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Dancoes v. Marean

Superior Court of Maine, Cumberland

December 15, 2017

DENIS DANCOES, d/b/a THE DANCOES CO., Plaintiff
v.
MARGARET S. MAREAN and ERLON H. MAREAN, Defendants

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          NANCY MILLS, JUSTICE.

         Before 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.

         FACTS

         Defendant 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.)

         On July 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.)

         On 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.)

         The 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.)

         The 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.)

         In 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. ¶ 16.)

         In 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. ¶¶ 57-59.)

         Both 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.)

         Both 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.)

         Plaintiff filed a complaint on October 18, 2016.[1] 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.

         STANDARD ...


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