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Berkowitz v. Marean

Superior Court of Maine, Cumberland

January 11, 2018

ELI BERKOWITZ, AS TRUSTEE OF TBFW TRUST, Plaintiff
v.
MARGARET S. MAREAN and ERLONH. MARFAN, Defendants and DENIS DANCOES, Party in Interest

          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 on plaintiff's complaint. For the following reasons, the motion is granted.

         FACTS[1]

         Defendant 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. ¶ 3.)

         On 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. ¶ 5.)

         The 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.)

         On May 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.)

         In his 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.)

         Mr. 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. ¶ 19.)

         PROCEDURE

         Plaintiff 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.

         STANDARD OF REVIEW

         Summary judgment is appropriate if the record reflects that there is no genuine issue of material fact and the movant is entitled to a ...


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