Cumberland Capital, LLC v. Dirigo Capital Advisors, LLC and Kevin J. Mattson

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. CV-2023-201

CUMBERLAND CAPITAL,
LLC,

Plaintiff,
ORDER ON PLAINTIFF’S MOTION
v. FOR SUMMARY JUDGMENT
DIRIGO CAPITAL ADVISORS,
LLC and KEVIN J. MATTSON,

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Defendants.

This matter is before the Court on Plaintiff Cumberland Capital, LLC’s
(“Cumberland Capital”) Motion for Summary Judgment. Cumberland Capital seeks
summary judgment on its two-count Complaint for breach of contract. Defendants Dirigo
Capital Advisors, LLC (“Dirigo Capital”) and Kevin J. Mattson (“Mr. Mattson”) have
failed to oppose the motion. For the following reasons, the Court denies Cumberland
Capital’s Motion for Summary Judgment.

I Summary Judgment Standard

Summary judgment is appropriate “if the summary judgment record, taken in the
light most favorable to the nonmoving party, demonstrates that there is no genuine issue
of material fact in dispute and the moving party would be entitled to a judgment as a
matter of law at trial.” Chartier v. Farm Fam. Life Ins. Co., 2015 ME 29, ¥ 6, 113 A.3d 234;
see MLR. Civ, P. 56(c). “A material fact is one that can affect the outcome of the case, and
there is a ‘genuine issue’ when there is sufficient evidence for a fact-finder to choose
between competing versions of the fact.” Toto v. Knowles, 2021 ME 51, 7 8, 261 A.3d 233
(quoting Stewart-Dore v. Webber Hosp. Ass’n, 2011 ME 26, { 8, 13 A.3d 773). The summary

judgment record consists only of the parties’ properly supported statements of material

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fact and the portions of the record referenced therein. See Dorsey v. N. Light Health, 2022
ME 62, J 10, 288 A.3d 386.
II. Discussion

“When a motion is unopposed, the court need not reach the merits of the motion
because, under Rule 7(c)(3), the adverse party has waived any objection to it.” Petit v.
Lumb, 2014 ME 117, { 8, 103 A.3d 205. Rule 7(c)(3) of the Maine Rules of Civil Procedure
does not, however, obligate the Court to grant an unopposed motion. Id.

Although the pending motion is unopposed, the Court is not inclined to grant it
without reaching its merits because Cumberland Capital failed to include the notices
required under MLR. Civ. P. 7(b)(1)(A) and (B). Accordingly, the Court will proceed to the
merits of the motion.

Cumberland Capital contends that Dirigo Capital defaulted on a promissory note
issued by Cumberland Capital and that Dirigo Capital and Mr. Mattson, under the terms
of a personal guaranty, are liable for the balance. All of Cumberland Capital's statements
of material facts are supported by citations to an affidavit of James Raftice, which
authenticates several attached documents, including the original promissory note and
subsequent modification agreements.

Exhibit E, however, is a printout of a spreadsheet showing the principal balance
and daily accruing interest on the loan from October 1, 2021, to June 30, 2023. The
admissibility of this record is determined by the business records exception under Maine
Rule of Evidence 803(6). To be admissible for the purposes of summary judgment, a
business record must be attached to an affidavit that “establish{es] the affiant’s
qualification to testify to the contents of the record, and the affiant must lay the necessary
foundation for the admissibility of the record pursuant to the business records exception

to hearsay.” Ocean Cmtys. Fed. Credit Union v. Roberge, 2016 ME 118, { 11, 144 A.3d 1178.

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The Raftice Affidavit is insufficient because the affiant does not provide
information about the nature of Mr. Raftice’s role within Cumberland Capital sufficient
to establish that he is intimately involved in the daily operation of the business, nor does
it lay a foundation regarding the making and keeping of the record. See M.R. Evid.
803(6)(A)-(D), The Court cannot consider Exhibit E. Because there is no competent
evidence of the amount due under the promissory note, as modified by the parties’
modification agreements, summary judgment must be denied.

HI. Conclusion

For the foregoing reasons, the Court denies Cumberland Capital’s Motion for
Summary Judgment,

The entry is:

Plaintiff Cumberland Capital, LLC’s Motion for Summary Judgment is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a). 4
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Dated: / O// 0/28 JTAAN Sao
f4 MaryGay Kennedy, Justice
Main uperior Court

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