415 Cong. St. Props., LP v. URS Grp., Inc.

• Decision Date: 30 July 2012
• Docket Number: Docket No.: BCD-CV-11-03
• Parties: 415 CONGRESS STREET PROPERTIES, LP, and HARPERS DEVELOPMENT, LLC, Plaintiffs, v. URS GROUP, INC., URS CORPORATION, and T.F. PROPERTIES, INC., Defendants
• Court: Maine Supreme Court

415 CONGRESS STREET PROPERTIES, LP,and HARPERS DEVELOPMENT, LLC, Plaintiffs,

v. URS GROUP, INC., URS CORPORATION,and T.F. PROPERTIES, INC., Defendants

Docket No.: BCD-CV-11-03

STATE OF MAINE Cumberland, ss BUSINESS AND CONSUMER COURT

Dated November 10, 2011

November 14, 2011

Dated July 30, 2012

Location: Portland

ORDER ON DEFENDANTS URS GROUP INC. AND URS CORPORATION'S

MOTION FOR SUMMARY JUDGMENT

Defendants URS Group, Inc. (URS Group) and URS Corporation (URS Corp.) (collectively, the "URS Defendants") have moved for summary judgment on Counts I, II, and III of Plaintiffs Harpers Development, LLC (Harpers) and 415 Congress Street Properties, LP's (415 Congress) complaint. For the reasons stated within, the court grants the motion in part and denies the motion in part.

BACKGROUND

The following facts are undisputed, except where noted. This case arises out of a Property Condition Assessment ("PCA") performed by URS Corp. for Harpers on a building located at 415 Congress Street in Portland, Maine ("the building"). (Defs.' Supp. S.M.F. ¶ 1; Pl'.s Opp. S.M.F. ¶ 1.) URS Corp. provides, among other things, professional architecture and engineering services to its clients. (Defs.' Supp. S.M.F. ¶ 7; Pl'.s Opp. S.M.F. ¶ 7.) Harpers isa leading, experienced real estate developer in the State of Maine. (Defs.' Supp. S.M.F. ¶ 2; Pl'.s Opp. S.M.F. ¶ 2.) 415 Congress is a Maine limited partnership formed on September 21, 2004. (S.M.F. ¶ 3.) Harpers has no ownership interest in 415 Congress; they are entirely separate entities. (Defs.' Supp. S.M.F. ¶ 6; Pl'.s Opp. S.M.F. ¶ 6.) Defendant T.F. Properties, Inc. (T.F. Properties) sold the building to 415 Congress. (Defs.' Supp. S.M.F. ¶ 9; Pl'.s Opp. S.M.F. ¶ 9.)

On March 5, 2004, Harpers contracted with Defendant T.F. Properties, Inc. (T.F. Properties) to purchase the building, and later they entered into a Reinstatement of a First Amendment to the Purchase and Sale Agreement. (Defs.' Supp. S.M.F. ¶ ¶ 20, 25; Pl'.s Opp. S.M.F. ¶¶ 20, 25.) In November 2004, Harpers assigned all of its "right, title and interest in and to any and all architectural plans, engineering work, [and] inspection reports" acquired by Harpers "in connection with the acquisition or development of the building to 415 Congress, "together with any and all rights and claims relating thereto." (Pl'.s A.S.M.F. ¶ 12.)¹ Defs.' Supp. S.M.F. ¶ 20; Pl'.s Opp. S.M.F. ¶ 20.) T.F. Properties then sold the building to 415 Congress on November 22, 2004. (Defs.' Supp. S.M.F. ¶ 9; Pl'.s Opp. S.M.F. ¶ 9.)

URS Corp. and Harpers entered into an "Agreement for Professional Services" (the "Agreement") on February 5, 2004. (Defs.' Supp. S.M.F. ¶ 15; Pl.'s Opp. S.M.F. ¶ 15.) The Agreement contains provisions entitled "Risk Allocation," "No Consequential Damages," "No Third Party Rights," and "No Assignment," and the parties do not dispute the content of these provisions. (Defs.' Supp. S.M.F. ¶¶ 16-19; Pl'.s Opp. S.M.F. ¶¶ 16-19.) The Agreement contemplates that the scope of services it covers will be set forth in separate written work orders. (Defs.' Ex. 4, Art. I.) The parties dispute whether Harpers hired URS Corp. to performa "professional" PCA, but do not dispute that at least one of the URS Defendants did in fact conduct the PCA.² (Defs.' Supp. S.M.F. ¶ 8; Pl.'s Opp. S.M.F. ¶ 8.) The work order to perform the PCA on the building was executed on October 4, 2004, between Harpers and URS Corp. (Defs.' Supp. S.M.F. ¶ 34; Pl'.s Opp. S.M.F. ¶ 34.)

URS Corp. performed a site visit of the building on October 13, 2004. (Defs.' Supp. S.M.F. ¶ 36; Pl'.s Opp. S.M.F. ¶ 36.)³ Tony DiNicola, an architect, performed the PCA. (Defs.' Supp. S.M.F. ¶ 37; Pl'.s Opp. S.M.F. ¶ 37.) DiNicola has never been licensed to practice architecture in Maine. (Pls.' A.S.M.F. ¶ 5; Defs.' Reply S.M.F. ¶ 5.) URS Corp. completed a draft PCA on October 19, 2004. (Defs.' Supp. S.M.F. ¶ 45; Pl'.s Opp. S.M.F. ¶ 45.) URS Corp. delivered the draft PCA via e-mail to Harpers on October 20, 2004. (Defs.' Supp. S.M.F. ¶ 46; Pl'.s Opp. S.M.F. ¶ 46.) Harpers reviewed the report and informed URS Corp.: "This looks very good! It is ready to print." (Defs.' Supp. S.M.F. ¶ 47; Pl'.s Opp. S.M.F. ¶ 47.) URS Corp. corrected several typos in the report and sent a clean, final copy to Harpers on October 28, 2004. (Defs.' Supp. S.M.F. ¶ 50; Pl'.s Opp. S.M.F. ¶ 50.)

The PCA's statement of the condition of the facade of the building forms the basis of Plaintiffs' claims against the URS Defendants. (See Compl. ¶ 24; Defs.' Supp. S.M.F. ¶ 70; Pl'.s Opp. S.M.F. ¶ 70.) In their statements of material facts, Plaintiffs and URS Defendants cite to different exhibits for the language of the report regarding the façade. The URS Defendants cite to the draft, dated October 19, 2004, and sent to the Plaintiffs on October 20, 2004;Plaintiffs cite to the final report, dated and sent on October 28 2004. (See Defs.' Supp. S.M.F. ¶¶ 53-55; Pl.'s Opp. S.M.F. ¶ 53-55.) The parties do not dispute, however, the content of the PCA regarding the façade, which is identical in both versions:

• "There are several places in the masonry façade where repointing of mortar joints or minor repairs need to be made, including a vertical crack in the pilaster at the northeast corner of the building. This repair work needs to be carried out in the short term, to prevent additional water intrusion and freeze/thaw action." (Defs.' Exh. 14 at 1-4; Defs.' Exh. 15 at 1-4.)

• "The copper flashing at the top side of the major ledge/cornice is in poor condition. This has already been replaced at the northeast corner of the building, along with repointing of mortar joints and replacement of sealant joints, motivated by water intrusion at the fifth floor level wetting and damaging the plaster interior finish. Also, some of the limestone detailing on the underside of this ledge/cornice has deteriorated due to freeze/thaw action. While restoration of the deteriorated limestone is a cosmetic issue, the work started on the northeast corner needs to continue, to include replacement of the copper flashing and repointing/replacement of deteriorated mortar and sealant joints at all the rest of this major ledge/cornice, in order to arrest further limestone deterioration." (Defs.' Exh. 14 at 1-4; Defs.' Exh. 15 at 1-4.)

• "There is some deterioration of the top of the stone medallion at the center of the Congress Street façade. This needs to be repaired." (Defs.' Exh. 14 at 1-5; Defs.' Exh. 15 at 1-5.)

(See Defs.' Supp. S.M.F. ¶¶ 53-55; Pl.'s Opp. S.M.F. ¶ 53-55.) The façade defects claimed by Plaintiffs in this action relate to the terra cotta exterior of the building, which includes the areas around the windows and at the building's cornices and ledges. (Defs.' Supp. S.M.F. ¶ 70; Pl.'s Opp. S.M.F. ¶ 70.) 415 Congress continued to experience water infiltration problems related to the façade after it acquired the building and throughout 2005. (Defs.' Supp. S.M.F. ¶ 72; Pl.'s Opp. S.M.F. ¶ 72.) In March 2006, a piece of the terra cotta ledge/cornice area fell to the street below as a result of water penetration into the terra cotta that experienced freeze/thaw cycles. (Defs.' Supp. S.M.F. ¶¶ 73, 77; Pl.'s Opp. S.M.F. ¶¶ 73, 77.)

Harpers and 415 Congress initiated this litigation by filing a seven-count complaint in Cumberland County Superior Court on October 21, 2010. Three counts were brought againstURS Group: 1) breach of contract (Count I), 2) negligence (Count II), and 3) unjust enrichment (Count III). The case was transferred to the Business and Consumer Court on January 26, 2011. Plaintiffs filed an amended complaint adding URS Corp. as a defendant on April 13, 2011, as to Counts I, II, and III. The court held oral argument on Defendants' motion on November 1, 2011.

ANALYSIS

Summary judgment is proper where there exist no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770 A.2d 653, 655. A genuine issue is raised "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, ¶ 8, 828 A.2d 778, 781 (quotations omitted). A material fact is a fact that has "the potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573, 575. "If material facts are disputed, the dispute must be resolved through fact-finding." Curtis v. Porter, 2001 ME l"58, ¶ 7, 784 A.2d 18, 22. A party wishing to avoid summary judgment must present a prima facie case for the claim or defense that is asserted. Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME 29, ¶ 9, 868 A.2d 220, 224-25. At this stage, the facts are reviewed "in the light most favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME 24, ¶ 6, 816 A.2d 63, 65.

I. Statute of Limitations

The URS Defendants contend that the claims against them are time barred by both the general and the design professional statute of limitations. Plaintiffs counter that the shorter four-year statute of limitations for design professionals does not apply because neither URS nor DiNicola is a registered architect in Maine. Plaintiffs also contend that they have met the six-year general statute of limitations and their action is not time-barred.

A. Design Professional Statute of Limitations

The statute of limitations for design professionals states that "[a]ll civil actions for malpractice or professional negligence against architects or engineers duly licensed or registered under Title 32 shall be commenced within 4 years after such malpractice or negligence is discovered . . . ." 14 M.R.S. § 752-A (2010). Title 32 M.R.S. § 220(1) (2010) prohibits architects from practicing within the state "unless the person is duly licensed by the board." The practice of architecture is defined as:

rendering or offering to render service to clients by consultations, investigations,

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