204 F. Supp.2d 20 (2002) | Cited 0 times | D. Maine | May 21, 2002


This case grows out of an attempted real estate sale gone bad.Plaintiff Joseph Sutton ("Sutton") offered to purchase from Dr. RaymondCulver ("Culver") and Rhonda Rugan ("Rugan") (collectively "Defendants")a property in Southport Maine (the "Southport property") owned by them injoint tenancy. Plaintiff maintains that Defendants breached theiragreement in April of 2001 to sell him the Southport property (Count I),while Defendants dispute that a contract was ever formed. In thealternative, Defendants contend that, even if there was an oralagreement, the statute of frauds bars enforcement of any allegedagreement. Plaintiff has also filed claims for negligentmisrepresentation (Count V) and promissory estoppel (Count VIII).Plaintiff seeks specific enforcement of the alleged contract (Count III)and money damages. Defendants have filed a counterclaim for slander oftitle, seeking monetary damages from Plaintiff. Pending before the Courtare Plaintiff's motion for leave to amend the pleadings in order toinclude counts for fraud which were dismissed before trial (Docket No.43), and Plaintiff's motion to reopen the evidence in connection with thefraud counts (Docket No. 44). See also Order Affirming The RecommendedDecision Of The Magistrate Judge (Docket No. 16). After a two-day benchtrial, the Court now enters its findings of fact and conclusions of lawas required by Fed.R.Civ.P. 52(a).


1. Plaintiff Joseph Sutton and his wife, Betty Sutton, are residentsof Raymondville, Texas, who spend time during the summer at a home Suttonowns in Boothbay, Maine. Tr. at 19-20, 93. Sutton also owns a businessin Maine, Uncle Henry's, which publishes "The Buy Sell Swap Guide." 19-20. The business is run by his sons. Id. In 1999, Mr. Suttonbegan looking for oceanfront property to purchase. Tr. at 20-21.

2. Defendant Raymond Culver, M.D., ("Culver") is a practicinggastroenterologist in Waterville, Maine. Tr. at 103, 139.

3. Culver inherited oceanfront property, referred to as the Southportproperty, from an elderly patient and friend, Lenore Hilton, in 1997.Tr. at 103-04, 253, Ex. 13-16.

4. Culver and Defendant Rhonda Rugan were romantically involved, andin or about 1997, Culver deeded an undivided half interest in theSouthport property to Rugan, and the two hold the property as jointtenants. Tr. at 103, 106.

5. Both Culver's and Rugan's names are on a note for a reversemortgage on the Southport property. Tr. at 171, 300.

6. Sutton learned of the Southport property from a local restaurantowner, who indicated she thought the owners might be willing to sell it,and she drove the Suttons by the property owned by Defendants, which wasnot listed for sale at that time. Tr. at 21.

7. Later, Sutton called Culver to inquire about purchasing theproperty, and Culver indicated an interest in selling it.They initiallydiscussed a price between $850,000 and $950,000. Tr. at 22. Suttonoffered to buy the Southport property for $900,000, and Culver indicatedthat he would need to get Rugan's approval to carry out the agreement.Tr. at 112. Sutton and Culver then met in person at the property, and atthat meeting Sutton testified: "[Culver] made it very clear to me thatthe property will be sold with him, and the other party, both agreeing tosell the property." Tr. at 23. On his first visit to the house, Suttonmet Rugan briefly and they exchanged greetings, but she was not presentduring and did not participate in, the discussions about selling theproperty. Tr. at 167-68. Rugan testified that she overheard Culver tellSutton during their first meeting that Rugan was going to have to beconvinced to sell, and that Sutton need not discuss it with her. Tr. at168. Rugan testified that she heard Culver say, "if she thinks thishouse is hers, it's fraudulent and I will have her throat." Id. Culverrequested that Sutton deal only with him and not with Rugan. Tr. at51-52. But Culver never told Sutton that he had the authority to bindRugan, and Culver never told Rugan, nor was she aware, that he everrepresented to Sutton that he had her authority to sell the property.Tr. at 155, 192.

8. Sutton and Culver had multiple conversations regarding negotiatingthe potential sale during the fall of 1999, but Sutton knew that Culvernever had the authority to bind Rugan to a sale. Sutton does not disputeCulver's testimony that, "Joe and I had several conversations about thisproblem with Rhonda not selling the house and Joe asked me my opinionabout what we should do to get Rhonda to sell this house." Tr. at 115.Sutton knew that Rugan had an ownership interest in the subjectproperty, and he knew that Rugan was reluctant to sell. Despite Rugan'sreluctance, Culver discouraged Sutton from contacting Rugan directlybecause he believed he could "convince" Rugan to sell the property toSutton. Tr. at 27, 168.

9. During the fall of 1999, Joe Sutton visited the property again withBetty Sutton. Tr. at 94. In late fall, Betty Sutton and her daughtervisited the property. Tr. at 95. Rugan was not present for either ofthese visits. Tr. at 94-95.

10. Around December of 1999, Culver indicated that the deal was notgoing forward because Rugan would not agree to sell the property. Tr. at25-26. At that time, Sutton told Culver not to contact him againregarding the sale until Culver and Rugan were "both ready to sell."Tr. at 26, 28.

11. Approximately two and a half months passed with no communicationbetween Culver and Sutton, and in late February or early March 2000,Culver called Sutton. Tr. at 26-27. Culver rejuvenated talks withSutton in the spring because Culver and Rugan had decided that they werenot going to live together at the property because it was too far fromeach of their places of work. Tr. at 150. By the spring of 2000 Ruganhad decided that she was willing to sell the property, but not that shewanted to sell it to Sutton. Tr. at 155, 201. Further, Rugan toldCulver, "She was not going to deal with the issue until she dealt withMr. Sutton on her own basis, on her own stead." Tr. at 147. Culverexplained that when he reinitiated contact with Sutton in March, what "hewanted to have happen was for Joe to deal with Rhonda on a one on onebasis." Tr. at 150. Culver told Sutton that he and Rugan had mendedtheir problems, and he said, "We will sell you the property for $950,000"in cash and up front. Tr. at 28-29, 33, 118; Joint Stipulation No. 4.Sutton countered with $475,000 up front and $475,000 one year later. 30-32.Culver responded that he would have to get Rugan's approval,and he suggested that Sutton call Rugan directly. Tr. at 30, 117.Discussions continued between Culver and Sutton, and Culver indicatedthat he and Rugan wanted the second payment of $475,000 by January 15,2001. Tr. at 31. Sutton testified that Culver conveyed to him thenotion that, "if I agreed to pay it off by January the 15th of thefollowing year that he didn't understand why we wouldn't have a deal. Hedidn't say it but it was as if c'mon man, and I accepted it." Tr. at36. Sutton further testified, "When we left the conversation [Culver]did not accept my offer because he didn't have the authority to do so.It was an implied, you know, I need to talk to Rhonda [Rugan]." Tr. at36. Sutton understood that he should hire an attorney and otherprofessionals necessary to complete the transaction. Tr. 33-34; JointStipulation No. 6. At that time, Culver gave Sutton the name of hisaccountant, Bill Mangum, as his contact. Tr. at 39.

12. Culver admitted that when he had said "we will sell you theproperty" that he had "falsely represent[ed]" Rugan's willingness tosell, and that his true meaning was, "I hope she will sign." Tr. at113-14.

13. Sutton's attorney, Hylie West began drawing up documents, wentover drafts with Sutton, and then faxed a copy to Bill Mangum. Tr. at276-78. West spoke with Mangum on March 21, 2000, and in thatconversation Mangum indicated that there were some typographical changesthat needed to be made in the contract. Tr. at 279. Mangum also gaveWest the name of Culver's attorney, Warren Winslow. Tr. at 278.

14. West sent the contract to Sutton on March 21, 2000. Tr. at37-38, Ex. 2.

15. Culver contacted attorney Winslow on March 22, 2000. Ex. 41.

16. West sent the contract to Mangum on March 22, 2000. Ex. 4.Mangum faxed a copy of the contract to Winslow on March 27, 2000. Tr. at214, Ex. 7. Winslow then spoke to West and indicated that West shouldamend the contract to include an earnest money deposit for $1,000. 214-15, 279.

17. On March 29, 2000, West sent Winslow a revised contract thatincluded language referring to the earnest money deposit. Tr. at 214;Ex. 8.

18. On March 30, 2000, Winslow met with Rugan and Culver and discussedthe draft contract. Tr. at 215-16, Ex. 42. Winslow testified: "[I]twas my understanding that Dr. Culver had talked with Mr. Sutton a numberof times and they had pretty much agreed on the terms so I might not havebeen quite so specific" in going over the contract language at thismeeting. Tr. at 250. Winslow testified that at that meeting, Rugan hadsome tax questions which "suggested a disparate interest from that ofDr. Culver." Tr. at 255-57. "[O]nce she started going into the taxaspects as to how it might affect her personally as opposed to Dr.Culver, I recommended [she] get separate counsel. I was not in aposition to advise her in that indication [sic] . . . [o]r anything atthat point." Tr. 217-18.

19. Winslow testified that he had never represented Ms. Rugan in anycapacity.1 Tr. at 252. Winslow never told anyone involved in thistransaction that he represented Rugan or that he was authorized to act onRugan's behalf. Tr. at 254-55. Winslow knew that Rugan was a jointowner of the property at issue, and Rugan never told Winslow, nor did hebelieve, that Culver was authorized to act for her. Tr. at 253-55.Although Rugan was amenable to selling the property, she never toldCulver or anyone else that she was willing to sell to Sutton. Even aftermeeting with Winslow, Rugan had not agreed to sell to Sutton. Tr. at191.

20. At some point, Winslow and West agreed that the documentation wassatisfactory. Tr. at 212. On March 31, 2000, West sent a letter toSutton stating that Winslow had indicated that the contract wasagreeable. Ex. 9.

21. West called Sutton to tell him that Winslow had requested earnestmoney in the amount of $1,000. Tr. at 40; Ex. 10. On April 7, 2000,Sutton's son Jason made out a check to Pierce Atwood, Winslow's firm, for$1,000. Ex. 12. The check was drawn on the Uncle Henry's account, andcontained "Dr. Ray Culver" in the memo line. Id. Winslow received theearnest money check and, on April 11, 2000, he deposited the check intoPierce Atwood's escrow account. Tr. at 225-26. Winslow testified thathe did not form any understanding about the state of the parties'agreement on the basis of receiving the check. Tr. at 225-26.

22. The initial draft contract did not contain any mention of personalproperty, and Sutton told West that he and Culver had discussed includingsome personal property in the sale. Tr. at 38-39. Sutton wanted toamend the contract, but he did not want it to be a "deal-breaker." 41. On April 7, West faxed a request to Winslow to amend the contractby including items of personal property. Tr. at 226-27; Ex. 10.Pursuant to West's request, Winslow had someone in his office type in thepersonal property contents and, after talking to Culver, he placed thecontract in his front office for Culver and Rugan to come in, review, andsign if they agreed. Tr. at 219, 228-29; Ex. 11.

23. By April 7, Sutton had signed the contract and returned it toWest. Tr. at 43-44; Ex. 10, 11.

24. Winslow then represented to West that he believed Culver and Ruganwere going to sign the contract. Tr. at 219.

25. At some point, West discovered a discrepancy between the survey ofrecord identifying the property and the deed. Tr. at 280. Westcontacted Winslow, who had also probated the estate of Lenore Hilton anddeeded the Southport property to Culver. Tr. at 210-11. Because it wasnecessary to reopen Lenore Hilton's estate to effectuate the change,Winslow contacted Mangum, who had been Hilton's personal representative.Tr. at 210, 280. Winslow and Mangum completed the necessarydocumentation to reopen the estate and correct the deed throughcorrespondence dated April 7, 12, 17, and 18, 2000. Ex. 13-16.

26. During this time, Sutton placed calls to Culver, West, and Winslowto inquire about the status of the deal. Tr. at 46-49. West advisedSutton that Culver had said that the parties were going to sign thecontract. Tr. at 46-47. At some point, Culver's administrativeassistant called Sutton to report that Culver was out of town taking careof a sick relative in Michigan or Illinois. Tr. at 47-48. Suttontestified that Culver called Sutton directly and apologized for the delayin signing the contract. Tr. at 48.

27. Around April 12, 2000, Mangum called Rugan "out of the blue" andtold her that he had a contract that he was waiting to have her sign.Tr. at 194-95. During the conversation with Mangum, Rugan expressedsurprise that the deal was settled and ready for her signature. Tr. at195. Mangum then faxed a copy of the contract to Rugan at her office,and Rugan calledCulver and again told him that she was not going to signit. Tr. at 195-96. On or about April 14, 2000, Culver called Sutton andinstructed him to call Rugan directly; he said he thought Sutton "oughtto call Rhonda and push her." Tr. at 50, 130. Culver also asked Ruganto call Sutton. Tr. at 195-97.

Rugan's Telephone Call With The Suttons

28. Sutton called Rugan and left her a message. Tr. at 51. Rugancalled back and spoke to both Joe and Betty Sutton via speakerphone on orabout April 15 or 16, 2000. Tr. at 51, 131. During this telephone call,Rugan raised her concerns about the sale, including: (1) that the reversemortgage be paid off with the proceeds of the sale, (2) she asked forpermission to walk the dog that had formerly belonged to Lenore Hilton onthe property, (3) she wanted to keep some personal property that was inthe shed, including a pair of rose snips, and (4) she had lingeringquestions about the tax consequences of the sale. Tr. at 53-55, 171.Sutton testified that Rugan "was concerned that Ray [Culver] was going tostick her . . . [and] that Ray wasn't going to use some of that money topay off the note that apparently she and Ray used this property ascollateral on." Tr. at 53. Sutton addressed Rugan's issues about walkingthe dog and the personal property in the shed. In addition, Suttonattempted to assure Rugan that the proceeds of the sale would satisfy thereverse mortgage. Tr. at 53-54.

29. Nevertheless, Sutton believed at the end of that conversation thathe had a deal with Rugan despite the fact that Rugan was going to seekthe advice of her attorney about some difference she had with Culver.They did not discuss Rugan's personal tax consequences as a result of thesale. Tr. at 55-56, 171. Betty Sutton testified that, at the end of theconversation, Rugan was "just was going to confirm what Joe [Sutton] hadsaid with her attorney and we were going to do it." Tr. at 53. Mrs.Sutton testified that when the phone conversation with Rugan ended, Mrs.Sutton "understood that [Rugan] still had something to do, she wouldcheck with her attorney . . . and that . . . she had a separate attorneyfrom Dr. Culver."2 Tr. at 101.

30. Rugan testified that, although she agreed generally with the mostrecent terms of the sale, she told the Suttons, "I have the contract, itlooks good, but that [I] needed to get legal advice before [I] signedit. . . . If the attorney says go, I'll do it." Tr. at 171.

Rugan's Meeting With Attorney Eames

31. As a result of the lingering questions Rugan had about the taximplications of the sale and after Winslow had suggested to her that sheget her own counsel, Rugan met with attorney Donald Eames on April 18,2000.3 Tr. at 183. At theirmeeting, attorney Eames and Rugandiscussed real estate sales generally and, in particular, Maine transfertax and capital gains. Tr. at 266. Eames and Rugan did not discuss thespecific contract for sale of the Southport property to Sutton at thismeeting. Tr. at 266.

32. In early April 2000, Culver met William and Margaret Helmingwalking across Defendants' property on the beach. Tr. at 298; Ex. 45.They had just purchased the adjacent property, and they expressedinterest in buying Defendants' property as well. Tr. at 131-33. On orabout April 17 or 18, 2000, Culver, Rugan, and Bill and Peg Helming had aconversation about the Helmings purchasing the Southport property.

33. Helming, a former client of West, contacted West on or about April18 or 19, 2000, about buying Defendants' property. Tr. at 282. Westtold Helming that he could not be involved because he already representeda purchaser for that property. Id.

34. On April 24, 2000, Winslow learned of the potential new deal withHelming and returned Sutton's earnest money in the form of a new checkdrawn on Pierce Atwood's trust account for $1,000. Tr. at 134, 234,239; Ex. 17.

35. On or about April 24, 2000, Sutton called West and told him thesellers were backing out of the deal, and West then revealed to Suttonthat he had been contacted by Helming about the property. Tr. at 282.

36. On April 27, West returned the check to Winslow, and as of thedate of trial, the check had not been cashed. Tr. at 238-39; Ex. 18.

37. Between April 24, 2000 and May 8, 2000, Sutton attemptedunsuccessfully to contact Culver by telephone. Tr. at 62. On or aboutMay 3, 2000, Sutton filed a Notice of Interest in Real Property, referredto by Plaintiff as a "lis pendens." Stipulation No. 9; Ex. 23. On July11, 2000, Plaintiffs filed this lawsuit. Complaint (Docket No. 1).

38. On or about May 8, 2000, Sutton and Culver had two telephoneconversations wherein Culver acknowledged that a "deal" existed betweenSutton and Culver, but Culver contended that Rugan had never agreed tothe $950,000 contract; Sutton denied that Rugan had never accepted thedeal. Stipulation No. 8. Sutton testified that after this conversationhe understood, "apparently . . ., I wasn't going to get a sale." Tr. at64.

39. After settlement negotiations between Defendants and Plaintiff hadbroken down, on July 24, 2000, Defendants signed a contract to sell theSouthport property to the Helmings for $995,000. Tr. at 304-05. TheSouthport property has not been transferred due to the notice placing alien on the property and this pending litigation, creating a cloud on thetitle. Tr. at 299.


Oral Agreement

Plaintiff claims that Defendants breached an oral agreement to sell himthe Southport property. In order for there to be an agreement, theparties must have manifested their mutual assent to all of its materialterms. See Paris Utility, 665 F. Supp. at 952. Defendant Culver hasadmitted to making several agreements with Plaintiff to sell him theSouthport property throughout the fall of 1999 and in the spring of2000. Plaintiff maintains that he also had an agreement with DefendantRugan, a joint owner of the Southport property, based on a telephoneconversation with her on or about April 16, 2000. Both Defendantsdispute that Rugan ever agreed to sell the property to Sutton.

Plaintiff puts forth several theories for establishing an agreementwith Rugan, including that she expressly agreed and, alternatively, thatstatements made by Culver and Winslow, Culver's attorney, bound Rugan tothe deal. Plaintiff argues that Culver had actual authority to bindRugan and, alternatively, that Culver had apparent authority to bindher. Plaintiff also argues that Winslow had actual and/or apparentauthority to bind Rugan in the contemplated sale of the Southportproperty.

Express Agreement

Sutton knew that Culver and Rugan jointly owned the property and thatthe consent of both parties was required to form an agreement. There isno dispute that on several occasions Culver agreed to sell the propertyto Plaintiff. Sutton alleges that Culver had Rugan's consent to bind herto the sale he negotiated. As joint tenants, Culver and Rugan each heldan undivided one-half interest in the entire Southport property. See,e.g., Hardigan v. Kimball, 553 A.2d 1265, 1266 (Me. 1989). Unless Ruganexpressly told Culver that he could bind her to an agreement, one jointtenant can convey to another only the interest that he or she holds. SeeUnited States v. Craft, 122 S.Ct. 1414, 1421 (2002). The Court findsthat Rugan never expressly gave Culver the authority to bind her in asale of the property.

Plaintiff also argues that Rugan made an oral agreement to sell him herinterest in the property, but the evidence does not support thiscontention. Sutton testified as to his state of mind after the April16, 2000, phone call with Rugan, stating that he thought they "would havea deal" after Rugan met with her attorney and allayed her concerns thatCulver "was going to stick her." Tr. at 55-56. Given the Suttons'testimony that Rugan was going to consult an attorney regarding her taxliability as a result of the sale, the existence of an agreement withRugan was nothing more than hopeful thinking on the part of the Suttons.The Court concludes that Plaintiff has failed to establish that Ruganpersonally made any agreement to sell him the Southport property.

Apparent Authority

Plaintiff also argues that Culver had apparent authority to bind Ruganto a sale. The "essence of apparent authority" is when party A's conductis such that it would lead a third party reasonably to believe that partyB was A's agent. Rulon-Miller v. Carhart, 544 A.2d 340, 342 (Me. 1988).That is, Plaintiff must demonstrate evidence of specific instances ofRugan's conduct that reasonably could have led Sutton to believe thatCulver was her agent. The issue, therefore, is Rugan's conduct, notCulver's conduct.4 Culver made several assurances that he and Ruganwould sign the contract already signed by Plaintiff, at least one ofwhich was communicated through his attorney, Winslow, to Plaintiff'sattorney, West, and others were communicated to Plaintiff directly.Sutton was aware that Culver was trying to convince Rugan to sell.NothingRugan ever did in Sutton's presence would lead him to believethat Culver had apparent authority to bind her. In fact, after thereinitiation of contract discussions in the Spring of 2000, Culverinformed Sutton that he thought it was time for Sutton to deal directlywith Rugan. Rugan had told Culver not to represent her at the table inselling the property, and Culver told Sutton from their first dealingsthat Rugan's approval was necessary and that he thought he would bebetter able to convince her to sell that Sutton would. Tr. at 154.Culver had no apparent authority to bind Rugan because Rugan continuallyexpressed her reservations about selling the property to Sutton.

Sutton did not act like Culver had apparent authority here. Althoughearly in the Fall, negotiations Culver's statements may have misleadSutton into thinking that Culver was in the driver's seat, the subsequentevents provide no basis for a belief that Culver ever had had anyauthority to act for Rugan. In fact, the import of the events wasclearly to the contrary. When Sutton first met Rugan, he learned of herreluctance to sell from Culver, who discouraged him from contacting herdirectly. Sutton apparently obliged and permitted Culver to "deal with"Rugan, despite understanding that her express agreement would beindependently necessary in order to purchase the property. Sutton knewthat Rugan's separate agreement and her signature were required before hecould complete the deal that he had made with Culver, and so when Culverinformed him that she might be warming up to the deal, Sutton calledRugan directly and attempted to satisfy her independent concerns. Whenquestioned by the Court whether Rugan had done anything to lead Sutton tobelieve that Culver had authority from her to commit her to a deal,Sutton testified that it was Culver's "word only. I had no contact fromher. . . ." Tr. at 75. The Court finds that Culver had no apparentauthority to bind Rugan to any deal with Sutton and, therefore, no oralagreement was reached.

Statute of Frauds

Even if the Court were to find an oral agreement here, the promise isnot enforceable. Defendants argue that the Maine Statute of Frauds barsenforcement of a contract for an interest in land, "unless the promise,contract, or agreement on which such action is brought, or somememorandum or note thereof, is in writing and signed by the party to becharged therewith, or by some person thereunto lawfully authorized.. . ." 33 M.R.S.A. § 51(5) (West 2001). A "contract within the Statuteof Frauds is enforceable if it is evidenced by any writing, signed by oron behalf of the party to be charged, which . . . is sufficient toindicate that a contract with respect thereto has been made between theparties. . . ." Wilson v. DelPapa, 634 A.2d 1252, 1254 (Me. 1993) (quotingRESTATEMENT (SECOND) OF CONTRACTS § 131 (1981)). There is no writingsigned by the Defendants, here the parties to be charged in this case.

Plaintiff argues that there is sufficient evidence before the Court tosupport the existence of a contract in this case. He argues that if nowriting singly satisfies the Statute of Frauds, a series of writings maycollectively do so. Id. (citing Kingsley v. Siebrecht, 92 Me. 23, 33,42 A. 249 (1898)). The Statute of Frauds requires that the writingcontain "within itself, or by some reference to other written evidence. . . all the essential terms of the contract, expressed with suchreasonable certainty as may be understood from the memorandum and otherwritten evidence referred to, (if any) without any aid from paroltestimony." Gagne v. Stevens, 696 A.2d 411, 414 (Me. 1997). In thiscase, theonly evidence of signed writings consists of: (1) an undatedContract for Sale of Real Estate signed by Plaintiff, stating the termsfor the sale of the Southport property, and (2) the earnest money check,endorsed by Culver's attorney and deposited into an escrow account.Although the contract sets forth the specifics of the alleged agreement,it is not signed by either party to be charged. Defendant Culver hasadmitted to making the agreement, and Plaintiff argues that an exceptionto the Statute of Frauds arises when a party admits that a contract wasformed. See Paris Utility & Continental Can Co. v. A.C. Lawrence LeatherCo., Inc., 665 F. Supp. 944, 956-57 (D.Me. 1987) (Defendant's admissionof facts necessary to the formation of an oral agreement precludedDefendant from relying on any Statute of Frauds defense). Culveradmitted to having reached an agreement with Sutton, and he is,therefore, barred from raising a Statute of Frauds defense as to hisagreement.

Agency/Attorney-Client Relationship

Plaintiff argues that Winslow's acceptance of the earnest money checkis sufficient to bind Rugan to the alleged agreement. Defendants denythat any agency relationship existed between Rugan and Winslow.Throughout the relevant time period, neither Sutton nor West ever askedif Winslow represented Sutton. No one ever told Sutton or West thatWinslow represented Rugan. Sutton's attorney, Hylie West, simply assumedthat Winslow represented both Culver and Rugan in the transaction. 281. West testified that he developed this understanding from thefollowing circumstances: (1) after nailing down the contract terms withWinslow, Winslow requested a $1,000 earnest money check, (2) threetelephone calls in which Winslow indicated that the sellers would becoming by to sign the contract, and (3) the fact that the earnest moneycheck was deposited. Tr. at 281-82, 284. On cross-examination, Westadmitted that he had received "no expressed representations as to[Winslow's] authorization" to act on behalf of both Culver and Rugan.Tr. at 291-92. West also testified that his source of informationregarding Rugan's willingness to go forward with the Sutton contract camefrom either Mangum or Winslow, not from Rugan, and further, that he hadno knowledge that Winslow had ever met with Rugan. Tr. at 289, 291. Infact, Winslow never told West that he represented Rugan; rather, Westtestified: "[Winslow] told me that the sellers were fine with thiscontract. I took that to mean he represented both parties." Tr. at289. West's assumption is not determinative of the issue.

In order to determine whether a lawyer-client relationship existedbetween Winslow and Rugan, the Court applies Maine law of agency. TheLaw Court has held that "an attorney-client relationship is created when(1) a person seeks advice or assistance from an attorney, (2) the adviceor assistance sought pertains to matters within the attorney'sprofessional competence, and (3) the attorney expressly or impliedlyagrees to give or actually gives the desired advice or assistance."Board of Overseers of the Bar v. Mangan, 763 A.2d 1189, 1192-93 (Me.2001) (internal quotations omitted). "An attorney-client relationshipdoes not require the payment of a fee or formal retainer but may beimplied from the conduct of the parties." Board of Overseers of the Barv. Dineen, 500 A.2d 262, 264-65 (Me. 1985) (internal quotationsomitted). The law of principal and agent applies when a lawyer acts onbehalf of a client, and "an attorney's actions of commission as well asomission are to be regarded as the acts of the party represented and. . . any neglect of the attorney is equivalent tothat of the party."Mockus v. Melanson, 615 A.2d 245, 247 (Me. 1992); see also, Yaffie v.Lawyers Title Insurance Corp., 710 A.2d 886, 889 (Me. 1998), Berman v.Griggs, 75 A.2d 365, 367 (Me. 1950). Both Rugan and Winslow testifiedthat Winslow was never Rugan's attorney and that Winslow was neverauthorized to act on Rugan's behalf. There is ample independent evidencesupporting this conclusion.

Winslow understood that Rugan had divergent interests from Culver, andsuggested that she get separate counsel if she thought it werenecessary. Plaintiff and his wife Betty Sutton both understood fromRugan herself that she was going to consult separate counsel beforeagreeing to the deal. Sutton, an experienced seller and purchaser ofreal estate,5 well understood that Rugan's express agreement andsignature were necessary to complete any sale transaction. Plaintiff hasnot produced sufficient evidence to establish that Winslow was Rugan'sagent. Since Winslow was never authorized to act as attorney on behalfof Rugan, his deposit of the earnest money check in the firm escrowaccount does not serve as the equivalent of a signed writing on behalf ofRugan. Accordingly, the Statute of Frauds is not satisfied.

Plaintiff argues that an exception to the Statute of Frauds applies inthis case, i.e., when the party to be charged agrees to make a writingthat would satisfy the Statute of Frauds, the statute will not operate tobar enforcement of the oral contract. This exception is dependent upon aseparate ancillary promise to make a sufficient writing. Plaintiff relieson Landry v. Landry, 641 A.2d 182 (Me. 1994), where the Maine Law Courtheld that the Statute of Frauds did not bar enforcement of the oralcontract between the parties where the plaintiff relied on thedefendant's "representation that minor difficulties had preventedcompletion of the necessary documents for the . . . property, but thatthe documents would be prepared and executed in the near future. . . ."Id. at 183. Landry is distinguishable because there was partialperformance of the contract wherein the parties completed the exchange ofanother parcel of land, which was contemplated as part of a deal thatincluded the sale that was not executed.

Although Culver made an independent promise, his agreement is not atissue in this litigation. Moreover, the evidence at trial does notsupport the proposition that Rugan made any independent promise to sign.Rather, the evidence establishes that, in Rugan's telephone conversationwith the Suttons on or about April 16, 2000, she stated that she wouldagree if her concerns were satisfied after speaking to her attorney.Both Plaintiff Joe Sutton's and his wife Betty Sutton's testimony supportthis version of events. Rugan admitted that she gave Plaintiffs theimpression that she was generally in agreement, but she also told themthat she still needed to speak to her attorney. There is absolutely noevidence of any unconditional promise at any time on Rugan's part toagree to the sale or to sign the contract.

In sum, there is insufficient evidence of an agreement for the sale ofthe property, and even if such an agreement was made, the Statute ofFrauds bars its enforcement.The Court will, therefore, deny Plaintiff's claim for breach of contract(Count I).

Promissory Estoppel

Plaintiff claims that Defendant Rugan should be estopped from bringinga Statute of Frauds defense against enforcement of the alleged purchaseand sale agreement. The Maine Law Court has defined the elements of aclaim for promissory estoppel as follows:

Promissory estoppel may be invoked when a "promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

Gagne, 696 A.2d at 416 (quoting RESTATEMENT § 90; citing Chapman v.Bowman, 381 A.2d 1123, 1127 (Me. 1978)). As discussed above, Rugan madeno promise specific enough to enforce. In the absence of an agreement byRugan, the Court will not invoke promissory estoppel to prevent her fromasserting the statute of frauds defense. Therefore, the Court will denyPlaintiff's claim for promissory estoppel (Count VIII).6

Negligent Misrepresentation

Plaintiff contends that both Culver and Rugan are liable for negligentmisrepresentation. Defendants deny these claims. Plaintiff does notspecifically state what false information forms the bases of theseclaims. The parties agree that a claim for negligent misrepresentationconsists of the following elements:

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.

Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990) (quoting RESTATEMENT(SECOND) OF TORTS § 552(1). See also Mott v. Lombard, 655 A.2d 362(Me. 1995) (counterclaim for negligent misrepresentation based on delayin removal of lis pendens).

Misrepresentation by Culver

The evidence establishes that Culver falsely represented that he andRugan would sell the property for $950,000 to Sutton. Culver testifiedthat, in the spring of 2000, because he "was hoping [Rugan] would sign,. . . [he] falsely represent[ed] the whole issue" of Rugan's approvalwhen he told Sutton: "[W]e will sell you the property for $950,000."Tr. at 113-16. Culver also told Sutton that they would both be coming into sign the contract, and Culver directed his secretary to call andinform Sutton that Culver was out of town and would be delayed in comingin to sign. Culver later told Winslow that he and Rugan would be comingin to sign the contract. Based on Culver's communication, Winslowconveyed to West the general approval by both Culver and Rugan of theterms of the contract as it had been drafted. West then conveyed toSutton that Culver and Rugan would be coming in to sign the contract.

Plaintiff testified that he justifiably relied on the word of his ownattorney, West, as well that of Culver's attorney, Winslow, both of whomhad the understanding thatCulver and Rugan were "fine" with the contractas drawn up, and would be coming in to sign it. Although Culver did notmisrepresent his own intention to sign the contract — the Courtfinds that he very much wanted to sell the property — Culver erredwhen he assured various parties that Rugan would be amenable to thedeal. Culver negligently misrepresented Rugan's intentions on thefollowing occassions: (1) his reinitiation of contract discussions withSutton in early March, (2) his reassurances to Winslow in early Aprilthat he and Rugan would come in to sign the contract, (3) hisreassurances to Sutton throughout April that he and Rugan would come into sign the contract, and (4) his reassurances communicated to Suttonthrough his secretary that the delay was not cause for concern. TheCourt finds that Culver should have known throughout this period of timethat Rugan had not agreed to sign the contract. Sutton testified that herelied on Culver's assurances that the contract would be executed by bothCulver and Rugan, as sellers.

Although Sutton knew that Rugan had been reluctant to sell, the Courtfinds that Sutton reasonably relied on Culver's assertions to Suttonand, through Winslow, to West, that both Culver and Rugan were inagreement and planned to sign the contract. After Sutton's directcommunication with Rugan, he knew that she was planning to talk to herown attorney, and he could have reasonably assumed that the meeting hadtaken place and that her concerns had been assuaged when he later heardfrom Culver that the deal was going forward. Although Sutton knew thatRugan had been reluctant to deal, Sutton's reliance on assertions fromthese several parties was justified. The Court concludes that Culver wasnegligent in permitting Sutton to rely on the assertions that thecontract would be executed by Rugan.

Rugan's Misrepresentation

Plaintiff also claims that Rugan is liable for negligentmisrepresentation. He posits her liability on the theory that Culver washer agent, as well as on her own actions. The Court has already decidedthat Culver never acted as Rugan's agent, and therefore, she is notliable for his negligent misrepresentation. Plaintiff met Rugan on onlyone occasion, and he admitted that they did not talk about the sale ofthe property. Further, the Court has found that Rugan made no promisethat she would sign the contract in her telephone conversation withPlaintiff on or about April 16, 2000, which is the only other directcontact that Plaintiff and Rugan had. Because Plaintiff has failed evento allege any negligent conduct by Rugan, the Court will denyPlainitiff's claim against Defendant Rugan for negligentmisrepresentation.


The relevant time period for calculating damages is the time betweenlate March, when Plaintiff accepted Culver's counteroffer of $950,000 andhired an attorney to draft the contract, and on or about May 8, 2000, bywhich time Plaintiff: (1) had learned from Culver that the deal hethought he had made had fallen through, (2) had filed the Notice ofInterest in Real Property, and (3) anticipated commencing litigation.During this time, Culver's negligence misled Plaintiff about hisprospects for purchasing the property. Sutton learned, when he called Weston April 24, 2000, that Defendants were negotiating with a new buyer andthat the interest he believed he had was in jeopardy. Nevertheless,Culver continued to assure Sutton that the deal would go forward fornearly two weeks. Sutton learned, however, when he spoke to Culver on May8, 2000, that Rugan was not in agreementwith the deal and that neitherCulver nor Rugan were going to sign the contract. After May 8, 2000,therefore, it was no longer reasonable for Sutton to rely on Culver'sfalse representation that they had a deal. The Court finds that thefiling of this Complaint, the settlement negotiations, and the variouscosts incurred as a result of attempting to locate and purchase otherproperties are not shown to be based on reasonable reliance on Culver'smisrepresentation about Rugan's agreement with the deal, by apreponderance of the evidence.7

Plaintiff contends that he incurred damages including: $1,000 inearnest money, $1,409 in attorneys' fees paid to West to draft thedocuments, and damages for the time period including when the Notice (lispendens) was filed and thereafter. The Court will allow recovery of theearnest money deposit with interest to the date of judgment. Theattorneys' fees to West, incurred in March and April 2000, arerecoverable. See Ex. 40. The Court concludes that attorneys feesincurred after May 8, 2000, were not made in reasonable reliance onCulver's assertions that the alleged agreement would be executed.8

Plaintiff also claims damages for mental anguish. A claim for "severeor substantial mental suffering" requires objective evidence thatplaintiff's mental distress is "so severe that no reasonable man could beexpected to endure it." Vicnire v. Ford Motor Credit Co., 401 A.2d 148,155 (Me. 1979) (internal quotations omitted). There is simply noevidence that Plaintiff suffered severe mental anguish of the kindcontemplated by Maine law during the relevant time period, therefore, theCourt will deny Plaintiff's claim for emotional damages.

Defendants' Counterclaims

Defendants claim that Plaintiff is liable to them for slander of titlebased on his actions in filing the notice of interest in real property inMay 2000. In order to recover for slander of title, a plaintiff mustprove four elements: (1) publication of a slanderous statement disparaginga claimant's title to an interest in land, (2) that the statement wasfalse, (3) that the statement was made with malice or with recklessdisregard of its falsity, and (4) that the statement caused actualdamage. See Pettee v. Young, 783 A.2d 637, 642 (Me. 2001). Sutton hiredattorney LeonardGulino to file a Notice of Interest in Real Property("Notice") against the Southport property. Ex. 19, 23. Culver and Ruganargue that Sutton did this knowing that he had no interest in theproperty and with the intent to prohibit Defendants from validlytransferring the property to another purchaser. Although the filing ofthe Notice meets elements 1, 2, and 4, Defendants have failed toestablish that Sutton filed it with malice or reckless disregard of itsfalsity. Culver's negligence caused Sutton to reasonably rely for a fewweeks in April on his assertions that the contract would imminently beexecuted, but by early May, Sutton should have suspected that his hopesof purchasing the Southport property had greatly diminished. Although hehad learned of the existence of another potential buyer by this time, theDefendants have nonetheless failed to offer any evidence that he filedthe Notice with any malicious intent. Moreover, Plaintiff pledlegitimate and rational arguments for the existence of an agreement tosell the property. Plaintiff's actions were not made in recklessdisregard for the truth of the claims. The Court will deny Defendants'Counterclaim for slander of title.9

Plaintiff's Motions to Amend Pleadings and Reopen Evidence

Plaintiff has filed a post-trial motion to amend the pleadings toinclude the following counts: (1) that Culver fraudulently attempted toconvey his interest into a trust during the pendency of this lawsuit, (2)that Culver and Rugan fraudulently attempted to convey the Southportproperty to the Helmings, (3) for fraud and punitive damages, which werepreviously dismissed pursuant to Defendants' Rule 12(b)(6) motion forfailure to plead with sufficient particularity, and (4) for intentionalinfliction of emotional distress. See Docket No. 43. Plaintiff has alsofiled a motion for limited reopening of the evidence in connection withthe fraudulent conveyance claims. See Docket No. 44. Defendants haveopposed Plaintiff's motions to amend and to reopen the evidence. SeeDocket No. 45.

Rule 15(a) provides that, after trial, "a party may amend the party'spleading only by leave of court or by written consent of the adverseparty. . . ." Fed.R.Civ.P. 15(a) (2001). Since Defendants have notconsented to any amendments, the Court will determine whether leave isappropriate in this case. Rule 15(b) permits the amendment of pleadingsto conform to the evidence where "issues not raised by the pleadings aretried by express or implied consent of the parties." Fed.R.Civ.P. 15(b)(2001). Defendants did not give express consent to the trial of anyissues regarding fraud.

Plaintiff argues that Defendants impliedly consented to the trial ofthe issues raised in his amendments. "Consent to the trial of an issuemay be implied if, during the trial, a party acquiesces in theintroduction of evidence which is relevant only to that issue."Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir. 1995).Plaintiff relies, in part, on evidence of Culver's attempt to transferhis interest in the Southport property to a trust, which the Courtadmitted as Exhibit 44 over the objection by Defendants' counsel ongrounds of relevancy and surprise. Tr. at 287. The Court admitted theevidence, stating that the document could be relevant "to establishingthe status of the title for purposes of the Court framing a reliefperhaps to be given in this case." Tr. at 287. Plaintiff's counsel movedto amend the pleadings to include claims for fraud, and argued that theevidence was also relevant to those issues. Tr. at 287-88, 296-97.Defendants' counsel objected to any amendment of the pleadings and to theadmission of the evidence for that purpose. Tr. at 287-88, 297. TheCourt granted both parties the opportunity to file writtten motionsbriefing the issue of amendment, subject to a final ruling based on themerits. Tr. at 288, 296-97. Because the Court admitted Exhibit 44 forits potential use in determining appropriate relief and did not expresslyadmit it for its bearing on any claim of fraud, the Court here finds thatDefendants did not impliedly consent to the admission of this evidencefor the purpose of proving fraud.

In deciding whether to grant Plaintiff leave to amend, the Courtexamines each of Plaintiff's claims, in turn, to determine whetherDefendants impliedly consented to the trial of these issues. Plaintiffargues the the uncontested evidence at trial established DefendantCulver's intent to defraud Plaintiff. Even if the Court were inclined togrant leave to amend, Plaintiff has no standing to bring claims forfraudulent conveyance. In order to establish a claim for fraudulentconveyance under Maine's Uniform Fraudulent Transfers Act, a Plaintiffmust establish that, inter alia, "a transfer made or obligation incurredby a debtor is fraudulent as to a creditor . . . [w]ith actual intent tohinder, delay or defraud any creditor of the debtor. . . ." 14 M.R.S.A.§ 3575. Defendants own the Southport property and Sutton is not acreditor of the Defendants; therefore, as a matter of law, Defendants'attempts to dispose of the property by conveyance are not fraudulent asto Sutton. Further, these allegations are untimely and do not relate toany actions between the Defendants and Sutton, which originally gave riseto the lawsuit filed on July 11, 2000. Defendants signed a contract withthe Helmings on July 24, 2000, and Culver's attempted conveyance to atrust occurred in August 2001. See Docket Nos. 43-45. The Court willdeny Plaintiff's motion to include the claims for fraudulent conveyance,and, therefore, Plaintiff's motion (Docket No. 44) to reopen the evidenceto support those claims is moot.

Plaintiff argues that his claims of fraud and punitive damages,10previouslydismissed for his failure to plead them with sufficientparticularity, nevertheless should be revived. See Order Affirming theRecommend Decision of the Magistrate Judge (Docket No. 16) andRecommended Decision on Motion to Dismiss (Docket No. 12). Rule 9(b)requires that claims for fraud must be pled with particularity.Fed.R.Civ.P. 9(b). One of the interests served by this heightenedpleading standard is "to place the defendants on notice and enable them toprepare meaningful responses." Cutler v. F.D.I.C., 781 F. Supp. 816, 818(D.Me. 1992). Because Plaintiff's claims for fraud were properly andtimely dismissed pursuant to Rule 12(b)(6), the Court concludes thatprejudice to Defendants would result from the reassertion of counts forfraud at this late date, and Plaintiff's motion in this regard will bedenied.

Plaintiff's motion further argues that the evidence at trial provesthat a claim of Intentional Infliction of Emotional Distress (IIED) wastried with Defendants' consent. In order to recover for the intentionalinfliction of emotional distress, a plaintiff must establish: (1) thatthe defendant intentionally or recklessly inflicted severe emotionaldistress or was certain or substantially certain that such distress wouldresult from his conduct; (2) that defendant's conduct was so extreme andoutrageous as to exceed all possible bounds of decency and would beregarded as atrocious and utterly intolerable in a civilized community;(3) that defendant's actions caused plaintiff's emotional distress; and(4) that the emotional distress suffered by plaintiff was "so severe thatno reasonable man could be expected to endure it." Finn v. Lipman,526 A.2d 1380, 1382 (Me. 1987). Plaintiff has failed to demonstrate anyevidence of Defendants' intent to inflict emotional distress or thatPlaintiff, in fact, suffered any emotional distress. Nor does anyevidence support the allegation that any conduct by Defendants was"extreme and outrageous." The Court, therefore, finds that Defendants didnot consent to the trial of this issue, and the Court will denyPlaintiff's motion to include a claim for IIED.


It is, therefore, hereby ORDERED that:

(1) Plaintiff's claim for breach of contract is hereby DENIED;

(2) Plaintiff's claim for specific performance is hereby DENIED;

(3) Plaintiff's claim for negligent misrepresentation against Defendant Culver is hereby GRANTED in the amount of one thousand four hundred nine dollars ($1,409.00), representing West's reasonable attorneys' fees, and one thousand dollars ($1,000.00), representing the earnest money deposit, for a total of two thousand four hundred nine dollars ($2,409.00), plus interest;

(4) Plaintiff's claim for negligent misrepresentation against Defendant Rugan is hereby DENIED;

(5) Plaintiff's claim of promissory estoppel is hereby DENIED;

(6) Defendants' counterclaim for slander of title is hereby DENIED;

(7) Defendants' counterclaim for tortious interference is hereby DENIED;

(8) Defendants' counterclaim for malice is hereby DENIED;

(9) Plaintiff's Motion for Leave to Amend is hereby DENIED;

(10) Plaintiff's Motion for Limited Reopening of the Evidence is hereby DENIED,

1. Winslow further explained that any documentation from Plaintiff'sattorneys, e.g., the letter from Gulino dated June 13, 2000, indicatingthat Winslow represented both Culver and Rugan, was a mischaracterizationof his role. Tr. at 260.

2. Mrs. Sutton further testified: "Well, I guess that because theyweren't married, [Rugan] just kind of wanted to check with her attorneyagainst his attorney to make sure things were kosher." Tr. at 99. TheCourt finds that Mrs. Sutton's understanding of the status of theagreement after the phone conversation was driven by her relationshipwith Sutton: "I think the problem here is Joe is our boss and he signsand buys and sells, and I don't think we ever imagined somebody in thebackground would hold up the procedures. We wheel and deal a lot and Idon't know about that." Tr. at 96.

3. Rugan explained that she sought the advice of attorney Eamesbecause although Winslow "told me . . . `If you agree to this I canhandle all of it,' [he also said that i]f I had other questions I coulddo whatever I wanted. I had more questions about the IRS. I didn't likethe reply that Mr. Winslow had given me on the IRS." Tr. at 184.

4. Plaintiff argues that Chapman v. Bowman, 381 A.2d 1123, 1128 (Me.1978), should control this case. In Chapman, the Maine Law Court foundthat Defendant's designation of his wife and himself as "seller," despitetheir being joint tenants, was a holding out by him that he and his wifewere acting together to sell the property, and that she was his agent.Plaintiff then properly relied on the promise made by Defendant's wife,as her husband's agent, to the purchasers that she and her husband wouldsign the contract. In those circumstances, the wife's separate ancillarypromise was attributable to her husband and promissory estoppel wasinvoked to enforce the purchase and sale agreement.

5. Sutton testified that he had "bought and sold a large number ofparcels of real property," owned properties in South America, Africa, andthe United States including six farms, residential properties in Maine,Texas, and Prince Edward Island, and obtained through purchase and saleagreements or lawsuits in excess of a dozen properties. Tr. at 90-91.West testified that he had handled "a couple of real estate transactions"for Sutton prior to the Southport deal. Tr. at 276.

6. Since Plaintiff's claims for breach and promissory estoppel havebeen denied, the court will deny Plaintiff's claim for specificperformance (Count III).

7. Plaintiff claims that he spent "an additional $6,000 to $15,000 inattorneys' fees trying to avoid having to file a lawsuit." Tr. at 73.Plaintiff further claims that, "after we had to initiate this lawsuit,"he travelled at least 4000-6000 miles looking for other property, heincurred airplane fees, motel room charges, telephone bills and lostinterest on earnest money paid on other deals that ended up not goingthrough. Tr. at 81-82. Because the Court finds that Plaintiff'sreliance on Culver's misrepresentations, during the time period after helearned from Culver that Rugan was not going to sign, was no longerreasonable, supra, the Court finds that Plaintiff has failed to establishsufficient proof that these expenses, including fees paid "to avoid"litigation, are connected to the legal problems specific to this piece ofproperty so as to properly warrant compensation in this action.

8. Although the filing of the lis pendens on May 3, 2000 is within theapplicable time period during which Plaintiff's reliance was justifiable,Plaintiff has simply not offered any adequate proof of a sum certain indamages for additional attorneys fees causally connected to thePlaintiff's reliance on the proven misrepresentations. Plaintiff's claimthat he spent "an additional $6,000 to $15,000 in attorneys' fees"obviously encompasses time well beyond the May 8, 2000, end point ofPlaintiff's reasonable reliance. Further, Plaintiff's proof of these feesis insufficiently fact-specific to permit the Court to formulate anydecision as to their reasonableness or their connection to Plaintiff'sreasonable reliance. See Weinberger v. Great Northern Nekoosa Corp.,801 F. Supp. 804 (D.Me. 1992).

9. Defendants have also counterclaimed for tortious interference withan economic relationship and/or contract and malice. In order to provetortious interference with a contract or an advantageous economicrelationship, a claimant must show either intimidation or fraud by apreponderance of the evidence. See McGeechan v. Sherwood, 760 A.2d 1068,1081 (Me. 2000), (citing Petit v. Key Bank of Me., 688 A.2d 427, 430(Me. 1996)). "If the claim is based on fraud, the claimant must alsoshow that the claimant justifiably relied upon a false representation."Id. Defendants claim that Sutton's filing of the Notice interferred withthe contract they later formed with the Helmings. The Court finds thatDefendants have failed to demonstrate that Sutton committed any act offraud or intimidation, or that they relied on any false representationmade by Sutton. Defendants have similarly failed to show that Suttonundertook the filing of the Notice with malice towards them or that itwas of such an outrageous nature and intended consequence that malice maybe inferred therefrom. Accordingly, Defendants' counterclaims fortortious interference and malice will be dismissed.

10. Under Maine law, a person is liable for fraud if he: (1) makes afalse representation (2) of a material fact (3) with knowledge of itsfalsity or in reckless disregard of whether it is true or false (4) forthe purpose of inducing another to act or to refrain from acting inreliance on it, and (5) the other person justifiably relies on therepresentation as true and acts upon it to the damage of the plaintiff.See Fitzgerald v. Gamester, 658 A.2d 1065, 1069 (Me. 1995). "A plaintiffseeking punitive damages must show by clear and convincing evidence thatthe defendants' conduct was motivated by actual ill will, or that theconduct was so outrageous that malice is implied." Id. (internalcitations omitted). The Court finds that Plaintiff failed to demonstrateat trial evidence demonstrating either actual ill will by Rugan or Culveror any conduct evincing malice.

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