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Dermer v. Pardi

Superior Court of Maine, Cumberland

November 11, 2017

HARRY DERMER, et al. Plaintiffs,
v.
KATHLEEN PARDI, et al. Defendants.

          ORDER

          Lance E. Walker, Justice, Superior Court.

         This 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.[1]

         "In 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.

         The 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*.

         With that framework in mind, the analysis turns to the specific counts of the complaint.

         Count VI - Equitable Estoppel

         The Law 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.").

         The 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 claim).

         The 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.

         Count V - Promissory Estoppel

         "A 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.

         Defendants 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."

         Complaint, ...


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