TD Bank v. Johnston Auto & Radiator Repair, Inc

• Court: Superior Court of Maine
• Decided: November 23, 2021
• Docket: CUMcv-19-389
• Status: Unpublished

Opinion

STATE OF MAIINE DISTRICT COURT CUMBERLAND, ss. PORTLAND Docket No.cJ-19-0389

TD Bank, NA f/d/b/a/ TD Banlmmih NA ) ) PLAINTIFF ) v. ) DECISION and ORDER ) Johnston Auto & Radiator Repair, Inc., ) and Linton Thompson ) ) DEFENDANTS )

The paiiies appeared before the court for trial on this matter on September 28, 2021.

Plaintiff alleges breach of contract against each defendant. Plaintiff appeared represented by

attorney Joan Egdall. Defendant Thompson appeared represented by attorney Edward Dilwmih.

No representative appeared from Johnston Auto & Radiator Repair, Inc., a corporation which is

no longer operational. Plaintiff presented an employee of TD Bank, Timothy Ryan, as a witness

who endeavored to enter three documents into evidence. Defendant Thompson also testified.

Defendant, Johnston Auto & Radiator Repair, Inc. (hereinafter, "Johnston Auto"), was a

commercial entity owned by James S. Johnston, who is now deceased. Defendant Thompson was

an employee of Johnston Auto for a period of time including and after 2008. Johnston Anto took

a $50,000 revolving line of credit from TD Banknorth, NA in March of 2008, signed for and

guaranteed by James S. Johnston. In October 2008, Johnston Auto and Defendant Thompson

signed a change in terms agreement that increased the original line of credit to $75,000 and added

Thompson as a co-borrower.

Defendant Thompson was an employee of Johnston Auto. His duties and responsibilities

included attending auctions and purchasing vehicles for the business to rehabilitate and sell. He

held no ownership stake and believed he was required to sign the change in terms document in

1 order to be permitted to write checks on behalf of the business at the auctions he attended. At the

time of the change in terms, Plaintiff took no information from Defendant Thompson to assess his

creditworthiness before he signed the agreement in October 2008 on a signature line that

designated him a co-borrower. Johnston Auto stopped making payments on the line of credit in

November of 2015. Plaintiff now seeks to recover $54,954.25 in unpaid principal and accrued

interest in the amount of $5,832.82.

As a threshold matter, pursuant to a pre-trial order dated July 15, 2021, both parties were

to turn over final trial exhibits no later than three days before trial. Parties agreed that Plaintiff did

not provide the exhibits she intended to introduce until the afternoon of September 27, 2021, the

day before this trial.

Defendant objected to the admission of all of Plaintiffs exhibits based on their late

disclosure. In the alternative, Defendant objected to the admission of the Promissory Note,

identified as Plaintiffs exhibit A, under M.R. Evid. 1002, and the Loan History, identified at

Plaintiffs C, as an improperly supported summary of information governed by M.R. Evid. 1006.

Me. R. Evid. 1002, the best evidence rule, provides that in order to prove the content of a

writing, the original writing is required, unless an exception exists elsewhere in the rules or by

statute. Me. R. Evid. 1004 carves out exceptions to the best evidence rule, providing that the

original is not required ifit: (1) was lost or destroyed, absent bad faith; (2) is unobtainable; (3) is

in the control of the party against whom the document is offered; or (4) relates to a collateral

matter. LDC Gen. Contracting v. LeBlanc, 2006 ME 106, ,r 7, 907 A.2d 802. It is within the

discretion of the trial judge to decide whether an exception to the best evidence rule applies in a

given instance. Id. ,r 8.

2 Plaintiff was only able to provide only a copy of the promissory note. Defendant

Thompson was not a signatory to the promissory note and was not in possession of any copy of it.

Plaintiffs witness, Mr. Ryan, a commercial recovery officer at TD Bank, could not say where or

even if the original was in the custody of TD Bartle. This testimony does not bring the promissory

note within the pmview of the exceptions enumerated in M.R. Evid. 1004. Contrary to Plaintiffs

argument, it is of no moment that Defendant Thompson waived discovery in this matter when

Plaintiff itself failed to timely turn over exhibits providing Defendant Thompson notice enough

that he might request to review the original promissory note.

Plaintiffs exhibit C, the loan payment history, is admissible under M.R. Evid. 806(3) and

pursuant to M.R. Evid 1001(3). Rule 806(3), the business records exception to hearsay, allows (in

relevant part) for the admission of repmts and data compilations made at or near the time of the

event. The loan history is a record regularly maintained by the Plaintiff within their computer

system for every loan customer. For the purpose of hearing the record was printed, not made, on

demand, and shows no sign of untrustworthiness. The Defendant's characterization of the loan

history as a summaty which would require the presentation of supporting documents be made

available for inspection is unpersuasive. See United Air Lines v. Hewins Travel Consultants, 622

A.2d 1163 (Me. 1993). M.R. Evid. 1001(3) reads, in pertinent patt, "If data are stored in a computer

or similar device, any printout or other output readable by sight, shown to reflect the data

accurately, is an 'original'."

Notwithstanding the evidentiaty issues surrounding Plaintiff's exhibits A and C, the

evidence before this court is insufficient to find that anyone other than Johnston Auto is liable for

breach of contract with Plaintiff. Defendant Thompson was not a party to the original agreement

or promissory note, but only to the change in terms. He is not a sophisticated borrower and appears

3 to have signed the change of terms agreement in a vacuum. Plaintiff made no effort to review

Defendant Thompson for his ability to repay a $75,000 line of credit, nor was he provided a copy

of the promissory note during the signing of the change in terms agreement, all of which might

have suggested to him that he was taking responsibility for this line of credit. He signed the

subsequent agreement as a co-borrower, a term that is not defined on either document, and as an

individual, signing for the debts of a company he did not own. No checks were written to

Defendant Thompson, nor was Thompson ever tasked with payment on this account. Defendant

believed that he signed the change of terms document not because he was assuming liability for

the company's debt, but because it was a requirement of the bank that gave Defendant Thompson

the ability to write checks on behalf of the business, a task that was a requirement of his job.

Plaintiff has failed to show a meeting of the minds sufficient to prove the existence of a

contract between Plaintiff and Defendant Thompson.

Accordingly, Judgment, it is hereby ORDERED m favor of Defendant Linton 0.

Thompson.

Further, Judgment is hereby ORDERED in favor of Plaintiff against Defendant Johnston

Auto & Radiator Repair, Inc. in the principal amount of $54,954.25 and pre-judgment interest at

the rate of 5.25% beginning from October 20, 2017. As Johnston Auto & Radiator Repair, Inc. is

no longer operational, and its proprietor deceased, the court declines to order post-judgment

interest.

79(a). ::~, The clerk shall incorporate this Order on the docket by reference pursuant to M.R. Civ. P.

([jAC(' //~--;

Hon. Dclmiah P. Cashman Maine District Court Judge