June 23, 2014
CATHERINE F HAYWARD, TRUSTEE OF THE CATHERINE F. HAYWARD REVOCABLE TRUST OF 2012, Plaintiff,
OCEAN HOUSE, INC., Defendants
FOR PLAINTIFF: BRADLEY C MORIN, BOURQUE & CLEGG, SANFORD ME.
FOR DEFENDANT: DAVID P MOONEY, JAMES B BARTLETT PA, YORK ME.
ORDER ON DEFENDANT'S MOTION TO RECONSIDER
John O'Neil, Jr., Justice, Superior Court.
Defendant moves the court for reconsideration of the court's Order on Defendant's Motion for Partial Summary Judgment and Plaintiff's Motion for Partial Summary Judgment dated March 25, 2014. Defendant moves the court to reconsider based upon a number of reasons, which the court will address in turn.
Defendant disputes the court's statement in the background section of the Order that the fence closes off access from Plaintiff's " front" door to the sidewalk. Defendant is correct that the court should have stated these as alleged facts, not as undisputed facts. Furthermore, Defendant asks the court to correct the misstatement by the court as to which party cited a line of cases on the proposition that final judgment has not been entered where counterclaims have been left unresolved. The court agrees with Defendant that Plaintiff cited this line of cases, not Defendant.
Defendant argues that there is not evidence in the record to determine that Plaintiff's predecessor in title failed to pursue the claim, and therefore the court should find that the matter was litigated and Plaintiff should be bound by it. Defendant argues that the court should find that the matter was litigated and Plaintiff should be bound by it. Defendant argues that the court should not infer from the dismissal that the predecessor-in-title failed to represent rather than made an informed decision not to proceed in litigation. At the summary judgment stage, the court views " the facts and any inferences that may be drawn from them in the light most favorable to the [non-moving] party to determine if he statements of material facts and referenced record evidence generate a genuine issue of material fact."
Cookson v. Brewer Sch. Dep't , 2009 ME 57, P 11, 974 A.2d 276. Defendant has set forth a plausible alternative explanation for the dismissal. However, when viewed in the light most favorable to Plaintiff, it is possible that the dismissal resulted from a failure to represent with due diligence. Defendant raises a question of material fact. The court grants Defendant's Motion to Reconsider Plaintiff's Motion for Partial Summary Judgment as to the affirmative defense of res judicata .
The court Denies Defendant's Motion to Reconsider Defendant's Motion for Partial Summary Judgment. The court grants Defendants Motion to Reconsider Plaintiff's Motion for Partial Summary Judgment as to the affirmative defense of res judicata . Plaintiff's Motion for Partial Summary Judgment as to the affirmative defense of res judicata is Denied.