Reo Marine, Inc. v. Johnson

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-20-549

REO MARINE, INC.,

Plaintiff

V. ORDER

KENNETH JOHNSON

Defendant and Counterclaim-Plaintiff

V.

RICHARD REO,

Additional Party on Counterclaim

Before the court is a motion by Rea Marine Inc. and Richard Rea (refened to collectively

as Reo Marine) to strike the counterclaims asserted by Kenneth Johnson. Rea Marine asserts

that Johnson's counterclaim should be dismissed based on the doctrine of spoliation - because

Johnson had repairs performed before Rea Marine' s expert examined the alleged damage which

forms the basis of Johnson's counterclaims.

This action arises from the hauling, winter storage, and relaunching by the Reo Marine

boatyard of a trawler named "Serenity" that is owned by Johnson.

Reo Marine alleges that although it stored and launched Johnson's trawler in 2019-20,

Johnson has not paid Reo Marine for its services and for repairs performed by Reo Marine to the

keel of the trawler. Rea Marine further alleges that when it launched the trawler on July 2, 2020,

Johnson tendered Reo Marine a check to pay Reo Marine but stopped payment on that check

before it cleared.
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For his part, Johnson alleges that the damage to the keel of the trawler was the fault of

Reo Marine and was caused when the trawler was hauled in November 2019. 1 He further alleges

that Richard Reo promised to repair the keel at Reo Marine's expense. Nevertheless, Johnson

alleges, when it came time to launch the trawler on July 2, 2020, Reo Marine presented a bill for

the keel repairs as well as for the winter storage and refused to launch the trawler until Johnson

paid for the keel repairs, as well as for winter storage and certain other costs.

Johnson's counterclaims further allege that the repairs performed by Reo Marine were

defective, and he seeks compensation for damage to the trawler due to Reo Marine's alleged

failure to adequately repair the damage it had caused. Answer and Amended Counterclaim ~~ 46­

47. It appears that the damages sought by Johnson on this claim dwarf the dispute between the

parties with respect to storage fees and the amount originally billed for repairs, and it is this

claim that is the subject of Reo Marine's motion to strike.

Reo Marine's motion is denominated as a motion to strike or in the alternative to dismiss

but does not cite any specific rule of civil procedure. The court considers Reo Marine's motion

as a request for discovery sanctions. At oral argument on June 23, counsel for both parties

confirmed that all the relevant communications between the parties had been provided to the

court and agreed on the timeline set forth below.

At the outset, although Reo Marine's motion 1s addressed to all of Johnson's

counterclaims, it really only applies to Johnson's claims that Reo Marine's repairs were defective

- an aspect of Johnson's alleged damages on count I of his counterclaims (breach of contract)

and the damages sought on count II of his counterclaims (negligence). Counts III, IV, and V of

Johnson's counterclaims instead relate to the dispute between the parties as to whether Reo

1 Specifically, by "excessive point loading" in the manner in which the hull was positioned on blocks

after being hauled from the water.

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promised to repair damage allegedly sustained when the trawler was hauled in the fall of 2019 at

Reo Marine's expense.

Discussion

The parties agree that the Law Court has not addressed the criteria for applying the

doctrine of spoliation in civil cases. Where evidence has been destroyed or otherwise made

unavailable by actions of a party to litigation, the First Circuit and several Superior Court

decisions have focused on two factors: (I) the degree of prejudice to the non-offending party and

(2) the degree of fault of the non-offending party. See, e.g., Collazo-Santiago v. Toyota Motor

Corp., 149 F.3d 21, 29 (1st Cir. 1998). The issue of prejudice is afforded more weight, and

imposition of a spoliation sanction is designed to prevent the non-offending party from

suffering "unfair prejudice." Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1 51

Cir. 1997).

The spoliation issue in this case arises from the fact that, while there was a dispute as to

financial responsibility for Reo Marine's repairs, Johnson apparently did not asse1i that the
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repairs had also been defective until after the trawler had been hauled in the fall of 2020.

Johnson provided an expert report to Reo Marine in the fall of 2020 but that report3 stated that a

more detailed examination with bottom paint removed would be necessary. Counsel and perhaps

other representatives of Reo Marine inspected the trawler at that time and photographs were

2 Submissions by Reo Marine suggest that there is a counterargument that any damage to the trawler
apparent in the fall of2020 occurred while it was being operated during the summer of 2020, after it had
left Reo Marine.

3 A copy of that report, as updated in March 2021, is contained in the court's file.

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taken and are available. 4 However, Johnson's expe1i report was incomplete at that time, and

presumably for that reason Reo Marine did have an expert inspect the trawler in the fall of 2020.

Reo Marine's claim of spoliation arises from the fact that in March of 2021 counsel for

Johnson advised counsel for Reo Marine that the bottom paint had been removed and Johnson

intended to have repairs performed before the trawler was launched in the spring of 2021.

Johnson's counsel suggested that ifReo Marine wanted to have an expert inspect the trawler, that

should occur before April 16, 2021. Counsel for Reo Marine immediately wrote back to say that

Reo Marine did not consent to having any repairs performed without a court order, noting that

the supplemental report from Johnson's expert had not been received.

The next day, however, counsel for Reo Marine modified his position to state that

Johnson should not make any repairs to the part of the trawler allegedly damaged and improperly

repaired by Reo Marine "between now and June 5111, 2021" unless Reo Marine consented or

Johnson obtained leave of court. Letter of March 16, 2021 emailed to counsel for Johnson (Ex.

BA3- to Bond affidavit) (emphasis added).

On the same date counsel for Reo Marine emailed counsel for Johnson to propose that

Reo Marine expert inspect the trawler on Monday March 22. Counsel for Johnson responded that

she had an all-day mediation on March 22 and suggested late afternoon on March 23, 24, or 26.

(Ex. BA4 to Bond affidavit).

The record does not contain any further communications between counsel on scheduling

an inspection by Reo Marine' s expert. It appears instead that counsel for Reo Marine began

focusing on other issues between the parties. It was not disputed at the June 23 argument that the

4 At oral argument on June 23, counselfor Reo Marine acknowledged that representatives ofReo Marine
may have had some oppotiunity in the fall of2020 to inspect the trawler after bottom paint had been
removed.

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final report by Johnson's expert (updated on March 10, 2021) was provided sometime in March

2021.

The repairs that Reo Marine now claims constituted spoliation were performed for

Johnson by a person named Mike Kelly in early June of 2021. The exact dates of the repairs are

not revealed by the record but there is no evidence that they were performed prior to June 5 - the

date set forth in counsel's Mai·ch 16 letter as the end date of the period in which Johnson was

instructed that no repairs should be performed.

With its motion Reo Marine has submitted an affidavit by its proposed expert witness that

essentially says that the June 2021 repairs pe1formed by Kelly have eliminated any alleged

dainage that may have existed. As a result, with one exception, 5 he states that he is unable to

offer any opinion as to that damage, as to the cause and effect of that damage, and as to the

repairs originally performed by Reo Marine.

On this record, the court cannot grant the sanction requested by Reo Marine. First, Reo

Marine was prepared to inspect the trawler on March 25 and offers no explanation of why no

inspection was conducted during the period from March 26 to June 5. There is no evidence that

Johnson frustrated an inspection during that period. Indeed, counsel for Johnson specifically

proposed three dates during the March 25 week. If those dates did not work, all of April and May

remained. For whatever reason Reo Marine did not arrange an inspection prior to June 5 (the

date its own counsel had specified). As a result, the court carrnot find that Reo Marine has

suffered "unfair" prejudice in this case. Sacramona v. Bridgestone/Firestone, Inc., I 06 F.3d at

446.

5 From an inspection of small section of fiberglass that had been removed during the original Rea Marine
repair, Rea Marine's expert is able to offer the opinion that the condition appeared to result from
delamination due to fatigue rather than excessive point loading.

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Although not necessary to this ruling, the court is also not convinced that the prejudice to

Reo Marine is quite as extreme as claimed. Reo Marine has submitted deposition testimony of

Mike Kelly that appears to support Reo Marine's claim that the original repairs were properly

performed. Reo Marine's expert, as noted above, is able to render an opinion undercutting the

claim that there was initial damage to the hull from excessive point loading. Finally, there are

photos of the bottom of the trawler from the fall of 2020. Representatives of Reo Marine·

inspected the trawler at that time, when Reo Marine was aware of the general theory of

Johnson's expert from his October 2020 report. The court suspects those photos provide some

evidence bearing on the defective repair claim.

Because the court has not found unfair prejudice, it does not have to consider the

allegedly offending patty's degree of fault. Given the evidence that Reo Marine was afforded

more than two months in which to arrange for an inspection before the repairs were performed, it

is difficult for the court to conclude that Johnson was an "offending party." Courtesy would

perhaps have called for Johnson to have infmmed counsel for Reo when the repairs were actually

going to take place, but that does not justify the sanction requested by Reo Marine in this case.

The entry shall be:

The motion by Reo Marine and Richard Reo to strike Kenneth Johnson's
counterclaims is denied. The Clerk is directed to incorporate this order in the
docket by reference pursuant to Rule 79(a).

DATED: June~, 2022

Thomas D. WaiTen
Active Retired Justice, Superior Court

Plaintiff REO Marine and Richard Reo­
Chnstopher Bond, Esq.
6 Defendant-James Haddow, Esq.
ST ATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-20-549

REO MARINE INC.,

Plaintiff
\I. ORDER

KENNETH JOHNSON,

Defendant

V.

RICHARD REO,

Third-Party Defendant.

Before the comt are four motions: .( 1) a motion by plaintiff .REO Marine Inc. anq third­

.·... party defendant Richard Rea to •dis111iss ·. counts JI, IV, Y
and·. of defendant Kenneth JohnSOll '$ . ·. .

·. ·.·.. counterdaimand third party •. complaint;.(2).REQMarine' s.motionfor••summary judgment on count .·.

·. JI of its complaint against Johnson;. (3) REOMarine'smotionfor anattach1nent on CountU. ofits .•.•· ·.

·. complaint; and (4) Johnson's.cross-motionforsummaryjudg1nent on.count II.of REO.Marinc's

complaint.

This action arises from the llauling, winter storage,andrelaunching by the REO Marine

boatyard of a trawler named "Serenity" thatis .owned by Johnson ..

REO Marine alleges that although it stored and launched .Johnson's trawler in 2019-20,

Johnson has not paid REO Marine for its services and for repairs to the keel of the trawler. R.EO

Marine further alleges that when it launched the trawler on July 2, 2020, Johnson tendered REO

Marine a check for $6,853.96 but stopped payment on that check before it cleared.
For his pai1, Johnson alleges that the damage to the keel of the trawler was the fault of REO

Marine and was caused when the trawler was hauled in November 2019. He fmiher alleges that

Richard Reo promised to repair the keel at REO Marine's expense. Nevertheless, Johnson alleges,

when it came time to launch the trawler on July 2, 2020, Reo presented a bill for the keel repairs

as well as for the winter storage and refused to launch the trawler until Johnson paid for the keel

repairs, as well as for winter storage and certain other costs.

REO Marine is seeking the$ 6,853.96 which it contends Johnson owed as of July 2, 2020

plus additional charges, costs and interest inctmed since July 2, 2020, amounting to a total of$

9,471.81. Johnson apparently does not contest that he owes $ 3,408.38 for winter storage but

dispµtes that he owes anything more. 1

Motion to Dismiss

i .At the. outset,. although Richard Reo .has been flamed as . a third~party def~ndi:mt in his
individual capacity, it is not clear that Johnson's claims against Reo are proper third party claims.

M.R_.Civ.P. 14(a) .allows a defendant to a.ssert claims asa thirdparty plaintiff againsta person··.. ·.·.·.

~'who is or may be liable to such third party plaintiff for all orpart ofthe plaintiffs claim against

the third party plaintiff." Some or all of Johnson's claims against Reo individually are not based

on the theory that Reo should be found liable to Johnson if Johnson is found liable to REO Marine.

Instead, Johnson is asserting claims against Reo that do not depend on whether Johnson is found

liable to REO Marine. Rather than a third party defendant, therefore, Rea is more properly

considered to be an additional party on Johnson's counterclaim pursuant to M.R.Civ.P. l 3(h).

1 The summary judgment record reveals that Johnson has tendered $ 3,408.38 to REO Marine but that

was not accepted by REO Marine. Johnson Statement of Additional Material Facts (SAMF) dated March
2, 2021 ~ 42; REO Marine Reply Statement of Material Facts (Reply SMF) dated March 9, 2021 ~ 42;
Februa1y 9, 202 l Richard Rco affidavit ,1 65.

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However, the court sees no prejudice to Reo from the mischaracterization of the claims

against him as third-party claims and would permit Johnson to rep lead if the issue had been raised

by Reo.

Johnson's counterclaims assert five counts against REO Marine: breach of contract (Count

I), negligence (Count II), violation of the Unfair Trade Practices Act (Count III), fraud (Count IV),

and negligent misrepresentation (Count V). Johnson's claims of fraud and negligent

misrepresentation (Counts IV and V) are also brought against Reo in his individual capacity. REO

Marine and Reo individually are seeking to dismiss Counts II, IV, and Von the ground that those

claims are barred by the economic loss doctrine and are alternatively seeking to dismiss Count IV

on the ground that Johnson has failed to allege an actionable fraud claim.

For purposes of a motion to dismiss, the material allegations of the counterclaims must be

taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ~ 2, 54 A.3d 710. The counterclaims

must be read in the light most favorable to Johnson to determine if they sets forth elements of a

cause of action or alleges facts that would entitle Johnson to relief pursuant to some legal theory.

Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ~ 2, 909 A.2d 1010. Dismissal is appropriate

only when it appears beyond doubt that the Johnson would not be entitled to relief under any set

of facts that he might prove in support of his claim. Moody v. State Liquor & Lotte1y Commission,

2004 ME 20 ~ 7, 843 A.2d 43. However, Johnson may not proceed if his counterclaims fail to

allege essential elements of the cause of action. See Potter, Prescott, Jamieson & Nelson P.A. v.

Campbell, 1998 ME 70 ilil 6-7, 708 A.2d 283.

As set forth above, REO Marine and Reo argue that Counts II, IV and V of the Johnson's

counterclaims are barred by economic loss doctrine, which set forth by the Law Court in Oceanside

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at Pine Point Condominium Owners Assoc. v. Peachtree Doors, Inc., 659 A.2d 267, 270 (Me.

1995).

Under the economic loss doctrine, where a claimant is complaining about a defective

product and the sole damage is to the product itself, the claimant is limited to his remedies for

breach of contract and breach of warranty and is not entitled to assert tort claims in addition to

contractual claims. The doctrine has also been applied to service contracts to preclude tort claims

where the party to a service contract is complaining about damage to property for which the party

has a remedy for breach of contract and/or breach of warranty. See Maine Rubber lntemational v.

Environmental Management Group. Inc., 298 F.Supp.2d 133, 136-37 (D.Me. 2004). 2

Johnson is contending that REO Marine is liable for causing damage to the keel of his

vessel, which could conceivably fall within an express orimplied warranty under a winter storage

contract between Johnson and REO Marine. However, there does not appear to have been any

written winter storage contract between REO Marine and Johnson, and at the pleading stage, the

court is not prepared to conclude that Johnson's tort daimsare barred by the economic loss ·.

doctrine. Both parties are alleging that some formof contract existed, but the terms of that contract

are uncertain. The economic loss doctrine may apply in thiscase, but whether that is true cannot

be determined on a motion to dismiss ..

REO Marine and Reo contend in the alternative that Johnson's count IV, alleging fraud,

fails to state a claim upon which relief may be granted. Primarily they contend a claim of fraudulent

misrepresentation cannot be based on pl'omises of future action - such as Rea's alleged promise

2 This cou1t has previously found that the economic loss doctrine applies to losses claimed by a boat
owner against a boatyard that was alleged to have negligently damaged a boat stored for the winter. Other
Superior Court justices, however, have reached different conclusions as to whether the economic loss
doctrine applies to service contracts. To the court's knowledge, the Law Court has not addressed lhe
issue.

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that REO Marine would repair the damage to the trawler's keel at its expense. Plaintiffs Motion

to Dismiss dated February l, 2021 at 7-8, citing a line of cases culminating in Coffin v. Dodge,

146 Me. 3, 76 A.2d 541 (1950).

Since the cases cited by REO Marine, however, the Law Court has adopted the view

expressed in Restatement (Second) of' Torts §§ 525 and 530(1) that "[a] representation of the

maker's own intention to do or not to do a particular thing is fraudulent if he does not have that

intention." See Cianchel/e v. Cianchel/e, 2019 ME 87 ilil 22-26, 209 A.3d 745. Johnson has also

alleged that he relied on the alleged statement by Reo that the keel repairs would be performed at

REO Marine's expense. Accordingly, at the pleading stage, Johnson has stated a cognizable claim

of fraud.

Whether Johnson can prevail on that claim depends on whether he can prove by clear and

convincing evidence that Richard Reo represented that the keel repairs would be performed at

REO Marine's expense, that when Reo made that representation, he had no intention of performing

the repairs at REO Marine's expense, that Reo made that representation to induce reliance by

Johnson, and that Jolmsonjustifiably relied on that representation. Those are issues that cannot be

decided on a motion to dismiss.

Cross-Motions for Summary Judgment

The pm1ies have filed cross-motions for summaiy judgment on count lI ofREO Marine's

complaint, which seeks to hold Johnson liable on the grounds that because he stopped payment on

his$ 6,853.96 check, he became liable for a dishonored check under 14 M.R.S. § 6071 (l).

Summary judgment should be granted if there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. In considering a motion for summary

5
judgment, the court is required to consider only the portions of the record referred to and the

material facts set forth in the parties' Rule 56(h) statements. E.g., Mahar v. Stone Wood Transport,

2003 ME 63 ,i 8, 823 A.2d 540. The facts must be considered in the light most favorable to the

non-moving pal1y. Id. Thus, for purposes of summary judgment, any factual disputes must be

resolved against the movant. Nevertheless, when the facts offered by a party in opposition to

summaty judgment would not, if offered at trial, be sufficient to withstand a motion for judgment

as a matter oflaw, summary judgment should be granted. Kenny v. Depal'lmenl o/Human Services,

1999 ME 158 ii 3, 740 A.2d 560.

Section 6071 (1) of Title 14 provides as follows:

In any action against a person liable for a dishonored check, the holder
may recover the atnount of the check, the coUlt costs at1d processing
chat·ges incmred by the holder, plus interest at the rate of 12% per anmm1
from the date of dishonor if

(A) The holder gives notice pursuant to section 6073 for payment of
the check; and

(B) The person liable fails to tender the amount of the check, plus
bank fees and mailing costs, within 10 days ofreceiving the notice
set forth in section 6073.

Perhaps explaining the amount of effort the parties have expended on this case given the amounts

involved, if a person who is liable does not pay the amount of the check, the court may award

reasonable attorney's fees to the prevailing pai·ty. 14 M.R.S § 6073(2).

Although the parties have offered 136 statements of purportedly material facts on their

cross-motions, the court finds that the issues can be distilled to a manageable number of

undisputed facts and disputed facts.

The undisputed facts arc the following: Before Johnson's trawler was launched, REO

Marine sought payment in the amount of $ 6,853.96, which included an amount for the keel

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repairs. Johnson wrote a check for that amount and gave it to Richard Reo. Johnson then stopped

payment on that check. REO Marine deposited the check but it was returned with the notation

"Stop Payment."3 Counsel for REO Marine then sent a notice to Johnson under 14 M.R.S. § 6073

instructing Johnson to make payment of$ 6,853.96 plus bank and mailing costs of$ 25.00 within

l O days, and Johnson did not do so. REO Marine Statement of Material Facts filed on February

9, 2021,r,r11-12, 15, 19, 22, 28-30. 4

The material facts that are in dispute are the following: ( 1) whether the damage to the keel

was caused by REO Marine when it hauled the trawler in November 2019; (2) whether Reo

acknowledged in November 2019 that the keel damage was his fault and promised to repair it at

no expense to Johnson; (3) whether Reo refused to launch the trawler on July 2, 2020 unless

Johnson paid the$ 6,583.96 that REO Marine sought, includi11g the keel repair cost that Reo had

allegedly promised to perform at REO Marine's expense; and ( 4) whether Johnson, in tendering

the$ 6,583.96 checl<. to Reo, stated that he was doing so un~er protest. Jolinson SAMF ~!if 9:11,

14-15, 33, 36. Johnson has offered evidence as to these issues, which is disputed by REQMarine. 5

REO Marine argues that Jollnson's $ 6,583.96 checkconstituted a negotiable instrument
which constituted an unconditional promise to pay and thatbecause Johnson stopped payment on

3 A copy of the check, as returned, is contained in the summary judgment record as Exhibit E to the
February 9, 202 l affidavit of Richard Rea.

ii~ 15 and 28-29 of REO Marine's SMF. Although Johnson qualified ii~ 11-12, 19, 22,
4 Johnson admitted
and 30 of REO Marine's SMF, none of those qualifications controve1t the essential facts recited above.

5 The patties also dispute whether Johnson had the funds in his bank account to cover the$ 6,583.96
check if he had not stopped payment. REO Marine has offered evidence that the balance in the account
would not have been sufficient. Johnson has offered evidence that his checking account is linked to his
savings account so that funds are transferred from his savings account lo cover any excess charges in his
checking account.

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the check and subsequently declined to make payment after receiving notice under 14 M.R.S. §

6073, REO Marine is entitled to summary judgment against Johnson under 14 M.R.S. § 6071 (1 ).

As the court sees it, there are several problems with that argument.

The first is that section 6071 (1) applies to a "dishonored check," but it is not clear that a

check on which payment has been stopped is a "dishonored" check within the meaning of section

6071(1). The original version of section 1071 specifically applied to checks that were dishonored

for lack of fonds or credit to pay the check or because the maker of the check had no account with

the bank on which it was drawn. P.L. 1989, ch. 357. The Legislature amended the statute in 1995

to refer to dishonored checks generally, but there is no legislative histmy on whether that

amendment was intended to apply to checks on which payment had been stopped.

There is some reason to question whether that was the intent because I I M.R.S. § 4-403( 1)

expressly provides that a bank account holder may stop payment on checks drawn to

that customer's account. The right to stop payment would not be worth much if, any time an

account holder chooses to stop payment, the account holder then automatically becomes subject

to liability under section 6071(1) for dishonoring a check.

Perhaps more importantly, in addition to the right of account holders to stop payment on a

check, the UCC specifically provides that, unless a claimant is a holder in due course, negotiable

instruments are subject to defenses that may be raised against the party seeking to enforce the

instrument. 1 I M.R.S. § 3-1308(2). The defenses that may be raised include any defenses that

would be available if the person seeking to enforce the instrument were enforcing a right to

payment under a contract, and the right to enforce a negotiable instrument is also subject to any

claims in recoupment. 11 M.R.S. § 3-1305(1)(b). See J'vfaine Family Federal Credit Union v. Sun

Life Assurance Co., 1999 ME 43 ~ I 3, 727 A.2d 335. Accordingly, Johnson is entitled to raise the

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defenses that the keel damage was caused by REO Marine and that Richard Reo promised to repair

the keel at no cost to Johnson. On those issues Johnson has offered sufficient evidence to raise

disputed issues of fact, and it follows that REO Marine's motion for summary judgment on count

II of the complaint must be denied.

Citing Champagne v. Phenix Tille Services LLC, 2016 Me. Super. LEXIS 20 (Superior Ct.

Cumberland County, January 27, 2016) (Mills, J.), Johnson argues that because he stopped

payment, 14 M.R.S.§ 6071 is inapplicable and that therefore he is entitled to summary judgment

on count II ofREO Marine's complaint. In response, REO Marine argues that this is only true ifa

"if a stop payment order is not wrongful." REO Marine Reply on Motion for Summary Judgment

at 9. REO Marine goes on to argue that the facts demonstrate that Johnson's stop payment order

was wrongful because he did not have sufficient funds in his account to pay the check.

As discussed above, there is a disputed issue of fact as to whether the check would have

cleared absent the stop payment order. There is also no law in Maine of which the court is ware

that defines when a stop payment order is "wrongful." At least one other state has enacted a statute

providing monetary penalties if a stop payment order is issued "without valid legal cause," see

Indiana Code§ 26-2-7-4(1), but it is not evident to the court that 14 M.R.S. § 6071(1) is intended

to achieve the same result. At this time, because there are disputed issues of fact, the court will

reserve decision on whether and under what circumstances 14 M.R.S. § 6071(1) may provide a

remedy to REO Marine in this case and will deny Johnson's cross-motion for summary judgment

on Count II ofREO Marine's complaint.

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Motion for Attachment

REO Marine's motion for attachment is also based on its claim against Johnson under 14

M.R.S. § 6071(1). In this connection, REO Marine is not seeking an attachment against Johnson

in the amount of$ 9,471.81 but is seeking an attachment against the trawler and an order allowing

REO Marine to take possession of the trawler.

There arc statutory provisions for liens against vessels "to secure the payment of debts

contracted and advances made for labor and materials necessary for their repair." IO M.R.S. §§

3 851-63. As far as the court is aware, there are no reported cases under those statutory provisions.

While those statutes appear to provide that if a lien for debts contracted and labor and materials

necessary for repair remains unpaid, a court may order that the vessel be sold at auction to satisfy

the lien. 10 M.R.S. § 3863. However, the court can find no authority to allow REO Marine to take

possession of the trawler. If anyone is entitled to take possession of the trawler, it would be the

sheriff when enforcing the lien. See 10 M.R.S. §§ 3853.

In any event, the court has reviewed the submissions of the parties and does not find that,

on this record, it is more likely than not that REO Marine will prevail against Johnson for more

than the$ 3,408.38 which Johnson has tendered and which has been refused by REO Marine. On

various issues - including whether the damage to the trawler keel was caused by REO Marine,

whether Richard Reo promised to repair that damage at no cost to Johnson, whether Reo later

insisted on payment for those repairs before he would allow the trawler to be launched, and on

whether Johnson stated that his $ 6,583.96 check was provided under protest - the affidavits of the

parties are squarely at odds.

Accordingly, REO Marine's motion for attachment and possession of the trawler is denied.

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The entry shall be:

1. The motion by REO Marine Inc. and Richard Rea to dismiss counts II, IV, and V of
Kenneth Johnson's counterclaims and third-party claims is denied.

2. REO Marine Inc.'s motion for summary judgment on count II of REO Marine's
complaint is denied.

3. Kenneth Johnson cross-motion for summary judgment on count II of REO Marine's
complaint is also denied.

4. REO Marine's motion for an attachment and possession of the trawler is denied.

5. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: July_J_j_, 2021

Thomas D. Warren
Justice, Superior Court

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