Allen v. Miklos

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-08-27p

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JOHN T. ALLEN,

Plaintiff,

DONALD L. GARBRECKT

v. ORDER L.J\W LIBRARY

LORENE MIKLOS, et aI., RE'CE\VED AUl1 1 ? v""o)

Defendant.

Defendant H & N Corporation has moved to dismiss Counts II, IV, and V of the complaint.

Plaintiff John Allen' opposition papers does not respond to H & N's arguments with respect to Counts IV and V, and those counts are therefore dismissed as against H &N.

With respect to Count II, however, H & N's motion is denied. In Kezer v. Mark Stimson Associates, 1999 ME 184 <JI<JI 12, 15, 742 A.2d 898, 902-03, the Law Court stated that the Legislature has defined the duty that real estate brokers owe to buyers. That duty includes a duty not to "knowingly give false information." 32 M.R.S. § 13273(2)(A). Count II of Allen's complaint alleges that H & N knowingly provided false information about the neighbors, Complaint <JI<JI 19-20, and is therefore sufficient to state a cognizable claim for knowing misrepresentation.

The court agrees with H & N that 32 M.R.S. § 13273(2)(A) appears to preclude a claim for negligent misrepresentation, but does not construe Count II as asserting such a claim. The court acknowledges that if Count II alleges knowing misrepresentation and Count III alleges fraud, there remains a question whether there is any difference

2

between Counts II and III - other than that Count II is specifically directed against H & N and Count III is against both defendants. That question is deferred for another day.

The entry shall be:

Defendant H & N Corporation's motion to dismiss is granted as to Counts IV and V of the complaint and denied as to Count II. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a). DATED: July 2."2- , 2008

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Thomas D. Warren

Justice, Superior Court

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