STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. CV-04-172 r
/ - , I . j, * -' : 1 / I 1 v I /
-1
McCORMACK BUILDING SUPPLY, INC.,
Plaintiff .. ,": ; ; :*.* 3 V. . : o f.;. , 44 i 33's W"'. " % DECISION AND ORDER
GIROUX DEVELOPING, INC., et al.,
Defendants 2,sl4 * * ,,. * *G
T h s matter is before the court on motion'for summary judgment by Defendants
Thomas and Terry Sullivan in regards to count I of plaintiff's complaint.
The present dispute arises, in part, out of a contract for the construction of a
home on property owned by Defendants Thomas and Terry Sullivan ("the Sullivans").
Pursuant to the contract, the Sullivans were obligated to pay Defendant Giroux
Developing, Inc. ("Giroux") for the cost of labor and materials that were provided.
Giroux, however, began experiencing financial difficulties, and consequently, Giroux
and the Sullivans agreed to terminate the contract.
Plaintiff McCormack Building Supply ("Plaintiff" or "McCormack") was
apparently a materialman used by Giroux. The Plaintiff's complaint is in five counts,
only the first of whch pertains to the Sullivans. In count I, the Plaintiff alleges that it
has furnished over $27,000.00 in materials used in the construction of the residence, and
seeks to enforce a lien it has filed pursuant to 10 M.R.S.A. 9 3251 against the premises.
The Law Court has explained that:
Summary judgment is no longer an extreme remedy. It is simply a procedural device for obtaining judicial resolution of those matters that may be decided without fact-finding. Summary judgment is properly granted if the facts are not in dispute or, if the defendant has moved for summary judgment, the evidence favoring the plaintiff is insufficient to support a verdict for the plaintiff as a matter of law.
Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18, 21-22. Summary judgment is proper if
the citations to the record found in the parties' Rule 56(h) statements demonstrate that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Dickinson v. Clark, 2001 ME 49, ¶ 4, 767 A.2d 303, 305.
The party opposing summary judgment will be given the benefit of any reasonable
inferences that can be drawn from the presented facts. See Perkins v. Blake, 2004 ME 86,
¶ 7, 853 A.2d 752, 755. "A fact is material if it has the potential to affect the outcome of
the case under governing law." Levine v. R.B. K. Caly Corp., 2001 ME 77, ¶ 4, n.3, 770
A.2d 653, 655, n.3 (citing Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575). "The
invocation of the summary judgment procedure does not permit the court to decide an
issue of fact, but only to determine whether a genuine issue of fact exists. The Court
cannot decide an issue of fact no matter how improbable seem the opposing party's
chances of prevailing at trial". Searles v. Trustees of St. Joseph's College, 1997 ME 128, ¶ 6,
695 A.2d 1206, 1209 (quoting Tallwood Land 6 Dev. Co. v. Botka, 352 A.2d 753, 755 (Me.
1976)). To avoid a judgment as a matter of law for a defendant, a plaintiff must
establish a prima facie case for each element of her cause of action. See Fleming v.
Gardner, 658 A.2d 1074,1076 (Me. 1995).
The Sullivans contend that they are entitled to summary judgment on the
complaint because 10 M.R.S.A. § 3255 provides them with the so-called "double
payment defense". See Pond Cove Millwork Co. v. Steeves, 598 A.2d 1181 (Me. 1991). The
Plaintiff's complaint alleges that McCormack furnished materials for the project that
were accepted by Giroux with the knowledge and consent of the Sullivans. The
complaint further states that Giroux owes the Plaintiff $27,415.99. However, the Defendants note that the complaint is silent as to whether they owe any balance to
Giroux. Whle the Sullivans concede that McCormack did in fact deliver materials for
use in their home, they also maintain that if they owe no money to Giroux, they are not
responsible for any monies owed to McCormack.
The Sullivans assert that prior to the commencement of h s suit, they made
several payments to Giroux for the purpose of paying for materials supplied by the
Plaintiff, totaling 49,800.00, the last of which occurred on March 24, 2004. They also
note that after April 1,2004, Giroux was no longer allowed on the property and that the
parties agreed to the rescission of the contract. In addition, the Defendants state that
they have received lien waivers signed by the Plaintiff for materials received and paid
for in the amount of $19,800.
As the Sullivans read the statute, the Plaintiffs can only enforce their lien to the
extent that there is a "balance due" to the person with whom the homeowner directly
contracted - in this case, Giroux. Moreover, the Defendants contend that the amount of
the "balance due" can be no more than the difference between the amount of the lien
($27,415.99) and the amount of the clear lien waivers ($19,800). Since they have paid to
Giroux and McCormick amounts in excess of the full amount of the lien, Sullivans
contend that the lien levied against them must be released, and the Plaintiff's claim
dismissed.
In opposition, the Plaintiff states that the Defendants motion must be denied
because a genuine issue of material fact exists as to whether a balance is due to Giroux
under its contract with the Sullivans. The calculation of the balance due, according to
the Plaintiff, requires the Court to consider the work done less the amount withheld for
work not performed in accordance with the contract. See Biette v. Scott Dugas Trucking &
Excavating, Inc., 676 A.2d 490, 496 (Me. 1996). McCormack asserts that the Sullivans' contract with Giroux called for the payment of $161,000.00 for the construction of a
home. Further, Plaintiff contends that there is no dispute that the Sullivans paid less
than the total amount called for under the contract. In addition, McCormack points out
that Giroux's President believes the contract with the Sullivans was not property
terminated, and that there may in fact be a balance due to the corporation. The Plaintiff
asserts that whether the Sullivans were justified in rescinding the contract and in
paying Giroux less than the total amount agreed to is a question of fact that precludes
the Court from entering summary judgment. Moreover, McCormack maintains that
even if the Sullivans paid Giroux more for materials provided than the amounts
claimed in the complaint, that still does not establish that the defendants are entitled to
the double payment defense.
In reply, the Sullivans first assert that Biette does not support the Plaintiff's
position. In particular, they note that in Biette, funds were available but withheld by the
homeowner and owed to the contractor for work that was actually performed but not
paid for. To the contrary, the Sullivans point out that Giroux was already paid for its
work.
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STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. CV-04-172 r
/ - , I . j, * -' : 1 / I 1 v I /
-1
McCORMACK BUILDING SUPPLY, INC.,
Plaintiff .. ,": ; ; :*.* 3 V. . : o f.;. , 44 i 33's W"'. " % DECISION AND ORDER
GIROUX DEVELOPING, INC., et al.,
Defendants 2,sl4 * * ,,. * *G
T h s matter is before the court on motion'for summary judgment by Defendants
Thomas and Terry Sullivan in regards to count I of plaintiff's complaint.
The present dispute arises, in part, out of a contract for the construction of a
home on property owned by Defendants Thomas and Terry Sullivan ("the Sullivans").
Pursuant to the contract, the Sullivans were obligated to pay Defendant Giroux
Developing, Inc. ("Giroux") for the cost of labor and materials that were provided.
Giroux, however, began experiencing financial difficulties, and consequently, Giroux
and the Sullivans agreed to terminate the contract.
Plaintiff McCormack Building Supply ("Plaintiff" or "McCormack") was
apparently a materialman used by Giroux. The Plaintiff's complaint is in five counts,
only the first of whch pertains to the Sullivans. In count I, the Plaintiff alleges that it
has furnished over $27,000.00 in materials used in the construction of the residence, and
seeks to enforce a lien it has filed pursuant to 10 M.R.S.A. 9 3251 against the premises.
The Law Court has explained that:
Summary judgment is no longer an extreme remedy. It is simply a procedural device for obtaining judicial resolution of those matters that may be decided without fact-finding. Summary judgment is properly granted if the facts are not in dispute or, if the defendant has moved for summary judgment, the evidence favoring the plaintiff is insufficient to support a verdict for the plaintiff as a matter of law.
Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18, 21-22. Summary judgment is proper if
the citations to the record found in the parties' Rule 56(h) statements demonstrate that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Dickinson v. Clark, 2001 ME 49, ¶ 4, 767 A.2d 303, 305.
The party opposing summary judgment will be given the benefit of any reasonable
inferences that can be drawn from the presented facts. See Perkins v. Blake, 2004 ME 86,
¶ 7, 853 A.2d 752, 755. "A fact is material if it has the potential to affect the outcome of
the case under governing law." Levine v. R.B. K. Caly Corp., 2001 ME 77, ¶ 4, n.3, 770
A.2d 653, 655, n.3 (citing Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575). "The
invocation of the summary judgment procedure does not permit the court to decide an
issue of fact, but only to determine whether a genuine issue of fact exists. The Court
cannot decide an issue of fact no matter how improbable seem the opposing party's
chances of prevailing at trial". Searles v. Trustees of St. Joseph's College, 1997 ME 128, ¶ 6,
695 A.2d 1206, 1209 (quoting Tallwood Land 6 Dev. Co. v. Botka, 352 A.2d 753, 755 (Me.
1976)). To avoid a judgment as a matter of law for a defendant, a plaintiff must
establish a prima facie case for each element of her cause of action. See Fleming v.
Gardner, 658 A.2d 1074,1076 (Me. 1995).
The Sullivans contend that they are entitled to summary judgment on the
complaint because 10 M.R.S.A. § 3255 provides them with the so-called "double
payment defense". See Pond Cove Millwork Co. v. Steeves, 598 A.2d 1181 (Me. 1991). The
Plaintiff's complaint alleges that McCormack furnished materials for the project that
were accepted by Giroux with the knowledge and consent of the Sullivans. The
complaint further states that Giroux owes the Plaintiff $27,415.99. However, the Defendants note that the complaint is silent as to whether they owe any balance to
Giroux. Whle the Sullivans concede that McCormack did in fact deliver materials for
use in their home, they also maintain that if they owe no money to Giroux, they are not
responsible for any monies owed to McCormack.
The Sullivans assert that prior to the commencement of h s suit, they made
several payments to Giroux for the purpose of paying for materials supplied by the
Plaintiff, totaling 49,800.00, the last of which occurred on March 24, 2004. They also
note that after April 1,2004, Giroux was no longer allowed on the property and that the
parties agreed to the rescission of the contract. In addition, the Defendants state that
they have received lien waivers signed by the Plaintiff for materials received and paid
for in the amount of $19,800.
As the Sullivans read the statute, the Plaintiffs can only enforce their lien to the
extent that there is a "balance due" to the person with whom the homeowner directly
contracted - in this case, Giroux. Moreover, the Defendants contend that the amount of
the "balance due" can be no more than the difference between the amount of the lien
($27,415.99) and the amount of the clear lien waivers ($19,800). Since they have paid to
Giroux and McCormick amounts in excess of the full amount of the lien, Sullivans
contend that the lien levied against them must be released, and the Plaintiff's claim
dismissed.
In opposition, the Plaintiff states that the Defendants motion must be denied
because a genuine issue of material fact exists as to whether a balance is due to Giroux
under its contract with the Sullivans. The calculation of the balance due, according to
the Plaintiff, requires the Court to consider the work done less the amount withheld for
work not performed in accordance with the contract. See Biette v. Scott Dugas Trucking &
Excavating, Inc., 676 A.2d 490, 496 (Me. 1996). McCormack asserts that the Sullivans' contract with Giroux called for the payment of $161,000.00 for the construction of a
home. Further, Plaintiff contends that there is no dispute that the Sullivans paid less
than the total amount called for under the contract. In addition, McCormack points out
that Giroux's President believes the contract with the Sullivans was not property
terminated, and that there may in fact be a balance due to the corporation. The Plaintiff
asserts that whether the Sullivans were justified in rescinding the contract and in
paying Giroux less than the total amount agreed to is a question of fact that precludes
the Court from entering summary judgment. Moreover, McCormack maintains that
even if the Sullivans paid Giroux more for materials provided than the amounts
claimed in the complaint, that still does not establish that the defendants are entitled to
the double payment defense.
In reply, the Sullivans first assert that Biette does not support the Plaintiff's
position. In particular, they note that in Biette, funds were available but withheld by the
homeowner and owed to the contractor for work that was actually performed but not
paid for. To the contrary, the Sullivans point out that Giroux was already paid for its
work. Hence, in the Defendants' view, the question is not whether they paid less than
the total amount called for in the contract, but whether they owe their general
contractor money for labor and materials already provided. The Sullivans also note that
they entered into a written termination agreement with Giroux, thus undermining
McCormack's assertion that the construction contract was rescinded improperly1.
The language of section 3255(3) is clearly intended for the protection of
homeowners. Specifically, it seeks to protect homeowners from unrecorded liens and
from the possibility of having to make double payment to contractors and
The Defendants' assertion of facts regarding this agreement is procedurally improper. Rule 56(h) does not permit the moving party to set forth additional statements of fact in its reply statement of material facts. See M.R. Civ. P. 56(h)(3). subcontractors. As correctly noted by the Defendants, the statute only permits
McCormack to enforce its lien to the extent that there is a "'balance due" from the
Defendants to Giroux. See 10 M.R.S.A. § 3255(3) (2004). Both the statutory context in
whch these liens arise, as well as analysis provided by the Law Court, indicate that
only outstanding sums owed for work actually performed should be considered in
calculating tlus amount. Section 3251, whch describes how mechanics' liens of tlus sort
are established, contemplates the actual performance of labor and / or furnishng of
materials. Moreover, the Law Court has repeatedly explained, as mentioned above,
that the balance due is determined by considering the work done less the amount
withheld for work not performed properly. See, e.g., Biette, 676 A.2d at 496; Pond Cove
Millwork Co., 598 A.2d 1182-1183; John W. Goodwin, Inc. v. Edward A. Fox, 1999 ME 33, ¶
17, 725 A.2d 541,544. Thus, it is clear that regardless of whether Giroux may be entitled
to contract damages for work they might have performed had the contract not been
cancelled, those amounts are not relevant to the issue before the Court.
In opposing the Sullivans' motion for summary judgment, the Plaintiff has failed
to set forth any facts to establish that there is a balance due to Giroux from the
Defendants for work actually performed under the contract, or to rebut the Sullivans'
contentions to the contrary.
The entry will be:
Defendants Thomas J. and Terry L. Sullivan's motion for summary judgment is GRANTED; judgment for defendants Thomas J. and Terry L. Sullivan on count I of plaintiff's complaint.
Dated: August (6 ,2005
Justice, Superior Court MCCORMACK BUILDING SUPPLY - PLAINTIFF SUPERIOR COURT KENNEBEC , ss . Attorney for: MCCORMACK BUILDING SUPPLY Docket No AUGSC-CV-2004-00172 DANIEL I BILLINGS - RETAINED 07/23/2004 MARDEN DUBORD ET AL 44 ELM STREET DOCKET RECORD PO BOX 708 WATERVILLE ME 04901-0708
VS GIROUX DEVELOPING INC - DEFENDANT
Attorney for: GIROUX DEVELOPING INC PHILIP MOHLAR - RETAINED 08/12/2004 ALSOP MOHLAR & KETTERER 60 MAIN STREET PO BOX 417 NORRIDGEWOCK ME 04957
BOBBY J MILLER - DEFENDANT
Attorney for: BOBBY J MILLER PHILIP MOHLAR - RETAINED ALSOP MOHLAR & KETTERER 60 MAIN STREET PO BOX 417 NORRIDGEWOCK ME 04957
HEATHER GIROUX - DEFENDANT
Attorney for: HEATHER GIROUX PHILIP MOHLAR - RETAINED 08/12/2004 ALSOP MOHLAR & KETTERER 60 MAIN STREET PO BOX 417 NORRIDGEWOCK ME 04957
THOMAS J SULLIVAN - DEFENDANT
Attorney for: THOMAS J SULLIVAN CHAD ALLEN CLOUTIER - RETAINED JOSEPH M CLOUTIER & ASSOCIATES 247 COMMERCIAL STREET BOX 515-3 ROCKPORT ME 04856-5964
TERRY L SULLIVAN - DEFENDANT
Attorney for: TERRY L SULLIVAN CHAD ALLEN CLOUTIER - RETAINED JOSEPH M CLOUTIER & ASSOCIATES 247 COMMERCIAL STREET BOX 515-3 ROCKPORT ME 04856-5964
Page 1 of 10 Printed on: 08/17/2005 AUGSC-CV-2004-00172 DOCKET RECORD JAMES REIS - DEFENDANT
Attorney for: JAMES REIS SEAN FARRIS - RETAINED 08/13/2004 FARRIS HESELTON LADD & BOBROWIECKI, PA 251 WATER STREET PO BOX 120 GARDINER ME 04345-0120
PAMELA REIS - DEFENDANT
Attorney for: PAMELA REIS SEAN FARRIS - RETAINED 08/13/2004 FARRIS HESELTON LADD & BOBROWIECKI, PA 251 WATER STREET PO BOX 120 GARDINER ME 04345-0120
JASON R TURNER - DEFENDANT
Attorney for: JASON R TURNER BENJAMIN J SMITH - RETAINED 04/14/2005 LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051
Attorney for: JASON R TURNER DAVID LIPMAN - RETAINED LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051
TUNNEY A WHITE - DEFENDANT MARIANNE C WHITE - DEFENDANT SKOWHEGAN SAVINGS BANK - PARTIES IN INTEREST
Attorney for: SKOWHEGAN SAVINGS BANK WARREN SHAY - RETAINED PERKINS TOWNSEND SHAY & TALBOT PA 14 HIGH ST PO BOX 467 SKOWHEGAN ME 04976
WINSLOW SUPPLY INC. - PARTIES IN INTEREST
Attorney for: WINSLOW SUPPLY INC. WARREN POULIN - RETAINED 08/12/2004 PO BOX 8070 WINSLOW ME 04901
RICHARD J CORBETT - PARTIPS IN INTEREST WILL'S FLOORING, INC. - PARTIES IN INTEREST Page 2 of 10 Printed on: 08/17/2005