3 elderly at various facilities throughout Maine. It entered into a development a;~ reement
with Green to assist him in the conversion and later into a consulting agreement to
assist Jed Prouty Healthcare Management Inc. in the operation of the facility.
Defendant Suburban provided financing for the conversion and is alleged to have
provided financial advice upon which Green relied in deciding to undertake the
converSIOn. The assisted living facility was not successful and ceased operation in
March 2004.
Plaintiffs' claims against Suburban arise out of contractual dealings with
Suburban from which two specific agreements arose - a Loan Commitment Agreement
executed in December 1996 and a Construction Loan that closed on September 28, 1998.
See Suburban SMF 11 15, 27 (admitted). At his deposition, Green testified that
plaintiffs' claims against Suburban were the following: (1) that Suburban erroneously
assured Green that the Jed Prouty Inn could be profitably converted and operated as an
assisted living facility5 and (2) that Suburban induced Green to invest an additional
$75,836 into the project for change orders based on erroneous assurances that those
funds could be recouped from HUD. See Green Dep. 116-16, 117-18.
It is undisputed that the alleged assurances by Suburban and Sandy River
relating to the projected ability of the assisted living facility to operate profitably
occurred prior to the closing of the construction loan in September 1998. Plaintiffs'
SAMF as to Suburban 11 63, 81. Those assurances necessarily predated the opening of
the facility in June 1999. It is also undisputed that the alleged representations or
5 Suburban argues that its contractual obligations to Green under the Loan Commitment Agreement did not include providing any advice or analysis as to whether the facility could be profitably operated. Green argues that the Loan Commitment Agreement did not set forth the entire arrangement between the parties and that Suburban undertook the role of advising Green Ion whether that the facility would be profitable. The court does not need to resolve this dispute to decide Suburban's motion.
4 assurances made by Suburban and Sandy River with respect to the $75,836 in
disallowed change orders occurred prior to March 1999. Suburban SMF err 33
(admitted). The complaint in this action was filed on April 5, 2006. Suburban therefore
contends that the claims against it are barred by the six-year statute of limitations
contained in 14 M.R.S. § 752.
In response, plaintiffs argue that a discovery rule should be applied in this case
because a fiduciary relationship existed between Green and Suburban. On this issue the
undisputed facts are that Green had no relationship with Suburban prior to 1996, when
he was introduced to David Eaton of Suburban by Sandy River. Plaintiffs' SAMF as to
Suburban err 57. Green is a college graduate who at the time of his dealings with
Suburban and Sandy River had been president of the Jed Prouty Investment Co. Inc., an
entity that invests in stocks, bonds, and real estate, since 1981. Personally or through
corporations he controlled, Green had owned a motel called the Best Western Jed
Prouty Motor Inn in Bucksport since 1981 and had owned another motor inn in
Millinocket and a residential apartment building in Bucksport since 1983. Suburban
SMF errerr 39-45. In 1988 or 1989 Green, through his corporation Jed Prouty Investment
Co. Inc., had acquired the Jed Prouty Tavern and Inn - the property later converted to
an assisted living facility - and operated it as a restaurant and motel until the
conversion. Suburban SAMF errerr 2-5 (admitted).6
In 1996 Green understood how financing, financial projections, and debt service
worked and he was familiar with property appraisals, although he had not previously
been involved with assisted living facilities. Suburban SMF errerr 9, 21; Plaintiffs'
Response to Suburban SMF errerr 9, 21. As of 1996 Green had financed the acquisition of
6 During a twelve-month period in 1992-93, the Jed Prouty Inn and Tavern was closed to allow renovations. After the renovations were completed, Green leased the restaurant portion of the Inn to a third party but continued to be responsible for the renting of rooms at the inn. Id.
5 commercial properties or had refinanced such properties on ten occasions. Suburban
SMF c:rrc:rr 2-3, 42-43, 45 (admitted).
During the 1996-97 time period, Green obtained those additional studies from
entities retained at the suggestion of Suburban or Sandy River relating to the proposed
conversion: a market penetration analysis from Atlantic Retirement Communities, a
building evaluation and space needs study from an architectural firm, and an additional
market study from Planning Insight Inc. Suburban SMF c:rrc:rr 12-14; Plaintiffs' Response
to Suburban SMF c:rrc:rr 12-14. Green also was provided with an appraisal, commissioned
by Suburban, of the value of the property once converted. Suburban SMF c:rr 20;
Plaintiffs' SAMF as to Suburban c:rr 75. In connection with HUD financing issues, Green
was represented by the Curtis Thaxter law firm, which was recommended by Suburban.
Suburban SMF c:rr 28, Plaintiffs' SAMF as to Suburban c:rr 76.
Green acknowledges that at all relevant times during the process leading up to
and through the conversion he was not emotionally or physically impaired in any way.
Suburban SMF c:rrc:rr 51-53 (admitted). He asserts, however, that he had no experience
with assisted living facilities or FHA-insured financing and that, although he had
owned and managed several motels, his experience in the hospitality industry was not
applicable to the assisted living industry. According to Green, the market forces in
those industries are very different. Plaintiffs' SAMF as to Suburban c:rrc:rr 59-60, 62.
Accordingly, Green asserts, he relied on Sandy River and/ or Suburban to give him the
necessary guidance and he made clear to them that he was relying on them in this
manner. Plaintiffs' SAMF as to Suburban c:rrc:rr 63,64,66, 81.
lt is undisputed that at least by late summer or early fall of 2001, after the
assisted living facility had been open for approximately two years, it became apparent
to Green that the assisted living facility was not operating profitably, that the cash flow
6 shortages would not abate, that revenues would not reach projected levels in the future,
and that the facility was not going to be able to continue operating. Plaintiffs' SAMF as
to Suburban <[<[ 88-90.
Contract and Fiduciary Duty Claims Against Suburban
Plaintiffs have asserted two causes of action against Suburban - for breath of
contract and for breach of fiduciary duty. Measured from the date of Suburban's
alleged wrongdoing, plaintiffs' contract claims are barred by the six-year statute of
limitations. Since all of Suburban's alleged wrongdoing occurred prior to March 1999/
Green had to sue Suburban prior to March 2005. 14 M.R.S. § 752. This action, however,
was commenced more than a year later, in April 2006.
Plaintiffs' counterargument is essentially two-fold. They first contend that their
causes of action did not accrue until mid 2001 when it became apparent that market
conditions would not support the financial projections for the assisted living facility.
This argument is unavailing in the face of Law Court decisions holding that a cause of
action for breach of contract accrues at the time the contractual obligations are allegedly
breached - even if the harm resulting from the breach is not discovered until a later
date. E.g., Dunelawn Owners Assoc. v. Gendreau, 2000 ME 94 <[~ 11-14, 750 A.2d 591, 595
96; Kasu Corp. v. Blake Hall & Sprague Inc., 582 A.2d 978,980 (Me. 1990); Chiapetta v. Clark
Associates, 521 A.2d 697,699 (Me. 1987).8
7 As noted above, the allegedly erroneous projections as to the profitability of the facility were provided to Green prior to the closing of the construction loan in September 1998. The alleged misrepresentations made with respect to the disallowed change orders were made prior to March 1999. 8 While this rule may work a substantial hardship on a plaintiff which does not even discover that it has been injured until after the statute of limitations has run, that situation is not presented in this case. Plaintiffs acknowledge here that they became aware that the financial projections were erroneous in mid 2001 and that they learned HUD was not going to approve
7 Plaintiffs argue, however, that a "discovery rule" should apply in this case
because a fiduciary relationship allegedly existed between Green and Suburban. They
also argue that their tort claim for breach of fiduciary duty was timely under the
principle that tort claims, unlike contract claims, do not accrue until a plaintiff is injured
by the allegedly tortious conduct. See Dunelawn, 2000 ME 94
Chiapetta, 521 A.2d at 699. In this case plaintiffs argue that they were not injured (and
their tort claim therefore did not accrue) until 2001 - when the assisted living facility's
financial projections were found to be unrealistic. This argument, however, incorrectly
equates the issue of when plaintiffs discovered they were injured with the issue of when
they were injured. Regardless of when the alleged injury was discovered, the alleged
injury in this case occurred when plaintiffs undertook to convert the inn into an assisted
living facility and assumed various liabilities based on allegedly erroneous financial
projections.
Nevertheless, a discovery rule, as opposed to a time of injury rule, has been
applied in at least some cases when a confidential fiduciary relationship existed
between the plaintiff and the defendant. See Nevin v. Union Trust Co., 1999 ME 47
726 A.2d 694, 700. As a result, plaintiffs' argument in support of a discovery rule (as
well as their cause of action for breach of fiduciary duty on the merits) depends on their
allegation that a fiduciary relationship existed in this case. If, as Suburban argues, there
is no disputed issue of fact for trial with respect to the existence of a fiduciary relationship, then both plaintiffs' breach of fiduciary duty claim and their reliance on
the discovery rule are unavailing.
the change orders in August 2000. Plaintiffs' SAMF as to Suburban 11 58, 86. Plaintiffs did not begin dealing with Sandy River and Suburban until sometime in 1996. Green Aff. 1 3. At a minimum, therefore, all of the claims asserted in the complaint would have been timely if plaintiffs had commended a lawsuit before the end of 2001.
8 For a fiduciary relationship to exist, there must be the actual placing of trust or
confidence by one party and a great disparity of position and influence between the
parties. See Stewart v. Machias Savings Bank, 2000 ME 207 CJI 10, 762 A.2d 44, 46. To
demonstrate the necessary disparity of position and influence, a party must
demonstrate either diminished emotional or physical capacity or the letting down of all
guards and defenses. Id. 2000 ME 207 CJICJI 11-12, 762 A.2d at 46-47. Moreover, to
establish the breach of a fiduciary relationship there must be some abuse of the trust
and confidence placed in the fiduciary. E.g., Ruebsamen v. Maddocks, 340 A.2d 31, 35
(Me. 1975). Significantly, most if not all cases involving breach of fiduciary duty
involve situations where the alleged fiduciary had a hidden agenda. See, e.g., Morris v.
Resolution Trust Corp., 622 A.2d 708,711-13 (Me. 1993).
In this case Suburban has offered evidence that there was not a great disparity of
position and influence between the parties, that Green was not in a vulnerable position
because of diminished capacity or otherwise, and that Green had not let down all
guards and defenses. The opposing evidence offered by Green does not create a
disputed issue for trial on these issues, nor on this record is there a disputed issue for
trial as to whether the necessary abuse of trust and confidence has occurred. In the
Morris case, heavily relied upon by plaintiffs, the party bringing a fiduciary claim had
relied on a bank officer for a reference as to the competence and integrity of the
contractor. She had also relied upon the bank officer to monitor the status of the
renovation project. The bank officer knowingly deceived the plaintiff both as to the
competence and integrity of the contractor and as to whether the work was being
diligently performed. He did this in order to obtain payments for the contractor, who
was delinquent on several loans to the bank. See 622 A.2d at 710-11.
9 In this case, in contrast, there is no allegation of knowing deception on
Suburban's part. Nor did Green ever cede control of decision making to Suburban9 •
The facts in this case negate a finding that a fiduciary relationship existed under the test
set forth in Stewart. See 2000 ME 207 en 12, 762 A.2d at 46-47. 10
Green's position is that because he was inexperienced with respect to assisted
living facilities and because he relied on the expertise of Suburban with respect to the
transactions at issue, there was a disparity of expertise that created a fiduciary
relationshipY This argument, if accepted, would create a fiduciary relationship
whenever a consultant is hired to offer expertise on a subject as to which the party
employing the consultant possesses no expertise. Indeed, under Green's theory, if a
homeowner hired an electrician to do electrical work as to which the homeowner
possessed no competence, the electrician would thereby become a fiduciary. On this
record, Green's fiduciary relationship claim as to Suburban does not present a disputed
issue for trial.
In the alternative, even if there were a factual dispute as to the existence of a
fiduciary relationship in this case, it is not clear that a discovery rule should be applied.
9 Suburban SMF
10 First, as noted above, the alleged injury here was concededly discovered within the six-
year statute of limitations. While the discovery rule has been used to extend the period
of limitations on an undiscovered claim that would otherwise be time-barred, the court
is not aware of any instance in which the discovery rule has been applied to allow a
plaintiff who is aware of a claim that is not yet time barred to disregard the existing
statute of limitations.
Moreover, the Law Court has observed that even where a fiduciary relationship
exists, the discovery rule is only appropriate when the plaintiff
must rely on the defendant's advice as a fiduciary, and the cause of action was virtually undiscoverable absent an independent investigation that would be destructive of the fiduciary relationship.
Nevin v. Union Trust Co., 1999 ME 47
A.2d 1189, 1192 (Me. 1981).
In this case, the summary judgment record discloses no reason why the
relationship between Green and Suburban would have made it difficult for Green to
have made an independent investigation or to have retained an independent consultant
to evaluate the financial prospects of assisted living facility, if he had chosen to do SO.12
In contrast with an attorney-client or a trustee-beneficiary relationship, which could
potentially be ruptured by an independent investigation, there is nothing to suggest
that the nature of business relationship between Green and Suburban in this case would
have hindered or prevented Green from independently investigating the profitability of
an assisted living project or otherwise seeking a "second opinion."
Suburban's motion for summary judgment will be granted.
12 In this connection, Green did obtain two-market analyses and an appraisal of the projected value of the facility. Although Green notes that these studies were commissioned or their authors recommended by Sandy River or Suburban, he has offered no evidence that the information provided was altered or distorted at the behest of Sandy River or Suburban.
11 Sandy River Motion - Undisputed Facts
Like plaintiffs' claims against Suburban, plaintiffs' claims against Sand.y River
are based on alleged representations as to the financial viability of the conversion to an
assisted living facility and on alleged representations that the $76,836 in change orders
could be recouped. According to plaintiffs, these representations were made by Sandy
River in connection with a development agreement that was entered into between
Green and Sandy River in February 1997. Plaintiffs also allege that Sandy River failed
to perform its contractual obligations under a subsequent consulting agreement that
was in effect from approximately July 2000 to July 2001.
With respect to the claims arising out of Sandy River's role in providing
erroneous financial projections, Green alleges that, like Suburban, Sandy River
provided him with various financial projections and information upon which he relied
in making the decision to undertake the conversion and obtain a construction loan
before the facility opened in June 1999. Because this was more than six years prior to
April 5, 2006, when this action was commenced, Green relies upon the discovery rule
and the existence of an alleged fiduciary relationship to avoid the statute of limitations
bar.
Because Green's breach of contract and fiduciary duty claims against Sandy
River based on unfounded financial projections mirror his claims against Suburban, no
extended reiteration of the relevant facts as to those claims is necessary. As in the case
of Suburban, Green's fiduciary duty claim against Sandy River is based on his
12 inexperience with the assisted living industry and his reliance upon the expertise of
Sandy River as his consultant. 13
As noted above, Green's claims against Sandy River include an additional
contract claim based on certain consulting services that Sandy River provided after the
opening of the facility. Sandy River's arrangement to provide those services was
eventually formalized in a consulting agreement between Sandy River and Jed Prouty
Healthcare Management Inc. that was entered into in July 2000. Plaintiffs' SAMF as to
Sandy River 11 93, 96. Pursuant to this consulting agreement, a Sandy River employee
was installed as the facility administrator. ld. 1 98. During this period Sandy River
made a number of recommendations that Green was unable to adopt because the
facility was cash-strapped and there were no available funds. ld. 1102.
Sandy River notified Green on March 31, 2001 that it was terminating the
Consulting Agreement effective June 30, 2001. ld. 1 104; see Sandy River SMF 1 57.
However, Green contends that Sandy River did not provide any meaningful services
under the Consulting Agreement for the period from March 2001 through June 200l.
Plaintiffs' SMF as to Sandy River 11 105-06. Green also faults Sandy River for not
advising him to cut his losses and shut the facility down. ld. 117.
Contractual and Fiduciary Duty Claims against Sandy River Based on Financial Projections
Excluding plaintiffs' claims with respect to the consulting agreement, analysis of
Sandy River's summary judgment motion tracks the previous discussion with respect to
13 Sandy River argues that much of the evidence offered in opposition to its motion for summary judgment is derived from an affidavit of Lawrence Green that Sandy River contends does not contain admissible evidence for purposes of summary judgment. See M.R.Civ.P. 56(e). In the court's view, any ambiguity in the jurat as to Green's personal knowledge is dispelled by lJI 1 of the affidavit, and most but not all of Sandy River's other criticisms of the affidavit are unfounded.
13 Suburban's motion. As with their claims against Suburban, plaintiffs' breach of contract
claims arising out of any representations or information provided prior to the decision
to convert the facility and the opening of the facility are subject to the six-year statute of
limitations unless (1) a fiduciary relationship existed and (2) a discovery rule is
applicable. As with Suburban, however, the summary judgment record with respect to
Sandy River demonstrates that there is no disputed issue for trial as to the existence of a
fiduciary relationship. Accepting for purposes of this motion that Green relied on
Sandy River's expertise, such reliance, without more, does not preclude summary
judgment on this issue. See Stewart, 2000 ME 207 <[ 12, 762 A.2d at 46-47.
Thus, Green has not offered evidence that he was in a vulnerable position as to
Sandy River because of diminished capacity, because of some unusual aspect of his
relationship with Sandy River, or for any other reason. Nor has he offered evidence of a
great disparity in position and influence or that he had let down all guards and
defenses. In addition, he has not offered evidence of any knowing deception on Sandy
River's part, nor has he offered evidence that on the issue of whether to proceed with
the conversion, he ceded his decision-making responsibility to Sandy River. 14
For the same reasons discussed with respect to Suburban, therefore, Sandy River
is entitled to summary judgment on the issue of whether any fiduciary relationship
existed between Green and Sandy River and on whether a discovery rule should be
applied to Counts II and IV of the complaint.
14 Sandy River SMF 'lI 52. Plaintiffs qualified their response to 'lI 52 of Sandy River's SMF by noting that once the assisted liVing facility opened, its day-to-day operations were under the control of a licensed administrator. See Plaintiffs' Response to ~~ 26, 52 of Sandy River SMF. However, plaintiffs have not offered any evidence that Green himself did not make the decision to go forward with the conversion to an assisted living facility.
14 Claims Against Sandy River Based on Violations of Consulting Agreement
Count V of the plaintiffs' complaint is based on Sandy River's alleged breach of
its obligations under its consulting agreement, which was in effect from July 2000
through June 2001. Since the complaint was filed in April 2006, these contractual claims
are not barred by the statute of limitations.
Sandy River notes that plaintiffs have acknowledged that Sandy River made
various recommendations during the consulting agreement and that plaintiffs were
unable to implement those recommendations due to lack of funds. See Plaintiffs' SAMF
as to Sandy River err 102. If these were the sole facts in the record, the court would agree
that Sandy River would be entitled to summary judgment on the consulting agreement
claims. However, plaintiffs have offered evidence that after the departure of Jeff Ackor
as facility administrator in February 2001, Sandy River did not provide any meaningful
services to Jed Prouty Healthcare Management Inc. under the consulting agreement.
Plaintiffs' SMF as to Sandy River
Although it is evident from plaintiffs' submissions that their main focus is on the
claim that the financial projections underlying the assisted living project were unsound,
their complaint (
2000 consulting agreement, failed to assist plaintiffs in keeping the facility in
compliance with applicable regulations, failed to assist plaintiffs in hiring staff, and
failed to assist plaintiffs in filling the facility. At least with respect to the period after
Ackor's departure, Sandy River's summary judgment motion fails to demonstrate there
are no disputed facts on this issue and that Sandy River is entitled to judgment as a
matter of law on this claim.
Remaining to be considered is plaintiffs' claim that Sandy River also breached its
contractual obligation under the 2000-01 consulting agreement by failing to recommend
15 that plaintiffs cut their losses and close the facility. This claim is not alleged in the
complaint see Complaint
motion for summary judgment. Although the court does not need to resolve this issue
to decide this motion, there is a substantial question whether this claim is properly
before the court. Not only was this a theory raised for the first time in response to
Sandy River's motion for summary judgment, but it is also difficult to find a basis for
this claim in the consulting agreement (Exhibit E to Complaint) which, inter alia,
contains an integration clause (§ 8.1) and outlines the various services to be provided in
connection with the operation of the facility. Although there is some language in the
agreement relating to general advisory and consulting services, a fair reading of the
agreement suggests that the consulting services to be provided by Sandy River were
intended to relate to the operation of the facility, not whether it should be closed or
remamopen.
Finally, since the consulting agreement was between Sandy River and Jed Prouty
Healthcare Management Co. and expressly disclaims the existence of any third party
beneficiaries, Sandy River will be granted summary judgment on Count V as against all
plaintiffs other than Jed Prouty Healthcare Management Inc.
The entry shall be:
Plaintiffs' Rule 56(f) motions to stay are denied. Defendant Suburban Mortgage
Associates Inc.'s motion for summary judgment is granted and the complaint is
dismissed as against Suburban Mortgage Associates. Defendant Sandy River
Heal thcare System LLC's motion for summary judgment is granted as to Counts II and
IV and those counts of the complaint are dismissed against defendant Sandy River
Healthcare System LLC. Defendant Sandy River Healthcare System LLC's motion for
summary judgment as to Count V is granted as to plaintiffs Lawrence Green, Jed Prouty
16 Invesbnent Co. Inc., and Jed Prouty Health Care Inc., but denied as to plaintiff Jed
Prouty Healthcare Management Inc.
The clerk is directed to incorporate this order in the docket by reference pursuant
to Rule 79(a).
DATED: November L 2007
Thomas D. Warren Justice, Superior Court
17 lit:: u'+ I I O<:-UO<:O {
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