ORDER ON DEFENDANTS' MOTION FOR SUMMARY
the court is defendants Margaret S. Marean and Erlon H.
Marean's motion for summary judgment. For the following
reasons, the motion for summary judgment is granted.
Margaret S. Marean is the owner of real property located at
63 Ossipee Trail East in Standish, Maine. (Defs.' S.M.F.
¶ 2.) Plaintiff Dennis Dancoes is an individual doing
business as The Dancoes Co. in Falmouth Maine. (Defs.'
S.M.F. ¶ 1.)
29, 2014, plaintiff Denis Dancoes met with defendants
Margaret S. Marean and Erlon H. Marean and entered into a
contract known as the Project Management Agreement.
(Defs.' S.M.F. ¶ 12.) Pursuant to this contract,
plaintiff would "advise, assist and consult with [the
defendants] ... in connection with the development and
management of the property." (Defs.' S.M.F. ¶
13.) In return, plaintiff would "be compensated by
commission only" and the defendants were required to
execute an exclusive listing agreement with plaintiff
"providing for a 10% commission on the sale ... of any
parcel to a ready willing and able buyer." (Defs.'
S.M.F. ¶ 14.)
August, 1, 2014, defendants executed an exclusive right to
sell agreement (Agency Agreement). (Defs.' S.M.F. ¶
3.) Pursuant to the Agency Agreement, defendants granted
plaintiff "the exclusive right to sell or lease the
property at the sales or lease price $1, 750, 000 as agreed
between [plaintiff and defendant Margaret S. Marean], or, any
other price, terms, or considerations, which [defendant
Margaret S. Marean] may agree to." (Defs.' S.M.F.
¶ 4.) The term of the agreement was for two years ending
on August 1, 2016. (Defs.' S.M.F. ¶ 4.)
Agency Agreement also provided that defendant Margaret S.
Marean "agreed to pay to [plaintiff] a commission of ten
percent (10%) of the sale" of the property. (Defs.'
S.M.F. ¶ 8.) Pursuant to the Agency Agreement, defendant
Margaret S. Marean would be obligated to pay the commission
if plaintiff presented her with "a purchaser ready,
able, and willing to purchase or lease the property on any
terms or conditions, which [defendant Margaret S. Marean] in
fact accepts . . . ." (Defs.' S.M.F. ¶ 9.) The
Agency Agreement further provided that the commission on the
sale of the property "shall be due and payable when the
agreement has been executed and at the transfer of
title." (Defs.' S .M.F. ¶ 10.)
Agency Agreement did not specify the amount of the deposit
that would be acceptable to defendants or what would happen
to the deposit in the event of a default or termination of
any contract to purchase. (Defs.' S.M.F. ¶¶
5-6.) The Agency Agreement also did not specify whether an
offer subject to conditions would be acceptable. (Defs.'
S.M.F. ¶ 7.)
January 2015, plaintiff presented defendant Margaret S.
Marean an offer from Joy Real Estate, LLC to purchase a
portion of the listed property for $300, 000.00. (Pl.'s
Add. S.M.F. ¶ 44.) Defendant Margaret S. Marean accepted
this offer and closed on the sale on May 5, 2015. (Pl.'s
Add. S.M.F. ¶¶ 45, 47-49); (Defs.' S.M.F.
¶ 15.) Pursuant to the Agency Agreement, plaintiff
received a 10% commission at the closing. (Defs.' S.M.F.
mid-May 2016, plaintiff alleges he contacted the defendant
Margaret S. Marean to relay an offer from Eli Berkowitz, as
trustee of the TBFW Trust, to purchase the remaining portion
of the property for $1, 250, 000.00. (Pl.'s Add. S.M.F.
¶ 57.) According to plaintiff, defendant Margaret S.
Marean rejected this offer and stated she wanted the full
purchase price of $1, 750, 000.00 less the $300, 000.00
received for the portion of the property sold under the Joy
contract. (Pl.'s Add. S.M.F. ¶ 58.) Plaintiff also
alleges defendant Margaret S. Marean stated that she no
longer wanted to pay the costs associated with developing the
remaining portion of the property. (Pl.'s Add. S.M.F.
¶ 59.) Defendants deny that the Berkowitz offer was ever
presented to defendant Margaret S. Marean; she did not
respond that she wanted the full purchase price and to stop
paying the costs of developing the property because the offer
was never presented. (Defs.' Reply S.M.F. ¶¶
parties agree that in June 2016, plaintiff presented
defendant Margaret S. Marean with an offer to purchase the
remaining portion of the property for $1, 450, 000.00
including an earnest money deposit of $10, 000.00.
(Defs.' S.M.F. ¶¶ 17-18.) Pursuant to the
offer, closing would take place at the earlier of ninety days
following Town of Standish approvals for development of the
property, or eighteen months from the date of the contract.
(Defs.' S.M.F. ¶ 19.) The contract also entitled the
buyer to terminate the agreement if, during the due diligence
period, the buyer determined that conditions or circumstances
existed which rendered the premises unsuitable or
impracticable for the buyer's intended use. (Defs.'
S.M.F. ¶ 21.)
parties agree that this offer was rejected and that defendant
Margaret Marean signed and dated the offer next to
plaintiff's handwritten statement "I, Margaret S.
Marean reject the offer because I am taking the Property
of[f] the market." (Defs.' S.M.F. ¶¶
23-24.) (Pl.'s Reply S.M.F. ¶¶ 23-24.) There is
a dispute, however, as to whether defendant Margaret S.
Marean believed the property was already off the market and
whether she informed plaintiff, prior to his procurement of
the Berkowitz Offer, that she intended to take the property
off the market. (Pl.'s Add. S.M.F. ¶¶ 55, 66.);
(Defs.' Reply Add. S.M.F. ¶¶ 55, 66.)
Additionally, the parties dispute whether defendant Margaret
S. Marean discussed the possibility of raising the listed
sales price of the remaining portion of the property to $2,
000, 000.00 and reducing the broker's commission from 10%
to 5%. (Pl.'s Add. S.M.F. ¶ 69.); (Defs.' Reply
Add. S.M.F. ¶ 69.) There is no dispute that the
remaining portion of the property has not been sold.
(Defs.' S.M.F. ¶ 25.)
filed a complaint on October 18, 2016. In the complaint,
plaintiff alleged four causes of action: count I, enforcement
of lien; count II, breach of contract; count III, quantum
meruit; and count IV, unjust enrichment. Defendants filed an
answer and counterclaim on December 22, 2016. Plaintiff
answered the counterclaim on January 11, 2017. Defendants
filed their motion for summary judgment on August 9, 2017.
After the granting of an extension of time on August 30,
2017, plaintiff filed an opposition to defendants' motion
for summary judgement on September 11, 2017. Defendants filed
a reply on September 18, 2017.