Mainley Marine Sales v. Worrey

• Court: Superior Court of Maine
• Decided: April 10, 2006
• Docket: CUMcv-04-369
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss. Docket No. 3-04-369'

MAINE-LY MARINE SALES & SERVICE, INC., et al.,.

ORDER

JOHN WORREY,

Defendant.

Before the court is a motion by plaintiffs Maine-ly Marine Sales & Service Inc.

and Stanley Malinowski (collectively, "Maine-ly Marine") for summary judgment

dismissing the counterclaims filed by defendant John Worrey.

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

En, Johnson v. McNeil, 2002 ME 99, P[ 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes

of summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a

matter of law, summary judgment should be granted. Rodrinue v. Rodri~ue,1997 ME

99 P[ 8,694 A.2d 924,926.

At the outset, before considering what facts are disputed and what facts are

undisputed, there are two procedural issues to consider. In responding to Maine-ly Marine's statement of material facts, Worrey has chosen to submit h s opposing

statement olC materid facts in Vile form of an affidavit. I= the c~iirt'sview, this does not

comply with the requirement that an opposing statement of material facts be "separate,

short, and concise." See M,R.Civ,P.56(h)(2)(emphasis added). Statements of material

facts submitted pursuant to Rule 56(h) are not intended to contain evidentiary

submissions but are instead intended to identify alleged factual disputes and provide

record citations to the evidentiary submissions (depositions, affidavits, answers to

interrogatories, and the like) whch support a party's factual assertions, denials or

qualifications.

In ttus instance, however, Worrey's opposing statement of material facts is

relatively concise and also contains record citations to h s deposition. His affidavit does

not add a n y h n g material to the portions of h s deposition that could be properly be

considered if the affidavit portion of Worrey's statement of material facts were

disregarded. In determining whether there are disputed issues of fact for trial, therefore,

Worrey's departure from the requirements of Rule 56(h) does not affect the outcome of

h s motion.

The second procedural issue to be considered concerns Worrey's objections to

the last three paragraphs of Maine-ly Marine's statement of material facts on the ground

that those paragraphs cite to h s pleadings. Since statements in a party's pleadings are

admissible as party admissions and since a court can take judicial notice of its own

records to satisfy itself that a pleading is authentic, reliance on an opponenrs pleadings

is permissible in summary judgment practice.'

Rule 56 provides that a party may not rest upon mere allegations or denials in that vartv's pleadings, see M.R.Civ.P. 56(e), but does not preclude reliance upon an opposing party's pleadings. 1. Factual Record on Summary Tudament

v TAT-., - ClLl ulreyfS coulitercla;in seeks recovei-y foi- breach of conkact, -----. ulLJu3t ---: -L- --A lClUlLClLL,

fraud, negligent misrepresentation, violations of the unfair trade practice act (UTPA),

and breach of express or implied warranty.' All of Worrey's claims relate to Maine-ly

Marine's alleged failure to properly winterize h s boat or perhaps to its alleged failure

to warn h m of the risk of freezing if the boat was not winterized soon enough.

It is undisputed that Worrey brought h s boat to Maine-ly Marine for

winterization during the fall of 2001. The exact date he left his boat at Maine-ly Marine

is not revealed by the record but it is undisputed that he picked it up on November 28,

2001, that he received and paid an invoice at that time for $286.45. The invoice was for

winterization labor and shrink wrap labor and bore the notation "AFTER FREEZE

DATE." Maine-ly Marine SMF ¶¶ 1-2. (admitted). On t h ~ record, s it appears there may

have been some discussion between Worrey and Maine-ly Marine about the notation

"AFTER FREEZE DATE," see Worrey SMF ¶ 3, but the content of those discussions has

not been set forth. Maine-ly Marine has not offered evidence that it explained the

significance of the freeze date to Worrey.

According to Worrey's version of the facts, whch the court must accept as true

for purposes of summary judgment, Worrey took his boat to Maine-ly Marine for

service because he had been led to believe that he needed Maine-ly Marine to do the

work in order to maintain h s warranty. Worrey states he brought the boat in for

winterization in September 2001 and called again in October 2001 but was told in both

cases to bring it in later because Maine-ly Marine could not get to it at that time.

Worrey is also seeking punitive damages and has alleged that plaintiff Malinowski should be held personally liable for any damages assessed against Maine-ly Marine b cause, according to Worrey, Malinowslu is the alter ego of Maine-ly Marine. Worrey states that he was not advised that a delay in bringng h s boat in could result in

damage to his engine due to freezing.

Worrey appears to contend that either h s engine block froze before Maine-ly

JAarlm~e ~ c -r c ~ n t ehis d boat for winterization or thzt Mzlne-!y Marine i ~ p r o p e r l y

winterized his boat. See Defendant's Statement of Material Facts, Additional Facts ql 7,

citing to Worrey Dep. 105.

2. - - Worrev's Fraud and Negligent Msrepresentation Claims

Construing any disputed facts in the light most favorable to Worrey, Maine-ly

Marine is nevertheless entitled to summary judgment on Worrey's fraud and

misrepresentation claims. Because the only damage Worrey suffered was damage to his

engine, the economic loss doctrine set forth by the Law Court in Oceanside at Pine Point

Condominium Owners Assoc. v. Peachtree Doors, Inc., 659 A.2d 267, 270 (Me. 1995), is

applicable here. In the court's view, that doctrine is applicable to service contracts, such

as the winterization contract in t h ~ scase, as well as to purchases of allegedly defective

goods. See Maine Rubber International v. Environmental Management Group. Inc., 298

F.Supp.2d 133, 136-37 (D.Me. 2004).

Under the economic loss doctrine, where a claimant is complaining about a

defective product and the sole damage is to the product itself, the claimant is limited to

h s remedies for breach of contract and breach of warranty and is not entitled to assert

tort claims in addition to contractual claims. In h s instance, Worrey has asserted

claims for breach of contract, breach of express or implied warranty, and unfair trade practice violations. His fraud and negligent misrepresentation claims should therefore

be dismissed."

3. Worrev's Contract and Warrantv Claims

Maine-ly PV4alinez!sc seeks summzry judgment cn \Nc?rreylscnntrzct and breach

of warranty claims, contending that those claims are doomed by Worrey's failure to

offer expert testimony with respect to causation - whether the damage to h s engine

was caused by any acts or omissions of Maine-ly Marine. On tlus issue Maine-ly

Marine notes that the expert originally designated by Worrey has dropped out and

contends that Worrey cannot cure h s need to offer expert testimony by what Maine-ly

Marine characterizes as an untimely, belated, and improper attempt to designate

Worrey's brother as an expert. Before filing its motion for summary judgment, Maine-

ly Marine had filed a motion to exclude an expert testimony to be offered by Worrey's

brother. That motion has been opposed by Worrey and remains pending.

In h s connection, it is important to separate Maine-ly Marine's summary

judgment motion from its motion to exclude expert testimony from Worrey's brother.

On Maine-ly Marine's summary judgment motion, Maine-ly Marine did not assert in its

statement of material facts either that it did not cause the damage or that Worrey has

not offered any admissible evidence of causation. Under Corev v. Norman Hanson &

DeTroy, 1999 ME 196 ¶ 9, 742 A.2d 933, 938, a party opposing summary judgment is

Those claims may be legally deficient for another reason. Accepting Worrey's version of the facts, he is complaining not about affirmative misrepresentations by Maine-ly Marine but about alleged non- disclosures by Maine-ly Marine, most notably an alleged failure by Maine-ly Marine to advise Worrey that postponing winterization would result in damage to his engine. Where a claimant is not alleging an affirmative false statement but instead relies on an alleged failure to disclose, the claimant must prove either (1) active concealment of the truth or (2) a specific relationship imposing on the defendant an affirmative duty to disclose. Tobin v. Casco Northern Bank, Inc., 663 A.2d 1, 2 (Me. 1995), &. denied, 516 U.S. 1127 (1996). In this case Worrey has offered no evidence to create a disputed issue for trial with respect to any active concealment by Maine-ly Marine and he has not offered any evidence that a confidential or fiduciary relationship existed between himself and Maine-ly Marine that would have placed Maine-ly Marine under an affirmative duty to disclose. Eaton v. S o n t a ~ 387 A.2d 33,38 (Me. 1979). Nor has Worrey offered evidence that Maine-ly Marine was under any statutory duty of disclosure in this case. Binette v. Dver Library Assn., 688 A.2d 898,903 (Me. 1996). required to establish a prima facia case for every element of its cause of action that has

cllallenged by the movaiit, but is not required to establish a prim2 fzciii case on vt-t-ll -L 11 I----

issues that have not been contested by the movant. Maine-ly Marine's statement of

material facts does not contest causation, For purposes of the motion for sl-tm-mary

judgment, therefore, Maine-ly Marine's motion to dismiss Worrey's contract and

warranty claims must be denied.

That does not resolve the issue of whether Worrey is entitled to offer expert

testimony from h s brother. The court will schedule a hearing on Maine-ly Marine's

motion to exclude. If that motion is granted, the court will consider whether the

absence of expert testimony is fatal to Worrey's contract claim.

4. Unfair Trade Practice Claim

The foregoing ruling means that Worrey's unfair trade practice claim also

survives Maine-ly Marine's motion for summary judgment. Even if Worrey is not

entitled to proceed on h s claims of fraud and negligent misrepresentation, there are

currently disputed issues of fact as to whether Maine-ly Marine engaged in unfair or

deceptive acts or practices in connection with the winterization services it offered

Worrey. Particularly given that a practice may be found to violate the UTPA even

when the business in question had no purpose to deceive, Binette v. Dyer Library

Assn., 688 A.2d at 906, Worrey has potentially created an issue of fact for trial on the

issue of whether Maine-ly Marine's alleged postponements of his winterization and

subsequence acceptance of payment for winterization "after freeze date" violated the

UTPA.

The court is unclear, however, whether Worrey is contending that h s engine was

damaged by freezing before winterization or whether he is arguing that the Maine-ly Marine failed to competently perform winterization. If he is pursuing the latter

arg-lixent, tkLerithe court woiild have difficiiltji discerrGng :-Low he has stated ail iinfair

trade practice claim for trial. Merely breachng a contract to provide competent service

does not constitute m unfair or dece~tivetrade pactice. Moreover, if Worrey is barred

from presenting h s brother's expert testimony, this may affect his UTPA claim as well.

These issues can be explored at the hearing on Maine-ly Marine's motion to exclude.

5. Punitive Damages Claim

The dismissal of Worrey's tort claims necessitates the dismissal of h s claim for

punitive damages. Punitive damages are not recoverable on contract claims. See Drinkwater v. Patten Realtv Corp., 563 A.2d 772, 777 (Me. 1989) ("no matter how

egregious the breach, punitive damages are unavailable under Maine law for breach of

contract"). Moreover, punitive damages are not among the statutory remedies available

under the UTPA. & 5 M.R.S.A. § 213(1) (authorizing suit for actual damages, restitution, and other equitable relief).

Even if punitive damages were otherwise available, there is a substantial

question of whether Worrey has demonstrated the existence of any disputed issues for

trial on whether Maine-ly Marine acted with actual malice or engaged in such

outrageous conduct that malice should be implied. See Tuttle v. Ravmond, 494 A.2d

1353, 1361 (Me. 1985). The Law Court has found that summary judgment may

appropriately be granted dismissing punitive damages claims where the evidence

proffered by a claimant does not raise a disputed issue for trial on the issue of malice or

outrageousness. Gayer v. Bath Iron Works Corp., 687 A.2d 617, 622 (Me. 1996).4

"orrey argues in his brief that he has offered evidence of malice. See Worrey's Memorandum of Law Opposing Summary Judgment, filed December 6,2005 at 7, citing to Worrey Deposition at 80,84,86,103. Similarly, even in a case where the facts must be construed in the light most favorable to

a @"intiff, it has found that frau&;!ent condwt that may be worthy of zo~demnation

does not rise to the level of outrageousness justifying punitive damages. Boivin v. Tones

& Vininn.. Inc., 578 A.2d 187,189 (Me. 1990).

6. Unjust Enrichment

Maine-ly Marine is entitled to summary judgment on Worrey's claim of unjust

enrichment because it is undisputed that there was a contractual relationshp in t h s

case, and the existence of a contractual relationshp precludes recovery on an unjust

enrichment theory. Nadeau v. Pitman, 1999 ME 104 ¶ 14, 731 A.2d 863,867.

The entry shall be:

Summary judgment is granted in favor of plaintiff and against defendant on

Count I11 (unjust enrichment), Count IV (fraud), Count V (negligent and / or intentional

misrepresentation), and Count VII (punitive damages) of the defendant's counterclaim.

In all other respects plaintiff's motion for summary judgment is denied. The clerk shall

schedule a hearing on plaintiff's motion to exclude expert testimony from defendant's

brother.

The clerk is directed to incorporate h s order in the docket by reference pursuant

to Rule 79(a).

First, the evidence offered is largely if not entirely hearsay. See Worrey Dep. 85-86. Second, although he has cited to pages 80, 84, 86, and 103 of his deposition in his brief, Worrey did not cite to those pages in his statement of material facts. The Law Court has made clear that the only portions of the record that the court can consider on a motion for summary judgment are the portions cited in a statement of material facts submitted pursuant to Rule 56(h). See, e . L Handy Boat Service, Inc. v. Professional Services, Inc, 1998 ME 134 7 16,711 A.2d 1306,1310 (in ruling on motion for summary judgment, court is to consider "&the portions of the record referred to" in the statements of material facts) (emphasis in original); Levine v. R.B.K. Caly Corp., 2001 ME 77 9,770 A.2d 653,656. Accordingly, the court cannot consider pages 80, 84,86 or 103 of Worrey's deposition in ruling on the instant motion. DATED: April 1'3 ,2006.

-. &-Yl- ,

Thomas D. Warren Justice, Superior Court 3LERK OF COURTS Cumberland County P.0.Box 287 riland, Maine 041 12-0287

. THOMAS CONNOLLY, E S ~ PO BOX 7563 PORTLAND, ME 04112

3K OF COURTS nberland County P.O.Box 287 j, Maine 041 12-0287

CAROL EISENBERG, ESQ. PO BOX 9545 PORTLAND, ME 04112-9545