Moosehead Mountain Resort, Inc. v. Carmen Rebozo Found.

• Decision Date: 08 April 2022
• Docket Number: Civil Action CV-21-0005
• Parties: MOOSEHEAD MOUNTAIN RESORT, INC., v. CARMEN REBOZO FOUNDATION, INC., Defendant. and OFLC, Inc., Plaintiffs
• Court: Maine Superior Court

MOOSEHEAD MOUNTAIN RESORT, INC., and OFLC, Inc., Plaintiffs
v.
CARMEN REBOZO FOUNDATION, INC., Defendant.

Civil Action No. CV-21-0005

Superior Court of Maine, Piscataquis

April 8, 2022

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

William Anderson, Justice Maine Superior Court

On June 25, 2021, Plaintiffs commenced this suit by filing a complaint raising six counts against Defendant including claims for breach of contract, unjust enrichment, breach of a duty of good faith and fair dealing, intentional misrepresentation, and negligent misrepresentation. Their dispute centers upon a $6,350,000 promissory note which plaintiff Moosehead Mountain Resort ("Moosehead") executed in 2007 along with a mortgage securing the note, both of which were subsequently assigned to Defendant. The matter before the Court now is Plaintiffs* motion for summary judgment concerning that note and mortgage, The motion seeks a partial judgment from die Court ordering: (1) "that Defendant may not collect default interest or attorney's fees under die note and mortgage;5' (2) "that the correct payoff [amount] as of November 30, 2021 is $4,079,856.75;" (3) that Plaintiff be awarded "$20,400 in fees and costs and such additional amounts as may be supported by affidavit;" and (4) that the Plaintiffs be granted some unspecified "further relief5 if doing

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so is just and proper. (Pl's Mot. Summ. J. 13.)^[1] As explained in the following sections of this Order, the Court denies the motion because it is apparent from the summary judgment record that genuine disputes of material fact exist pertaining to these matters.

L STANDARD OF REVIEW

Summary judgment is appropriate only when the moving party has shown that no genuine dispute exists concerning the material facts and that it is entitled to judgment as a matter of law, M.R. Civ. P. 56(c). A fact is "material" when it has the potential to affect the outcome of the case. Longee Consevancy v City Mortgage, Inc,, 2012 ME 103, ¶ 11, 48 A.3d 774. A "genuine issue of material fact exists when a fact-finder must choose between competing versions of the truth." Holmes, 2019 ME 84, ¶ 15, 208 A.3d 792. The facts in the summary judgment record are limited to those facts which are properly set forth in the parties' respective statements of fact. See e.g. Pusbard v. Riverview Psychiatric Ctr. 2020 ME 23, ¶ 4 m2, 224 A.3d 1239; Berry v MaineSteam Fin,' 2019 ME 27, ¶ 7, 202 A.3d 1195; Holmes v. E. Me Med, Ctr, 2019 ME 84, ¶ 14, 208 A.3d 792; M.R. Civ. P. 56(c), (h). The Court considers those facts in the light most favorable to the non-moving party. Cormier v. Genesis Heaithcaret LLC, 2015 ME 161, ¶ 7, 129 A.3d 944; Jenness v. Nickerson 637 A.2d 1152, 1154 (Me. 1994) ("|T]he party seeking the summary judgment has the burden of demonstrating clearly that there is no genuine issue of fact. Any doubt on this score will be resolved against him and die opposing party will be given die benefit of any inferences which might reasonably be drawn from the evidence.") (quoting 2 Field, McKusick &Wroth, Maine Civil Practice § 56.4 at 39 (2d ed. 1970)).

Where it is die plaintiff (i.e., the party who bears die ultimate burden of persuasion on die claim or defense at issue) who has moved for summary judgment, the plaintiff bears the burden of demonstrating "that each element of its claim is established without dispute as to material fact within

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the summary judgment record." N Star Capital Acquisition LLC v. Victor, 2009 ME 129, ¶ 8, 984 A.2d 1278; see also Cach, LLC v. Kulas, 2011 ME 70, ¶¶ 8-9, 21 A.3d 1015. If the plaintiff satisfies tills burden, die defendant, in order to avoid summary judgment, must come forward with specific facts demonstrating that a genuine, material, factual dispute exists for trial. M.R. Civ. P. 56(e); /WAT, 2011 ME 70, ¶¶ 8-9,21 A.3d 1015.

IL THE PARTIES' STATEMENTS OF FACT

A The Parties' Noncompliance e with the Procedure Specified in M,R, Civ, p. 56(h)

M.R. Civ. P. 56(h) sets forth a specific procedure governing how parties must present the facts of the case to the Court when a party moves for summary judgment, which the Court will briefly explain here. Under Rule 56(h)_> die moving party must support its motion for summary judgment by submitting a statement of material facts (S.M.F.) which in separate, numbered paragraphs, sets forth die moving party's factual assertions. M.R. Civ. P. 56(h)(1). To be considered, each factual assertion must be supported by a specific citation to competent evidentiary material. M.R. Civ. P. 56(h)(1), 560i)(4). The non-moving party must then respond by submitting an opposing statement of facts (O.S.M.F.), which responds to each of the moving party's factual assertions with an admission, qualification, or denial. M.R. Civ. P. 56(h)(2). Each responding paragraph of the O, S.M.F. must start with the designation "Admitted," "Denied," or "Qualified." Id If die responding paragraph begins with the designation "Admitted" die paragraph "shall end with such designation." Id If die non moving party wishes to qualify or deny a factual assertion, the party must do so by providing a specific record citation to competent evidentiary material supporting the qualification or denial. Id In each responding paragraph die party may always note any objections to die moving party's factual assertion according to die procedure provided in Rule 56(i). M.R. Civ. P, 5601) (2), 56(i). As part of its response,

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die non-moving party may also submit a separate statement of additional facts (S.A.F.), setting forth, with proper supporting record citations, the non-moving party's factual assertions regarding any additional matters that it believes are material to die matters at issue in the motion. M.R. Civ. P. 56(h)(2) If die moving party wishes to respond to the non-moving party's S.A.F. it must do so by filing a reply statement that follows the same procedure applicable to the non-moving party's O.S.M.E M.R. Civ. P. 56(11)(3), The Law Court has made it known that "(i]ti the unique setting of summary judgment, strict adherence to the Rule's requirements is necessary to ensure that die process is both predictable and just" Deutsche Bank Nat'l Tr. Co. v. Raggiani, 2009 ME 120, ¶ 7, 985 A.2d 1. Failure to comply with the procedure set forth in Rule 56 may result in serious consequences to a party's efforts in moving for or opposing summary judgment. See e.g. First Tracks Inns., LLC o. Murray, Plumb & Murray, 2015 ME 104, ¶¶ L3, 121 A.3d 1279; Stanley v Hancock Cty. Comm'rs, 2004 ME 157, ¶¶ 17-23, 864 A.2d 169; Doy/e v. Dep't of Human Servs., 2003 ME 61, ¶¶ 11-13, 824 A.2d 48; Lewie v. R.B.K Caly Corp., 2001 ME 77, ¶¶ 8-10, 770 A.2d 653.

The Rule 56(h) statements submitted by die parties on tills motion for partial summary judgment display a number of instances where die parties failed to adhere to the required procedure. Most notably, in their reply statement to Defendant's S.A.F., Plaintiffs failed to support any of their denials or qualifications with specific citations to evidentiary material. As an example, in many instances, Plaintiffs responded to Defendant's factual assertions with the text: "Qualified: Admitted to die extent supported by the record. See Plaintiffs [sic] Affidavit." (See e.g. Pl's Reply to Def.'s S.A.F. ¶¶ 1-8) This is not an effective qualification because, amongst other issues, die response does not contain a specific supporting citation, such as a reference to a page or paragraph number of a specific record document, and instead seems to invite die Court to examine die whole of Plaintiffs' principal multi-page supporting affidavit (i.e. Mr. Confalone's affidavit) to, on its own, find some facts width which to qualify the Defendant's assertion in some way. It is not the Court's role to assist Plaintiffs

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in the task of responding to Defendant's assertions. The Law Court's jurisprudence indicates that the Superior Court is not "permitted to independently search a record to find support for facts offered by a party/' Lemine, 2001 ME 77, ¶ 9, 770 A.2d 653. Even more importantly, the Law Court has further indicated that "(i]n the absence of specific record references, a proffered fact is not properly before the court" and that assertions in a Rule 56(h) statement of fact should be disregarded if not supported by a "specific citation" to competent evidentiary material. See id ("A statement of material facts must directly refer the court to die specific portions of the record from which each fact is drawn.") Because of Plaintiffs' failure to support their denials and qualifications with specific citations to evidentiary material, all of die factual assertions in Defendant's S.A.F. are deemed admitted to the extent the defendant's factual assertion was properly set forth and supported as required under Rule 56. See e.g. Doyle v. Dept of Haman Servs., 2003 ME 61, ¶¶ 11-13, 824 A.2d 48 (Because Doyle failed to follow the protocol set forth in Rule 56, many of DHS's material facts are not controverted and thus are properly deemed admitted."); Stanley v. Hancock Cty Comm'rs 2004 ME 157, ¶ 18, 864 A.2d 169; M.R. Civ. P. 56(h)(4) ("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted."). In turn, in the several instances where Defendant's O.S.M.F. designates a response to a factual assertion in Plaintiffs' S.M.F. with "Denied" or "Qualified" but fails to provide a specific record citation to support the response, the Court will deem the Plaintiffs' factual assertion as admitted to the extent the Plaintiffs' assertion was properly set forth and supported.

B. Summary of the Parties' Statements

The following paragraphs briefly summarize the matters presented in the parties' respective statements of fact.

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On June 20, 2007, Moose head entered into a transaction with Machias Savings Bank for a...