Huri v. Nutron Equip. Co., Inc.

• Court: Superior Court of Maine
• Decided: March 8, 2010
• Docket: YORcv-09-143
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-p9t143_ U Al?>­ "/0 R.- 3/'6/ ;)0t [J i '

MICHAEL HURl, et a1.,

Plaintiffs

v. ORDER

NUTRON EQUIPMENT CO., INC., et al.,

Defendants

Plaintiff Michael Huri has brought this action against Nutron Equipment Co.,

Inc. alleging negligence, negligent misrepresentation, breach of warranty, and

violations of Maine's Unfair Trade Practices Act and the Uniform Deceptive Trade

Practices Act. These claims arise from an incident in which Nutron's sales employee,

Joshua Fenoff, sold Huri a used tractor without discovering an existing lien. Nutron

Equipment Co., Inc. argues that it was not a party to the transaction and has filed this

motion for summary judgment in its favor.

BACKGROUND In early November 2007, plaintiffs Michael Huri and Kenneth Webb visited

Nutron Equipment Co., Inc.'s storefront intending to purchase a tractor. (PI.'s Compi.

them that he would search for a tractor meeting their needs. (Opp. S.M.F.

November 8, 2007, the plaintiffs returned to Nutron and again met with Joshua Fenoff.

(PI.'s CompI.

accessories owned by defendant Wentzell Builders, Inc., and offered to sell them the

tractor for $24,750.00. (Pl.'s Compi.

equipment, and also contracted for Nutron to service the tractor and install the accessories before delivery. (PI.'s CompI. errerr 11-12.) All of these meetings and

negotiations for the tractor's purchase occurred on Nutron's business premises during

regular business hours. (Opp. S.M.F. err 4.)

From the preceding facts, the plaintiffs claim they believed they were buying the

tractor from Nutron, and that neither Fenoff nor any other employee indicated

otherwise. (Opp. S.M.F. err 6.) However, the management of Nutron were not aware of

the sale and did not approve it. (Supp. S.M.F. errerr 13-15). The bill of sale for the tractor

identified Joshua Fenoff as the seller of the tractor on Wentzell Builders, Inc.'s behalf,

and the plaintiffs' check was made payable to Josh Fenoff. No sales tax was collected

for the transaction. (Supp. S.M.F. errerr 2, 4, 8.) While the invoice for the additional

services performed by Nutron was printed on Nutron's form, the bill of sale for the

tractor was not on an official form. (Supp. S.M.F. errerr 5, 11.) Notwithstanding the form's

informality, though, Joshua Fenoff did print Nutron's name under his own signature on

the bill of sale. (PI.'s CompI. Ex. C.)

The tractor was delivered to Huri's home on November 15, 2007. (PI.'s CompI.

err 16.) Almost one year later, around October 7, 2008, Agricredit Acceptance, LLC

informed the plaintiffs that it held a $15,300 security interest in the tractor and required

payment in full to avoid repossessing the machine. (PI.'s CompI. errerr 17-18.) Joshua

Fenoff ceased to be a Nutron employee in April 2008. (Supp. S.M.F. err 12.)

Plaintiffs Michael Hun, Kenneth Webb, and their business Peace of Mind Tick

Control filed this action against Nutron Equipment Co., Inc., and Wentzell Builders, Inc.

on May 14, 2009. Nutron filed this motion for summary judgment on August 7,2009.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

see also Levine v. R.B.K. Caly Corp., 2001 ME 77, err 4, 770 A.2d 653, 655. A motion for 2 summary judgment must be supported by citations to record evidence of a quality that

would be admissible at trial. Id. at <]I 6, 770 A.2d at 656 (citing M.R. Civ. P. 56(e)). An

issue of "fact exists when there is sufficient evidence to require a fact-finder to choose

between competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42, <]I 4,

869 A.2d 745, 747 (quoting Lever v. Acadia Hasp. Corp., 2004 ME 35, <]I 2, 845 A.2d 1178,

1179). Any ambiguities "must be resolved in favor of the non-moving party." Beaulieu v.

The Aube Corp., 2002 ME 79, <]I 2, 796 A.2d 683, 685 (citing Green v. Cessna Aircraft Co., 673

A.2d 216,218 (Me. 1996)).

Nutron argues that the record clearly shows that Joshua Fenoff sold the tractor

unilaterally, absolving Nutron of any responsibility for the undiscovered lien. The

plaintiffs counter that the record evidence could show that Fenoff had apparent

authority to sell the tractor on Nutron's behalf, generating an issue of material fact. See

Steelstone Indus. v. North Ridge Ltd. Pshp., 1999 ME 132, <]I 12, 735 A.2d 980,983 (existence

of agency relationship is question of fact).

However, on the facts presented in this record, a fact finder could not reasonably

conclude that the purchase was made from Nutron Equipment. The obvious

irregularity of the sales documents, including the failure to collect sales tax, would put

any reasonable purchaser on notice that this sale was not in the ordinary course of

Nutron Equipment's business.

The Motion for Summary Judgment on behalf of Nutron Equipment is Granted.

The clerk may incorporate this order in the docket by reference.

Dated: March 0 ' 2010

~'-M~ !~stice, Superior Court

3 ATTORNEY FOR PLAINTIFF ATTORNEY FOR DEFENDANT WILLIAM P. LOGAN, ESQ. MARTICA DOUGLAS, ESQ. IRWIN, TARDY & MORRIS, PA DOUGLAS DENHAM BUCCINA & ERNST PO BOX 476 PO BOX 7108 NEWPORT ME 04953 PORTLAND ME 04112-7108

DEFENDANT pro se WENTZELL BUILDERS INC