Crocker v. Marino

• Court: Superior Court of Maine
• Decided: April 7, 2016
• Docket: LINre-14-29
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

Lincoln, ss.

JACQUELINE CROCKER

Plaintiff

v. Docket No. WISSC-RE- 14-29

MARK MARINO

Defendant

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant Mark Marino's Motion for Summary J udgment is before the court,

with Plaintiff Jacqueline Cracker's opposition, and Defendant's reply memorandum.

The court elects to decide the motion without oral argument. See M .R. Civ. P. 7(b )( 7).

Background

The following facts are undisputed, except where noted, for purposes of

Defendant's Motion:

In June 2008, Plaintiff Jacqueline Crocker began renting, and moved into, the

residence located at 5 Dodge Road, Dresden, Maine, then owned by Defendant Mark

Marino. Plaintiff evidently rented the home with the idea of buying it and the lot on

which it sits . Defendant had purchased the 5 Dodge Road property in the 1980's, and

had resided in the home until he built a home elsewhere on Dodge Road. The structure

had been built essentially as a single-story camp in the 1950's, according to Plaintiff,

and the parties agree that it was significantly expanded to include a second story and

additional spaces in 2004, with Mr. Marino and a local builder performing the work.

In September 2008, a few months after Plaintiff began renting the home,

Defendant provided her with a property disclosure form in anticipation of her purchase of the property. See Affidavit of Mark Marino ("Marino Aff" ) Ex. D . The disclosure is

silent regarding the size of the 5 Dodge Road lot and the condition of the structure.

Plaintiff contends that Defendant told her, before she purchased the 5 Dodge

Road property, that the lot was just under two acres in area, and she contends it is

actually under an acre--.82 acres to be exact. Defendant disputes her claim about his

oral statement, and responds further by saying he advertised the property as being one

acre, and pointing out that Plaintiff in her deposition acknowledged seeing the

advertisement containing the one-acre reference.

On June 1, 2009, after she had been living in the home for about a year, Plaintiff

entered into a written purchase and sale agreement with the Defendant and evidently

closed on the purchase the same day. Marino Aff Ex. A. The purchase and sale

agreemen t defines the property sold in terms of the street address and also the book and

page reference at the Lincoln County Registry of Deeds for the deed under which

Defendant held title. Like the property disclosure form, the purchase and sale

agreement is silent on the size of the lot. It also says nothing about the quality of the

construction of the residence. It contains a merger clause indicating that "[a]ny

representations, statements and agreements are not valid unless contained herein. This

Agreement completely expresses the obligations of the parties ." Id. ~ 19. The

purchase price for the property was $80,000, entirely financed by Defendant, who took a

40-year m ortgage to secure payment. See id. ~ 5.

Plaintiff does not dispute the authenticity of the property disclosure and

purchase and sale agreement attached to the D efendant's affidavit, but claims she was

rushed into signing them, did not read them, and did not realize that she could have had

the property inspected before she purchased it.

2 She also claims that the Defendant told her that the residence was constructed to

a high standard of quality. She asserts that, during the period 2011 - 13 , she discovered

that the property is very poorly constructed, specifically, with inadequate framing and

an inadequate foundation. She asserts that the framing defects were concealed behind

sheetrock and tongue-and-groove pine wallboard, and that the concealment was

fraudulent. She asserts that the cost of remedying the defects is as high as $183,400,

more than twice the purchas e price for the property, and that the property has a value

today of $44,000, little more than half the purchase price. Defendant's response to

Plaintiffs allegations regarding the quality of construction emphasizes that Plaintiff

acknowledged at her deposition that all of the statements she says Defendant made

about the quality of the construction were made after she already had purchased the 5

Dodge Road property, and hence could not have been part of the purchase contract and

also could not have been relied on by her in the purchase.

Lastly, Plaintiff contends that she received a $8,000 first-time homebuyer's tax

credit, most of which she turned over to Defendant in the form of a check for $7,404.

Her amended complaint asserts that" the payment was intended to be a payment of

principal. Defendant acknowledges receiving the $7,404 check, but contends that it was

tendered as a payment of the first tw elve payments due on the promissory note.

In September 2014, more than five years after purchasing the property, she

began this action, initially prose. She later filed an amended complaint, and retained an

attorney. Her amended complaint alleges that Defendant is liable for breach of contract

(Co unt I); fraudulent misrepresentation regarding the quality of construction (Co unt II );

fraudulent misrepresentation regarding the $7,404 payment being applied to principal

(Co unt II I); breach of implied warranty of habitability (Co unt IV); violation of the

3 Maine Unfair Trade Practices Act (UTPA), 5 M.R.S. § 205 et seq. (Count V), and

punitive damages (Count VI ). Defendant's Motion asserts that he is entitled to

judgment on all six counts.

Standard ef R eview

Summary judgment is appropriate if, based on the parties' statements of material

fact and the cited record, there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. M .R. Civ. P . 56( c); Dyer v. Dep 't of Transp .,

2008 ME 106, ~ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of

the case. A genuine issue of material fact exists when the [fact finder] must choose

between competing versions of the truth." Dyer, 2008 ME 106, ~ 14, 951 A.2d 821

(internal citation and quotation marks omitted). When deciding a motion for summary

judgment, the court reviews the evidence in the light mos t favorable to the non-moving

party. Id.

If the moving party's motion for summary judgment is properly supported, the

burden shifts to the non-moving party to respond with specific facts indicating a

genuine issue for trial in order to avoid summary judgment. M .R. Civ. P. 56(e). See

Watt v. UnzFzrst Corp., 2009 ME 47, ~ 21, 969 A.2d 897In fact, in responding to a

properly supported motion for summary judgment on a claim, "the [party asserting the

claim] must establish a prima facie case for each element of [its] cause of action." Bonin

v. Crepeau, 2005 ME 59, ~ 8, 873 A.2d 346.

Analysis

This analysis addresses each count of the Amended Complaint to determine

whether Defendant has demonstrated that there are no genuine issues of material fact

and that he is entitled to judgment as a matter oflaw.

4 Count I- Breach of Contract

The Plaintiff alleges that the Defendant breached the purchase and sale contract

in two respects-first, by misrepresenting the area of the lot to be almos t two acres ,

whereas it is only an acre or less ; second, by representing the construction of the

residence to be of good quality, whereas it is of poor quality. Paragraph 15 of the

Amended Complaint summarizes Plaintiffs breach of contract claim as follows:

As part of the [purchase and sale] agreement with the Plaintiff, Defendant Mark Marino promised that the house being purchased was of a grade and quality that was marketable, and that the parcel of real property was a size totaling nearly two acres .

As to the breach regarding the acreage, Plaintiffs claim now appears based on

what she was an oral representation by the Defendant during a walk-through of the lot

that the lot was just under two acres in area. See Plaintiffs Deposition at 24. However,

it was brought out at her deposition that, when she initiated this case prose, she alleged

that the mis representation was contained in one or more advertisements the Defendant

had placed regard ing the property. S ee Plaintiffs D eposition at SS . She acknowledged at

her deposition that the D efendant's advertisements for the property described the

property as being one acre in area. S ee id. at SS-S4.

This contradiction- and whether the alleged oral representation formed part of

the basis for the contract--might present an issue for the factfinder, except that, as the

Defendant points out, that the purchase and sale agreement makes no reference to

acreage, and it contains an integration clause. Plaintiff responds by arguing in her

opposition that she should not be held to the terms of the purchase and sale agreement

because she was unrepresented and because she felt rushed or pressured into signing it.

However, she has not made a prima facie showing that the purchase and sale agreement

is unenforceable, such that the integration clause should be disregarded .

5 The parties appear to have used a form purchase and sale agreement that was

not drafted by either party, except for the handwritten insertions , which are not at issue.

Plaintiff acknowledged at her deposition that she had a right to an inspection of the

property that she failed to utilize. See Plaintiffs Deposition at 26. Moreover, if the

agreement were indeed unenforceable against her, as her opposition contends, that

might jus tify rescission, but her Amended Complaint seeks to enforce the agreement

against the Defendant and to recover damages .

W ith regard to the breach claim based on alleged defects in the quality of

construction of the residence, Plaintiff acknowledged at her deposition that all of the

statements she asserts Defendant to have made about the quality of construction were

made after she had already purchased the 5 Dodge Road property. See id. at 28-29.

She was asked specifically at her deposition about when the Defendant had made

statements about the good quality of construction, and she said twice that the

statements were made after t he purchase. See id. at 28 :20- 24, 29:12 - 15. Statements

made after the purchase cannot have formed part of the purchase and sale contract.

For these reasons, the court concludes that Defendant is entitled to summary

judgment on Count I of the Amended Complaint.

Count JI-Fraudulent Misrepresentation

In Count II of her Amended Complaint, the Plaintiff contends that the

Defendant fraudulently misrepresented the quality of the materials and construction

used in the res idence. Paragraph 24 describes the claim as follows:

The act of D efendant's misrepresenting the quality of construction and concealing the inadequate construction behind sheetrock walls, the quality of the installation of the septic system, and the size of the parcel was an act to conceal true conditions from the Plaintiff and induce her to purchase the property. No defect was discovered by the Plaintiff until 20 11.

6 In part, Count II suffers from the same problems as in Count I. The alleged

misrepresentations admittedly occurred after the purchase, so Plaintiff could not have

relied on them in making the purchase. In theory, even apart from t he alleged

misrepresentations, concealment of a known defect might give rise to a fraud claim, but

here, the Plaintiffs only evidence of "concealment" is that the allegedly defective

framing was hidden behind sheetrock and tongue-and-grove wallboard . The very

purpose of sheetrock and wallboard is to "conceal" the st uds, rafters, joists and other

structural components of a building. Thus, fraudulent intent cannot be inferred from

the mere fact that a builder chooses to install sheetrock or wallboard over the structural

framing of a home.

Because Plaintiffs only evidence of fraudulent intent on Defendant's part is that

he used sheetrock and wallboard in the ordinary way to cover the structural framing

members of the residence that Plaintiff asserts are defective, she has failed to make a

prima faci e showing of fraud on the part of the Defendant, much less a showing that a

factfinder could find sufficient to prove fraud by the required clear and convincing

evidence standard, so Defendant is entitled to summary judgment on Count II of the

Amended Complaint.

Count III-Fraudulent Misrepresentation

Count III of the Amended Complaint alleges that the Defendant fraudulently

induced the Plaintiff to transfer to him the $8,000 she received at closing as the first­

time homebuyer's tax credit. At her deposition, she acknowledged that she had actually

received a check from the IRS for $8,042 . 19, Plaintiff s D eposition at 36; that she

deposited the check into her own bank account, id. at 4 1, and that she then wrote Mr.

Marino a check for $7,400 to cover her first year of mortgage payments . Id. at 36, 38.

7 She also acknowledged that Defendant had credited her payment toward the mortgage

payments . Id. at 38-39. Defendant is entitled to summary judgment on Count III.

Count IV (Breach OfImplied Warranty OfHabitab ility)

The implied warranty of habitability is a principle of landlord-tenant law that is

sometimes applied in the context of sales of new homes by the homebuilder . As a

matter oflaw, Defendant did not make an implied warranty of habitability in connection

with Plaintiffs purchase of a residence he had bought 20 years before the sale and

expanded fi ve years before the sale.

To the extent the Plaintiffs claim is based on her tenancy prior to purchasing

the 5 Dodge Road property, she has not made a prima facie showing of liability. She

and her family resided in the house for about a year befor e she decided to buy it-the

only inference to be drawn is that the house was habitable. Defendant is entitled to

summary judgment on Count IV as well.

Count V (Violation efUTPA)

The rulings on the prior co unts may be deemed to pres age the ruling on

Plaintiffs UTPA claim, but actual fraud or deception is not required to prove a UTPA

claim. The Law Court has noted that, for purposes of the UTPA, "An act or practice is

deceptive if it is a material representation, omission, act or practice that is likely to

mislead consumers acting reasonably under the circumstances . A material

representation, omission, act or practice involves information that is important to

cons umers and, hence, likely to affect their choice of, or conduct regarding, a product.

An act or practice may be deceptive, within the meaning of Maine's UTPA, regardless

of a defendant's good faith or lack of intent t o deceive." State v. W einschenk, 2005 ME

28, ~ ~ 16-17 , 868 A.2d 200, 206.

8 As noted above, the Plaintiff acknowledges that what she claims were the

Defendant's statements about the quality of construction were made after she had

already purchased the property. Thus, the only act that Plaintiff alleges against

Defendant that could conceivably constitute a UTPA violation is his alleged oral

statement, sometime before the purchase, that the 5 Dodge Road lot was almost two

acres rn area. But this statement was not made in connection with the sale of the

house-the only statement regarding the area of the lot that the Defendant made was in

the advertisements indicating that it was about an acre.

However, a separate shortcoming in the Plaintiffs UTPA claim is t hat she has

not demonstrated that Defendant's sale of his home was a transaction within the UTPA.

To be within the UTPA, a transaction has to involve "the conduct of trade or

commerce," meaning that it has to occur in a "business context." See Binette v. Dyer

Library Ass'n, 688 A.2d 898, 907 (Me. 1996). The UTPA can extend even to "an

isolated transaction that takes place in a business context, as opposed to one done on a

private, nonprofessional basis ." Id.

The undisputed evidence is that the Defendant had built a home elsewhere on

Dodge Road and accordingly first leased and then sold to Plaintiff the home he had

lived in for about 20 years . Plaintiff claims that Defendant has been "in the business of

fixing up houses ," and Defendant in his affidavit denies that. In the court's view, the

key points here is that the D efendant was selling a residence that he had lived in for 20

years, and that had been built in the 1950's and expanded five years before the sale.

This was not the sale of a new home, or the sale of a home that had been renovated for

purposes of resale. This was t he sale of an older home by its owner. Therefore, even if

Defendant at some point had been in the business of fixing up properties, there is no

9 evidence that this sale was in the context of that business . This was a private,

nonprofessional sale, for purposes of Binette.

Both because the Plaintiff has not made a pnma facie showing that the

transaction was within the UTPA, and because she has not made such a showing that

the Defendant committed an actionable act or practice in connection with her purchase,

Defendant is entitled to summary judgment on Count V of the Amended Complaint.

Count VI (Punitive Damages)

Plaintiffs claim for punitive damages is viable only to the extent Defendant is

liable for an intentional tort, upon proof of which punitive damages may be awarded.

Because Defendant is entitled to summary judgment on the fraud claims, there is no

basis for Plaintiff to be awarded punitive damages . Defendant is granted summary

judgment on this count as well.

IT IS ORDERED;

1. D efendant's Motion for Summary Judgment is granted.

2. Judgment is hereby awarded to Defendant on all counts of the Amended

Complaint.

S. Defendant is awarded his recoverable court costs as the prevailing party.

Pursuant to M . R. Civ. P . 79(a), the Clerk is hereby directed to incorporate this

order by reference in the docket.

Dated April 7, 2016

A. M . Horton Justice, Superior Court