statutory action for timber trespass
How later courts described this case
- statutory action for timber trespass
Written by the judges who cited it.
The opinion
STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO.: BCD-RE-18-01./
ARS ARCHITECTURE, P.A., )
)
Plaintiff )
)
V. )
)
MERRILL DRIVE, LLC )
)
and ) ORDER GRANTING IN PART AND
) DENYING IN PART DEFENDANTS'
WINTERSTREET,LLC ) MOTION FOR SUMMARY JUDGMENT
)
and
)
JACOB DOWLING )
)
Defendants )
)
)
This case involves a dispute over design and architectural services allegedly
performed by Plaintiff, ARS Architecture, P.A., for the benefit of Defendants, and for
which ARS claims it has not been paid.
BACKGROUND
The case has been the subject of prior motion practice by some of the parties.
Defendants Merrill Drive, LLC and Jacob Dowling previously moved to dismiss some or
all of the claims against them. Plaintiff in turn moved to amend the complaint. By Order
dated March 27, 2018 (docketed March 28, 2018), the Court granted Dowling's motion to
dismiss the mechanics lien claim against him; otherwise denied his and Merrill Drive's
motion to dismiss; and granted Plaintiffs motion to amend. Plaintiff filed its amended
complaint on March 29, 2018 (and Defendants filed their answer, affirmative defenses, and
counterclaims on April 19, 2018). Plaintiffs amended complaint asserts a mechanics lien
claim (Count 1) against Merrill Drive, and claims for breach of contract, quantum meruit,
and unjust enrichment (Counts 2, 3 and 4) against all three Defendants: Merrill Drive LLC,
Winter Street LLC, and Jacob Dowling.
Now pending before the Court is Defendants' Motion for Summary Judgment. 1
Although captioned as a Motion for Summary Judgment, Defendants' motion only seeks
partial summary judgment. Defendant Merrill Drive LLC seeks summary judgment on
Count 1, which is the mechanics lien claim. Merrill Drive does not seek summary
judgment on Counts 2, 3, and 4, which are the claims for breach of contract, quantum
meruit, and unjust enrichment.2 Defendants Winter Street LLC and Jacob Dowling seek
summary judgment on Counts 2, 3, and 4, which are all the claims against them. Plaintiff
has not sought summary judgment on the four counterclaims.
For the reasons set forth below, Defendants' Motion is Granted in Part and Denied
in Part. Merrill Drive's request for summary judgment on Count 1, the mechanics lien
claim, is Denied. Winter Street and Jacob Dowling' s request for summary judgment on all
counts against them is Granted. The case will now move forward on Plaintiffs four counts
against Defendant Merrill Drive, and on Counterclaim Plaintiffs' four counterclaims
against ARS Architecture.
1 Pursuant to M.R. Civ. P. 7(b)(7), the Court exercises its discretion to decide the motion without a hearing.
2
In Defendants' Reply memorandum-filed after Plaintiff failed to oppose Defendants' Statement of Facts
in Support of Motion for Summary Judgment-Defendants argue that Plaintiff's failure to oppose their
Statement of Facts means Merrill Street LLC should also be entitled to partial summary judgment on Counts
2, 3, and 4. However, Defendants' Motion for Summary Judgment does not explicitly seek summary
judgment on Counts 2, 3, and 4, and Plaintiff therefore had no notice that those counts against Merrill Street
were at risk. It would thus be unfair to now extend Defendants' Motion for Summary Judgment to Counts
2, 3 and 4 against Merrill Street. Even if the Court were to extend the Motion to those counts against Merrill
Street, the Court would deny the Motion because as to those counts against Merrill Street, genuine issues of
fact remain.
2
FACTS
The undisputed material facts establish the following. ARS Architecture, P.A.
("ARS") is a firm located in Knox County providing design and architecture services; its
president is Eric Allyn. Merrill Drive LLC ("Merrill Drive") and Winter Street LLC
("Winter Street") are both limited liability companies with operations in Knox County.
Jacob Dowling ("Dowling") is a member of both Merrill Drive and Winter Street. Merrill
Drive is the sole owner of property located at 15 Merrill Drive, Rockland, Maine (the
"Property"). Merrill Drive planned to renovate the Property into a facility to provide secure
storage for fine art and antiques. ARS proposed to and actually provided certain design and
architectural services related to the Property. To the extent payments were made for
services provided by ARS, those payments were made by Merrill Drive.
The value provided by ARS was confined to Merrill Drive. ARS did not provide
any materials, labor, or services to Winter Street or to Jacob Dowling. ARS did not provide
anything of value or benefit to Winter Street or to Jacob Dowling. To the extent Dowling
received any benefit, it was only an indirect benefit because he was an owner of Merrill
Drive. To the extent there was an enforceable contract to provide services related to the
Property, ARS asserts the contract is binding only on Merrill Drive and no other parties.
Winter Street and Dowling were not parties to a contract with ARS regarding the Property.
On July 26, 2017, ARS filed a mechanics lien on the Property in the Knox County
Registry of Deeds, based on services provided through a binding contract that had a total
estimated contract price of $171,000, but for which $101,503.48 was still owed after all
credits were given. The jurat on the mechanics lien affidavit provides as follows:
3
"Personally appeared the above named Eric E. Allyn, and made the above statements under
oath based on their own knowledge, information and belief and insofar as information and
belief are concerned, they believed them to be true."
LEGAL STANDARD
"Summary judgment is no longer an extreme remedy." Curtis v. Porter, 2001 ME
158, ~ 7, 784 A.2d 18. Summary judgment is granted to a moving party where "there is no
genuine issue as to any material fact" and the moving party "is entitled to judgment as a
matter oflaw." M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome of
the case, and there is a genuine issue when there is sufficient evidence for a fact-finder to
choose between competing versions of the fact." Lougee Conservancy v. CityMortgage,
Inc., 2012 ME 103, ~ 11, 48 A.3d 774 (quotation omitted).
DISCUSSION
Merrill Street attacks the mechanics lien claim against it on two grounds: (1) the
amount claimed as owed exceeds the actual amount owed, and (2) the jurat used on Eric
Allyn's affidavit filed in support of the lien is fatally defective. For the reasons discussed
below, both arguments fail.
Merrill Street advances its first argument based on 10 M.R.S. § 3254. That
provision of the mechanics lien statute provides as follows: "No inaccuracy in such a
statement relating to said property, if the same can be reasonably recognized, or in stating
the amount due for labor, materials or services invalidates the proceedings, unless it
appears that the person making it willfully claims more than his due." 10 M.R.S. § 3254.
Under Section 3254, inaccuracy in a lien statement by itself is insufficient to invalidate a
lien claim. Platz Assocs. v. Finley, 2009 ME 55, ~ 19, 973 A.2d 743. Willfulness is an
4
essential element of Section 3254. Id.
The term "willfully" in Section 3254 is undefined. In other areas of Maine law, the
term "willfully" is intended "to embrace conduct on the part of the [party] which displays
an utter and complete indifference to and disregard for the rights of others." Guilmet v.
Galvin, 597 A.2d 1348, 1349 (Me. 1991) (statutory action for timber trespass). Willfulness
has been equated with gross negligence. See Leadbetter v. Family Fun Mgmt., No. CV-17
173, 2018 Me. Super. LEXIS 34, at* 17 (Feb. 6, 2018) ("The concept of 'gross negligence'
is a 'synonym for willful and wanton injury' and has been described as the 'equivalent of
wanton or reckless misconduct."') (quoting Blanchard v. Bass, 153 Me. 354, 361, 139 A.2d
359, 363 (1958); Bouchard v. Dirigo Fire Ins. Co., 114 Me. 361, 365, 96 A. 244, 246
(1916)); see also WahlcoMetroflex, Inc. v. Baldwin, 2010 ME 26, ~ 16, 991 A.2d 44 (in the
context of determining whether a corporate officer is entitled to the protection of the
business judgment rule, "[g]ross negligence is defined as 'reckless indifference to or a
deliberate disregard of the whole body of stockholders or actions which are without the
bounds of reason.'"). The determination of whether conduct is willful is a question of fact.
See Guilmet, 597 A.2d at 1349.
Defendants set forth several dozen statements of fact for the purpose of establishing
the inaccuracy of the amounts Plaintiff claims are due. 3 Based on these asserted
3
Defendants filed a Statement of Material Facts in Support of Motion for Summary Judgment comprised of
sixty-four numbered statements. Plaintiff did not timely file an opposing statement. See the Court's Order
dated February 12, 2019, denying Plaintiff's Motion for Leave to File Opposing Statement of Material Fact.
Thus, any facts contained in Defendants' Statement of Material Facts that are material to the Court's decision
on summary judgment are deemed admitted. M.R. Civ . P. 56(h)(4). In this case, the statements of fact
pertaining to the alleged inaccuracies in the amounts sought and amounts owed are immaterial to the Court's
summary judgment determination based on the willfulness issue. Accordingly, there is no occasion or reason
to deem those facts admitted, and the Court declines to make any findings of fact regarding the contested
invoices, amounts paid, or amounts owed . In any event, since the moving parties' motion for summary
judgment is denied in part, any facts deemed admitted solely for the summary judgment motion have no
preclusive effect at trial. M.R . Civ. P. 56(d).
5
inaccuracies, Merrill Drive argues that Plaintiff willfully seeks "double recovery" and
amounts based on "unconscionable budget increases." However, Section 3254 plainly
provides that "no inaccuracy" invalidates the lien claim, and thus the element of willfulness
must be proven by something other than--or in addition to-the asserted inaccuracies.
Defendants offer no statements of fact-apart from the asserted inaccuracies-establishing
that Plaintiff knew he was claiming more than his due, or acted with reckless indifference
to or deliberate disregard for the rights of Merrill Drive.
The mechanics lien statute should be "interpret[ed] liberally" in favor of the lien
holder. HCI Corp. v. Voikos Constr. Co., 581 A.2d 795, 798 (Me. 1990). In that light,
Section 3254 is akin to an affirmative defense, and requires a defendant moving for
summary judgment on a mechanics lien claim based on 10 M.R.S. § 3254 to prove
willfulness. See, e.g., Platz Assoc., 2009 ME 55, ,r 21, 973 A.2d 743 (in response to
plaintiff's motion for summary judgment, defendant in a mechanics lien claim failed to
generate an issue of fact on willfulness); see also Answer, Affirmative Defenses, and
Counterclaims of Defendants, section entitled "Affirmative Defenses," ,r 17. Here, as part
of the Motion for Summary Judgment, Merrill Drive has not proven willfulness ·as an
undisputed fact. At most, Merrill Drive in essence asks the Court to infer willfulness based
on what Merrill Drive asserts is the magnitude of what it asserts is the difference between
what was paid and what is owed. 4 On summary judgment sought by Defendants, and given
the plain text of 10 M.R.S. § 3254, the Court is unwilling to draw such an inference.
Accordingly, Merrill Drive's challenge to Count 1 based on 10 M.R.S. § 3254 is denied.
4
If a plaintiff were moving for summary judgment, such a strategy might be sufficient to generate a dispute
of material fact on the element of willfulness in order for a defendant to withstand summary judgment, see
Platz Assoc ., 2009 ME 55, ~ 21,973 A.2d 743, but it is not enough for a defendant moving for summary
judgment to satisfy its burden of proof.
6
Merrill Street advances its second argument-that of a supposedly defective jurat
based on Pineland Lumber Co. v. Robinson, 382 A.2d 33 (Me. 1978). However, the jurat
found to be defective in Pineland Lumber is significantly different than the jurat used on
Eric Allyn's affidavit in this case. Id at 35-36. The jurat used in this case tracks the
language of M.R. Civ. P. 4A(i), and satisfies the basic "subscribed and sworn to"
requirement of the mechanics lien statute. 10 M.R.S. § 3253(1 )(A). Accordingly, for this
additional reason, Merrill Drive's motion for summary judgment on Count 1 is denied.
Winter Street and Dowling move for summary judgment on the breach of contract,
quantum meruit, and unjust emichment counts. Here, Plaintiffs failure to controvert the
facts contained in Defendants' Statement of Material Facts5 that are material to these counts
is fatal to Plaintiffs claims against these two Defendants. The uncontroverted facts
establish conclusively that Plaintiff performed no services for these two Defendants,
provided nothing of value to these two Defendants, and did not contract with either of these
two Defendants. Furthermore, Plaintiff has not come forward with undisputed facts to
establish its prima facie case with regard to each element of these claims. For instance,
Plaintiff has failed to come forward with any basis to establish a contract claim against
either of these two Defendants, and the undisputed facts foreclose any peri-contract claims
against them. To survive a defendant's motion for summary judgment, the plaintiff must
establish a prima facie case for every element of the plaintiffs cause of action. Oceanic
Inn, Inc. v. Sloan's Cove, LLC, 2016 ME 34, ~ 26, 133 A.3d 1021. "When a plaintiffhas
1
the burden of proof on an issue, a court may properly grant summary judgment in favor of
the defendant if it is clear that the defendant would be entitled to a judgment as a matter of
5 See the Court's Order dated February 12, 2019.
7
law if the plaintiff presented nothing more than was before the court" when the motion was
decided. Reliance Nat'! Indem. v. Knowles Indus. Servs., Corp., 2005 ME 29, ~ 9,868 A.2d
220. Consequently, Defendants' Motion for Summary Judgment is granted in favor of
Winter Street and Jacob Dowling. Summary judgment for Winter Street, LLC and Jacob
Dowling is entered on Counts 2, 3, and 4 of the Complaint.
CONCLUSION
Merrill Drive, LLC is denied summary judgment on Count 1 of the Complaint.
Winter Street, LLC and Jacob Dowling are granted summary judgment on Counts 2, 3, and
4 of the Complaint. The case will now proceed on ARS Architecture's four remaining
counts against Merrill Drive, and on Counterclaim Plaintiffs' four counterclaims against
ARS Architecture.
SO ORDERED.
The Clerk is directed to enter this Order on the civil docket by reference pursuant
to M.R. Civ. P. 79(a).
t..-1/-
Dated: - -- - -~ 1
't0/~ - --
Entered on the Docket: af/.aZI· If
Copies sent via Mail_ EleclronicaHy v""'
8
STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss. LOCATION: PORTLAND
ARS ARCHITECTURE, PA, )
)
Plaintiff, )
)
v. ) DOCKET NO. BCD-RE-18-01 /
)
MERRILL DRIVE, LLC, et al., )
)
Defendants. )
- -- - - -- - - -- -- - - )
)
ARS ARCHITECTURE, PA, )
)
Plaintiff, )
) DOCKET NO. BCD-CV-18-03 /
V. )
)
WINTER STREET, LLC, et al., )
)
Defendants.
COMBINED ORDER ON PLAINTIFF'S MOTIONS TO WITIIDRA W
AND AMEND ADMISSIONS
Pending before the Court in the two related and above-captioned matters is Plaintiff ARS
Architecture's ("ARS") motions to withdraw and amend deemed admissions. Pursuant to its
discretionary authority under M .R. Civ. P. 7(b)(7) the Court rules on the motions without hearing.
BACKGROUND
On March 2, 2018, the Court heard oral argument on motions to dismiss in the above
captioned matters. At the hearing it was brought to the Court's attention that Defendants had served
a request for admissions on ARS pursuant to M.R. Civ. P. 36(a) in both cases and that ARS had
failed to respond to these requests within the thirty-day deadline imposed by the rule. As such, the
requested admissions are deemed admitted under the rule, subject to the provisions of M.R. Civ.
P. 36(b). M.R. Civ. P. 36(a). The Comt suggested that ARS could file a motion to request leave to
withdraw its admissions and, if granted, respond substantively to the Defendants' requests. ARS
thereafter filed the instant motions.
TANDARD OF REVIEW
"Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court
may permit withdrawal or amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to satisfy the comi that
withdrawal or amendment will prejudice the party in maintaining the action or defense on the
merits." M.R. Civ. P. 36(b). "[F]ailure to respond may not always be fatal; the court may, on
motion, allow a party to withdraw or amend a deemed admission[.]" 2 Harvey & Merritt, Maine
Civil Practice § 36:3 at 728 (3d, 2011 ed.) "The kind of prejudice contemplated by Rule 36(b)
involves unavailability of key witnesses or last-minute difficulty in obtaining evidence on an issue
thought to have been resolved by the request for admissions." Id. (citing Brook Vil!. N Assocs. v.
Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982)).
DISCUSSION
At the hearing and in its written motion, ARS was frank that its failure to respond to the
Defendants' requests for admissions was a result of its counsel's "mistaken impression that all
discovery requests were stayed pending a dispositive [m]otion." (Pl's Mot. Withdraw~ 4.) 1 ARS
now asks this Court "not to excuse the error of its counsel" but "respectfully requests that ... [it]
be permitted to withdraw and amend those deemed admissions because doing so will subserve the
presentation of the merits of this proceeding and will not prejudice Defendants[.]" (Id. ~ 11.) The
main thrust of Defendants' argument is that the deemed admissions relate to factual issues that
1 Plaintiffs motions were virtually identical in both docket numbers.
2
should not be in controversy and that ARS' s counsel has already admitted to the truth of those
admissions before this Court at the March 2 hearing. ARS vehemently disputes that its deemed
admissions relate to uncontroversial facts and could indeed foreclose one of its main arguments as
to the personal liability of Defendant Jacob Dowling.
However, the standard by which this Court must review ARS's motion does not relate to
the substance of the admissions. Rather, the burden is on the "the party who obtained the admission
... to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the
action or defense on the merits." M.R. Civ. P. 36(b). Whether "some of the requests went to the
ultimate issue, involved matters that were contested . . . , entailed legal conclusions or were
inadmissible at trial" is irrelevant to this inquiry. See Diversified Comm 'ns, Inc. v. Godard, 549
A.2d 362, 363 (Me. 1988). The type of"prejudice" contemplated by the rules is not merely whether
the deemed admissions are helpful to the Defendants' case; under such a standard, motions to
withdraw or amend deemed admissions would virtually never be granted. Instead, the type of
prejudice contemplated by the rule "involves unavailability of key witnesses or last-minute
difficulty in obtaining evidence on an issue thought to have been resolved by the request for
admissions." 2 Harvey & Merritt, Maine Civil Practice§ 36:3 at 728 (3d, 2011 ed.).
Defendants make no showing of this kind ofprejudice in their opposition to ARS's motion.
Indeed, their argument as to prejudice is circular: "Defendants and the Court would be prejudiced
by the withdrawal of admissions because they would contradict what ARS already has judicially
admitted ...." (Defs Opp'n to Pl's Mot. Withdraw 6.)2 To the extent that Defendants have relied
on ARS' s deemed admissions with the knowledge that ARS intended to file the instant motions,
which are within the Court's discretionary authority and reviewed under a permissive standard,
2 In No. BCD-RE-18-01.
3
that prejudice is outside the scope of what the Court should properly consider upon a motion
brought pursuant to M.R. Civ. P . 36(b) to withdraw or amend deemed admissions.
In sum, Defendants have failed to meet their burden to show that they would be prejudiced
in the manner contemplated by M.R. Civ. P. 36. The Court exercises its discretion and GRANTS
Plaintiff ARS's motions to withdraw and amend deemed admissions.
CONCLUSION
Based on the foregoing it is hereby ORDERED that:
Plaintiff ARS's motions to withdraw and amend deemed admissions in No. BCD-RE-18
01 and No. BCD-f V.18-03 are GRANTED. Plaintiff shall serve responses to the requests to admit
within 21 days of the date of this order.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by
reference. M.R. Civ. P. 79(a).
Dated:
Richard Mulhern
Judge, Business and Consumer Court'
~~l~recJ on the Docket: 6,.)$ / t
pes sent via Mail_ Eler:11onlr.11uvY
4
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. BUSINESS AND CONSUMER COURT
LOCATION: PORTLAND
DOCKET NO. BCD-RE-18-01 V
ARS ARCHITECTURE, PA, )
)
Plaintiff, ) COMBINED ORDER ON DEFENDANT
) MERRILL_DRIVE, LLC' S MOTION TO
V. ) DISMISS COUNT I AND COUNT II,
) DEFENDANT JACOB DOWLING'S
MERRILL DRIVE, LLC, et al., ) MOTION TO DISMISS AND
) PLAINTIFF'S SECOND MOTION TO
Defendants. ) AMEND COMPLAINT
This matter comes before the Court on Defendant Merrill Drive, LLC's ("Merrill Drive")
motion to dismiss Count I and Count II of-and Jacob Dowling's ("Dowling") (collectively,
"Defendants") motion to dismiss in toto-Plaintiff ARS Architecture, PA's ("ARS") Complaint
pursuant to M.R. Civ. P. 12(b)(6). ARS opposed the motions, and Defendants timely replied. The
Court heard oral argument on the motions on March 2, 2018. All parties were represented
through counsel and were heard. Plaintiffs Second Motion to Amend Complaint was filed after
the argument and is opposed by Defendants.
PROCEDURAL POSTURE AND FACTUAL BACKGROUND
This is a dispute over work that was allegedly done by ARS for the benefit of
Defendants, and for which ARS claims it has not been paid. ARS claims it is owed $101,503.48
for this work. ARS filed its four-count Complaint on September 5, 2017, seeking recovery for
breach of contract (Count II), as well as equitable relief under a theory of quantum meruit (Count
III) and unjust enrichment (Count IV). ARS also seeks to recover under a purported mechanic's
lien (Count I) on the Defendants' premises. A copy of the mechanic's lien filed with the Knox
County Registry of Deeds (the "Mechanic's Lien") is attached to the Complaint as Exhibit B.'
Merrill Drive seeks dismissal of only Count I and Count II. Dowling seeks dismissal of the entire
Complaint.
Jacob Dowling is allegedly Merrill Drive's owner. (Pl's Comp!. ~ 4.) 2 ARS alleges that
its contract for design and architectural services was with one or both Defendants, and that the
work was done for the benefit of both.
STANDARD OF REVIEW
In reviewing a motion to dismiss under Rule l 2(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 complaint is viewed "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." Id. (quoting Saunders v. Tisher, 2006 ME 94, ~ 8, 902
A.2d 830). "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not
entitled to relief under any set of facts that he might prove in support of his claim." Id.
DISCUSSION
I. THE EXHIBITS A TTACHED TO THE COMPLAINT DO NOT DEFEAT_
ARS'S BREACH OF CONTRACT CLAIM
Defendants' principal argument is that ARS did not have a contract with either Merrill
Drive or Dowling, and urge the Court to rely on Exhibit A,3 an attachment to the Complaint, to
rule that ARS has failed to state a claim for breach of contract against them. (Merrill Drive Mot.
Dismiss 4, Dowling Mot. Dismiss 7-8.)
' Because this document was attached to the pleading, the Court may consider it on this motion to dismiss without
converting the motion to one for summary judgment. M.R. Civ. P. lO(c). See also Moody v. State Liq. & Lott.
Comm 'n, 2004 ME 20, ~ 10, 843 A.2d 43.
'The Court notes that there are two paragraphs numbered 4 in the Complaint. For the sake of simplicity, the Court
simply treats both paragraphs as a single paragraph, numbered 4.
' See note l supra.
2
Exhibit A is titled "Proposal for Design Services: 15 Merrill Drive, Rockland, Maine."
Page 14 of Exhibit A includes a signature line for "Jake Dowling, Winter Street LLC." The
document is signed by a Joseph Russillo for ARS, but the signature line for "Jake Dowling,
Winter Street LLC" is blank. At oral argument, ARS asserted that Exhibit A contains the
material terms of the contract that it alleges it had with Merrill Drive and Dowling. Citing law
from other jurisdictions, Defendants argue that ARS has therefore "pleaded itself out of court"
by attaching Exhibit A, presumably because the signature line on page 14 of Exhibit A renders
the exhibit inconsistent with ARS's allegation that it had a contract with Merrill Drive or
Dowling individually. (Merrill Drive Mot. Dismiss 7, Dowling Mot. Dismiss 10-11.) See
McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006); Groeb Farms, Inc. v. Alfred L. Wolff,
Inc., No. 08-CV-14624, 2009 U.S. Dist. LEXIS 15395, at *9 (E.D. Mich. Feb. 27, 2009); Wilson
v. O'Brien, No. 07 C 3994, 2007 U.S. Dist. LEXIS 91555, at *7 (N.D. Ill. Dec. 13, 2007).
The Court declines to accept Defendants' presumption. If the Court is to adopt any
presumption when deciding a motion to dismiss, it must be to the plaintiffs advantage. See
Napieralski v. Unity Church of Greater Portland, 2002 ME 108, ~ 4, 802 A.2d 391 (quoting In
re Wage Payment Litig., 2000 ME 162, ~ 3, 759 A.2d 217) (courts must "examine the complaint
in the light most favorable to the plaintiff' when deciding a motion to dismiss). In fact, one of
the cases cited by Merrill Drive implicitly applied this principle in denying the defendant's
motion to dismiss the plaintiffs claim for breach of contract. Groeb Farms, Inc., No. 08-CV
14624, 2009 U.S. Dist. LEXIS 15395, at *8-10 ("A party may allege factually inconsistent
theories of recovery . . . Plaintiffs Complaint could be read as pleading factually inconsistent
theories ... [or] as simply providing detail .... Plaintiffs breach of contract claim survives
under either interpretation.") (emphasis removed).
3
ARS explicitly alleges that it had a contract with Defendants. (PJ's Comp!. ,r,r 5-7, 17
19.) Other factual allegations in the Complaint could give rise to the inference that ARS had an
enforceable agreement with Defendants. (Id.) ARS will eventually have to reconcile the
signature line of Exhibit A with its assertion at oral argument that Exhibit A contains the terms
of the alleged agreement between ARS and Defendants, but it is not required to do so to survive
this motion to dismiss. The Court cannot rule as a matter of law that between the allegations in
the Complaint and Exhibit A there is no set of facts that would entitle ARS to relief for breach of
contract. See Bonney, 2011 ME 46, ,r 16, 17 A.3d 123.
Dowling raises additional grounds for his dismissal that are unique to him and are
discussed in Part II of this Order, infra. However, Merrill Drive relies exclusively on this Court
ruling that Exhibit A mandates dismissal of Count II. Because this Court rules otherwise, Merrill
Drive's motion to dismiss Count II is DENIED. Merrill Drive's motion to dismiss Count I is
premised on the Court dismissing Count II. (Merrill Drive Mot. Dismiss 7 .) Because the Court
determines that ARS has stated a claim in Count II, Merrill Drive's motion to dismiss Count I is
also DENIED.
II . DOWLING'S MOTION TO DISMISS
A. Count I is Dismi sed Against Dowling
ARS has conceded that its lien claim should be dismissed as to Dowling in his individual
capacity. (PJ's Opp. Mot. Dismiss 6.) The Court therefore GRANTS Dowling's motion to
dismiss as to Count I.
B. ARS Has Stated A CJaim for Breach of Contract Against Dowling
Dowling urges dismissal of Count II based on the "conspicuous absence of any legally
binding contract concluded between ARS and Mr. Dowling." (Dowling Mot. Dismiss 8.)
4
Dowling's position is that he was never a party to any contract ARS may have had with either
Merrill Drive or Winter Street. A person who is not a party to a contract cannot be held liable for
breach of that contract. Cty. Forest Prods. v. Green Mt. Agency, Inc., 2000 ME 161, ,r 42, 758
A.2d 59 (citing Mueller v. Penobscot Valley Hosp., 538 A.2d 294, 299 (Me. 1988)).
However, the issue before the Court on this motion is whether ARS has alleged facts that
are sufficient to state a claim for breach of contract, not whether a contract concluded between
ARS and Dowling. ARS's Complaint alleges that it had an agreement with Dowling whereby it
would provide architectural services in return for payment, and that Dowling has not paid as
agreed. (Pl' s Comp I. ,r,r 4-8, 17-19 .) See Me. Energy Recovery Co. v. United Steel Structures,
Inc., 1999 ME 31, ,r 7, 724 A.2d 1248 (breach of contract elements). ARS has thus stated a claim
for breach of contract against Dowling. The Court therefore DENIES Dowling's motion to
dismiss as to Count II.
C. A Plaintiff May Allege the Existence of a Contract and Seek Recovery in
Equity in the Same Pleading
Dowling argues that Count III and Count IV (the "equitable claims") must be dismissed
because ARS "has pleaded itself out of court" as to these counts by alleging the existence of a
binding contract in the same pleading. (Dowling Mot. Dismiss 8-9.) Dowling's argument is
based on the rule that recovery for quantum meruit or unjust enrichment is limited to those
situations in which "there is no contractual relationship." Nadeau v. Pitman, 1999 ME 104, i!l4,
731 A.2d 863. See also June Roberts Agency, Inc. v. Venture Properties, Inc., 676 A.2d 46, 49 n.
1 (Me. 1996).
Maine law allows a plaintiff to plead alternative, and even inconsistent, claims for relief.
M.R. Civ. P. 9(e)(2). The June Roberts Agency Court clarified that although the existence of a
contractual agreement "precludes recovery on a theory of unjust enrichment," a plaintiff "is not
5
precluded from pleading both theories because a factfinder may find that no contract exists and
may still award damages on the theory of unjust enrichment." June Roberts Agency, Inc., 676
A.2d 46, 49 n. 1 (Me. 1996) (emphasis added). The Court declines to deviate from this
controlling authority. That ARS has alleged the existence of a binding agreement between itself
and Dowling does not foreclose its ability to pursue equitable relief.
D. Count III and Count IV State A Claim Against Dowling in His Individual_
Capacity
Dowling next urges dismissal of the equitable claims on the grounds that his involvement
in this dispute was exclusively in his capacity as a member/ manager of Merrill Drive and not as
an individual. (Dowling Mot. Dismiss 7-8, 10-11.)
A LLC is "an entity distinct from its members." 31 M.R.S. § 1504(1). A member of a
LLC "is not liable, solely by reason of being a member" for a liability of the LLC. 31 M.R.S. §
1544. In order to recover in quantum meruit or unjust enrichment against a defendant, a plaintiff
must prove that the defendant received a benefit from the plaintiff. See Cummings v. Bean, 2004
ME 93, 19,853 A.2d 221; Smith v. Cannell, 1999 ME 19, 112, 723 A.2d 876.
Dowling points to language in the Complaint and Mechanic's Lien that suggests ARS's
work was for the benefit of Merrill Drive, and not necessarily Dowling as an individual. (Pl's
Comp!. 1 5; Ex. B 114, 7.) Elsewhere, however, the Complaint and the Mechanic's Lien allege
that both Defendants benefitted from ARS's work. (Pl's Comp!. 11 6, 13, 21, 25; Ex. B. 1 5.)
Dowling argues that this renders the Complaint inconsistent, with the upshot that the inconsistent
allegations defeat essential elements of ARS's claims in Count III and Count IV (i.e. that
Dowling as an individual received some benefit from ARS's labors), mandating dismissal.
(Dowling Mot. Dismiss 10-11.)
The Court disagrees. See M.R. Civ. P. 9(e)(2). ARS's allegations against Merrill Drive do
6
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not negate those allegations that are addressed to the Defendants more broadly. To the extent that
there is any ambiguity regarding who benefitted from ARS's work, that ambiguity must be
resolved in favor of the plaintiff on a motion to dismiss. See Bonney, 2011 ME 46, ~ 16, 17 A.3d
123.
ARS has stated a claim against Dowling individually for equitable relief under a theory of
quantum meruit or unjust enrichment. The Court therefore DENIES Dowling's motion to dismiss
as to Count III and Count IV.
CONCLUSION
Based on the foregoing it is hereby ORDERED:
That Defendant Merrill Drive's motion to dismiss Count I and Count II is DENIED.
That Defendant Dowling's motion to dismiss is GRANTED IN PART AND DENIED IN
PART. Dowling's motion is GRANTED as to Count I. Dowling's motion is DENIED as to
Count II, Count III, and Count IV.
That Plaintiffs Second Motion to Amend Complaint is GRANTED.
Defendants shall answer Plaintiffs Ame;ded Complaint within 21 days. The matter
will be set for an initial case management conference after that.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by
reference. M.R. Civ. P. 79(a).
Judge, Business and Consumer Court
Entered on \he Docket: 8·() a !{ ~1
Copies $en! via Mail _. Eleclronicattv7
7
BCD-RE-2018-01
ARS Architecture, P.A.
v.
Merrill Drive, LLC.,
and Jacob Dowling
Plaintiff
ARS Architecture, P.A. Chad Cloutier, Esq.
and Nicholas Brown, Esq.
18 Talbot Avenue
Rockland, ME 04841
Defendants
Merrill Drive, LLC., Daniel Murphy, Esq
and Jacob Dowling PO Box 9729
I 00 Middle St
Portland, ME 04104-5029
'