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Leedberg v. Romano

Superior Court of Maine, York

June 25, 2014

MELVIN E. LEEDBERG, JR., Plaintiff,
v.
GINO ROMANO, Defendant

FOR PLAINTIFF: PEGGY MCGEHEE, JOSEPH SIVISKI, PERKINS THOMPSON PA, PORTLAND ME.

FOR DEFENDANT: THOMAS G VAN HOUTEN, LAW OFFICE OF THOMAS VAN HOUTEN, SPRINGVALE ME.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

John O'Neil, Jr., Justice, Superior Court.

I. Background

Plaintiff brings this action for declaratory judgment of breach of contract, negligent misrepresentation, intentional misrepresentation, unjust enrichment, injunction, and breach of contract.[1] Plaintiff alleges that Defendant represented to Plaintiff that in exchange for Plaintiff's conveyance of a co-tenancy interest in the Property[2], Defendant would construct a paved access road to the Property and obtain subdivision approval for the Property. There is no written agreement to this effect.

On March 11, 1988, two deeds were recorded in the York County Registry of Deeds. The first conveyed the Property from Santino and Alice Viola to Plaintiff. The second conveyed the Property from Plaintiff to Plaintiff and Defendant. Over the next two decades, Defendant did apply for subdivision approval multiple times, and obtained conditional subdivision approval. However, Defendant never fulfilled the conditions that would permit granting of the subdivision approval. Plaintiff asserts that in 2010, Defendant refuted any obligation to pave the access road or obtain subdivision approval. Defendant alleges that all consideration promised to Plaintiff in the deed has been fulfilled and that Defendant has no outstanding obligation to Plaintiff. Defendant asserts that Defendant paid $15, 000 to Susan Bowie, Esq. as Trustee for Violas as part of the conveyance from Santino and Alice Violas to Plaintiff. Plaintiff denies that Defendant contributed funds to the purchase of the Property from the Violas. Plaintiff contends that Defendant misrepresented to Plaintiff Defendant's intent to pave the access road and obtain subdivision approval and fraudulently continued to misrepresent his intent through 2010. Defendant has brought counterclaims for Dissolution and Accounting and Partition. Defendant now moves the court for Summary Judgment of Plaintiff's claims and Defendant's claim for partition.

II. Standard of Review

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 989 A.2d 733, 738 (Me. 2010); Dyer v. Department of Transportation, 951 A.2d 821, 825 (Me. 2008). When reviewing a motion for summary judgment, the court reviews the parties' statements of material facts and the cited record evidence in the light most favorable to the non-moving party. Id.

A genuine issue of material fact exists where the fact finder must make a determination between differing versions of the truth. Reliance National Indemnity v. Knowles Industrial Services Corp., 2005 ME 29, ¶ 7, 868 A.2d 220; citing Univ. of Me. Found. V. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871. Furthermore, " a fact is material if it could potentially affect the outcome of the case." Id.

III. Discussion

A. Declaratory Judgment

Defendant moves the court for summary judgment on Plaintiffs' count of declaratory judgment of breach of contract. Defendant argues that there was no agreement to be breached. Defendant contends that all of Plaintiff's assertions rely upon prior agreements and parole evidence, which are generally not admissible to where a written deed is present. Card v. Nickerson, 150 Me. 89, 93, 104 A.2d 427, 430 (1954). Therefore, Defendant argues, Plaintiff cannot defeat a deed that states that land has been conveyed for consideration, by alleging lack of consideration. Philbrook v. Delano, 29 Me. 410, 412-13 (1849). Plaintiff argues that because Plaintiff has pled fraud and seeks equitable relief, Defendant's arguments do not apply.

The court finds that any agreement made by the parties prior to the deed were merged at the time of the execution of the deed. Therefore, viewing the facts in the light most favorable to Plaintiff, there was no enforceable agreement after the transfer of the deed to Plaintiff and Defendant. Because there is no enforceable agreement making Defendant's obtaining subdivision approval and completing the access way a contingency to the transfer of the property, there was no valid agreement that could have been breached. Plaintiff has not sufficiently ...


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