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 ap peals 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 med iator’s November 4, 2010, report

. See

14 M.R.S. § 6321

- A (201 2 ); M.R. Civ. P. 93.

[¶2 ] On app eal, 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 m odification plan to Gardner because the terms of any such agreement were2

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
again st 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 f inal judgment rule. See Fiber Materials, Inc. v. Subilia
, 2009 ME 71, ¶ 14, 9 74 A.2d 918

. [¶5 ] C ontrary to First Franklin’s contention s , 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 existen ce of a binding contract or settlement agreement is a
question of fact ; discussing binding settlement agreemen ts and the difference
between a preliminary agreement to agree and a binding agreement )

.3
[¶6 ] Having reviewed the mediated loan modification agr eement, we
determine that it is sufficiently specific and definite to constitute a binding

commitment for a loan modification to be offered to Gardner

. S ee Coastal

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

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

that a contract is to be interpreted to e ffect 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 th e 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 sancti on 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 G roup , P.C., Portland, f or appellee Jason L. Gardner

Biddeford District Court docket number RE

- 2010

- 122 F OR C LERK R EFERENCE O NLY