Ven Der Wef v. Woolwich Baker Drive, LLC

STATE OF MAINE SUPERIOR COURT
SAGADAHOGC, ss. CIVIL ACTION
DOCKET NO. CV-21-11
ANGELA H. VAN DER WEF,

Plaintiff,

Vv.

WOOLWICH BAKER DRIVE, LLC, ORDER ON OUTSTANDING MOTIONS
and
THE TOWN OF WOOLWICH,

Defendants

INTRODUCTION
There are four motions pending before the court. First, there is defendant

Woolwich Baker Drive, LLC9s (<Woolwich Baker Drive=) Motion for Summary Judgment

as to all issues in plaintiff Angela Van Der Wef9s Complaint. Second, there is Woolwich

Baker Drive9s Motion for Partial Summary Judgment as to Count V of its Counterclaims.

Third, there is defendant Woolwich Baker Drive9s Motion for Judgment of Dismissal of

Ms. Van Der Wef9s Complaint and Default as to liability on Counterclaims I-V <pursuant

to the Inherent Authority of the Court,= styled as an unspecific type of <dispositive

motion=, but substantively seeking a discovery sanction of default.9 Finally, there is a

Motion for Final Hearing from Ms. Van Der Wef and her husband, who is included in her

caption as a plaintiff but is not a party to this lawsuit. (See Complaint.)

1 Woolwich Baker Drive distinguishes its motion for default as a sanction from a motion for
discovery sanctions, characterizing it as a <dispositive motion.= Woolwich Baker Drive
apparently wishes to retain the ability to file a separate motion for discovery sanctions pursuant
to the court9s February 8, 2023 order. The court9s order cautions Matthew Van Der Wef after his
second failure to appear at a conference that further failure to appear for court events would
result in his default, and grants Woolwich Baker Drive leave to file a motion for discovery
sanctions within 28 days of the resolution of dispositive motions. Woolwich Baker Drive9s motion
is clearly seeking the entry of default for the Van Der Wefs9 misconduct in the discovery process.
This is clearly a motion for discovery sanctions. The court treats the so-called <dispositive
motion= as a motion for discovery sanctions rather than denying it for failing to comply with
MR. Civ. P. 7(b).
BACKGROUND

Ms. Van Der Wef has not filed an opposition to either of the motions for summary

judgment. Pursuant to M.R. Civ. P. 56, all properly supported statements of material fact

are therefore deemed admitted.
The property at issue in this case is located at 44 Baker Drive in Woolwich, Maine.

(Dalton Aff. | 6.) As of April 1, 2016, the co-owners of record were Angela Hird Van Der

Wef and Craige B. Hird as co-personal representatives of the Estate of Sharon Hird.

(Def.9s First Supp.9g S.M.F. J 2.)? When a tax bill for the property committed for collection

on September 26, 2016 was not paid, the Collector of Taxes for the Town of Woolwich

(the <Town=) prepared a 30-Day Notice entitled Tax Collector9s Notice, Lien Claim and

Demand, dated July 14, 2017. (Def.9s First Supp.9g S.M.F. { 3.) The notice stated that

unless the taxes then due were paid within 30 days, a tax lien certificate would be

recorded. (Def.9s First Supp.9g $.M.F. { 3.) The notice specifically named both Mr. Hird
and Ms. Van Der Wef as record owners. (Def.9s First Supp.9g S.M.F. { 3.)

The Town9s records software indicates that the 30-Day Notice was printed on July

14, 2017. (Def.9s First Supp.9g S.M.F. 7 5.) The Town maintained an archived electronic

file of the original unsigned version of the Notice, but not a hard copy, as was its standard

practice. (Def.9s First Supp.9g S.M.F. { 6-7.) Ms. Van Der Wef has admitted? that the 30-

Day Notice was in writing and was either signed by the Town Tax Collector or bore the

Tax Collector's facsimile signature and was dated July 17, 2017. (Def.9s First Supp.9g

2 Because the defendants have filed multiple simultaneous motions for summary judgment with
separate statements of material fact, rather than a single integrated motion, the court refers to the
motion for summary judgment on Ms. Van Der Wef9s Complaint as the first motion and the
motion for summary judgment on Counterclaim V as the second motion.

3 Ms. Van Der Wef did not respond to a request for admissions served on her on December 31,
2023. By operation of MLR. Civ. P. 36, those matters are now deemed admitted.
S.M.F. { 8.) On or about July 17, 2017, the Town mailed the 30-Day Notice to Mr. Hird

and Ms. Van Der Wef via United States Postal Service, certified mail, return receipt

requested. (Def.9s First Supp.9g S.M.F. { 9.) The 30-Day Notice was received and signed

for by Matthew Van Der Wef in Woolwich and Mr. Hird in Longwood, Florida. (Def.9s

First Supp.9g S.M.F. 7 10-11.)

The tax bill was still left unpaid. On or about August 15, 2017, the Town of

Woolwich filed a tax lien certificate in the Sagadahoc County Registry of Deeds, Book
2017R at Page 05578. (Def.9s First Supp.9g S.MLF. { 13.)

The property was transferred from the Estate of Sharon Hird to Ms. Van Der Wef

by deed recorded on June 28, 2017 in the Sagadahoc County Registry of Deeds at Book

2017R, Page 04310. (Def.9s First Supp.9g S.M.F. 1 15.) On January 8, 2019, the Town sent

a Notice of Impending Automatic Foreclosure, warning that as of February 15, 2019, the

Town would foreclose on the tax lien. (Def.9s First Supp.9g S.M.F. J 17.) The Notice

specifies that if the tax lien foreclosed, the Town would own the property. (Id.)

Ms. Van Der Wef still did not pay the taxes, and the Town acquired title to the

Property by operation of law. (Def.9s First Supp.9g S.M.F. 7 18.) The Town did not

immediately move to remove Ms. Van Der Wef and her husband from the property or

sell it. (Def.9s First Supp.9g S.M.F. 7 19.) After the tax bills for 2017 and 2018* also went

unpaid, the Town Select Board voted to demand the total amount of delinquent taxes, or

the Property would be sold at auction. (Id.) T he Town sent Ms. Van Der Wef a letter on

March 5, 2019, informing her of the Town9s decision and warning her that if payment was

not received within 90 days, the Property would be sold at auction. (Def.9s First Supp.9g

S.M.F. { 20.)

4 These tax bills are not the basis for the foreclosure, so the court does not discuss them at length.
Still, Ms. Van Der Wef did not respond. (Def.9s First Supp.9g S.M.F. { 21.)

Consistent with its March 5 letter, the Town solicited bids for the purchase of the property

by advertising it in the Brunswick Times Record in October of 2019. (Def.9s First Supp.9g

S.M.F. { 22.) Woolwich Baker Drive submitted the winning bid. (Def.9s First Supp.9g

S.MLF. { 23.)

On December 16, 2019, the Town signed a municipal quitclaim deed which

released to Woolwich Baker Drive all rights to the Property, recorded in the Sagadahoc

County Registry of Deeds on December 23, 2019, at Book 2019R, Page 08777. (Def.9s First

Supp.9g S.MLF. ¥ 24.)
On or about October 22, 2020, Attorney Matthew Mastrogiacomo, retained by

Woolwich Baker Drive, filed a Forcible Entry and Detainer action against Ms. Van Der

Wef and Mr. Van Der Wef in the Sagadahoc County District Court. (Def.9s Second

Supp.9g S.M.F. ¢ 1.) Neither defendant filed an answer before the return date of

November 16, 2020. (Def.9s Second Supp.9g S.M.F. 7 4.) The District Court scheduled a

mediation session for November 23, 2020, to be held remotely. (Def.9s Second Supp.9g

S.M.F. { 5.)

The mediation proceeded as planned on November 23, 2020. (Def.9s Second

Supp.9g S.M.F. { 6.) The parties in attendance were Ms. Van Der Wef, Attorney

Mastrogiacomo, and C.A. Schmidt, the managing member of Woolwich Baker Drive. (Id.)

Mr. Van Der Wef did not attend. (Def.9s Second Supp.9g S.M.F. { 7.)

An agreement was reached between all parties at this mediation. (Def.9s Second

Supp.9g S.M.F. { 9.) The agreement provides that the Van Der Wefs would vacate the

premises on or before April 30, 2021. (Def.9s Second Supp.9g S.M.F. 7 10.) As part of the

proceedings, the mediator specifically inquired whether Ms. Van Der Wef had the

authority to enter into the settlement agreement on behalf of her husband. (Def.9s Second
Supp.9g S.M.F. J 11.) Ms. Van Der Wef represented to the mediator that she did have

that authority. (Id.) The settlement agreement was signed by all parties and submitted

to the District Court, which entered judgment in favor of Woolwich Baker Drive and

incorporated the provisions of the settlement agreement into the order. (Def.9s Second

Supp.9g S.M.F. { 13.)

Ms. Van Der Wef has now filed a quiet title action against Woolwich Baker Drive

alleging that the Town9s foreclosure on her property was not valid because she did not

receive the proper notice. She has also refused to vacate the property, contrary to the

terms to the settlement agreement resolving the FED. Woolwich Baker Drive answered

and filed the following Counterclaims:

Count I: Fraud

Count II: Deliberate Fraud for Purpose of Deceiving a Creditor

Count III: Fraud

Count IV: Fraudulent Concealment of Evidence

Count V: Breach of Contract

Count VI: Negligent Misrepresentation

Count VII: Unjust Enrichment

Count VIH: Quantum Meruit

Count IX: Quiet Title pursuant to 36 M.R.S. § 946

Count X: Declaratory Judgment

The only Counterclaim substantively before the court is Count V. In addition, Woolwich

Baker Drive seeks a judgment of liability as a discovery sanction for Counts I-V.

STANDARD
OF REVIEW
Summary judgment is granted to a moving party where <there is no genuine issue

as to any material fact= and the moving party <is entitled to judgment as a matter of law.=
M.R. 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.= Lougee Conservancy v. CitiMortgage, Inc., 2012

ME 103, { 11, 48 A.3d 774 (quotation omitted). <Facts contained in a supporting or

opposing statement of material facts, if supported by record citations as required by this

rule, shall be deemed admitted unless properly controverted.= MLR. Civ. P. 56(h)(4). In

order to controvert an opposing party9s factual statement, a party must <support each

denial or qualification by a record citation.= M.R. Civ. P. 56(h)(2). <[A] party9s assertion

of material facts must be supported by record references to evidence that is of a quality

that would be admissible at trial.= HSBC Mortg. Servs. v. Murphy, 2011 ME 59, { 9, 19

A.3d 815.
<Pro se litigants are held to the same standards as represented parties.= Dep9t of

Envtl. Prot. v. Woodman, 1997 ME 164, 7 3 n.3, 697 A.2d 1295.

DISCUSSION

There are four motions pending before the court. The court will address them each

in turn.

First Motion for Summary Judgment

Woolwich Baker Drive9s first Motion for Summary Judgment seeks an entry of

summary judgment on Ms. Van Der Wef9s Quiet Title action on the basis that the Town

complied with all statutory tax foreclosure requirements. Ms. Van Der Wef9s Complaint

alleges that she never received notice of the liens and impending foreclosure as required

by the statute.

Maine9s tax lien statute provides:

The tax collector may, after the expiration of 8 months and within one year
after the date of original commitment of a tax or, in the case of deferred
taxes pursuant to chapter 908-A, after the due and payable date established
pursuant to section 6271, subsection 5, give to the person against whom the
tax is assessed, or leave at the person9s last and usual place of abode, or
send by certified mail, return receipt requested, to the person9s last known
address, a notice in writing signed by the tax collector or bearing the tax
collector's facsimile signature, stating the amount of the tax, describing the
real estate on which the tax is assessed, alleging that a lien is claimed on the
real estate to secure the payment of the tax, and demanding the payment of
the tax within 30 days after service or mailing of the notice with $3 for the
tax collector for making the demand together with the certified mail, return
receipt requested, fee.

36 M.R.S. § 942 (2022). The admitted statements of material fact show that the tax

collector sent a 30-Day notice consistent with this provision to the record owners of the

Property, who were Mr. Hird and Ms. Van Der Wef as personal representatives of the

Estate of Sharon Hird. The record also shows that this notice was signed for by both

parties, indicating that it was received.

The Town recorded the tax lien in the Sagadahoc County Registry of Deeds on

August 15,2017. By operation of statute, this created a tax lien mortgage on the Property.

36 M.R.S. § 943 (2022). Filing a tax lien certificate with the registry of deeds is treated as

sufficient notice of the tax lien mortgage. Id. After 18 months pass from this date, if the

taxes still remain unpaid, complete record title is placed in the municipality with no right

of redemption. Id.; Ocwen Fed. Bank v. Gile, 2001 ME 120, { 18, 777 A.2d 275. The

municipality is required to notify the property owner:

not more than 45 days nor less than 30 days before the foreclosing date of
the tax lien mortgage, in writing signed by the treasurer or bearing the
treasurer9s facsimile signature and left at the holder9s last and usual place
of abode or sent by certified mail, return receipt requested, to the holder9s
last known address, of the impending automatic foreclosure and indicating
the exact date of foreclosure.

36 M.LR.S. § 943. The record shows that the Town sent a Notice of Impending Automatic

Foreclosure on January 8, 2019, warning that as of February 15, 2019, the property would

be foreclosed. The record does not disclose whether Ms. Van Der Wef actually received

this notice, but the Law Court has interpreted the statute to only require that a
municipality send the notice and does not require it to confirm that addressee has

received it. Livonia v. Town of Rome, 707 A.2d 83, 86 (Me. 1998).

On this record, there remain no issues of material fact as to whether the Town

satisfied the statutory requirements to foreclose on the Property. Summary judgment

should be granted to Woolwich Baker Drive on Ms. Van Der Wef's quiet title claim.

Second Motion for Partial Summary Judgment

Woolwich Baker Drive9s second Motion for Partial Summary Judgment seeks

entry of judgment against Ms. Van Der Wef on Countclaim V, which alleges a claim for

breach of contract. This claim is based on Ms. Van Der Wef refusing to vacate the

Property by the date agreed to in the settlement agreement which resolved the related

FED matter.

There is no meaningful dispute that the settlement agreement resolving the FED

matter was a valid contract. Further, the record is clear that Ms. Van Der Wef has

breached the express terms of that settlement agreement by refusing to vacate the

premises by the agreed upon date. Ms. Van Der Wef, though she has not responded to

any of these motions, has apparently taken the position that the settlement agreement is

not binding because she did not have the authority to bind her husband.

Ms. Van Der Wef9s authority to bind her husband is irrelevant. Mr. Van Der Wef

does not have and has never had any title interest in the property, so any disputes

involving title do not involve his interests. Even if Mr. Van Der Wef had an interest in

this litigation, Ms. Van Der Wef resolved the FED proceeding by representing to the

mediator, and by extension the District Court, that she had authority to bind her husband.

To allow her to take the opposite position in this case would violate the principle of

judicial estoppel.
Judicial estoppel, generally speaking, is a doctrine that prevents a party from

prevailing in one phase of a case on an argument and then relying on a contradictory

argument to prevail in a later phase. Lovell v. Lovell, 2020 ME 139, 7 5, 243 A.3d 887. The

doctrine usually applies when:

(1) the position asserted in the subsequent legal action [is] clearly
inconsistent with a previous position asserted;

(2) the party in the previous action [has] successfully convinced the court to
accept the inconsistent position; and

(3) the party [has] gain[ed] an unfair advantage as a result of [his or her]
change of position in the subsequent action.

In re Child of Nicholas P., 2019 ME 152, 916, 218 A.3d 247. While the FED proceeding is

arguably a different <case,= the issues here are intermingled enough, and procedural

history entangled enough, that this case and the FED proceeding can be considered one

for the purposes of judicial estoppel. This quiet title action arose out of an attempt by Ms.

Van Der Wef to set aside the judgment incorporating the settlement agreement she agreed

to in the underlying FED proceeding. Most importantly, allowing a party to take

inconsistent positions in this proceeding and the FED proceeding would be manifestly

unfair.

Ms. Van Der Wef9s position that she could not bind her husband is inconsistent

with her representations to the mediator and the District Court. The District Court

accepted her prior representation by incorporating the terms of the settlement agreement

into its order. Ms. Van Der Wef benefitted from the terms of the settlement agreement

until the point she was required to vacate the premises, at which point she changed her

position and contested its validity. This is an unfair advantage. Judicial estoppel bars

Ms. Van Der Wef from now asserting that she could not bind her husband.
To summarize, there is no meaningful dispute that the settlement agreement is

valid and that Ms. Van Der Wef violated its terms. As the court has granted Summary

Judgment on the Quiet Title action, Ms. Van Der Wef has no claim of title justifying her

refusal to vacate the premises. Summary judgment will also be granted on Counterclaim

V.

Sanctions

Woolwich Baker Drive9s third motion, titled <Motion to Render Judgment for

Defendant on Plaintiff's Title Claims and a Default as to Plaintiff's Liability on All

Remaining Counterclaims Seeking Monetary Damages Pursuant to the Inherent

Authority of the Court as an Appropriate Sanction,= is substantively a motion for a

discovery sanction of default. It outlines a detailed history of Ms. Van Der Wef and Mr.

Van Der Wef9s failures to answer interrogatories, failures to appear at depositions,

misrepresentations to the court, failures to produce documents, and failure to produce

any witness or exhibit list. The court is well aware of this pattern of misconduct

throughout the discovery process.

M.R. Civ. P. 37(b)(2) provides for sanctions if a party refuses to abide by discovery

orders, up to and including an entry of default. <A trial court has broad discretion to

choose the appropriate sanction.= Employee Staffing of Am. v. Travelers Ins. Co., 674 A.2d

506, 508 (Me. 1996). However, the entry of a default as a discovery sanction has

constitutional implications and is not to be imposed lightly. Id. When determining an

appropriate sanction, the court should consider <(1) the purpose of the specific rule at

issue; (2) the party's conduct throughout the proceedings; (3) the party's basis for its

failure to comply; (4) prejudice to other parties; and (5) the need for the orderly

administration of justice.= Estate of Hoch v. Stifel, 2011 ME 24, { 33, 16 A.3d 137. The court

should also consider the purpose of sanctions, <including penalizing the noncompliant

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party and deterring similar conduct.= Id. <The trial court need not find willfulness, bad

faith, or fault in order to justify a sanction such as dismissal.= Id. (quotation omitted).

Ms. Van Der Wef's conduct in this proceeding has violated multiple rules. Most

importantly, however, she has engaged in a persistent pattern of conduct designed to

avoid complying with her discovery obligations, including failing to appear at

conferences without even attempting to notify the court. Ms. Van Der Wef has mostly

declined to explain her conduct, and when she has offered explanations she has

sometimes been dishonest with the court. One notable example is when Mr. and Ms. Van

Der Wef represented to the court on September 22, 2022, that Mr. Van Der Wef was unable

to make himself available for a deposition for the rest of the year for a deposition because

his work did not allow unpaid time off and he was out of paid time off, but subpoenaed

records from his workplace revealed that he took a day off from work six days later, on

September 28, 2022. Ms. Van Der Wef9s conduct in this proceeding has prejudiced

Woolwich Baker Drive9s ability to gather evidence relevant to its defense and has

undermined the orderly administration of justice.

Ms. Van Der Wef9s conduct warrants a substantial sanction, though the court is

not convinced that an entry of default on several claims for money damages would be

appropriate. A more appropriate sanction, in the court9s view, is to preclude Ms. Van

Der Wef from calling any witness other than herself> and forbidding her from relying on

any evidence not already produced.

° There is some confusion on Ms. Van Der Wef9s side as to whether her husband is a party to this
case. He was not a plaintiff at the beginning of the lawsuit, and no motion to amend to add him
was ever made. Especially considering his efforts to evade being deposed, the court includes him
in the sanction and forbids Ms. Van Der Wef from calling him at trial.

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Motion for Final Hearing

The Van Der Wef9s motion for a final hearing does not comply with the rules of

procedure. In essence, the Van Der Wefs state that they believe they have done all they

need to do and that this case should be set for a hearing so it can be over with. To the

extent that there will be a bench trial in this case, the motion is moot. The matter will be

set for trial regarding the unresolved Counterclaims in due course.

It is hereby ORDERED:

Defendant Woolwich Baker Drive, LLC9s Motion for Summary Judgment as to plaintiff
Angela Van Der Wef9s Quiet Title action is GRANTED.

Defendant Woolwich Baker Drive, LLC9s Motion for Summary Judgment as to liability
on Count V of its Counterclaim is GRANTED.

Defendant Woolwich Baker Drive, LLC9s Motion for Sanctions is GRANTED IN PART.
The Court sanctions plaintiff Angela Van Der Wef for her misconduct in the discovery
process by forbidding her from calling any witnesses at trial other than herself, or
introducing any evidence not already produced. This sanction includes calling her
husband as a witness.
The matter will be set for trial in due course. A writ of possession in the underlying
Forcible Entry and Detainer action may issue forthwith.

DATED: May 26, 2023
ba L
< EZ e
Déniel I. Billings, Justice
Maine Superior Court

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