The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-19-167
JEFFREY DIGGINS,
Plaintiff
v. ORDER
JELD-WEN INC.,
Defendant
In this case plaintiff Jeffrey Diggins has brought claims alleging breach of co_11tract, breach_
of warranty, promissory estoppel, and violation of the Maine Unfair Trade Practices Act-agamsc
defendant Jeld-Wen Inc. based on some allegedly defective exterior doors manufactured by Jeld
Wen. Before the court is Jeld-Wen's motion for summary judgment.
Like many cases, this case has been delayed by the pandemic. The pending motion was
fully briefed on June 4, 2020. The case was thereafter reassigned and taken under advisement by
the undersigned on October 6, 2020. Since then the court has had almost no time to devote to civil
proceedings due to the pandemic and the need to focus on criminal cases.
Summary Judgment
Summary judgment should be granted ifthere is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. In considering a motion for summary
judgment, 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. E.g., Mahar v. Stone Wood Transport,
2003 ME 63 1 8, 823 A.2d 540. The facts must be considered in the light most favorable to the
non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes 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. Kenny v. Department of Human
Services, 1999 ME 158 ~ 3, 740 A.2d 560.
Jeld-Wen's Summary Judgment Submission in This Case
The first problem with Jeld-Wen's motion is that is it based on what is captioned as an
affidavit by Andrew-Rinlc, Jeld-Wen's General Counsel, which is not sworn to before a notary or
attorney and is not submitted as an unsworn declaration under penalty of perjury. 1 Although
affidavits and declarations under penalty of perjury may be accepted as evidence for purposes of
Rule 56, statements that are not made under oath or under penalty of perjury do not qualify.
The second problem with the unsworn Rinlc affidavit is that it purports to lay a foundation
for the admission of certain Jeld-Wen documents as business records. However, the Rinlc affidavit
states only that the documents in question were kept in the normal course of business. It does not
state that the documents were created at or near the time of the events described by a person with
1See 28 U.S.C. § 1746; Massachusetts Superior Comt Rule 15. Jeld-Wen also relies on a statement under
penalty of perjury by Kevin Polansky, counsel for defendant. The comt would accept a statement under
penalty of pe1jury, but it does not appear that Attorney Polansky actually signed the statement in question.
There are initials ("KB") next to the signature on the statement, and the court notes that the signature on
the Polansky statement is not identical to Attorney Polansky's signature on pleadings. The only function
of the Polansky statement is to attach some documents whose authenticity and admissibility are not
contested. As a result, this issue is not material to the outcome of the motion, but it is another deficiency
in Jeld-Wen's submission. Counsel for Jeld-Wen has an office in Massachusetts but is admitted in Maine.
It should not come as a surprise to an attorney admitted in Maine that the court requires that a sworn
affidavit or declaration under penalty of perjury must be signed by the actual person whose sworn
statement is being offered in evidence.
2
knowledge and therefore fails to establish the necessary evidentiary foundation under M.R.Evid.
803(6).
After the opposition papers submitted by Diggins pointed out those deficiencies, Jeld-Wen
submitted a supplemental Rink affidavit. That affidavit states that it is signed under penalties of
perjury and adds additional foundation supporting Jeld-Wen's argument that the documents would
qualify as business records. However, the court is not aware of any authority for the proposition
that a party moving for summary judgment with an inadequate evidentiary foundation is entitled
to correct the deficiencies in reply papers to which the opposing party has no opportunity to
respond.
As Diggins argues, the court could deny the motion for summary judgment for the above
reasons alone. Jeld-Wen, however, argues that its business records will be admissible "at trial" 2
and accordingly the court will briefly discuss Jeld-Wen's factual and legal arguments.
Disputed Facts
Although Jeld-Wen argues that there was never an express contract between Jeld-Wen and
Diggins, there is evidence that Jeld-Wen provided an express warranty to the prior owners of the
residence purchased by Diggins and that those owners assigned their rights under the warranty to
Diggins. Accordingly, there is at least a disputed issue for trial as to whether Diggins is entitled to
pursue his claims against Jeld-Wen under the 20 year warranty extended to original purchasers. 3
2 Jeld-Wen Reply Memorandum dated June 2, 2020 at 2.
3 It appears to the comt that the express contract and the express warranty claims in the complaint are
essentially duplicative but that need not be resolved at this juncture.
3
On Diggins's promissory estoppel claim, Jeld-Wen argues that it "clearly" rejected the
prior owners' warranty claim in a December 3, 2018 email so that Diggins could not have relied
on the warranty in purchasing the residence. However, there is evidence that the December 3 email
followed a November 21, 2018 email which supports Diggins's argument that Jeld-Wen had
already accepted the warranty claim and in doing so, had acknowledged that this would facilitate
the sale of the property. There are undeniably disputed issues for trial on Diggins's promissory
estoppel claim.
Finally, Jeld-Wen argues that Diggins's Unfair Trade Practices Claim is time-barred
because it contends that claim began to accrue when its exterior doors were sold to the original
owners. The problem with this argument is that Diggins's UPTA claim is based on Jeld-Wen's
failure to honor its warranty, its alleged tactic of accepting the warranty claim in its November 21
email before refusing to honor the warranty thereafter, and the alleged falsity of Jeld-Wen's
December 3, 2018 contention that the problems in the doors could be remedied by washing and
waxing them. The relevant events as to those claims occurred beginning in 2018, well within the
UTPA statute oflimitations. 4
Accordingly, Jeld-Wen' s motion for summary judgment is denied both because it has failed
to support that motion with admissible evidence and because there would be disputed issues for
trial on most or all ofthe claims made by Diggins even ifthe court were to overlook the deficiencies
in Jeld-Wen's motion.
4 Jeld-Wen may be correct that Diggins's implied warranty claim is time-barred but the court is not
prepared to make that fmding due to the inadequacies of the record.
4
Request for Attorney's Fees
In light of the deficiencies in Jeld-Wen's motion, Diggins argues that Jeld-Wen's motion
was frivolous and justifies an award of attorney's fees against counsel for Jeld-Wen. Under
M.R.Civ.P. 56(g) the court can assess attorney's fees for affidavits submitted in bad faith or solely
for purposes of delay. The court can also award attorney's fees under M.R.Civ.P. 11 for pleadings
that were knowingly signed without adequate grounds to support them or that were interposed for
purposes of delay.
An award of attorney's fees could conceivably be justified in this case, but the court will
give Jeld-Wen the benefit ofthe doubt and will not award the attorney's fees requested by Diggins.
The entry shall be:
The motion for summary judgment by defendant Jeld-Wen Inc. is denied. The clerk shall
incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: March C', 2021
Thomas D. Warren
Justice, Superior Court
Enlered on fhe Dock~~It2J Plaintiff-Michael Devine, Esq.
Defendant-Kevin Polansky, Esq.
5