ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Horton Justice, Superior Court
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.
following facts are undisputed, except where noted, for
purposes of Defendant's Motion:
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.
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.
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.
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.
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
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
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.
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.
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