Cole v. Dow

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STATE OF :vtAI~E AROOSTOOK. SUPERIOR COURT J[O{Jl,TON DOC. NO. HOCSC-CV 2015-02 SS CRYSTAL L. COT ,E PLAINTIFF vs. BARRY E. DOW DEFENDANT ) ) ) ) ) ) ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (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 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 1 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

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