ORDER ON DEFENDANTS' MOTION TO DISMISS
MILLS JUSTICE SUPERIOR COURT
the court is defendants Margaret and Erlon Marean's
motion to dismiss plaintiff, Eli Berkowitz's complaint
for breach of contract. For the following reasons, the motion
is DENIED. FACTS
to the allegations in the complaint, on August 1, 2014,
defendants entered into an agency agreement with party in
interest Denis Dancoes, a real estate broker, to sell
defendants' real property located at 65-60 Ossipee Trail
East in Standish, Maine. (Pl.'s Compl. ¶ 6.) The
agency agreement had a term of 24 months and gave Mr. Dancoes
the exclusive right to sell defendants' property for $1,
750, 000.00, or at "any other price, terms or
consideration, which [defendants] may agree to."
(Id. ¶¶ 7, 9.) The agency agreement
further provided that -defendants would pay Mr. Dancoes a
commission of 10 percent of the sale price.
February 2015, a portion of the property was sold to Joy Real
Estate, LLC for $300, 000.00. (Id. ¶ 10.) In
June 2016, Mr. Dancoes contacted plaintiff and represented
that he was the defendants' exclusive agent with
authority to sell defendants' property. (Id.
¶ 11.) Plaintiff agreed to purchase the unsold portion
of the property for $1, 450, 000.00. (Id. ¶
12.) Plaintiff signed a purchase and sale agreement and paid
a $10, 000.00 deposit. (Id. ¶ 13.) Defendants
have refused to go forward with the sale. (Id.
filed a complaint on November 15, 2016. In the complaint,
plaintiff alleges one count of breach of contract and seeks
specific performance of the purchase and sale agreement. On
December 7, 2016, defendants filed an answer and a motion to
dismiss. Plaintiff filed an objection to the motion to
dismiss on December 22, 2016. Defendants filed a reply on
December 28, 2016.
Standard of Review
may raise an affirmative defense, such as the statute of
frauds, by a motion to dismiss if facts giving rise to the
defense are apparent on the face of the complaint. M.R. Civ.
P. 8(c); Gray v. TD Bank. N.A.. 2012 ME 83, ¶
10, 45 A.3d 735. When reviewing a motion to dismiss for
failure to state a claim, the court "examine[s] the
complaint in the light most favorable to the plaintiff to
determine whether it sets forth elements of a cause of action
or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory." Saunders v.
Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. The court treats
the facts in the complaint as admitted. Doe v.
Graham. 2009 ME 88, ¶¶ 2-3, 977 A.2d 391.
Motion to Dismiss
argue that plaintiff's claim is barred by the statute of
frauds because plaintiff has not alleged the existence of a
signed writing between plaintiff and defendants. (Defs.'
Mot. Dismiss 2-4.) Maine's statute of frauds provides in
No action shall be maintained . .. [u]pon any contract for
the sale of lands... unless the promise, contract or
agreement on which such action is brought, or some memorandum
or note thereof, is in writing and signed by the party to be
charged therewith, or by some person thereunto lawfully
authorized . . .
M.R.S. § 51(4) (2016). Plaintiff alleges that defendants
and Mr. Dancoes entered into an agency agreement, which gave
Mr. Dancoes the exclusive right to sell defendants'
property. (Pl.'s Compl. ¶¶ 6-7.) Plaintiff
further alleges that he entered into a purchase and sale
agreement with Mr. Dancoes. (Id. ¶¶ 9,
11-13, 17.) If true, these facts may allow plaintiff to show
that defendants are bound by the purchase and sale agreement.
See Restatement (Second) of Contracts § 135
cmt. b (1981) ("A memorandum may be signed by an agent
of a party with the same effect as if the party had signed
personally."); see also Fitzgerald v. Hutchins,
2009 ME 115, ¶ 11, 983 A.2d 382 ("When an agent
acting with actual or apparent authority makes a contract on
behalf of a disclosed principal .. . the principal and the
third party are parties to the contract...") (quoting
Restatement (Third) of Agency § 6.01 (2006)).
also argue that the complaint does not allege the existence
of a written agreement between plaintiff and Mr. Dancoes.
(Defs.' Mot. Dismiss 2-4; Defs.' Reply 1.) The
complaint alleges the existence of a written agreement by
alleging that plaintiff entered into an agreement with Mr.
Dancoes and that plaintiff signed the agreement. (Pl.'s
Compl. ¶¶ 13, 17.) The fact that the complaint does
not explicitly allege that Mr. Dancoes signed the agreement
does not require the court to dismiss the complaint. See
Howe v. MMG Ins. Co., 2014 ME 78, ¶ 9, 95 A.3d
79 (notice pleading standard is "forgiving");
Saunders, 2006 ME 94, ¶ 8, 902 A.2d 830