Moulison, LLC v. Moulison

CourtSuperior Court of Maine
DecidedJune 26, 2023
DocketCUMbcd-cv-22-06
StatusUnpublished

This text of Moulison, LLC v. Moulison (Moulison, LLC v. Moulison) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moulison, LLC v. Moulison, (Me. Super. Ct. 2023).

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss. Location: PORTLAND Docket No: BCD-CIV-2022-00006

MOULISON LLC, ) ) Plaintiff, ) ) v. ) ) ORDER GRANTING, IN PART, KENNETH MOULISON, ) PLAINTIFF’S MOTION TO STRIKE DONNA MOULISON, and ) DEFENDANTS’ ERRATA SHEETS THE DONNA M. MOULISON ) REVOCABLE TRUST, ) ) Defendants. )

To what degree does Maine Rule of Civil Procedure 30(e) permit a deponent to make

substantive revisions to deposition testimony using errata sheets? This issue lies at the heart of the

motion now pending before the Court.

The underlying dispute in this case concerns two promissory notes executed by Defendants

Kenneth Moulison (“Kenneth”) and Donna Moulison (“Donna”) to Plaintiff Moulison LLC

(“Plaintiff”) in October 2016 and March 2018. On July 9, 2021, Plaintiff filed a nine-count

complaint in the York County Superior Court (see CV-2021-138), alleging breach of contract and

unjust enrichment. Defendants counterclaimed for the same and discovery followed. On June 17,

2022, Plaintiff took Kenneth’s and Donna’s depositions. On July 30, 2022, Defendants submitted

errata sheets pursuant to Rule 30(e). On August 26, 2022, in advance of moving for summary

judgment, Plaintiff filed a Motion to Strike Kenneth and Donna Moulison’s Errata Sheets (the

“Motion to Strike” or “Motion”). On September 30, 2022, Plaintiff moved for summary judgment.

In its Motion to Strike, Plaintiff seeks to strike Kenneth’s and Donna’s errata sheets on the

grounds that they impermissibly alter the substance of Defendants’ sworn testimony, were

1 submitted for tactical reasons rather than for clarification, and provide insufficient and/or

conclusory explanations for the changes. Defendants oppose the motion on grounds that Rule 30(e)

expressly permits a party to make substantive changes to deposition testimony, that the errata

sheets adequately explain the reasons for the changes, and that their submission was not tactically

timed. The errata sheets bear directly on the analysis of whether there are genuine questions of

material fact, and therefore must be addressed prior to any ruling on the summary judgment

motion.

After carefully considering the parties’ arguments and the relevant law, the Court

concludes that although Rule 30(e) permits substantive changes to deposition testimony,

Defendants have failed to adequately explain the reasons for the changes.

BACKGROUND

In 1994 Kenneth Moulison founded Moulison North Corporation (“Moulison North”), a

commercial electrical services company. By 2016, the company was suffering financial distress.

In June 2016, Sargent, Inc. agreed to purchase Moulison North’s assets through a holding

company. As a result of that transaction, Moulison LLC was created. Kenneth was employed as

the new company’s president until June 2020, at which point the business was sold to a third party.

In early 2018, Kenneth and Donna were facing foreclosure of their residence located at 105

Pennacook Circle in Wells, Maine. Kenneth requested a loan from Plaintiff, in the form of an

advance on future bonuses, to pay off the mortgage and save the home. On March 28, 2018,

Defendants executed and delivered a promissory note to Plaintiff in the amount of $358,000.00.

Plaintiff’s Complaint alleges the note was payable on demand with 15 days’ written notice and

that Defendants failed to pay the total amount due.

2 In their counterclaims, Defendants argue the note was not capable of being called at

Plaintiff’s sole discretion but was part of a larger agreement between the parties. Defendants point

to an email received from the company’s Chief Financial Officer on March 28, 2018, which stated:

“There are no set repayment terms per se, however the note must be paid in full no later than December 31, 2025 (7+ years). You may make payments on the note as you desire. Future net bonuses (that is, the amount remaining after agreed upon taxes are paid) will be applied against the note.”

An implicit condition of this agreement, Defendants argue, was that Kenneth would remain

employed by Sargent for at least seven years, during which time he would repay the note through

bonuses. Defendants contend that following a breakdown in the parties’ relationship, Plaintiff

breached the contract by selling its assets prior to 2025, thereby ending Kenneth’s employment

with the company and impeding his ability to repay the 2018 note.

Plaintiff took depositions of Kenneth and Donna on June 17, 2022. Kenneth testified that

he believed he had seven years to repay the note though bonuses. (Kenneth Moulison Dep. 155:11-

16, 197:8-25.) Donna testified that she was aware of, and shared, Kenneth’s belief. (Donna

Moulison Dep. 30:6-31:1, 31:21-32:1.) However, Kenneth conceded that he neither had an

agreement with Plaintiff regarding these additional terms nor believed them to be part of the note.

(Kenneth Moulison Dep. 153:15-155:7.) Additionally, Donna conceded that she never discussed

the note’s terms with Plaintiff. (Donna Moulison Dep. 17:5-7, 60:14-20.)

On July 30, 2022, Defendants submitted errata sheets pursuant to Rule 30(e). Each errata

sheet contained a proposed alteration to the original deposition transcript and a numbered reason

corresponding to one of three “reason codes”: “1. To clarify the record,” “2. To conform the facts,”

or “3. To correct transcription errors.” In total, the errata sheets contained twelve alterations, all

purportedly for the purpose of clarifying the record. Specifically, Kenneth submitted the following

eight erratas:

3 (1) Page 148; Line 8; Reason: 1 From: About paying it [the 2018 note] down through future bonuses. To: About paying it down through future bonuses, but they didn’t give me the chance to do that.

(2) Page 155; Lines 15-16; Reason: 1 From: So my feeling was I got seven years [to repay the 2018 note]. To: So my feeling was I got seven years but they didn’t give the chance to repay through the bonuses.

(3) Page 160; Line 21; Reason: 1 From: ... to rake in some bonuses to pay this [the 2018 note] off. To: ... to rake in some bonuses to pay this off, but they didn’t give me the chance to repay through the bonuses.

(4) Page 166; Line 15; Reason: 1 From: I knew that [I would have to make provisions to pay the 2018 note]. To: I knew that. But they didn’t give me the chance to repay through bonuses.

(5) Page 169; Line 17; Reason: 1 From: ... I would address it [a shortfall in payments on the 2018 note] at the end To: ... I would address it at the end but they never gave me the chance to pay it down through bonuses.

(6) Page 197; Lines 18-19; Reason: 1 From: I also knew I had 7 years to pay to do it [the 2018 note]. To: I also knew I had 7 years to pay to do it, but it turns out they never gave me the chance.

(7) Page 219: Lines 3-6; Reason: 1 From: I never said I didn’t owe it [the 2018 note]. To: I owed the money but I was told I would be able to repay it through bonuses over a period of years. They then took that opportunity away from me.

(8) Page 219: Lines 16-18; Reason: 1 From: I’m not going to sit here and say I don’t owe them [Plaintiff] a dime because I don’t believe that. To: I’m not going to sit here and say I wouldn’t have owed them a dime if we got to the end of the seven years discussed or if I quit. In either of those situations, I would have owed any amount still outstanding.

Additionally, Donna submitted the following four erratas:

4 (1) Page 35; Line 1; Reason: 1 From: Absolutely not.

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