# Cole v. Dow

> Superior Court of Maine · October 31, 2016

URL: https://www.frixlaw.com/law-library/cases/10810935

## Case

- **Court:** Superior Court of Maine
- **Decided:** October 31, 2016
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Justice, Superior Court
- **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/10810935

## Opinion text

STATE OF :vtAI~E SUPERIOR COURT
J[O{Jl,TON
AROOSTOOK. SS DOC. NO. HOCSC-CV 2015-02

CRYSTAL L. COT ,E )
PLAINTIFF )
vs. ) ORDER ON PLAINTIFF'S
) MOTION FOR SUMMARY
BARRY E. DOW ) JUDGMENT
DEFENDANT ) (COUNT II OF COL1NTERCLAIM)

Before the Coml is J>lainlil'rs Motion for Summary Judgment regarding Defendant's
Counterclaim alleging Breach or Contract. (Count II of Counterclaim). Hearing was held
on October 24, 20 I6. Pursuant lo said hearing an<l review of the summary judgment
submissions, Plaintiff's motion is granted in part.

ln Count II of his counterclaim, the Defendant alleges two(2) forms of agreements. In
Paragraph 11, Defendant alleges that he and Plaintiff entered an agreement " .. seeking his
services to prepare estimates for repair and reconstruction of the home .. ". In Paragraph
I 3, Defendant alleges he" .. .agreed to provide labor, materials and supplies necessary to
perform such repairs and reconstruction." Del"i::ndant further alleges in his counterclaim
he performed the services to prepare estimates and coordinate the trades to provide such
estimates, but that the Plaintiff tenninated the agreement. Defendant claims he is owt:d
$4 700 for the value of his services by providing his time, labor and services. fl is not
clear from the complaint whether that time, labor and services is related strictly to
preparntion of the estimates, or is a claim for more general damages for breach of
contract.

Plaintiff has moved for summary judgment on Count 11. Summary Judgment is precluded
i r, when the record facts arc reviewed, there remain disputes as to material facts relating
to viability of any claim. Rl:!tlllells v. Qui1m, 890 A.2d 713 (Mc. 2006). An issue is
genuine i r there is sufficient evidence supporting the claimed factual dispute to require
choice between the di ffcring versions; an issue is material if it could potentially affect the
outcome of the matter. Brown D9.~~lo mcm Con . Ilnmmond 956 A.2d 104 (l\·1e.
2008).

Count Ir in effect alleges two (2) different agreements, one to provide estimates and the
second to provide labor, materials and supplies to complete repairs. To e.'ilablish a legally
bi11di11g agreement the purlies must have mutually assented to be bound by(,// material
terms; the assent must he 111a11i/ested in the contract. either e.\pres.1·~J or implied/)'; and
1

the cm1trnc1 must be s11{Jicie11tly definite to enable the court to determine its exact
mecminK and fix exactly the legal liabilitie:i· oj the parties. Van Voorhees v. Dodge, 679
A.2d 1077, 1080 (Mc. 1996).
In this case there is sufficient evidence lo establish genuine issues of fact that a contract
existed between the parties for the Defendant to perform repair services. (See
Defendant's Opposing Statement of Material Facts (DOSOM) i/ 8 & 9.) Plaintiff admits
there was a signed proposal. (See Deposition Exhibits 6 & 7). And Plaintiff admits she
did have a contract with Defendant for repair work, but qualifies her answer that it was
" ..not a contract ror solely an estimate." (See Plaintiffs Reply to Defendant's Opposing
Statement or Material Pacts (PRSOM) ~ 8 & 9). Certainly, many questions remain to the
content, cffecl and interpretation of that contract, its validity , and damages 1, if any,
available to either party. And there is also the factual question whether the contract was
terminated. Plaintiff asserts the contract was terminated. There appears to be no dispute
that Defendant in fact signed a document that in effect Lerminated the contract. (See
Defendant' s Deposition Exhibits #16.) But Defendant maintains thal the Plainliff had him
sign Deposition #16 by fraud. (DOSOM 113). Plaintiff denies that assc11ion, and
references other testimony of the Defendant. (PRSOM ~ 13). Accordingly summary
j udgmenl of that portion of Count II which alleges a contract to perform repair work is
denied.

The Defendant's allegation that there was a specific contract or agreement to provide an
estimate however requires a different analysis. There is no dispute Defendant did in deed
prepare and provide an estimate. But there is no evidence that the parlies actually entered
a c:onfracf obligating the Defendant to provide an estimate and which, importantly, set
forth their respective obligations and Jiabi]Hies. Defendant admits that "Plaintiff did not
agree to pay for an estimate", and that any discussions Defendant had regarding payment
for the estimate was with the insurance company . (See Plaintifrs Statement or Material
Facts (PSOMF) ~6,7 &8; DOSM~6.7 &8). The required elements for a separate contract
or agreement specifically for the preparation or an estimate are lacking. That is not to say
defendant may not be entitled to relief pursuant to his claims in Count I alleging unjust
emicluncnt, but his relief is not available by contract.

In conclusion, the Court finds there is no genuine issue of material fact that \here was no
contract lo provide an estimate and therefore Plaintiffs Motion for Summary Judgment is
granted in pa,-f as to Defendant's claim that a contract or agreement existed between the
parties regarding preparation or payment for an estimate. Summary judgment is denied

I A questio11 remains as to whar damages, (f'a,~)1, Defendant alleges or is entil/ed to for
breach of the agreement for him to per/hrm repair work. ln the s11111mmyjudgment
material presemed, the impression is given that De.fendanl 's claim for $4700 is lo
compensate him for preparing the estimates. As ruled herdn, such claim and damages
pursuant to breach <~( contrac:I are denied BUI some question remains whether Defendant
has olher damages.for breach of c:ontrnct regarding the agreement to pe1:form repair
work. /11 the material presellted, such evidence ofr,eneml damages.for breach ofthe
agreement to perform repair 1Vork is "light", but some genuine question of material fact
remains su/jicient fo,· this mpect <~{ De./endant 's bl'each c?f c:ontmcl claim ro survive
.1·111n11w1:,1j11dg111ent.

2
however regarding Defendant's claim that a contract or agreement existed between tbc
parties regarding repair work to be pc1formed.

Dated: <~:;C_
4 ~/ 2.(J)/.?
'I
Justice, Superior Court

3

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810935. Public record. Not legal advice.