Bennett v. Lovell

• Court: Superior Court of Maine
• Decided: August 25, 2014
• Docket: YORcv-13-218
• Status: Unpublished

Opinion

£ ~ TERE D AUG 2 7 2014

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-13-218 fA F,..rDR-- o~-;zS-JY- JANE BENNETT, Plaintiff

V. ORDER

KENNETH LOVELL,

Defendant

Ms. Bennett has brought a five-count complaint alleging that Mr. Lovell

borrowed $50,000 from her pursuant to a loan agreement of August 10, 2006 and has

not paid the loan. She has moved for summary judgment. The motion has been

briefed and argued.

The loan agreement fully supports Ms. Bennett's claim that the transaction with

Mr. Lovell was a loan to be secured by land rather than a down payment on a home and

lot to be provided by Mr. Lovell as he claims. There appears to be no documentation

to support Mr. Lovell's claims. His affidavit, however, creates genuine issues of

material fact which preclude summary judgment despite the apparent weaknesses in

his claims and the fact that Ms. Bennett has not received her $50,000, a house or any

land.

I have read Brown Development Corporation v. Hemond, 2008 ME 146, 956 A.2d 104

which was cited by the plaintiff and Rogers v. Jackson, 2002 ME 140, 804 A.2d 379.

While the loan agreement between the parties states in paragraph 13 that it " ...

constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise" the more expansive Lovell versiOn of the

transaction arguably "supplements but does not contradict the writing "Brown at <][16

quoting Rogers at <][12. While I find much merit inJustice Alexander's dissent in Brown,

at <][20, the majority opinion suggests that the motion for summary judgment must be

denied. Also see Paine v. Paine, 458 A.2d 420, 421 (Me. 1983) where the Law Court

quoted the Restatement (Second) of Contracts for the proposition that, "Where the

parties to a written agreement agree orally that performance of the agreement is subject

to the occurrence of a stated condition, the agreement is not integrated with respect to

the oral condition."

The entry is:

Plaintiff's motion for summary judgment is denied.

Dated: August 25,2014

t?k(/ ;£_~ Paul A. Fritzsche Justice, Superior Court

2 CV-13-218

ATTORNEY FOR PLAINTIFF: PATRICK BEDARD ESQ LAW OFFICE BEDARD & BOBROW POBOX366 ELIOT ME 03903

ATTORNEY FOR DEFENDANT: JAMES B SMITH ESQ WOODMAN EDMANDS DANYLIK AUSTIN ET AL POBOX468 BIDDEFORD ME 04005