Seile v. Adams

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTION Docket No. CV-02- 113: ; OL ” PEAS- “10, PILED & ENTERED i Nancy Seile, SUPERIOR COURT Plaintiff Bel 1.8 2002 PENOI! Vv. OBSCOTC OU NG Met on Plaintiff’s Motion for Summary Judgment Julie Adams, DONALD L. GARBRECHT Defendant LAW LIBRARY DEC 20 2002 Pending before the court is the plaintiff’s motion for summary judgment. The court has considered the parties’ rule 56(h) submissions, their written arguments and other material filed in connection with this motion. Summary judgment is proper only if the record on summary judgment shows that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See M.R.Civ.P. 56. To survive a motion for a summary judgment, the opposing party must produce evidence that, if produced at trial, would be sufficient to resist a motion for a judgment as a matter of law. Rodrigue v. Rodrigue, 1997 ME 99 , {8, 694 A.2d 924, 926 . "'A fact is material when it has the potential to affect the outcome of the suit.'" Prescott v. State Tax Assessor, 1998 ME 250 , [ 5, 721 A.2d 169, 172 . If the evidence favoring the nonmoving party is “merely cuiorabie, or is not significanity probative, a summary judgment may be granted.” See Green v. Cessna Aircraft Co., 673 A.2d 216, 218 (Me. 1996) (citation and internal punctuation omitted). The essence of the plaintiff’s motion is that she is entitled to summary judgment on her claims because the record establishes that the defendant failed to perform under the terms of a purchase and sale agreement executed by the parties. That agreement was for the sale of real property by the plaintiff to the defendant. From the factual predicate urged by the plaintiff that the defendant failed to tender the consideration (cash) for the exchange, the plaintiff claims that the defendant breached the agreement (count | of the amended complaint), that the plaintiff is excused from her contractual obligation to convey the premises to the defendant (count 4), that the plaintiff is entitled to retain the deposit of roughly $2,800 paid by the defendant (count 1), that the defendant is liable for trespass damages because she has continued to possess the premises (count 3), that the defendant is liable for the benefits of that occupancy (count 5) and that the defendant is liable for attorney’s fees and costs in this action (count 2). The written purchase and sale agreement, executed by the parties on January 9, 2002, provides in part that the closing for the conveyance of the property would be held on or before February 11, 2002, and that time was of the essence. Plaintiff’s Statement of Material Fact, {J 8-9. The record provides factual support for an argument that subsequent to January 9, the attorneys representing the parties in this transaction conferred regarding that date. During at least some of those conversations, the plaintiff's attorney advised the defendant’s attorney that the prospective February 11 closing date was flexible and that he would agree to an extension of time to prepare the necessary documents. Defendant’s Opposing Statement of Material Fact, J 10. In fact, as of February 11, the defendant had not tendered the purchase price for the property, and the plaintiff instructed her attorney not to accept a subsequent tender. PSMF. {if 11-12. Although the record is not explicit on this point, this factual assertion could support an inference that the defendant in fact tendered the purchase funds at some point, which led to the plaintiff’s rejection of that tender. In a contract for the conveyance of real estate, time is generally not considered to be of the essence. Hull v. Sturdivant, 46 Me. 34, 41 (Me. 1858). Even in those areac ti: metias weet clitumsiaices where ile Coitiact gives time that effect, ihe parties may waive that provision. Id. Here, despite the recitals in the written instrument, the plaintiff's attorney is claimed to have made statements to the defendant’s attorney that could form the basis for an argument that the parties’ performances under the contract was not required by the date specified in the earlier writing. The record indicates that this flexibility was prompted by possible delays in the completion of documents originating with the plaintiff and not in the defendant’s tender of funds. Nonetheless, the plaintiff’s willingness to delay the closing date because of one reason generates the factual basis for an argument that that parties agreed, through their attorneys, that time was no longer of the essence generally. When time is not of the essence, then the parties must perform within a reasonable time. Maine Mutual Fire Ins. Co. v. Watson, 532 A.2d 686, 689 (Me. 1987). The record at bar does not establish that any delays in the defendant’s performance were unreasonable. Consequently, there exists a genuine issue of material fact that precludes entry of summary judgment. The entry shall be: For the foregoing reasons, the plaintiff’s motion for summary judgment is denied. Dated: December 17, 2002 hy daw Justice? Maine # Wuperior Court Jeffrey L. Helm NANCE SEILE - PLAINTIFF * 2907 TRENT ROAD NEW BERN NC 28562 Attorney for: NANCE SEILE JON HADDOW FARRELL ROSENBLATT & RUSSELL PO BOX 738 BANGOR ME 04401-0738 vs JULIE A ADAMS - DEFENDANT 582 WESTERN AVE, ROUTE 9 DIXMONT ME 04932 Attorney for: JULIE A ADAMS RICHARD SILVER RUSSELL LINGLEY & SILVER 145 EXCHANGE STREET BANGOR ME 04401-6505 SUPERIOR COURT PENOBSCOT, ss. Docket No BANSC-CV-2002-00113 DOCKET RECORD Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT Filing Date: 06/20/2002 Docket Events: 06/20/2002 FILING DOCUMENT - COMPLAINT FILED ON 06/20/2002 EXHIBITS A - D ATTACHED. 06/20/2002 Party(s): NANCE SEILE ATTORNEY - RETAINED ENTERED ON 06/20/2002 Plaintiff's Attorney: JON HADDOW 06/20/2002 Party(s): JULIE A ADAMS SUMMONS - CIVIL SUMMONS FILED ON 06/20/2002 06/20/2002 Party(s): JULIE A ADAMS SUMMONS - CIVIL SUMMONS SERVED ON 06/17/2002 AS TO DEFT. ADAMS. 06/20/2002 Party(s): NANCE SEILE SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON 06/20/2002 AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF. 07/01/2002 Party(s): JULIE A ADAMS ATTORNEY - RETAINED ENTERED ON 06/28/2002 Defendant's Attorney: RICHARD SILVER 07/01/2002 Party(s): JULIE A ADAMS MOTION - MOTION TO DISMISS FILED ON 06/28/2002 FILED BY DEFENDANT. 07/02/2002 Party(s): JULIE A ADAMS OTHER FILING - REQUEST FOR HEARING FILED ON 06/28/2002 07/05/2002 Party(s}: NANCE SEILE Page 1 of 4 Printed on: 12/18/200: