appear to have been
pursued, but would fail as statements made in these court proceedings are privileged
and as the statements by the plaintiff regarding the defendants’ title to land were hardly
made with malice or with reckless disregard of their falsity.
The entry is:
Judgment for the defendants on Counts I - VI of the complaint. Judgment
for the plaintiff against the defendants Elmer Lewis and Priscilla Gavel for
$4,000.00, interest and costs on Count VII of the complaint. Judgment for
the plaintiff on the counterclaim. The defendants shall be responsible for
recording an attested copy of this judgment and paying the appropriate
recording fees.
Dated: November 13, 2002
Paul A. Fritzsche”
Justice, Superior Court
The applicable appeal period has expired without action or final judgment has
been entered after remand following appeal.
Date
~ PLAINTIFFS:
Patrick S. Bedard, Esq.
P.O. Box 366
Eliot ME 03903
Clerk, Superior Court
DEFENDANTS £
Robert M.A. Nadeau, Esq.
NADEAU & MCGARRY P.A.
Four Oaks Professional Park
1332 Post Rd, Suite 4
Wells ME 04090