Opinion
CUMSC-CV-16-0433
12-15-2017
JOHN F. CHASE Plaintiff and Counterclaim Defendant v. BRUCE G. CHASE Defendant and Counterclaim Plaintiff and JANET CHASE Counterclaim Plaintiff
Attorney for Plaintiff: Gene Libby, Esq., Tyler Smith, Esq., Libby O'Brien Kingsley. Bruce Chase, Defendant and Counterclaim Plaintiff. Pro-Se. Janet Chase, Counterclaim Plaintiff only, Pro-Se.
Attorney for Plaintiff: Gene Libby, Esq., Tyler Smith, Esq., Libby O'Brien Kingsley.
Bruce Chase, Defendant and Counterclaim Plaintiff. Pro-Se.
Janet Chase, Counterclaim Plaintiff only, Pro-Se.
ORDER ON PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
A. M. Horton, Justice.
This case is before the court in connection with Plaintiff John F. Chase's Motion for Summary Judgment on All Pending Claims. Defendant and Counterclaim Plaintiff Bruce G. Chase and Counterclaim Plaintiff Janet Chase have filed a response, titled Answer to Motion for Summary Judgment, but have not filed any signed opposing affidavits or any statement in response to Plaintiffs statement of material facts.
The court elects to decide Plaintiffs Motion without oral argument. See M.R. Civ. P. 7(b)(7). Based on the entire record and for the reasons set forth herein, the Plaintiffs Motion is hereby granted in part.
Background
The underlying facts can be summarized as follows:
Plaintiff John F. Chase and Defendant/Counterclaim Plaintiff Bruce G. Chase are brothers. Counterclaim Plaintiff Janet Chase is Bruce Chase's spouse.
In 2015, Bruce Chase was convicted of a felony theft charge for misappropriating about $159,000. John Chase paid restitution of $159,000 on behalf of his brother and also paid off about $58,000 of credit card debt owed by Bruce and Janet Chase. In consideration for the payments made by John Chase on his and his wife's behalf, Bruce Chase executed a Secured Promissory Note dated May 1, 2015 for the principal amount of $228,013.30, with interest at 8% annually. The Note recites that payment is due only upon Bruce Chase's death, and it is secured by four life insurance policies covering Bruce Chase as the named insured:
Primerica Insurance policy no. 0421725562
Maine Public Employees Retirement System Group Life Policy
CMFG Life Insurance Company Group Accidental Death Insurance Policy, Credit Union No. 018-0005-0, Certificate No. G2490467
Portland Maine Police Department Federal Credit Union, Association No. 018-0082-7, Certificate No. A4546809
The Note requires Bruce Chase to "immediately execute Beneficiary Designations which shall designate John F. Chase as the sole and irrevocable beneficiary of the above-named policies." The Note also requires Bruce Chase to make timely payment of all premiums due on the policies, and provides that, if John Chase pays any premium, the amount paid will be added to the total principal due, with interest at 8%.
The Note contains a merger provision: "This Note sets forth the entire understanding of the Borrower and Lender with respect to the subject matter hereof and supersedes any prior agreement, representations or understandings related to the same."
John Chase's Complaint alleges that Bruce Chase has failed to execute the irrevocable designations of John Chase as beneficiary, as required by the Note. His Complaint alleges breach of contract and seeks specific performance and injunctive relief-a judgment requiring Bruce Chase to execute the designations and enjoining him from making any further changes in beneficiary on the four policies.
Bruce Chase responded to the Complaint with an answer and counterclaim, and his wife, Janet Chase, joined the action as a counterclaim plaintiff. Their New Amended Counterclaim alleges that John Chase is in breach of an agreement that he and Bruce and Janet Chase reached in 2009, with the following material terms:
• John Chase would provide Bruce and Janet Chase with housing in Naples, Maine, at no cost, for as long as they wished to live there;
• Bruce and Janet Chase would sell their home and turn over the proceeds to John Chase and move to the Naples property
• John Chase would employ Bruce Chase for as long as Bruce could work, and would employ Janet Chase to age 62
• John Chase would pay the cost of health insurance for Bruce and Janet Chase until they turned 65
• John Chase would provide accommodations in Florida for Bruce and Janet Chase during the winter months, at no cost to them
Bruce and Janet Chase's New Amended Counterclaim asserts that they fulfilled their side of the agreement, but that John Chase has breached his side of it. It asserts that John Chase is liable to Bruce and Janet Chase on grounds of promissory estoppel and unjust enrichment, and also seeks damages for breach of the agreement and for emotional distress.
For purposes of his Motion, John Chase has not disputed Bruce and Janet Chase's characterization of the agreement they say he made with them, although his memorandum notes that he denies that there was any such agreement.
Standard of Review
"The function of a summary judgment is to permit a court, prior to trial, to determine whether there exists a triable issue of fact or whether the question[s] before the court £are] solely . . . of law." Bouchard v. American Orthodontics, 661 A.2d 1143, 44 (Me. 1995).
"[S]ummary judgment is appropriate when the portions of the record referenced in the statements of material fact disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec, Inc., 2007 ME 12, ¶ 11, 915 A.2d 400. "A material fact is one that can affect the outcome of the case, and a genuine issue exists when there is sufficient evidence for a fact finder to choose between competing versions of the fact." Lougee Conservancy v. City-Mortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quotation omitted).
The Maine Rules of Civil Procedure prescribe the materials that both the party moving for summary judgment and the party opposing the motion must file. A party moving for summary judgment must file a statement of material facts with citations to the portions of the record relied on in the statement. See M.R. Civ. P. 56(h)(1). A party opposing a motion for summary judgment must file a responsive statement that admits, denies or qualifies each of the facts set forth in the moving party's statement. See M.R. Civ. P. 56(h)(2).
The moving party in this case, John F. Chase, has filed a motion and statement of material facts in compliance with the rule. The factual assertions in his statement of material facts are supported, in each instance, by citations to the record, primarily to the transcript of the deposition upon oral examination of Bruce Chase, which was filed with the Motion. John Chase has not filed his own or any other affidavit in support of the Motion.
However, the opposing parties, Bruce and Janet Chase, have not submitted a statement of material facts in compliance with the rule. Although they are representing themselves pro se, the law is clear that pro se litigants are held to the same standards as litigants represented by counsel, and are not afforded any special consideration or excuse because they are appearing pro se. See Estate of Turcic, 2017 ME 118, ¶ 5, 164 A.3d 134, citing Richards v. Bruce, 1997 ME 61, ¶ 8, 691 A.2d 1223.
Bruce and Janet Chase's failure to file an opposing statement of material facts does not necessarily mean that John Chase's Motion for Summary Judgment must be granted. However, it does mean that they are deemed to have admitted the properly supported and admissible material facts contained in the statement of material facts filed with the Motion for Summary Judgment. See Prescott v. State Tax Assessor, 1998 ME 250, ¶6, 721 A.2d 169.
The record references contained in John Chase's statement of material facts are mostly to the deposition testimony of Bruce Chase. Bruce Chase's testimony is admissible against him under M.R. Evid. 801(d) (admissions of a party opponent), and is admissible as to Janet Chase to the extent it is relevant and based on personal knowledge rather than hearsay.
Analysis
This analysis first examines whether Plaintiff John Chase has shown that he is entitled to summary judgment on the claim set forth in his Complaint, and then turns to whether he is entitled to summary judgment on Bruce and Janet Chase's New Amended Counterclaim.
1. Plaintiff John Chase's Claim
The Complaint in this case contends that Bruce Chase has failed to designate John Chase as the beneficiary on at least three of the four life insurance policies listed in the Note. John Chase's memorandum notes that he has been advised that Bruce Chase has designated him as beneficiary on the CMFG policy, but John Chase asks that Bruce Chase be enjoined from attempting to alter or undo that designation.
The Note unambiguously requires Bruce Chase to execute irrevocable designations of John Chase as beneficiary on the four listed policies. The undisputed facts also indicate that John Chase is not currently designated as beneficiary on three of the four. The reason why he is not may be in dispute-Bruce Chase claims it is because John Chase's attorney did not handle the designation paperwork correctly. On the other hand, is also undisputed that Bruce refuses to correct the problem and designate John Chase as beneficiary.
As justification for his refusal, Bruce Chase cites to John Chase's breach of the agreement that is the subject of Bruce and Janet Chase's New Amended Counterclaim. However, that argument is barred by the merger provision in the Note. By executing the Note, Bruce Chase agreed that the Note superseded all prior agreements and contained the entire understanding of the parties relating to the Note.
Nothing in the Note allows Bruce Chase to refuse to designate John Chase as beneficiary if John Chase were in breach of an agreement that Bruce and Janet Chase say was made six years before Bruce Chase signed the Note. Moreover, it appears that, as of when he signed the Note on May 1, 2015, Bruce Chase already knew that John Chase was not acting in accordance with the agreement that Bruce and Janet Chase claim he had made back in 2009. Accordingly, any breach by John Chase of the alleged agreement that is the basis for the New Amended Counterclaim does not justify Bruce Chase in refusing to execute an irrevocable designation of John Chase as sole beneficiary of the four policies.
Even if the changes in beneficiary did not go through because John Chase's attorney did not handle the paperwork properly, it is undisputed that John Chase has not been named as beneficiary on three of the four policies.
John Chase is apparently not seeking any damages for Bruce Chase's delay in executing the designations, so the reason for any originally executed designation not taking effect is irrelevant.
For these reasons, John Chase's Motion for Summary Judgment will be granted as to the claims in his Complaint.
2. The New Amended Counterclaim
The sole basis recited in Plaintiff John Chase's memorandum in support of his Motion for Summary Judgment is that the agreement alleged in the New Amended Counterclaim is barred by the Statute of Frauds. See 33 M.R.S. 51. The statute provides, in part:
No action shall be maintained in any of the following cases:
4. Contract for sale of land. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them;
5. Agreement not to be performed within one year. Upon any agreement that is not to be performed within one year from the making thereof;
unless the promise, contract or agreement on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise.
John Chase contends that the agreement alleged in the New Amended Counterclaim is subject to the Statute of Frauds because it could not be performed within one year and because it involves an interest in real property. He also notes that Bruce and Janet Chase have not established that the alleged agreement was documented or memorialized.
The agreement that Bruce and Janet Chase say they made with John Chase in 2009 clearly could not be fully performed within one year, and it also relates to interests in real estate, so it falls within the Statute of Frauds.
However, one aspect of the New Amended Counterclaim that John Chase's filing does not address is the contention-described in detail by Bruce Chase at his deposition-that he and Janet Chase have performed their side of the agreement, by leaving their jobs, selling their home and turning the sales proceeds over to John Chase, in reliance on the agreement. Part performance of an oral contract that would be subject to the Statute of Frauds can give rise to promissory estoppel. See Sullivan v. Porter, 2004 ME 134, ¶¶ 10-11, 861 A.2d 625. In Sullivan, the Law Court defined the burden of persuasion when a party seeks to enforce an oral contract that the Statute of Frauds requires to be in writing:
[T]o remove the contract from the operation of the statute of frauds pursuant to this doctrine, the party seeking to enforce the contract must establish by clear and convincing evidence (1) that the parties did enter into a contract; (2) that the party seeking to enforce the contract partially performed the contract; and (3) that the performance was induced by the other party's misrepresentations, which may include acquiescence or silence.2004 ME 134 at ¶ 11, 861 A.2d 625, citing Cottle Enters., Inc. v. Town of Farmington, 1997 ME 78, P17 n.6, 693 A.2d 330, 335-36; Goodwin v. Smith, 89 Me. 506, 508, 36 A. 997, 998 (1897); Woodbury v. Gardner, 77 Me. 68, 70 (1885).
Bruce Chase's deposition testimony could be considered sufficient to establish all three elements. He asserts that he and Janet Chase did enter into an agreement with John Chase; that they partly performed, by selling their house and turning over the sale proceeds to John Chase and also by leaving their jobs, all in reliance on John Chase's representation that he would perform his side of the agreement. At the summary judgment stage, the court has to view his testimony in a light most favorable to Bruce and Janet Chase.
In that light, given that John Chase is now challenging the enforceability of the alleged agreement, the finder of fact could view his alleged promise to perform his side of the agreement as a misrepresentation for purposes of the part performance doctrine. See Woodbury, 77 Me. at 70 ("After having induced or knowingly permitted another to perform in part an agreement, on the faith of its full performance by both parties and for which he could not well be compensated except by specific performance, the other shall not insist that the agreement is void").
In addition, even assuming that the oral contract is unenforceable under the Statute of Frauds, the Statute of Frauds would not bar Bruce and Janet Chase's unjust enrichment claim. See Estate of White, 521 A.2d 1180, 1181 (Me. 1987); Cressey v. Cressey, 2012 Me. Super. LEXIS 115, at *3 (Cum. Cty., Warren, J.). In fact, the unjust enrichment remedy comes into play in situations where an express contract is unenforceable for reasons such as the Statute of Frauds.
Viewing the summary judgment record in a light most favorable to Bruce and Janet Chase, the court cannot say that they would not be entitled to restitution for unjust enrichment and possibly other relief based on the part performance doctrine.
For these reasons, John Chase's Motion For Summary Judgment will be denied as it relates to the New Amended Counterclaim.
Based on the entire record, it is ORDERED AS FOLLOWS:
1. Plaintiffs Motion for Summary Judgment is granted as it relates to the Complaint, and is denied as it relates to the New Amended Counterclaim. This is an interlocutory ruling that cannot be appealed at this time because the New Amended Counterclaim remains pending. The form of judgment on the Complaint will be determined as of final judgment
2. Trial on the New Amended Counterclaim will be scheduled during the court's next available civil trial term. The parties will exchange updated witness and exhibit lists, and shall mark and exchange their exhibits, no later than 10 days before the trial. A party's failure to exchange a copy of any trial exhibit will likely result in that exhibit being excluded from the evidentiary record.
Pursuant to MR. Civ. P. 79(a), the clerk is hereby directed to incorporate this Order by reference in the docket.