Thomas D. Warren Justice, Superior Court
Before the court are motions by plaintiff Jacob and Monique Hoffman for partial summary judgment. In those motions, the Hoffmans are seeking summary judgment dismissing the claims for emotional distress, punitive damages, lost profits and lost business opportunities sought by defendants Carey Goltz, Timothy Cheney, and Design Concepts and Contracting Inc. in their counterclaim.
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 ¶ 8, 694 A.2d 924.
In this case the Hoffinans base their motion for partial summary judgment on the deposition testimony of Goltz and Cheney, contending that based on that testimony Goltz and Cheney have not demonstrated that there is a disputed issue for trial on their counterclaim for intentional infliction of emotional distress or on their counterclaim for emotional distress damages arising from their legal malpractice and fiduciary duty claims. They also contend that defendants have not raised a disputed issue for trial on their counterclaim for punitive damages and that defendants' counterclaim for damages based on lost business opportunities should be dismissed based on a failure to respond to discovery.
Defendants argue that the motion should be judged according to the standard applicable to a motion to dismiss. To the extent that the court can determine whether defendants' claim for emotional distress damages and for punitive damages raise disputed issues for trial based on their deposition testimony and on the affidavits defendants have submitted, the court will apply the usual summary judgment standard articulated above.
For their part, the Hoffmans argue that defendants' affidavits in opposition to the motion for summary judgment should not be considered because they consist of improper legal argument, statements that are conclusory, and statements not based on personal knowledge. The Hoffmans are correct to some extent. See, e.g., Goltz Affidavi ¶¶ 16, 24, 27. Moreover, Defendants' Additional Statement of Material Facts (Defendants' SAMF) is also unnecessarily repetitive. See, e.g., Defendants' SAMF ¶¶ 7, 8, 29, 44-45, 48. Nevertheless, disregarding repetitive assertions and any conclusory or inadmissible material in their opposing affidavits, defendants have presented evidence from which the court can determine whether there are genuine factual disputes for trial on the issues that are the subjects of the Hoffmans' motions.
In filing the instant motion limited to certain damage claims, the Hoffmans effectively acknowledge that there are disputed issues for trial in this case relating to renovation work by Goltz and/or Design Concepts on a residence owned by the Hoffmans in Yarmouth. Those disputed issues include but not necessarily limited to (1) whether Goltz and Design Concepts came in over budget, overbilled, or performed work that was defective in certain respects; (2) whether Jacob Hoffman had an attorney client relationship with defendants at the time the renovation work was contracted for and performed; (3) whether Jacob Hoffman used confidential information he gained in the course of an attorney-client relationship against present or former clients; (4) whether the Hoffmans declined to pay the final invoice submitted by Goltz and Design Concepts in order to take advantage of their financial situation; and (5) whether Jacob Hoffman berated and intimidated Goltz.
This motion is addressed solely to whether the defendants can recover damages for emotional distress, punitive damages, and lost profits or other damages based on lost business opportunities if they prevail on their counterclaims. In deciding this issue, the court has to accept defendants' factual assertions - but not their conclusory contentions - for purposes of summary judgment and determine whether there are disputed issues for trial as to those damage claims or whether the Hoffmans are entitled to judgment dismissing those damage claims as a matter of law.
2. Intentional Infliction of Emotional Distress
The first issue is whether Goltz and/or Cheney have demonstrated that there are disputed issues for trial on their claim for intentional infliction of emotional distress. To proceed on a claim of intentional infliction of emotional distress, a plaintiff must demonstrate that he or she was subjected to emotional distress that was so severe that "no reasonable person could be expected to endure it." Curtis v. Porter, 2001 ME 158 ¶ 10. Whether sufficiently severe emotional distress can be found based on the evidence is an issue for the court to determine in the first instance. Restatement (Second) of Torts § 46, comment j.
In this case the evidence in the summary judgment record - the affidavits and deposition testimony of Goltz and Cheney - simply do not raise a disputed issue for trial on whether the distress experienced by Goltz was the kind of distress that no reasonable person could have been expected to endure. See Schelling v. Lindell, 2008 ME 59 ¶¶ 24-26, 942 A.2d 1226; Culbert v. Sampson's Supermarkets, AAA A.2d 433, 437 (Me. 1982). The distress experienced when a property owner (even if the property owner is the contractor's present or former attorney) withholds payment for work in the course of a construction dispute does not fall into that category. Nor does being berated by the property owner to such an extent that the contractor is reduced to tears.
In addition, recovery on a claim for intentional infliction of emotional distress requires proof of "conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46, comment d. The issue of whether alleged conduct is sufficiently extreme or outrageous to meet the above standard is an issue for the court to determine in the first instance. Champagne v. Mid-Maine Medical Center, 1998 ME 87 ¶16, 711 A.2d 842, 847; Gray v. State of Maine, 624 A.2d 479, 484 (Me. 1993).
In this instance, the Hoffmans' alleged conduct, accepted as true for purposes of this motion - and independent of any responsibility that Jacob Hoffman may have owed to defendants as their attorney - amounts to refusing to pay Goltz and Design Concepts for work that they performed and berating Goltz in an attempt to bully and intimidate her. This conduct, if proven, would be unfair and wrongful, but it was not "atrocious and utterly intolerable in a civilized community" and does not meet ...