Whitten v. Greeley-Shaw, GREELEY-SHAW

• Decision Date: 19 February 1987
• Docket Number: GREELEY-SHAW
• Citation: 520 A.2d 1307
• Parties: George D. WHITTEN v. Shirley C.
• Court: Maine Supreme Court

Page 1307

520 A.2d 1307

George D. WHITTEN v. Shirley C. GREELEY-SHAW.

Supreme Judicial Court of Maine.

Argued Nov. 14, 1986.

Decided Feb. 19, 1987.

Kelly, Remmel & Zimmerman, Richard W. Mulhern (orally), Portland, for plaintiff.

Law Offices of George Carlton, Jr., William C. Leonard (orally), Bath, for defendant.

Before NICHOLS, ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

NICHOLS, Justice.

On appeal the Defendant, Shirley C. Greeley-Shaw, contends that the Superior Court (Cumberland County) committed error when it entered judgment against her upon a promissory note in favor of the Plaintiff, George D. Whitten, in a foreclosure action, and when the court refused to recognize a certain writing entered into by the parties as a valid contract, that writing being the basis of the Defendant's counterclaim.

We reject both of the Defendant's claims of error and deny the appeal.

The Defendant's first claim of error originates from the foreclosure action brought by the Plaintiff pursuant to 14 M.R.S.A. § 6321 et seq. (1980 & Supp.1986). As assignee of a promissory note secured by a mortgage deed of a home in Harpswell, he sought to foreclose due to the Defendant's failure to pay any portion of the $64,000.00 long since overdue him on the promissory note. The Defendant alleged that she was the owner of the home, that it was given to her by the Plaintiff as an incident of their four-year romantic relationship, and as assistance toward her efforts to start life anew with her fiancee. While the Defendant admits to having executed both the promissory note and the mortgage deed in favor of the Plaintiff's assignor, she argues that neither the Plaintiff, nor his attorney (who was the assignor), had informed her of what the documents were that she was signing, their legal significance, or that she would be responsible for annual payments on the note. She claims that it was not until a week later, when photocopying the documents, that she thoroughly examined them and realized their legal significance. Not until the foreclosure action was commenced, however, did she make known to the Plaintiff her misunderstanding.

The Plaintiff asserts that at all times the funds he advanced to the Defendant to purchase the home was in the form of a loan, and that both he and his attorney made this clear to the Defendant. He testified that he had encouraged her to purchase a home in Maine and that he originally had his attorney's name on the deed and note to save himself possible embarrassment.

While she alleges facts that might possibly give rise to claims of misrepresentation or breach of fiduciary duty, the Defendant does not expressly claim either ground for relief. Based upon evidence adduced at trial, that included the deposition of a second attorney who actually conducted the closing, there was ample evidence to support the finding of the Superior Court that the Defendant was aware of the nature of the documents and her legal responsibilities, and entered into the contract voluntarily. It is to no avail that the Defendant objects to the contents of a contract, that she admits she "barely looked at", despite having been given the opportunity, and indeed encouragement, to read. Great Northern Mfg. Co. v. Brown, 113 Me. 51, 92 A. 993 (1915); Maine Mutual Ins. Co. v. Hodgkins, 66 Me. 109 (1876).

Emerging as a counterclaim to the Plaintiff's foreclosure action is the Defendant's request that the court enforce the terms of a written "agreement" entered into by the parties. The parties had engaged in an intermittent extra-marital affair from 1972 until March, 1980. At the time of this writing the Plaintiff, a Massachusetts contractor, had travelled to his Bermuda home to vacation with friends, and expected to soon be joined there by his wife. The precise facts surrounding the creation of the agreement are in dispute. However, it is the testimony of the Defendant that she wanted to have "something in writing" because of all the past promises to her that she said the Plaintiff had broken. She testified that the Plaintiff told her, "You figure out what you want and I will sign it." She added that she unilaterally drew up the "agreement" while in Bermuda, and the Plaintiff signed it without objection. There was an original and a copy, and only he signed the original. ¹

On his part the Plaintiff testified that he had agreed to visit with the Defendant, who had come to his Bermuda home uninvited, because "[S]he demanded I see her or she would come up and raise hell with my friends" and embarrass him in front of his wife.

Basically, the "agreement" is a one-page typewritten...