Montana couple files complaint after attempted Point Lookout purchase

Mon, 05/07/2018 - 9:00pm

Story Location:
67 atlantic highway
northport  Maine  04849
United States

BELFAST — A Montana couple filed a lawsuit against Athena Point Lookout, LLC (APL), which is owned by athenahealth (Athena), after an attempt to purchase the property fell through.

David J. and Tami L. Hirschfeld, of Choteau, Montana, filed the documents after APL failed to carry through with an agreed upon contract to sell the property, according to the complaint.

The property, known as Point Lookout Resort and Conference Center, is at 67 Atlantic Highway in Northport. Built by MBNA, Point Lookout sits on 387 acres situated on a mountainside, with panoramic views of Penobscot Bay.

The Center is used for a number of functions, including business conferences, retreats, cabin rentals, wedding services and farm-to-table dinners.  

According to the complaint, after weeks of negotiating and exchanging offers and counter-offers, representatives for APL made what they reportedly called an “offer” April 5, to sell the property to the Hirschfelds for $7 million. It is noted in the complaint that the “offer” was “unsigned and was couched in the form of a Letter of Intent.”

After accepting the offer, the Hirschfelds executed the Letter of Intent and returned it to APL representatives. The document was included in the filing as Exhibit A.

The attorney for the Hirschfelds, Dana F. Strout, of Rockport, wrote that the document “embodies all of the essential material terms necessary to constitute a contract for the purchase and sale of real estate,” including identification of the property, the parties to the sale, purchase price, and the amount of the down payment, which was set at $250,000 refundable deposit.

Despite not including a “more formalized agreement,” Strout argues that due to the inclusion of all necessary terms required to constitute a contract, APL and the Hirschfelds did, and continue to have a binding contract between them.

A short time before the Hirschfelds executed and delivered their acceptance of the offer, a real estate agent queried the agent representing APL, saying, ’If I get [the Hirschfelds] up to $7 million, you aren’t going to go shop this offer, are you?’ according to the court document, filed April 23. 

The agent representing APL reportedly replied, “absolutely not,” according to the complaint.

Strout wrote that subsequent to the execution of the Letter of Intent on April 5, the agent representing Athena told the couple on two separate occasions that a more formal contract was being prepared, however by the following day things had changed, the complaint said.

On April 6 the agent reportedly notified the Hirschfelds that APL was “re-negging on its commitment to sell the [Hirschfelds] the property because someone else had offered more money than [them]”.

The couple was also advised that they were welcome to bid against themselves and their existing contract by making a larger offer.

Through their agent, the Hirschfelds advised the agent representing APL that they considered the agreement to be a binding one. The agent reportedly responded by saying, ‘we get out of these all the time,’ according to Strout.

The agent for APL further advised that APL had entered into another contract with another individual who was paying “a lot more than the [Hirschfelds].”

The Hirschfeld’s agent advised APL reps that they had entered into a binding contract, and demanded that they honor that commitment, a request they refused.

Strout said that the actions of APL constitute a breach of contract and have caused the Hirschfelds “foreseeable, proximate and direct damages in amounts still being calculated.”

After executing the letter of intent containing the offer to sell the property for $7 million, the Hirschfelds reportedly went on to “drastically reduce the price of some of their ranch land” in Montana that they had previously offered for sale. There are now two parties formulating offers for the Hirschfelds land at the lower price, something they argue will continue to impact them during the existence of their lawsuit and beyond.

Noting that the APL property is unique, the Hirschfelds are seeking specific performance of such contract in addition to damages suffered.

There are three counts included in the complaint, with the Claim for Specific Performance as the first count. This count alleges that APL had a binding contract with the Hirschfelds to sell the property to them, or alternatively at a minimum, to enter into a more formal contract to sell the property to them.

Athena is accused of breaching its contract to sell the property to the Hirschfelds and further breached its contract to enter into a more formal contract with them.

Attempts to reach athenahealth for comment for this story have yet to be successful. 

Given the uniqueness of the property, Strout wrote that neither another property nor monetary damages will adequately compensate the [Hirschfelds] for their loss of the property. For this reason, they request that in addition to any monetary damages, APL is ordered by the court to convey the property to the Hirschfelds in the previously agreed-upon terms. They remain willing and able to close the transaction pursuant to those terms.

The second count included in the complaint is for Breach of Contract, which includes the Hirschfelds’ hopes that the Court will enter a judgement in their favor and hold Athena accountable for all the damages they have sustained, in addition to interest, expert witness costs, court costs, attorney’s fees and any further relief “as the Court deems just and proper.”

Declaratory relief is the third count included, with Strout requesting the Court declare the rights of the involved parties with respect to the agreement submitted as evidence and the Hirschfelds’ right to buy the property.

 


 

Erica Thoms can be reached at news@penbaypilot.com