ORDER ON DEFENDANTS' MOTION FOR SUMMARY
the court is defendants Margaret S. Marean and Erlon H.
Marean's motion for summary judgment on plaintiff's
complaint. For the following reasons, the motion is granted.
Margaret S. Marean is the owner of real property located at
63 Ossipee Trail East (property) in Standish, Maine.
(Defs.' S.M.F. ¶ 2.) Plaintiff Eli Berkowitz is
Trustee of the TBF\V Trust. (Defs.' S.M.F. ¶ 1.)
Party-in-interest Dents Dancoes is a real estate broker with
a place of business in Falmouth, Maine. (Defs.' S.M.F.
August, 1, 2014, defendants executed and signed an exclusive
right to sell agreement (agency agreement) with Mr. Dancoes.
(Defs.' S.M.F. ¶ 4.) Pursuant to the agency
agreement, defendant Margaret S. Marean granted Mr. Dancoes
"the exclusive right to sell or lease the property at
the sales or lease price $1, 750, 000 as agreed between [Mrs.
Marean and Mr. Dancoes], or, any other price, terms, or
considerations, which [Mrs. Marean] may agree to."
(Defs.' S.M.F. ¶ 5.) The term of the agreement was
for two years ending on August 1, 2016. (Defs.'S.M.F.
agency agreement did not specify the amount of the deposit
that would be acceptable to defendant Margaret S. Marean or
what would happen to the deposit in the event of a default or
termination. (Defs.' S.M.F. ¶¶ 6-7.) The agency
agreement also did not specify whether defendant Margaret S.
Marean would accept an offer subject to conditions.
(Defs.' S.M.F. ¶ 8.)
5, 2015, defendant Margaret S. Marean sold a portion of the
property to Joy Real Estate LLC for $300, 000. (Defs.'
S.M.F. ¶ 12.) Plaintiff alleges that in June 2016, Mr.
Dancoes contacted plaintiff and stated that he was defendant
Margaret S. Marean's exclusive agent with authority to
sell the unsold portion of the property. (Defs.' S.M.F
¶ 13.) Plaintiff alleges that he agreed to purchase the
remaining portion of the property for $1, 450, 000.
(Defs.' S.M.F. ¶ 15.) Mr. Dancoes and plaintiff
prepared a purchase and sale agreement (purchase agreement)
for the property. (Defs.' S.M.F. ¶ 16.) The purchase
agreement contains provisions for a due diligence period,
during which plaintiff could elect to terminate the
agreement. (Defs.' S.M.F. ¶¶ 23-25.) The
closing was to take place within ninety days following the
Town of Standish approvals for development of the property or
eighteen months from the date of the purchase agreement.
(Defs.' S.M, F.¶ 21.)
September 27, 2017 affidavit submitted in this case, Mr.
Dancoes stated that he offered to sell the unsold portion of
the property to plaintiff, plaintiff accepted Mr.
Dancoes's offer, there was a meeting of the minds, and a
contract was formed. (Pl's Opp. S.M.F. ¶¶ 7,
11, 12.) In Mr. Dancoes's September 11, 2017 affidavit
submitted in his own case against defendants, Mr. Dancoes
stated he presented an offer from Mr. Berkowitz to
defendants. (Defs.' Reply to Add. S.M.F. ¶ 7;
Denis Dancoes d/b/a The Dancoes Co. v. Margaret S. Marean
and Erlon H. Marean, Docket No. CV-16-327, Cumberland
County Superior Court.)
Dancoes did not sign the purchase agreement. (Defs.'
S.M.F. ¶ 18.) The purchase agreement contains a written
notation stating, "I Margaret S. Marean reject this
offer." (Defs.' S.M.F. ¶ 19.) Defendant
Margaret S. Marean signed the purchase agreement at the
bottom and outside the signature block. (Defs.' S.M.F.
filed a complaint on November 15, 2016. In the complaint,
plaintiff alleges one count of breach of contract and seeks
an order of specific performance requiring the defendants to
sell the unsold portion of the property to plaintiff pursuant
to the purchase agreement. On December 7, 2016, defendants
filed a motion to dismiss. The court denied the motion on
February 3, 2017. On May 30, 2017, defendants filed a motion
for summary judgment. Pursuant to a scheduling order filed
October 11, 2017, plaintiff filed an objection to
defendants' motion on October 25, 2017. On November 2,
2017, defendants filed a reply to plaintiff's objection.
judgment is appropriate if the record reflects that there is
no genuine issue of material fact and the movant is entitled
to a ...