Binette v. Dyer Library Ass'n

• Decision Date: 13 December 1996
• Docket Number: No. 7860,Docket No. YOR-95-809,7860
• Citation: 688 A.2d 898
• Parties: David BINETTE et al. v. DYER LIBRARY ASSOCIATION et al. DecisionLaw
• Court: Maine Supreme Court

Page 898

688 A.2d 898

65 USLW 2472

David BINETTE et al. v. DYER LIBRARY ASSOCIATION et al.

Decision No. 7860.

Law Docket No. YOR-95-809.

Supreme Judicial Court of Maine.

Argued June 10, 1996.

Decided Dec. 13, 1996.

John C. Bannon (Orally) Murray, Plumb & Murray, Portland, for Plaintiffs.

John A. Ciraldo (Orally) Perkins Thompson Hinckley & Keddy, Portland, S. James Levis, Jr. (Orally) Levis & Hull, Biddeford, for Defendants.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.

RUDMAN, Justice.

David and Karen Binette appeal from the summary judgments entered in the Superior Court (York County, Fritzsche, J.) in favor of the Dyer Library Association, Clifford Purvis, and Vacationland Realty on the Binettes' claims of negligent misrepresentation and violation of the Maine Unfair Trade Practices Act (UTPA), 5 M.R.S.A. §§ 205-A to 214 (1989 & Supp.1995). The Binettes argue (1) that the Dyer Library Association, Purvis, and Vacationland Realty breached a duty of reasonable care by omitting to tell them of the existence of a 3000-gallon underground oil tank on property owned by the library association and sold to the Binettes, (2) that the defense of charitable immunity, 14 M.R.S.A. § 158-A (Supp.1995), is not available to Purvis on their claim for negligent misrepresentation, and (3) that the defendants' failure to disclose the existence of the tank to them prior to the sale constitutes an unfair and deceptive act in violation of section 207 of the UTPA. We affirm in part and vacate in part the summary judgments entered in favor of the defendants.

The Dyer Library Association, a charitable corporation, operates a library and a museum in Saco. In 1987 the library association acquired a residential property in Saco on the death of Joseph Deering. The Deering property harbored a 3000-gallon underground heating oil storage tank registered by Deering with the Department of Environmental Protection. The library association listed the property for sale with Vacationland Realty, a partnership in which Clifford Purvis and another were partners. In addition to being a licensed real estate broker, Purvis was a trustee and officer of the Dyer Library Association. In July 1988 David and Karen Binette bought the Deering property for $351,000. The library association paid a sales commission of $8,775 to Vacationland Realty.

The Binettes contend that they learned of the existence of the oil tank only after the closing, when their first oil delivery was made. They contend they were forced to have the tank removed because it was corroded and allowed oil to leak into the ground and water to leak into their fuel oil, contaminating their property and destroying their heating system.

In 1994 the Binettes filed a three-count complaint against the Dyer Library Association, Vacationland Realty, and Clifford Purvis for fraud, negligent misrepresentation, and violation of the UTPA. The Binettes later voluntarily dismissed their claims for fraud. The court granted a motion for summary judgments filed by defendants Purvis and Vacationland Realty pursuant to M.R.Civ.P. 56. The Binettes filed pursuant to M.R.Civ.P. 59(e) a motion to amend the summary judgments granted to Purvis and Vacationland Realty, and the Dyer Library Association filed its own motion for a summary judgment. The court denied the Binettes' motion to amend the Purvis and Vacationland judgments and entered a summary judgment in favor of the Dyer Library Association. This appeal followed.

A summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. M.R.Civ.P. 56(c). When reviewing a grant of a summary judgment, we view the evidence in the light most favorable to the party against whom the judgment is granted and review the trial court's decision for error of law. Petillo v. City of Portland, 657 A.2d 325, 326 (Me.1995). A summary judgment is an extreme remedy and should be granted in favor of a defendant only when the facts before the court so conclusively preclude recovery by the plaintiff that a judgment in favor of the defendant is the only possible result as a matter of law. Spickler v. Greenberg, 586 A.2d 1232, 1234 (Me.1991).

A plaintiff may avoid a summary judgment for the defendant as a matter of law on a given claim by establishing a prima facie case for each element of the claim for which the plaintiff will bear the burden of proof at the trial. Fleming v. Gardner, 658 A.2d 1074, 1076 (Me.1995). In this case, before we may measure the prima facie evidence on the record against the elements of the Binettes' claims for negligent misrepresentation and violation of the UTPA, we must review as a matter of law the trial court's construction of certain of those elements. We review the trial court's decisions in matters of law de novo. Collins v. Trius, Inc., 663 A.2d 570, 572 (Me.1995).

I

We consider one by one the Binettes' claims against the three defendants for negligent misrepresentation. We begin by determining that a genuine issue of material fact remains as to whether Clifford Purvis is entitled to the statutory defense of charitable immunity.

A "volunteer" providing services for a charitable organization is entitled to immunity from a claim sounding in negligence if the cause of action arises from a personal act that "occurs within the course and scope of the activities of the charitable organization" and the act is "without compensation." 14 M.R.S.A. § 158-A (Supp.1995). The Binettes argue that Purvis is not entitled to charitable immunity for two reasons: first, that he was not acting within his capacity as an officer when he sold them the Deering property, and second, that he was compensated for his part in the sale and therefore was not a volunteer.

Whether Purvis was acting in his capacity as an officer of the library association in selling real estate on its behalf is irrelevant for purposes of charitable immunity as long as he was acting as an uncompensated volunteer within the scope of the library's charitable activities. The Legislature in 1971 amended the 1881 private and special legislative act establishing the Dyer Library Association to authorize the following activities:

To have, receive and hold in fee simple or in any less estate by purchase, gift, grant, devise, bequest or otherwise, real estate and personal property, whether tangible or intangible to any amount; to borrow money and to mortgage and pledge its interest in any property to secure the same; and to purchase, sell, manage, operate, control and otherwise deal in real and personal estate of any name or nature....

P. & S.L.1971, ch. 36, § 3(b). It is clear that Purvis was acting within the legislatively defined course and scope of the activities of the Dyer Library Association when he sold the Deering property for the library. Whether Purvis also was acting as an uncompensated volunteer on behalf of the library when he sold the Deering property to the Binettes, however, remains a genuine issue of fact.

The record includes evidence that the Deering Library Association by an oral agreement arranged to have Vacationland Realty, a partnership in which Purvis was a partner, market the Deering property for the Dyer Library Association. By the terms of the agreement Vacationland Realty would market the property, but Purvis would forego his share of the commission. Purvis dealt with the Binettes, who ultimately became the successful bidder; Purvis's partner dealt with the competing bidder. The library association wrote a check for half the usual sales commission payable to Vacationland Realty. The check was deposited to Vacationland's account, although the record includes evidence that the funds immediately were withdrawn in their entirety by Purvis's partner.

Viewed in the light most favorable to the Binettes, the record establishes that Purvis's partnership received compensation for the sale of the Deering property. A question of fact remains, therefore, as to whether Purvis himself acted without compensation in selling the Deering property for the Dyer Library Association. The court erred in granting Purvis's motion for a summary judgment on the ground he was entitled to charitable immunity.

II

We consider next whether the court erred in granting the Dyer Library Association's motion for a summary judgment on the Binettes' claim for negligent misrepresentation.

"Maine has adopted section 552 of the Restatement (Second) of Torts as the appropriate standard for negligent misrepresentation claims." Bowers v. Allied Inv. Corp., 822 F.Supp. 835, 839 (D.Me.1993) (citing Diversified Foods, Inc. v. First Nat'l Bank of Boston, 605 A.2d 609, 615 (Me.1992)). The Restatement (Second) provides:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information, for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1) (1977). The entry of a summary judgment in favor of the defendant library association is improper if the record establishes prima facie evidence that the Dyer Library Association (1) in a transaction in which the association had a pecuniary interest (2) supplied false information for the guidance of the Binettes (3) without exercising reasonable care or competence and that (4) the Binettes justifiably relied on that false information in their purchase of the Deering property.

A Transaction of Pecuniary Interest

The Dyer Library Association does not dispute that the transaction here was one in which the association had a pecuniary interest.

Supplying False Information

Before we can assess whether prima facie evidence on the...