STATE OF MAINE - SUPERIOR COURT -- CUMBERLAND, ss. a CIVIL ACTION DOCKET NO. CV-05-307 /
Plaintiff
v. ORDER ON THIRD- PARTY DEFEhDANT'S MOTION TO DISMISS SHAWN and KRISTEN WALKER
Defendants / Thrd-party plaintiffs
v.
TODD ERICKSON
Thrd-party defendant
Before the court is third party defendant Todd Erickson's ("hfr. Erickson")
motion to dismiss Defendant/ Third Party Plaintiffs Shawn and Kristen Walker's
("the Walkers") claims against h m in h s individual capacity.
STATEMENT OF FACTS
In late September, 2004, Utopian Homes, h c . ("Utopian") was engaged by
the Walkers to perform substantial renovations to their home. At some point in
January or February of 2005, the relationship between the parties broke down,
and work on the house stopped.
On February 4, 2005, Utopian filed a mechanic's lien on the Walkers'
house. Thereafter, on May 25, 2005, Utopian filed a 12-count complaint against
the Walkers, including claims for breach of contract, fraud and
misrepresentation, slander and libel, interference with advantageous business relations, unfair and deceptive trade practices, unjust enrichment, and quantum
meruit.
The Walkers answered Utopian's complaint on June 6, 2005 and included
with their answer an eight-count counterclaim against Utopian and a separate
third-party complaint against Mr. Erickson individually, who is the principal of
Utopian.' The Walkers claim breach of contract, and violations of the Home
Construction Contract Act against Utopian alone, but they claim negligence,
breach of warranty, fraud, violations of the Unfair Trade Practices Act and
trespass against both Utopian and Mr. Erickson.
On July 12, 2005, Mr. Erickson filed a motion to dismiss the Walkers'
third-party claims against him in his individual capacity, asserting that he has no
personal interest in this matter. On July 26, 2005, the Walkers filed a
memorandum in opposition, arguing that the claims against Mr. Erickson allege
personal tortious conduct for which the Walkers can hold him personally liable,
and that Mr. Erickson's motion to dismiss disputes only the factual allegations in
their thrd-party complaint, not their legal sufficiency.
STANDARD OF REVIEW
When a court decides a motion to dismiss made pursuant to M.R. Civ. P.
12(b)(6),the material allegations of the complaint must be taken as admitted.
Moody v. State Liquor G. Lottery Comf7z, 2004 ME 20, ¶ 7, 843 A.2d 43, 47. A
dismissal should only occur when it appears beyond doubt that a plaintiff is
entitled to no relief under any set of facts that he might prove in support of his
Count VII of the Walkers' counterclaim claims intentional infliction of emotional distress, based on alleged threats made by Lisa Erickson, and not overtly linked to either Utopian or Mr. Erickson. Lisa Erickson, however, is not a named third-party defendant, so it is unclear how or if the Walkers intend to pursue this claim against her. claim. Id.
- I. Nenlieence
The Walkers claim that Mr. Erickson personally owed a duty to them to
exercise reasonable care not to damage their property when performing work at
their home, and that he breached this duty by not exercising reasonable care,
thus damaging the Walkers' property, including their electrical, heating and
plumbing syste~ns.The Walkers assert that they can sustain a claim against Mr.
Erickson for these damages, citing County Forest Products, Inc. v. Green Mountain
Agency, Inc., 2000 ME 161, 43; 738 A.2d 59, 69, because "an agent can always be
held personally liable for h s own negligence under ordinary torts principles."
It is certainly true that an agent can be held personally liable for h s own
negligence when that conduct results in personal injury. See Restatement Second of
Torts, 5 350, Reporters Notes ("when an agent acts affirmatively and causes
physical harm, the rule is clear that the fact that he is acting as an agent does not
relieve him from liability.")
Here, the Walkers assert a tort claim for pecuniary losses sustained while
Mr. Ericksoi~was perfoi-rning services for them under their construction contract
with Utopian. See Third Party Complaint, ¶q[5-6. Mere unsatisfactory
performance of a services contract does not render the agent performing under
the contract personally liable. See Restatement, 2d of Agency, § 350, illustrations (in
which the agent's negligence is always ivith respect to a non-contracting third
party.) An agent can only be personally liable for his negligent acts if the
damage done is outside of the scope of the contract. See id., see also Frost v. Drew,
586 A.2d at 1242 (in which the Law Court found that a jury rationally awarded
damages against a defendant corporation only and not its sole shareholder, director, and officer, for negligent construcbon of a house.) The Walkers' claim
under this count appears to allege at least some damage to property outside of
the scope of the services contract they entered into with Utopian. See Affidavit of
Shawn Walker, ¶q! 8 and 14'. To the extent that the damage sustained by the
Walkers in this context was outside of the scope of their contract with Utopian,
they may sustain a claim against Mr. Erickson personally. See Frost v. Drew, 586
A.2d at 1242; Restatenzelzt, 2d of Agency, 5 350, Reporters Notes.
Accordingly, the third-party defendant Todd Erickson's motion to dismiss
Count I of thrd-party plaintiffs' complaint, for negligence, is denied.
11. Breach of 'lVarrantv
The Walkers claim that Mr. Erickson made, and then breached express
warranties he had made (1)that he had experience worlui~gin fine homes and
would not damage their property, (2) that he was a licensed plumber and
electrician, (3) that he was insured, and (4) that he ~ ~ o ube l dable to complete the
agreed-upon work in a competent and timely manner. The Walkers also claim
that Mr. Erickson breached an implied warranty to complete his work in a
workmanlike fashon.
However, the warranties, both express and implied, which the LValkers
allege were breached, relate to the contract that the Walkers entered into with
Utopian. The Walkers do not claim that Mr. Erickson failed to disclose Utopian
as the contracting party. The Walkers also do not assert that Utopian is an alter 2 ¶ 8 states in part: On the night of November 415, 2005, the roof was negligently protected from rain. .After the water was allomred into the IIouse on the night of November 4, several rooms suffered substantial water damage causing one ceiling to collapse. 91 14 states in part: Erickson and his men caused additional damage. They include scrapes 011 the exterior siding from ladders that is not repairable, multiple marks on recently painted ~valls,and two damaged, and now missing, radiators. ego for Mr. Erickson such that he should be held personally liable on their
contract claims against Utopian. Finally, the La7alkersdo not assert that Mr.
Erickson was not acting as an authorized agent of Utopian in his dealings with
them.
The Restatement, 2"d, of Agency, 5 328, states: ",4n agent, by malung a
contract on behalf of a competent disclosed principal whom he has power so to
bind, does not thereby become liable for its nonperformance." The warranties
expressed by Mr. Erickson clearly concern the performance of Utopian's services
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STATE OF MAINE - SUPERIOR COURT -- CUMBERLAND, ss. a CIVIL ACTION DOCKET NO. CV-05-307 /
Plaintiff
v. ORDER ON THIRD- PARTY DEFEhDANT'S MOTION TO DISMISS SHAWN and KRISTEN WALKER
Defendants / Thrd-party plaintiffs
v.
TODD ERICKSON
Thrd-party defendant
Before the court is third party defendant Todd Erickson's ("hfr. Erickson")
motion to dismiss Defendant/ Third Party Plaintiffs Shawn and Kristen Walker's
("the Walkers") claims against h m in h s individual capacity.
STATEMENT OF FACTS
In late September, 2004, Utopian Homes, h c . ("Utopian") was engaged by
the Walkers to perform substantial renovations to their home. At some point in
January or February of 2005, the relationship between the parties broke down,
and work on the house stopped.
On February 4, 2005, Utopian filed a mechanic's lien on the Walkers'
house. Thereafter, on May 25, 2005, Utopian filed a 12-count complaint against
the Walkers, including claims for breach of contract, fraud and
misrepresentation, slander and libel, interference with advantageous business relations, unfair and deceptive trade practices, unjust enrichment, and quantum
meruit.
The Walkers answered Utopian's complaint on June 6, 2005 and included
with their answer an eight-count counterclaim against Utopian and a separate
third-party complaint against Mr. Erickson individually, who is the principal of
Utopian.' The Walkers claim breach of contract, and violations of the Home
Construction Contract Act against Utopian alone, but they claim negligence,
breach of warranty, fraud, violations of the Unfair Trade Practices Act and
trespass against both Utopian and Mr. Erickson.
On July 12, 2005, Mr. Erickson filed a motion to dismiss the Walkers'
third-party claims against him in his individual capacity, asserting that he has no
personal interest in this matter. On July 26, 2005, the Walkers filed a
memorandum in opposition, arguing that the claims against Mr. Erickson allege
personal tortious conduct for which the Walkers can hold him personally liable,
and that Mr. Erickson's motion to dismiss disputes only the factual allegations in
their thrd-party complaint, not their legal sufficiency.
STANDARD OF REVIEW
When a court decides a motion to dismiss made pursuant to M.R. Civ. P.
12(b)(6),the material allegations of the complaint must be taken as admitted.
Moody v. State Liquor G. Lottery Comf7z, 2004 ME 20, ¶ 7, 843 A.2d 43, 47. A
dismissal should only occur when it appears beyond doubt that a plaintiff is
entitled to no relief under any set of facts that he might prove in support of his
Count VII of the Walkers' counterclaim claims intentional infliction of emotional distress, based on alleged threats made by Lisa Erickson, and not overtly linked to either Utopian or Mr. Erickson. Lisa Erickson, however, is not a named third-party defendant, so it is unclear how or if the Walkers intend to pursue this claim against her. claim. Id.
- I. Nenlieence
The Walkers claim that Mr. Erickson personally owed a duty to them to
exercise reasonable care not to damage their property when performing work at
their home, and that he breached this duty by not exercising reasonable care,
thus damaging the Walkers' property, including their electrical, heating and
plumbing syste~ns.The Walkers assert that they can sustain a claim against Mr.
Erickson for these damages, citing County Forest Products, Inc. v. Green Mountain
Agency, Inc., 2000 ME 161, 43; 738 A.2d 59, 69, because "an agent can always be
held personally liable for h s own negligence under ordinary torts principles."
It is certainly true that an agent can be held personally liable for h s own
negligence when that conduct results in personal injury. See Restatement Second of
Torts, 5 350, Reporters Notes ("when an agent acts affirmatively and causes
physical harm, the rule is clear that the fact that he is acting as an agent does not
relieve him from liability.")
Here, the Walkers assert a tort claim for pecuniary losses sustained while
Mr. Ericksoi~was perfoi-rning services for them under their construction contract
with Utopian. See Third Party Complaint, ¶q[5-6. Mere unsatisfactory
performance of a services contract does not render the agent performing under
the contract personally liable. See Restatement, 2d of Agency, § 350, illustrations (in
which the agent's negligence is always ivith respect to a non-contracting third
party.) An agent can only be personally liable for his negligent acts if the
damage done is outside of the scope of the contract. See id., see also Frost v. Drew,
586 A.2d at 1242 (in which the Law Court found that a jury rationally awarded
damages against a defendant corporation only and not its sole shareholder, director, and officer, for negligent construcbon of a house.) The Walkers' claim
under this count appears to allege at least some damage to property outside of
the scope of the services contract they entered into with Utopian. See Affidavit of
Shawn Walker, ¶q! 8 and 14'. To the extent that the damage sustained by the
Walkers in this context was outside of the scope of their contract with Utopian,
they may sustain a claim against Mr. Erickson personally. See Frost v. Drew, 586
A.2d at 1242; Restatenzelzt, 2d of Agency, 5 350, Reporters Notes.
Accordingly, the third-party defendant Todd Erickson's motion to dismiss
Count I of thrd-party plaintiffs' complaint, for negligence, is denied.
11. Breach of 'lVarrantv
The Walkers claim that Mr. Erickson made, and then breached express
warranties he had made (1)that he had experience worlui~gin fine homes and
would not damage their property, (2) that he was a licensed plumber and
electrician, (3) that he was insured, and (4) that he ~ ~ o ube l dable to complete the
agreed-upon work in a competent and timely manner. The Walkers also claim
that Mr. Erickson breached an implied warranty to complete his work in a
workmanlike fashon.
However, the warranties, both express and implied, which the LValkers
allege were breached, relate to the contract that the Walkers entered into with
Utopian. The Walkers do not claim that Mr. Erickson failed to disclose Utopian
as the contracting party. The Walkers also do not assert that Utopian is an alter 2 ¶ 8 states in part: On the night of November 415, 2005, the roof was negligently protected from rain. .After the water was allomred into the IIouse on the night of November 4, several rooms suffered substantial water damage causing one ceiling to collapse. 91 14 states in part: Erickson and his men caused additional damage. They include scrapes 011 the exterior siding from ladders that is not repairable, multiple marks on recently painted ~valls,and two damaged, and now missing, radiators. ego for Mr. Erickson such that he should be held personally liable on their
contract claims against Utopian. Finally, the La7alkersdo not assert that Mr.
Erickson was not acting as an authorized agent of Utopian in his dealings with
them.
The Restatement, 2"d, of Agency, 5 328, states: ",4n agent, by malung a
contract on behalf of a competent disclosed principal whom he has power so to
bind, does not thereby become liable for its nonperformance." The warranties
expressed by Mr. Erickson clearly concern the performance of Utopian's services
under the contract, and thus, Mr. Erickson, as Utopian's agent, may not be held
personally liable for the nonperformance of any express warranties under it.
Concerning the implied warranties, 17.4 Am. Jur. 2d 612 states in part,
"A colztracti~zgparty may be bound by the terms of the contract to perform it in a
good and manner. . . as a general rule. . . there is implied in every
contract for work or services a duty to perform slullfully, carefully, diligently,
and in a workmanlike manner." (emphasis added.) As stated above, the
"contracting party" here is Utopian, and the Walkers have made no allegations
to the contrary.
Accordingly, the third-party defendant Todd Ericksonls motion to
dismiss Count I1 of third-party plaintiffs' complaint, for breach of express and
implied warranties, is granted.
111. Fraud
The Walkers claim that Mr. Erickson made false statements to them with
respect to his experience and licensing, with the intent of inducing them to enter
into contracts with Utopian. Restatement of Agency, 2d 348 states, "An agent
who fraudulently makes representations. . . is subject to liability in tort to the injured person although the fraud. . . occurs in a transaction on behalf of the
principal." Thus, even as an authorized agent of Utopian, Mr. Erickson can be
held personally liable for fraudulent representations.
Accordingly, the third-party defendant Todd Erickson's motion to
dismiss Count 111of third-party plaintiffs' complaint, for fraud, is denied.
IV. Violations of the Unfair Trade Practices Act
The Walkers allege that Mr. Erickson engaged in unfair and deceptive
trade practices, including written and oral threats to the Walkers, brealung into
the Walkers' house, asserting a mechanic's lien with an inflated sum, attempting
to add change orders inflatins the value of the job after being asked to leave the
job, malung false and defamatory statements to other contractors and finance
companies, making false and defamatory statements to Shawn Walker's
employer in order to retaliate against him, and shoddy workrnanshp.
The Unfair Trade Practices Act, 5 M.R.S.A. §§205A - 214, declares unfair
and deceptive acts or practices in the conduct of any trade or commerce
unlawful. Among the actions which the Walkers cite as violations of the Unfair
Trade Practices Act are intentional torts from which Mr. Erickson's status as an
agent would not shield h m .
Accordi~~gly, the thrd-party defendant Todd Erickson's motion to dismiss
Count IV of third-party plaintiffs' complaint, for violations of the Unfair Trade
Practices Act, is denied.
V. Trespass The b'alkers claim that Mr. Erickson intentionally entered their house
without permission, brealung and damaging the door, door frame, and molding. These facts allege a claim for trespass that is sustainable against Mr. Erickson
individually. Restatement of Agency, 5 348A, states: "An agent who enters the
land of another is not relieved from liability for trespass by the fact that he acted
on account of the principal and reasonably believed that the principal had
possession or the right to possession of the land, or the right to authorize the
agent to enter." Thus, the Walkers could sustain a claim for trespass against Mr.
Erickson individually even had they not alleged his intent to enter without
permission, which they have.
Accordingly, the third-party defendant Todd Erickson's motion to dismiss
Count V of third-party plaintiffs' complaint, for trespass, is denied.
The entry is:
Third-party defendant Todd Erickson's motion to dismiss as to Count I1 (breach of warranty) of third-party plaintiffs' complaint is GRANTED and as to Counts I (negligence), 111 (fraud), IV (UTPA violations) and V (trespass) is DENIED.
Dated at Portland, Maine this /le,day o w ,2005.
Justice, Superior court JTOPIAN HOMZS INC - PL.RINTIFF SUPERIOR COURT CUMBERLAND, ss. Attorney for: UTOPIAN HOMES INC 3ocket No PORSC-CV-2005-00307 NEAL WEINSTEIN - RETAINED 05/25/2005 LAW OFFICES NEAL WEIKSTEIN 32 SAC0 AVENUE DOCKET RECORD 20 BOX 660 OLD ORCHARD BEACH ME 04064-0660
Attorney for: UTOPIAN HOMES INC LANCE E WALKER - RETAINED 08/24/2005 NORMAN HANSON & DETROY 415 CONGRESS ST PO BOX 4600 PORTLAND ME 04112
vs SHAWN WALKER - DEFENDANT
Attorney for: SHAWN WALKER THOMAS MCKEON - RETAINED 06/06/2005 RICHARDSON WHITMAN LARGE & BADGER 465 CONGRESS ST, SUITE 900 PO BOX 9545 PORTLAND ME 04112-9545
Attorney for: SHAWK WALKER W1LLI.W KELLEHER - RETAINED 07/27/2005 OFFICE OF WILLIAM J KELLEHER 7 EAST CRESCENT STREET AUGUSTA ME 04330
KRISTiN WALKER - DEFENDANT
Attorney for: KRISTIN WALKER THOMAS MCKEON - RETAINED 06/06/2005 RICHARDSON WHITMAN LARGE & BADGER 465 CONGRZSS ST, SUITE 900 PO BOX 9545 PORTLAND ME C4112-9545
Attorney for: KRISTIN WALKER WILLIAM KELLEHER - RETAINED 07/27/2005 OFFICE OF WILLIAM J KELLEHER 7 EAST CRESCENT STREET AUGUSTA ME 04330
JOSEPH D'ANDREA - DEFENDANT WILLIAM D DOBROWOLSKI - PARTIZS IN INTEREST DOWNEAST MORTGAGE CORP-DISMISSED - PAXTIES IN INTEREST CREATIVE LENDING SOLUTIONS INC-DISMISSED - PARTIES IN INTEREST JALAI REZA - PARTIES IN INTEREST TODD ERICKSON - THIRD PARTY DEFENDANT
Attorney for : TODD ERICKSON Page 1 of 7 Printed on: 09/16/2005 PORSC-CV-2005-00307 DOCKET RECORD
NEAL WEINSTEIN - RETAINED 06/22/2005 LAW OFFICES NEAL WEINSTEIN 32 SAC0 AVENUE PO BOX 660 OLD ORCHARD BEACH ME 04064-0660
Attorney for: TODD ERICKSON LANCE E WALKER - RETAINED 08/24/2005 NORMAN HANSON & DETROY 415 CONGRESS ST PO BOX 4600 PORTLAND ME 04112
COUNTRYWIDE HOME LOANS INC - PARTIES IN INTEREST
Attorney for: COTVNTRYWIDE HOME LOANS INC WILLIAM LEETE - RETAINED 09/02/2005 LEETE & LEMIEUX 95 EXHANGE STREET PO BOX 7740 PORTLAND ME 04112
Filing Document: COMPLAINT Minor Case Type: CONTRACT Filing Date: 05/25/2005
Docket Events: 05/25/2005 FILING DOCUMENT - COMPLAINT FILED ON 05/25/2005
05/26/2005 Party(s) : UTOPIAN HOMES INC ATTORNEY - RETAINED ENTERED ON 05/25/2005 Plaintiff's Attorney: NEAL WEINSTEIN
06/01/2005 Party(s) : UTOPIAN HOMES INC SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 06/01/2005
06/01/2005 Party(s) : UTOPIAN HOMES INC SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/26/2005 UPON DEFENDANT KRISTIN WALKER (JW)
06/01/2005 Partyis): UTOPIAN HOMES INC SUMMONS/SERVICE - PROOF OF SERVICE FILED ON 06/01/2005
06/01/2005 Party(s) : UTOPIAN HOMES INC SUMMONS/SERVICE - PROOF OF SERVICE SERVED ON 05/26/2005 UPON DEFENDANT SHAWN WALKER TO KRISTIN WALKER (JW)
06/06/2005 Party(s) : SHAWN WALKER ATTORNEY - RETAINED ENTERED ON 06/06/2005 Defendant's Attorney: THOMAS MCKEON
Party (s): KRISTIN WALKER ATTORNEY - RETAINED ENTERED ON 06/06/2005 Page 2 of 7 Printed on: 09/16/2005