Davignon v. Martin

• Court: Superior Court of Maine
• Decided: October 2, 2015
• Docket: CUMre-15-030
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-15i ARTHUR DAVIGNON d/b/a ARTHUR DAVIGNON HOME MAINTENANCE,

P:.aintiff ORDER ON DEFENDANT'S v. MOTION TO DISMISS

PATTI MARTIN,

Defendant

I. Background

A. Pacts

Plaintiff Arthur Davignon is an individual doing business as Arthur

Davignon Ho:ne Maintenance in Falmouth, Maine. (Am. Compl. Cf[ 1.) Defendant

Patti Martin is an individual residing in South Portland, Maine. (Am. Compl. Cf[

2.)

Plaintiff contracted with Steve Whitten, a general contractor, to renovate

defendant's property and provide plumbing services as a sub-contractor. (Am.

Compl. Cf[ s.: Defendant agreed to pay Mr. Whitten, and he would then pay plaintiff the amount of $15,000. (Am. Compl.

three separa·:e payments: $7,500 as a deposit, $5,000 after the boiler was hung

and hot and cold water supplies were ready for service, and $2,500 within 30

days of the project's completion. (Am. Compl. Cf[ 6.)

On July 28, 2014, defendant paid plaintiff $5,000 of the $7,500 deposit.

(Am. Comp:..

and August 29, 2014. (Am. Compl.

1 December 5, 2C14 in the Cumberland County Registry of Deeds pursuant to 10

M.R.S. § 3251 (2014). (Am. Compl.

19, 2015. (Am. Compl.

balance. (Am. Compl.

B. Procedural Posture

Plaintiff filed his original complaint on March 9, 201Ei and alleged four

causes of action: breach of contract, count I; breach of construction contract,

count II; unjust enrichment, count III; and enforcement of lien, count N. (Compl.

should dismiss counts I and II because no contract existed between defendant

and plaintiff. ~:Def.' s Mot. Dismiss I 2-3.) Defendant argued the court should

dismiss count IV because plaintiff failed to file suit against defendant within 120

days of the laE:t date of work as required under 10 M.R.S. § 3255 (2014). (Def.'s

Mot. Dismiss I 3-4.) On May 5, 2015, the court granted the motion and dismissed

counts I, II, ar d N with prejudice and awarded defendant costs and attorney's

fees. (Order Def.'s Mot. Dismiss I.)

On Mc.y 11, 2015, plaintiff moved to strike the court's order on

defendant's rr.otion to dismiss regarding counts I and II and argued that the

parties had agreed between themselves that plaintiff would have additional time

to object to de:~endant's motion to dismiss. (Pl.'s Mot. Strike.) Plaintiff agreed that

count N should be dismissed. (Order Mot. Strike.) Argument on plaintiff's

motion to strike was held on June 5, 2015. (Order Mot. Strike.) Plaintiff argued

that he alleged quantum meruit in addition to breach of contract in count I and

that count II ::;hould remain. (Order Mot. Strike.) The court concluded that the

language of the statute precluded the relief sought in count II. (Order Mot. Strike.) As a result, the court denied plaintiff's motion but allowed him to file an

amended complaint to include a count for quantum meruit. (Order Mot. Strike.)

Plaintiff filed an amended complaint on July 1, 2015 and alleged four

causes of acticn: breach of contract, count I; breach of construction contract,

count II; unjust enrichment, count III; and quantum meruit, count IV. Defendant

filed a second motion to dismiss and argued counts I and II of the amended

complaint shm.Jd be dismissed because plaintiff merely reasserted counts I and II

from the original complaint, which were dismissed with prejudice. (Def.'s Mot.

Dismiss II 1-2.; Plaintiff filed an objection to defendant's motion to dismiss, and

stated that he in fact agreed to dismiss count II. (Pl.'s Obj. Mot. Dismiss 1.)

Plaintiff further argued that he amended count I to include a statement that he

directly negoti:~.ted with defendant and alleges that he may have a separate oral

contract with l::er as a result of these negotiations. (Pl.'s Obj. Mot. Dismiss 1.)

On July 8, 2015, defendant filed a counterclaim with one count for

negligence and alleged that plaintiff did not complete the work he contracted

with Mr. Whitten to perform and did not comply with industry standards

regarding some of the work he did perform. (Def.'s Countercl.

II. Discusswn

A. Effect o: Prior Dismissal with Prejudice on Count I

Defendimt argues that in the amended complaint, plaintiff merely

reasserted counts I and II, which were dismissed with prejudice. (Def.'s Mot.

Dismiss II 1-:2.. ) Because plaintiff agreed to dismiss count II, (Pl.'s Obj. Mot.

Dismiss 1 ), the remaining issue is whether count I is barred by the court's prior

dismissal with prejudice. "A dismissal under Rule 12(b )( 6) is technical! y an

adjudication on the merits under Rule 41(b)(3)." 2 Harvey, Maine Civil Practice§

3 12.11 at 422 13d ed. 2011). Under Rule 41(b)(3), "a dismissal under this

subdivision (b: and any dismissal not provided for in this rule, other than a

dismissal for lack of jurisdiction, for improper venue, or for failure to join a party

under Rule lS', operates as an adjudication upon the merits." M.R. Civ. P.

41(b)(3). A Rul1~ 12(b)(6) dismissal"ordinarily does not have this effect, however,

because leave to amend is freely granted under Rule 15(a)." 2 Harvey, Maine

Civil Practice § 12.11 at 422 (3d ed. 2011). "Whether to allow a pleading

amendment re:;;ts with the court's sound discretion." In re Sen, 1999 ME 83, 110,

730 A.2d 680 (citing Kelly v. Michaud's Ins. Agency, Inc., 651 A.2d 345, 347 (Me.

1994)).

Here, the court dismissed counts I, II, and IV with prejudice. (Order Def.' s

Mot. Dismiss.; Plaintiff filed an amended complaint that included a count for

quantum menLit. (Am. Compl. 1121-25.) He also amended count I, the breach of

contract claim, to include a statement that he directly negotiated with defendant.

(Am. Compl. 'IT1 5, 12.) Plaintiff argues the court never dismissed count I with

prejudice and that he may have a separate oral contract with defendant as a

result of these negotiations. (Pl.'s Obj. Mot. Dismiss 1.)

The amendment of count I to include an oral contract theory is beyond the

scope of the leave to amend to include a count for quanhrm meruit because

quantum meruit and recovery under an oral contract are distinct legal theories.

"A valid claim in quantum meruit requires: 'that (1) services were rendered to

the defendant by the plaintiff; (2) with the knowledge and consent of the

defendant; and (3) under circumstances that make it reasonable for the plaintiff

to expect payment."' Howard & Bowie, P.A. v. Collins, 2000 ME 148, 117, 759

A.2d 707 (quoting Paffhausen v. Balano-Stott, 1998 ME 47, 1 8, 708 A.2d 269). In

4 contrast, "[a] contract exists if the parties mutually assent to be bound by all its

material terms, the assent is either expressly or impliedly manifested in the

contract, and the contract is sufficiently definite to enable the court to ascertain

its exact meaning and fix exactly the legal liabilities of each party." Sullivan v.

Porter, 2004 ME 134, err 13, 861 A.2d 625 (citing Forrest Assocs. v. Passamaquoddy

Tribe, 2000 ME 195, err 9, 760 A.2d 1041). In other words, "[a] contract implied in

fact supporting quantum meruit recovery arises when there is no express contract

but the parties' conduct raises the inference that they intended to make mutual

promises and be bound by them." Horton & McGehee, Maine Civil Remedies§

11-1 at 227 (4th ed. 2004). The court's prior dismissal of count I with prejudice

bars plaintiff's including count I in his amended complaint.

B. Attorne:/s Fees and Costs

Defend

(Def.'s Mot. Dismiss II 4.) As in the previous motion to dismiss, defendant is

entitled to atto::ney's fees pursuant to 10 M.R.S. § 1118(4) (2014:).

The enb·y is

Defendant's Motion to Dismiss Counts I and II of Plaintiff's Amended Complaint is GRANTED. Counts I and II of Plaintiff's Amended Complaint are DISMISSED with prejudice. Defendant will file an affidavit of costs and attorney's fees after the case is fully resolved.

Date: October 2, 2015 Nancy Mills Justice, Superior Court

5 NEAL WEINSTEIN ESQ PO BOX 660 OLD ORCHARD BEACH ME 04064-0660

JOHN TURCOTTE ESQ AINSWORTH THELIN PO BOX 2412 SOUTH PORTLAND ME 04116-2412