MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 3

Docket: Yor-12-115

Argued: December 12, 2012

Decided: January 8, 2013

Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

FIRST FRANKLIN FINANCIAL CORPORATION

v.

JASON L. GARDNER

PER CURIAM

[¶1] First Franklin Financial Corporation appeals from a judgment of the 

District Court (Biddeford, Cantara, J.) granting Jason L. Gardner’s motion for 

sanctions and ordering First Franklin to pay monetary sanctions and enter into a

loan modification with Gardner on the terms agreed upon by the parties at 

foreclosure mediation, as stated in the mediator’s November 4, 2010, report. See 

14 M.R.S. § 6321-A (2012); M.R. Civ. P. 93. 

[¶2] On appeal, First Franklin argues that (1) we should reach the merits of 

this interlocutory appeal pursuant to the death knell and judicial economy 

exceptions to the final judgment rule; (2) the trial court erred in finding that the 

parties had reached a binding agreement requiring First Franklin to offer a trial 

loan modification plan to Gardner because the terms of any such agreement were 
2

indefinite or conditional; and (3) because the parties had never entered into a 

binding agreement, the court erred in granting Gardner’s motion for sanctions 

against First Franklin. 

[¶3] Gardner requests that we award him sanctions, including treble costs 

and attorney fees, for defending this appeal.

DISCUSSION

[¶4] We reach the merits of this interlocutory appeal pursuant to the death 

knell exception to the final judgment rule. See Fiber Materials, Inc. v. Subilia,

2009 ME 71, ¶ 14, 974 A.2d 918.

[¶5] Contrary to First Franklin’s contentions, the motion court did not err

(1) in finding that Gardner and First Franklin or its agent, which “had authority to 

agree to a proposed settlement [or] loan modification,” agreed in the foreclosure 

mediation to the terms of a loan modification and (2) in finding, implicitly if not 

explicitly, that the parties entered into a binding agreement requiring First Franklin 

to offer the loan modification to Gardner. See Barr v. Dyke, 2012 ME 108, ¶ 13, 

49 A.3d 1280 (stating the circumstances under which an agreement is legally 

binding); Muther v. Broad Cove Shore Ass’n, 2009 ME 37, ¶¶ 6-7, 968 A.2d 539 

(stating that the existence of a binding contract or settlement agreement is a 

question of fact; discussing binding settlement agreements and the difference 

between a preliminary agreement to agree and a binding agreement).
3

[¶6] Having reviewed the mediated loan modification agreement, we 

determine that it is sufficiently specific and definite to constitute a binding 

commitment for a loan modification to be offered to Gardner. See Coastal 

Ventures v. Alsham Plaza, LLC, 2010 ME 63, ¶ 26, 1 A.3d 416 (stating that

whether a contract term is ambiguous is a question of law reviewed de novo and 

that a contract is to be interpreted to effect the intent of the parties as reflected in

the contract language, construed in light of the “subject matter motive, and purpose 

of making the agreement, and the object to be accomplished”); Sullivan v. Porter, 

2004 ME 134, ¶¶ 14-15, 861 A.2d 625 (holding that terms of an agreement were 

sufficiently definite and did not create unaddressed elements, even though the 

duration and interest rate of the loan were expressed as a finite range).

1

[¶7] Having found that First Franklin did not mediate in good faith, the 

motion court acted within its discretion in granting Gardner’s motion for 

sanctions. 2 See Gauthier v. Gauthier, 2007 ME 136, ¶ 8, 931 A.2d 1087 

(reviewing a court’s decision to sanction a party for an abuse of discretion).

 1

 We assume that the motion court found all facts necessary to support its order in the absence of a 

motion for findings, see Ward v. Ward, 2008 ME 25, ¶ 5, 940 A.2d 1063, and that the record fully 

supports the court’s findings and discretionary choices when no transcript of the motion hearing, or 

M.R. App. P. 5(d) statement in lieu thereof, is provided, see Rothstein v. Maloney, 2002 ME 179, ¶ 11, 

816 A.2d 812.

2

 First Franklin clarified at oral argument that it is not arguing that the motion court exceeded its 

discretion in ordering the specific types of sanctions it imposed.
4

[¶8] We decline Gardner’s request to impose sanctions on appeal pursuant to

M.R. App. P. 13(f).

The entry is:

Judgment affirmed. Gardner’s motion for sanctions 

on appeal denied.

On the briefs and at oral argument:

Leslie E. Lowry, III, Esq., Jensen Baird Gardner & Henry, Portland, for 

appellant First Franklin Financial Corporation

Marshall J. Tinkle, Esq., Hirshon Law Group, P.C., Portland, for appellee 

Jason L. Gardner

Biddeford District Court docket number RE-2010-122

FOR CLERK REFERENCE ONLY