Parking lot owner files appeal in Marden’s case

CALAIS – A San Francisco developer last week asked the 1st Circuit Court in Boston to reverse a lower court’s decision that Marden’s Surplus and Salvage did not owe him more than $3 million in back rent for use of the store’s parking lot on Main Street.

Marden’s maintained that when the company bought the Main Street building it also purchased the right to use the lot owned by developer Sidney Unobskey and that the city’s variance on the lot granted the store the right to use it free of charge. Store officials also maintained that Unobskey had no right to claim rent and that his claim was barred by the statute of limitations.

U.S. District Court Judge John A. Woodcock Jr. in Portland agreed with the store and on Nov. 9 issued a summary judgment on behalf of Marden’s.

Marden’s is a retail chain with several stores in Maine and approximately 850 employees, according to its Web site.

But parking lot owner Sidney Unobskey, who owns a summer home in Robbinston, disagreed with the decision and on Friday filed an appeal in the U.S. Court of Appeals for the 1st Circuit in Boston.

Neither attorney for Marden’s or Unobskey returned telephone calls Tuesday.

In 1990, Unobskey built a 60,000-square-foot store on Main Street near the Calais-St. Stephen, New Brunswick, border that he later leased to Rich’s department store. A requirement imposed by the city in granting the necessary permits was that a 300-space parking lot be made available to customers and other downtown businesses, the original lawsuit said.

Rich’s filed for bankruptcy in 1995 and as part of that proceeding rejected its lease with Unobskey and ceased making payments to him.

Eventually MetLife Capital Credit Corp., which held the mortgage on the building, foreclosed.

Unobskey alleged in his lawsuit that “the rights held by Rich’s to use [Unobskey’s] parking were not conveyed, assigned or otherwise set over to MetLife Capital Credit Corp., nor did MetLife convey such rights to Marden’s.”

As a result, Unobskey said, Marden’s did not have the right to use the parking lot, and he set his monetary loss at $350,000 per year, or $3,150,000 from 1997 to date, the original lawsuit said.

However, before purchasing the former Rich’s store in 1997, Marden’s looked into the parking lot issue.

“In addition, Mr. [Mickey] Marden contacted Sidney Unobskey to inform him that he was interested in purchasing the old Rich’s building at the foreclosure sale, but was not going to buy it until the parking issues were worked out,” the U.S. District Court order said. “At a subsequent meeting, Mr. Unobskey told Mr. Marden that ‘as long as he [Marden] lived … he could allow his customers to park on [Unobskey’s] parking lot free, at no cost to him, as long as he took care of everything,'” the order said.

Based on that assurance “guaranteed by a handshake” Marden bought the building for $400,000, the summary judgment order said.

Marden died in 2002. Unobskey maintained that his agreement with Mickey Marden ended with his death and since that date “Marden’s has been unjustly enriched.”

But from the time Mickey Marden died until the beginning of 2006, the order said, Unobskey never demanded payment from Marden’s for the use of the parking lot and no payment was made.

“However, since purchasing the property, Marden’s has paid a total of $63,509 for all plowing, sanding, maintenance and repairs to the parking lot without any reimbursement from Unobskey,” the order said.

The surplus and salvage store asked for a summary judgment in its favor maintaining that Unobskey had failed to prove his case.

After listening to both sides, U.S. District Court Judge Woodcock concluded that Unobskey conveyed to MetLife an express easement to use the parking lot and that Marden’s acquired this right when it purchased the building from MetLife.

The court denied Unobskey’s motion for a summary judgment and granted Marden’s cross-motion for summary judgment.

It is expected that the case won’t be set for hearing in Boston until next year.

Diana Graettinger may be reached at bdncalais@

verizon.net or 454-8228.