STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-21-21
MICHAEL CHLUDZINSKI, et al.,
Plaintiffs V. ORDER
ZOE SCOTT, et al.,
Defendants
Before the court is third-party defendant Donn Storey's motion to dismiss Count
Four (negligent misrepresentation) and Count Six (fraud) of the third-party complaint filed
against him by defendants Zoe Scott and Michael Falby.
Plaintiffs Michael and Christina Chludzinski commenced this action by filing a
complaint against Scott, Falby and a third defendant, Steven Colby, asserting a claim
pursuant to 14 M.R.S. § 7552 for cutting down trees and disturbing soils on the
Chludzinskis' property in Casco. Scott and Falby had purchased property in the vicinity of
the Chludzinskis' property and had hired Colby to clear a portion of the land for a house
site. Colby is alleged, as an agent for Scott and Falby, to have wrongly cut down trees and
disturbed soil on the Chludzinskis' property.
Various counterclaims and cross-claims have been filed. As relevant to the instant
motion, Scott and Falby filed a third-party complaint against Storey, from whom they had
purchased their property. In the their third-party complaint they allege that Gloria Hewey,
a realtor acting as Storey's agent, had provided them with inaccurate and false information
with respect to the location of the property they purchased. 1
1 Scott and Falby only named Storey, and not Hewey, in their third-party complaint. Once he was
sued by Scott and Falby, however, Storey filed a third -party complaint against Hewey. REC'D CUMB CLERKS OF NOV 5 '21 AM8:19 Standard of Review
For purposes of a motion to dismiss, the material allegations of a third-party
complaint must be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ii 2, 54 A.3d
710. The third-party complaint must be read in the light most favorable to the third-party
plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would
entitle the third-party plaintiff to relief pursuant to some legal theory. Bisson v. Hannaford
Bros. Co., Inc., 2006 ME 131 ,r 2, 909 A.2d 1010. Dismissal is appropriate only when it
appears beyond doubt that the third-party plaintiff is not entitled to relief under any set of
facts that he might prove in support of his claim. Moody v. State Liquor & Lottery
Commission, 2004 ME 20 ,r 7, 843 A.2d 43. However, the third-party complaint should be
dismissed if it fails to allege essential elements of the cause of action. See Potter, ?reseat~
Jamieson & Nelson P.A. v. Campbell, 1998 ME 70 ,Tf 6-7, 708 A.2d 283.
A separate rule applies to allegations of fraud because M.R.Civ.P. 9(b) requires that
the circumstances allegedly constituting fraud must be stated with particularity.
Negligent Mis rep res en tation
Count Four of the Scott-Falby third-party complaint alleges a claim of negligent
misrepresentation:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Chapman v. Rideout, 568 A.2d 829,830 (Me. 1990), quoting Restatement (Second) of Torts § 552(1) (1977). A negligent misrepresentation claim is not subject to the heightened
pleading standard applicable to a fraud claim.
2 The third-party complaint alleges that Storey was the seller of property for which
he received $47,500 (demonstrating Storey's pecuniary interest), that Hewey as Storey's
agent 2 provided false information to Scott and Falby as to the location of the property
when they were purchasing the property, that Hewey as Storey's agent failed to exercise
reasonable care in providing the information in question, that Scott and Falby justifiably
relied on that information, and that as a result they incurred a pecuniary loss. Third-Party
Complaint ,-r,r 5-7, 10, 13-14, 17, 36, 53-56. This adequately states a claim for negligent
misrepresentation.
While the third-party complaint is somewhat equivocal on the issue of reliance
because it alleges that Scott and Falby sought to have their contractor confirm the location
information they had been given (Id. ,r 18) - the court cannot conclude from the allegations
of the third-party complaint that it is beyond doubt that they did not justifiably rely on the
allegedly false location information they had been given by Hewey.
Storey argues that the third-party complaint references communications that he
asserts occurred after the principal/agent relationship between Storey and Hewey had
ended, but this argument fails because the third-party complaint alleges that false
information was provided prior to Scott and Falby's purchase of the property, when Hewey
was acting as Storey's agent. Third-Party Complaint ,r,T 7-14.
Count Six of the Scott-Falby third-party complaint alleges that the allegedly false
information provided by Hewey as Storey's agent constituted fraud.
To assert a cognizable claim of fraud against Storey, Scott and Falby must allege that
(1) Storey, through his agent, made a false representation; (2) of a material fact; (3) with
knowledge of its falsity or in reckless disregard of whether it was true or false; (4) for the
2"Under Maine law a principal is liable for the fraudulent misrepresentations made by his agent within the scope of the agent's authority, whether or not the principal knows of the agent's misconduct." Arbour v. Hazelton, 534 A.2d 1303, 1306 (Me. 1987).
3 purpose of inducing Scott and Falby to act in reliance upon it; and (5) that Scott and Falby
justifiably relied upon the representation to their detriment. Barr v. Dyke, 2012 ME 108 ,r
16, 49 A.3d 1280 (citing Flaherty v. Muther, 2011 ME 32 ,r 45, 17 A.3d 640).
The additional requirement in M.R.Civ.P. 9(b) that the circumstances allegedly
constituting fraud must be stated with particularity requires, at a minimum, that the
specifics of the alleged misrepresentation be set forth so that the party against whom the
claim is made is "fairly apprised of the elements of the claim." 2 C. Harvey, Maine Civil
Practice§ 9:2 at 384 (3d ed. 2011).
In this case Scott and Falby have set forth the necessary elements of a fraud claim,
but the specifics of the alleged misrepresentation made by Hewey as Storey's agent have
not been set forth with sufficient particularity. A general allegation that false information
was provided as to the location of the property is insufficient. The third-party complaint
does not specify what specific information was false or allege what specific representations
were made as to the boundaries of the purchased property and how those representations
differ from the actual boundaries.
There are cases suggesting that the time, place, and content of a fraudulent
misrepresentation must be stated with particularity. In this case the third-party complaint
adequately apprises Storey that the allegedly fraudulent misrepresentation occurred at the
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-21-21
MICHAEL CHLUDZINSKI, et al.,
Plaintiffs V. ORDER
ZOE SCOTT, et al.,
Defendants
Before the court is third-party defendant Donn Storey's motion to dismiss Count
Four (negligent misrepresentation) and Count Six (fraud) of the third-party complaint filed
against him by defendants Zoe Scott and Michael Falby.
Plaintiffs Michael and Christina Chludzinski commenced this action by filing a
complaint against Scott, Falby and a third defendant, Steven Colby, asserting a claim
pursuant to 14 M.R.S. § 7552 for cutting down trees and disturbing soils on the
Chludzinskis' property in Casco. Scott and Falby had purchased property in the vicinity of
the Chludzinskis' property and had hired Colby to clear a portion of the land for a house
site. Colby is alleged, as an agent for Scott and Falby, to have wrongly cut down trees and
disturbed soil on the Chludzinskis' property.
Various counterclaims and cross-claims have been filed. As relevant to the instant
motion, Scott and Falby filed a third-party complaint against Storey, from whom they had
purchased their property. In the their third-party complaint they allege that Gloria Hewey,
a realtor acting as Storey's agent, had provided them with inaccurate and false information
with respect to the location of the property they purchased. 1
1 Scott and Falby only named Storey, and not Hewey, in their third-party complaint. Once he was
sued by Scott and Falby, however, Storey filed a third -party complaint against Hewey. REC'D CUMB CLERKS OF NOV 5 '21 AM8:19 Standard of Review
For purposes of a motion to dismiss, the material allegations of a third-party
complaint must be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ii 2, 54 A.3d
710. The third-party complaint must be read in the light most favorable to the third-party
plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would
entitle the third-party plaintiff to relief pursuant to some legal theory. Bisson v. Hannaford
Bros. Co., Inc., 2006 ME 131 ,r 2, 909 A.2d 1010. Dismissal is appropriate only when it
appears beyond doubt that the third-party plaintiff is not entitled to relief under any set of
facts that he might prove in support of his claim. Moody v. State Liquor & Lottery
Commission, 2004 ME 20 ,r 7, 843 A.2d 43. However, the third-party complaint should be
dismissed if it fails to allege essential elements of the cause of action. See Potter, ?reseat~
Jamieson & Nelson P.A. v. Campbell, 1998 ME 70 ,Tf 6-7, 708 A.2d 283.
A separate rule applies to allegations of fraud because M.R.Civ.P. 9(b) requires that
the circumstances allegedly constituting fraud must be stated with particularity.
Negligent Mis rep res en tation
Count Four of the Scott-Falby third-party complaint alleges a claim of negligent
misrepresentation:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Chapman v. Rideout, 568 A.2d 829,830 (Me. 1990), quoting Restatement (Second) of Torts § 552(1) (1977). A negligent misrepresentation claim is not subject to the heightened
pleading standard applicable to a fraud claim.
2 The third-party complaint alleges that Storey was the seller of property for which
he received $47,500 (demonstrating Storey's pecuniary interest), that Hewey as Storey's
agent 2 provided false information to Scott and Falby as to the location of the property
when they were purchasing the property, that Hewey as Storey's agent failed to exercise
reasonable care in providing the information in question, that Scott and Falby justifiably
relied on that information, and that as a result they incurred a pecuniary loss. Third-Party
Complaint ,-r,r 5-7, 10, 13-14, 17, 36, 53-56. This adequately states a claim for negligent
misrepresentation.
While the third-party complaint is somewhat equivocal on the issue of reliance
because it alleges that Scott and Falby sought to have their contractor confirm the location
information they had been given (Id. ,r 18) - the court cannot conclude from the allegations
of the third-party complaint that it is beyond doubt that they did not justifiably rely on the
allegedly false location information they had been given by Hewey.
Storey argues that the third-party complaint references communications that he
asserts occurred after the principal/agent relationship between Storey and Hewey had
ended, but this argument fails because the third-party complaint alleges that false
information was provided prior to Scott and Falby's purchase of the property, when Hewey
was acting as Storey's agent. Third-Party Complaint ,r,T 7-14.
Count Six of the Scott-Falby third-party complaint alleges that the allegedly false
information provided by Hewey as Storey's agent constituted fraud.
To assert a cognizable claim of fraud against Storey, Scott and Falby must allege that
(1) Storey, through his agent, made a false representation; (2) of a material fact; (3) with
knowledge of its falsity or in reckless disregard of whether it was true or false; (4) for the
2"Under Maine law a principal is liable for the fraudulent misrepresentations made by his agent within the scope of the agent's authority, whether or not the principal knows of the agent's misconduct." Arbour v. Hazelton, 534 A.2d 1303, 1306 (Me. 1987).
3 purpose of inducing Scott and Falby to act in reliance upon it; and (5) that Scott and Falby
justifiably relied upon the representation to their detriment. Barr v. Dyke, 2012 ME 108 ,r
16, 49 A.3d 1280 (citing Flaherty v. Muther, 2011 ME 32 ,r 45, 17 A.3d 640).
The additional requirement in M.R.Civ.P. 9(b) that the circumstances allegedly
constituting fraud must be stated with particularity requires, at a minimum, that the
specifics of the alleged misrepresentation be set forth so that the party against whom the
claim is made is "fairly apprised of the elements of the claim." 2 C. Harvey, Maine Civil
Practice§ 9:2 at 384 (3d ed. 2011).
In this case Scott and Falby have set forth the necessary elements of a fraud claim,
but the specifics of the alleged misrepresentation made by Hewey as Storey's agent have
not been set forth with sufficient particularity. A general allegation that false information
was provided as to the location of the property is insufficient. The third-party complaint
does not specify what specific information was false or allege what specific representations
were made as to the boundaries of the purchased property and how those representations
differ from the actual boundaries.
There are cases suggesting that the time, place, and content of a fraudulent
misrepresentation must be stated with particularity. In this case the third-party complaint
adequately apprises Storey that the allegedly fraudulent misrepresentation occurred at the
place and time that Hewey gave Scott and Falby directions to the property and information
about its location prior to their purchase. It is the specific content of the allegedly
fraudulent misrepresentation that is absent.3
Count Six of Scott and Falby's third party complaint is dismissed with leave to
replead. Any motion for leave to file an amended fraud claim against Storey must be filed
on or before December 3, 2021.
3 The third-party complaint sets forth with adequate particulatity the materiality of the alleged
misrepresentation, the reliance of Scott and Falby, and their damages. In addition, Rule 9(b) states that where fraud is alleged, the elements of malice, intent, knowledge and other condition of mind may be averred generally.
4 (
The entry shall be:
The motion by third-party defendant Donn Storey to dismiss Count Four (negligent misrepresentation) of the third-party complaint filed by Zoe Scott and Michael Falby is denied. Storey's motion to dismiss Count Six (fraud) of Scott and Falby's third-party complaint is granted with leave to replead. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: November _:L, 2021 Thomas D. Warren Justice, Superior Court
Entered on the Docket:J~lj
~
Plaintiffs-Aaron Baltes, Esq. Defs Scott and Falby-Kelly McDonald, Esq. Def Colby-Elizabeth Hurley, Esq. PII Storey-Adam Taylor, Esq. PII Hewey-Sigmund Schutz, Esq.