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Quasar Energy Group, LLC v. VGBLADS, LLC

Superior Court of Maine, Cumberland

October 11, 2018

QUASAR ENERGY GROUP, LLC, Plaintiff
v.
VGBLADS, LLC and VILLAGE GREEN BRUNSWICK LANDING, LLC, Defendants.

          ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          LANCE E. WALKER, JUSTICE

         Before the Court is Plaintiff quasar energy group, llc's motion for summary judgment. For the following reasons, Plaintiffs motion is granted.

         I. Background

         A. Procedural Background

         On June 12, 2018, Plaintiff filed its motion for summary judgment, requesting the Court enter judgment on a debt on a promissory note. Plaintiff supported its motion with the affidavit of Melvin Kurtz, the President of quasar energy group, lie (see Kurtz Aff.); a copy of the Note (Kurtz Aff. Ex. A); and a copy of the notice of default and demand for payment sent to Defendants (Kurtz Aff. Ex. B).

         On July 3, 2017, Defendants filed an opposition to Plaintiffs motion. Defendants argued summary judgment was inappropriate because the Note is not self-executing, and Plaintiffs failed to prove certain conditions precedent to execution of the Note. Specifically, the sole basis of Defendants' opposition was that Plaintiff failed to prove, as required pursuant to the terms of the Note, that 1) the money was loaned in the amount of $640, 000, 2) Defendants' senior lenders approved the loan, and 3) final completion of the project occurred under the contract. While most of Defendants' responses to Plaintiffs statements of material fact were qualified on this basis, Defendants admitted payment has not been made and did not submit any additional statements of material fact.

         On July 12, 2018, in order to address the deficiencies noted in Defendants' opposition, Plaintiff filed a reply and included a supplemental statement of material facts and a supplemental affidavit of Melvin Kurtz. Rather than file a substantive response, on July 31, 2018, Defendants filed a motion to strike Plaintiffs supplemental materials. On August 7, 2018, the Court issued an Order stating that Plaintiffs filing of supplemental materials would be treated as a motion to supplement in accordance with M.R. Civ. P. 56(e) and directing Defendants to file any opposition to Plaintiffs motion to supplement and any substantive response to the supplemental materials within ten days. On September 6, 2018, the Court granted Defendants an additional seven days to file a response.

         Defendants have not filed any further response to Plaintiffs reply to Defendants' opposition. Thus, each of Plaintiffs supplemental statements of material fact is deemed admitted. M.R. Civ. P. 56(h)(4). Because the deemed admissions fully address Defendants' objections to Plaintiffs original statement of material facts, the Court finds there is no genuine issue of material fact.

         B. Facts

         On or about April 30, 2015, Plaintiff and Defendants entered into a certain Engineering, Procurement and Construction Contract (the "EPC"), pursuant to which Plaintiff agreed to construct and install a new anaerobic digestion facility for Defendants (the "Project"), and Defendants agreed to pay Plaintiff the sum of $6, 400, 000 therefor. Plaintiff agreed that, upon completion of the Project, the retainage under the EPC, up to $640, 000 (the "EPC Balance"), could be paid over a period often years, subject to approval by Androscoggin Savings Bank and Coastal Enterprises, Inc., Defendants' senior secured lenders (the "Senior Lenders"). On April 29, 2015, the Senior Lenders executed an Intercreditor Agreement in which Plaintiff "committed to make a loan in the principal amount of up to $640, 000 (the 'Quasar Loan') to [Defendants] to finance in part a portion of the permanent financing for the Project," and the parties agreed that "the Quasar Loan will be made upon completion of construction by conversion of retainage due Quasar in the amount of $640, 000 to the Quasar Loan." (Kurtz Supp. Aff. at 2 & ¶ 5.) The parties consented to each other's loans and agreed not to challenge the enforceability of any of their respective loan documents. To evidence their obligation to pay the EPC Balance over ten years, Defendants executed and delivered to Plaintiff a Subordinate Secured Promissory Note dated April 30, 2015, in the amount of $640, 000 (the "Note").

         By email on April 14, 2016, Mikkel Levine, a representative of Defendants, forwarded to Plaintiff an email from Catherine Buffman of Androscoggin Bank indicating that final completion had occurred, requesting final lien waivers from Plaintiff and congratulating Defendants on the successful completion of the project. On June 1, 2016, Plaintiff submitted its final lien waiver. At the time of final completion of the Project, retainage under the EPC totaled $640, 000. Following completion of the Project, pursuant to the Intercreditor Agreement, the entire EPC balance was replaced by the Note.

         On July 25, 2016, Androscoggin Savings Bank, on behalf of Defendants, paid Plaintiff the sum of $21, 697.44 for past due interest under the Note. From August 1, 2016 through March 1, 2018, Defendants made all of the monthly payments of interest as required under the Note.

         An Event of Default (as defined in the Note) occurred by reason of the Defendants' failure to pay the installment due on April 1, 2018, which failure continued for twenty days after such due date. By letter dated April 20, 2018, Plaintiff notified Defendants that, by reason of the occurrence of the Event of Default, Plaintiff had exercised its right to accelerate the balance due under the ...


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