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Berkowitz v. Marean

Superior Court of Maine, Cumberland

February 3, 2017

ELI BERKOWITZ, AS TRUSTEE OF TBFW TRUST, Plaintiff
v.
MARGARET S. MAREAN and ERLON H. MAREAN, Defendants

          ORDER ON DEFENDANTS' MOTION TO DISMISS

          TWICY MILLS JUSTICE SUPERIOR COURT

          Before 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

         According 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. (Id.¶ 8.)

         In 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. ¶ 14.)

         Plaintiff 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.

         DISCUSSION

         1. Standard of Review

         A party 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.

         2. Motion to Dismiss

         Defendants 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 part:

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 . . .

         33 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)).

         Defendants 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 ...


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