Norman C. Gile, et al. v. Kenneth Albert

[1] Norman and Anne Gile appeal from orders entered in the District Court
(York, Brennan, J.) granting Kenneth Albert's motion for summary judgment and
denying the Giles' motions for relief from judgment and to amend. The Giles
contend that the court erred in granting Albert's motion for summary judgment and
denying their motions to amend and for relief from the judgment. We affirm the
court's judgment.

I. BACKGROUND

[2] On or about March 18, 1998, Norman and Anne Gile contracted with
Albert Construction to build an addition at their Eliot residence. Building
commenced in early May 1998. Shortly thereafter, the Giles experienced difficulty
in financing the project so Albert stopped work until satisfied that payment
schedules would be met.

[3] The Giles discussed the situation with Albert and he promised to finish
the job. The Giles were under the impression that construction would resume in
the late summer of 1998. In August 1998, Albert told them that he would do no
further work at the Gile site. The Giles hired an attorney.

[4] On May 21, 1999, the attorney retained by the Giles sent a letter to
Albert alleging breach of contract and stating that the Giles had not received a
proper accounting. The attorney stated that no legal action would be pursued if
Albert provided the requested accounting, but that failure to comply would result
in a lawsuit. In a letter dated November 23, 1999, and received by the Giles three
days later, Albert made his first and only attempt to provide an accounting to the
Giles. The Giles allege that the accounting is incomplete and fraudulent.

[5] The Giles filed a complaint on November 23, 2005, alleging breach of
contract and unfair trade practices. In response, Albert filed a motion to dismiss
for failure to state a claim upon which relief could be granted pursuant to M.R.
Civ. P. 12(b)(6). On July 7, 2006, the court granted Albert's motion for summary
judgment on the grounds that the Giles' claim was barred by the statute of
limitations of six years for breach of contract.1 The court found that the
May 21, 1999, letter demonstrated unequivocally that the Giles were aware of the
alleged breach of contract and their right to pursue the dispute in a court of law at
that date. In particular, the Superior Court found that the plain language of the
letter, which was, "you have failed to perform your contractual obligation for
which they are entitled to seek damages amounting to the differences between
what you contracted to do and what it will cost to have the work completed,"
established that as of May 21, 1999, the Giles were aware of their right to seek
"judicial vindication," and their cause of action therefore accrued at that time if not
before.

[6] At the time the court ruled on the motion for summary judgment, the
Giles' motion to amend alleging fraudulent concealment was pending. The Giles'
motion for relief was filed to permit the court to consider the motion to amend. In
their Rule 60 motion, the Giles alleged that their motion to amend had been
missing from the file and so the judge did not have the opportunity to review their
amended pleadings prior to ruling on the motion for summary judgment. On
May 29, 2007, the court denied both motions finding that because the Giles failed
to demonstrate that any material information was concealed from them, there was
no basis for extending the filing period to November 23, 2005. The court found
that the Giles' attorney's letter of May 21, 1999, indicated that the Giles were
aware that they had a viable claim for breach of contract by that date and,
therefore, that their action filed in November 2005 was time-barred. This appeal
by the Giles followed.

II. DISCUSSION

A. Motion for Summary Judgment

[7] The Giles contend that the court failed to properly consider the extent
of their pleadings and relied solely on evidence presented in the May 21, 1999
letter to grant a motion for summary judgment in favor of Albert. Further, the
Giles contend that the court failed to properly consider their allegations of
fraudulent concealment against Albert.

[8] The general statute of limitations in Maine provides that a civil cause
of action must be brought within six years of the date it accrued. 14 M.R.S. § 752
(2007). An action is commenced by the earlier of the date of service on the
defendant or filing the action in court. A cause of action accrues at "the time
judicially cognizable injury is sustained." Dugan v. Martel, 588 A.2d 744, 746
(Me. 1991). For torts, this occurs at "the point at which a wrongful act produces an
injury for which a potential plaintiff is entitled to seek judicial vindication." Id. In
a breach of contract claim, that date occurs when the defendant breaches the
contract. The Giles presented nothing in their opposition to Albert's motion for
summary judgment to create an issue of fact regarding the date of the alleged
breach. The breach of contract action accrued, at the latest, on May 21, 1999, the
date on which the Giles' attorney sent a letter to Albert indicating that the Giles
had a cause of action. The claim filed on November 23, 2005, is therefore barred
by the six-year statute of limitations. Accordingly, the trial court did not abuse its
discretion in granting Albert's motion for summary judgment.

B. The Motion for Relief from Judgment and Motion to Amend

[9] The Giles contend that the trial court committed reversible error in
denying their motion to amend and motion for relief from judgment. We review a
trial court's denial of a rule 60(b) motion for clear error or an abuse of discretion.
Scott v. Lipman & Katz, P.A., 648 A.2d 969, 972 (Me. 1994). Contrary to the
Giles' contention that the court did not pay sufficient attention to their factual
allegations and did not correctly apply well-settled law in its decisions, the plain
language of the court's May 29, 2007, order denying the Giles' 60(b) motion
makes clear that the court properly considered the Giles' arguments and did not
abuse its discretion or commit clear error. See id. Accordingly, we affirm the
court's denial of the Giles' motions to amend and for relief from judgment.

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http://www.courts.state.me.us/opinions/2008%20documents/08me58gi.pdf

Judgment affirmed.

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