Cote Corp. v. Kelley Earthworks, Inc.
| Decision Date | 17 July 2014 |
| Docket Number | Docket No. Ken–13–448. |
| Citation | 97 A.3d 127,2014 ME 93 |
| Parties | The COTE CORPORATION v. KELLEY EARTHWORKS, INC., et al. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
C.H. Spurling, Esq. (orally), Gardiner, for appellant Kelley Earthworks, Inc.
Theodore Small, Esq. (orally), Isaacson & Raymond, P.A., Lewiston, for appellee The Cote Corporation.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
[¶ 1] Kelley Earthworks, Inc. (Kelley), appeals, and The Cote Corporation (Cote) cross-appeals, from an amended summary judgment entered by the Superior Court (Kennebec County, Murphy, J.) awarding Cote a money judgment of $29,990, plus interest and attorney fees, in satisfaction of a mechanic's lien that the court found Cote held on Kelley's real property. Kelley contends that the court erred in (1) granting summary judgment to Cote after Kelley did not respond to either Cote's complaint or its motion for summary judgment; (2) awarding interest and attorney fees as part of the judgment; and (3) denying in part Kelley's motion for relief pursuant to M.R. Civ. P. 60(b), filed after the court entered a final judgment in favor of Cote. Cote, citing 10 M.R.S. § 3265 (2013), contends that the court erred in amending its original judgment by striking a provision ordering the sale of Kelley's real property to satisfy the mechanic's lien and instead awarding a money judgment. Because we agree that the court erred in striking the provision of its order requiring a sale of the property, we vacate the judgment and remand for entry of an order for the sale of at least a portion of Kelley's land.
[¶ 2] In June 2012, Cote filed a mechanic's lien in the Kennebec County Registry of Deeds against real property owned by Kelley. On August 9, Cote brought a complaint to enforce the lien against defendants Kelley and RC & Sons Paving, Inc. (RC), and party-in-interest Rent–It, Inc. Only Kelley is a party to this appeal.1 Kelley's clerk/registered agent was served with the complaint on August 30. The complaint alleged that Kelley leased land to RC, and that pursuant to a contract with RC, and with Kelley's consent, Cote constructed an asphalt plant on Kelley's land. It further alleged that Cote worked on the project through April 2012 but was not paid in full.
[¶ 3] Kelley did not respond to the complaint, and on November 9 the court entered its default. In January 2013, Cote moved for summary judgment and requested an order that Kelley's property be sold to satisfy the lien. Kelley did not respond to the motion, which the court granted on April 4. It entered judgment for Cote in the amount of $29,990, plus interest and attorney fees, and ordered that the property be sold to satisfy the judgment if it was not redeemed by Kelley within ninety days.
[¶ 4] On April 19, ten days after the judgment was entered on the docket, Kelley appeared for the first time and filed motions to set aside its default pursuant to M.R. Civ. P. 55(c) and for relief from the judgment pursuant to M.R. Civ. P. 60(b). Following a hearing, the court declined to set aside the default. It did, however, grant Kelley relief by treating its Rule 60(b) motion as a motion to alter or amend the judgment pursuant to M.R. Civ. P. 59(e), and striking its order to sell what Kelley represented was a property worth more than $1 million and awarding Cote a money judgment in its place.
[¶ 5] Kelley's appeal and Cote's cross-appeal followed.
[¶ 6] The statute governing the creation of a mechanic's lien provides, in the part relevant here, that
[w]hoever performs labor or furnishes labor or materials ... used in erecting, altering, moving or repairing a ... building or appurtenances ... by consent of the owner, has a lien thereon and on the land on which it stands and on any interest such owner has in the same, to secure payment thereof, with costs. If the owner of the building has no legal interest in the land on which the building is erected ... the lien attaches to the building, and ... may be enforced as provided.
[¶ 7] Kelley contends that the court erred in finding that on the summary judgment record there was no genuine issue of fact concerning three of section 3251's requirements, namely that (1) Cote built the asphalt plant with Kelley's consent; (2) RC, the owner of the plant, had a legal interest in the Kelley land on which it was constructed; and (3) concerning the measure of damages, that Kelley's property was improved by Cote's work.
[¶ 8] We will
review the grant of a summary judgment de novo, viewing the summary judgment record in the light most favorable to the nonprevailing party to determine whether it demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When, as here, the plaintiff has moved for summary judgment, the plaintiff has the burden to demonstrate that each element of its claim is established without dispute as to material fact within the summary judgment record.
Cach, LLC v. Kulas, 2011 ME 70 ¶ 8, 21 A.3d 1015 (quotation marks omitted). Even when the nonmoving party's response is inadequate, or, as here, nonexistent, the moving party has the burden to show why summary judgment is appropriate:
A moving party's factual assertions may not be deemed admitted because of an improper response unless those factual assertions are properly supported. As we have explained, a party who moves for a summary judgment must properly put the motion and, most importantly, the material facts before the court, or the motion will not be granted, regardless of the adequacy, or inadequacy, of the nonmoving party's response.
Id. ¶ 9 (alteration, citation, and quotation marks omitted).
[¶ 9] Cote's mechanic's lien stated that the work it performed was done with Kelley's knowledge and consent. Cote made the same assertion in its statement of material facts, and supported that statement with the affidavit of its controller, Daniel Gagne. The affidavit was not challenged, and the statement of material facts was uncontroverted and is thus deemed admitted. M.R. Civ. P. 56(h)(4). Accordingly, in entering a summary judgment for Cote, the court had a sufficient basis to find that Kelley consented and therefore “Cote is entitled to Judgment ... and is entitled to enforce its lien.” See Platz Assocs. v. Finley, 2009 ME 55, ¶ 24, 973 A.2d 743 ().
[¶ 10] Kelley argues that the summary judgment record contained insufficient evidence to establish that RC had a “legal interest in the land on which the building is erected,” 10 M.R.S. § 3251, a showing necessary to allow Cote's mechanic's lien to attach to the land and not just the asphalt plant itself. Kelley did not raise that argument in its Rule 60(b) motion in the trial court. Accordingly, it has waived the issue on appeal. See Thayer Corp. v. Me. Sch. Admin. Dist. 61, 2012 ME 37, ¶ 4 n. 4, 38 A.3d 1263.
[¶ 11] Even if it were not waived, the argument fails because Cote's uncontroverted statement of material facts, supported by the unchallenged Gagne affidavit, states that the site of the plant was “owned by Defendant Kelley ... and leased by RC.” Beyond the four corners of the summary judgment record, an affidavit executed by Peter Kelley, an officer of Kelley Earthworks, Inc., filed in support of Kelley's Rule 60(b) motion, states that “Kelley, Inc. entered into a lease with RC” and “[t]he lessee was to pay to Kelley Inc. rent of at least $80,000 per year.” Furthermore, the Rule 60(b) motion itself refers to “claimed acts of [Cote] on behalf of Kelley's lessee.” RC's leasehold interest is a sufficient “legal interest in the land” to support the court's judgment. 10 M.R.S. § 3251; see Benham v. Morton & Furbish Agency, 2007 ME 83, ¶ 17, 929 A.2d 471 ; Stewart v. Aldrich, 2002 ME 16, ¶ 14, 788 A.2d 603 (); Fischbach & Moore, Inc. v. Presteel Corp., 398 A.2d 397 (Me.1979) ().
[¶ 12] The uncontroverted statement of material facts states that Cote was owed $29,990 plus interest, costs, and attorney fees. The Gagne affidavit reflects that amount, and it includes as an exhibit copies of invoices from Cote to RC. The court, without comment, awarded Cote the amount that it requested in its entry of summary judgment and again in granting Kelley Rule 59(e) relief.2
[¶ 13] A bill for the cost of improvements is evidence, albeit not dispositive evidence, of enhanced value to the property owner. A.F.A.B., Inc. v. Town of Old Orchard Beach, 657 A.2d 323, 325 (Me.1995). Here, by failing to oppose Cote's motion for summary judgment, Kelley ensured that the invoices were the only evidence of damages. “Although an award must be supported by some evidence of the amount of loss, damages need not be proved to a mathematical certainty.” Graham v. Brown, 2011 ME 93, ¶ 12, 26 A.3d 823 (quotation marks omitted). The court did not err in relying on the only competent evidence of Cote's damages that was before it.
[¶ 14] Kelley contends that the court erred in denying it relief from summary judgment pursuant to Rule 60(b)3because Cote committed a fraud against the court in several representations it made in its statement of material facts and in supporting documents. We review the denial of Rule 60(b) relief for an...
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