Wyman v. Rogers

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STATE OF MAINE KENNEBEC, ss. SUPERIOR COURT CIVIL ACTION Docket No. CV-07-242 I\/\'\, --( r,./ - 1'-. /i '-'. )( WANDA WYMAN and JOHN WYMAN Plaintiff v. DECISION AND ORDER DIANE ROGERS and SMOKERISE, INC. d/b/ a THE BIRCHES FAMILY CAMPGROUND ~ONALD L_ GARBRECHT LAW LIBRARY Defendants The defendants move for summary judgment pursuant to M.R. Civ. P. 56. The defendants filed a statement of material facts (DSMF). The plaintiffs responded (PRSMF) and filed a statement of additional material facts (PSAMF), to which the defendant did not file the required response. See M.R. Civ. P. 56(h)(2) & (3). In approximately May 2006, defendant Diane Rogers discussed with the plaintiff Wanda Wyman, the purchase by defendant Smokerise, Inc. of the plaintiffs' 2000 Breckenberg Park Model 1238 camper. (DSMF fJI 1; PRSMF fJI 1.) On or about January 22, 2007, defendant Rogers sent the plaintiffs a letter of intent to purchase the camper. (DSMF fJI 2; PRSMF fJI 2.) Defendant Rogers would buy the camper and all of its accessories, including an 8' x 34' deck, screened-in porch, awning, and detached shed for $25,500.00. (DSMF fJI 3; PRSMF <j[ 3.)l The defendants' argument that, at the very least, there is no individual liability on the part of defendant Rogers does not make sense in light of her own affidavit: "The arrangement was that I would buy the Camper ...." DSMF err 3; Rogers Aff. err 4. 1 Defendant Rogers later notified the plaintiffs that because of potential foreclosure on the campground at which the camper was located, defendant Rogers would be unable to complete purchase of the camper. (DSMF <j[ 6; PRSMF <j[ 6.) On February 9, 2007, the plaintiff sent defendant Rogers an email stating: What a blow, I was thinking of you and thought I would see how you were doing? I wish there was a way the bank would be more cooperative with you. What jerks not to cut you some slack. I also suffered a blow also, since we could not sell the camper I will not be able to purchase dads home. I'm not telling you this to make you feel bad, Please don't' feel bad I know you would have honored your agreement if at all possible and I don't hold you responsible in any way. Maybe the new owner of the campground might be interested would it be to much to ask that you let who ever know that we are still interested in selling it. I hope the sale goes smoothly for you and that you come out ahead I fell so bad that you have to sell it, I know you were going to some day as part of your retirement but not now. If there is anything I can do even to lend an ear do not hesitate to call me ok. Thinking of you, Love Wanda (DSNIF <j[ 8; PRSMF <j[ 8.; Wyman Aff. Ex. V.) Discussion The defendants argue that any contract was terminated by mutual agreement of the parties. A mutual agreement to rescind a contract is itself a contract. Drinkwater v. Patten Realty Corp., 563 A.2d 772, 775 (Me. 1989). The plaintiffs have raised issues of material fact regarding whether the parties mutually assented to rescind the contract. Id.; PRSMF <j[ 8; PASMF <j[<j[ 22-28. The entry is The Defendants' Motion for S mary Judgment is DENIED. Date: May 13, 2008 2 WANDA E WYMAN - PLAINTIFF SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CV-2007-00242 Attorney for: WANDA E WYMAN JED DAVIS - RETAINED 08/22/2007 MITCHELL & DAVIS 86 WINTHROP STREET AUGUSTA ME 04330 JOHN K WYMAN DOCKET RECORD - PLAINTIFF Attorney for: JOHN K WYMAN JED DAVIS - RETAINED 08/22/2007 MITCHELL & DAVIS 86 WINTHROP STREET AUGUSTA ME 04330 vs DIANE ROGERS - DEFENDANT PO BOX 17, WINDHAM ME 04062 Attorney for: DIANE ROGERS SONIA J BUCK - RETAINED LINNELL CHOATE & WEBBER LLP 83 PLEASANT STREET PO BOX 190 AUBURN ME 04212-0190 SMOKERISE INC - DEFENDANT Attorney for: SMOKERISE INC SONIA J BUCK - RETAINED LINNELL CHOATE & WEBBER LLP 83 PLEASANT STREET PO BOX 190 AUBURN ME 04212-0190 Filing Document: COMPLAINT Filing Date: 08/22/2007 Minor Case Type: CONTRACT Docket Events: 08/22/2007 FILING DOCUMENT - COMPLAINT FILED ON 08/22/2007 08/22/2007 Party(s): WANDA E WYMAN ATTORNEY - RETAINED ENTERED ON 08/22/2007 Plaintiff's Attorney: JED DAVIS 08/22/2007 Party(s): JOHN K WYMAN ATTORNEY - RETAINED ENTERED ON 08/22/2007 Plaintiff's Attorney: JED DAVIS 08/22/2007 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 08/22/2007 08/22/2007 party(s): DIANE ROGERS SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 08/04/2007 Page 1 of 5 Printed on: 05/19/2008 AUGSC-CV-2007-00242 DOCKET RECORD SERVED ON DIANE ROGERS 08/22/2007 Party(s): SMOKERISE INC SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 08/07/2007 SERVED ON DIANE ROGERS FOR SMOKERISE, INC. 09/20/2007 Party(s): DIANE ROGERS,SMOKERISE INC RESPONSIVE PLEADING - ANSWER FILED ON 08/21/2007 Defendant's Attorney: SONIA J BUCK 09/20/2007 Party(s): DIANE ROGERS ATTORNEY - RETAINED ENTERED ON 08/21/2007 Defendant's Attorney: SONIA J BUCK 09/20/2007 Party(s): SMOKERISE INC ATTORNEY - RETAINED ENTERED ON 08/21/2007 Defendant's Attorney: SONIA J BUCK 09/27/2007 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 06/01/2008 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 09/26/2007 NANCY MILLS , JUSTICE 09/27/2007 ORDER - SCHEDULING ORDER ENTERED ON 09/26/2007 NANCY MILLS , JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. PARTIES/COUNSEL COPIES TO 12/04/2007 Party(s): WANDA E WYMAN,JOHN K WYMAN DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 12/04/2007 Plaintiff's Attorney: JED DAVIS WANDA WYMAN'S REQUEST FOR ADMISSIONS TO DEFS SERVED ON SONIA BUCK, ESQ., ON 11/30/07. 12/04/2007 Party(s): DIANE ROGERS,SMOKERISE INC DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 12/04/2007 BY ATTY CONWAY AND BUCK FOR DEFS'S ... FIRST REQUEST FOR ADMISSIONS SERVED ON JED DAVIS ESQ ON 11/20/07. 12/06/2007 Party(s): WANDA E WYMAN ADR - NOTICE OF ADR PROCESS/NEUTRAL FILED ON 12/04/2007 Plaintiff's Attorney: JED DAVIS MEDIATION WITH MATTHEW DYER, ESQ. ON 01/14/08. 12/06/2007 Party(s): WANDA E WYMAN,JOHN K WYMAN DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 12/06/2007 Plaintiff's Attorney: JED DAVIS WANDA WYMAN'S INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO DIANE ROGERS, SERVED ON S. BUCK, ESQ. ON 12/05/07. 12/18/2007 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION SUMMARY JUDGMENT FILED WITH AFFIDAVIT ON 12/17/2007 Defendant's Attorney: SONIA J BUCK W/ AFFIDAVIT OF DIANE ROGERS, MEMORANDUM OF LAW, STATEMENT OF MATERIAL FACTS, PROPOSED Page 2 of 5 Printed on: 05/19/2008 AUGSC-CV-2007-00242 DOCKET RECORD ORDER, REQUEST FOR HEARING 12/20/2007 Party(s): WANDA E WYMAN,JOHN K WYMAN MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 12/18/2007 Plaintiff's Attorney: JED DAVIS 01/02/2008 Party(s): DIANE ROGERS,SMOKERISE INC OTHER FILING - OPPOSING MEMORANDUM FILED ON 12/31/2007 Defendant's Attorney: JOHN CONWAY DEFTS' OPPOSITION TO PLTF'S MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO DEFTS' MOTION FOR SUMMARY JUDGMENT 01/02/2008 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION STAY OF PROCEEDINGS FILED ON 12/31/2007 Defendant's Attorney: SONIA J BUCK DEFTS' MOTION TO STAY DISCOVERY PENDING RULING ON DEFTS' MOTION FOR SUMMARY JUDGMENT AND DEFTS' MOTION FOR RULE 11 SANCTIONS. PROPOSED ORDER. 01/02/2008 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION FOR SANCTIONS FILED ON 12/31/2007 Defendant's Attorney: SONIA J BUCK DEFTS' MOTION FOR SANCTIONS AGAINST PLTFS PURSUANT TO RULE 11 01/04/2008 Party(s): WANDA E WYMAN DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 01/03/2008 Plaintiff's Attorney: JED DAVIS PLT WANDA WYMAN'S RESPONSE TO DEF ROGERS REQUEST FOR ADMISSIONS SERVED ON ATTY BUCK ON 1/2/08 01/07/2008 Party(s): DIANE ROGERS,SMOKERISE INC DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 01/07/2008 Defendant's Attorney: JOHN CONWAY DEF'S RESPONSES TO REQUEST FOR ADMISSIONS SERVED ON ATTY DAVIS ON 1/4/08. 01/07/2008 Party(s): WANDA E WYMAN,JOHN K WYMAN OTHER FILING - OPPOSING MEMORANDUM FILED ON 01/04/2008 Plaintiff's Attorney: JED DAVIS PLTFS' OPPOSITION TO DEFTS' MOTIONS TO STAY DISCOVERY AND FOR RULE 11 SANCTIONS, AND REPLY IN SUPPORT OF MOTION FOR ENLARGEMENT OF TIME 01/10/2008 Party(s): DIANE ROGERS,SMOKERISE INC OTHER FILING - REPLY MEMORANDUM FILED ON 01/10/2008 Defendant's Attorney: SONIA J BUCK DEFTS' REPLY TO PLTF'S OPPOSITION TO MOTION TO STAY DISCOVERY 01/10/2008 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 01/10/2008 Defendant's Attorney: SONIA J BUCK DEFTS' MOTION TO EXTEND DEADLINE FOR COMPLETION OF ADR PENDING RULING ON DEFTS' MOTION FOR SUMMARY JUDGMENT. PROPOSED ORDER. 01/16/2008 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 01/15/2008 Page 3 of 5 Printed on: 05/19/2008 AUGSC-CV-2007-00242 DOCKET RECORD NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL. ADR DEADLINE WILL BE WITHIN 15 DAYS AFTER COURT'S RULING ON DEFT'S MOTION FOR SUMMARY JUDGMENT 01/16/2008 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION FOR SANCTIONS DENIED ON 01/15/2008 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 01/16/2008 Party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION STAY OF PROCEEDINGS DENIED ON 01/15/2008 NANCY MILLS , JUSTICE COpy TO PARTIES/COUNSEL 01/16/2008 Party(s): WANDA E WYMAN,JOHN K WYMAN MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 01/15/2008 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 02/07/2008 Party(s): DIANE ROGERS,SMOKERISE INC DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 02/01/2008 DEFS FIRST REQUEST FOR DOCUMENTS FROM PLT. AND DEFS RESPONSES TO PLTS REQUEST FOR PRODUCTION OF DOCUMENTS SERVED ON ATTY. DAVIS ON 1/31/08 02/12/2008 Party(s): DIANE ROGERS,SMOKERISE INC DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 02/07/2008 Plaintiff's Attorney: JOHN CONWAY DEF'S ANSWERS TO PLT'S REQUEST FOR INTERROGATORIES SERVED ON ATTY DAVIS ON 2/6/08. 02/27/2008 Party(s): WANDA E WYMAN,JOHN K WYMAN OTHER FILING - OPPOSING MEMORANDUM FILED ON 02/26/2008 Plaintiff's Attorney: JED DAVIS PLTFS' OPPOSITION TO DEFTS' MOTION FOR SUMMARY JUDGMENT, REPLY STATEMENT OF MATERIAL FACTS, AFFIDAVIT OF WANDA WYMAN, EXHIBITS A-W. 03/05/2008 Party(s): DIANE ROGERS,SMOKERISE INC RESPONSIVE PLEADING - RESPONSE FILED ON 03/04/2008 Defendant's Attorney: SONIA J BUCK DEF'S REPLY TO PLT'S OPPOSITION TO DEF'S MOTION FOR SUMMARY JUDGMENT. 03/14/2008 Party(s): WANDA E WYMAN,JOHN K WYMAN LETTER - FROM PARTY FILED ON 03/13/2008 Plaintiff's Attorney: JED DAVIS RE: DEFTS FAILED TO RESPOND TO PLTFS' STATEMENT OF ADDITIONAL MATERIAL FACTS. 03/20/2008 Party(s): WANDA E WYMAN,JOHN K WYMAN LETTER - FROM PARTY FILED ON 03/13/2008 Plaintiff's Attorney: JED DAVIS RE: DEFT'S MOTION FOR SUMMARY JUDGMENT 03/20/2008 Party(s): DIANE ROGERS,SMOKERISE INC LETTER - FROM PARTY FILED ON 03/17/2008 Defendant's Attorney: SONIA J BUCK Page 4 of 5 Printed on: 05/19/2008 AUGSC-CV-2007-00242 DOCKET RECORD RE: ATTORNEY DAVIS'S LETTER OF MARCH 11, 2008 04/02/2008 Party(s): WANDA E WYMAN,JOHN K WYMAN LETTER - FROM PARTY FILED ON 03/31/2008 plaintiff's Attorney: JED DAVIS IN RESPONSE TO SONIA BUCK, ESQ. 'S LETTER OF 03/14. 04/02/2008 Party(s): DIANE ROGERS,SMOKERISE INC OTHER FILING - REQUEST FOR HEARING FILED ON 04/01/2008 Defendant's Attorney: SONIA J BUCK 05/15/2008 party(s): DIANE ROGERS,SMOKERISE INC MOTION - MOTION SUMMARY JUDGMENT DENIED ON 05/13/2008 NANCY MILLS , JUSTICE COPY TO ATTYS DAVIS AND BUCK A TRUE COpy ATTEST: Clerk Page 5 of 5 Printed on: 05/19/2008

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