961 F.2d 1018 (1st Cir. 1992), 91-2157, Wong v. Smith

Docket Nº:91-2157.
Citation:961 F.2d 1018
Party Name:Allan Y.K. WONG, Trustee of Island Realty Trust, Plaintiff, Appellant, v. William H. SMITH and Aline J. Smith, Defendants, Appellees.
Case Date:April 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
FREE EXCERPT

Page 1018

961 F.2d 1018 (1st Cir. 1992)

Allan Y.K. WONG, Trustee of Island Realty Trust, Plaintiff, Appellant,

v.

William H. SMITH and Aline J. Smith, Defendants, Appellees.

No. 91-2157.

United States Court of Appeals, First Circuit

April 24, 1992

Heard April 3, 1992.

Ray Aaionian, on brief for plaintiff, appellant.

Janet Macnab, on brief for defendants, appellees.

Page 1019

Before BREYER, Chief Judge, CAMPBELL, Senior Circuit Judge, and SELYA, Circuit Judge.

PER CURIAM.

Allan Y.K. Wong, as trustee of the Island Realty Trust, bought an apartment house in Sanford, Maine from William and Aline Smith. The Smiths represented to Wong that the walls of the house were insulated with fiberglass. After the sale, Wong discovered that the walls also contained urea formaldehyde insulation, which has been linked to certain health problems.

In March 1987, Wong sued the Smiths in a Maine Superior Court. Though the complaint was brief and did not expressly identify the legal theory upon which Wong sought recovery, the parties and the Superior Court read the complaint to state a claim for fraud.

The Smiths moved for summary judgment in October 1987. In January 1988, a week before the Superior Court ruled on the motion for summary judgment, Wong moved to amend his complaint to add two new counts for breach of contract and breach of warranty.

On February 2, 1988, the superior court (1) granted Wong's motion to amend (which meant that the court now had before it a three-count complaint alleging fraud, breach of contract and breach of warranty), and (2) granted the Smiths summary judgment on the "fraud count." The breach of contract and breach of warranty counts remained, and in May 1988 the Smiths moved for summary judgment on them. In October 1988, however, before the Superior Court could rule on the second motion for summary judgment, Wong voluntarily dismissed the case. At the time, Maine R.Civ.P. 41(a) allowed plaintiffs to dismiss unilaterally, and without prejudice, "at any time before commencement of trial." As far as the record on appeal shows, the state court lawsuit ended with the filing of the notice of dismissal.

In January 1991, Wong sued the Smiths in the United States District Court for the District of Massachusetts. Relying on diversity of citizenship for jurisdiction, Wong again alleged that he had been injured by the Smiths' failure to tell him about the presence of urea formaldehyde insulation in the walls of the apartment house. The federal complaint asserted claims against...

To continue reading

FREE SIGN UP