STATE OF MAINE SUPERIOR COURT HANCOCK, ss. CIVIL ACTION DOCKET NO. CV-09-26 f< M L~-HA N- :;J.-/1_lJOrO
JUSTIN LIMEBURNER and TINA LIMEBURNER
Plaintiffs
v.
ERIC S. MURPHY, SR. d/b/a ERIC S. MURPHY TRUST and d/b/a MURPHY HOME LOANS, ERIC S. MURPHY, JR., d/b/a MURPHY HOME LOANS
Defendants
DECISION and ORDER
Defendants Eric. S. Murphy, Sr. and the Eric S. Murphy
Trust filed a Motion to Dismiss the Amended Complaint of
Plaintiffs Justin Limeburner and Tina Limeburner. This
motion is filed pursuant to Rule l2(b)(6) alleging that the
complaint fails to state a claim upon which relief can be
granted. The Amended Complaint was filed following a
conference of counsel and the court at which the Court
encouraged the filing of the amended complaint to state
with more particularity the facts that would form the basis
for a viable legal claim. The intention was to avoid
unnecessary discovery, which would be expensive to the
parties and time consuming to all. This prompted the
1 filing of an 'amended complaint' which prompted a further
filing of the Motion to Dismiss.
The Law Court provided updated guidance on the
standards to be met by notice pleading in the case of Town
of Stonington v. Galilean Gospel, 1999 ME 2, ~14, 722 A.2d
1269, 1272. In that case the Court advised
U(M)odern notice pl~ading practice requires "a short and plain statement of the claim" to provide fair notice of the cause of action, M.R. Civ. P. 8(a)(1), but use of any particular "magic" words are not required to state a particular claim. We construe the "pleadings in favor of the pleader and in the interests of substantial justice." Chiappetta v. LeBlond, 505 A.2d 783, 785 (Me.1986); M.R. Civ. P. 8(f). "The function of the complaint is to provide fair notice of a claim.' . . . It must sufficiently apprise defendants of the nature of the action against them." Bolton v. Caine, 584 A.2d 615, 617 (Me. 1990) (quoting Rubin v. Josephson, 478 A.2d 665, 669 n.4 (Me. 1984)).
In that context a Motion to Dismiss is to be reviewed
in a light most favorable to the Plaintiff to determine
whether it sets for elements of a cause of action or
alleges facts that would entitle Plaintiff to relief. It
must appear beyond a doubt that Plaintiff is not entitled
to relief to justify granting the Motion. Saunders v.
Tisher 2006 ME 94, ~8, 902 A.2d 830, 832.
2 Defendant Murphy, Sr.'s Motion focuses on Counts 1
through 4 and 6 through 9 as they relate to the Murphy Sr.
Defendants.
Discussion
The Court has reviewed the Amended Complaint
construing the pleading in favor of the pleader \
(Plaintiffs) and guided by the mandate that the purpose of
the complaint is to provide fair notice of a claim.
Defendant Murphy, Sr.'s arguments define the issue at this
stage of the proceeding. While it is true that a Motion to
Dismiss under Rule 12(b)(6) can be converted into a Motion
for Summary Judgment (Rule 56 M.R.Civ.P) if matters outside
the pleadings are presented, no such matters were presented
here other than argument that does not convert the 12(b)(b)
Motion.
Defendants Murphy, Sr., argue (B) that no factual
allegations are made against the Murphy, Sr. Defendants.
That point is correct, but not dispositive at this stage.
Plaintiff has elected to group the Defendant's together
with broad stroke allegations. While it will be important
as a matter of proof at trial (and potentially summary
3 judgment) what facts are identified with Defendants Murphy,
Sr., at this pleading stage it is sufficient that the broad
stroke allegations allege a theory of recovery and
Defendants Murphy, Sr., have notice of that theory.
Defendant Murphy, Sr., argue (C) that Plaintiffs are
not consumers and the transaction was a commercial
transaction outside the scope of the Maine Consumer Credit \ \
Code (i.e. MCCC 9-A M.R.S. §1-102 et seq.). Whether or not
there is a factual dispute on those points, or it is
undisputed, is for another time. At this stage, Plaintiffs
have alleged in Count 1, a claim upon which they may be
entitled to recover and the Motion to Dismiss Count 1 is
denied.
As to Count 2, Defendants Murphy, Sr., argue facts.
Plaintiffs have alleged they are consumers and have been
damaged by Defendants (all Defendants) violating the Maine
Truth in Lending Act (MTILA- 9-A §8-206-A). It is for
another proceeding to establish facts through admissible
evidence (either contested at trial or uncontested at a
motion for summary judgment). Consistent with notice
pleadings, Plaintiffs have alleged a claim upon which they
4 can recover and notice of the claim has been adequately
given. The Motion to Dismiss Count 2 is denied.
With regard to Count 3 (Defendants' argument E),
Plaintiffs relying on their allegation that they were
'consumers' allege a violation of the Consumer Credit Code
with regard to Consumer Credit Transactions Made To Acquire
Real'Estate or Secured By First-Lien Mortgages (9-A M.R.S. \
§9-101 et seq.). Again, we are dealing with 'allegations'
which Defendants Murphy, Sr., contest. In terms of
pleadings, Plaintiffs have pled a claim upon which relief
can be granted if the facts are demonstrated to exist.
That latter point is properly challenged later in the
process. The Motion to Dismiss Count 3 is denied.
Count 4 of Plaintiffs' complaint (Defendants'
argument F) alleges a violation of the Unfair Trade
Practices Act (5 M.R.S. §208-A et seq.) Whether or not the
allegations in Plaintiffs complaint at Count 4 qualify as
unfair trade practices is a factual question (State v.
Weinschenk 2005 ME 28, ~8, 868 a.2d 200, 204) and not for
decision as a factual matter at this stage of the
proceeding. Plaintiffs have stated a claim upon which
5 relief can be granted under the theory presented and the
Motion to Dismiss Count 4 is denied.
with respect to Count 6, Breach of Contract,
Defendants suggest even if the claims alleged are taken as
true (Defendants' argument G), the lack of privity defeats
the claim. Contested facts are not to be argued at this
stage, as indicated above. The issu~ is not whether one
agrees with the allegations but whether they state a claim,
notice of which has been given to the Defendants Murphy,
Sr. The Court is satisfied that Plaintiffs have alleged by
this count a breach of contract by uDefendants u (all) with
reference to a loan financing agreement. The Motion to
Dismiss Count 6 is denied.
Concerning Count 7 (Defendants argument H) regarding
fraudulent/negligent misrepresentations, the Court is
satisfied that Rule 9 (b) M.R.Civ.P. has been complied with
and Defendants Murphy, Sr. have notice of the theory
Plaintiffs are relying on to recover damages. The Motion
to Dismiss Count 7 is denied.
Count 8 alleged a theory of recovery based on an
implied covenant of good faith and fair dealing. This
6 Motion to Dismiss is granted as to Count 8. The Law Court
in 2002 advised as follows: "(W)e have declined to impose a
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STATE OF MAINE SUPERIOR COURT HANCOCK, ss. CIVIL ACTION DOCKET NO. CV-09-26 f< M L~-HA N- :;J.-/1_lJOrO
JUSTIN LIMEBURNER and TINA LIMEBURNER
Plaintiffs
v.
ERIC S. MURPHY, SR. d/b/a ERIC S. MURPHY TRUST and d/b/a MURPHY HOME LOANS, ERIC S. MURPHY, JR., d/b/a MURPHY HOME LOANS
Defendants
DECISION and ORDER
Defendants Eric. S. Murphy, Sr. and the Eric S. Murphy
Trust filed a Motion to Dismiss the Amended Complaint of
Plaintiffs Justin Limeburner and Tina Limeburner. This
motion is filed pursuant to Rule l2(b)(6) alleging that the
complaint fails to state a claim upon which relief can be
granted. The Amended Complaint was filed following a
conference of counsel and the court at which the Court
encouraged the filing of the amended complaint to state
with more particularity the facts that would form the basis
for a viable legal claim. The intention was to avoid
unnecessary discovery, which would be expensive to the
parties and time consuming to all. This prompted the
1 filing of an 'amended complaint' which prompted a further
filing of the Motion to Dismiss.
The Law Court provided updated guidance on the
standards to be met by notice pleading in the case of Town
of Stonington v. Galilean Gospel, 1999 ME 2, ~14, 722 A.2d
1269, 1272. In that case the Court advised
U(M)odern notice pl~ading practice requires "a short and plain statement of the claim" to provide fair notice of the cause of action, M.R. Civ. P. 8(a)(1), but use of any particular "magic" words are not required to state a particular claim. We construe the "pleadings in favor of the pleader and in the interests of substantial justice." Chiappetta v. LeBlond, 505 A.2d 783, 785 (Me.1986); M.R. Civ. P. 8(f). "The function of the complaint is to provide fair notice of a claim.' . . . It must sufficiently apprise defendants of the nature of the action against them." Bolton v. Caine, 584 A.2d 615, 617 (Me. 1990) (quoting Rubin v. Josephson, 478 A.2d 665, 669 n.4 (Me. 1984)).
In that context a Motion to Dismiss is to be reviewed
in a light most favorable to the Plaintiff to determine
whether it sets for elements of a cause of action or
alleges facts that would entitle Plaintiff to relief. It
must appear beyond a doubt that Plaintiff is not entitled
to relief to justify granting the Motion. Saunders v.
Tisher 2006 ME 94, ~8, 902 A.2d 830, 832.
2 Defendant Murphy, Sr.'s Motion focuses on Counts 1
through 4 and 6 through 9 as they relate to the Murphy Sr.
Defendants.
Discussion
The Court has reviewed the Amended Complaint
construing the pleading in favor of the pleader \
(Plaintiffs) and guided by the mandate that the purpose of
the complaint is to provide fair notice of a claim.
Defendant Murphy, Sr.'s arguments define the issue at this
stage of the proceeding. While it is true that a Motion to
Dismiss under Rule 12(b)(6) can be converted into a Motion
for Summary Judgment (Rule 56 M.R.Civ.P) if matters outside
the pleadings are presented, no such matters were presented
here other than argument that does not convert the 12(b)(b)
Motion.
Defendants Murphy, Sr., argue (B) that no factual
allegations are made against the Murphy, Sr. Defendants.
That point is correct, but not dispositive at this stage.
Plaintiff has elected to group the Defendant's together
with broad stroke allegations. While it will be important
as a matter of proof at trial (and potentially summary
3 judgment) what facts are identified with Defendants Murphy,
Sr., at this pleading stage it is sufficient that the broad
stroke allegations allege a theory of recovery and
Defendants Murphy, Sr., have notice of that theory.
Defendant Murphy, Sr., argue (C) that Plaintiffs are
not consumers and the transaction was a commercial
transaction outside the scope of the Maine Consumer Credit \ \
Code (i.e. MCCC 9-A M.R.S. §1-102 et seq.). Whether or not
there is a factual dispute on those points, or it is
undisputed, is for another time. At this stage, Plaintiffs
have alleged in Count 1, a claim upon which they may be
entitled to recover and the Motion to Dismiss Count 1 is
denied.
As to Count 2, Defendants Murphy, Sr., argue facts.
Plaintiffs have alleged they are consumers and have been
damaged by Defendants (all Defendants) violating the Maine
Truth in Lending Act (MTILA- 9-A §8-206-A). It is for
another proceeding to establish facts through admissible
evidence (either contested at trial or uncontested at a
motion for summary judgment). Consistent with notice
pleadings, Plaintiffs have alleged a claim upon which they
4 can recover and notice of the claim has been adequately
given. The Motion to Dismiss Count 2 is denied.
With regard to Count 3 (Defendants' argument E),
Plaintiffs relying on their allegation that they were
'consumers' allege a violation of the Consumer Credit Code
with regard to Consumer Credit Transactions Made To Acquire
Real'Estate or Secured By First-Lien Mortgages (9-A M.R.S. \
§9-101 et seq.). Again, we are dealing with 'allegations'
which Defendants Murphy, Sr., contest. In terms of
pleadings, Plaintiffs have pled a claim upon which relief
can be granted if the facts are demonstrated to exist.
That latter point is properly challenged later in the
process. The Motion to Dismiss Count 3 is denied.
Count 4 of Plaintiffs' complaint (Defendants'
argument F) alleges a violation of the Unfair Trade
Practices Act (5 M.R.S. §208-A et seq.) Whether or not the
allegations in Plaintiffs complaint at Count 4 qualify as
unfair trade practices is a factual question (State v.
Weinschenk 2005 ME 28, ~8, 868 a.2d 200, 204) and not for
decision as a factual matter at this stage of the
proceeding. Plaintiffs have stated a claim upon which
5 relief can be granted under the theory presented and the
Motion to Dismiss Count 4 is denied.
with respect to Count 6, Breach of Contract,
Defendants suggest even if the claims alleged are taken as
true (Defendants' argument G), the lack of privity defeats
the claim. Contested facts are not to be argued at this
stage, as indicated above. The issu~ is not whether one
agrees with the allegations but whether they state a claim,
notice of which has been given to the Defendants Murphy,
Sr. The Court is satisfied that Plaintiffs have alleged by
this count a breach of contract by uDefendants u (all) with
reference to a loan financing agreement. The Motion to
Dismiss Count 6 is denied.
Concerning Count 7 (Defendants argument H) regarding
fraudulent/negligent misrepresentations, the Court is
satisfied that Rule 9 (b) M.R.Civ.P. has been complied with
and Defendants Murphy, Sr. have notice of the theory
Plaintiffs are relying on to recover damages. The Motion
to Dismiss Count 7 is denied.
Count 8 alleged a theory of recovery based on an
implied covenant of good faith and fair dealing. This
6 Motion to Dismiss is granted as to Count 8. The Law Court
in 2002 advised as follows: "(W)e have declined to impose a
duty of good faith and fair dealing except in circumstances
governed by specific provisions of the Uniform Commercial
Code. See First NH Banks Granite State v. Scarborough, 615
A.2d 248, 250-51 (Me. 1992)." Haines v. Great N. Paper,
Inc., 2002 ME 157, P15 (Me. 2002) As in Haines, there is
no allegation that the Commercial Code is involved in this
matter
Exemplary/Punitive Damages
In Counts 2,3,4 and 7, Plaintiffs prayer for relief
claims 'exemplary' damages. Since 1985, the law in Maine
has been that exemplary/punitive damages must be alleged in
the context of malice, express or implied. Absent those
allegations, the defendant is not put on notice that such
damages are at issue. Simply to use the word 'exemplary'
is insufficient to properly allege punitive damages and
raise that issue. Defendants Murphy, Sr.'s Motion to
Dismiss with respect to 'exemplary' damages is granted as
to counts 2,3,4, and 7. Plaintiffs do allege malice in
Count 9, but that count is only directed at Defendants
Murphy, Jr.
7 It is Ordered that Count 8 is dismissed as to
Defendants Murphy, Sr. and the claims for
exemplary/punitive damages in Counts 2,3,4 and 7 are
dismissed. In all other respects, Defendants Murphy, Sr.'s
Motion to Dismiss is denied.
At the direction of the Court, this Order shall
be incorporated into the docket by reference. Rule 79(a)
M.R.Civ.P.
Dated February 2, 2010 ~J1l~ Justice, Superior Court
8 JUSTIN LIMEBURNER - PLAINTIFF SUPERIOR COURT HANCOCK, ss. Attorney for: JUSTIN LIMEBURNER Docket No ELLSC-CV-2009-00026 DAVID J VAN DYKE - RETAINED 05/04/2009 HORNBLOWER LYNCH RABASCO & VANDYKE 261 ASH STREET DOCKET RECORD PO BOX 116 LEWISTON ME 04243-0116
TINA LIMEBURNER - PLAINTIFF
Attorney for: TINA LIMEBURNER DAVID J VAN DYKE - RETAINED 05/04/2009 HORNBLOWER LYNCH RABASCO & VANDYKE 261 ASH STREET PO BOX 116 LEWISTON ME 04243-0116
vs ERIC S MURPHY, SR. DBA - DEFENDANT
Attorney for: ERIC S MURPHY, SR. DBA ALEXANDER WILSON SAKSEN - RETAINED OS/27/2009 DRUMMOND & DRUMMOND ONE MONUMENT WAY PORTLAND ME 04101
ERIC S MURPHY, JR. DBA - DEFENDANT
Filing Document: COMPLAINT Minor Case Type: CONTRACT Filing Date: 05/04/2009
Docket Events: 05/04/2009 FILING DOCUMENT - COMPLAINT FILED ON 05/04/2009
05/06/2009 Party(s): JUSTIN LIMEBURNER ATTORNEY - RETAINED ENTERED ON 05/04/2009 Plaintiff's Attorney: DAVID J VAN DYKE
Party(s): TINA LIMEBURNER ATTORNEY - RETAINED ENTERED ON 05/04/2009 Plaintiff's Attorney: DAVID J VAN DYKE
05/06/2009 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 05/06/2009
OS/21/2009 Party(s): ERIC S MURPHY, JR. DBA SUMMONS/SERVICE - CIVIL SUMMONS FILED ON OS/20/2009
OS/21/2009 Party(s): ERIC S MURPHY, JR. DBA SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/05/2009
OS/27/2009 Party(s): ERIC S MURPHY, SR. DBA MOTION - OTHER MOTION FILED ON OS/27/2009 FOR MORE DEFINITE STATEMENT Page 1 of 4 Printed on: 02/05/2010