July 9, 2014
JEANNETTE M. ROSS, Plaintiff,
CHRISTOPHER J. PONTE, et al., Defendants
ORDER ON PLAINTIFF'S MOTION TO AMEND
John O'Neil, Jr., Justice, Superior Court.
Plaintiff moves the court to amend its complaint in order to add a claim pursuant to the Unfair Trade Practices Act and comply with the Settlement Offer requirements as laid out in 5 M.R.S. § 213(1-A). Defendant opposes Plaintiff's Motion to Amend arguing that Plaintiff's Motion is untimely and that Plaintiff's requested amendment has no legal merit.
Plaintiff moves to amend the complaint to add a UTP A claim based upon conversations that occurred between Defendant Gannon and Defendants Mr. arid Mrs. Ponte. Plaintiff's proposed amendment asserts that after signing the agreement, the Pontes realized that their listing agreement with Defendant Woodman inaccurately stated that the house's foundation was a concrete slab and asked Defendant Woodman on at least two occasions to correct the listing. Plaintiff contends that Defendant at first did not correct the error, and then refused to do so. Plaintiff contends that she was not aware of the conversations prior to filing this action and therefore could not have included this count with the original complaint. Furthermore, Plaintiff contends that Defendant will not be prejudiced by any need for further discovery based solely on this amendment.
Defendant argues that even if Plaintiff had been unaware of these conversations at the time the Complaint was filed, Plaintiff was put on notice of the conversations in Defendants Pontes' Crossclaim against Defendants Coldwell and Ms. Gannon filed on Sept. 4, 2012 and then confirmed in Ms. Gannon's deposition on July 26, 2013. Defendant argues that the Motion to Amend is untimely because there is no explanation as to why Plaintiff waited until April 9, 2014 to file. Furthermore, Defendant argues that the amendment requested does not have legal merit and therefore should not be allowed. Defendant argues that Plaintiff's counts VI, VII, and VIII allege similar claims, and that any damage sustained by Plaintiff was due to reliance upon an alleged misrepresentation of a concrete slab, not by a conversation she was not a party to.
The court will allow amendment of pleadings " when justice so requires." Me. R. Civ. P. 15. Where a proposed amendment would not survive a motion to dismiss, the court may deny the motion to amend.
Glynn v. City of S. Portland , 640 A.2d 1065, 1067 (Me. 1994). Plaintiff's proposed amendment is a UTPA claim. The UTPA protects consumers from unfair and deceptive practices in trade and commerce. 5 M.R.S. § 207 (2013) " To justify a finding of unfairness, the act or practice: (1) must cause, or be likely to cause, substantial injury to consumers; (2) that is not reasonably avoidable by consumers; and (3) that is not outweighed by any countervailing benefits to consumers or competition."
State v. Weinschenk, 2005 ME 28, ¶ 16, 868 A.2d 200, 206.
In the current case, Plaintiff did not file to amend the pleading for over seven months after having confirmation that the conversation in question occurred. Plaintiff has not informed the court of any reason for the delay. Plaintiff's proposed amendment is a UTP A claim brought against Defendant Woodman for allegedly failing to correct the listing to reflect that there was no concrete slab foundation pursuant to conversations with Defendants Ponte. Plaintiff has already asserted UTP A claims based upon her alleged reliance on misrepresentations of a concrete slab foundation. All ten of Plaintiff's claims seek damages for the alleged misrepresentation of the concrete slab. While Plaintiff's amendment alleges a set of facts by which Plaintiff may impute knowledge that there was no concrete slab upon Defendant Woodman, there is no new duty or harm alleged, merely new facts that fill in claims already asserted. Finally, even though there may not be any additional discovery required, there may be prejudice to Defendant by having to answer the amended complaint and defend against the new count.
The court Denies Plaintiff's Motion to Amend.