DRILLING & BLASTING ROCK SPECIALISTS, INC.
Argued: February 10, 2016
M. Lipman, Esq., and Peter B. Bickerman, Esq., Lipman, Katz
& McKee, P.A., Augusta, for appellant Drilling and
Blasting Rock Specialists, Inc.
A. Billings, Esq., and Matthew D. Morgan, Esq., McKee
Billings, P.A., Augusta, for appellee Paul Rheaume
B. Bickerman, Esq., for appellant Drilling and Blasting Rock
Matthew D. Morgan, Esq., for appellee Paul Rheaume
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Drilling & Blasting Rock Specialists, Inc., (DBRS)
appeals from a summary judgment entered in favor of Paul
Rheaume in the Superior Court (Kennebec County, Mullen,
J.) on Rheaumes statute of limitations defense to DBRSs
complaint for intentional and negligent misrepresentation.
Viewing the summary judgment record in the light most
favorable to DBRS, we conclude that the record reflects a
factual dispute regarding the commencement of the limitations
period applicable to the intentional misrepresentation claim.
We therefore vacate the summary judgment in part and remand
for adjudication of this factual issue. With respect to the
negligent misrepresentation claim, we discern no dispute of
material fact and conclude that the trial court correctly
entered summary judgment in Rheaumes favor. We accordingly
affirm the judgment in part.
The following facts are established by the parties statements
of material fact and the evidence referred to therein, are
viewed in the light most favorable to the nonprevailing
party, and are undisputed unless otherwise noted. See
Remmes v. Mark Travel Corp., 2015 ME 63, ¶ 3, 116
Rheaume owned T.W. Dick Company, Inc., (TWD) from 1995 to
2009. On March 9, 2006, Rheaume, acting as president of TWD,
executed and delivered a promissory note and mortgage to
Robert McKee in consideration for McKee conveying to TWD a
parcel of real property located on Brunswick Avenue in
Gardiner. McKees mortgage on the Brunswick Avenue property
was recorded in the Kennebec County Registry of Deeds the
In May 2006, two months after TWD acquired the Brunswick
Avenue property, Rheaume contacted DBRSs president, Timothy
Purington, to ask whether DBRS might be interested in
purchasing the Brunswick Avenue property from TWD. In August
2006, TWD conveyed the Brunswick Avenue property to DBRS by a
warranty deed that did not mention the outstanding mortgage
to McKee and represented that the property was free of all
encumbrances. At the same time, Timothy Purington, acting as
president of DBRS, executed and delivered a promissory note
and mortgage to TWD in consideration for the conveyance by
Rheaume did not tell anyone associated with DBRS that McKee
held a first mortgage on the property or that TWD was
obligated to make payments on the note held by McKee for a
period of fifteen years. TWD was represented by counsel in
the transaction and paid for a title search of the Brunswick
Avenue property prior to the closing, but did not disclose
the results of any title search to DBRS.
At the closing, DBRS was not represented by counsel, and
Timothy Purington, as president of DBRS, signed a
"Notice of Representation, " agreeing that if DBRS
had "any legal questions" regarding the sale of the
property it "should discuss them with independent
counsel." DBRS relied upon the representations contained
in the warranty deed with respect to the absence of
encumbrances on the Brunswick Avenue property. It would not
have gone through with the transaction if it had known that
McKee held a first mortgage on the property.
According to Rheaume, DBRS contacted him about one week after
the sale and requested a "bill of sale" from McKee.
DBRS denies this statement, and asserts that it did not learn
of the McKee mortgage until 2013.
At some point after DBRS acquired the Brunswick Avenue
property, TWD defaulted on the promissory note and mortgage
held by McKee and McKee sought to foreclose on the property
now owned by DBRS. DBRS asserts that it has been frustrated
in its plan to use the Brunswick Avenue property for ...