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McIntyre v. Nice
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Decision: 	2001 ME 174
Docket: 	Cum-01-400
 on Briefs: 	November 30, 2001 	
Decided:	December 20, 2001




	[¶1] Daniel P. McIntyre appeals from a summary judgment entered in
the Superior Court (Cumberland County, Crowley, J.) in favor of Deirdre Nice
on his claim for money lent.  McIntyre argues, inter alia, that there is a
genuine issue of material fact as to whether he lent the money to Deirdre or
to Nice Food Corporation.  We agree and vacate the judgment.
	[¶2] The uncontested facts presented in the parties' statements of
material facts may be summarized as follows:
	[¶3] Deirdre and her sister, Stefani, own in equal shares Nice Food
Corporation.  Nice Food owns and operates Silly's Restaurant now located in
Portland's East End.  Nice Food wanted to purchase a building on
Washington Avenue to permit Silly's to move to expanded facilities, but it
needed a loan to finance the purchase.
	[¶4] Daniel P. McIntyre was a social friend of Deirdre Nice.  He agreed
to make a loan and subsequently met with the Nice sisters and wrote three
checks totalling $130,000 payable to Nice Food.
	[¶5] After an unsuccessful effort to settle this dispute, McIntyre sued
Deirdre Nice for fraud and money lent.  Deirdre counterclaimed for assault
and battery, breach of fiduciary duty, fraud, intentional infliction of
emotional distress and civil conspiracy.  Deirdre also brought suit against
her sister, Stefani, and Nice Food for breach of fiduciary duty, dissolution,
civil conspiracy, indemnification, and contribution; these claims were
dropped after discovery.  After Deirdre moved for a summary judgment,
McIntyre moved to amend his pleading to include claims against Stefani and
Nice Food.  
	[¶6] The court denied McIntyre's motion to amend, granted a
summary judgment in favor of Deirdre on McIntyre's money lent count and
denied a summary judgment on the fraud count.   At the trial, on the fraud
count, the court declined to admit a memorandum from a lawyer engaged by
Deirdre and addressed to McIntyre on grounds that it was a settlement
document.  The court granted Deirdre's motion for judgment as a matter of
law on the fraud count.  McIntyre appeals from the court's denial of his
motion to amend, its granting of a summary judgment on the money lent
claim and its evidentiary ruling on the admissibility of the memorandum. 
McIntyre does not appeal from the court's disposition of his fraud claim.
A. The Court's Grant of a Summary Judgment on the Money Lent Count

	[¶7] "We review motions for summary judgment de novo for errors of
law." Estate of Charles Loyde Davis, 2001 ME 106, ¶ 7, 775 A.2d 1127. 
Summary judgment is appropriate if the evidence viewed "in the light most
favorable to the non-prevailing party . . . supports the conclusion that there
is no genuine issue of material fact and the prevailing party is entitled to a
judgment as a matter of law." Champagne v. Mid-Maine Med. Ctr., 1998 ME
87, ¶ 5, 711 A.2d 842.   
	[¶8] The three elements of a claim on money lent are: 1) the money  
was delivered to the defendant; 2) the money was intended as a loan; and 3)
the loan has not been repaid.  Doughty v. Sullivan, 661 A.2d 1112, 1123 (Me.
1995).  Deirdre argues that McIntyre did not deliver the funds to her but to
Nice Food, as is evident from the checks made payable to the corporation. 
McIntyre asserts that he was unaware of any corporation until it came time
to issue the checks and that he always understood the money to be a loan to
Deirdre.  In addition, he asserts that the checks are merely indicative of his
performance on a prior oral agreement to loan money to Deirdre and made
payable to Nice Food at the direction of Deirdre and her sister.
	[¶9] Just who is a party to this loan is a question of material fact left
unresolved by the parties' statements of material facts.  A summary
judgment was inappropriate in this case because McIntyre raised an issue of
material fact as to whether the loan was to Deirdre Nice or Nice Food.

B. McIntyre's Motion to Amend His Pleadings

	[¶10] We review motions to amend pleadings for an abuse of
discretion.  County Forest Prods., Inc. v. Green Mountain Agency, Inc., 2000
ME 161, ¶ 56, 758 A.2d 59.  McIntyre's motion to amend came almost two
and one-half years after his complaint was entered, after discovery had taken
place in connection with his complaint and the related counterclaims and
third-party actions, and after the motion for a summary judgment had been
filed on behalf of the defendant.  The court did not exceed the bounds of its
discretion in denying McIntyre's motion to amend.  In light of our vacation
of the court's summary judgment, however, the court would not be
precluded from considering a new motion to amend if one were to be filed.

C. Admissibility of Settlement Memorandum

	[¶11]  McIntyre seeks to appeal an evidentiary ruling made during the
fraud trial.  McIntyre attempted to offer into evidence a memorandum to
him written by a lawyer engaged by Deirdre.  Because McIntyre has not
appealed from the judgment in the fraud trial, he cannot appeal the
evidentiary ruling.  He seeks a review of the ruling because he anticipates
offering the same memorandum into evidence in the trial on the money lent
claim.  The memorandum was referred to in his statement of material facts
and was not rejected by the court in ruling on the summary judgment
motion.  It would be premature for us to rule on the admissibility of the
memorandum in a trial on the money lent claim. 
	The entry is:
Judgment vacated.  Remanded to the
Superior Court for further proceedings
consistent with this opinion. 

Attorney for plaintiff: David B. McConnell, Esq. Perkins, Thompson, Hinckley & Keddy, P.C. P O Box 426 Portland, ME 04112-0426 Attorneys for defendants: Christian T. Chandler, Esq. Curtis Thaxter Stevens Broder & Micoleau, LLC P O Box 7320 Portland, ME 04112-7320 (for Deirdre Nice) Thimi R. Mina, Esq. 12 City Center Portland, ME 01401-4006 (for Stefani Nice) Todd S. Holbrook, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029 (for Nice Foods Corp.)