Hinton v. Boyce

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-19-107

THOMAS & AMBER HINTON
Plaintiffs/Counterclaim Defendants

V. ORDER ON .MOTION
FOR SUMMARY JUDGMENT
THOMAS BOYCE,
Defendant/Counterclaim Plaintiff

and
DIANNA PATTERSON,
REALTY OF MAINE, MICHELLE
CASAVANT,CENTURY21SURETTE
REAL ESTATE, MICHAEL KEDDY, SR.
d/b/a A-1 AFFORDABLE HOME INSPECTION,
Defendants

INTRODUCTION
Before the court for resolution is the Motion for Summary Judgment submitted by
Defendant Michael Keddy, Sr., d/b/a A-1 Affordable Home Inspection. The Plaintiffs,
Jeramy and Amber Hinton, oppose the motion.
The complaint in this matter was filed on May 28, 2019 and seeks damages against
all the Defendants in connection with the Hintons' July, 2017 purchase from Defendant
Thomas Boyce of property located at 199 Snow Pond Road in Oakland. Prior to purchasing
the property, the Hintons hired Defendants Michelle Casavant and Century 21 Surette Real
Estate as their exclusive Buyers Real Estate Agents. The Purchase and Sale Agreement
was subject to a satisfactory home inspection, which was performed by Keddy on July 11,
2017. Subsequent to their purchase of the property, the Hin tons claim that they discovered

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numerous defects in the home/property that were not disclosed by Boyce, Casavant and/or
Century 21 and were not reported by Keddy as part of his inspection report.
In their complaint, the Hintons have asserted the following four causes of action
against Keddy: negligent misrepresentation (Count I); intentional misrepresentation (Count
II); breach of contract (Count III), and; Unfair Trade Practices Act violation (UTPA)
(Count IV).
For purposes of addressing Keddy's motion for summary judgment, there appears to
be a number of material facts that are not subject to dispute. The following factual
recitation and discussion is based upon the court's review of the summary judgment record.
FACTUAL BACKGROUND
On July 1, 2017, the Hintons signed a Purchase and Sale Agreement (PSA) for the
property located at 199 Snow Pond Road in Oakland. Paragraph 12 of that PSA provided
that the Hintons' obligation to close on the property was subject to a satisfactory due
diligence investigation by them. According to the PSA, the Hintons had 10 days to perform
the due diligence investigation. Michelle Casavant contacted Michael Keddy d/b/a A-1
Affordable Home Inspection about doing an inspection of the property. Keddy indicated
that he was available to perform the inspection on July 11, 2017. There is considerable
argument between the Hintons and Keddy about the Hintons' desire to be present at the
inspection and their inability to be there because they were closing on their home in Denver,
Colorado. The bulk of this argument, however, is not material to Keddy as he had a limited
role in communicating with the Hintons prior to the inspection on July 11, 2017 and did
nothing to prevent them from being present at the inspection.
A "Comprehensive Whole House Inspection Agreement," on the letterhead of A-1
Affordable Home Inspection, was signed by the Hintons and Keddy on July 11, 2017. The
cost of the home inspection was a total of $425, consisting of $325 for the inspection plus
$100 for a radon test.

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The contract between Keddy and the Hin tons stated: "A-1 Affordable H.I. agrees to
provide an inspection for the purpose of alerting the client to any major observable
deficiencies in the condition of the property but will not discover or include latent defects
or hidden deficiencies." It specifically excluded certain conditions, including the presence
of mold.
In bold-faced type, the contract stated:
THE INSPECTION IS NOT INTENDED OR TO BE CONSIDERED AS
A GUARANTEE OR WARRANTY NOR ANY FORM OF
INSURANCE EXPRESSED OR IMPLIED, REGARDING THE
ADEQUACY, PERFORMANCE, OR CONDITION OF THE
PROPERTY, ITEMS AND SYSTEMS INSPECTED AND IT SHOULD
NOT BE RELIED UPON AS SUCH.

Finally, the contract contained the following provision:
It is further understood and agreed that A-1 Affordable Home Inspection, its
officers and/or employees assume no liability and shall not be responsible for
any mistakes, omissions or errors in judgment beyond the cost of the
inspection. The limitations of liability shall include and apply to all
consequential damage, bodily injury or property damages of any nature.

Keddy prepared a report of his inspection and emailed it to the Hintons on July 11,
2017. A copy of the report was sent by regular mail and was received by the Hintons on
or about July 17, 2017. The report contains a description of the observable deficient
conditions Keddy noted at the property. The Hintons' contend that Keddy's report itself
was deficient in many respects, including that it failed to disclose observable defects and
deficiencies in the condition of the house. Moreover, the Hintons contend that they
received a report from Keddy that contained photographs of poor quality.
The report prepared by Keddy stated that "[t]he home is overall in pretty good
condition." Nevertheless, the report also pointed out numerous issues that needed to be
addressed. The Hintons contend that after they closed on the property and moved into the

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home, they discovered several major defects and deficiencies in the house that should have
been disclosed to them by Keddy and the other Defendants, including high levels of mold
and water leakage into the home. The Hintons contend that they relied upon Keddy' s report
in purchasing the home and have been damaged as a result of Keddy' s misrepresentation,
lack of disclosure and breach of contract.
In response to Keddy's request for a more definite statement, the Hintons alleged
that Keddy conspired with the other Defendants in the case, and received a "kickback," for
giving an inaccurate and incomplete home inspection report. The Hintons allege that
Keddy was part of a deliberate scheme to defraud them into buying the property with its
known defects. The Hin tons acknowledge that Keddy did not have any fiduciary
relationship with them.
SUMMARY JUDGMENT STANDARD
"The function of a summary judgment is to permit a court, prior to trial, to determine
whether there exists a triable issue of fact or whether the question[s] before the court [are]
solely ... of law." Bouchard v. American Orthodontics, 661 A.2d 1143, 1144 (Me. 1995).
"A trial court properly grants summary judgment for the movant if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law." Beaulieu
v. Aube Corp., 2002 ME 79, ~ 14,796 A.2d 683 (citing Stanton v. University ofMaine Sys.,
2001 ME 96, ~ 6, 773 A.2d 1045). A "material fact" is one that can affect the outcome of
the case, and a genuine issue exists when there is sufficient evidence for a fact-finder to
choose between competing versions of the facts. Lougee Conservancy v. City-Mortgage,
Inc., 2012 ME 103, ~ 11, 48 A.2d 774. The party opposing summary judgment may not
rest upon mere allegations, and instead is required to come forward with competent and
admissible evidence to support each element of his claims. First Citizen Bank v. M.R.
Maddy, Inc., 669 A.2d 743, 744 (Me. 1995).

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DISCUSSION
By virtue of his motion for summary judgment, Keddy claims that he is entitled to
judgment as a matter of law on all four counts of the complaint.
Count I - Negligent Misrepresentation and the Economic Loss Doctrine
In Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990), the Law Court adopted the
tort of negligent misrepresentation as formulated in Restatement (Second) ofTorts§ 552(1)
(1977):
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.

While at first glance the tort of negligent misrepresentation may appear to be
generated by the facts alleged in this case, Keddy has raised the so-called Economic Loss
Rule or Doctrine as a bar to the bringing of such a claim under the factual circumstances
presented here. The Economic Loss Rule was first recognized in Maine in Oceanside at
Pine Point Condominium Owners Ass 'n v. Peachtree Doors, 659 A.2d 267 (Me. 1995).
Oceanside involved a condominium building that sustained significant water damage
allegedly as a result of defective windows manufactured by Peachtree. The condominium
association and some condominium owners sued Peachtree alleging negligence, negligent
misrepresentation, breach of warranty, unfair trade practices and product liability. The trial
court granted Peachtree's motion for summary judgment as to the negligence, negligent
misrepresentation and product liability counts, on the basis of the Economic Loss Doctrine.
The Law Court explained that the majority of jurisdictions "do not permit tort
recovery for a defective product's damage to itself." Id. at 270. This view, called the
economic loss doctrine, refers to those "damages for inadequate value, costs of repair and

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replacement of defective product, or consequent loss of profit - without any claim of
personal injury or damage to other property." Id. at 270 , n. 4, quoting Moorman Mfg. Co.
v. National Tank Co., 435 N.E.2d 443,449 (Ill. 1982). The Court described the reasoning
behind the rule as being that when a product suffers damage to itself only, it simply means
that the customer has not received sufficient product value, which is the very purpose of
express and implied warranties.
Oceanside, of course, dealt with a product liability claim. The question that has not
been addressed by the Law Court, but with which other courts in Maine and elsewhere
have struggled, is whether the Economic Loss Doctrine applies to service contracts, such
as the home inspection contract between Keddy and the Hin tons. The courts that have
considered the question have reached different results.
For example, in Me. Rubber Int'! v. Envtl. Mgmt. Group, Inc ., 298 F. Supp.2d 133
(D. Me. 2004), Judge Homby held that the reasoning of Oceanside should be applied to
service contracts, such as an agreement to perform an environmental site assessment. The
court ruled that the parties (two commercial entities) bargained for the contract they signed
and the plaintiff should be left to its remedies under its breach of contract claim. The court
acknowledged: "The difficult question is whether Maine would carve out an exception to
the economic loss doctrine for professional service contracts," involving, for example,
lawyers, doctors, surveyors, engineers and others who are regulated and licensed and where
the Legislature has created a cause of action for professional negligence. 298 F. Supp. 2d
at 137.
A similar result was reached in Tetra Tech Constr. Inc . v. Summit Natural Gas, 2016
U.S. Dist. LEXIS 90597 (2016) (Nivison, M.J.) , involving a contract for the construction
of a gas pipeline. "The economic loss doctrine 'marks the fundamental boundary between
the law of contracts, which is designed to enforce expectations created by agreement, and
the law of torts, which is designed to protect citizens and their property by imposing a duty

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of reasonable care."' Id. at *7 quoting Fireman's Fund Ins. Co. v. Childs, 52 F. Supp.2d
139, 141 (D. Me. 1999).
More recently, Judge Hornby noted "the difficulties this court and the Maine
Superior Court have had in defining the doctrine's scope." Fletch's Sandblasting &
Painting, Inc. v. Fay, 2019 U.S. Dist. LEXIS 67234, 3 (D. Me). He pointed out that the
Law Court has not spoken on the subject of the economic loss doctrine since Oceanside in

1995, 1 and how the Law Court might view the doctrine "is even murkier today," in light of

the adoption of the Restatement (Third) of Torts, which discusses the economic loss
"controversy," but narrows the defense so that it is limited to parties that have contracts.
Restatement (Third) of Torts§ 3, cmt. a.
The caselaw this court has examined appears to be divided into two categories when
it comes to the economic loss doctrine. One group of cases treats the economic loss rule
as a bar to a negligent misrepresentation claim. Cases in this category include: Gannett v.
Pettigrew, 2005 U.S. Dist. LEXIS 1357 (D. Me) (Kravchuk, M.J.) (in boat construction
contract, economic loss rule bars negligent misrepresentation cause of action because such
a claim is indistinct from breach of contract); Bayreuther v. Gardner, 2000 Me. Super.
LEXIS 140 (Mills, J.) (design and inspection of peat septic system - negligence claim is
barred by economic loss doctrine); L.L. Bean, Inc. v. United States Mineral Prods., Co.,
1999 Me. Super. LEXIS 323 (Crowley, J.) (mold and fungi found in fireproofing material
- economic loss rule bars claim for negligence); Brett v. Lovejoy, 2011 Me. Super. LEXIS
19, *6 (Brennan, J.) (faulty installation of septic system- economic loss rule "clearly" bars
tort action where claims are based on failure to meet contract standards); Dcci v. Parker,
2015 Me. Bus. & Consumer LEXIS 42 (Horton, J.) (purchase and sale of "muscle" car ­
economic loss doctrine bars negligent misrepresentation claim); Arundel Valley, LLC v.

' In Dunelawn Owners' Ass'n v. Gendreau, 2000 ME 94,, 10, n. 11, 750 A. 2d 591, the Law Court
declined to address the economic loss doctrine in the context of that case.

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Branch River Plastics, Inc., CUM-BCD-CV- 2013-15 (Horton, J.) (economic loss doctrine
bars tort claims in what is fundamentally a breach of warranty case); Maine-Ly Marine Sales
& Serv., Inc. v. Worrey, 2006 Me Super. LEXIS 79, * 6 (Warren, J.) (contract to winterize
boat - economic loss doctrine applies to service contracts). See also White v. Mood, 2020
Del. Super. LEXIS 112 (home inspection contract - economic loss doctrine bars home
buyer's tort claims since they are the same as breach of contract claims).
Another line of cases, however, holds that the tort of negligent misrepresentation is
an exception to the economic loss doctrine. Cases in this category include: Orr v. Teledyne,
1994 Me. Super. LEXIS 190 (Lipez, J.) (contract for sale of airplane - Maine would
recognize negligent misrepresentation as an exception to the economic loss rule);
Pendleton Yacht Yard, Inc v. Thomas H.H. Smith & Marine Design & Survey, Inc., 2001
Me. Super. LEXIS 49 (Marden, J.) (survey and inspection of boat - economic loss rule is
not a bar to negligent misrepresentation claim against certified marine surveyor); Camden
National Bank v. D & F Properties, LLC, CUM-BCD-WB-RE-2010-16 (Nivison, J.)
(citing cases for the proposition that negligent misrepresentation is an exception to the
economic loss doctrine). See also Glassford v. Dufresne & Assocs., P.A., 2014 Vt. Super.
LEXIS 26 (inspection of septic system - negligent misrepresentation appears to be an
exception to the economic loss rule).
The economic loss doctrine has been called "one of the most confusing doctrines in
tort law." R. Joseph Barton, Drowning in a Sea of Contract: Application of the Economic
Loss Rule to Fraud and Negligent Misrepresentation Claims, 41 Wm. & Mary Law Review
1789 (May 2000). At least one court has said that the economic loss rule has proven to be
a misnomer and that it should be more properly understood and characterized as the
"independent tort duty" doctrine, which allows an injury to be "remediable in tort if it traces
back to the breach of a tort duty arising independently of the terms of the contract."
Eastwood v. Horse Harbor Found., Inc., 241 P.3d 1256, 1261-62 (Wash. 2010).

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A case the parties have spent a considerable amount of time debating is Morgan v.
Criterium-Mooney Engineers, CUM-CV-2007-381 (December 16, 2009) (Cole, J.). In that
case, the plaintiff was interested in purchasing residential property in Portland. She hired
Criterium-Mooney to perform a standard pre-purchase home inspection. The contract
signed by the parties stated that it was for a "limited visual inspection to identify significant
deficiencies .... in the major systems ...." The contract contained language making it
clear that the inspection was not intended to be a guarantee or warranty "regarding the
condition of this building." Moreover, the contract limited the liability of Criterium­
Mooney for any loss "due to any cause" to the cost of the inspection fee, i.e., $590.00.
Criterium-Mooney performed the inspection and prepared a report. The report made
note of some water seepage into the basement, but indicated that it did not appear to be
"extensive." The plaintiff purchased the home and later experienced flooding through the
foundation of the home. She also claimed that there was water infiltration in the above­
ground floors.
As the Hintons have done here, the plaintiff in Morgan sued Criterium-Mooney, the
home inspector, for breach of contract, negligent misrepresentation, fraudulent
misrepresentation and for violations of the UTPA. Criterium-Mooney moved for summary
judgment, in part based on the economic loss doctrine.
Justice Cole pointed out that the applicability of the economic loss doctrine to
service contracts was "unsettled." Relying on Graves v. S.E. Downing Registered Land
Surveyor, P.A., 2005 ME 116, 885 A.2d 779 and Pendleton Yacht Yard, 2003 Me. Super.
LEXIS 49 (Marden, J.), Justice Cole concluded that "the rule in Maine appears to be that
an action brought on a professional services contract breached solely through allegedly
negligent performance sounds in tort rather than contract." Noting that engineering is a
licensed occupation for which the Legislature has provided a cause of action for
malpractice or professional negligence (14 M.R.S. § 752-A), the court held that,
independent of the terms of the home inspection contract, Criterium-Mooney was obligated

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to exercise due care in providing professional advice as an engrneer. The plaintiff's
negligent misrepresentation claim survived summary judgment because the exercise of
reasonable care or competence would be the degree of care that an ordinarily competent
engineer would exercise in like circumstances. In essence, Justice Cole found that the
economic loss doctrine did not bar a negligent misrepresentation claim where the defendant
owed a duty of care independent of the contractual relationship between the parties. In the
case of an engineer (or lawyer, doctor, surveyor, or similar professional), an independent
duty of care exists by virtue of state licensing regulations and statutory causes of action for

professional negligence. 2

This would seem to bring our analysis back to where we began, with the court in
Me. Rubber questioning whether Maine "would carve out an exception for the economic
loss doctrine for professional service contracts." 298 F. Supp. 2d at 137. At least two
Superior Court justices (Cole and Marden) have recognized such an exception. The
question posed in this case is whether such an exception applies to service contracts that
do not involve a licensed and regulated professional subject to a standard of care, for the
beach of which a malpractice or professional negligence cause of action exists.
In this case, Keddy, d/b/a A-1 Affordable Home Inspection, is not subject to any
licensing requirement and no statutory cause of action for professional negligence appears
to exist. The relationship between the Hintons and Keddy is purely contractual, and the
negligent misrepresentation claim made against Keddy arises from that contractual
relationship. In essence, the Hintons' negligent misrepresentation claim is based on
Keddy' s allegedly negligent performance of the contract. The negligent misrepresentation
claim is indistinguishable from the breach of contact claim.

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The court in Morgan also found that the limitation of liability , as contained in the contract, was not
effective to shield Criterium-Mooney from negligence liability. Moreover , it found that it was against
public policy as applied to intentional or reckless conduct. See Reliance Nat '! Jndem. V. Knowles Indus .
Servs., Corp., 2005 ME 29,, 15,868 A.2d 220 .

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As Justice Horton observed:
Injecting negligence liability into what is fundamentally a breach of
warranty case not involving any damage to person or property would be
inappropriate, because it would displace predictable contractual and warranty
liability defined in the course of the transaction in favor of tort liability
determined after the fact. The world of contract depends [in] large part on
predictability of rights and obligations. Clearly, when a product causes
personal injury or property damage, the harm can legitimately be viewed as a
breach of a societal duty sounding in tort, as well as a breach of contractual
and warranty duty, and tort remedies come into play, but when the product
simply fails to perform as expected or guaranteed, there is no reason to depart
from contractual and warranty remedies. This is essentially the basis for the
Peachtree decision, and the court is constrained to follow it.
Arundel Valley, LLC v. Branch River Plastics, Inc., CUM-BCD-CV-2013-15 (November
5, 2014) (Horton, J.) at p. 11.
Here, Keddy's alleged breach of his contractual obligations did not result in any
personal injury and did not result in any property damage. Although the Hintons have
asserted that "[t]heir damages are far more extensive than a breach of contract," there is no
evidence that there was any personal injury or damage to other property as a result of
Keddy's allegedly negligent inspection of the property. Accordingly, the court finds that
the economic loss doctrine applies to Count I of the complaint and Keddy is entitled to
summary judgment on the negligent misrepresentation claim. See Restatement (Third) of
Torts § 3 ("Except as provided elsewhere in this restatement, there is no liability in tort for
economic loss caused by negligence in the performance or negotiation of a contract
between the parties").
Count II - Intentional Misrepresentation
In Count II of their complaint, the Hintons have asserted a claim for fraudulent or
intentional misrepresentation. To establish fraudulent misrepresentation, the Hintons must
establish five elements: (1) 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

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justifiably relies on the representation as true and acts upon it to the damage of the plaintiff.
Cianchette v. Cianchette, 2019 ME 87, 1f 20,209 A.3d 745; Me. Eye Care Assoc., P.A., v.
Gorman, 2006 ME 15, 1f 19,890 A.2d 707. The elements of fraudulent misrepresentation
must be proven by clear and convincing evidence. Gorman, 2006 ME 15, 1f 16; St. Francis
de Sales Fed. Credit Union v. Sun Ins. Co. of N.Y., 2002 ME 127, 1f 26,818 A.2d 995.
The Hintons have alleged that Keddy, along with at least some of the other
Defendants, were engaged in a civil conspiracy pursuant to which Keddy allegedly
received a "kickback" or some other pecuniary benefit to provide a false and misleading
inspection report to induce the Hintons to buy the property. The Hin tons have produced
no evidence to support this allegation. Nevertheless, they contend that summary judgment
is not appropriate at this time because they have been unable to conduct the discovery
necessary to support their claim. By means of an affidavit from their attorney, the Hintons
argue that they have attempted to gain access to the financial records of the Defendants,
but that the Defendants have refused to provide that information in discovery and the
"discovery dispute" has not yet been resolved.
The court would point out that there is no "discovery dispute" before it. The court
did issue a Rule 26(g) Order on January 24, 2020. One of the reasons for the court's order
at that time was that the court had not been provided with a complete copy of the
interrogatories and responses thereto, or the request for production of documents and
responses/objections thereto. Thus, the court was unable to make any ruling and denied
the Hin tons' request to order Keddy to supplement his discovery responses.
The court notes that the discovery deadline in this case is September 27, 2020. The
court is unaware of what discovery efforts are still underway, or why it has not been
possible for the Hintons to obtain the information that would arguably support their
fraudulent misrepresentation claims.
M.R.Civ.P. 56(f) provides:

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Should it appear from the affidavits of a party opposing the motion that
the party cannot for reasons stated present by affidavit facts essential to justify
the party's opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as is just.

The court will treat Attorney Davis's Affidavit as a Rule 56(f) request to defer ruling
on the motion for summary judgment. The court has considerable discretion under Rule
56(f). See S. Portland Police Patrol Ass'n v. City of S. Portland, 2006 ME 55, ~ 11,896
A.2d 960. The court will defer ruling on the summary judgment motion as to Count II
until at least September 8, 2020. The Hintons may provide additional affidavits on or
before that date to support their fraudulent misrepresentation claim in Count II. Keddy will
have 21 days to respond to any such affidavits. Thereafter, the court will rule on Keddy's
motion for summary judgment as to Count II.
Count III - Breach of Contract
The contract between the Hintons and Keddy called for Keddy to provide an
inspection "alerting [the Hintons] to any major observable deficiencies in the condition of
the property." The contract explicitly stated that the inspection would be limited to certain
areas and/or components of the property. Based on the summary judgment record, the
court finds that there are genuine issues of material fact in dispute as to whether Keddy
breached his contractual obligation to provide an inspection as required by the contract.
The court also finds that the limitation of liability contained in the contract is valid as to
any breach of contract claim. See White v. Mood, 2020 Del. Super. LEXIS 112, * 13. Any
damages as a result of the breach of contract in this case would be difficult to ascertain at
the time of entering into the contract. Accordingly, it was reasonable for the parties to limit
the liability of Keddy under the contract to the cost of the inspection fee. The motion for
summary judgment as to Count III will be denied, except that the limitation of liability is
reasonable and enforceable.

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Count IV - Unfair Trade Practices Act
The Maine Unfair Trade Practices Act (UTPA) prohibits "unfair or deceptive acts
or practices in the conduct of any trade or commerce." 5 M.R.S. § 207. "An act or practice
is deceptive if it is a material misrepresentation ... that is likely to mislead consumers
acting reasonably under the circumstances." Maine v. Weinschenk, 2005 ME 28, ~ 17, 868
A.2d 200. "[A] consumer has no private action under the UTPA, even if unfair trade
practices have in fact ben committed, unless those practices have not only harmed the
consumer but also benefitted the dealer." Kleinschmidt v. Morrow, 642 A/2d 161, 165
(Me. 1994) quoting Drinkwater v. Patten Realty Corp., 563 A.2d 772, 777 (Me. 1989).
Keddy has argued that the contract with the Hintons provided for him to be paid
regardless of the results of his inspection. Accordingly, the contract, by its elf, is not enough
to find a UTPA violation. The parties appear to agree that the Hintons must produce some
evidence that Keddy stood to gain something additional in order to support a violation of
the UTPA.
The Hintons maintain that further discovery may produce evidence to support their
theory that Keddy and others were engaged in some type of scheme to defraud them and
profit by providing a misleading home inspection report. For the reasons already discussed
with respect to Count II (Intentional Misrepresentation), the court will treat Attorney
Davis's Affidavit as a request under Rule 56(f) to defer ruling on the summary judgment
motion. The Hintons may submit additional affidavits on or before September 8, 2020.
Keddy will be allowed 21 days to respond. Thereafter, the court will rule on the summary
judgment motion as to Count IV of the complaint.
CONCLUSION
The entry is:
Keddy's motion for summary judgment as to Count I of the complaint
(negligent misrepresentation) is GRANTED.

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Keddy's motion for summary judgment as to Count III of the complaint
(breach of contract) is DENIED, except that the limitation of liability for breach of contract
is found to be valid and enforceable.
Keddy's motion for summary judgment as to Counts II and IV of the
complaint (intentional misrepresentation and UTPA violations), is deferred. The Hintons
may submit additional affidavits regarding Counts II and IV only on or before September
8, 2020. Keddy shall have 21 days to reply. Thereafter, the court will rule on the summary
judgment motion with respect to Counts II and IV.
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: August 14, 2020

Entered on the docket ? / 11
I
(ao•;ro Justice,SuperiorCourt

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(

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-19-107

THOMAS & AMBER HINTON
Plaintiffs/Counterclaim Defendants

V.
ORDER ON PENDING MOTIONS
THOMAS BOYCE,
Defendant/Counterclaim Plaintiff

and
DIANNA PATTERSON,
REALTY OF MAINE, MICHELLE
CASAVANT,CENTURY21SURETTE
REAL ESTATE, MICHAEL KEDDY, SR.
d/b/a A-1 AFFORDABLE HOME INSPECTION,
Defendants

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.

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(

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 Al 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

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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 Hin tons 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 condµcted, 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

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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 f~led cross-claims against Defendants Century 21
Surette Realty, Michelle Casavant, and Michael Keddy, d/b/a Al Affordable Home
Inspection. Those Defendants filed two separate motions to dismiss Boyce's cross-claims .1
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).
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.

1 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.

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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

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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. "(l) 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

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"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

William R. Stokes
Justice, Superior Court

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