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McCarthy v. Fisher

Superior Court of Maine, Cumberland

July 10, 2014

SYBIL McCARTHY, et al, Plaintiffs,
v.
JAMES FISHER, et al, Defendants

ORDER

Thomas D. Warren, Justice, Superior Court.

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 . E.g., Johnson v. McNeil, 2002 ME 99 ¶ 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, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 694 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)(l) 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 court.[2]

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.

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]

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, e.g., 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 ...


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