Swanflower v. Dayveau

• Court: Superior Court of Maine
• Decided: April 5, 2012
• Docket: YORcv-11-99
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-11-99 f' A F -'jot<.- '-~75 /~or z__ SWANFLOWER, LLC d/b/a SWANFLOWER COTTAGES AND MOTEL,

Plaintiff

v. ORDER

DAYVEAU, LLC,

Defendant

The facts of the case are discussed in an order of October 18, 2011, which decided

the defendant's motion to dismiss. The defendant had correctly argued that the

plaintiff's claim has been brought beyond the normal six-year statute of limitations

found at 14 M.R.S.A. §752. The plaintiff argued that 14 M.R.S.A. §859 extended the

statute of limitations. That section states, "If a person, liable to any action mentioned,

fraudulently conceals the cause thereof from any person entitled thereto, or if a fraud is

committed which entitles any person to an action, the action may be commenced at any

time within 6 years after the person entitled thereto discovers that he has just cause of

action, except as provided in Section 3580." I agreed that Section 859 might allow the

plaintiff's claims to be considered timely.

The plaintiff had brought a four-count complaint, which alleged

misrepresentation, fraud and breach of contract in Counts I, I and III respectively and

sought punitive damages in Count IV. The defendant has filed a motion to amend or alter order on motion to dismiss

suggesting that, at most, only Count II, the fraud claim, and Count IV, the punitive

damage claim, could be saved by Section 859. The statute, however, which has had

only minor non-substantive changes since its appearance in the 1841 revision of

statutes, see 1841 R.S.c. 146 §18, speaks of both fraudulent concealment and fraud. See

McKown v. Whitmore, 31 Me. 448 (1850), Penobscot Railroad Company v. Mayo, 65 Me. 566

(1876), Westman v. Armitage, 215 A.2d 919, 922 (Me. 1966), and Akins v. Firstbank, N.A.,

415 A.2d 567, 569 (Me. 1980).

Either fraud or fraudulent concealment can extend the statute of limitations.

With this clarification the motion to alter or amend is otherwise denied. Counts I and

ill could be protected by the "fraudulent concealment" alternative.

The entry is:

Defendant's motion to amend or alter order on motion to dismiss is denied. The parties shall submit a proposed amended scheduling order by April27, 2012.

Dated: April 5, 2012

Paul A. Fritzsche Justice, Superior Court

ATTORNEY FOR PLAINTIFF: NEAL WEINSTEIN LAW OFFICES NEAL WEINSTEIN PO BOX 660 OLD ORCHARD BEACH ME 04064

ATTORNEYS FOR DEFENDANT: WILLIAM LEETE TAYLOR DOUGLAS FAWNS LEETE & LEMIEUX PO BOX 7740 PORTLAND ME 04112