The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. CIVIL ACTION
Docket No. RE-06-43
A t lr I > .'*L
Deanna Lizotte, ,3C>NALD1. GARBRECHT
Plaintiff I ."l\h/ LIRRARY
\]EC 0 8 2006 OCT 1 9 2006
Order
Michelle M. Pierce et al.,
Defendants
Pending before the court are several motions filed by the defendants and a
discovery-related issue raised by defendants Town and Country Realtors, Kathy Hardy,
Russ Lambert and Earl Black. Hearing on these pending matters was held on October 16,
2006. The plaintiff and counsel of record for all defendants were present.
Defendants Town and Country Realtors, Hardy, Lambert and Black have moved
to dismiss the complaint against them because they contend, among other things, that
they have not been properly served. The court file reveals, and the plaintiff confirmed at
the hearing, that she purported to serve those defendants by certified mail. Certified mail
is not a proper method of service in the circumstances of this case. See M.R.Civ.P. 4.
Because the plaintiff has not served those defendants properly and filed a sufficient return
of service within 90 days of the date she commenced this action, the complaint against
those defendants must be dismissed. Because those claims are no longer pending, the
court does not reach those defendants' other argument that the complaint fails to state a
claim for relief against them. The court also does not reach the discovery issues raised in
counsel's letter dated October 11, 2006.
Defendant Michelle M. Pierce has moved for a more definite statement of the
plaintiff's claim against her. The complaint clearly states a claim that Pierce breached a
contract to which the plaintiff was a party. It is unclear if the plaintiff is asserting any
other causes of action against Pierce. Therefore, no later than October 30, 2006, the
plaintiff may file a statement (with a copy sent to Pierce's attorney) stating with
particularity any claims or causes of action she seeks to pursue against Pierce, other than
the claim for breach of contract. If the plaintiff does not file any such statement in
accordance with this order, then this case shall proceed as one for breach of contract only.
Pierce's motion for imposition of security is denied.
The court declines to refer this matter to a judicial assisted settlement conference
at this early stage of the proceedings.
The entry shall be:
Defendants Town and Country Realtors, Hardy, Lambert and Black's motion to
dismiss the complaint for insufficiency of service is granted. The complaint is dismissed
without prejudice as to those defendants.
Defendant Pierce's motion for more definite statement is granted. The plaintiff
may file a more definite statement of the claims against Pierce in accordance with this
order.
Defendant Pierce's motion for imposition of security is denied.
Dated: October 18,2006
J e f f r e y L.\ H j e l m
18/23/2806 MAINE J U D I C I A L INFORMATION SYSTEM ksmith
PENOBSCOT COUNTY SUPERIOR COURT mj x x i 0 4 8
CASE PARTY ADDRESS BOOK
DEANNA L I Z O T T E VS MECHELLE M PIERCE E T AL
UTN:AOCSsr -2006-0075424 CASE # : B A N K - R E - 2 0 0 6 - 0 0 0 4 3
................................................................................
DEANNA L I Z O T T E PL
M A I L ADDR:1330 PUSHAW ROAD GLENBURN ME 04401
MECHELLE M. PIERCE DEF
ATTY CUDDY, K E V I N T e l # (207) 9 4 2 - 2 8 9 8
ATTY ADDR:470 EVERGREEN WOODS BANGOR ME 04401
TOWN AND COUNTRY REALTORS DISMISSED DE F
ATTY LUCY, JOHN B. T e l # (207) 9 4 5 - 5 9 0 0
ATTY ADDR:ONE MERCHANTS PLAZA, S U I T E 603 PO BOX 2429 BANGOR ME 04402-2429
M=More, S p a c e = E x i t : M
S e l e c t t h e E X I T KEY f o r p a g e s e l e c t i o n l i n e .
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. CIVIL ACTION
Docket No. RE-06,43
)LH . - p E ~ I- i~ ~ % ~ ~ ~ L
Deanna Lizotte, DEC 1 8 2006
Plaintiff
1 PENOBSCOT COUNTY I
L 4
Order (Motion to Dismiss)
OONALDi. GARBRECHT
Mechelle M. Pierce, LAW LIBRARY
Defendant
JAN 1 6 2007
Pursuant to the order dated October 18, 2006, the plaintiff has filed a more
definite statement that clarifies the causes of action she seeks to pursue against the
defendant. The defendant has now moved to dismiss several of those claims on the basis
that they fail to state a claim on which relief can be granted. See M.R.Civ.P. 12(b)(6).
The court has reviewed the parties' submissions on the motion.
"A motion to dismiss tests the legal sufficiency of the complaint." McAfee v.
Cole, 637 A.2d 463,465 (Me. 1994). On a motion to dismiss, the court takes the
allegations to be true. In re Wage Payment Litigation, 2000 ME 162,y 3,752 A.2d 217,
220. From this starting point, the complaint then is examined "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." McAfee, 637
A.2d at 465. A dismissal is proper "only 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."
Hall v. Board of Environmental Protection, 498 A.2d 260, 266 (Me. 1985). See also
Heber v. Lucerne-in Maine Village Co., 2000 ME 137,y 7,755 A.2d 1064, 1066. In
other words, in evaluating the defendant's motion, the court makes no judgment about the
merits of the plaintiff's claims, or about whether the plaintiff's claims will or will not be
successful, or even whether or not there exists evidence to support those claims. Rather,
the court looks only at the allegations contained within the four corners of the complaint
in order to determine whether, on an abstract and theoretical basis, the allegations
describe a legal claim.
The court's references to particular counts of the complaint are based on the 9
numbered claims that the plaintiff has articulated in her "Answers to More Definite
Statement" filed in response to the court's order dated October 18,2006.
The defendant moves to dismiss count 2, which the plaintiff has described a claim
for negligent failure to comply with the terms of the contract. This claim improperly
intermingles tort and contract theories of liability. The claim is ultimately rooted as one
for breach of contract, and the court therefore dismisses count 2 because the contract
claim is already asserted in count 1 of the complaint.
When count 3 is read against the backdrop of the allegations in the original
complaint, the plaintiff appears to allege that the defendant's breach of the contract put
her (the plaintiff) in a position where she had to withdraw from a contract to sell her
existing house. The court views this as an allegation of one form of damages that the
plaintiff alleges arose from the defendant's alleged breach. Although it does not state a
separate cause of action, it identifies contract-based damages and will be allowed to
stand.
Damages for emotional distress are not recoverable for breach of the type of
contract at issue in this case. See Rubin v. Matthews International Corp., 503 A.2d 694,
698 (Me. 1986). Accordingly, counts 4 and 7 must be dismissed.
In count 5, the plaintiff alleges that her eyesight has deteriorated subsequent to the
events surrounding the alleged breach of contract. Although the plaintiff has not alleged
expressly that the defendant's alleged conduct was a legal cause of her loss of vision, the
allegations are sufficient to carry such a contention. The defendant's motion to dismiss
count 5 is therefore denied.
In count 6, the plaintiff alleges that the defendant engaged in fraudulent conduct.
That characterization of the more specific allegations set out in the complaint, when the
two filings are viewed together, is sufficient to withstand the defendant's motion.
In count 8, the plaintiff alleges that she purchased materials that she had to return
to the store. The defendant acknowledges that this is a sufficient allegation of damages.
The context of this count is sufficient to state a claim that the plaintiff sustained those
damages because the defendant failed to perform under the contract for the sale of the
house to the plaintiff.
Finally, in count 9, the plaintiff states that she seeks her costs and legal fees. A
claim for costs and "legal fees," if that means expenses incurred in a lawsuit, are a
standard component of damages alleged in a complaint, and it is proper here. Legal fees,
taking the form of attorney's fees, may be available in a claim for breach of contract if
there is a provision in the contract for that form of relief. The contract involved in this
case, which the court can consider because it is incorporated and thereby merged into the
complaint, see Moody v. State Liquor & Lottery Comm'n, 2004 ME 20,g 10, 843 A.2d
43,47, allows recovery of attorney's fees in some circumstances. The pleadings do not
preclude that possibility here, and so the claim is proper. Although the plaintiff is self-
represented at this time, she may claim attorney's fees in the event an attorney enters an
appearance for her at some later time while this case is pending.
The entry shall be:
For the foregoing reasons, the defendant's motion to dismiss is granted in part and
denied in part. Counts 2 ' 4 and 7 of the complaint, as clarified by the "Answers to More
Definite Statement," are dismissed for failure to state a claim on which relief can be
granted. Beyond this, the motion to dismiss is denied.
Dated: December 15,2006
12/27/2006 MAINE J U D I C I A L INFORMATION SYSTEM k s m ith
PENOBSCOT COUNTY SUPERIOR COURT mj x x i 0 1 3
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DEANNA LIZOTTE VS MECHELLE M PIERCE ET AL
UTN:AOCSsr - 2 0 0 6 - 0 0 7 5 4 2 4 CASE # : B A N K - R E - 2 0 0 6 - 0 0 0 4 3
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SEL VD REPRESENTATION TYPE DATE
01 0 0 0 0 0 0 0 3 3 4 ATTORNEY:CUDDY, KEVIN
ADDR:470 EVERGREEN WOODS BANGOR ME 04401
F F0R:MECHELLE M PIERCE DE F RTND 09/21/2006
0 2 0 0 0 0 0 0 7 0 8 4 ATTORNEY:LUCY, JOHN B
ADDR:ONE MERCHANTS PLAZA, SUITE 6 0 3 PO BOX 2 4 2 9 BANGOR ME 0 4 4 0 2 - 2 4 2 9
F F0R:TOWN AND COUNTRY REALTORS DISMISSED DEF RTND 08/04/2006
F F0R:KATHY HARDY DISMISSED DE F RTND 08/04/2006
F F0R:RUSS LAMBERT DISMISSED DE F RTND 08/04/2006
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