HARRY DERMER, et al. Plaintiffs,
KATHLEEN PARDI, et al. Defendants.
E. Walker, Justice, Superior Court.
Order addresses Defendants' Kathleen Pardi's and
David Banks's motions to dismiss based upon Rule 12(b)(6)
of the Maine Rules of Civil Procedure.
reviewing  a motion to dismiss, [the court] consider[s] the
facts in the complaint as if they were admitted."
Bonney v. Stephens Mem. Host., 2011 ME 46, ¶
16, 17 A.3d 123.127. The court will '"examine the
complaint in the [*5] 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, 832). '"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.
Maine Rules of Civil Procedure incorporate principles of
notice pleading. See e.g., Burns v. Architectural Doors
& Windows, 2011 ME 61, ¶ 21. 19 A.3d 823, 829.
Rule % calls for "1) a short and plain statement of the
claim showing that the pleader is entitled to relief and (2)
a demand for judgment for the relief which the pleader
seeks." M.R. Civ. P. 8: see also Bean v.
Cummings, 2008 ME 18, ¶ 8, 939 A.2d 676,
679(discussing pleading requirements in light of recent
United States Supreme Court decisions, and noting that Rule
9(b) identifies certain claims that require a heightened
pleading standard such as fraud or mistake). Notice pleading
requires the plaintiff to provide the opposing party with
"fair notice of the claim." Polk v. Town of
Lubec, 2000 ME 152, ¶ 18, 756 A.2d 510, 514 [*6]
(quoting E.N. Nason, Inc. v. Land-Ho Dev. Corp., 403
A.2d 1173, 1177 (Me. 1979)).3*.
that framework in mind, the analysis turns to the specific
counts of the complaint.
VI - Equitable Estoppel
Court has not been the Oracle of Delphi as to the appropriate
use of estoppel. The court episodically has declared that it
is a "well settled principle that estoppel is available
only for protection, cannot be used as a weapon of
assault." Waterville Homes, Inc. v. Maine Dep't
of Transp., 589 A.2d 455, 457 (Me. 1991). See also
Weaver v. New England Mut. Life Ins. Co., 52 F.Supp.2d
127, 134 (D. Me. 1999) ("equitable estoppel is a
defense, not a cause of action.").
principle apparently is not so well settled as to prevent the
Law Court from holding precisely the opposite proposition.
See Kittery Retail Ventures, LLC v. Town of Kittery,
2004 ME 65; F.S. Plummer Co. Inc. v. Town of Cape
Elizabeth, 612 A.2d 856 (Me. 1992); Berry v. Bd. of
Trustees, Maine State Ret. Sys., 663 A.2d 14, (Me.
1995); Salisbury v. Town of Bar Harbor, 2002 ME 13,
788 A.2d 598. Citing Waterville Homes, Inc. as well
as Martin v. Prudential Ins. Co., 389 A.2d 28, 30-32
(Me. 1978) (where the court considered an equitable estoppel
First Circuit subscribing to the notion that brevity is the
soul of wisdom, stated that regarding equitable estoppel
"Maine case law is unclear." Grande v. St. Paul
Fire & Marine Ins. Co., 436 F.3d 277, 279 n. 1 (1st
Cir. 2006). Despite the Law Court's confusion as to
whether the doctrine may be permitted as a sword or a shield,
there appears to be no intellectually principled reason to
favor one use to the exclusion of the other. Defendants'
motion to dismiss Count VI, equitable estoppel is denied.
V - Promissory Estoppel
promise which the promisor should reasonably expect to induce
action or forbearance on the part of the promisee or a third
person and which does induce such action or forbearance is
binding if injustice can be avoided only by enforcement of
the promise. The remedy granted for breach may be limited as
justice requires." Budge v. Town of
Millinocket, 2012 ME 122.
advance a reasonable argument that one must have a promise in
order to claim promissory estoppel. The question then becomes
whether Pardi's statement constituted a promise. Ms.
Pardi is alleged to have made a statement about certain
vibrations felt in the subject unit, after the Dermers felt
the vibrations during their inspection. Ms. Pardi stated in
an e-mail communication, as follows:
"The occasional vibration felt in unit 613 occurs from
the second level laundry conducted in the hotel. During my
residency I have felt it occasionally; however, not on a
consistent basis. I have not experienced any significant
impact from this occurrence, nor has it disturbed me or any
of my guests. The duration of the vibration that I have
experienced is approximately two to three minutes."