The opinion
STATE OF MAINE ibe oe, RY SUPERIOR COURT
CUMBERLAND, ss. BLES joe ad CIVIL ACTION
_ “5 DOCKET NO. CV-99-461
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PHILIP BROWN, et al., CONALD L. CARBRECHT
LAW LEtRary
Plaintiffs .
vs. ORDER ON DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
PEOPLES HERITAGE BANK, et al., ONALD L. GARBRECHT
LAW LISRARY
Defendants .
_ JAN 8 92001
Defendant Peoples Heritage Bank moves for summary judgment dismissing
the complaint in the above-captioned case. Oral argument on the motion was
scheduled for December 22, 2000 but counsel for plaintiff was not present. He has
since advised that his absence resulted from a misunderstanding with the clerk's
office.!
Because this case is on the trial list, the court has considered the motion
based on the written submissions of the parties.
In considering a motion for summary judgment, the court is required to
consider only the portions of the record referred to and the material facts set froth
in the parties' Rule 7(d) statements. Handy Boat Service, Inc. v. Professional
Services, Inc., 1998 ME 134, J 16, 711 A.2d 1306, 1310. The facts must be considered in
the light most favorable to the non-moving party. E.g., Panasonic Communications
1 It is the court's understanding that plaintiffs' counsel believes he was advised by the
clerk's office that he did not need to appear for argument on the motion because this
case is on the trial list and the motion would therefore be addressed at the time of jury
selection. Although the court accepts that a misunderstanding occurred for purposes of
this order, it notes that if everyone concerned had been aware both that this was on a
trial list and that a motion hearing had been separately scheduled, plaintiffs’ counsel
should not have been left with any impression that he did not need to appear at the
hearing on the motion.
& Systems Co. v. State of Maine, 1997 ME 43, ] 10, 691 A.2d 190, 194. Thus, for
purposes of summary judgment, any factual disputes must be resolved against the
movant. Nevertheless, if the facts offered by a party in opposition to summary
judgment would not, if offered at trial, be sufficient to withstand a motion for
judgment as a matter of law, summary judgment should be granted. Harkness v.
Fitzgerald, 1997 ME 207, 4 5, 701 A.2d 370, 372.
This case arises out of the sale of a residential dwelling in Aroostook County
in 1997. For purposes of the motion for summary judgment, the following facts are
undisputed or must be taken as true:
Plaintiffs Philip and Karen Brown purchased a cabin in Soldier Park, Maine
in 1997. Mortgage financing for the purchase was provided by Peoples Heritage
Bank. As a condition of financing, the Bank required a water test for certain
substances including e. coli, coliform, and nitrates but did not require a water test for
the presence of lead. Peoples Rule 7(d) Statement 1.5. However, the Browns had
asked for a water test for lead, apparently because they were seeking a VA loan
guarantee and the VA required such a test. Plaintiffs’ Rule 7(d) Statement at { 5.
Prior to the closing the Bank received the results of the water tests it sought
and also received a fax showing the result of the test for lead. That test result, which
is contained in the record as a fax on the stationary of Northeast Laboratory in
Waterville, stated that the result of the test for lead showed lead was present in the
amount of 0.015 mg/L. It also included the following comment: "Lead exceeds
acceptable limit of 0.015 mg/L." On its face this report is ambiguous. Its stated result
was that the lead content exactly equalled the allowable standard of 0.015 but the
accompanying comment simultaneously suggested that the lead exceeded that
standard.
Below the test result and comment, the Northeast Laboratory report stated
that "[t]his water is unsatisfactory for drinking for the above test(s) only. Please see
the enclosed data sheet for the asterisked reason(s)." The relevant portion of the
enclosed sheet in turn reiterated that the primary drinking water standard for lead
was .015 milligrams per liter and that lead in amounts over that standard may cause
significant health problems. This did nothing to dispel the ambiguity on the first
page of the test report.
The Browns state that the test result for lead from Northeast Laboratory was
not disclosed to them prior to the closing and instead that Peoples employee Carolyn
Plourde affirmatively told them that the water tests had been satisfactory. This
statement, which the court assumes was made for purposes of summary judgment,
constituted a misprepresentation that all tests (including the test for lead which was
at best ambiguous) were satisfactory. The Browns did not learn of the test result for
lead -- which they characterize as negative rather than ambiguous -- until after the
closing.
The Browns do not contend that any members of their family have incurred
any health problems or incurred any medical expenses as a result of any lead in the
water at the Soldier Pond dwelling. The only evidence they have offered of any
pecuniary loss resulting from the Bank's alleged misrepresentation is that the VA,
upon hearing of the Northeast Laboratory test result, canceled its loan guarantee and
thereby precluded plaintiffs from being eligible to obtain a reduced rate VA
refinanting loan.
Pursuant to a Supplemental Statement of Facts submitted by Peoples Heritage
without objection by plaintiffs, it is also undisputed that the water in the Soldier
Pond residence was retested on July 25, 2000 and that this test revealed no detectable
level of lead in the drinking water at the residence.
Given the above facts, it is somewhat puzzling why the case continues to be
litigated. Plaintiffs, however, appear to argue that even if there was no detectable
lead in the water as of July 2000 -- and presumably regardless of whether there was
in fact any detectable lead in the water at the time of the closing -- the existence of an
unsatisfactory test result (or an ambiguous and at least potentially unsatisfactory test
result) was itself a fact that was the subject of an affirmative misrepresentation by
the Bank at the time of the closing. On this issue plaintiffs are correct. In order to
proceed with their claims of fraudulent and negligent misrepresentation and their
claim for a violation of the Maine Unfair Trade Practices Act, however, the Browns
also have to demonstrate a disputed issue for trial on the issue of whether they have
suffered any pecuniary or economic loss as a result of the Bank's actions. See
Tungate v. MacLean Stevens Studios, Inc., 1998 ME 162 { 13, 714 A.2d 792, 797-98
(Maine Unfair Trade Practices Act); Brae Asset Fund L.P. v. Adam, 661 A.2d 1137,
1140 (Me. 1995) (negligent misrepresentation); Jourdain v. Dineen, 527 A.2d 1304,
1307 (Me. 1987) (fraud).
In this case the Browns cannot do this for two reasons. First, the Browns
have not disputed that there was no contingency in the purchase and sale
agreement regarding the quality or potability of the water. Peoples Rule 7(d)
Statement { 7. Even if the unsatisfactory or potentially unsatisfactory test for lead
had been disclosed, therefore, the Browns would have been obligated to go ahead
with the purchase and would have ended up in an identical position to the one in
which they found themselves after the closing -- as the owners of a dwelling with an
ambiguous and potentially unsatisfactory test result for lead. Second, the only
pecuniary loss that the Browns have alleged -- that "we cannot get VA rates if we
refinance the loan", Philip Brown Aff. 4 14; Karen Brown Aff. 4 13 -- is too
contingent and hypothetical to allow them to proceed. A potential but as yet
unrealized economic loss is not sufficient. Absent evidence that they have in fact
suffered quantifiable economic harm by reason of the loss of the VA rate, the
Browns have presented an opposition to summary judgment that, if presented at
trial, would not allow them to surmount a motion for judgment as a matter of law.
Accordingly, summary judgment is granted for the defendants on the Browns'
claims for fraudulent and negligent misrepresentation and for violation of the
Unfair Trade Practices Act.2
The only remaining claim is the Browns’ claim for breach of contract, which
fails because they have offered no evidence generating a triable issue as to whether
2 For this reason the court does not reach Peoples's alternative argument that its conduct
was also exempt from the Unfair Trade Practices Act under 5 M.R.S.A. § 208(1) (1989)
and First of Maine Commodities v. Dube, 534 A.2d 1298, 1302 (Me. 1987).
the Bank had a contractual obligation to provide them with water test results.
Summary judgment is therefore granted dismissing the complaint.
The clerk is directed to incorporate this order into the docket by reference
pursuant to Rule 79(a).
Dated: December 25 , 2000 — Lon
Thomas D. Warren
_ Justice, Superior Court
Date Filed ___ 8-12-99 Cumber Land
Docket No. CV99-461
County
Action Damages
Philip, Karen, & Andrew Brown
vs.
People's Heritage Bank
Carolyn Plourde
Plaintiff's Attorney
Steven Lyman, Esq
96 Harlow St.
Bangor, ME 04401
947-6514
Date of
Entry
Defendant’s Attorney
William Plouffe Esq. 772-1941
PO BOX 9781 {BOTH) (Peoples)
Portland, ME 04104
RICHARD CURRIER, ESQ. 764~4193 (Plourde)
505 MAIN SIREET
PRESQUE ISLE, MAINE 04769
Deirdre M. SMiz*.. Z20. || (People's)
POTox 9781 Portlard ME 04104
+990