PAMELA J. GUERRETTE, ET AL. Plaintiffs,
ELLEN L. DYER and BEACON APPRAISAL COMPANY, INC., Defendants.
John O'Neil, Jr. Justice, Superior Court
A. Procedural Posture
Before the court is the Plaintiffs' motion to reconsider. The Plaintiffs contend that the court erroneously dismissed their claims for breach of contract (Count II) and under the Unfair Trade Practices Act ("UTPA") (Count V). In granting summary judgment, this court concluded the Plaintiffs were neither parties to the appraisal contract nor established prima facie evidence showing they were intended third-party beneficiaries. The Plaintiffs already conceded that the UTPA count fails as a matter of law. (PL's Opp. Summ. J. 13.) The court thus does not reconsider dismissal of that claim.
The Plaintiffs' contract claim arises out of an appraisal performed as part of the sale of a home in Sanford, Maine. Material to the Plaintiffs' motion to reconsider are the parties to that appraisal.
Lender X, a third party broker, hired Defendant Beacon Appraisal Company ("Beacon") to appraise the home. (Def.'s S.M.F. ¶ 1.) The appraisal request identified Mortgage Network of Danvers ("Mortgage Network") as the lender and Daniela and Pamela Guerrette as the borrowers. (Def.'s S.M.F. ¶ 2.) The request was forwarded to Defendant Ellen Dyer ("Dyer"), an employee of Beacon. (Def.'s S.M.F. ¶3.) Dyer prepared and forwarded the appraisal to Beacon's client, Mortgage Network. (Def.'s S.M.F. ¶ 7.) The appraisal report stated:
INTENDED USE: The intended use of this Appraisal Report is for the Lender/client to evaluate the property that is the subject of this appraisal for a mortgage finance transaction.
INTENDED USER: The Intended user of this Appraisal Report is the Lender/client.
(Def.'s S.M.F. ¶ 9.) The appraisal report also stated the report may be distributed or disclosed to the borrower, PL's S.M.F. ¶15, and the borrower "may rely" on the report "as part of any mortgage finance transaction that involves any one or more of these parties." (Def.'s S.M.F. ¶ 10.)
Motions for reconsideration are appropriate where "required to bring to the court's attention an error, omission or new material that could not previously have been presented." Shaw v. Shaw, 2003 ME 153, ¶ 8, 839 A.2d 714, quoting M.R. Civ. P. 7(b)(5). Rule 7(b)(5) bars litigants from rearguing "points that were or could have been presented to the court on the underlying motion." Id.
The Plaintiffs' grounds for the motion are that this court "misapprehended" the law and facts surrounding their contractual theories regarding the real estate appraisal. In particular, the Plaintiffs assert that they paid for the appraisal based on the breakdown of settlement charges listing "Appraisal Fee to Beacon Appraisal Company" in the amount of $520.00 "Paid From Borrower's Funds at Settlement." (Pl's Mot. Reconsid. Summ. J. Ex. A.)
As this court previously decided, no express contract existed between the Defendants and the Plaintiffs. While the settlement documents at the closing required the Plaintiffs to pay $520.00 for the "Appraisal Fee to Beacon Appraisal Company, " this was a payment for Beacon's services to Mortgage Network, not apayment to Beacon by the Plaintiffs. Beacon was not a party to the closing. The Defendants' only connection to the Plaintiffs is that the Guerrettes, as listed borrowers, were contemplated by ...