Univ. of New England v. Weinstein
This text of Univ. of New England v. Weinstein (Univ. of New England v. Weinstein) 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.
Opinion
STATE OF MAINE a SUPERIOR COURT CUMBERLAND, ss. o es CIVIL ACTION Be . DOCKET NO. CV-99-644
/
mt. dani = MM-doum-5]6)a000
UNIVERSITY OF NEW ENGLAND,
Plaintiff ORDER ON PLAINTIFF’S vs. MOTION FOR SUMMARY JUDGMENT HARVEY WEINSTEIN,
Defendant
The plaintiff seeks a summary judgment on its complaint in the amount of $6298.06 plus reasonable attorneys’ fees. For the following reasons, the motion is granted in part and denied in part.
The plaintiff's statement of undisputed material facts provides that the defendant has defaulted on two promissory notes payable to the plaintiff. The amount due totals $6298.06. The defendant has failed to rebut the facts asserted by
the plaintiff regarding default on the notes and the amounts due. See Saucier v.
State Tax Assessor, 2000 ME 8, {{ 5-6, 745 A.2d 972, 974; Pl.’s SUMF, {] 1-5; Def.’s
SDMF, {{ 1-10.
The plaintiff alleges that the defendant “agreed to pay reasonable attorney’s fees in the event of default.” See Pl.’s SUMF, 9 6. The plaintiff seeks an amount for attorney's fees that the court “determines to be both reasonable and necessary.” See id. The plaintiff's attorney’s affidavit regarding attorney’s fees is not referenced in
the plaintiff's statement of facts. The affidavit provides that six hours have been
+
*
* spent on the case and based on experience, another six hours will be necessary. The > attorney’s hourly rate is $140.00.
The defendant has not challenged the plaintiff’s statement of facts and has not rebutted the asserted facts regarding the plaintiff's entitlement to a reasonable
attorney’s fee. The court has considered the attorney’s affidavit and concludes that it
is not sufficient to establish a reasonable fee for this case. See Bennett v. Tracy, 1999
ME 165, { 13, 740 A.2d 571, 574; Biette v. Scott Dugas Trucking and Excavating, Inc.,
676 A.2d 490, 495-96 (Me. 1996); M.R. Civ. P. 7(d) & 56(c) & 54(b)(3).
The entry is
The Plaintiff's Motion for Summary Judgment is GRANTED on Counts I and II of the Plaintiff's Complaint. Judgment is entered in favor of the Plaintiff and against the Defendant in the amount of $6298.06 plus interest and costs.
> The Plaintiff's Motion for Summary Judgment is GRANTED on Count III of the Plaintiff’s Complaint as follows: the Plaintiff is entitled to be paid a reasonable attorney’s fee by the Defendant. The Plaintiff's Motion for Summary Judgment on Count III of the Plaintiff's Complaint with regard to the amount of the attorney’s fee is DENIED.
Nancy Mills Justice, Superior coun!
Date Filed __11-08-99 CUMBERLAND Docket No. CV 99-644
County
- Action REMOVAL FROM DISTRICT COURT - CONTRACT
?
UNIVERSITY OF NEW ENGLAND HARVEY WEINSTEIN VS. Plaintiff’s Attorney Defendant’s Attorney KENNETH E. KIMMEL ESQ 985-4160 © -' Jyarvey WEINSTEIN - PRO SE 62 PORTLAND RD. 79 CALEB ST... .. 3 KENNEBUNK, ME 04043 PORTLAND ME. , 04102 ..
TERESE L. FITZPATRICK, ESQ.,(CO-COUNSEL)
Jon A. Haddow, Esq. . , eCHT 61 Main Street, Suite 1 BONALD L.GARBREC P.O. Box 738 Law LMRARY Date of Bangor, Maine 04402-0738 7 ate 0 THOMAS MARJERISON ESQ y 24 N08 Entry wi PO _ BOX 4600, Portland 04112 1999
Nov. 09 Received 11-08-99: Defendant's Notice of Removal to Superior Court filed.
All paper work received from 9th District Court, -Division of Southern Cumberland (POR CV 99-1023).
"
) Nov. 22 Received 11.22.99: Appearance of Attorney Terese L. Fitzpatrick, Esq., as co-counsel with Kenneth E. Kimmel, Esq., on behalf of University of New England
fil fsiice: S answer to counterclaim filed.
Nov. 24 Received 11/23/99:
Defendant's Motion for Enlargement of Time to Respond to Plaintiff's Motion for Summary Judgnent filed.
Nov. 29 Received 11/29/99:
Scheduling Order filed. (Mills, J.)
The entry will be: "Scheduling Order filed. Discovery deadline is 08/01/00.
On 11/30/99 copy mailed to Kenneth Kimmel, Esq. and Harry Weinstein,
Dec. O1 Received 11.30.99: Plaintiff's objection to defendant's motion for enlargement of time filed.
Dec. 09 Received 12/08/99: Defendant's Motion for Enlargement of Time for Discovery filed.
Dec. 10 Received 12/09/99:
Request for a Hearing on Defendant's Motion for Enlargement of Time for Discovery filed. to Certificate of Service filed.
mre Request for a Hearing on Defendant's Motion for Enlargement of Time to Respond to Plaintiff's > Motion for Summary Judgment filed.
VY
vy ratio
STATE OF MAINEA! = | Ci: 45.35 SUPERIOR COURT CUMBERLAND; :s¥' Beh ay EVE CIVIL ACTION
GLERKS - DOCKET NO. CV-99-644
Net \G 413 Pi “dO VM ~Cum = loft (rece UNIVERSITY OF NEW ENGLAND,
Plaintiff vs. ORDER ON PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT HARVEY WEINSTEIN,
The plaintiff seeks a summary judgment on the defendant's counterclaim filed 11/4/99'. For the following reasons, the motion is granted.
In support of its motion for summary judgment, the plaintiff filed a three- page, 23-paragraph statement of undisputed material facts. See M.R. Civ. P. 7(d)(1). In response, the defendant filed a 68-paragraph, 54-page statement of disputed material facts. See M.R. Civ. P. 7(d)(2) ("[A] separate, short and concise statement of the material facts, supported by appropriate record references, as to which it is contended that there exists a genuine issue to be tried."). The defendant's statement of facts is supported, in part, by the defendant's affidavit, which does not comply with the requirements of Rule 56. See M.R. Civ. P. 56(e). The granting of defendant's motion to amend the jurat in his affidavit, filed after the plaintiff's reply memorandum, would not solve the many objectionable parts of his affidavit.
Finally, because the defendant does not specifically rebut the plaintiff's statement of
1 The defendant filed a 73-page counterclaim on 3/29/00. No motion to amend the counterclaim was filed and there was no written consent of the plaintiff. See M.R. Civ. P. 15(a).
material facts, the plaintiff's facts are deemed admitted. See Saucier v. State Tax
Assessor, 2000 ME 8, 9 5, 745 A.2d 972, 974.
Based on this record, there is no genuine issue of material fact to be tried regarding any breach of contract, wrongful dismissal, or due process violation on the part of the plaintiff.
The Plaintiff's Motion for Summary Judgment on the Defendant's Counterclaim is GRANTED. Judgment is
entered in favor of the Plaintiff and against the Defendant on the Defendant's Counterclaim.
Date: October 16, 2000 [uth Mer
Nancy Mills Justice, Superior court
Date Filed 11-08-99 CUMBERLAND Docket No. CV 99-644 County
Action REMOVAL FROM DISTRICT COURT - CONTRACT
UNIVERSITY OF NEW ENGLAND HARVEY WEINSTEIN a oe . vs.
Plaintiff's Attorney Defendant’s Attorney KENNEPIt KEMPE ES6--965-4160 © ‘| JuapveEy WEINSTEIN - PRO SE 62 PORTLAND RD. 79 CALEB ST... «i KENNEBUNK, ME 04043 PORTLAND ME. , 04102 PERESE- ir -FEPZPAPRECK— -, (CO-COUNSEL) | 773-2135
BOAMIALT | ‘ae aye
Jon A. Haddow, Esq. 61 Main Street, Suite 1
P.O. Box 738 OCT 31 9009 Bangor, Maine 04402-0738 °
Eny THOMAS-MARJERESON-BSQ RO-BOX-46007-Rexttand-6444+2 1999 Nov. 09 Received 11-08-99: Seo tet anteater ne a ae a Defendant's Notice of Removal to Superior Court filed. " " All paper. work received from 9th District Court, Division of Southern Cumberland (POR CV 99-1023). Nov.
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