# Blue Star Corp. v. CKF Properties > Superior Court of Maine · October 31, 2007 URL: https://www.frixlaw.com/law-library/cases/10808796 ## Case - **Court:** Superior Court of Maine - **Decided:** October 31, 2007 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Thomas E. Delahanty II - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808796 ## Opinion text STATE OF MAINE SUPERIOR COURT Cumberland, SS Civil Action Docket No. CV-07-44~ . ~,~/ __ i(;P --ClJi'II--IOPlbrg .~ I,· ::- \, BLUE STAR CORPORATION, I 't" I v Plaintiff v. ORDER ON MOTION TO DISMISS CKF PROPERTIES, LLC and TIMOTHY FLANNERY DONAL"', '"' L. \". tAW LIB FEB 06 2L I. BEFORE THE COURT This matter comes before the court on defendant Timothy Flannery's (Flannery) motion to dismiss pursuant to M.R.Civ.P. 12(b)(6). I. PROCEDURAL HISTORY AND BACKGROUND This dispute arises from a sale of property in the City of Westbrook. According to the plaintiff Blue Star Corporation's (Blue Star) complaint, it entered-into a contract to p:urchase real estate from CKF Properties, LLC (CKF) on April 17, 2006. As the sole member of CKF, Flannery acted on behalf of the corporation in negotiating and signing the agreement. The agreement required CKF to ensure that none of its tenants would remain on the property beyond a certain date after closing. Well after the deadline for the removal of tenants, Blue Star discovered that the tenants had not been notified that they were expected to vacate the property, and that at least one tenant had entered into an agreement with Blue Star to stay for an indefinite time period. Blue Star asserts that it lost redevelopment financing as a result of legal disputes with the tenants and was ultimately forced to sell the property without realizing the profit thatit had expected. Blue Star has filed a complaint alleging breach of contract, negligence, and fraud against both Flannery and CKF. CKF answered and Flannery filed the present motion to dismiss. II. DISCUSSION A. Standard of Review. A motion to dismiss "tests the legal sufficiency of the complaint." Livonia v. Town of Rome, 1998 ME 39, -oJ~ ~ e::;. ~ Thomas E. Delahanty II Justice, Superior Court 5 ~ COURTS .nd County ox 287 16 04112-0287 THOMAS HALLETT ESQ ,~ PO BOX 7508 PORTLAND ME 04112 : COURTS nd County ox 287 16 04112-0287 BRENDAN RIELLY ESQ ~~ ~ JENSEN BAIRD GARDNER & HE~Y PO BOX 4510 PORTLAND ME 04112 ... of t- STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION . TC~~N? CV-01~8 " _1DrO ! ~ \! r-, '. )/.' JI" BLUE STAR CORPORATION, Plaintiff v. DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT CKF PROPERTIES, LLC and TIMOTHY FLANNERY, DONALDL.GARBRECHT LAWLl8RARY Defendants MAY G ,,,"'1 , (5. 2008 I. BEFORE THE COURT ¥'>, ........r-.~ This matter comes before the court on the plaintiff's motion for partial summary judgment as to the issue of breach on Counts I and II (breach of contract and negligence).1 No action is currently requested on Count III, the claim for fraud. II. PROCEDURAL HISTORY AND BACKGROUND The following facts are not in dispute. The plaintiff, Blue Star Corporation (Blue Star), entered into a contract to purchase real estate in Westbrook from CKF Properties, LLC (CKF) on April 17, 2006. The agreement required CKF to ensure that none of its tenants would remain on the property beyond a certain date after closing. The parties2 closed on the property on August 18,2006 and reaffirmed in writing CKF's obligation to leave the property free of tenants within forty-five days, or by October 3. In spite of this 1The defendants have also filed a motion for summary judgment in which they argue that Blue Star is unable to show damages. Blue Star has asked for an extension of time to oppose the motion so that it may take the depositions of two individuals. Further discussion of this issue is presented in herein. 2 The defendants insist that only CKF was a party to the transaction, not Flannery personally. This issue was the subject of Flannery's earlier motion to dismiss. See Blue Star Corp. v. CKF Properties, LLC, 2007 Me. Super. LEXIS 226 (Oct. 31, 2007). Although Flannery was not a party to the contract, he could potentially be personally liable if the court to pierced the corporate veil. ld. However, such a remedy is only available if Blue Star is able to show that Flannery fraudulently entered into the contract on CKF's behalf. ld. Blue Star is not asking for summary judgment on its fraud claim, so it is not addressed at this time. -1­ obligation, two tenants remained on the property after the deadline for their removal. In fact, on August 24, CKF entered into an agreement with one of the tenants, Postal Express, which would allow the tenant to stay until at least October 31, 2006. The other tenant, Corporate Purchasing Resource, Inc. (CPR), was a tenant at will. Approximately two weeks after the deadline for the removal of tenants, Blue Star changed the locks at the property. The next day, after some discussions between representatives of the various companies involved, the tenants were permitted back onto the property. Postal Express left the property on October 31, 2006, and CPR left during the middle of November. Blue Star asserts that it lost redevelopment financing as a result of the tenants and was ultimately forced to sell the property without realizing the profit that it had expected. On August 6, 2007, Blue Star filed a complaint alleging breach of contract, negligence, and fraud against both Flannery and CKF. CKF answered on August 27, and Flannery filed a motion to dismiss on August 29, which was denied by this court on October 31. Blue Star filed the present motion for partial summary judgment on January 24, 2008, and CKF filed its opposition thereto on March 19, after this court granted an extension of time to respond. III. DISCUSSION A. Standard of Review Summary judgment is proper where there exist no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, ~ 4, 770 A.2d 653,655. A genuine issue is raised "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, Justice, Superior Court - 11 ­ STATE OF MAINE CUMBERLAND COUNTY SUPERIOR COURT 142 FEDERAL STREET PORTLAND, MAINE 04101 To: ~/ BRENDAN RIELLY ESQ JENSEN BAIRD GARDNER & HENRY PO BOX 4510 PORTLAND ME 04112 ,,!;;.. -: r~~q,y,:~ STATE OF MAINE ;"-j~."k~.,.~. ~ { CUMBERLAND COUNTY SUPERIOR COURT ~!' ~ERAL STREET I ."J PORTLAND, MAINE 04101 == To: : : ==== == p , THOMAS HALLETT ESQ DAVID WEYRENS ESQ PO BOX 7508 PORTLAND ME 04112 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808796. Public record. Not legal advice.