Gile v. Albert Construction

• Court: Superior Court of Maine
• Decided: July 7, 2006
• Docket: YORcv-05-355
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO: CV-05-355

NORMAN C. GILE and ANNE B. GILE,

Plaintiffs

ORDER

KENNETH ALBERT, D/B/A ALBERT CONSTRUCTION,

Defendant

This case comes before the Court on Defendant Kenneth Albert d / b / a Albert

Construction's motion. for summary judgment on all counts of Plaintiffs Norman and

Anne Gile's complaint.' After hearing, the motion is Granted.

FACTS

On or about March 18, 1998, Norman and Anne Gile (the "Giles") contracted

with Defendant, Albert Construction ("Albert"), to build an addition at their Eliot,

Maine residence. The contract provided no start or completion date. Building

commenced in early May of 1998. Shortly thereafter, the Giles experienced difficulty in

financing the project. Consequently, Albert stopped work until satisfied that payment

schedules would be met.

A series of informal discussions between the parties occurred during the

following weeks and culminated with Albert promising to finish the job. The Giles were

under the impression that construction would resume in the late summer of 1998. In

I The motion originally came before the Court on a motion to dismiss. However, both parties agreed to transform the motion into one for summary judgment because matters outside of the pleadings were presented to the Court. See M.R. Civ. P. 12(b)(6). late May or early June of 1998, the Giles were informed by a h r d party that Albert had

no intention of finishung the addition. On August 29, 1998, Albert confirmed that it

would do no further work at the Gile site. The Giles engaged attorney Gary Reiner to

facilitate a settlement.

On May 21, 15399, attorney Reiner, on behalf of h s clients, drafted and sent a

letter to Albert, alleging that Albert's Construction promised to complete the project

and that by failing to do so, had breached the contract. Additionally, the letter claimed

that the Giles had not received proper accounting for the work performed. Attorney

Reiner stated that no 1.egal action would be pursued if the Giles were provided with the

requested accounting, but failure to comply would result in a lawsuit. In a letter dated

November 23,1999 and received three days later, Albert made h s first and only attempt

to provide the requested accounting to the Giles. Attorney Reiner acted as a conduit, as

the information was passed through him to the Giles. The Giles allege that the

proffered accounting i.s incomplete and fraudulent.

The Giles filed a complaint on November 23,2005 allegng breach of contract and

Unfair Trade Practices.

DISCUSSION

The only issue in dispute is the date on whch the cause of action accrued, thus

commencing the six-year statute of limitations time period. The Giles assert that no

judicially cognizable j.njury was sustained prior to obtaining conclusive evidence that

Albert could, or would, not account properly for the material and labor payment. The

Giles claim that Reir~er's letter dated November 23, 1999, indicating that no more

invoices would be forthcoming, marks the occasion. In support of h s motion, Albert

argues that by May 23, 1999, the Giles were aware of their claims for breach of contract and unfair trade practices. Consequently, Albert asserts that the cause of action accrued

on that date.

In Maine a cause of action is commenced by filing the complaint with the Court

or by serving the defendant. M.R. Civ.P. 3. Maine law mandates that a cause of action

for breach of contract be commenced within six years of the date of accrual. 14 M.R.S.A

752. An action accrues when a "judicially cognizable injury is sustained." Dugal v.

Martel, 588 A.2d 744, 7'46 (Me. 1991). In tort, a "judicially cognizable injury is sustained"

when the tortfeasor's "wrongful act produces an injury for whch a plaintiff is entitled

to seek judicial vindication." Id. Under contract law, a cause of action accrues when the

aggrieved party learns the binding obligation has been breached. Jackson v. Borkowski,

627 A.2d 1010,1014 (Me. 1993).

In reviewing a motion for summary judgment, the Court considers the evidence

in the light most favorable to the non-moving party to ascertain whether the record

discloses a genuine dispute concerning a material fact. Parish v. Wright, 2003 ME 90, ¶

8,828 A.2d 778,781. Granting summary judgment is permissible when the resolution of

the dispute depends solely on questions of law. Tisei v. Town of Opnquit, 491 A.2d 564,

568 (Me. 1985). Generally, a determination on a statute of limitations issue is made

either on a motion to dismiss or for summary judgment. Townsend v. Chute Chem. Co.,

1997 ME 46, 9, 691 ,4.2d 199, 202. However, occasionally, the existence of a genuine

issue of material fact as to the date of injury will preclude such rulings. Id.

In the present case, the only issue is when the Giles were aware of a judicially

cognizable injury. The Court finds that the May 21,1999 letter, from attorney Reiner to

Albert, demonstrates i~nequivocallythat the Giles were aware of the alleged breach of

contract and their righ~tto pursue the dispute in a court of law. Most notably, attorney

Reiner threatened Albert with a lawsuit if the project's invoices were not made available, saying "[[tlhe Plaintiffs] contend that you have failed to perform your

contractual obligation for which they are entitled to seek damages amounting to the

differences between what you contracted to do and what it will cost to have the work

completed." A plain reading of the letter establishes that as of May 21, 1999, the Giles

were aware of their right to seek "judiaal vindication." As a result, their cause of action

accrued at that time if not before. See Dugal, 588 A.2d at 746.

Accordingly, the commencement of the cause of action, on November 23,2005, is

more than six years after the accrual date, and thus barred by Albert's statute of

limitations defense.

The entry is:

Defendant Kenneth Albert d / b / a Albert Construction's motion for summary judgment is Granted. Plaintiffs failed to commence their cause of action within the statutorily mandated period.

DATE: A- [ . Ar r Brennan Justice, Superior Court

Norman C . G i l e - I'ro s e - PL Anne B. G i l e - Pro s e - l'L P a t r i c k S. Bedard, E s q . - DEFS