206 F. Supp.2d 38 (2002) | Cited 0 times | D. Maine | June 18, 2002


The motion for summary judgment is DENIED. There are genuine issues ofmaterial fact on causation and damages. I have serious reservations,however, over what the separate breach of fiduciary duty count adds tothe claims for breach of contract, negligence and negligentmisrepresentation. At bottom, this is an action for professionalmalpractice brought by Bookland against its accountants, Baker, Newman &Noyes. The lawsuit seeks damages for the financial losses Booklandsuffered that, it claims, were caused by accounting errors ormisrepresentations. But given the underlying professional relationshipthere is no need to create a duty here (unlike Bryan R. v. WatchtowerBible and Tract Soc'y of New York, Inc., 738 A.2d 839, 844-47 (Me.1999), where the plaintiff tried to establish a fiduciary relationshipbetween his church and himself so as to have a cause of action againstthe church for failing to protect him from sexual abuse by a churchmember). There appears to be no allegation of a breach of duty thatwould be unique to a fiduciary — for example, that the accountants tookadvantage of a transaction to enrich themselves at Bookland's expense(unlike Morris v. Resolution Trust Corp., 622 A.2d 708, 711-12 (Me.1993), where a bank officer advised the bank's mortgage debtor that sheshould continue using a particular contractor on her mortgaged home andthat the bank officer would monitor the contractor's performance when, infact, the bank officer knew that the contractor was delinquent on his owndebts to the bank and the bank officer was trying to improve his loanportfolio). There is no request to unwind a transaction or obtainrestitution of something gained during the relationship (unlike Ruebsamenv. Maddocks, 340 A.2d 31 (Me. 1975), where the court ordered thedefendant in a confidential relationship to convey his interest injointly held real estate to the two plaintiffs). This is just a claimfor financial damages growing out of the professional relationship. Tobe sure, a confidential relationship might make the misrepresentationclaim easier to prove (omission by silence may be enough, see Glynn v.Atlantic Seaboard Corp., 728 A.2d 117, 120 (Me. 1999)), but the partieshave not addressed that in their briefs. I will expect further attentionin the trial briefs as to why the case should go forward on a separateclaim of breach of fiduciary duty.


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