Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-19-107
02-20-2020
THOMAS & AMBER HINTON Plaintiffs/Counterclaim Defendants v. THOMAS BOYCE, Defendant/Counterclaim Plaintiff and DIANNA PATTERSON, REALTY OF MAINE, MICHELLE CASAVANT, CENTURY 21 SURETTE REAL ESTATE, MICHAEL KEDDY, SR. d/b/a A-1 AFFORDABLE HOME INSPECTION, Defendants
STATE OF MAINE
KENNEBEC, SS. ORDER ON PENDING MOTIONS
INTRODUCTION
The matters before the Court in this litigation are the following motions: Defendant Michael Keddy's Motion for Judgment on the Pleadings as to Defendant Thomas Boyce's cross-claim; Defendant Michelle Casavant's and Century 21's Motion to Dismiss Defendant Thomas Boyce's cross-claims, and; Defendant Thomas Boyce's Motion to Dismiss Plaintiff's complaint. The following background is taken from the allegations in the Plaintiff's Complaint.
BACKGROUND
Jeramy and Amber Hinton are a married couple with four children who moved to Maine in August 2017 after previously living in Denver, Colorado. Sometime in June 2017, they began planning in earnest to move to Maine and, to that end, contacted and hired Michelle Casavant and Century 21 as their exclusive Buyer's Real Estate Agents. The Hintons were looking for a move-in ready house in central Maine, with right of way access to a lake, in the price range of $140,000 -- $160,000, but were willing to spend an additional $20,000 if the house did not need major repairs.
On June 23, 2017, Thomas Boyce, married to Valerie Toulouse until October 2013, completed a Seller's Property Disclosure and Lead Paint Disclosure with Dianna Patterson and Realty of Maine, and listed his house at 199 Snow Pond Road, Oakland, Maine (the "Property") for sale. On July 1, 2017, after the Hintons had visited a few houses in Maine, Casavant notified them of the Property, saying it had "just popped up." After spending only a few minutes visiting the Property (after Casavant told them there was no Disclosure for them and they had only 5 minutes to view the Property), Casavant told the Hintons that Boyce was installing a water filter system in the Property because arsenic levels were "a few points high." Casavant also "repeatedly" told the Hintons that the Property had no material defects and had a right of way access to the nearby lake. Accordingly, she encouraged the Hintons to add the additional $20,000 to secure the Property.
Based on these assurances, the Hintons made an offer, contingent on the Property having a right of way access to the lake, getting the Disclosure, water test results and a thorough inspection to confirm that no repairs were required. Casavant also recommended that the Hinton's hire Michael Keddy of A1 Affordable Home Inspection. Casavant, however, failed to notify the Hintons that they had ten days after the date they signed the Purchase and Sale Agreement to have Keddy inspect the Property, and that they would be able to revoke their offer if the inspection revealed material defects. The Hintons needed to fly back to Colorado to attend the closing of their property there on July 7, 2017. Despite their willingness to remain in Maine during that time to attend the Keddy inspection, Casavant encouraged the Hintons to keep their plans, reassuring them that she would be "their eyes and ears during the inspection." Thus, the Keddy inspection occurred on July 11, 2017 when the Hintons were in Colorado. Shortly thereafter, Keddy emailed the Hintons a partial report, which reported no major defects. After Casavant conducted a final walk through and reported that "everything looks great" on July 19, 2017, the Property closing occurred the following day, while the Hintons were still in Colorado.
On August 5, 2017, the Hintons and their children moved into the Property and stored many of their belongings in the basement. Five days later, on August 10, 2017, the Hintons left a message for Casavant that more than a foot of water had flooded their basement, and their belongings were floating around and had sustained major water damage. In early October 2017, the Hintons met with Casavant's supervising broker, Courtney Blood, at the Property about getting a resolution for the many undisclosed defects, with the Hintons telling Blood that they would not have purchased the Property had they known that such flooding would occur, and at least would have tested for mold. Blood responded by admitting that the Hintons should have been notified about the "water damage."
Despite Blood's assurances, Century 21 and Casavant failed to aid the Hintons in contacting the other parties to resolve the material defects. On October 27, 2017, the Hintons had a water test conducted, which showed arsenic levels "almost triple the legal limit for residential drinking water." In addition, the Hintons hired Craig Wilson of Icon Environmental Consultants to perform a Site Inspection and Indoor Air Quality Test (IAQ) on June 16, 2018, which detailed visible moisture damage and mold throughout the Property, and several inches of water flooding the basement. The IAQ showed that the spore count exceeded the normal value. The IAQ also showed multiple types of mold in the attic, the basement, and the master bedroom. The Hintons also subsequently discovered that the Property in fact does not have a right of way access to the lake. As of the date of the Complaint, the Property still has roof and foundation leaks, mold pollution, and other material defects.
STANDARD OF REVIEW
After the Hintons filed this lawsuit, Thomas Boyce (Boyce) filed several claims of his own. In addition to bringing a counter-claim against the Hintons for Intentional Infliction of Emotional Distress, Boyce filed cross-claims against Defendants Century 21 Surette Realty, Michelle Casavant, and Michael Keddy, d/b/a A1 Affordable Home Inspection. Those Defendants filed two separate motions to dismiss Boyce's cross-claims. In addition, Boyce filed a motion to dismiss the Plaintiff's complaint, meaning the Court has three pending motions before it, all of them motions to dismiss. (Valerie Toulouse also previously filed a motion to dismiss the Plaintiff's complaint, but because she was dismissed as a Defendant by order dated 1/10/2020, that motion is now moot).
As noted above, Keddy's motion is technically a Motion for Judgment on the Pleadings. Because a motion for judgment on the pleadings, however, is essentially the same thing as a motion to dismiss, see MacKerron v. MacKerron, 571 A.2d 810, 813 (Me. 1990) ("A defendant's motion for judgment on the pleadings is the equivalent of a defendant's motion to dismiss for failure to state a claim"), the Court considers Keddy's motion concurrently with Casavant's and Century 21's motion to dismiss. --------
When reviewing a motion to dismiss under Rule 12(b)(6), courts "consider the facts in the complaint as if they were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, ¶ 16, 17 A.3d 123. The court views the complaint "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." "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 claim.'" McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994) (internal quotations omitted). As previously noted, Keddy filed a Motion for Judgment on the Pleadings to dismiss Boyce's cross-claim, but this is essentially the same as a motion to dismiss for failure to state a cliam. See Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988); see also Burke v. Hamilton Beach Division, 424 A.2d 145, 148 (Me. 1981). "When, as in this case, a motion under M.R. Civ. P. 12(b)(6) for judgment on the pleadings is filed by a defendant, only the legal sufficiency of the complaint is tested. Defendant's motion for judgment on the pleadings is nothing more than a motion under M.R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted." Cunningham, 538 A.2d at 267. Thus, all three of the motions before the Court are subject to the same standard.
DISCUSSION
Keddy, Casavant, and Century 21's Motions to Dismiss Boyce's Cross-Claims
In his cross-claims, Boyce requests contribution and indemnification from those three Defendants from any and all judgments rendered and sums adjudged against him. As the Defendants correctly argue, contribution is available for only one of the four counts the Plaintiff has brought, and that claim is covered by Maine's comparative negligence statute, meaning Boyce's motion is moot as to that last count.
"The right of one joint tort-feasor to contribution from another is a derivative right based upon a final determination that negligence of the cross-claim defendant contributed to the plaintiff's injury." Packard v. Whitten, 274 A.2d 169, 174 (Me. 1971). "The underlying policy supporting the right to contribution between joint tortfeasors espoused by this Court does not rest in contract." Roberts v. American Chain & Cable Co., 259 A.2d 43, 48 (Me. 1969). Contribution is an equitable remedy founded on acknowledged principles of "natural justice," and is available only for unintentional tortfeasors. Hobbs v. Hurley, 104 A. 815 (Me. 1918); see also Packard, 274 A.2d at 179. Accordingly, contribution is not available for Count II - intentional misrepresentation, Count III - Breach of Contract, and Count IV - Violation of Unfair Trade Practices Act.
This means that only Count I - Negligent Misrepresentation - can potentially support a claim for contribution. And as the Packard Court noted and subsequently ruled, the adoption of Maine's comparative negligence statute, 14 M.R.S.A. § 156, essentially takes the place of the prior rule of contribution. See Packard, 274 A.2d at 179-80. Because of that statute, contribution is now based upon percentages of causal fault among defendants, independent of any cross-claim for contribution. Id. ("More than five years' experience in apportioning causal fault under our Comparative Negligence law convinces us that this change as to contribution will result in no insuperable difficulties for the courts or juries. We hold, then, that any contribution by joint tort-feasors shall be in proportion to the contributions of each one to the damages suffered by the Plaintiff.").
With respect to the related but distinct concept of indemnification, the Law Court has held that indemnification is available only in three specific instances. "(1) indemnity may be agreed to expressly; (2) a contractual right of indemnification may be implied from the nature of the relationship between the parties; or (3) a tort-based right to indemnity may be found when there is a great disparity in the fault of the parties." Emery v. Hussey Seating Co., 697 A.2d 1284, 1287 (Me. 1997). Because Boyce has not alleged any facts that would suggest that any of these three instances are present here, indemnity is not available to him either.
Thus, because the Maine Comparative Negligence statute covers the extent that Boyce is able to recover contribution, and because indemnification is not available, the Court agrees with Defendants Keddy, Casavant and Century 21 that Boyce's cross-claims against them should be dismissed.
Boyce's Motion to Dismiss Plaintiff's Complaint
Boyce's motion to dismiss is little more than a one-page document that asserts that because the case was not brought to mediation before the Hintons filed suit, the case should be dismissed, based on paragraph 17 of the Purchase and Sale Agreement. The Court remains unpersuaded for two reasons: First, the Hintons assert that they repeatedly attempted to bring their grievances to mediation, only to receive no response from any of the Defendants, and that they filed this suit in court only after months of no response. Second, that clause (¶ 17of the PSA) only comes into play if the party that initiated suit "loses in that subsequent litigation." Since discovery on this case has not even finished, it is far too early to decide whether or not this clause will become applicable.
A motion to dismiss tests only the legal sufficiency of the complaint, taking the facts in the complaint as true. Under this standard, the Hintons have alleged sufficient facts to set forth causes of action for Misrepresentation (either negligent or intentional) and Breach of Contract. The Hintons were allegedly told that they were purchasing a house with no material defects and with a right of way access to the lake, and the Purchase and Sale Agreement allegedly stated the same as well. They allege that what they purchased instead was a house with chronic flooding, mold and air quality problems, and one without a right of way access to the lake. This sufficiently alleges Misrepresentation and Breach of Contract.
CONCLUSION
The entry is:
Defendant Michael Keddy's Motion for Judgment on Pleadings as to Defendant Thomas Boyce's cross-claim is GRANTED. Defendants Michelle Casavant and Century 21 Surette Real Estate's Motion to dismiss Defendant Thomas Boyce's cross-claim is GRANTED. Defendant Thomas Boyce's motion to dismiss Plaintiff's complaint is DENIED.
The clerk is directed to enter this Order on the docket for this case by incorporating it by reference. M.R. Civ. P. 79(a). Dated: February 20, 2020
/s/_________
William R. Stokes
Justice, Superior Court