STATE OF MAINE SUPERIOR COURT
Cumberland, ss. STATE OF MAINE ' ' C' C:erk's omce curnber\ano, :, ;., . '
JOHN F. CHASE AUG 2, 2018 °i"· t) 3 o,..-· Plaintiff and Counterclaim Defendant RECE\VED
V. Docket No. CUMSC-CV-16-0433
BRUCE G. CHASE
Defendant and Counterclaim Plaintiff
and
JANET CHASE
Counterclaim Plaintiff
DECISION AND JUDGMENT
A bench trial on the counterclaim for unjust enrichment in this civil case was
held July 11-12, 2018, after which the parties submitted post-hearing briefs, at which
point the court took the case under advisement.
Procedural Background
This case originated with Plaintiff John Chase's complaint to enforce the
provision of a promissory note given to him by Defendant Bruce Chase that required
Bruce Chase to designate John Chase solely and irrevocably as the beneficiary of
certain life insurance policies insuring Bruce Chase's life.
In response to John Chase's complaint, Bruce Chase filed a counterclaim
against John Chase, and was joined as a counterclaim plain tiff by Janet Chase, Bruce
1 Chase's wife. See M.R. Civ. P. 20(a). Janet Chase and Bruce Chase's counterclaim
alleged that John Chase was liable to them for breaching an oral contract, the details
of which are set forth below. The counterclaim went through a couple of iterations,
the most recent of which is captioned New Amended Counterclaim.
John Chase moved for summary judgment in his favor on his complaint and
on Bruce and Janet Chase's New Amended Counterclaim. Bruce and Janet Chase
opposed John Chase's motion in all respects . In an order dated and docketed
December 15, 2017, the court granted John Chase's motion for summary judgment
as it related to his complaint, and granted his motion in part as it related to Bruce
and Janet Chase's New Amended Counterclaim for breach of express contract. See
Order on Plaintiffs Motion for Summary Judgment (Dec. 15, 2017).
The court denied John Chase's summary judgment motion to the extent Bruce
and Janet Chase were pursuing a claim for restitution based on unjust enrichment
and part performance of the alleged oral contract. It is those claims that went to
trial in July 2018.
Findings ofFact and Conclusions ofLaw
Based on the entire record, the court makes and adopts the following findings
of fact and conclusions oflaw, and renders judgment as set forth below.
1. Plaintiff and Counterclaim Defendant John Chase and Defendant and
Counterclaim Plaintiff Bruce Chase are brothers. John Chase is 53 years old; Bruce
Chase is 66 years old. Counterclaim Plaintiff Janet Chase is Bruce Chase's wife.
2 2. John Chase and Bruce Chase are both former police officers-John Chase
having been with the Westbrook Police Department and Bruce Chase with the
Portland Police Department.
S. While still employed with the Westbrook police, John Chase began a
construction business that eventually expanded to the point that he decided to leave
police work and devote himself full-time to the business, which is now known as
Chase Custom Homes and Finance, LLC ["Chase Custom Homes"]. John Chase
owns and operates several other businesses, including one called Auto Shine Car
Wash.
4. At all relevant times, John Chase has owned a residential property in
Naples, Maine. The property, known as Big Bear Point, consists of multiple acres
and has several substantial residences and other buildings, as well as significant
frontage on Long Lake. With limited exceptions, John Chase has resided at the Big
Bear Point property in recent years.
5. After leaving law enforcement, Bruce Chase became involved in the
property repair and maintenance field. He owned and operated a property
maintenance and handyman business in greater Portland for some years, until 2009.
One of his commercial customers was the Infinity Federal Credit Union. At some
point, Infinity retained a property management firm, Dirigo Management, to handle
property maintenance, and Bruce Chase continued, either as a Dirigo employee or as
an independent contractor.
3 6. Bruce Chase encouraged the management at Infinity to use John Chase's
construction business for construction and renovation project. However, John
Chase had developed his own associations with Infinity management. Although
Infinity hired John Chase's company to do well over a million dollars in construction
work over the years, the evidence did not show that Bruce Chase's recommendations
were the reason why John Chase's company got this business.
7. In ~woo, around the time Bruce and Janet Chase were married, Chase
Custom Homes built and sold them a new home on a residential building lot at 25
Chase Hill Road in Westbrook. As a wedding gift to Bruce and Janet Chase, John
Chase arranged for his company to sell the home to Bruce and Janet Chase at the
company's cost for constructing the residence, and did not charge Bruce and Janet
Chase for the cost of the lot. The price Bruce and Janet Chase paid for the property
was substantially less than the property's market value at the time of the purchase,
although the evidence was too conflicting for the court to set a value on the
difference.
8. To facilitate the closing, John Chase asked Bruce and Janet Chase to
execute a durable power of attorney in favor of John Chase's attorney, Richard
Abbondanza, Esq., and attorney Abbondanza handled the closing on behalf of Bruce
and Janet Chase. The power of attorney apparently was still in effect as of the time
of trial.
9. After Dirigo Management took over responsibility for property
management and maintenance at the Infinity Federal Credit Union, Bruce Chase
4 became increasingly dissatisfied with his work, and he often shared his
dissatisfaction with John Chase during their conversations.
10. On New Year's Eve in 2009, John Chase and his wife at the time, Sherry
Chase, and Bruce and Janet Chase all went to dinner at the DiMillo's restaurant in
Portland. Over dinner, John and Sherry Chase made what Bruce and Janet Chase
characterized as a "life-changing proposal." The parties agree that the proposal
covered the following material terms:
• Bruce Chase would leave his property repair and maintenance business and
Janet Chase would leave her job, which involved administrative work at
Mercy Hospital. Janet Chase was working about 32 hours per week at an
annual salary of $26,000.
• Bruce and Janet Chase would sell their home on Chase Hill Road, so that
they could move into a residence to be provided for them rent-free on the
Big Bear Point property in Naples. In recognition of the rent-free living
arrangement, the net proceeds of sale of Bruce and Janet Chase's home
would be turned over to John and Sherry Chase to help defray their costs
associated with the proposal.
• Bruce Chase would be responsible for maintenance of the Big Bear Point
property at an annual salary of $65,000 per year, which he told John was
what he had been earning in his business. 1 Janet Chase would work on
1 John Chase points out that Bruce and Janet Chase failed to turn over their tax return or returns for the 2009 tax year, and asks the court to infer that Bruce Chase was not earning as much as he claimed to
5 personal administrative tasks and projects for John and Sherry Chase at an
annual salary of $26,000, matching what she had been earning at her job
with Mercy Hospital.
• John Chase would pay for Bruce and Janet Chase's health msurance
coverage.
• Bruce and Janet Chase could stay at a Florida property owned by John
Chase for periods over the winter. It does not appear there was any
specific discussion about how often-or for how long-Bruce and Janet
Chase could stay at the Florida property.
11. Although the parties agree about the foregoing aspects of John and
Sherry Chase's proposal, they disagree about the duration of what John and Sherry
Chase were proposing to Bruce and Janet Chase.
12. Bruce and Janet Chase, with support in the testimony of Sherry Chase,
who has since been divorced from John Chase, contend that John Chase proposed for
them to live at the Big Bear Point property as long as they wished and that Bruce
Chase could continue to work and be compensated for maintenance work at least to
age 65 or until he could no longer do the work. Bruce and Janet Chase, again with
support from Sherry Chase, also contend that John Chase promised to pay for their
health insurance until they were both eligible for Medicare at age 65.
be. Bruce Chase did not substantiate his claim with tax returns or other corroboration of his earnings, so the court does not make an affirmative finding regarding his earnings as of 2009 and before.
6 13. John Chase, on the other hand, says he never promised that Bruce and
Janet Chase could live at the Big Bear Point property for as long as they wished, or
that Bruce Chase could work until age 65 or until he could no longer work. He also
denies committing to pay their health insurance to age 65. Instead, John Chase says
the commitments he made were to last only about five years-until the end of 2014,
when Bruce Chase would be eligible to take Social Security, 2 at which point he and
Janet Chase could move to Florida as they planned.
14. John and Sherry Chase agreed that Bruce and Janet Chase could have an
opportunity to consider the proposal before deciding. Within a short time after the
New Year's Eve dinner, Bruce and Janet Chase told John and Sherry Chase that they
would accept what they understood to be the proposal.
15. Neither the terms of John and Sherry Chase's proposal nor the terms of
Bruce and Janet Chase's acceptance were ever put in writing. None of the parties
offered any notes or other memorialization of the agreement. At one point, John
Chase said he would have attorney Abbondanza prepare a document reflecting the
agreement, but that never happened. Although the agreement was never put in
writing, the parties took steps to implement it.
16. Bruce and Janet Chase put their Chase Hill Road residence on the market.
When the property sold in June 2010 for $299,999, they turned over to John Chase
2 Bruce Chase was born in April 1952. See Plaintiffs Ex. 9 .
7 the entire proceeds of sale (after payment of a line of credit on the property and
closing costs), amounting to about $11.3,000. They did so willingly.
17. John Chase knew that Bruce Chase was unhappy in his work and believed
that Bruce and Janet Chase planned to relocate to Florida when Bruce Chase.
became eligible for Social Security. His intention was to furnish them with income
through employment and a place to live expense-free until they could move.
18. On the other hand, Sherry Chase supported Bruce and Janet Chase's claim
that John Chase promised they could live at Big Bear Point and would employ Bruce
Chase for as long as Bruce Chase was able to work and at least until age 65 .
Because there is nothing in writing, such an oral promise would be unenforceable in
contract for the reasons outlined in the summary judgment order in this case.
19. There is no evidence that John Chase intended to mislead Bruce and Janet
Chase. At least as to the duration element of their agreement, the parties never had
a true meeting of minds. Because there was a meeting of minds on the terms of the
agreement for the first few years, the different understandings did not emerge until
Bruce Chase turned 62, at which point John Chase considered his part of the
agreement to be at an end.
20. As promised, John and Sherry Chase arranged for Bruce and Janet Chase
to move into a large home near the lakefront on the Big Bear Point property. Bruce
and Janet Chase moved to a cottage at Big Bear Point in April 2010, while the home
they were to occupy was being constructed at .37 Big Bear Point. They moved into
the .37 Big Bear Point home in September 2010.
8 21. Bruce Chase closed his handyman and property maintenance business.
Janet Chase left her job at Mercy Hospital. Bruce Chase began handling
maintenance at the Big Bear Point property and Janet Chase began handling
personal administrative tasks for John and Sherry Chase.
22. One early change to the agreement was that after a few weeks or months,
John Chase became aware of issues or conflicts between Janet Chase and others in
the Chase Custom Homes office, decided to terminate Janet Chase's work and
discontinue paying her salary. Bruce and Janet Chase apparently went along with
this.
2.3. Otherwise, the agreement proceeded for several years along the lines of
what the parties had agreed on. Bruce and Janet Chase occupied a spacious and
comfortable home at the Big Bear Point property without having to pay rent or
property taxes, and John and Sherry Chase lived in another home on the property.
Bruce and Janet Chase stayed at the Florida property on several occasions for up to
months at a time.s John Chase paid Bruce Chase an annual salary of $65,000 for
handling the maintenance responsibilities at the Big Bear property, and covered the
cost of Bruce and Janet Chase's health insurance.
24. In or around 201.3, John and Sherry Chase separated. John Chase moved
away temporarily from the Big Bear Point property and Sherry continued to reside
there temporarily. John Chase told Bruce Chase that he should "do whatever Sherry
3 The longest stay of more than two months was the result of Bruce Chase telling John Chase that Bruce Chase was terminally ill, which later pra,ved to be a falsehood.
9 wants" in connection with the property. At one point, Sherry Chase wanted access
to a snow plow that was in a locked garage or storage building and she enlisted
Bruce Chase's help in cutting the lock and gaining access.
25. A divorce action between John and Sherry Chase ensued. At one point,
Bruce Chase agreed to submit an affidavit for use in the divorce case, in response to a
request from Sherry Chase's attorney. John Chase saw this as Bruce and Janet
Chase taking Sherry Chase's side in the divorce. At some point, Sherry Chase left
the Big Bear Point property and John Chase moved back.
26. Toward the end of 2014, consistent with his own understanding of the
agreement, John Chase discontinued paying Bruce Chase's salary because Bruce
Chase had become eligible to collect Social Security. As far as the record shows,
Bruce Chase accepted this without protest, which does call into question his
understanding of this aspect of the agreement.
27. However, Bruce and Janet Chase continued to live at 37 Big Bear Point.
28. In 2015, Bruce Chase was charged with a felony theft offense in the
Cumberland County Unified Criminal Docket. See Plaintiffs Ex. 9 (Judgment and
Commitment in State v. Bruce Chase, Me. Unified Crim. Dkt., No. CUMCD-CR-14
2833). He was accused of stealing nearly $160,000 from his sister-in-law, Penelope
Cobb. In May 2015, Bruce Chase pleaded guilty to two Class B charges of theft by
unauthorized taking. See id., see also 17-A M.R.S. § 353(1)(B)(l). Pursuant to the
plea agreement, he was sentenced to two years in prison with all but 60 days
10 suspended and two years of probation, and was ordered to pay restitution to
Penelope Cobb in the amount of$159,138.57 .
.29. Bruce and Janet Chase had no means of paying restitution, so John Chase
provided the necessary funds, which enabled Bruce Chase to make payment of
restitution in full on the day of sentencing, according to the Judgment and
Commitment. See Plaintiffs Ex. 9. Around the same time, John Chase paid
$51,.2.2.2. 7 3 in credit card debt owed by Bruce and Janet Chase. Bruce Chase admitted
to John Chase that many of the credit card accounts were opened by him in Janet
Chase's name without her knowledge. Bruce Chase had engaged in similar behavior
before, by opening credit card accounts in his daughter Amanda's name without her
knowledge.
30. Bruce Chase agreed to repay John Chase for amounts that John Chase had
advanced for restitution, Bruce Chase's legal fees and credit card debt. Bruce Chase
executed a promissory note in favor of John Chase in the amount of $.2.28,013.30.
The note is secured by several life insurance policies on Bruce Chase's life, and it
requires Bruce Chase to designate John Chase as irrevocable beneficiary and to make
all premium payments on the policies.
31. After getting out of jail in .2015, Bruce Chase returned to work for John
Chase, but the new arrangement did not last long. In early .2016, John Chase
terminated Bruce Chase's employment for what John Chase termed insubordination.
3.2. In April .2016, John Chase directed his attorney to send Bruce and Janet
Chase a letter notifying them that they were to vacate the 37 Big Bear Point
11 property within 30 days. They did so in May 2016. Although Bruce and Janet
Chase claimed to have been given so little time to move that they had to leave behind
a substantial quantity of their own property, they did not prove what was left or its
value, or that any demand for its return was ever made. Thus, they did not prove
their property claim and it is not discussed further.
33. John Chase brought this action against Bruce Chase in November 2016.
Bruce and Janet Chase brought a counterclaim and the court eventually designated
Janet Chase as an intervenor and counterclaim plaintiff aligned with Bruce Chase.
John Chase was granted summary judgment on the complaint and on most aspects of
the counterclaim. Bruce and Janet Chase's claim for restitution and unjust
enrichment was the only remaining aspect of the counterclaim.
34. However, most or all of the same evidence that would have been relevant
to a breach of express contract claim was presented at trial, because Bruce and Janet
Chase's restitution claim required them to prove, among other things, that they
conferred a benefit upon John Chase in reliance on his promises to them.
35. Having now heard that evidence, the court is even more firmly persuaded
than before that the agreement Bruce and Janet Chase claim was reached cannot be
enforced as an express contract or even in quantum meruit, not only because of the
Statute of Frauds, but also because there was no meeting of the minds on the
duration of the agreement.
36. Moreover, Bruce and Janet Chase cannot rely on the part performance
doctrine to prove their claim. The dispute in this case has to do with the duration of
12 the agreement; the parties were in agreement on what the agreement entailed during
its initial years. Thus, the fact that Bruce and Janet Chase partly performed their
side of the agreement, as did John Chase his side, does not shed any light or raise an
estoppel regarding the duration of the agreement.
37. Also, perhaps because the fact that an employee starts work does not bear
on whether there was a contract of employment for more than one year, the Law
Court has disapproved the part performance doctrine as a means of circumventing
the Statute of Frauds in the context of employment and services contracts. See
Stearns v. Emery-Waterhouse Co., 596 A.2d 72, 75 (Me. 1991) ("[W]e reject the part
performance doctrine as an avenue for avoidance of the statute of frauds in the
employment context"); Eckenrode v. Heritage Management Corp., 480 A.2d 759, 762
(Me. 1984) ("It is the general rule in cases involving oral contracts for services not to
be performed within one year that part performance by the party claiming breach
will not suffice to bar the application of the statute of frauds.") 4
38. The elements of a claim for unjust enrichment are:
[(1)] a benefit conferred upon the defendant by the plaintiff; [(2)] an appreciation or knowledge by the defendant of the benefit; and [(3)] the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.
Aladdin Elec. Assocs. v. Town ef Old Orchard Beach, 645 A.2d 1142, 1144 (Me. 1994).
+ The Stearns decision indicated that "equitable estoppel, based upon a promisor's fraudulent conduct, can avoid application of the statute of frauds and that this principle applies to a fraudulent promise of employment." 596 A.2d at 75. However, no claim of fraud was pleaded or proved in this case.
13 39. Bruce and Janet Chase conferred benefits on John Chase in three ways.
They rendered services to him and his businesses. They turned over to him the
$113,000 from the proceeds of the sale of their Chase Hill Road home. Bruce Chase
turned over to John Chase the proceeds from the sale of a truck.
40. Although Bruce and Janet Chase claimed to have conferred a benefit on
John Chase in additional ways, the evidence did not bear out that claim. For
example, Bruce Chase failed to prove that he conferred a financial benefit on John
Chase by recommending John Chase's business to Infinity Federal Credit Union.
Although John Chase's business did derive significant revenue from doing business
with Infinity Federal Credit Union, the evidence did not show that this benefit was a
result of Bruce Chase's recommendations as opposed to John Chase's own
relationships with the management of the Credit Union.
41. Regarding the three forms of benefit that Bruce and Janet Chase did
confer, these benefits clearly meet the first two above enumerated elements, in that
the services rendered and the funds turned over clearly represented a benefit and
John Chase knowingly accepted the benefit.
42. It is the third element that is in question. Although John Chase did
accept and retain the benefit of the sale proceeds from the Chase Hill Road property
and the truck, and accepted and retained the benefit of the services of Bruce and
Janet Chase, the question is whether, given the benefits he conferred upon Bruce and
Janet Chase in carrying out his side of the agreement over time, he should be
compelled to return any of what they turned over to him.
14 43. As to the services rendered by Bruce and Janet Chase, the fact that they
were fully compensated at the agreed-on rate for all of the services they rendered
means that John Chase was not unjustly enriched. Bruce and Janet both testified
that they rendered services for which they were not compensated, but the court does
not find that they conferred any cognizable benefit through their services for which
they were not compensated. There is no justification for requiring John Chase to
pay more for Bruce and Janet Chase's services than he already has paid, either
directly or through the businesses he owns and operates. 5
44. As to the proceeds of sale of the truck, John Chase arranged for his
business to sell Bruce Chase the truck for $1.00, so there is no basis for requiring
John Chase to make restitution for the sales proceeds that Bruce Chase later turned
over to him. John Chase was simply getting back what he had previously given, and
Bruce Chase had the benefit of the use of the truck in the meantime. Thus, there
was no net benefit to John Chase from the $5,000 in sales proceeds that he received.
45. The third benefit that Bruce and Janet Chase conferred upon John
Chase-the $113,000 in sales proceeds--merits more discussion. 6 A starting point is
to note that John Chase's retention of the $113,000 in sales proceeds cannot be
viewed in isolation, because it represented just one component of an agreement that
5 The evidence indicated that most of the benefits paid to Bruce and Janet Chase were not paid by John Chase individually but by businesses he owns. It was not disputed that the payments made by his businesses for the benefit of Bruce and Janet Chase were arranged and conferred by John Chase.
6 John Chase in his proposed findings contends that Bruce Chase waived any claim to return of the proceeds during his testimony. The court does not view that testimony as a waiver of Bruce and Janet Chase's unjust enrichment claim.
15 covered a six-year span and that saw Bruce and Janet Chase accept and retain
multiple benefits conferred upon them by John Chase. See RESTATEMENT (THIRD)
OF RESTITUTION AND UNJUST ENRICHMENT§ 62 (2011) ("Even if the claimant has
conferred a benefit that results in the unjust enrichment of the recipient when
viewed in isolation, the recipient may defend by showing that some or all of the
benefit conferred did not unjustly enrich the recipient when the challenged
transaction is viewed in the context of the parties' further obligations to each other.")
46. John Chase's evidence presented and quantified in exhaustive detail the
various benefits John Chase conferred upon Bruce and Janet Chase.
47. However, Bruce Chase's and Janet Chase's services .to John Chase and the
salaries Bruce Chase and Janet Chase received in exchange for those services are not
part of the calculation of the net benefit to each party, because the value of the
services was offset by the value of the compensation paid for the services. Also
excluded is the amount John Chase advanced in 2016 to cover Bruce Chase's
restitution obligation and attorney fees and to pay off Bruce and Janet Chase's credit
card debt, because those advances are covered in the promissory note Bruce Chase
executed in John Chase's favor. The promissory note itself represents a benefit to
Bruce Chase because the note is not payable until Bruce Chase's death, although the
interest rate on principal is substantial.
48. The benefits John Chase conferred upon Bruce and Janet Chase and their
values include:
16 • He gave them the lot on which their Chase Hill Road house was built and
sold them the residence at his company's cost to build it. The value of
this benefit was substantial but not quantifiable.
• He provided them with free housing for more than five years in the
lakeside home on Big Bear Point that now rents for $2,000 a month. The
value of this benefit, which took the form of housing costs not incurred,
and which should have enabled Bruce and Janet Chase to accumulate
savings, was $120,000-more than the value of the $113,000 in sales
proceeds they turned over to John Chase.
• He arranged for payment of their health msurance. The value of this
benefit was $45,880.
• He arranged for his company to sell a truck to Bruce Chase for $1.00 and
later made another truck worth $40,000 available for Bruce Chase's use.
The value of this benefit cannot be quantified on the basis of the evidence.
• He gave Bruce and Janet Chase access to his Florida residence for weeks or
months at a time. The value of this benefit was substantial but cannot be
quantified based on the evidence.
49. All of the foregoing benefits are appropriately considered in the context
of Bruce and Janet Chase's unjust enrichment claim, either because they involve the
same property from the sale of which they turned over the $113,000 in proceeds, or
17 because they involve John Chase's side of the same agreement that gives rise to the
unjust enrichment claim.
50. The total value of the benefit that John Chase conferred on Bruce and
Janet Chase as part of his side of the agreement with them cannot be exactly
quantified, but it was substantially in excess of the value of the $113,000 benefit that
Bruce and Janet Chase conferred upon John Chase as part of their side of the
agreement. (As noted above, the value of Bruce and Janet Chase's services is not
counted because it was fully offset by the value of the compensation paid to them for
those services).
51. Between Bruce Chase's pension and the salary he was paid, and in light of
the fact that their health insurance, their housing and their Florida vacations did not
cost them anything, Bruce and Janet Chase could and should have been able to save
well over $113,000 during the five plus years they lived at Big Bear Point.
52. The record does not show or explain what happened to all the money that
passed through Bruce Chase's hands during the 2010-16 period, in the form of his
salary, his pension and the money he stole from his sister-in-law. The total amount
unaccounted for is between a half million dollars and three quarters of a million
dollars. The explanation that John Chase offers for where all that money went
that Bruce Chase gambled it away-was not corroborated in the evidence, but what
did happen to it is not explained.
5S. Considering all circumstances, the court finds and concludes that John
Chase has not been enriched, much less unjustly enriched, at the expense of Bruce
18 and Janet Chase. Accordingly, the court concludes that Bruce and Janet Chase are
not entitled to restitution for unjust enrichment.
54. These findings and conclusions make it unnecessary to address Plaintiff
John Chase's other arguments.
Conclusion
IT rs HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
I. Judgment is rendered in favor of Plaintiff John Chase against Defendant
Bruce Chase on the Complaint. Plaintiff shall prepare and forward to Defendant
Bruce Chase irrevocable designations of beneficiary for the life insurance policies
listed in the complaint. If the irrevocable beneficiary forms provided are not
executed and returned to Plaintiff within SO days of when the judgment becomes
final, the court will enter a motion under M.R. Civ. P. 60(b) to alter the judgment by
means of an appointment of another person to execute the designations on behalf of
the Defendant. See M.R. Civ. P. 70.
2. Judgment on the Counterclaim is awarded to Plaintiff John Chase.
Plaintiff's oral motion for judgment made at the close of trial is dismissed as moot in
light of this Decision and Judgment. See M.R. Civ. P. 50.
S. Plaintiff is awarded his costs as the prevailing party.
This is a final, appealable judgment for purposes of the Maine Rules of
Civil Procedure and the Maine Rules of Appellate Procedure.
19 Pursuant to M.R. Civ. P. 79( a), the clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated August 20, 2018 A. M . Horton, Justice
Entered on the Docket: ~ ·. 2-<: i·i
20 John F. Chase vs. Bruce G. Chase, et al. PORSC-CV-2016-0433
Plaintiff's Counsel:
Gene Libby, Esq .
Tyler Smith, Esq .
Libby O'Brien Kingsley & Champion
Defs' Counsel:
Sheilah Mclaughlin, Esq.
Law Office of Sheilah Mclaughlin STATE OF MAINE SUPERIOR COURT
Cumberland, ss.
JOHN F. CHASE
Plaintiff and Counterclaim Defendant
Defendant and Counterclaim Plaintiff STATE OF MAINE and Cumberland ~~ Clerk's Office G.:i... ... ,} tu 1/ JANET CHASE
Counterclaim Plaintiff RECEIVEo ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This case is before the court in connection with Plaintiff John F . Chase's
Motion for Summary Judgment on All Pending Claims. Defendant and
Counterclaim Plaintiff Bruce G. Chase and Counterclaim Plaintiff Janet Chase have
filed a response, titled Answer to Motion for Summary Judgment, but have not filed
any signed opposing affidavits or any statement in response to Plaintiffs statement
of material facts.
The court elects to decide Plaintiffs Motion without oral argument. See M.R.
Civ. P. 7(b)(7). Based on the entire record and for the reasons set forth herein, the
Plaintiffs Motion is hereby granted in part.
1 Background
The underlying facts can be summarized as follows:
Plaintiff John F. Chase and Defendant/Counterclaim Plaintiff Bruce G. Chase
are brothers. Counterclaim Plaintiff Janet Chase is Bruce Chase's spouse.
In 2015, Bruce Chase was convicted of a felony theft charge for
misappropriating about $159,000. John Chase paid restitution of $159,000 on behalf
of his brother and also paid off about $58,000 of credit card debt owed by Bruce and
Janet Chase. In consideration for the payments made by John Chase on his and his
wife's behalf, Bruce Chase executed a Secured Promissory Note dated May 1, 2015
for the principal amount of $228, 01.3 ..30, with interest at 8% annually. The Note
recites that payment is due only upon Bruce Chase's death, and it is secured by four
life insurance policies covering Bruce Chase as the named insured:
Primerica Insurance policy no. 0421 725562
Maine Public Employees Retirement System Group Life Policy
CMFG Life Insurance Company Group Accidental Death Insurance Policy, Credit Union No. 018-0005-0, Certificate No. G2490467
Portland Maine Police Department Federal Credit Union, Association No. 018-0082-7, Certificate No. A4646809
The Note requires Bruce Chase to "immediately execute Beneficiary
Designations which shall designate John F. Chase as the sole and irrevocable
beneficiary of the above-named policies." The Note also requires Bruce Chase to
make timely payment of all premiums due on the policies, and provides that, if John
2 Chase pays any premium, the amount paid will be added to the total principal due,
with interest at 8%.
The Note contains a merger prov1s1on: "This Note sets forth the entire
understanding of the Borrower and Lender with respect to the subject matter hereof
and supersedes any prior agreement, representations or understandings related to
the same."
John Chase's Complaint alleges that Bruce Chase has failed to execute the
irrevocable designations of John Chase as beneficiary, as required by the Note. His
Complaint alleges breach of contract and seeks specific performance and injunctive
relief-a judgment requiring Bruce Chase to execute the designations and enjoining
him from making any further changes in beneficiary on the four policies.
Bruce Chase responded to the Complaint with an answer and counterclaim,
and his wife, Janet Chase, joined the action as a counterclaim plaintiff. Their New
Amended Counterclaim alleges that John Chase is in breach of an agreement that he
and Bruce and Janet Chase reached in 2009, with the following material terms:
• John Chase would provide Bruce and Janet Chase with housing in Naples,
Maine, at no cost, for as long as they wished to live there;
• Bruce and Janet Chase would sell their home and turn over the proceeds to
John Chase and move to the Naples property
• John Chase would employ Bruce Chase for as long as Bruce could work, and
would employ Janet Chase to age 62
3 • John Chase would pay the cost of health insurance for Bruce and Janet Chase
until they turned 65
• John Chase would provide accommodations in Florida for Bruce and Janet
Chase during the winter months, at no cost to them
Bruce and Janet Chase's New Amended Counterclaim asserts that they
fulfilled their side of the agreement, but that John Chase has breached his side of it.
It asserts that John Chase is liable to Bruce and Janet Chase on grounds of
promissory estoppel and unjust enrichment, and also seeks damages for breach of the
agreement and for emotional distress.
For purposes of his Motion, John Chase has not disputed Brµce and Janet
Chase's characterization of the agreement they say he made with them, although his
memorandum notes that he denies that there was any such agreement.
Standard of Review
"The function of a summary judgment is to permit a court, prior to trial, to
determine whether there exists a triable issue of fact or whether the question[s]
before the court [are] solely ... of law." Bouchard v. American Orthodontics, 661 A.2d
1143, 44 (Me. 1995).
"[S]ummary judgment 1s appropriate when the portions of the record
referenced in the statements of material fact disclose no genuine issues of material
fact and reveal that one party is entitled to judgment as a matter of law." Currie v.
Indus. Sec., Inc., 2007 ME 12, , 11, 915 A.2d 400. "A material fact is one that can
4 affect the outcome of the case, and a genuine issue exists when there is sufficient
evidence for a fact finder to choose between competing versions of the fact." Lougee
Conservancy v. Ciry-Mortgage, Inc., 2012 ME 103, ~ 11, 48 A.3d 774 (quotation
omitted).
The Maine Rules of Civil Procedure prescribe the materials that both the
party moving for summary judgment and the party opposing the motion must file.
A party moving for summary judgment must file a statement of material facts with
citations to the portions of the record relied on in the statement. See M.R. Civ. P.
56(h)(l). A party opposing a motion for summary judgment must file a responsive
statement that admits, denies or qualifies each of the facts set forth in the moving
party's statement. See M.R. Civ. P. 56(h)(2).
The moving party in this case, John F. Chase, has filed a motion and
statement of material facts in compliance with the rule. The factual assertions in his
statement of material facts are supported, in each instance, by citations to the record,
primarily to the transcript of the deposition upon oral examination of Bruce Chase,
which was filed with the Motion. John Chase has not filed his own or any other
affidavit in support of the Motion.
However, the opposing parties, Bruce and Janet Chase, have not submitted a
statement of material facts in compliance with the rule. Although they are
representing themselves pro se, the law is clear that pro se litigants are held to the
same standards as litigants represented by counsel, and are not afforded any special
5 consideration or excuse because they are appearing prose. See Estate of Turcic, 2017
ME 118, ~ 5, 164 A.3d 134, citing Richards v. Bruce, 1997 ME 61, ~ 8,691 A.2d 1223.
Bruce and Janet Chase's failure to file an opposing statement of material facts
does not necessarily mean that John Chase's Motion for Summary Judgment must be
granted. However, it does mean that they are deemed to have admitted the properly
supported and admissible material facts contained in the statement of material facts
filed with the Motion for Summary Judgment. See Prescott v. State Tax Assessor, 1998
ME 250, ~ 6, 721 A.2d 169.
The record references contained in John Chase's statement of material facts
are mostly to the deposition testimony of Bruce Chase. Bruce Chase's testimony is
admissible against him under M.R. Evid. 80l(d) (admissions of a party opponent),
and is admissible as to Janet Chase to the extent it is relevant and based on personal
knowledge rather than hearsay.
Analysis
This analysis first examines whether Plaintiff John Chase has shown that he is
entitled to summary judgment on the claim set forth in his Complaint, and then
turns to whether he is entitled to summary judgment on Bruce and Janet Chase's
New Amended Counterclaim.
I. Plaintiff John Chase's Claim
The Complaint in this case contends that Bruce Chase has failed to designate
John Chase as the beneficiary on at least three of the four life insurance policies listed
in the Note. John Chase's memorandum notes that he has been advised that Bruce
6 Chase has designated him as beneficiary on the CMFG policy, but John Chase asks
that Bruce Chase be enjoined from attempting to alter or undo that designation.
The Note unambiguously requires Bruce Chase to execute irrevocable
designations ofJohn Chase as beneficiary on the four listed policies. The undisputed
facts also indicate that John Chase is not currently designated as beneficiary on three
of the four. The reason why he is not may be in dispute-Bruce Chase claims it is
because John Chase's attorney did not handle the designation paperwork correctly.
On the other hand, is also undisputed that Bruce refuses to correct the problem and
designate John Chase as beneficiary.
As justification for his refusal, Bruce Chase cites to John Chase's breach of the
agreement that is the subject of Bruce and Janet Chase's New Amended
Counterclaim. However, that argument is barred by the merger provision in the
Note. By executing the Note, Bruce Chase agreed that the Note superseded all prior
agreements and contained the entire understanding of the parties relating to the
Note.
Nothing in the Note allows Bruce Chase to refuse to designate John Chase as
beneficiary if John Chase were in breach of an agreement that Bruce and Janet Chase
say was made six years before Bruce Chase signed the Note. Moreover, it appears
that, as of when he signed the Note on May 1, 2015, Bruce Chase already knew that
John Chase was not acting in accordance with the agreement that Bruce and Janet
Chase claim he had made back in 2009. Accordingly, any breach by John Chase of
the alleged agreement that is the basis for the New Amended Counterclaim does not
7 justify Bruce Chase in refusing to execute an irrevocable designation of John Chase
as sole beneficiary of the four policies.
Even if the changes in beneficiary did not go through because John Chase's
attorney did not handle the paperwork properly, it is undisputed that John Chase has
not been named as beneficiary on three of the four policies. 1
For these reasons, John Chase's Motion for Summary Judgment will be
granted as to the claims in his Complaint.
2. The New Amended Counterclaim
The sole basis recited in Plaintiff John Chase's memorandum in support of his
Motion for Summary Judgment is that the agreement alleged in the New Amended
Counterclaim is barred by the Statute of Frauds. See SS M.R.S. 51. The statute
provides, in part:
No action shall be maintained in any of the following cases:
4. Contract for sale of land. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them;
5. Agreement not to be performed within one year. Upon any agreement that is not to be performed within one year from the making thereof;
unless the promise, contract or agreement on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise.
1 John Chase is apparently not seeking any damages for Bruce Chase's delay in executing the designations, so the reason for any originally executed designation not taking effect is irrelevant.
8 John Chase contends that the agreement alleged in the New Amended
Counterclaim is subject to the Statute of Frauds because it could not be
performed within one year and because it involves an interest in real property.
He also notes that Bruce and Janet Chase have not established that the alleged
agreement was documented or memorialized.
The agreement that Bruce and Janet Chase say they made with John
Chase in 2009 clearly could not be fully performed within one year, and it also
relates to interests in real estate, so it falls within the Statute of Frauds.
However, one aspect of the New Amended Counterclaim that John Chase's
filing does not address is the contention-described in detail by Bruce Chase at his
deposition-that he and Janet Chase have performed their side of the agreement, by
leaving their jobs, selling their home and turning the sales proceeds over to John
Chase, in reliance on the agreement. Part performance of an oral contract that
would be subject to the Statute of Frauds can give rise to promissory estoppel. See
Sullivan v. Porter, 2004 ME 134, tJtJ 10-11, 861 A.2d 625. In Sullivan, the Law Court
defined the burden of persuasion when a party seeks to enforce an oral contract that
the Statute of Frauds requires to be in writing:
[T]o remove the contract from the operation of the statute of frauds pursuant to this doctrine, the party seeking to enforce the contract must establish by clear and convincing evidence ( 1) that the parties did enter into a contract; (2) that the party seeking to enforce the contract partially performed the contract; and (3) that the performance was induced by the other party's misrepresentations, which may include acquiescence or silence.
9 2004 ME 134 at ~ 11, 861 A.2d 625, citing Cottle Enters., Inc. v. Town ofFarmington, 1997 ME 78, Pl 7 n.6, 693 A.2d 330, 335-36; Goodwin v. Smith, 89 Me. 506, 508, 36 A. 997,998 (1897); Woodbury v. Gardner, 77 Me. 68, 70 (1885).
Bruce Chase's deposition testimony could be considered sufficient to establish
all three elements. He asserts that he and Janet Chase did enter into an agreement
with John Chase; that they partly performed, by selling their house and turning over
the sale proceeds to John Chase and also by leaving their jobs, all in reliance on John
Chase's representation that he would perform his side of the agreement. At the
summary judgment stage, the court has to view his testimony in a light most
favorable to Bruce and Janet Chase.
In that light, given that John Chase is now challenging the enforceability of
the alleged agreement, the finder of fact could view his alleged promise to perform
his side of the agreement as a misrepresentation for purposes of the part performance
doctrine. See Woodbury, 77 Me. at 70 ("After having induced or knowingly permitted
another to perform in part an agreement, on the faith of its full performance by both
parties and for which he could not well be compensated except by specific
performance, the other shall not insist that the agreement is void").
In addition, even assuming that the oral contract is unenforceable under the
Statute of Frauds, the Statute of Frauds would not bar Bruce and Janet Chase's
unjust enrichment claim. See Estate of White, 521 A.2d 1180, 1181 (Me. 1987);
Cressey v. Cressey, 2012 Me. Super. LEXIS 115, at *3 (Cum. Cty., Warren, J.). In fact,
the unjust enrichment remedy comes into play in situations where an express
contract is unenforceable for reasons such as the Statute of Frauds.
10 Viewing the summary judgment record in a light most favorable to Bruce and
Janet Chase, the court cannot say that they would not be entitled to restitution for
unjust enrichment and possibly other relief based on the part performance doctrine.
For these reasons, John Chase's Motion For Summary Judgment will be
denied as it relates to the New Amended Counterclaim.
Based on the entire record, it is ORDERED AS FOLLOWS:
1. Plaintiffs Motion for Summary Judgment is granted as it relates to the
Complaint, and is denied as it relates to the New Amended Counterclaim. This is an
interlocutory ruling that cannot be appealed at this time because the New Amended
Counterclaim remains pending. The form of judgment on the Complaint will be
determined as offinaljudgment.
2. Trial on the New Amended Counterclaim will be scheduled during the
court's next available civil trial term. The parties will exchange updated witness
and exhibit lists, and shall mark and exchange their exhibits, no later than 10 days
before the trial. A party's failure to exchange a copy of any trial exhibit will likely
result in that exhibit being excluded from the evidentiary record.
Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this
Dated December 15, 2017 t AM. Horton, Justice
11 - ~ ~------·- - - - -- - --------- - - - ---·- . - -
STATE OF MAlNE SUPERIOR COURT
V. Docket No. CUMSC-CV-16-04.33
Defendant and Counterclaim Plaintiff -c STATE OFMAINE Cr ml'k:irlf.fr1d !ts_Cferk•s; Office JANET CHASE MAR 22 2017 Counterclaim Plaintiff RECEIVED ORDER ON MOTION AND DISCOVERY
This case came before the court for a hearing on the Motion To Join Additional Parties
and to Reinstate New Amended Counterclaim filed by Defendant and Counterclaim Plaintiff
Bruce Chase and proposed Counterclaim Plaintiff Janet Chase, and also for a discovery
conference requested by Plaintiff and Counterclai~ Defendant John Chase. Participating were
attorney Smith representing John Chase, and Bruce Chase, representing himself Janet Chase
did not participate.
Initially, the court noted that the copy of the promissory note attached to John Chase's
complaint against Bruce Chase does not contain a provision permitting acceleration upon
breach or default, raising doubt as to whether John Chase would be entitled to judgment for the
entire amount of the note, even ifhe prevails on the merits of his claim for breach of contract.
See Hills v. Gardiner Savings Institution, 309 A.2d 877, 882-83 (Me. 1973). 1 <
1 Moreover, because the note recites that payment is due only upon the death of Bruce Chase, there may
be a question as to whether there is any cause of action. See id. at 88S ("[N]o cause of action exists for an installment payment until such installment is due"). -- ·~-.. - -----------~---- -- - --~- ..
1'vlotion To Join Additional Parties and to Reinstate New Amended Counterclaim
Initially the pending Motion To Join Additional Parties and to Reinstate New Amended
Counterclaim was discussed. Plaintiff has objected, mainly because the Motion purports to
join two corporate entities, identified as Chase Custom Homes & Finance and Auto Shine Car
Wash, as counterclaim defendants, but the proposed Amended Counterclaim does not appear to
state any actual claim against either. During the discussion, Bruce Chase confirmed thst he
and Janet Chase contend that John Chase has breached various promises and commitments to
them, and that they are not contending that either of the corporate entities is liable to them.
Bruce Chase said the two entities were named because John Chase used them to make certain
payments to Bruce and/or Janet Chase. Based on that clarification, the court is granting the
Motion to the extent of permitting Bruce and Janet Chase to assert the Amended Counterclaim
against John Chase only. The Motion is denied to the extent it purports to add the two
corporate entities as counterclaim defendants.
Discovery
John Chase has propounded interrogatories and document requests to Bruce Chase,
which have not yt:t been responded to. After discussion, it was agreed that John Chase will
withdraw the pending discovery and will submit a new set of interrogatories and document
requests to both Bruce and Janet Chase, for both to answer to the best of their ability. The
new discovery will likely be similar, but not necessarily identical, to what was already
requested. Bruce and Janet Chase will have 21 days from when they receive the new discovery
to respond to the document request and to submit answers under oath to the interrogatories. I
IT IS ORDERED:
(1) The Motion of Bruce and Janet Chase To Join Additional Parties and to Reinstate
New Amended Counterclaim is granted in part as stated above and is otherwise denied.
2 - -·-- --·- - - - - - -··--------
(2) Discovery to proceed as indicated above.
Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this Order by
~ reference in the docket.
Dated March 22, 2017 A. M. Horton, Justice
3 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101
BRUCE CHASE JANET CHASE 156 REGAN LANE PORTLAND, ME 04103
CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101
TYLER SMITH, ESQ GENE LIBBY, ESQ LIBBY O'BRIEN KINGSLEY & CHAMPION 62 PORTLAND RD, STE 17 KENNEBUNK, ME 04043