Santini v. Howell

STATE OF MAINE SUPERIOR COURT

YORK, SS. Civil Action

Docket No. CV-14-0216

MICHAEL SANTINI,

Plaintiff,

ORDER DENYING MOTION

v. FOR SUMMARY JUDGMENT

AND MOTION TO EXCLUDE

MATTHEW W. HOWELL, ESQ. and TESTIMONY

CLARK & HOWELL, LLC,

Defendants

Presently before the court are two motions filed by defendants: a motion for

summary judgment and a motion to exclude testimony. For the reasons set out below,

the motions are denied.

Facts

Attorney Matthew Howell, and his law firm Clark & Howell, LLC, represented

Michael Santini in his divorce from Annielu DeWitt in 2011. Santini and DeWitt, who

was also represented by counsel, reached a full settlement on all issues involved in the

divorce. (Def.' s S.M.F. 9I9I 1, 3.)

One of the assets subject to division in the divorce was real estate located at 5

Udell Park in York consisting of a home and land. This property was acquired during

the marriage. (Def.'s S.M.F. 9I 2.) The facts in the summary judgment record

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establish -and there appears to be no genuine dispute -that DeWitt was the sole title

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Plaintiff initially failed to attach an opposing statement of material facts to the opposition to

summary judgment. By agreement, plaintiff thereafter filed an opposing statement of material

facts, but none of the denials or qualifications of the statements of fact cite evidence in the

record . (Pl.' s Opp. S.M.F. 11 2, 7, 12, 15.) In their statement of material facts, defendants assert

that DeWitt w as the sole ow ner of 5 Udell Park. (Def.'s S.M.F. 1 2.) Plaintiff's opposing

owner of record of this real estate. (Def.'s S.M.F. 9[9[ 1-3.) Santini, who w as a

contractor, did w ork on the property, and also hired a builder to construct the marital

home there . (Santini Aff. 9[9[ 13-14). Santini and DeWitt lived in the hom e with their

<laugher during the marriage. Id. at 9I 17. It was secured by a mortgage "serviced

w ith marital funds ." (Id. 9[9[ 17-18.)

The divorce settlement included a stipulation that DeWitt w ould sell the

property, that the asking price would not be lower than $1,250,000 and that the net

proceeds from sale be divided in accordance with the agreement. (Def.'s S.M.F. 9I 3. )

With respect to price, the language in the agreed-upon divorce judgment specificall y

provided that the 5 Udell Park property "shall remain on the market until sold, and the

asking price shall be automatically reduced every twelve w eeks by the broker unless the

parties agree otherwise, except that it shall not be low ered beneath $1,250,000 except by

mutual agreement of the parties." (Compl. 9I 12.) Santini believed that this provision

prevented 5 Udell Park from being sold for less than $1,250,000.

Although DeWitt did not actually list the property for less than $1,250,000,

following the divorce she received (and accepted) an offer of $925,000. (Def.'s S.M.F. 9[

statement responds, "Deny. Maine law, as d etailed in the Memo in Opposition, does not

support this statement. Mrs. Santini was not the sole owner of the home since it was acquired

during the m arriage and was presumptively, marital property ." (Pl.'s Opp . S.M.F. 9[ 2. ) The

preceding statement of fact does not include a record citation. Under the rules, plaintiff's failure

to properly controvert defendants' statements of fact with record citations wo uld require the

court to deem d efendants' properly supported facts admitted . See LR. Civ. P. 56(h)(4) ("Facts

contained in a supporting or opposing statement of material facts, if supported by record

citations as required by this rule, shall be deemed admitted u nless properly controverted ."). In

considering defendants' motions, the court accepts DeWitt was the sole owner of 5 Udell Park .

However, for the reasons set forth in this order, this fact alone does not compel the court to

~rant the motions.

The Affidav it of Michael Santini accompanying Plaintiff's Memorandum in Opposition to

Summary Judgment (Lay Expert Testimony Exclusion) states: "I chose not to b e on the deed for

any of the three marital homes, in order to protect my assets fr om any claims made against my

separate business," and " [o]nly Mrs. Santini was on the deed s for those three homes." (Santini

Aff. 9[9[ 15, 16.)

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4.) Howell attempted to prevent the sale at that price by filing a motion to enforce the

divorce judgment in the District Court. (Def.'s S.M.F. 9[ 5) The court denied the

motion, concluding that the terms of the divorce judgment restricted the listing price

but did not restrict DeWitt from accepting a lower offer. Id.

In November 2014 Santini filed the instant complaint alleging professional

negligence (Count I) and breach of fiduciary duty (Count II). He claims that

defendants breached the standard of care and his fiduciary duty by failing to ensure the

divorce judgment prevented DeWitt from selling for less than $1.25 million without his

(Santini' s) consent.

Discussion

The principal issue presented by both motions is whether Santini can offer lay

opinion testimony about the value of the 5 Udell Park property in order to establish

causation between the alleged malpractice and his claimed damages. Both parties

have designated an expert to testify as to the professional standard of care.

Defendants have designated an expert to testify as to the value of the property, but

plaintiff has not. Defendants contend that without a qualified expert to support the

contention the property was worth at least $1.25 million at the time of the sale,

plaintiff's claims fail and thus they are entitled to summary judgment.

Rule 701 of the Maine Rules of Evidence provides: "If a witness is not testifying

as an expert, opinion testimony is limited to opinions that are: (a) Rationally based on

the witness's perception; and (b) Helpful to clearly understanding the witness 's

testimony or to determining a fact in issue."

Maine law permits property owners to offer lay opinion testimony as to the fair

market value of his or her property. Garland v. Roy, 2009 ME 86, 9[ 21, 976 A.2d 940

(citations omitted); see also Wa lters v. Petrolane-Ne. Gas Serv., Inc., 425 A.2d 968, 974 (Me.

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1981) ("Property owners, by reason of their ownership alone, may state their opinion as

to the fair market value of their property."). Such testimony has been held adequate to

support a damages award. Garland, 2009 ME 86, 9121, 976 A.2d 940 (citing Ferrell v. Cox,

617 A.2d 1003, 1007 (Me. 1992)).

The rationale for allowing a property owner to provide such testimony is that an

owner is presumed to be sufficiently familiar with the property's attributes so as to be

competent to offer a reliable opinion as to its value. See Garland, 2009 ME 86, 91 21, 976

A.2d 940. In other words, an "owner may not possess all the qualifications that would

be required of others who testify as to value" but "through personal knowledge of his

property, with a reasonable opportunity to observe its area, the uses to which it may be

put, the extent and condition of any improvements thereon, possesses sufficient

knowledge from which to form an opinion as to the value." Simmons v. State, 234 A.2d

330, 332 (Me. 1967). Thus, the Court concluded that an objection to the witness's

competence properly goes to weight, not admissibility. Id.

While the fact of record ownership, per se, may provide a bright-line rule to guide

courts on the issue of admissibility, the presumption undergirding the rule may, or may

not, reflect a particular lay witness's actual competence to testify as to the question of a

property's value. Nor, does the converse necessarily follow; it is a witness's personal

knowledge o.f the property, not the mere fact of record ownership, that qualifies the

witness to give testimony as to value that is rationally based on perception. M.R. Evid.

701(a).

The court thus concludes that although Santini did not hold record title

ownership of 5 Udell Park, the instant record suggests that he may possess the

knowledge, experience, and familiarity with the property in question to establish a

sufficient foundation to offer opinion testimony as its fair market value. (Santini Aff. 9191

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13-17.). See, e. g., Garland, 2009 ME 86, <JI 21, 976 A.2d 940; State v . Edwards, 681 A.2d 24,

27 (Me. 1996) (county superindependent responsible for purchase and replacement of

supplies competent to opine as to property value); State v . Doray, 359 A.2d 613, 614 (Me.

1976) (noting "intimate knowledge of the characteristics and peculiarities of his

property" is basis for allowing owner's opinion testimony); F. X. Bilodeau Realty, Inc. v.

Lewiston Urban Renewal Auth., 237 A.2d 398, 400 (Me. 1968) (opinion evidence as to

value is based on experience; whether opinion accepted by fact-finder goes to weight

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not admissibility); Simmons, 234 A.2d 332.

Therefore, the motion for summary judgment is denied.

The motion to exclude evidence is also denied, but without prejudice and subject

to being reasserted at trial if Plaintiff is not able to lay an adequate foundation

establishing sufficient knowledge, experience and familiarity with regard to the

property in question. If such a foundation is laid, he may be permitted to offer a lay

opinion of value, not an expert opinion. What weight his testimony deserves will be a

question for the fact-finder.

The clerk may incorporate this order upon the docket by reference pursuant to

Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED

Dated: February 16, 2016

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In one case, actual proof of record ownership may not have been strictl y required . See

Walters, 425 A.2d at 974 n.4 (Me. 1981 ) (Wife allowed to testify along with husband as to value;

opinion does not indicate whether she was on the deed to the property in question, though no

objection was raised as she may have been a "co-owner." )

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