# McCarthy v. Fisher

> Superior Court of Maine · July 11, 2014

URL: https://www.frixlaw.com/law-library/cases/10810504

## Case

- **Court:** Superior Court of Maine
- **Decided:** July 11, 2014
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas D. Warren
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

l NI ERED AUG o 8 lOll

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-13-75
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STATE OF MAINE
Cumb~r~nct s~ nsrk's Office

SYBIL McCARTHY, et al,

Plaintiffs, RECEIVED
v. ORDER

JAMES FISHER, et al,

Defendants.

Before the court is a motion by defendants James Fisher and Northeast Civil

Solutions Inc. (NCS) for summary judgment dismissing claims by plaintiffs Sybil and

Edward McCarthy based on defendants' alleged failure to obtain a DEP permit

necessary for the construction of a residence in the Higgins Beach area of Scarborough. 1

Summary Judgment

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. 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 forth in the parties' Rule 56(h) statements.

11g., Johnson v. McNeil, 2002 ME 99 1 8, 800 A.2d 702. The facts must be considered in

the light most favorable to the non-moving party. Id. Thus, for purposes of summary

judgment, any factual disputes must be resolved against the movant. Nevertheless,

when 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,
1
Sybil McCarthy is known as Robin McCarthy and will be referred to as Robin in this order.
summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 <JI 8, 694 A.2d

924.

Criticism can justifiably be directed at both parties' Rule 56(h) submissions in

this case. Defendants' original Rule 56(h)(1) statement of material facts consisted of 13

pages and 80 paragraphs. Plaintiffs then filed a 62-page Rule 56(h)(2) response, which

included 122 paragraphs of additional factual assertions that plaintiffs contended raised

disputed issues for trial, even though most of the same factual disputes in question had

already been identified in response to defendants' original Rule 56(h)(1) statement.

Defendants then filed a 112 page reply statement of material facts under Rule 56(h)(3.

Not inconsiderable portions of those lengthy submissions -on both sides -consist of

the kind of quibbling and pettifoggery that does not assist the coure

Ultimately, however, although the parties' statements of material facts are far

from "short and concise" as required by Rule 56(h), the court can discern the relevant

factual and legal disputes presented by the pending motion.

Breach of Contract - Count II of the Amended Complaint

The major dispute between the parties centers on whether Fisher and NCS

entered into a contract with the McCarthys to obtain any necessary DEP permits and

approvals for the construction of the residence. 3 A DEP permit was belatedly found to

be necessary because of the location of the residence in an erosion hazard area, and

plaintiffs allege that this required costly modifications to the residence.

2
Parties moving for summary judgment and parties opposing summary judgment should both
be reminded that .summary judgment procedure is best used for rifle shots rather than
howitzers or blunderbusses.
3
There is a separate issue whether the McCarthys contracted with both Fisher and NCS or only
with NCS. There is also a separate issue whether Edward McCarthy, as opposed to his wife
Robin, is entitled to assert claims in this action. Both of these issues are addressed below.

2
Defendants rely on a written contract between NCS and Robin McCarthy which

provides - in sections entitled "Scope of Services" and "Special Conditions" - for NCS

to prepare surveys and apply for zoning variances but does not contain any mention of

DEP permits or approvals. The McCarthys rely on a written document signed by Robin

McCarthy on the same date as the contract authorizing NCS to sign any applications,

permit requests, and other paperwork "in conjunction with obtaining final municipal

and state approvals." The problem with the McCarthys' argument is that even if the

authorization form is treated as part of the contract, it does not contain any promise or

undertaking by NCS to obtain DEP permits or approvals.

Nevertheless, the contract does not contain an integration clause. Moreover, it

provides that "[a]ny services provided beyond this scope of services are billed at an

hourly rate." It therefore contemplates the possibility that NCS will perform services

under the contract beyond the survey and zoning variance work expressly provided for.

The existence of the authorization form and the deposition testimony of Robin

McCarthy and Raymond LaBonte clearly demonstrate the existence of a factual dispute

for trial as to whether, as part of the contract, Fisher on behalf of NCS orally agreed to

obtain the necessary DEP permits.

Defendants point to a provision in the written contract that provides that the

contract can only be amended in a writing signed by both parties. However, because of

the contractual language quoted above, which contemplates that NCS may provide

services not enumerated in the contract, no amendment of the contract would have been

required for NCS to have undertaken to perform additional services, including services

to obtain any necessary DEP permits and approvals as alleged by plaintiffs.4

4
At a minimum, the contract is ambiguous on that issue, and plaintiffs would be entitled to
offer parol evidence as to the alleged agreement by NCS to obtain the DEP permit.

3
Summary judgment is therefore denied on plaintiffs' claim for breach of contract

in count II of the amended complaint.

Professional Negligence- Count I of the Amended Complaint

Even in the absence of any express warranties as to the quality of the work to be

performed, a party undertaking to perform professional services is made subject to an

implied warranty that the work will be performed in a reasonably skillful and

workmanlike manner and in accord with the standard of care applicable to members of

the profession. See,~ Gosselin v. Better Homes Inc., 256 A.2d 629, 639-40 (Me. 1969).

NCS argues that even if the McCarthys establish that NCS agreed to obtain a DEP

permit, the McCarthys cannot prevail on their claim of professional negligence because

they have not offered the expert testimony necessary to support such a claim.

Plaintiff have designated an expert who has testified as to the relevant standard

of care5 although he has not offered testimony that NCS violated the standard of care.

Nevertheless, so long as the standard of care is established by expert testimony,

plaintiffs may proceed on their claim of professional negligence if, under the specific

circumstances in question, the determination of whether there was a deviation from the

established standard of care is an issue that is sufficiently obvious that it can be decided

by the finder of fact without resort to expert testimony. See Department of Human

Services v. Earle, 481 A.2d 175, 179 (Me. 1984). A review of the summary judgment

record demonstrates that plaintiffs have made a sufficient factual showing to raise a

disputed issue of fact for trial as to whether there was an obvious deviation from the

5
The McCarthys also argue that defendants have admitted the relevant standard of care in their
answer. Paragraph 44 of defendants' answer, however, only agrees that there are professional
standards of care and does not adopt plaintiffs' formulation of those standards.

4
standard of care, and the court cannot conclude that NCS is entitled to judgment as a

matter of law on plaintiffs' professional negligence claim.

In addition, in response to hypotheticals posed by plaintiffs' counsel, plaintiffs'

expert has offered opinions that certain alleged actions would, if proven, constitute

deviations from the standard of care. Mooney Dep. 13-14, cited in Plaintiff's SMF C[ 59.

That alone is sufficient to preclude summary judgment on plaintiffs' professional

negligence claim. 6

Unfair Trade Practice Claim- Count III of Amended Complaint

To the extent that plaintiffs are arguing that NCS violated the Unfair Trade

Practice Act (UTPA), 5 M.R.S. §§ 207 and 213(1), simply by virtue of alleged breaches of

contract and alleged professional negligence, the court disagrees. However, plaintiffs

have submitted evidence demonstrating that there is a disputed issue for trial as to

whether Fisher repeatedly made false representations with respect to his progress in

obtaining a DEP permit. Whether those representations were made and, if so, whether

those representations constituted "unfair or deceptive acts or practices in the conduct of

a trade or business" within the meaning of 5 M.R.S. § 207 are issues for trial.

Promissory Estoppel - Count IV of the Amended Complaint

Promissory estoppel is a doctrine that is designed to allow enforcement of a

promise in situations when there has been detrimental reliance but no contract exists,

usually because of a failure of consideration. See Restatement (Second) of Contracts,

Chapter 4, Topic 2 ("Contracts Without Consideration") § 90(1). The difficulty with

6
There is an issue as to whether plaintiffs' expert can offer opinions as to the standard of care
with respect to surveyors or only with respect to engineers, but that will have to be sorted out at
trial.

5
plaintiffs' claim of promissory estoppel in this case is that plaintiffs are not seeking to

enforce an alleged promise from which NCS has walked away. Rather they are suing

NCS based on the theory that NCS unreasonably delayed in performing its contractual

obligation to submit an application for DEP approval and was professionally negligent

in performing its contract.

Plaintiffs' promissory estoppel claim may have been asserted to counter

defendants' argument that there was no consideration for any contract to obtain DEP

approvals. As noted above, however, the written contract expressly provides that

services provided beyond the scope of the written contract shall be billed at an hourly

rate. A promise to make future payment for services constitutes consideration.

Restatement (Second) of Contracts §75. As a result, if plaintiffs are successful in proving

that Robin McCarthy's contract with NCS included an undertaking by NCS to obtain

DEP permits or approvals, that aspect of the contract will not fail for lack of

consideration.

In any event, plaintiffs' promissory estoppel claim is inapposite and does not

present any disputed issues for trial. Defendants' motion for summary judgment is

granted with respect to that claim.

Implied Contract/ Quantum Meruit- Count V of the Amended Complaint

Count V of the amended complaint seeks recovery for "implied

contract/ quantum meruit." Quantum meruit, which is a theory under which a contract

is implied/ allows recovery when (1) services have been rendered by the defendant to

the plaintiff (2) with the knowledge and consent of the defendant (3) under

7
See Paffhausen v. Balano, 1998 ME 47 <JI 6, 708 A.2d 169.

6
circumstances which make it reasonable for the plaintiff to expect payment. Dinan v.

Alpha Networks Inc., 2013 ME 22 <]I 20, 60 A.3d 792.

In this case a quantum meruit theory is singularly inapplicable because there is

absolutely no evidence that the Murphys provided any services to the defendants.

Moreover, plaintiffs have offered no legal authority for the proposition that they can

hold defendants liable on some kind of implied contract theory if they cannot prove

that defendants agreed to undertake the task of obtaining any necessary DEP permits

and approvals as part of the NCS contract with Robin McCarthy.

Summary judgment shall therefore be entered for defendants on Count V of the

complaint.

liability of James Fisher as Opposed to Northeast Civil Solutions Inc.

Plaintiffs' contract and professional negligence claims are based on a contract

between Robin McCarthy and NCS. That contract contemplates that additional services

not. specified in the contract may be provided. Although James Fisher signed the

contract as President of NCS, that does not make him personally liable on the contract.

Moreover, with one exception, plaintiffs have not offered any evidence that Fisher ever

agreed to contract with Robin McCarthy in his individual capacity. 8

The exception is that in paragraph 51 of the answer to the amended complaint,

"defendants" (plural) admitted the allegation that they had a valid and enforceable

contract, while denying that the contract involved obtaining DEP permits and

approvals. This is a very slim reed but is probably enough of a basis to deny Fisher's

8
Robin McCarthy's deposition testimony that she contracted with Fisher as well as with NCS is
not sufficient. Notwithstanding Ms. McCarthy's belief that she was contracting with Fisher,
there would have to be some evidence that Fisher made some statement or otherwise
manifested his intent to be a party to the contract.

7
motion for summary judgment on plaintiffs' breach of contract and professional

negligence claims.

Moreover, liability under the Unfair Trade Practices Act attaches to any "person"

who engages in conduct that constitutes an unfair or deceptive act or practice. 5 M.R.S.

§ 213(1). All of plaintiffs' UTPA claims are based on false and deceptive representations

allegedly made by Fisher personally. If those claims are proven, Fisher as well as

Northeast Civil Solutions would be liable under the UTP A.

Status of Edward McCarthy

The undisputed evidence is that Robin McCarthy was the only person who

signed the contract and that she had all of the discussions with Fisher upon which

plaintiffs base their claims that Fisher and Northeast Civil Solutions undertook to obtain

any required DEP permits and approvals. Edward McCarthy did not sign the contract

and was not a party to the alleged May 2011 agreement that defendants' services would

address DEP issues. Defendants' SMF dated March 31, 2014 <JI<JI 10-11.9 Accordingly,

defendants are entitled to summary judgment as against Edward McCarthy on Counts I

and II of the amended complaint.

The only remaining issue is whether Edward McCarthy may join his wife in

asserting UTPA claims. In order to bring a claim under the UTPA, a plaintiff must be a

person who "purchases or leases goods, services or property ... for personal family or

household purposes." 5 M.R.S. § 213(1). In this case the undisputed evidence is that it

was Robin McCarthy, and not Edward McCarthy, who purchased services from NCS

9
Although those paragraphs were qualified in plaintiffs' SMF, the qualifications do not raise
any genuine factual disputes as to the status of Edward McCarthy as a non-contracting party.

8
and allegedly from James Fisher. This excludes Edward McCarthy from recovery under

theUTPA.

Summary judgment is therefore granted dismissing all claims asserted on behalf

of Edward McCarthy. Plaintiff Robin McCarthy's claims on counts I, II, and III of the

amended complaint remain for trial.

The entry shall be:

As to plaintiff Sybil (Robin) McCarthy, defendants' motion for summary
judgment is denied as to counts I, II, and III of the amended complaint but is granted
with respect to counts IV and V. As to plaintiff Edward McCarthy, defendants' motion
for summary judgment is granted as to all counts of the amended complaint.

The Clerk is directed to incorporate this order in the docket by reference
pursuant to Rule 79(a).

Dated: July 10 2014

Thomas D. Warren
Justice, Superior Court

9
CL_..:<.K OF COURTS
Cumberland County
205 Newbury Street, Ground Floor
Portland, ME 04101

PLAINTIFFS ATTORNEYS

THIMI MINA ESQ
ALFRED FRAWLEY IV, ESQ
MCCLOSKEY MINA & CUNNIFF LLC
12 CITY CENTER
PORTLAND ME 04101

CLERK OF COURTS
Cumberland County
205 Newbury Street, Ground Floor
Portland, ME 04101

DEFENDANTS ATTORNEY

ANDREW SPARKS ESQ
DRUMMOND & DRUMMOND
ONE MONUMENT WAY
PORTLAND ME 04101

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810504. Public record. Not legal advice.