November 7, 2014
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 the appraisal report. (Def's S.M.F. ¶2.) Thus an enforceable right, if any, would be under a third-party beneficiary theory.
Third-party beneficiaries have enforceable rights where the promisee intends for the beneficiary to receive the benefit of performance and to enforce the contract. Martin v. Scott Paper Co., 511 A.2d 1048, 1049-50 (Me. 1986). The Law Court has emphasized the contracting parties must intend to confer contractual rights to the third party. Stull v. First Am. Title Ins. Co., 2000 ME 21, ¶ 17, 745 A.2d 975 (describing third party beneficiary rights as "strictly limited").
It is not enough that he benefitted or could have benefitted from the performance of the contract. The intent must be clear and definite, whether it is expressed in the contract itself or in the circumstances surrounding its execution.
Devine v. Roche Biomedical Labs., 659 A.2d 868, 870 (Me. 1995) (citations omitted). Without such intent, a party is a mere incidental rather than intended beneficiary. "An incidental beneficiary cannot sue to enforce third party beneficiary rights." F.O. Bailey Co. v. Ledgewood, Inc., 603 A.2d 466, 468 (Me. 1992).
Here, the Plaintiffs used and received the benefit of Beacon's performance because the appraisal supported the mortgage finance transaction. Despite the fact the report provided for the borrower to rely on the appraisal in connection with the loan, there was no clear and definite intent to provide the borrower with a cause of action for breach of warranty. To the contrary, the express terms of the appraisal report state that the intended user is Mortgage Network for the intended use of issuing the loan. It follows that the Plaintiffs were incidental rather than intended beneficiaries, and without any rights under the contract. Because the Plaintiffs fail to bring to the court's attention "an error, omission or new material that could not previously have been presented" as grounds for reconsideration, the motion must be denied. M.R. Civ. P. 7.
The court additionally notes that the affidavits submitted by the Plaintiffs on summary judgment and on this motion to reconsider contain arguments appropriate for a legal brief, not sworn testimony. The affidavits do not state facts, but argue the application of facts and draw conclusions to support their contract and tort causes of action. These affidavits plainly fail to comply with M.R. Civ. P. 56, and the court has the discretion to disregard them for purposes of summary judgment. See Diversified Foods, Inc. v. First Nat. Bank of Boston, 605 A.2d 609, 612 (Me. 1992) (court properly excluded legal arguments and conclusions contained in affidavit in ruling on summary judgment). On this basis alone, summary judgment was within the court's discretion.
The clerk will make the following entry, by reference, on the docket;
The Plaintiffs Motion for Reconsideration is hereby DENIED.