Roux v. Gammon

STATE OF MAINE SUPERIOR COURT

ANDROSCOGGIN, ss. Docket No. CV-201Q-053

I

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BRIAN ROUX, REeD AUBSC 01/06/11

Plaintiff,

v.

FRANKLIN D. GAMMON ORDER

and

AARON MASON

and

JON MASON & SON, INC.,

Defendants

The following came before the court and hearing was held on January 4,2011:

1. Defendant Franklin D. Gammon's motion for summary judgment pursuant to

M.R. Civ. P. 56.

2. Plaintiff Brian Roux's motion to dismiss the counterclaim of Defendant /

Counterclaim Plaintiff Jon Mason & Son, Inc. for failing to comply with M.R.

Civ. P. 13(a)(1), insufficient service of process pursuant to M.R. Civ. P.

12(b)(4), and failure to state a claim upon which relief can be granted

pursuant to M.R. Civ. P. 12(b)(6).

3. Defendants Aaron Mason & Jon Mason & Son, Inc.'s motion to amend its

pleadings to permit its counterclaim.

4. Defendant Franklin D. Gammon's motion for consolidation pursuant to M.R.

Gv. P. 42.

5.

BACKGROUND

On or about October 3, 1991, Defendant Franklin D. Gammon ("Gammon")

acquired approximately 170 acres of land in Auburn, Maine from the Masonite

Corporation by Quitclaim Deed with Covenant recorded in the Androscoggin Registry

of Deeds. (Def.'s S.M.F. en: 1.) As of the date of conveyance, the 170-acre parcel of land

was taxed as forest land by the City of Auburn pursuant to the Maine Tree Growth Tax

1

Law, 36 M.R.S. § 571, et seq.1 (Def.'s S.M.F. <]I 2.) The Tree Growth Tax Law defines

"forest land" as "land used primarily for growth of trees to be harvested for commercial

use, but does not include ... areas ... unsuitable for growing a forest product or for

harvesting for commercial use even though these areas may exist within forest lands."

36 M.R.S. § 573(3) (2010).2

On January 20, 2000, Gammon conveyed a portion of the 170 acre property,

approximately 6.3 acres, to Brian Roux ("Roux") by deed recorded in the Androscoggin

County Registry of Deeds (the "Parcel"). (Def.'s S.M.F. <]I3.) The deed conveying the

Parcel contained the following provision:

Excepting and reserving to this grantor, for a period of ten years from the

date of this deed, the timber located on the within conveyed premises and

the right to harvest and remove the same.

(Def.'s S.M.F. <]I 4; Def.'s Ex. B.) The deed also reserved to Gammon a "right of first

refusal to purchase [the parcel] at the same price and upon the same terms as is offered

to [Roux] to any bona fide purchaser." (Def.'s S.M.F. <J[ 5, as qualified by Pl.'s Opp. S.M.F.

<]I 5.) By instrument entitled "Easement Deed" dated January 20, 2000 and recorded in

the Androscoggin County Registry of Deeds, Roux conveyed to Gammon an easement

for a logging yard on a separate parcel of property owned by Roux upon which

Gammon had reserved the right to cut and remove timber and a right of first refusal to

purchase that separate parcel. (Def.'s S.M.F. <]I 6, as qualified by Pl.'s Opp. S.M.F. <]I 6.)

Several months before the parties executed the deeds, Roux approached

Gammon on two occasions, asking him to sell the Parcel. (Def.'s S.M.F. <J[ 7.) Roux

needed the Parcel to meet the zoning requirements for a bam on the separate parcel of

land. (Def.'s S.M.F. <J[ 8, as qualified by Pl.'s Opp. S.M.F. <]I 8.) The parties dispute

1 Gammon cites to "36 M.R.5. § 551 et als." which governs real property taxes generally. (Def.'s

S.M.F. '1[ 2.) The Maine Tree Growth Tax Law begins at 36 M.R.S. § 57l.

2 The definition of forest land also states:

Land which would otherwise be included within this definition shall not be

excluded because of:

C. Deed restrictions, restrictive covenants or organizational charters that prevent

commercial harvesting of trees or require a primary use of land other than

commercial harvesting and that were effective prior to January 1,1982 ...

36 M.R.S. § 573(3).

2

whether Roux told Gammon that he did not object to the removal of all of the timber

upon the Parcel because Roux wanted to use the Parcel for additional pasturage for his

animals. (Def.'s S.M.F. <[ 10; Pl.'s Opp. S.M.F. <[ 10.) Gammon asserts that before the

parties executed the deed conveying the Parcel, he informed Roux that, as a condition,

he would reserve the right to cut and remove all timber growing on the Parcel. (Def.'s

S.M.F. <[ 9(1); Pl.'s Opp. S.M.F. <[ 9(1).) Roux asserts that he had no knowledge that, as a

condition of the conveyance, Gammon would reserve the right to cut all of the timber

on the Parcel. (PI. S. Add'l M.F. <[ 17.) Roux claims that the first time he became aware

of Gammon's intent to reserve the right to cut timber on the Parcel was at the January

20, 2000 closing. (Pl.'s S. Add'l M.F. <[<[ 20-21.) At no time prior to or at closing did

Raux agree that Gammon could cut and remove all of the timber on the Parcel. (Pl.'s S.

Add'l M.P. <[ 23.)

Prior to January 20, 2000, Raux became familiar with Gammon's timber

operations on nearby sections of a large tract of forest land. (Pl.'s S. Add'l M.F. «IT 18.)

The timber harvesting operations that Roux observed was carried out in a very well

managed manner, with selective cutting of trees, little visible damage to uncut trees,

and well laid out skidder trails in a wood yard. (Pl.'s S. Add'l M.F. «IT 19.) Gammon's

forest land that had been harvested, continued to have a large supply of growing trees

with good spacing between trees for future growth. (Id.) Roux claims that based on his

observation of the manner in which Gammon had been conducting timber harvesting

operations on the separate parcel, he had no objection to similar timber harvesting

practices at the closing. (Pl.'s S. Add'l M.P. «IT 22, as qualified by Def.'s Rep. S.M.F. «IT 22l

On May 27, 2009, Gammon retained Defendant Jon Mason & Sons, Inc. ("Jon

Mason") pursuant to a written Timber Harvesting Agreement to cut and remove all of

the timber on the Parcel. (Def.'s S.M.F. «IT 11.) In the Spring of 2009, before Jon Mason

began cutting and removing timber, Gammon and Defendant Aaron Mason ("Mason")

met with Roux to advise him that they were beginning to harvest the timber on the

Parcel. (Def.'s S.M.F. «IT 12.) At the time of the meeting, Raux asked Gammon and

Mason not to cut a few large pine trees near the road. (Def.'s S.M.F. <[ 13; Def.'s Rep.

S.M.F. «IT 24.) Gammon refused. (Def.'s S.M.F. «IT 13.) Raux asserts that he also told

3Also as a condition to the conveyance, Gammon required that Roux grant him an easement

over an adjacent parcel for the purposes of constructing a logging yard. (Def.'s 8.M.F. 9[ 9(2), as

qualified by Pl.'s Opp. 8.M.F. 9[ 9(2).)

3

Gammon that he objected to removing all of the timber from the Parcel. (Pl.'s Opp.l

l

S.M.F. <JI 13; Pl.'s S. Add'l M.F. <JI 24.) Gammon told Roux that he would cut all the trees

on the Parcel. (Def.'s S.M.F. <JI 13.)

Between approximately August I, 2009 and October 1, 2009, Jon Mason cut and

removed all of the standing timber on the Parcel. (DeL's S.M.F. 114.) Roux repeatedly

told Mason to cut the trees selectively and leave the younger, more immature trees to

grow. (Pl.'s S. Add'l M.F. 1 25.) During the harvesting operation, Mason told Roux that

Gammon instructed him to cut every tree on the Parcel and that is what Mason

intended to do and did. (DeL's S.M.F. 115; Pl.'s S. Add'l M.F. 126.)

Based on a licensed forester's field observations, the Parcel does not contain a

stand of trees that could be classified as forest land at this time. (Pl.'s S. Add'l M.F. 1

27.) It will be approximately 50 years before any trees on the Parcel will be mature

enough to produce any saw timber. (Pl.'s S. Add'l M.F.128.)

On March 16, 2010, Roux entered a guilty plea to criminal mischief for an

incident that occurred on September 25, 2009, in which he allegedly drove pieces of

metal into a tree, knowing that Jon Mason would cut the tree. (Def.'s S.M.F. 1 16.)

Roux denies the charges to which he pled guilty. (Pl.'s Opp. S.M.F. 116.)

Docket # CV-10-053

In his amended complaint, filed on or around May 12, 2010, Roux alleges that the

Defendants intentionally or knowingly cut down and carried away forest product

without permission, in violation of 14 M.R.S. § 7552(4)(8). Defendant Gammon filed his

answer on May 26,2010 and a motion for summary judgment on October 26,2010.

After unsuccessfully moving to dismiss the amended complaint, Defendants Jon

Mason and Mason filed their answer on June 28, 2010. On September 10, 2010, Jon

Mason filed a counterclaim against Roux alleging tortious interference with a

contractual relationship and claiming punitive damages as a result of Roux's alleged

spiking of the timber on the Parcel. Roux moves to dismiss Jon Mason's counterclaim

alleging that Jon Mason and Mason failed to comply with M.R. Civ. P. 13(a)(I). Roux

also moves to dismiss the counterclaim for insufficient service of process and for failure

4

to state a claim upon which relief can be granted. Jon Mason and Mason move to

amend its pleadings to permit its counterclaim to proceed. 4

Docket # CV-10-135

On August 13, 2010, Gammon filed a complaint against Roux and Star L.

O'Donnell as co-owners of a parcel of land adjacent to Gammon's property. Gammon

alleges that Roux removed timber from his property and changed the boundary line

between their properties. Gammon brings causes of action for: (1) a declaratory

judgment on the location of the boundary; (2) intentional statutory trespass in violation

of 14 M.R.S. § 7552(4)(B); (3) negligent statutory trespass in violation of 14 M.R.S. §

7552(4)(A); (4) common law trespass; and (5) intentional statutory trespass in violation

of 14 M.R.S. § 7551-B. On October 22, 2010, Gammon filed a motion to consolidate

docket number CV-1O-053 and docket number CV-1O-135 on the grounds that both

actions involve allegations of trespass and illegal cutting of trees on abutting properties

located in Auburn.

DISCUSSION

1. Motion for Summary Iudgment

a. Standard of Review

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. M.R. Civ. P.

56(c). In considering a motion for summary judgment, the court must consider the

facts in the light most favorable to the non-moving party, and the court is required to

consider only the portions of the record referred to and the material facts set forth in the

parties' Rule 56(h) statements. See e.g., Johnson v. McNeil, 2002 ME 99, <JI 8, 800 A.2d 702,

704. A contested fact is "material" if it could potentially affect the outcome of the suit

under the governing law. Inkel v. Livingston, 2005 ME 42, <JI 4,869 A.2d 745, 747. A fact

is "genuine" if there is sufficient evidence supporting the claimed fact to require a fact­

finder to choose between competing versions of facts at trial. Id. For the purposes of

4 Defendant Jon Mason & Son, Inc. filed the counterclaim, but both Defendant Jon Mason & Son,

Inc. and Defendant Aaron Mason filed the opposition to the Plaintiff's motion to dismiss and

the motion to amend.

5

summary judgment, factual disputes and ambiguities must be resolved against the

movant. Nevertheless, when the facts offered by a party in opposition to summary

judgment would not, if offered at trial, be sufficient to withstand a motion for judgment

as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997

ME 99, <JI 8, 694 A.2d 924,926.

b. Deed Interpretation

In this case, Roux's sole claim against Gammon is premised upon 14 M.R.S. §

7552, which prohibits a person from intentionally or knowingly removing forest

product from another's land without permission. s Accordingly, Roux has the burden of

proving that Gammon did not have permission to cut and remove the timber from the

Parcel.

Whether Gammon had permission turns on the language of the deed conveying

the Parcel to Roux. Construction of a deed is a question of law. N. Sebago Shores, LLC v.

Mazzaglia, 2007 ME 81, <JI 13, 926 A.2d 728, 733. This court must, "first attempt to

construe the language ... by looking only within the 'four comers' of the instrument."

Id. (quoting Pettee v. Young, 2001 ME 156, <JI 8, 783 A.2d 637, 640). "In evaluating the

language of a deed, courts should give effect to the common or everyday meanings of

the words in the instrument." Id. "If the language of the deed is unambiguous, then the

court must construe the deed without considering extrinsic evidence of the intent of the

parties. If the deed is ambiguous the court may admit extrinsic evidence of the parties'

intent." Pettee, 2001 ME 156, <JI 8, 783 A.2d at 640 (citation omitted). Thus, whether

summary judgment is appropriate here depends on whether the language of the deed is

ambiguous. Ambiguity exists when the language "is reasonably susceptible to more

than one interpretation." Madore v. Kennebec Heights Country Club, 2007 ME 92, <j[ 7, 926

A.2d 1180.

5 14 M.R.S. §7552 states, in relevant part, that: "Without permission of the owner a person may

not: A. Cut down, destroy, damage or carry away any forest product ... from land not that

person's own ... " § 7552(2)(A). "A person who intentionally or knowingly violates subsection

2 is liable to the owner for 3 times the owner's damages ... or $ SOD, whichever is greater."

§7552(4)(B).

6

Gammon asserts that the deed unambiguously reserves in him the right to cut

and remove all timber from the Parcel. He points to the following provision in the

deed:

Excepting and reserving to this grantor, for a period of ten years from the

date of this deed, the timber located on the within conveyed premises and

the right to harvest and remove the same. (Def.'s S.M.F. <j[ 4; Def.'s Ex. Bl

According to the plain language of the deed, there is no limitation on Gammon's right

to cut and remove all of the timber located within the parcel. Where there is no

limitation in the grant of timber as to the "size of tree, age, or adaptability for specified

uses ... and the grant is of standing timber, to be taken off in the future, the common

understanding would be that the grantee might cut timber from the lot ... until the

right to cut shall have expired by limitation, either express or implied." Donworth v.

Sawyer, 94 Me. 242, 256-57, 47 A. 521, 525 (1900); see also id. at 254, 524 ("It is not, as

before said( a strained construction to hold that ordinarily a grant of growing timber to

be construed most favorably to the grantee, conveyed the growth named with its

increase, until the time for removal shall have elapsed.").7 Because the deed

unambiguously gave Gammon the right to cut and remove the timber located on the

Parcel for ten years, he had permission to remove the trees and cannot be held liable for

trespass under 14 M.R.S. § 7552.

Roux asserts, however, that Gammon impermissibly destroyed the Parcel's

status as forest land under the Maine Tree Growth Tax Law. In general, the Maine Tree

Growth Tax Law was established to give a favorable tax treatment to those individuals

who own forest land, and who keep the land for the purpose of cultivating and

harvesting forest products. 36 M.R.S. § 572. Contrary to Roux' claims, there is no

6 Whether the conveyance is properly classified as an exception or a reservation is of no

consequences for the purpose of this motion. See Hall v. Hall, 106 Me. 389, 391, 76 A, 705, 706

(1910).

7 The Law Court has held that "a timber deed, whether in the form of a deed of the timber

outright or in the form of a conveyance of the right to cut and remove timber, does not operate

to convey the right to cut future growth; in the absence of words clearly manifesting an intent to

include more, the deed conveys only the growth in existence at the time of the conveyance." Cushing v.

State, 434 A,2d 486, 497 (Me. 1981) (emphasis added). There appears is no dispute that

Gammon cut all of the standing timber on the Parcel, including the younger trees. It is not clear

whether the younger trees that Gammon removed were in existence at the time of the

conveyance. However, Roux fails to raise such an allegation one way or the other.

7

requirement that a parcel of land maintain its status as forest land under the Tree

Growth Tax Law. The Tree Growth Tax Law exempts any parcel consisting less than

ten acres. Id. § 574-B. In this case, the Parcel is 6.3 acres and therefore the Tree Growth

Tax Law does not apply.

Additionally, the Tree Growth Tax Law only imposes two consequences when an

owner no longer maintains land as forest land: reclassification and withdrawal. [d. §§

580,581. Reclassification allows an assessor to reclassify land taxed as forest land. Id. §

580. Withdrawal applies to the owner of land who wishes to withdraw his property

from the Tree Growth Tax Law. Id. § 581. Once a property owner withdraws his

property from the Tree Growth Tax Law, he has to pay some of the taxes he has not

paid previously. Id. The sale of a property to a new owner has no effect on taxation

under the Tree Growth Tax Law, and only the current owner of the property is liable for

any penalties of withdrawal imposed. Id. § 581-A. 8 Therefore, whether the Parcel was

previously classified as forest land under the Tree Growth Tax Law is irrelevant to

Roux' trespass claim.

Roux argues that the Tree Growth Tax Law creates and "implied condition" in

the contract that is enforceable in accordance with Top of the Track Assocs. v. Lewiston

Raceways, Inc., 654 A.2d 1293 (Me. 1995). In that case, the plaintiff was contractually

obligated to make certain improvements to a racetrack and to operate a concession

stand during racing days. 654 A.2d at 1294. During the term of the contract, the

defendant ceased operating the racetrack. Id. The defendant relied on an integration

clause in the contract as a defense against the plaintiff's claim for breach of an implied

8 Section 581-A states:

Sale of a portion of a parcel of forest land subject to taxation under this

SUbchapter does not affect the taxation under this subchapter of the resulting

parcels, unless any is less than 10 forested acres in area. Each resulting parcel must

be taxed to the owners under this subchapter until the parcel is withdrawn from

taxation under this subchapter, in which case the penalties provided for in

sections 579 and 581 apply only to the owner of that parcel. If a parcel resulting

from that sale is less than 10 forested acres in area, that parcel must be

considered withdrawn from taxation under this subchapter as a result of the sale

and the penalty assessed against the transferor of the resulting parcel of less than

10 forested acres.

36 M.R.5. § 581-A (emphaSis added). As mentioned, the Tree Growth Tax Law does not apply

to parcels of less than ten acres. 36 M.R.S. § 574-B.

8

term in the agreement - the defendant's obligation to operate the racetrack. [d. at 1295.

The Law Court stated that:

The implication of a contract term is only justified when the implied term

is not inconsistent with some express term of the contract and when there

arises from the language of the contract itself, and circumstances in which

it was entered into, an inference that it is absolutely necessary to introduce

the term to effectuate the intention of the parties. In establishing the

intent of the parties at the time the contract was executed the undertaking

of each promisor in a contract must include any promises which a

reasonable person in the position of the promisee would be justified in

understanding were included.

[d. (citations and internal quotation marks omitted). Here, the implied condition at

issue - that Gammon maintain the Parcel as forest land - is inconsistent with the

express terms of the deed that allow him to harvest and remove the timber located

within the Parcel. Additionally, the language of the deed itself does not give rise to an

inference that it is absolutely necessary to introduce any implied condition in order to

effectuate the intention of the parties.

Roux relies on the circumstances existing when the parties entered into the

contract. At that time, the Parcel was designated forest land under the Tree Growth Tax

Law. However, whether the Parcel remained forest land was not necessary to

Gammon's right to harvest and remove the timber from the Parcel, as was the existence

of racing necessary to the operation of concessions at a racetrack.9 Moreover, given the

broad grant in the deed, a person in Roux' position could not reasonably expect that a

promise to maintain the Parcel as forest land would be included in the contract. The

summary judgment record does not establish that the Top of the Track exception applies

in this case.

Accordingly, Gammon's motion for summary judgment on Roux' claims is

GRANTED. The deed unambiguously gives Gammon permission to cut and remove

the timber from the Parcel. Motion to Dismiss Counterclaim / Motion to Amend

Pleadings

9 Further, the Law Court later limited Top of the Track to its unique facts "involving one business

whose success was wholly dependent upon the operation of the other and where the dependent

business had significantly changed position and been encouraged to spend funds in responsible

anticipation of continued operation of the race track." Haines v. Great N. Paper, Inc., 2002 ME 157,

<J[ 14, 808 A.2d 1246, 1250. Here, there is no suggestion that this case involves two wholly

dependent businesses.

9

Though Jon Mason and Mason did not move to amend their answer to add a

counterclaim until a month after they filed the counterclaim, this court's scheduling

order, issued on June 23, 2010, allows amendment of pleadings within four months.

Therefore, the counterclaim is not untimely. Additionally, Roux has not demonstrated

that he will suffer prejudice if the Mason defendants' counterclaim proceeds. Therefore,

the court GRANTS the motion to amend the pleadings and DENIES Roux' motion to

dismiss Jon Mason's counterclaim.

2. Motion for Consolidation

Because Gammon's motion for summary judgment is granted, there are no

further issues between Gammon and Roux in Roux v. Gammon, CV-10-53. Therefore, the

Defendant's motion for consolidation is DISMISSED as moot.

CONCLUSION

Based on the forgoing, the entry shall be:

1. Defendant Franklin D. Gammon's motion for summary judgment IS

GRANTED.

2. Plaintiff Brian Roux's motion to dismiss the counterclaim of

Defendant/Counterclaim Plaintiff Jon Mason & Son, Inc. is DENIED.

3. Defendants Aaron Mason and Jon Mason & Son, Inc.'s motion to amend

the pleadings is GRANTED.

4. Defendant Franklin D. Gammon's motion for consolidation is DISMISSED

/,

as moot.

Dated: January 6,2011

10

BRIAN ROUX - PLAINTIFF SUPERIOR COURT

ANDROSCOGGIN, ss.

Attorney for: BRIAN ROUX Docket No AUBSC-CV-2010-00053

STEPHEN BEALE - RETAINED 03/22/2010

SKELTON TAINTOR & ABBOTT

95 MAIN STREET DOCKET RECORD

PO BOX 3200

AUBURN ME 04212-3200

vs

FRANKLIN D GAMMON - DEFENDANT

Attorney for: FRANKLIN D GAMMON

PAUL DOUGLASS - RETAINED 05/06/2010

PAUL S DOUGLASS PA

471 MAIN STREET

PO BOX 1346

LEWISTON ME 04243-1346

JON MASON & SON INC - DEFENDANT

Attorney for: JON MASON & SON INC

AARON K BALTES - RETAINED 04/16/2010

NORMAN HANSON & DETROY

415 CONGRESS STREET

PO BOX 4600

PORTLAND ME 04112-4600

AARON MASON - DEFENDANT

Attorney for: AARON MASON

AARON K BALTES - RETAINED 04/16/2010

NORMAN HANSON & DETROY

415 CONGRESS STREET

PO BOX 4600

PORTLAND ME 04112-4600

Filing Document: COMPLAINT Minor Case Type: OTHER CIVIL

Filing Date: 03/22/2010

Docket Events:

03/22/2010 FILING DOCUMENT - COMPLAINT FILED ON 03/22/2010

03/22/2010 Party(s): BRIAN ROUX

ATTORNEY - RETAINED ENTERED ON 03/22/2010

Plaintiff's Attorney: STEPHEN BEALE

03/22/2010 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 03/22/2010

04/12/2010 Party(s): FRANKLIN D GAMMON

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/06/2010

THROUGH JOHN MASON

04/14/2010 Party(s) JON MASON & SON INC

Page 1 of 5 Printed on: 01/07/2011

AUBSC-CV-2010-00053

DOCKET RECORD

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/08/2010

JON MASON & SONS THROUGH JOHN GEISMAR, ESQ.

04/14/2010 Party(s): JON MASON & SON INC

SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/14/2010

04/14/2010 Party(s): AARON MASON

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/10/2010

AARON MASON

04/14/2010 Party(s): AARON MASON

SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/14/2010

04/16/2010 Party(s): JON MASON & SON INC,AARON MASON

MOTION - MOTION TO DISMISS FILED ON 04/16/2010

WITH MEMORANDUM OF LAW REC'D ON 5/7/10

OPPOSITION REC'D

05/05/2010 Party(s): FRANKLIN D GAMMON

SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/09/2010

05/07/2010 Party(s): FRANKLIN D GAMMON

LETTER - FROM PARTY FILED ON 05/06/2010

LETTER FROM PAUL DOUGLASS, ESQ. STATING THAT HE WILL NOT BE FILING AN ANSWER TO THE

ORIGINAL COMPLAINT BUT HE WILL TO THE AMENDED PER AGREEMENT WITH PLT'S COUNSEL.

05/13/2010 Party (s): BRIAN ROUX

MOTION - MOTION TO AMEND PLEADING FILED ON 05/12/2010

WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING

OS/20/2010 Party(s): JON MASON & SON INC,AARON MASON

MOTION - MOTION TO DISMISS FILED ON 05/19/2010

MOTION TO DISMISS AMENDED COMPLAINT REC'D ON 6/9/10 PLT'S OPPOSITION

OS/21/2010 Party(s): BRIAN ROUX

MOTION - MOTION TO AMEND PLEADING GRANTED ON OS/21/2010

THOMAS E DELAHANTY II, JUSTICE

COPIES TO PARTIES/COUNSEL

OS/21/2010 Party(s): BRIAN ROUX

SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON OS/21/2010

OS/21/2010 party(s): JON MASON & SON INC,AARON MASON

MOTION - MOTION TO DISMISS MOOT ON OS/21/2010

THOMAS E DELAHANTY II, JUSTICE

OS/21/2010 Party(s): JON MASON & SON INC

ATTORNEY - RETAINED ENTERED ON 04/16/2010

Defendant's Attorney: AARON K BALTES

Party(s): AARON MASON

ATTORNEY - RETAINED ENTERED ON 04/16/2010

Defendant's Attorney: AARON K BALTES

Page 2 of 5 Printed on: 01/07/2011

AUBSC-CV-2010-00053

DOCKET RECORD

OS/21/2010 Party(s): FRANKLIN D GAMMON

ATTORNEY - RETAINED ENTERED ON 05/06/2010

Defendant's Attorney: PAUL DOUGLASS

OS/27/2010 Party(s): FRANKLIN D GAMMON

RESPONSIVE PLEADING - ANSWER TO AMENDED PLEADING FILED ON OS/26/2010

WITH AFFIRMATIVE DEFENSES

06/21/2010 Party(s): JON MASON & SON INC,AARON MASON

MOTION - MOTION TO DISMISS DENIED ON 06/21/2010

THOMAS E DELAHANTY II, JUSTICE

IN REVIEWING A MOTION TO DISMISS A COMPLAINT, THE COURT CONSIDERS PLAINTIFF'S FACTUAL

ALLEGATIONS AS TRUE AND PROVABLE AT TRIAL. THE MOTION TO DISMISS TESTS THE LEGAL THEORY OF

THE COMPLAINT. THE COURT APPLIES THIS TEST- THE MOTION TO DISMISS THE AMENDED COMPLAIANT

IS DENIED.

06/23/2010 ORDER - SCHEDULING ORDER ENTERED ON 06/23/2010

THOMAS E DELAHANTY II, JUSTICE

ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO

PARTIES/COUNSEL

06/23/2010 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 02/23/2011

06/23/2010 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 06/23/2010

THOMAS E DELAHANTY II, JUSTICE

06/2B/2010 Party(s): JON MASON & SON INC,AARON MASON

RESPONSIVE PLEADING - ANSWER TO AMENDED PLEADING FILED ON 06/28/2010

JON MASON & SONS AND AARON MASON

08/23/2010 party(s): FRANKLIN D GAMMON

LETTER - FROM PARTY FILED ON 08/20/2010

PARTIES AGREE TO EXTENSION OF ADR TO DECEMBER 23, 2010

08/26/2010 Party(s): BRIAN ROUX

LETTER - FROM PARTY FILED ON 08/26/2010

FROM STEPHEN BEALE, ESQ. REGARDING ADR

09/13/2010 Party(s): JON MASON & SON INC

RESPONSIVE PLEADING - COUNTERCLAIM FILED ON 09/10/2010

OF JON MASON & SONS, INC.

09/30/2010 party(s): BRIAN ROUX

MOTION - MOTION TO DISMISS FILED ON 09/29/2010

MOTION TO DISMISS COUNTERCLAIM REC'D ON 10/15/10 OPPOSITION REC'D ON 10/22/10 REPLY

10/25/2010 Party(s): FRANKLIN D GAMMON

MOTION - MOTION FOR CONSOLIDATION FILED ON 10/22/2010

WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING REC'D 10-29-10: OPPOSITION OF PLT

FILED.

10/26/2010 Party(s): FRANKLIN D GAMMON

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DOCKET RECORD

MOTION - MOTION SUMMARY JUDGMENT FILED ON 10/26/2010

WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING DEF FRANKLIN GAMMON REC'D ON

11/16/10 PLT'S OPPOSITION REC'D ON 11/24/10 DEF'S REPLY

11/10/2010 Party(s): JON MASON & SON INC,AARON MASON

LETTER - FROM PARTY FILED ON 11/10/2010

LETTER FROM AARON BALTES, ESQ. STATING THAT THE MASON DEF'S HAVE NO OBJECTION TO THE

MOTION FOR SUMMARY JUDGMENT

12/02/2010 Party(s): BRIAN ROUX

OTHER FILING - OTHER DOCUMENT FILED ON 12/01/2010

LETTER FROM AARON BALTES

12/06/2010 Party(s): BRIAN ROUX

OTHER FILING - OPPOSING MEMORANDUM FILED ON 12/06/2010

PLT'S OBJECTION TO DEF'S REPLY TO PLT'S STATEMENT OF ADDITIONAL MATERIAL FACT NO 22

12/10/2010 Party(s): BRIAN ROUX

MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 12/10/2010

ADR DEADLINES

12/15/2010 HEARING - MOTION SUMMARY JUDGMENT SCHEDULED FOR 01/04/2011 @ 9:00

12/16/2010 Party(s): BRIAN ROUX

MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 12/16/2010

MARYGAY KENNEDY, JUDGE

ADR IS EXTENDED TO THE DATE WHICH IS 60 DAYS AFTER THE DATE ON WHICH THIS COURT ISSUES AN

ORDER ON DEFENDANT'S GAMMON'S PENDING MOTION FOR SUMMARY JUDGMENT. COPIES TO COUNSEL ON

12-16-10

12/28/2010 Party(s): JON MASON & SON INC,AARON MASON

MOTION - MOTION TO AMEND PLEADING FILED ON 10/15/2010

WITH MEMORANDUM OF LAW, DRAFT ORDER, NOTICE OF HEARING

01/05/2011 HEARING - MOTION SUMMARY JUDGMENT HELD ON 01/04/2010

MARYGAY KENNEDY, JUDGE

Defendant's Attorney: PAUL DOUGLASS

Plaintiff's Attorney: STEPHEN BEALE

L. CLINTON BOOTHBY, ESQ. AND CHARLES HEDRICK, ESQ. FOR THE DEFENDANTS TAPE 658 INDEX

7124-END AND TAPE 660 INDEX 54-1031 MATTER TAKEN UNDER ADVISEMENT

01/07/2011 Party(s): JON MASON & SON INC,AARON MASON

MOTION - MOTION TO AMEND PLEADING GRANTED ON 01/06/2011

MARYGAY KENNEDY, JUDGE

COPIES TO PARTIES/COUNSEL

01/07/2011 Party(s): FRANKLIN D GAMMON

MOTION - MOTION SUMMARY JUDGMENT GRANTED ON 01/06/2011

MARYGAY KENNEDY, JUDGE

COPIES TO PARTIES/COUNSEL

01/07/2011 Party(s): FRANKLIN D GAMMON

MOTION - MOTION FOR CONSOLIDATION MOOT ON 01/06/2011

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AUBSC-CV-2010-00053

DOCKET RECORD

MARYGAY KENNEDY, JUDGE

01/07/2011 Party(s): BRIAN ROUX

MOTION - MOTION TO DISMISS DENIED ON 01/06/2011

MARYGAY KENNEDY, JUDGE

COPIES TO PARTIES/COUNSEL

01/07/2011 FINDING - JUDGMENT DETERMINATION ENTERED ON 01/06/2011

MARYGAY KENNEDY, JUDGE

ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO

PARTIES/COUNSEL

ORDER - SUMMARY JUDGMENT ENTERED ON 01/06/2011

MARYGAY KENNEDY, JUDGE

ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO

PARTIES/COUNSEL

Judgment entered for FRANKLIN D GAMMON and against BRIAN ROUX.

A TRUE COpy

ATTEST:

Clerk

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