IN TERE D AUG n 6 Z014
STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV-12-175
JEANNETTE M. ROSS, ) Jtl N-~D~- Ol-01-lLt ) Plaintiff, ) ) v. ) ORDER ON PLAINTIFF'S ) MOTION TO AMEND CHRISTOPHER J. PONTE, et al., ) ) Defendants. )
Plaintiff moves the court to amend its complaint in order to add a claim pursuant to
the Unfair Trade Practices Act and comply with the Settlement Offer requirements as
laid out in 5 M.R.S. § 213(1-A). Defendant opposes Plaintiff's Motion to Amend arguing
that Plaintiff's Motion is untimely and that Plaintiff's requested amendment has no
legal merit.
Plaintiff moves to amend the complaint to add a UTP A claim based upon
conversations that occurred between Defendant Gannon and Defendants Mr. arid Mrs.
Ponte. Plaintiff's proposed amendment asserts that after signing the agreement, the
Pontes realized that their listing agreement with Defendant Woodman inaccurately
stated that the house's foundation was a concrete slab and asked Defendant Woodman
on at least two occasions to correct the listing. Plaintiff contends that Defendant at first
did not correct the error, and then refused to do so. Plaintiff contends that she was not
aware of the conversations prior to filing this action and therefore could not have
included this count with the original complaint. Furthermore, Plaintiff contends that
Defendant will not be prejudiced by any need for further discovery based solely on this
ainendment.
Defendant argues that even if Plaintiff had been unaware of these conversations at
the time the Complaint was filed, Plaintiff was put on notice of the conversations in_
l Defendants Pontes' Crossclaim against Defendants Coldwell and Ms. Gannon filed on
Sept. 4, 2012 and then confirmed in Ms. Gannon's deposition on July 26, 2013.
Defendant argues that the Motion to Amend is untimely because there is no explanation
as to why Plaintiff waited until April 9, 2014 to file. Furthermore, Defendant argues that
the amendment requested does not have legal merit and therefore should not be
allowed. Defendant argues that Plaintiff's counts VI, VII, and VIII allege similar claims,
and that any damage sustained by Plaintiff was due to reliance upon an alleged
misrepresentation of a concrete slab, not by a conversation she was not a party to.
The court will allow amendment of pleadings "when justice so requires." Me. R. Civ.
P. 15. Where a proposed amendment would not survive a motion to dismiss, the court
may deny the motion to amend. Glynn v. City of S. Portland, 640 A.2d 1065, 1067 (Me.
1994). Plaintiff's proposed amendment is a UTPA claim. The UTP A protects consumers
from unfair and deceptive practices in trade and commerce. 5 M.R.S. § 207 (2013) ''To
justify a finding of unfairness, the act or practice: (1) must cause, or be likely to cause,
substantial injury to consumers; (2) that is not reasonably avoidable by consumers; and
(3) that is not outweighed by any countervailing benefits to consumers or competition."
State v. Weinschenk, 2005 :M:E 28, <][ 16, 868 A.2d 200, 206.
In the current case, Plaintiff did not file to amend the pleading for over seven
months after having confirmation that the conversation in question occurred. Plaintiff
has not informed the court of any reason for the delay. Plaintiff's proposed amendment
is a UTP A claim brought against Defendant Woodman for allegedly failing to correct
the listing to reflect that there was no concrete slab foundation pursuant to
conversations with Defendants Ponte. Plaintiff has already asserted UTP A claims based
upon her alleged reliance on misrepresentations of a concrete slab foundation. All ten of
Plaintiff's claims seek damages for the alleged misrepresentation of the concrete slab.
2 While Plaintiff's amendment alleges a set of facts by which Plaintiff may impute
knowledge that there was no concrete slab upon Defendant Woodman, there is no new
duty or harm alleged, merely new facts that fill in claims already asserted. Finally, even
though there may not be any additional discovery required, there may be prejudice to
Defendant by having to answer the amended complaint and defend against the new
count.
The court Denies Plaintiff's Motion to Amend.
DATE: John O'Neil, Jr. Justice, Superior Court
3 ATTORNEY FOR PLAINTIFF: ARTHUR DUMAS 51 COTTAGE STREET SANFORD ME 04073
ATTORNEY FOR DEFENDANTS CHRISTOPHER J & REBECCA R PONTE: ROBERT NADEAU NADEAU LEGAL PLLC 311 ALFRED STREET BIDDEFORD ME 04005-3127
ATTORNEY FOR DEFENDANTS KATHLEEN GANNON, NRT NEW ENGLAND LLC AND COLLEEN M WOODMAN: ROY PIERCE PRETI FLAHERTY BELIVEAU PACIDOS LLP PO BOX 9546 PORTLAND ME 04112 STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV- 1]-175 cJ 01\J- ;Yt9£ -Jo/ 1 I ~JoB JEANNETTE M. ROSS, ) ) Plaintiff, ) ) v. ) ORDER ) CHRISTOPHER J. PONTE, et al., ) ) Defendants. )
Before the Court is Defendant Roberts' Motion for Summary Judgment and Plaintiff
Ross' Motion to Amend Compliant.
I. Background
Plaintiff brought a ten count complaint against seven defendants for damages sustained as
a result of purchasing a property that Plaintiff alleges has numerous defects that
Defendants were aware of or should have been aware of and failed to disclose prior to
Plaintiffs purchase. Plaintiff alleges that she relied on the misrepresentations of the
sellers, the real estate brokers, and the home inspectors in purchasing a home that had
significant deficiencies. Defendant Roberts', sole owner of Southern Maine Home
Inspections, LLC, moves the court for Summary Judgment. Plaintiff moves the court to
allow amendment of the complaint in order to pierce the corporate veil and allege fraud
against Defendant Roberts.
II. Standard of Review for Summary Judgment
When a defendant moves for summary judgment, "the plaintiff must establish a
prima facie case for each element of [the] cause of action that is properly challenged in
1 the defendant's motion." Flaherty v. Muther, 2011 .ME 32, ~ 38, 171 A.3d 640. The
burden then shifts to the defendant to show that there is no genuine issue of material fact.
Summary judgment is appropriate where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 989 A.
2d 733, 738 (Me. 2010); Dyer v. Department of Transportation, 951 A.2d 821, 825 (Me.
2008). When reviewing a motion for summary judgment, the court reviews the parties'
statements of material facts and the cited record evidence in the light most favorable to
the non-moving party. Id.
A genuine issue of material fact exists where the fact finder must make a
determination between differing versions of the truth. Reliance National Indemnity v.
Knowles Industrial Services Corp., 2005 .ME 29, ~7, 868 A.2d 220; citing Univ. of Me.
Found. V. Fleet Bank of Me., 2003 .ME 20, ~20, 817 A.2d 871. Furthermore, "a fact is
material if it could potentially affect the outcome of the case." Id.
III. Discussion
a. Summary Judgment- Negligent Misrepresentation
In order to survive a motion for summary judgment on a cause of action of
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IN TERE D AUG n 6 Z014
STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV-12-175
JEANNETTE M. ROSS, ) Jtl N-~D~- Ol-01-lLt ) Plaintiff, ) ) v. ) ORDER ON PLAINTIFF'S ) MOTION TO AMEND CHRISTOPHER J. PONTE, et al., ) ) Defendants. )
Plaintiff moves the court to amend its complaint in order to add a claim pursuant to
the Unfair Trade Practices Act and comply with the Settlement Offer requirements as
laid out in 5 M.R.S. § 213(1-A). Defendant opposes Plaintiff's Motion to Amend arguing
that Plaintiff's Motion is untimely and that Plaintiff's requested amendment has no
legal merit.
Plaintiff moves to amend the complaint to add a UTP A claim based upon
conversations that occurred between Defendant Gannon and Defendants Mr. arid Mrs.
Ponte. Plaintiff's proposed amendment asserts that after signing the agreement, the
Pontes realized that their listing agreement with Defendant Woodman inaccurately
stated that the house's foundation was a concrete slab and asked Defendant Woodman
on at least two occasions to correct the listing. Plaintiff contends that Defendant at first
did not correct the error, and then refused to do so. Plaintiff contends that she was not
aware of the conversations prior to filing this action and therefore could not have
included this count with the original complaint. Furthermore, Plaintiff contends that
Defendant will not be prejudiced by any need for further discovery based solely on this
ainendment.
Defendant argues that even if Plaintiff had been unaware of these conversations at
the time the Complaint was filed, Plaintiff was put on notice of the conversations in_
l Defendants Pontes' Crossclaim against Defendants Coldwell and Ms. Gannon filed on
Sept. 4, 2012 and then confirmed in Ms. Gannon's deposition on July 26, 2013.
Defendant argues that the Motion to Amend is untimely because there is no explanation
as to why Plaintiff waited until April 9, 2014 to file. Furthermore, Defendant argues that
the amendment requested does not have legal merit and therefore should not be
allowed. Defendant argues that Plaintiff's counts VI, VII, and VIII allege similar claims,
and that any damage sustained by Plaintiff was due to reliance upon an alleged
misrepresentation of a concrete slab, not by a conversation she was not a party to.
The court will allow amendment of pleadings "when justice so requires." Me. R. Civ.
P. 15. Where a proposed amendment would not survive a motion to dismiss, the court
may deny the motion to amend. Glynn v. City of S. Portland, 640 A.2d 1065, 1067 (Me.
1994). Plaintiff's proposed amendment is a UTPA claim. The UTP A protects consumers
from unfair and deceptive practices in trade and commerce. 5 M.R.S. § 207 (2013) ''To
justify a finding of unfairness, the act or practice: (1) must cause, or be likely to cause,
substantial injury to consumers; (2) that is not reasonably avoidable by consumers; and
(3) that is not outweighed by any countervailing benefits to consumers or competition."
State v. Weinschenk, 2005 :M:E 28, <][ 16, 868 A.2d 200, 206.
In the current case, Plaintiff did not file to amend the pleading for over seven
months after having confirmation that the conversation in question occurred. Plaintiff
has not informed the court of any reason for the delay. Plaintiff's proposed amendment
is a UTP A claim brought against Defendant Woodman for allegedly failing to correct
the listing to reflect that there was no concrete slab foundation pursuant to
conversations with Defendants Ponte. Plaintiff has already asserted UTP A claims based
upon her alleged reliance on misrepresentations of a concrete slab foundation. All ten of
Plaintiff's claims seek damages for the alleged misrepresentation of the concrete slab.
2 While Plaintiff's amendment alleges a set of facts by which Plaintiff may impute
knowledge that there was no concrete slab upon Defendant Woodman, there is no new
duty or harm alleged, merely new facts that fill in claims already asserted. Finally, even
though there may not be any additional discovery required, there may be prejudice to
Defendant by having to answer the amended complaint and defend against the new
count.
The court Denies Plaintiff's Motion to Amend.
DATE: John O'Neil, Jr. Justice, Superior Court
3 ATTORNEY FOR PLAINTIFF: ARTHUR DUMAS 51 COTTAGE STREET SANFORD ME 04073
ATTORNEY FOR DEFENDANTS CHRISTOPHER J & REBECCA R PONTE: ROBERT NADEAU NADEAU LEGAL PLLC 311 ALFRED STREET BIDDEFORD ME 04005-3127
ATTORNEY FOR DEFENDANTS KATHLEEN GANNON, NRT NEW ENGLAND LLC AND COLLEEN M WOODMAN: ROY PIERCE PRETI FLAHERTY BELIVEAU PACIDOS LLP PO BOX 9546 PORTLAND ME 04112 STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV- 1]-175 cJ 01\J- ;Yt9£ -Jo/ 1 I ~JoB JEANNETTE M. ROSS, ) ) Plaintiff, ) ) v. ) ORDER ) CHRISTOPHER J. PONTE, et al., ) ) Defendants. )
Before the Court is Defendant Roberts' Motion for Summary Judgment and Plaintiff
Ross' Motion to Amend Compliant.
I. Background
Plaintiff brought a ten count complaint against seven defendants for damages sustained as
a result of purchasing a property that Plaintiff alleges has numerous defects that
Defendants were aware of or should have been aware of and failed to disclose prior to
Plaintiffs purchase. Plaintiff alleges that she relied on the misrepresentations of the
sellers, the real estate brokers, and the home inspectors in purchasing a home that had
significant deficiencies. Defendant Roberts', sole owner of Southern Maine Home
Inspections, LLC, moves the court for Summary Judgment. Plaintiff moves the court to
allow amendment of the complaint in order to pierce the corporate veil and allege fraud
against Defendant Roberts.
II. Standard of Review for Summary Judgment
When a defendant moves for summary judgment, "the plaintiff must establish a
prima facie case for each element of [the] cause of action that is properly challenged in
1 the defendant's motion." Flaherty v. Muther, 2011 .ME 32, ~ 38, 171 A.3d 640. The
burden then shifts to the defendant to show that there is no genuine issue of material fact.
Summary judgment is appropriate where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 989 A.
2d 733, 738 (Me. 2010); Dyer v. Department of Transportation, 951 A.2d 821, 825 (Me.
2008). When reviewing a motion for summary judgment, the court reviews the parties'
statements of material facts and the cited record evidence in the light most favorable to
the non-moving party. Id.
A genuine issue of material fact exists where the fact finder must make a
determination between differing versions of the truth. Reliance National Indemnity v.
Knowles Industrial Services Corp., 2005 .ME 29, ~7, 868 A.2d 220; citing Univ. of Me.
Found. V. Fleet Bank of Me., 2003 .ME 20, ~20, 817 A.2d 871. Furthermore, "a fact is
material if it could potentially affect the outcome of the case." Id.
III. Discussion
a. Summary Judgment- Negligent Misrepresentation
In order to survive a motion for summary judgment on a cause of action of
negligent misrepresentation, a plaintiff must make a prima facie showing of the
following:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Langevin v. Allstate Ins. Co., 2013 .ME 55, 66 A.3d 585, 590; citing St. Louis v.
Wilkinson Law Offices, P.C., 2012 :ME 116, 118, 55 A.3d 443; see Chapman v. Rideout,
2 568 A.2d 829, 830 (Me.1990) (adopting the definition articulated in the Restatement
(Second) of Torts§ 552(1) (1977)). A review ofthe affidavits indicates there are
material facts in dispute about whether the business card indicating the Defendant was
insured was either supplied by the Defendant to the Plaintiff or whether he should have
been aware it was being supplied. While it is the law that absent exceptional
circumstances, an agent may not be personally responsible for negligent
misrepresentations, given the court's reasoning below, there are facts in dispute
regarding whether this was an innocent misstatement or otherwise. Accordingly, the
Motion for Summary Judgment is denied.
b. Amendment
A party may amend a pleading once prior to the filing of a response, within 20
days of the initial filing, or "a party may amend the party's pleading only by leave of
court or by written consent of the adverse party; and leave shall be freely given when
justice so requires." M.R. Civ. P. 15(a). Plaintiff would like to amend the pleadings in
order to pierce the corporate veil of Southern Maine Home Inspections, LLC and allege
fraud against Defendant Roberts.
A person is liable for fraud if the person (1) makes a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance on it, and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff
3 Grover v. Minette-Mills, Inc., 638 A.2d 712, 716 (Me. 1994). Plaintiff alleges that
Defendant Roberts fraudulently misrepresented that his company was insured, for the
purpose of inducing Plaintiff to hire him, that Plaintiff hired him in reliance on the
company being insured and his failure to be insured is now to her detriment. Plaintiff
argues that she should be able to amend the pleading and attempt to pierce the corporate
veil in order to hold Defendant Roberts liable as the sole owner of Southern Maine Home
Inspections, LLC, because he fraudulently misrepresented that the company was insured.
Plaintiff alleges that because she only recently learned that Southern Maine Home
Inspections, LLC, was not insured the court should allow amendment of the pleadings
now, at the summary judgment stage, in order to assert this claim.
A review of the Plaintiffs Second Mfidavit indicates that there are material facts in
dispute about whether the business card in question was directly supplied to the Plaintiff
by the Defendant given the Plaintiff recalls it being stapled to his report Further, there
appear to be facts alleged which concern the issue of failure to correct a misstatement of
fact even if the card was not given directly to the Plaintiff from the Defendant
Accordingly, the court grants the Plaintiffs Motion to Amend the Complaint.
IV. Conclusion
The court DENIES Defendant Roberts' Motion for Summary Judgment and GRANTS
Plaintiffs Motion to Amend.
DATE: Lojo:; /13 Is! John H. O'Neil
4 ATTORNEY FOR PLAINTIFF; ARTHUR DUMAS 51 COTTAGE STREET SANFORD ME 04073
ATTORNEY FOR DEFENDANTS CHRISTOPHER J & REBECCA R PONTE: ROBERT NADEAU NADEAU LEGAL PLLC 311 ALFRED STREET BIDDEFORD ME 04005-3127
ATTORNEY FOR DEFENDANTS KATHLEEN GANNON, NRT NEW ENGLAND LLC & COLLEEN M WOODMAN: ROY PIERCE PRETI FLAHERTY BELIVEAU PACHIOS LLP POBOX9546 PORTLAND ME 04112
ATTORNEY FOR DEFENDANTS SOUTHERN MAINE HOME INSPECTIONS LLC & WILLIAM A ROBERTS: REID HAYTON HULL HULL LAW OFFICE LLC 409 ALFRED STREET BIDDEFORD ME 04005