Donahue v. Berube

STATE OF MAINE SUPERIOR COURT
YORK, ss. Civil Action
Docket No. CV-19-0099

PATRICK DONAHUE and WILLIAM
DONAHUE,

Plaintiffs,
ORDER ON DEFENDANTS TOTH
v. AND QUATTRO LLC'S MOTION FOR
JUDGMENT ON PLEADINGS
ALLEN BERUBE, INA TOTH, and
QUATTRO, LLC,

Defendants.

Patrick Donahue and William Donahue have filed a six-count complaint against

Allen Berube, Ina Toth, and Quattro, LLC for damages arising out of an incident in

March 2019 in which Berube and others are alleged to have assaulted and intimidated

Patrick Donahue. The complaint asserts that Defendants are jointly and severally liable

based on allegations of assault (Count I), intentional infliction of emotional distress

(Count II), negligent infliction of emotional distress (Count III), negligence (Count IV),

negligent supervision (Count V), and respondeat superior (count VI).1

Defendants Toth and Quattro LLC have moved for judgment on the pleadings

pursuant to M.R. Civ.P. 12(c). For the reasons set out below, the motion is granted with

respect to Counts I, II, III, IV, and V; and denied as to Count VI.

I. Background

Allen Berube and Ina Toth are licensed real estate agents in Maine. (Comp!. n
3, 4.) Quattro LLC is a limited liability company operating in York, Maine, under the

1 The negligence court is incorrectly numbered "Count III," causing the following two counts to

be mis-numbered in the complaint as well.

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assumed name, "Re/Max Realty One". (Comp!. ,r 5.) Berube worked for Toth and

Quattro/Remax at all relevant times. (Comp!. ,r 10.)2

William Donahue owns Five Star Holdings, LLC, which contracted with Quattro

to list and sell certain real estate in Scarborough, Maine. (Comp!. ,r 8.) Berube was the

listing agent. (Comp!. ,r,r 9-10.) Berube and Toth secured a buyer for the property.

(Comp!. ,r 12.) Because of certain errors on the part of Berube, Toth, and/or Quattro,

Five Star Holdings was forced to make concessions in order to avoid losing the sale; and,

as a result, Quattro agreed to waive commissions and give the buyer $5,000 in closing

costs. (Comp!. ,r,r 13-17.)

Subsequently, on or about March 14, 2019, Patrick Donahue was accosted at a

local restaurant by Berube and several other men, including the man who had invited

Patrick to the restaurant on that occasion. (Comp!. ,r,r 18-20.) Berube, a mixed martial

artist, expressed anger regarding the lost real estate commission; threatened physical

violence against Patrick and William unless the forfeited commission was paid;

prevented Patrick from leaving the restaurant; and placed him in imminent fear of attack

and physical injury. (Comp!. ,r,r 21-29.) It is unclear from the complaint whether

William Donahue was present at the time of this incident.

The complaint alleges that Berube and his associates acted "individually and on

behalf of and/or with the knowledge of all Defendants;" that Toth (and Quattro) knew

Berube was a trained martial artist "with a short fuse and hot temperament;" that they

"knew or should have known ofBerube's plan to threaten Plaintiffs; and that they "stood

to benefit from Berube's behavior." (Comp!. ,r,r 31-32, 57, 66, 67.) (Emphasis added.)

Plaintiffs further allege that "Berube's conduct was a foreseeable consequence of the

2 Although the complaint does not aver the relationship between Toth and Quattro, LLC, the
court assumes that Toth is tbe owner or sole member of Quattro LLC. The complaint also does
not aver the relationship between William and Patrick Donahue.

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loss of real estate commissions" and that Toth and Quattro knew or should have known,

failed to stop, and stood to gain from Berube's planned course of conduct. (Comp!. ,r

67.)

Plaintiffs filed their complaint on April 24, 2019. Toth and Quattro answered the

complaint on May 20, 2019, and Berube answered the complaint on June 3, 2019.3

II. Standard of Review

A Rule 12(c) motion for judgment on the pleadings tests the legal sufficiency of

the complaint in the same manner as a motion to dismiss pursuant to M.R. Civ. P.

12(b)(6). Wawenock, LLC v. DOT, 2018 ME 83, ,r 4, 187 A.3d 609 (citing Cunningham v.

Haza, 538 A.2d 265, 267 (Me. 1988)). In reviewing the complaint, the court "assum[es]

that the factual allegations are true, examin[es] the complaint in the light most favorable

to plaintiff, and ascertain[s] whether the complaint alleges the elements of a cause of

action or facts entitling the plaintiff to relief on some legal theory[.]" Id. (quoting

Cunningham, 538 A.2d at 267) (quotation marks omitted). Dismissal is not warranted

"unless it is beyond doubt that no relief can be granted under any facts that might be

proved to support the plaintiffs claim." Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994)

(citations omitted).

III. Discussion

A. First Four Counts

The complaint does not allege any direct tortious conduct on the part of Toth or

Quattro. Rather, it states that Berube and others who not named as parties herein

accosted Patrick Donahue in Biddeford in March 2019 and engaged in the conduct that

comprises the basis for the causes of action of assault (Count I), intentional infliction

3The court rejects the contention that the instant motion is premature because the pleadings
have not closed. (see Pis.' Opp., at 1-2.) The motion was filed on June 25, 2019-after the filing
of Toth and Quattro's Answer on May 20, 2019 and Berube's answer on June 3, 2019.

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of emotional distress (Count II), and negligent infliction of emotional distress (Count Ill).

The complaint fails to identify any duty owed by Toth and/ or Quattro to Plaintiffs or the

actions or omissions on their parts that might constitute a breach of that duty, both of

which Plaintiffs must establish to state a claim for negligence (Count IV). See Mastriano

v. Blyer, 2001 ME 134, ,r,r 11-12, 779 A.2d 951. In their opposition, Plaintiffs failed to

address Defendants' challenge to these claims. Even if the complaint is read broadly to

allege that Toth and Quattro knew about and would benefit from the attack, this does

not amount to direct engagement in the tortious conduct that would serve as a basis for

these claims. Therefore, the motion will be granted as to Counts I, II, Ill, and IV.

B. Count V: Negligent Supervision

The complaint fails to state a claim for negligent supervision against Toth and

Quattro. A negligent supervision claim rests upon the existence of a "special

relationship" between the employer and the injured party. Fortin v. Roman Catholic

Bishop of Portland, 2005 ME 57, ,r 39, 871 A.2d 1208 (citing Restatement (Second) of

Torts,§§ 315(b), 317; see Dragomir v. Spring Harbor Hosp., 2009 ME 51, ,r 19, 970 A.2d

310. Such a "special relationship" may consist of a fiduciary relationship where there

exists "a great disparity of position and influence between the parties" or a custodial

relationship between "those who are required by law to take physical custody of another

or who voluntarily do so, such as to deprive the other of his normal opportunities for

protection." Gniadek v. Camp Sunshine at Sebago Lake, Inc., 2011 ME 11, ,r,r 20, 24, 11

A.3d 308 (quotation marks and citations omitted). Neither type of special relationship

is pleaded here.

Even if as listing broker for Five Star's property, Quattro (and Toth) owed a

fiduciary duty to that company, "not all fiduciary relationships are special relationships"

for purposes of a negligent supervision claim. Id. ,r 19. The complaint here fails to allege

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facts from which the court could infer the existence of "a great disparity of position and

influence" between Toth/Quattro and Five Star Holdings, or between William Donahue

in his individual capacity and Toth/ Quattro. Nor does the complaint allege any

relationship at all-special or otherwise-between Patrick Donahue and Toth/Quattro.

Consequently, the motion is granted as to Count V.

C. Count VI: Respondeat Superior

An employer may be vicariously liable for the tortious conduct of its employee

when the employee's conduct was within his "scope of employment." Mahar v.

Stonewood Transp., 2003 ME 63, ,r 13, 823 A.2d 540 (quotation marks omitted). An

employee's conduct falls within the scope of employment if (a) it is of the kind he is

employed to perform; (b) it occurs substantially within authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is

intentionally used by the servant against another, the use of force is not unexpectable

by the master. Id. ,r 14 (citing Rest. (2d) Agency,§§ 228,231 (1958)).4

Although it seems dubious that Berube was acting "within the scope of his

employment" in these circumstances, the complaint makes broad allegations that the

court must view in the light most favorable to Plaintiffs in the context of a Rule 12(c)

4Section 228 sets out the basic elements for vicarious liability as referenced above. Section 231
provides additional rules regarding an employer's vicarious liability for an employee's criminal
conduct. An employer may be liable for criminal or tortious conduct of its employee when that
conduct falls within the scope of employment. Rest. (2d) Agency§ 231 (1958). An employer is not
liable, however, for an employee's commission of criminal acts that are "clearly inappropriate to
or unforeseeable in the accomplishment of the authorized result." Id. An employer may be liable
for an employee's commission of "minor crimes in the prosecution of the business." Rest. (2d)
Agency§ 231 cmt. a (1958). See also Mahar, 2003 ME 63, ,r 17, 823 A.2d 540 (holding that
criminal "[a]ssault against and threatening of a family is serious criminal conduct that is
unanticipated," which put the conduct beyond the scope of employment); Gniadek v. Camp
Sunshine at Sebago Lake, Inc., 2011 ME 11, ,r 35, 11 A.3d 308 (reiterating that "assaultive and
threatening conduct by an employee who did not purport to act on his employer's behalf" fell
outside of the scope of employment when a summer camp volunteer committed second degree
sexual assault against a camper).

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motion. For example, it alleges that that Berube acted "on behalf of and/ or with the

knowledge of all Defendants;" that Toth "knew . . . of Berube's plan to threaten

Plaintiffs"; that Defendants "were aware or knew ... of Berube's plans"; and they "did

not stop or prevent Berube's conduct and stood to gain from Berube's conduct."

(Comp!. n 31, 58, 67.) Although the specific allegations set out in connection with
Count VI are sparse, paragraph 61 carries forward and incorporates all prior allegations

therein. Further development of the facts will likely test these assertions, and may or

may not support a future pre-trial motion with regard to Count VI and Defendants Toth

and/ or Quattro. The instant motion for judgment on the pleadings with respect to

Count VI, however, must be denied.

IV. Order

For the reasons set out above, it is hereby ordered and the entry shall be:

"Defendant Ina Toth and Defendant Quattro, LLC's Motion for Judgment on the

Pleadings is GRANTED with respect to Counts I, II, Ill, N, and V; and DENIED with

respect to Count VI.

The clerk may enter this order on the docket by reference pursuant to M.R. Civ. P.

79(a).

SO ORDERED

Dated: September 11, 2019

ENTERED ON THE DOCKET ON: . (if9119

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ALFSC-CV-2019-0099

ATTORNEYS FOR PLAINTIFF:

JEFFREY BENNETT ESQ
LEGAL EASE LLC PA
198 MAINE MALL ROAD BOX 15
SOUTH PORTLAND ME 04106

ATTORNEYS FOR DEFENDANT

DEFENDANT ALLEN BERUBE
ELIZABETH STOUDER, ESQ
RICHARDSON WHITMAN LARGE & BADGER
PO BOX9545
PORTLAND ME 04112-9545

DEFENDANT QUATTRO LLC AND INA TOTH
ROBERT HATCH, ESQ
THOMPSON BOWIE & HATCH LLC
PO BOX4630
PORTLAND ME 04112-4630