The opinion
~fate of Jallaine
_ y_o_l!._ K"_ _ __ _ __, ss . SUPERIOR COURT
CV- I J., 3 O
Plaintiff
vs. ORDER
~ _s1..u.... ~- /J. L . .._ ..J..,.,.,,,.,.Defendant
r-· T ,..,.,....,,_., . /~
This cause came on for hearing, aad w~ arguecl by eounsel, upon ttre :motion of the--"tlr
__
~ ~
I
~ w- Of .,a.. $ 7s;/J()0 ~
I
~
7~~~~~ ~~~~~~
AZ- ,}q)o.-:r"1f µ-.,,..v A~ ~ ~ ~ ~ · ~ ~
l';f IS OJtDERED 'that: ~~ · .fk. ~ .A4-- ~ ~ fl..::j
AL, ~~ W-,- ~ ~/ p._ ~~liq.lJ ~£,c It~~(:
· ~~~
!k /,,__r ~ .,J,,__ ~~ ~ ~ J ,, ,,;/J ~ crp-
t»J-~ c1.... '#- ~ 'D ~ ..tt.. ~ ~ _,__ ~ ~(IX A ~~
~ ~~ . ,. _ ,~L
~ ~ _:t:L ~ ¥.:IfA. / ~ ~~
..,,t_.e ~ V- ~ 1 $"'fl Ii, -IJ ?.Pl 7 'I "I.. ,3 { ""A-t't> , I 't fs' 9 ) 1 / ~ v ?v..&..t
~ fL-r-.J.,1.,,...t .;/ fO fl/2d' ''1'-~S' (°Nf>. { fZ~) ~ ~ V ',,t'??fr'i ;/ /J ~ H'b
l'l-e. ~~t,, 1 sr,s- C1~2.1)., 71//. ~ ~ ~~-'-..- ~
~ ~ ..J:- y, (lu,/. I ,/~ ..U,- AU" ~ 'flw.:r h ~ ~ ~ .-t
~ P. /.UUM .fT= OL , ~ ~~ ~ d ~ , f"k ~ ~ ~ '1
~ .Y ~ ~1..:a-... ~ ~ w..- - ~ / ~ 's:r+ ~
.,Al!.- U t \ . ~ I .,,u_. ~ ~ ~ a,,- --f' ~ ~ -4,/ ~ ~ __,
/t Mr'j ..u- t ~ f : A;/.., M ~~~ p1, ~ :r ~
);I;,., ~ ,..,. HR ~ 1: ~ 71J,b00 wuJ... s/td-i4,,.., ~- ~ j.f ~
I~ ~ &,J.s. ~ 7
_/)x
Dated :_ _ _ _.A.f
7
~ ----=-
2 _,,_1_ _ , ~
'Lei I "L-
{AJL~~
Justice, Superior Cott
CV-19 rev. 6/82
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-v-10
JI/)_;
PA F -· Yol-.. - .:i._ou
MICHAEL BROWN,
Plaintiff
V. ORDERS ON PENDING MOTIONS
SILVER SPRINGS DELIVERY
SERVICES, INC.,
Defendant
On November 29, 2010 Michael Brown and Silver Springs Delivery Services, Inc.
entered into a written purchase and sales agreement for the sale of a Federal Express
ground delivery route called a swing route. An initial payment of $1,900 was made
followed by a second payment of $3,100. The agreement, had it been completed,
would have resulted in Silver Springs acquiring the route, a van and the assistance of
Mr. Brown through March 1, 2011. Silver Springs would have paid a total of $75,000
plus the remainder of a loan that the plaintiff had outstanding. Lastly the agreement
stated, "This sale is contingent upon approval of this transaction by Federal Ex,
approval shall be final on or before January 1, 2011."
There is no indication that Federal Express ever granted approval or that
approval was sought. It has instead either fully eliminated or is about to eliminate
swing routes in Maine. A "swing route" is a term for the use of a replacement driver
to fill in during vacations of or the illness of the regular driver. The transaction has not
been completed, the remaining payments have not been made and the combined
deposit of $5,000 has not been returned.
The plaintiff has filed a two-count complaint seeking damages for breach of
contract in Count I and alleging a breach of the covenant of good faith and fair dealing
in Count II. The defendant has filed a three-count counterclaim. The first count does
not list any specific cause of action. Count II is based on an implied covenant of good
faith and fair dealing while Count ill is based on a claim of fraud.
The plaintiff has filed a motion for summary judgment which the defendant has
opposed. The defendant has also filed a motion for extension of time in order to
conduct additional discovery before being required to complete its opposition to the
plaintiffs summary judgment motion. The motion for extension of time should be
considered first.
The motion for extension of time is subject to Rule 56(f), M.R.Civ.P., which states
as follows:
When affidavits are unavailable. Should it appear from the affidavits of
a party opposing the motion that the party cannot for reasons stated
present by affidavit facts essential to justify the party's opposition, the
court may refuse the application for judgment or may order a continuance
to permit affidavits to be obtained or depositions to be taken or discovery
to be had or may make such other order as is just.
No affidavit was filed by the defendant in support of its motion for extension of time.
Because no affidavit was filed the motion for extension of time is denied. Also see
Section 56.7, Maine Civil Practice, Third Edition. Therefore, the plaintiff's motion for
summary judgment shall be decided at this time based on the materials that have been
submitted and shall not be delayed to permit further discovery.
In his complaint the plaintiff sought damages in Count II for breach of the
covenant of good faith and fair dealing. The defendant brought a counterclaim under
2
the same theory in its Count II. On each claim judgment will be entered for the other
side as the Law Court has limited the duty of good faith and fair dealing to " ...
circumstances governed by specific provisions of the Uniform Commercial Code,"
Haines v. Great Northern Paper, Inc., 2002 ME 157, <[15, 808 A.2d 1246, 50, which are not
applicable here. Count I of the counterclaim appears to be a continuation of the factual
allegations, does not list a cause of action and seeks the same relief as the remainder of
the counterclaim. Judgment will be entered for the defendant on Count I of the
counterclaim.
The remaining claims are the plaintiff's claim for breach of contract and the
defendant's counterclaim for fraud. The defendant has argued that the plaintiff knew
that Fed Ex was likely to make changes that would make the swing route worthless,
that he kept that information to himself and that he tried to rush the deal before Fed Ex
changed its policies. Mr. Brown claims that he was under no duty to disclose any
information that he had and that the brief handwritten purchase and sale agreement,
which was drafted by the defendant, contained no representations. He also argued
that it was his assumption that Fed Ex would not be changing its policies. It is that
assertion that resolves the pending motion for summary judgment.
I do not find evidence of fraud since there was no fiduciary relationship and no
evidence of any affirmative misstatements. The defendant included eight affirmative
defenses in its answer and counterclaim. The final one was that, "The claims of the
Plaintiff are barred by the doctrine of mutual mistake of fact." The plaintiff essentially
stated that he assumed that the swing routes would continue indefinitely. The
defendant shared that factual assumption. Since the continued existence of the swing
route was crucial, it appears that both parties may have entered into the contract with a
3
mutual mistake of fact. I will not decide the case at this time on that doctrine, as it was
not argued or briefed, but it appears to best fit the case.
The entries are:
Defendant's motion for enlargement of time to extend time to file
supplemental pleadings is denied.
Plaintiff's motion for summary judgment is granted in part, denied in
part.
Judgment for the defendant on Count II of the complaint.
Judgment for the plaintiff on Counts I, II and III of the counterclaim.
The parties shall inform the clerk by November 10, 2011 whether they still
need a discovery conference based on the letter of Mr. Levis of October 21,
2011.
Dated: November 2, 2011
Pq,::m:~
Justice, Superior Court
ATTORNEY FOR PLAINTIFF:
BRUCE HEPLER
LAW OFFICE OF BRUCE W HEPLER
75 PEARL STREET
PORTLAND ME 04101
ATTORNEY FOR DEFENDANT:
S. JAMES LEVIS, JR.
LEVIS & INGRAHAM
338 MAIN ST
SACO ME 040 72
4
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-11-30
PAP - YOR.- n/ 47
;;_01,
MICHAEL BROWN,
Plaintiff
v. CORRECTED ORDER
SILVER SPRINGS DELIVERY
SERVICES, INC.,
Defendant
The last sentence of the first paragraph at the top of page 3 of the orders on
pending motions of November 2, 2011 is corrected to read:
"Judgment will enter for the plaintiff on Count I of the counterclaim."
Dated: November 4, 2011
Justice, Superior Court