Morin v. Pillsbury
| Decision Date | 03 October 2017 |
| Docket Number | CV-16-0074 |
| Parties | ROBERT MORIN and ANNE MORIN Plaintiffs, v. MARSHALL PILLSBURY d/b/a MARSHALL PILLSBURY APPRAISAL SERVICES, Defendant. |
| Court | Maine Superior Court |
ATTORNEY FOR PLAINTIFFS BENJAMIN CAMPO, ESQ. DOUGLAS MCDANIEL CAMPO & SCHOOLS
ATTORNEYS FOR DEFENDANT: HEIDI HART, ESQ. WENDELL LARGE, ESQ. RICHARDSON WHITMAN LARGE & BADGER
This case involves an appraiser who provided his client, plaintiffs' mortgagee, an appraisal of a personal residence that plaintiffs sought to, and eventually did, purchase. While attempting to refinance their mortgage several years later, plaintiffs were turned down because the refinancer's appraisal valued the property $25, 000 less than the original appraisal, making the principal of the original mortgage greater than the value of the residence. Plaintiffs Robert and Anne Morin brought the present action, alleging defendant Marshall Pillsbury, d/b/a Marshall Pillsbury Appraisal Services, was negligent in completing the appraisal and that Pillsbury breached his duty to them. Defendant now moves for summary judgment.
On or about June 24, 2014, ValueQuest AMC hired defendant to perform an appraisal of real property for Norcom Mortgage. (D.S.M.F. ¶ 7.) Norcom Mortgage requested an appraisal to decide whether to extend plaintiffs a mortgage to purchase the property. (D.S.M.F. ¶ 9.) The property in question was located at 6 Bruno Circle, Saco, Maine and had a list price of $385, 000. (P.S.M.F. ¶¶ 2, 4.) The purchase and sale agreement had already been executed at the time defendant was hired to perform the appraisal, subject to the appraised value. (D.S.M.F. ¶ 8.) Defendant returned an appraisal report, listing the value of the property as $380, 000. (D.S.M.F. ¶ 10.) Consequently, plaintiffs purchased the residence for $380, 000. (P.S.M.F. ¶ 5.)
Relevant to the case at hand, defendant's report also contained some provisions pertaining to its intended use and user. Page 6 of the report includes the following statements:
Page 12 additionally identifies, "No additional Intended Users are identified by the appraiser." (D.S.M.F. ¶ 13.)
The Appraiser's Certification section of the report further provides:
21. The lender/client may disclose or distribute this appraisal report to: the borrower; [or] another lender at the request of the borrower;. . . without having to obtain the appraiser's . . . consent. .. . 23. The borrower, [or] another lender at the request of the borrower. . . may rely on this appraisal report as part of any mortgage finance transaction that involves any one or more of these parties. (Pl.'s Opp'n S.M.F. ¶ 14.)
Plaintiffs ultimately secured financing through two loans, each secured by mortgages on the property. (P.S.M.F. ¶ 6.) The primary mortgage was in the amount of $304, 000 while the secondary mortgage was in the amount of $33, 500. (P.S.M.F. ¶ 6.)
In spring of 2015, plaintiffs sought to refinance their mortgages with Evergreen Federal Credit Union ("Evergreen"). (P.S.M.F. ¶ 7.) Evergreen ordered a second appraisal done on the property by Heather Cote of Diversified Appraisal Services, Inc.. (P.S.M.F. ¶ 8.) Cote determined the value of the property to be $355, 000. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 2.) Evergreen declined to refinance plaintiffs' loans, as the loan to value ratio as newly appraised prohibited them from doing so under lending guidelines. (Id.)
Plaintiffs then sought a third appraisal from Caroline Parker, to appraise the value of the property both during the summer of 2015 and as it was when sold in the summer of 2014. (P.S.M.F. ¶ 9; Pl.'s Opp'n to Def.'s Mot. Summ. J. 2.) Parker determined the value of the property to be $355, 000 as of September 4, 2015, and $350, 000 as of August 14, 2014. (Pl.'s Opp'n to Def.'s Mot. Summ. J. 2.) Plaintiffs designated Parker as an expert witness in this action following her deposition concerning her own appraisal. (D.S.M.F. ¶ 15.)
"Summary judgment is appropriate if the record reflects that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ¶ 12, 86 A.3d 52. A fact is material if it "has the potential to affect the outcome of the suit." Deutsche Bank Nat'l Trust Co. v. Raggiani, 2009 ME 120, ¶ 5, 985 A.2d 1. A party opposing summary judgment must "come forward with affidavits or other materials setting forth by competent proof specific facts that would be admissible in evidence to show . . . that a genuine issue of fact exists." Bangor & A. R. Co. v. Daigle, 607 A.2d 533, 535-36 (Me. 1992). "Evidence of factual elements offered to prove a claimed tort . . . need not be persuasive at [the summary judgment] stage, but the evidence must be sufficient to allow a fact finder to make a factual determination without speculating." Estate of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759. Additionally, "In the unique setting of summary judgment, strict adherence to the Rule's requirements is necessary to ensure that the process is both predictable and just." Raggiani, 2009 ME 120, ¶ 7, 985 A.2d 1.
Count I of plaintiffs' Complaint asserts that defendant was negligent in providing his appraisal. Defendant is an appraiser by trade and was acting in his capacity as such. Thus, this action should be considered a professional negligence, not an ordinary negligence, claim.
To prove professional negligence, a plaintiff must show (1) a breach by the defendant of the duty owed to the plaintiff to conform to a certain standard of conduct; and (2) that the breach of that duty proximately caused an injury or loss to the plaintiff. Pawlendzio v. Haddow, 2016 ME 144, ¶ 10, 148 A.3d 713 (citing Sleeves v. Bernstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210, ¶ 12, 718 A.2d 186). To survive a defendant's motion for summary judgment on a negligence claim, a plaintiff must, "establish a prima facie case for each element of the cause of action." Mastriano v. Blyer, 2001 ME 134, ¶ 11, 779 A.2d 951. Thus, each of the elements will be analyzed below to determine if plaintiffs have met their burden.
1. Duty
First, defendant argues that he does not owe any duty to plaintiffs. A duty is defined as "an obligation, to which the law will give recognition and effect, to conform to a particular manner of conduct toward another." Budzko v. One City Ctr. Assocs. Ltd, P'ship, 2001 ME 37, ¶ 10, 767 A.2d 310, 313 (quoting Quadrino v. Bar Harbor Banking & Trust Ca, 588 A.2d 303, 304 (Me. 1991)). Whether one party owes a duty of care to another presents a question of law for the Court to decide. Id. However, because plaintiffs have failed to plead a prima facie case of breach of the standard of care, as discussed below, this Court need not address whether defendant owes a duty to plaintiff in this case.
2. Breach
In professional negligence cases, the plaintiff must, "establish the appropriate standard of care, demonstrate that the defendant deviated from that standard, and prove that the deviation caused the plaintiffs damages." Graves v. S.E. Downey Registered Land Surveyor, P.A., 2005 ME 116, ¶ 10, 885 A.2d 779 (citing Forbes v. Osteopathic Hosp. of Me., Inc., 552 A.2d 16, 17 (Me. 1988)). Liability in professional negligence cases is predicated on "deviation from the professional standard of care." Woolley v. Henderson, 418 A.2d 1123, 1135 (Me. 1980). The Law Court has articulated that "standards for demonstrating the elements of professional negligence do not differ from profession to profession." Merriam v. Wanger, 2000 ME 159, ¶ 17, 757 A.2d 778. The appropriate standard of care is the care that an ordinarily and reasonably prudent member of the profession would provide under like circumstances. See Graves, 2005 ME 116, ¶¶ 10-11 (). Thus, the applicable standard here is whether Pillsbury acted with the care that an ordinarily and reasonably prudent appraiser would provide under like circumstances. However, plaintiffs are required to submit expert testimony to further explain this standard and identify any potential breach by the defendant.
a. Lack of Expert Testimony
In order to prove professional negligence, a plaintiff must submit expert testimony to establish the appropriate standard of care and whether the defendant has breached that standard, unless the breach or lack thereof is "so obvious that it may be determined by a court as a matter of law or is within the ordinary knowledge of laymen." Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 26, 8 A.3d 677 (citing Pitt v. Frawley, 1999 ME 5, ¶ 9, 722 A.2d 358). If the plaintiff does not submit such expert evidence, the plaintiff has failed to plead a prima facie case and summary judgment for the defendant is appropriate. Pawlendzio v. Haddow, 2016 ME 144, ¶¶ 14-15, 148 A.3d 713. This rule is meant to protect against the danger that, "a jury, composed of laymen and gifted with the benefit of hindsight, will divine the breach... largely on the basis of the unfortunate result." Woolleyv. Henderson, 418 A.2d 1123, 1131 (Me. 1980) (In relation to the requirement for expert medical testimony to establish the existence and extent of any disclosure duty in medical malpractice suit.).
In the case at hand, any breach by defendant is not "obvious" as to...
To continue reading
Request your trial