Kirkham v. Hansen
| Decision Date | 18 December 1990 |
| Citation | 583 A.2d 1026 |
| Parties | Donald KIRKHAM et al. v. Richard HANSEN et al. |
| Court | Maine Supreme Court |
Ann M. Courtney (orally), Murray, Plumb & Murray, Portland, for plaintiff.
Peter Darvin (orally), Pine Tree Legal Assistance, Inc., Portland, for defendant.
Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD, COLLINS and BRODY, JJ.
Richard and Kathleen Hansen appeal from an order of the Superior Court (Cumberland County, Alexander, J.) granting summary judgment for Donald and Diane Kirkham on their complaint for foreclosure by civil action. The Hansens principally contend that summary judgment was precluded by genuine issues of material fact raised by their affirmative defenses of waiver and estoppel. Finding no merit in their arguments, we affirm the judgment.
The Hansens purchased a house in Portland from the Kirkhams on September 7, 1984. The sale was seller-financed by means of a promissory note that the Hansens executed and delivered to the Kirkhams along with a mortgage on the property as security for the note. The note provides:
If any monthly installment under this Note is not paid within fifteen (15) days of the due date, the entire principal amount outstanding and accrued interest and late charges thereon shall at once become due and payable without notice at the option of the Note holder. The Note holder may exercise this option to accelerate during any default by maker regardless of any prior forbearance. A late charge of five (5%) per cent of the overdue payment shall be due and payable with any delinquent payment.
(Emphasis added).
Although the Hansens made timely payments on the note for almost a year, they made twenty-seven late payments between July of 1985 and September of 1989. Five of these late payments, for July of 1985 and for February, June, August, and September of 1989, were made after the fifteen-day grace period. The Kirkhams did not exercise their option to accelerate the debt for any of these defaults.
When the Hansens defaulted again in October of 1989, however, the Kirkhams notified the Hansens that they were exercising their option to accelerate the debt. On January 19, 1990, the Kirkhams filed a complaint for foreclosure by civil action pursuant to 14 M.R.S.A. § 6321 (Supp.1990). The Hansens raised the affirmative defenses of waiver and estoppel, alleging that the course of dealing between the parties so modified the provisions of the note that the Kirkhams impliedly waived their right to accelerate the debt or, alternatively, should be estopped from exercising it. The court granted the Kirkhams' motion for summary judgment on their complaint after a hearing on May 30.
On appeal, the Hansens argue that the court erred in granting the motion because their affirmative defenses of waiver and estoppel raised genuine issues of material fact precluding summary judgment. We disagree.
In an appeal from a grant of summary judgment, we review the court's conclusions for errors of law. Philbrook v. Gates Formed-Fibre Prods., 536 A.2d 1118, 1119 (Me.1988). We examine the record independently to determine whether it supports the court's conclusion that there was no genuine issue as to any material fact and that the successful party was entitled to a judgment as a matter of law. Lidstone v. Green, 469 A.2d 843, 845 (Me.1983). In making that determination, "we view the evidence in the light most favorable to the party against whom the motion has been granted and accord that party the full benefit of all favorable inferences that may be drawn from the evidence." Id.
In order to withstand a motion for summary judgment, a party must respond by "setting forth specific facts showing that there is a genuine issue for trial." M.R.Civ.P. 56(e). For the Hansens to succeed on appeal, therefore, their affidavits must show a state of facts generating their affirmative defenses. See Depositors Trust Co. v. Herold, 458 A.2d 430, 431 (Me.1983). In their affidavits, the Hansens point to the Kirkhams' failure to demand a five percent late fee for payments made after the first but before the sixteenth of the month, despite the late fee provision in the note. They set forth those occasions where the Kirkhams failed to initiate action to accelerate...
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