STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKET NO. CV-16-104
APPLE VALLEY GOLF COURSE, ) INC. ) Plaintiff, ) ORDER ON DEFENDANT'S V. ) MOTIONS TO ENLARGE TIME AND ) FOR SUMMARY JUDGMENT APPLE VALLEY GOLFERS CLUB, ) INC. ) and ) JUN 26 '17 PM3:40 ) ANDRO SUPERIOR com LINDA KELLEY ) ) Defendants. )
Before the court, are Defendant Linda Kelley's motions for summary judgment, and for
the enlargement of time to file her reply to Plaintiff's objection to her summary
judgment motion. For the following reasons, this court denies her motions.
I. Background
On March 1, 2013, Plaintiff Apple Valley Golf Course, Inc. and Apple Valley Golf
Club, Inc. ("The Club") entered into an agreement whereby The Club would lease the
golf course, pro shop, and equipment, and operate food and beverage services. (Compl.
<[ 6.) Whether this lease also bound Defendant Linda Kelley, individually, is an issue of
the motion for summary judgment. (Supp.'g S.M.F. <[ 4.) On August 19, 2016 (amended
March 6, 2017), Plaintiff filed a complaint against The Club and Kelley for: (I) breach of
contract, (II) promissory estoppel, (III) quantum meruit, and (IV) unjust enrichment. In
March 2017, Plaintiff and the defendants jointly signed a Stipulation for Docket Entry
Granting Plaintiff Judgment in a forcible entry and detainer (FED) action. On March 9,
2017, Defendant Kelley filed a motion for summary judgment asking the court to
dismiss the claims against her individually, and on March 29, 2017, Plaintiff opposed.
1 of 6 On April 11, 2017, Defendant Kelley replied, and then on April 19, 2017, she filed a
motion to enlarge the time for that filing. On May 10, 2017, Plaintiff filed an opposition
to the motion for enlargement of time, and on May 17, 2017, Defendant Kelley replied.
II. Standard of review
a. Enlargement of time
The court, in its discretion, may allow an enlargement of time after the specified
period permitted for an act has passed where the failure to act was the result of
excusable neglect. M.R. Civ. P. 6(b)(2). The standard is a strict one, where the movant is
expected to show sufficient special facts to support that its failure to act within the time
prescribed should be excused. Portland v. Gemini Concerts, Inc., 481 A.2d 180, 182 (Me.
1984). Excusable neglect will be found only when there are extraordinary circumstances
that work an injustice. e.g. , Gregory v. City of Calais, 2001 ME 82, 9191 10-11, 771 A.2d 383.
b. Summary judgment
Summary judgment is appropriate, if based on the parties' statement of material
facts and the cited record, no genuine issue of material fact exists and the moving party
is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 2010 ME 20,
A. 2d 733; Dyer v. Dep't of Transport., 2008 ME 106,
material if it could potentially affect the outcome of the case." Reliance Nat'l Indem. v.
Knowles Indus. Servs., 2005 ME 29,
summary judgment, the court reviews the materials in the light most favorable to the
non-moving party. Dyer, 2008 ME 106,
the portions of the record referred to, and the material facts set forth in the [M.R. Civ. P.
56(h)] statements." F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115,
(internal quotation marks omitted). The party opposing a summary judgment must
2 of 6 point to specific facts showing that a factual dispute does exist in order to avoid a
summary judgment. Watt v. Unifirst Corp., 2009 ME 47,
II. Discussion
a. Motion for enlargement of time
Defendant Kelley argues that she committed excusable neglect because: (1) she
received notice by mail on March 31, 2017 of Plaintiff's March 29, 2017 filing; (2) notice
by mail would entitle her to reply by April 10 (7 days under M.R. Civ. P. 7(e) plus an
extra 3 days under M.R. Civ. P. 6(c)); and (3) she mistakenly calendared the due date as
April 11. (Def.'s Mot. for Enlargement of Time 1-2.) Furthermore, she argues that
Plaintiff suggested in a March 27, 2017 email they would not file an opposition to
Defendant Kelley's motion for summary judgment by the initial due date (March 29,
2017. (Def.'s Reply to Pl.'s Opp. To Def.'s Mot. for Enlargement of Time 1.)
Maine Rule of Civil Procedure 6(c) applies to service by mail, not to the filing of
pleadings, such that Defendant Kelley had five days (until April 5, 2017) after learning
of Plaintiff's filing to timely reply. The press of other business during that interval did
not absolve her from complying with procedural rules. Oppenheim v. Hutchinson, 2007
ME 73, CJI 3, 926 A.2d 177. She also could have requested extra time prior to the filing
deadline. M.R. Civ. P. 6(b )(1). Her misreading the rules, mis-calendaring, and failure to
proactively request additional time do not support a finding of excusable neglect.
b. Motion for summary judgment
1. Breach of contract
Defendant Kelley argues that the only contract was the lease signed between
Plaintiff and The Club. (Def.'s Mot. Summ. J. 1.) Plaintiff argues that Defendant Kelley
made personal guarantees, and that the FED judgment modified the lease to make her
personally liable. (Opp'n to Mot. Summ. J. 1-2.)
3 of 6 To demonstrate that parties had a legally binding contract, a plaintiff must
establish that there was a meeting of the minds between the parties-or "mutual[]
assent to be bound by all [the] material terms" of the contract. Tobin v. Barter, 2014 ME
51, Cf[ 9, 89 A.3d 1088; Sullivan v. Porter, 2004 ME 134, P 13, 861 A.2d 625. "The existence
of an agreement, involving as it does so intricately the conduct of the parties, is
appropriately a question for the trier of fact." Agway, Inc. v. Ernst, 394 A.2d 774, 777 (Me.
1978). Plaintiff asserts that Defendant Kelley made personal guarantees (committed
personal cash reserves to periods of negative cash flow) in discussions prior to the
signing of the lease, and that she did, indeed, pay debts from a personal account. (Opp.
Add'l S.M.F. 'iI 5; Opp. S.M.F. Cf[ 6); cf Smith v. Cannell, 1999 ME 19, 'iI 8, 723 A.2d 876.
Plaintiff asserts that the FED judgment, which was signed by both "Linda Kelley,
Defendant" and "Linda Kelley, President and Duly Authorized Agent for Apple Valley
Golfers Club Inc., Defendant," expressly amended the lease contract to make her
personally liable for unpaid rent, such that her personal failure to pay would be a
breach (Opp. S.M.F. Cf[ 3); cf Smith, 1999 ME 19, 'iI 8, 723 A.2d 876. Therefore, Plaintiff
has raised genuine issue of material fact whether Defendant Kelley's non-payment of
rent is a breach of contract.
2. Promissory estoppel
Defendant Kelley argues that the claim for promissory estoppel should fail
because the lease controlled all the interactions between the parties. (Def.' s Mot. Summ.
J.
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STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKET NO. CV-16-104
APPLE VALLEY GOLF COURSE, ) INC. ) Plaintiff, ) ORDER ON DEFENDANT'S V. ) MOTIONS TO ENLARGE TIME AND ) FOR SUMMARY JUDGMENT APPLE VALLEY GOLFERS CLUB, ) INC. ) and ) JUN 26 '17 PM3:40 ) ANDRO SUPERIOR com LINDA KELLEY ) ) Defendants. )
Before the court, are Defendant Linda Kelley's motions for summary judgment, and for
the enlargement of time to file her reply to Plaintiff's objection to her summary
judgment motion. For the following reasons, this court denies her motions.
I. Background
On March 1, 2013, Plaintiff Apple Valley Golf Course, Inc. and Apple Valley Golf
Club, Inc. ("The Club") entered into an agreement whereby The Club would lease the
golf course, pro shop, and equipment, and operate food and beverage services. (Compl.
<[ 6.) Whether this lease also bound Defendant Linda Kelley, individually, is an issue of
the motion for summary judgment. (Supp.'g S.M.F. <[ 4.) On August 19, 2016 (amended
March 6, 2017), Plaintiff filed a complaint against The Club and Kelley for: (I) breach of
contract, (II) promissory estoppel, (III) quantum meruit, and (IV) unjust enrichment. In
March 2017, Plaintiff and the defendants jointly signed a Stipulation for Docket Entry
Granting Plaintiff Judgment in a forcible entry and detainer (FED) action. On March 9,
2017, Defendant Kelley filed a motion for summary judgment asking the court to
dismiss the claims against her individually, and on March 29, 2017, Plaintiff opposed.
1 of 6 On April 11, 2017, Defendant Kelley replied, and then on April 19, 2017, she filed a
motion to enlarge the time for that filing. On May 10, 2017, Plaintiff filed an opposition
to the motion for enlargement of time, and on May 17, 2017, Defendant Kelley replied.
II. Standard of review
a. Enlargement of time
The court, in its discretion, may allow an enlargement of time after the specified
period permitted for an act has passed where the failure to act was the result of
excusable neglect. M.R. Civ. P. 6(b)(2). The standard is a strict one, where the movant is
expected to show sufficient special facts to support that its failure to act within the time
prescribed should be excused. Portland v. Gemini Concerts, Inc., 481 A.2d 180, 182 (Me.
1984). Excusable neglect will be found only when there are extraordinary circumstances
that work an injustice. e.g. , Gregory v. City of Calais, 2001 ME 82, 9191 10-11, 771 A.2d 383.
b. Summary judgment
Summary judgment is appropriate, if based on the parties' statement of material
facts and the cited record, no genuine issue of material fact exists and the moving party
is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 2010 ME 20,
A. 2d 733; Dyer v. Dep't of Transport., 2008 ME 106,
material if it could potentially affect the outcome of the case." Reliance Nat'l Indem. v.
Knowles Indus. Servs., 2005 ME 29,
summary judgment, the court reviews the materials in the light most favorable to the
non-moving party. Dyer, 2008 ME 106,
the portions of the record referred to, and the material facts set forth in the [M.R. Civ. P.
56(h)] statements." F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115,
(internal quotation marks omitted). The party opposing a summary judgment must
2 of 6 point to specific facts showing that a factual dispute does exist in order to avoid a
summary judgment. Watt v. Unifirst Corp., 2009 ME 47,
II. Discussion
a. Motion for enlargement of time
Defendant Kelley argues that she committed excusable neglect because: (1) she
received notice by mail on March 31, 2017 of Plaintiff's March 29, 2017 filing; (2) notice
by mail would entitle her to reply by April 10 (7 days under M.R. Civ. P. 7(e) plus an
extra 3 days under M.R. Civ. P. 6(c)); and (3) she mistakenly calendared the due date as
April 11. (Def.'s Mot. for Enlargement of Time 1-2.) Furthermore, she argues that
Plaintiff suggested in a March 27, 2017 email they would not file an opposition to
Defendant Kelley's motion for summary judgment by the initial due date (March 29,
2017. (Def.'s Reply to Pl.'s Opp. To Def.'s Mot. for Enlargement of Time 1.)
Maine Rule of Civil Procedure 6(c) applies to service by mail, not to the filing of
pleadings, such that Defendant Kelley had five days (until April 5, 2017) after learning
of Plaintiff's filing to timely reply. The press of other business during that interval did
not absolve her from complying with procedural rules. Oppenheim v. Hutchinson, 2007
ME 73, CJI 3, 926 A.2d 177. She also could have requested extra time prior to the filing
deadline. M.R. Civ. P. 6(b )(1). Her misreading the rules, mis-calendaring, and failure to
proactively request additional time do not support a finding of excusable neglect.
b. Motion for summary judgment
1. Breach of contract
Defendant Kelley argues that the only contract was the lease signed between
Plaintiff and The Club. (Def.'s Mot. Summ. J. 1.) Plaintiff argues that Defendant Kelley
made personal guarantees, and that the FED judgment modified the lease to make her
personally liable. (Opp'n to Mot. Summ. J. 1-2.)
3 of 6 To demonstrate that parties had a legally binding contract, a plaintiff must
establish that there was a meeting of the minds between the parties-or "mutual[]
assent to be bound by all [the] material terms" of the contract. Tobin v. Barter, 2014 ME
51, Cf[ 9, 89 A.3d 1088; Sullivan v. Porter, 2004 ME 134, P 13, 861 A.2d 625. "The existence
of an agreement, involving as it does so intricately the conduct of the parties, is
appropriately a question for the trier of fact." Agway, Inc. v. Ernst, 394 A.2d 774, 777 (Me.
1978). Plaintiff asserts that Defendant Kelley made personal guarantees (committed
personal cash reserves to periods of negative cash flow) in discussions prior to the
signing of the lease, and that she did, indeed, pay debts from a personal account. (Opp.
Add'l S.M.F. 'iI 5; Opp. S.M.F. Cf[ 6); cf Smith v. Cannell, 1999 ME 19, 'iI 8, 723 A.2d 876.
Plaintiff asserts that the FED judgment, which was signed by both "Linda Kelley,
Defendant" and "Linda Kelley, President and Duly Authorized Agent for Apple Valley
Golfers Club Inc., Defendant," expressly amended the lease contract to make her
personally liable for unpaid rent, such that her personal failure to pay would be a
breach (Opp. S.M.F. Cf[ 3); cf Smith, 1999 ME 19, 'iI 8, 723 A.2d 876. Therefore, Plaintiff
has raised genuine issue of material fact whether Defendant Kelley's non-payment of
rent is a breach of contract.
2. Promissory estoppel
Defendant Kelley argues that the claim for promissory estoppel should fail
because the lease controlled all the interactions between the parties. (Def.' s Mot. Summ.
J. 3.) The doctrine of promissory estoppel sets forth that a promisor can be bound if they should have reasonably expected their promise to induce action or forbearance, and the
promisee then relied on that promise to his subsequent detriment. Chapman v. Bomann,
381 A.2d 1123, 1127 (Me. 1978). Here, Plaintiff alleges that Defendant Kelley promised
to cover periods of negative cash flow with personal reserves, and that Plaintiff would
4 of 6 not have signed the lease without this personal guarantee. (Opp. Add'l S.M.F.
Therefore, Plaintiff has raised a genuine issue of material fact as to whether a Defendant
Kelley can be personally bound by promises she made that were reasonably relied upon
by Plaintiff now seeking, inter alia, unpaid rent.
3. Quantum meruit
Defendant Kelley argues that the claim for quantum meruit should fail because
the lease contract controlled all the interactions between the parties. (Def.'s Mot. Summ.
J. 3.) The doctrine of quantum meruit allows for recovery of a reasonable sum of money not stipulated in a legally enforceable contract, where: 1) services or materials were
rendered to the defendant by the plaintiff; (2) with the knowledge and consent of the
defendant; and (3) under circumstances that make it reasonable for the plaintiff to
expect payment. Smith v. Cannell, 1999 ME 19, '[ 12, 723 A.2d 876; Pafjhausen v. Balano,
1998 ME 47, '['[ 6-10, 708 A.2d 269. Here, Plaintiff alleges to have provided materials to
Defendant Kelley in the form of a golf course, buildings, and equipment. (Opp. Add'l
S.M.F.
Plaintiff about a lease agreement, which supports her consent to the provision of
materials, and that it was reasonable for Plaintiff to expect Defendant Kelley to pay for
these materials even if the corporation was not making money where she had allegedly
committed personal funds to the venture. (Opp. S.M.F. '[ 1; Opp. Add'l S.M.F. 'lI 5.)
Therefore, Plaintiff has raised a genuine dispute over material facts that would support
a claim for an implied contract under quantum meruit.
4. Unjust enrichment
Defendant Kelley argues that the claim for unjust enrichment should fail because
the claim duplicates the promises of the lease. (Def.'s Mot. Summ. J. 3.) Unjust
enrichment describes recovery for the value of the benefit retained when there is no
5 of 6 contractual relationship, but when, on the grounds of fairness and justice, the law
compels performance of a legal and moral duty to pay. Paffhausen v. Balano, 1998 ME 47,
'lI 6, 708 A.2d 269. Damages in unjust enrichment are measured by the value of what was inequitably retained. Id. 'lI 7. Here, as described above, there is a genuine dispute
over whether there was a contractual relationship between Plaintiff and Defendant
Kelley, and Plaintiff alleges that Defendant Kelley is personally responsible for rent in
return for the benefit of using the golf course. Therefore, Plaintiff has raised a genuine
dispute over material facts that would support a claim for unjust enrichment.
IV. Conclusion
Defendant Kelley's motions for enlargement of time and summary judgment are
DENIED.
The Clerk is directed to enter this Order on the civil docket by reference pursuant
to Maine Rule of Civil Procedure 79(a).
Date: June 26, 2017
6 of 6 APPLE VALLEY GOLF COURSE INC - PLAINTIFF SUPERIOR COURT ANDROSCOGGIN, ss. Attorney for: APPLE VALLEY GOLF COURSE INC Docket No AUBSC-CV-2016-00104 JASON DIONNE - RETAINED ISAACSON & RAYMOND 75 PARK STREET DOCKET RECORD PO BOX 891 LEWISTON ME 04243-0891
vs APPLE VALLEY GOLFERS CLUB INC - DEFENDANT
Attorney for: APPLE VALLEY GOLFERS CLUB INC JOHN CONWAY - RETAINED 09/08/2016 LINNELL CHOATE & WEBBER LLP 83 PLEASANT STREET PO BOX 190 AUBURN ME 04212-0190
LINDA KELLEY - DEFENDANT
Attorney for: LINDA KELLEY JOHN CONWAY - RETAINED 09/08/2016 LINNELL CHOATE & WEBBER LLP 83 PLEASANT STREET PO BOX 190 AUBURN ME 04212-0190
Filing Document: COMPLAINT Minor Case Type: CONTRACT Filing Date: 08/19/2016
Docket Events: 08/19/2016 FILING DOCUMENT - COMPLAINT FILED ON 08/19/2016
08/19/2016 Party(s): APPLE VALLEY GOLF COURSE INC ATTORNEY - RETAINED ENTERED ON 08/19/2016 Plaintiff's Attorney: JASON DIONNE
09/01/2016 Party(s): APPLE VALLEY GOLFERS CLUB INC SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 08/25/2016 APPLE VALEY GOLFERS CLUB THROUGH CAROL MONTANA
09/01/2016 Party(s): APPLE VALLEY GOLFERS CLUB INC SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 09/01/2016
09/01/2016 Party(s): LINDA KELLEY SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 08/22/2016 LINDA KELLEY
09/01/2016 Party(s): LINDA KELLEY SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 09/01/2016
09/13/2016 Party(s): APPLE VALLEY GOLFERS CLUB INC,LINDA KELLEY RESPONSIVE PLEADING - ANSWER & COUNTERCLAIM FILED ON 09/08/2016 Page 1 of 4 Printed on: 06/29/2017