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Crocker v. Marino

Superior Court of Maine, Lincoln

April 7, 2016

MARK MARINO, Defendant


          A, M, Horton Justice, Superior Court

         Defendant Mark Marino's Motion for Summary Judgment is before the court, with Plaintiff Jacqueline Crocker's opposition, and Defendant's reply memorandum. The court elects to decide the motion without oral argument. See M.R. Civ. P. 7(b)(7).


         The following facts are undisputed, except where noted, for purposes of Defendant's Motion:

         In June 2008, Plaintiff Jacqueline Crocker began renting, and moved into, the residence located at 5 Dodge Road, Dresden, Maine, then owned by Defendant Mark Marino. Plaintiff evidently rented the home with the idea of buying it and the lot on which it sits. Defendant had purchased the 5 Dodge Road property in the 1980's, and had resided in the home until he built a home elsewhere on Dodge Road. The structure had been built essentially as a single-story camp in the 1950's, according to Plaintiff, and the parties agree that it was significantly expanded to include a second story and additional spaces in 2004, with Mr. Marino and a local builder performing the work.

         In September 2008, a few months after Plaintiff began renting the home, Defendant provided her with a property disclosure form in anticipation of her purchase of the property. See Affidavit of Mark Marino ("Marino Affi") Ex. D. The disclosure is silent regarding the size of the 5 Dodge Road lot and the condition of the structure.

         Plaintiff contends that Defendant told her, before she purchased the 5 Dodge Road property, that the lot was just under two acres in area, and she contends it is actually under an acre-.82 acres to be exact. Defendant disputes her claim about his oral statement, and responds further by saying he advertised the property as being one acre, and pointing out that Plaintiff in her deposition acknowledged seeing the advertisement containing the one-acre reference.

         On June 1, 2009, after she had been living in the home for about a year, Plaintiff entered into a written purchase and sale agreement with the Defendant and evidently closed on the purchase the same day. Marino Aff. Ex. A. The purchase and sale agreement defines the property sold in terms of the street address and also the book and page reference at the Lincoln County Registry of Deeds for the deed under which Defendant held title. Like the property disclosure form, the purchase and sale agreement is silent on the size of the lot. It also says nothing about the quality of the construction of the residence. It contains a merger clause indicating that "[V]ny representations, statements and agreements are not valid unless contained herein. This Agreement completely expresses the obligations of the parties." Id. ¶ 19. The purchase price for the property was $80, 000, entirely financed by Defendant, who took a 40-year mortgage to secure payment. See id. ¶5.

         Plaintiff does not dispute the authenticity of the property disclosure and purchase and sale agreement attached to the Defendant's affidavit, but claims she was rushed into signing them, did not read them, and did not realize that she could have had the property inspected before she purchased it.

         She also claims that the Defendant told her that the residence was constructed to a high standard of quality. She asserts that, during the period 2011-13, she discovered that the property is very poorly constructed, specifically, with inadequate framing and an inadequate foundation. She asserts that the framing defects were concealed behind sheetrock and tongue-and-groove pine wallboard, and that the concealment was fraudulent. She asserts that the cost of remedying the defects is as high as $183, 400, more than twice the purchase price for the property, and that the property has a value today of $44, 000, little more than half the purchase price. Defendant's response to Plaintiffs allegations regarding the quality of construction emphasizes that Plaintiff acknowledged at her deposition that all of the statements she says Defendant made about the quality of the construction were made after she already had purchased the 5 Dodge Road property, and hence could not have been part of the purchase contract and also could not have been relied on by her in the purchase.

         Lastly, Plaintiff contends that she received a $8, 000 first-time homebuyer's tax credit, most of which she turned over to Defendant in the form of a check for $7, 404. Her amended complaint asserts that the payment was intended to be a payment of principal. Defendant acknowledges receiving the $7, 404 check, but contends that it was tendered as a payment of the first twelve payments due on the promissory note.

         In September 2014, more than five years after purchasing the property, she began this action, initially pro se. She later filed an amended complaint, and retained an attorney. Her amended complaint alleges that Defendant is liable for breach of contract (Count I); fraudulent misrepresentation regarding the quality of construction (Count II); fraudulent misrepresentation regarding the $7, 404 payment being applied to principal (Count III); breach of implied warranty of habitability (Count IV); violation of the Maine Unfair Trade Practices Act (UTPA), 5 M.R.S. § 205 et seq. (Count V), and punitive damages (Count VI). Defendant's Motion asserts that he is entitled to judgment on all six counts.

         Standard of Review

         Summary judgment is appropriate if, based on the parties' statements of material fact and the cited record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep't ofTransp.,2008 ME 106, ¶ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of material fact exists when the [Tact finder] must choose between competing versions of the truth." Dyer,2008 ME 106, ¶ 14, 951 A.2d 821 (internal citation and quotation ...

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