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Rockingham Electrical Supply Co. Inc. v. TRT Electric, Inc.

Superior Court of Maine, Cumberland

September 21, 2016

ROCKINGHAM ELECTRICAL SUPPLY COMPANY, INC. Plaintiff,
v.
TRT ELECTRIC, INC., JOSH TIBBETTS and CCB, INC., Defendants.

          ORDER TO GRANT DEFENDANT CCB, INC.'S MOTION FOR SUMMARY JUDGMENT

          Lance E. Walker, Justice

         Defendant CCB, Inc. ("CCB") moves for summary judgment related to the complaint made by Rockingham Electrical Supply Company, Inc. ("Rockingham") against TRT Electric, Inc. ("TRT"; subcontractor), Josh Tibbetts (President of TRT Electric, Inc.), CCB (contractor), and Nathan Clifford, LLC ("NCL"; party-in-interest) for reimbursement for electrical and lighting materials and supplies provided by Rockingham. Based on the following, CCB's motion is granted,

         I. Factual and Procedural Background

         Plaintiff Rockingham alleges that on or about September 20, 2009, TRT completed a commercial credit application with Rockingham under which Rockingham would supply TRT -with electrical and lighting materials and supplies relating to improvements of real property owned by NCL in Portland, Maine. (Pl's Compl. ¶¶ 6, 8.)

         On March 24, 2015, Rockingham recorded a mechanics lien pursuant to 10 M.R.S.A. § 3251, et seq., on NCL's Portland property. (Def.'s Supp.'g S.M.F. ¶ 9, Ex. A.) On June 15, 2015, Rockingham filed a complaint against CCB, TRT, Tibbetts, and NCL (as a party-in-interest) for an alleged unpaid balance of $91, 289.64 remaining under the application between Rockingham and TRT, (Id. ¶ 9), which contained four counts: (I) breach of contract, (II) unjust enrichment (III) 10 M.R.S.A. § 1111 (alleging the existence of a construction contract and (IV) 10 M.R.S.A. § "3254(1)" (seeking to enforce the mechanics lien) (Pl's Compl. ¶¶ 15-32.) CCB posted a bond to secure the release of the lien, (Pl's S. Add'l M.F. ¶ 14, Ex. B), and the lien was discharged on April 23, 2015, (Pl's S. Add'l M.F. ¶ 15, Ex. C). Rockingham alleges the defendants have never disputed the amount that Rockingham claims as due, (Pl's Response to Def.'s S.M.F. ¶ 10), but TRT and Tibbetts deny this allegation, (Ans. of Def's's TRT and Tibbetts ¶ 10; Def. CCB's Ans. and Affirmative Defenses ¶ 10.).

         On July 20, 2015, Rockingham dismissed their claims against NCL without prejudice. (Pl's Notice of Dismissal.)

         On August 3, 2015, CCB filed an "affirmative defense" that Rockingham's claim is barred by non-compliance with the Maine Mechanics Lien statute. (Def. CCB's Ans. and Affirmative Defenses 6.) On May 6, 2016, CCB filed a motion for summary judgment on all counts of Rockingham's complaint asserting that Counts I, II, and III should be dismissed because Rockingham had not alleged that a contract existed between Rockingham and CCB, and that Count IV should be dismissed because of a defect in the mechanics lien. (Def.'s Mot. Summ. J. 3, 5, 7.) Specifically, CCB argues that while mechanics liens are statutorily required to be subscribed and sworn, 10 M.R.S.A. § 3253(1)(A), the mechanics lien filed by Rockingham contains only a "standard acknowledgement" instead of a sworn jurat, rendering it invalid, (Id. 2; Def.'s Supp.'g S.M.F. Ex. A).

         On July 8, 2016, Rockingham filed a limited objection to CCB's motion for summary judgment, acknowledging that Counts I, II, and III do not lie against CCB, (Pl's Limited Opp'n to Def.'s Mot. Summ. J. 1-2), but asserting CCB is responsible for the unpaid sum owed to Rockingham because it had posted the bond that discharged the lien against NCL's property, (Id. 3). In response to the assertion by CCB that the mechanics lien has a fatally flawed notary subscription, Rockingham notes that the paragraph on the lien just above the notary subscription contains the language "to be signed and sworn." (Id. 3-4; Def.'s Supp.'g S.M.F. Ex. A.) Rockingham argues this language, although not within the subscription, is sufficient to satisfy the statutory requirement for the lien to be sworn. (Id. 4.)

         On July 25, 2016, CCB filed a Reply Memorandum of Law in support of their summary judgment motion in which they reiterate that the notary's subscription in the mechanics lien is defective because it did not require Rockingham to swear to the contents of the lien document as required under 10 M.R.S.A. § 3253(1)(A). (Def.'s Reply to Pl's Opp'n to Def.'s Mot. Summ. J. 1.) In response to Rockingham's assertion that CCB owes the alleged unpaid sum because CCB posted the bond to discharge the lien, Rockingham argues that the purpose of giving a bond, as is permitted under 10 M.R.S.A. § 3263, is only to release a property from a lien but is not an admission that Rockingham is entitled to collect from CCB on the lien. (Id. 2-3.) Indeed, the copy of the Agreement to Discharge the Lien by Bond as Substitute Security provided by counsel for Rockingham states that Rockingham "must still prove the bases for its Lien Claim in the court of action, and any defendants retain any substantive mechanics liens defenses that may be available to them." (Pl's Response to Def.'s S. Add'l M.F. ¶¶ 12-13.)

         II. Standard of Review

         Summary judgment is appropriate, if based on the parties' statement of material facts and the cited record, 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., 2010 ME 20, ¶ 11, 989 A.2d 733; Dyer v. Dep't of Transport, 2008 ME 106, ¶ 14, 951 A.2d 821. "[A] fact is material if it could potentially affect the outcome of the case." Reliance Nat'l Indent, v. Knowles Indus. Servs., 2005 ME 29, ¶ 7, 868 A.2d 220. A genuine issue of material fact exists where the fact finder must choose between competing versions of the truth. Id. (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶20, 817 A.2d 871). When deciding a motion for summary judgment, the court reviews these materials in the light most favorable to the non-moving party. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821.

         A motion for summary judgment shall be supported by a statement of material facts, as to which the moving party contends there is no genuine issue of material fact to be tried, where each fact asserted shall be supported by a record citation. M.R. Civ. P. 56(h)(1). For each statement, there must be a reference to the record where "facts as would be admissible in evidence" may be found. M.R. Civ. P. 56(e).

         The party opposing a summary judgment must point to specific facts showing that a factual dispute does exist in order to avoid a summary judgment. Watt v. Unifirst Corp.,2009 ME 47, ¶ 21, 969 A.2d 897; Reliance Nat'l Indent.,2005 ME 29, ¶ 9, 868 A.2d 220. The evidence offered to establish a dispute as to a material fact submitted in opposition to a motion for summary judgment, "need not be persuasive at that stage, but the evidence must be sufficient to allow a fact-finder to make a ...


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