House v. Cole

• Court: Superior Court of Maine
• Decided: May 15, 2008
• Docket: CUMcv-07-107
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-07-107 ! Doth ~TI)vJ- GU/YJ- 5/9 I

CLARK HOUSE, et al.,

Plaintiffs, ( . ~,

v. ORDER'

DANIEL COLE,

Defendant.

Before the court is plaintiff Annamarie Trusiani's motion for summary judgment

on Counts II and III of the complaint.

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

~ Tohnson v. McNeil, 2002 ME 99

considered in the light most favorable to the non-moving party. Id. Thus, for purposes

of summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a

matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME

99

Defendant Daniel Cole has admitted that he is in default of his obligations on those

notes. See Trusiani SMF

absolve him of those defaults. Accordingly, Trusiani is entitled to partial summary

judgment with respect to Cole's liability on the two promissory notes in question.

Cole has, however, raised factual disputes as to the amounts due on the notes,

and the issue of damages on Counts II and III therefore remains to be determined at a

trial. Cole has also argued that summary judgment is premature as to the amounts due

on Counts II and III because he has not yet completed discovery, citing Rule 56(f). On

this issue Cole may not have strictly complied with Rule 56(f), but the court agrees that

he has set forth an adequate basis for allowing discovery with respect to the amounts

due. See Bay View Bank N.A. v. Highland Golf Mortgagees Realty Trust, 2002 ME 178

814 A.2d 449, 454-55. In any event, because the court concludes there are factual

disputes as to the amounts due, Cole will have his opportunity for discovery.

The court also agrees that while it is undisputed that the promissory notes

require Cole to pay reasonable attorneys fees and costs in the event of a default, the

court cannot determine on this record whether the fees sought in Trusiani's summary

judgment motion are reasonable. Finally, because damages remain undetermined, the

court does not need to reach Trusiani's request for the entry of judgment under Rule

54(b). Even if damages were determined, however, the court would be highly unlikely

to enter a partial final judgment pursuant to Rule 54(b) where there are unresolved

claims pending, including counterclaims against the plaintiffs by a defendant.

The entry shall be:

1 Remaining to be decided are a claim for damages by plaintiff Clark House for alleged breach of a lease and defendant's counterclaim alleging that plaintiffs breached the lease and are liable for negligence.

2 Partial summary judgment shall be entered in favor of plaintiff Trusiani and

against defendant Cole determining that Cole is liable to Trusiani on Counts II and III of

the complaint. The issues of damages and attorneys fees on Counts II and III remain to

be determined at trial.

The clerk is directed to incorporate this order in the docket by reference pursuant

to Rule 79(a).

DATED: May IS-, 2008

Thomas D. Warren Justice, Superior Court

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