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STATE OF MAINE Cumberland, ss

BUSINESS AND CONSUMER COURT Location: Portland Docket No.: BCD-CV-)1-0~

tr N H 415 CONGRESS STREET PROPERTIES, LP, and HARPERS DEVELOPMENT, LLC, Plaintiffs,

Curi) -

11 . ' 4 I OJ-O!!

) ) )
)

) ) )
)

v.
URS GROUP, INC., URS CORPORATION, and T.F. PROPERTIES, INC., Defendants

) ) ) ) ) ) )

ORDER ON DEFENDANTS URS GROUP INC. AND URS CORPORATION'S MOTION FOR SUMMARY JUDGMENT
Defendants URS Group, Inc. (URS Group) and URS Corporation (URS Corp.) (collectively, the "URS Defendants") have moved for summary judgment on Counts I, II, and III of Plaintiffs Harpers Development, LLC (Harpers) and 415 Congress Street Properties, LP's (415 Congress) complaint. For the reasons stated within, the court grants the motion in part and denies the motion in part.

BACKGROUND
The following facts are undisputed, except where noted. This case arises out of a

Property Condition Assessment ("PCA") performed by URS Corp. for Harpers on a building located at 415 Congress Street in Portland, Maine ("the building"). (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F.
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1;

1.) URS Corp. provides, among other things, professional architecture and
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engineering services to its clients. (Defs.' Supp. S.M.F.

Pl.'s Opp. S.M.F.

~ 7.)

Harpers is

a leading, experienced real estate developer in the State of Maine. (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F.
2004.
~ 2.) 415

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Congress is a Maine limited partnership formed on September 21,

(S.M.F.

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3.) Harpers has no ownership interest in 415 Congress; they are entirely
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separate entities. (Defs.' Supp. S.M.F.

Pl.'s Opp. S.M.F.

~ 6.)

Defendant T.F. Properties,
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Inc. (T.F. Properties) sold the building to 415 Congress. (Defs.' Supp. S.M.F. S.M.F.
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Pl.'s Opp.

9.)

On March 5, 2004, Harpers contracted with Defendant T.F. Properties, Inc. (T.F. Properties) to purchase the building, and later they entered into a Reinstatement of a First Amendment to the Purchase and Sale Agreement. (Defs.' Supp. S.M.F. S.M.F.
~ ~ 20, 25.) ~~ 20, 25;

Pl.'s Opp.

In November 2004, Harpers assigned all of its "right, title and interest in

and to any and all architectural plans, engineering work, [and] inspection reports" acquired by Harpers "in connection with the acquisition or development of' the building to 415 Congress, "together with any and all rights and claims relating thereto." (Pl.'s A.S.M.F. Supp. S.M.F.
~ 20; ~ 12.) 1

Defs.'

Pl.'s Opp. S.M.F.

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T.F. Properties then sold the building to 415
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Congress on November 22, 2004. (Defs.' Supp. S.M.F.

Pl.'s Opp. S.M.F.

~ 9.)

URS Corp. and Harpers entered into an "Agreement for Professional Services" (the "Agreement") on February 5, 2004. (Defs.' Supp. S.M.F.
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Pl.'s Opp. S.M.F.

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The

Agreement contains provisions entitled "Risk Allocation," "No Consequential Damages," "No Third Party Rights," and "No Assignment," and the parties do not dispute the content of these provisions. (Defs.' Supp. S.M.F.
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Pl.'s Opp. S.M.F.

~~ 16-19.)

The Agreement

contemplates that the scope of services it covers will be set forth in separate written work orders. (Defs.' Ex. 4, Art. I.) The parties dispute whether Harpers hired URS Corp. to perform

1 The URS Defendants both deny and object to this statement of material fact. The URS Defendants' denial is really however, more in the nature of a qualification than an outright denial. The URS Defendants point out that the Agreement for Professional Serviced executed between Harpers and URS Corp. prohibits any party from relying on the PCA unless URS gives its consent, but does not challenge the purported assignment. (Defs.' Reply

a "professional" PCA, but do not dispute that at least one of the URS Defendants did in fact conduct the PCA. 2 (Defs.' Supp. S.M.F.
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Pl.'s Opp. S.M.F.

~ 8.)

The work order to

perform the PCA on the building was executed on October 4, 2004, between Harpers and URS Corp. (Defs.' Supp. S.M.F.
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Pl.'s Opp. S.M.F.

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URS Corp. performed a site visit of the building on October 13, 2004. (Defs.' Supp. S.M.F.
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Pl.'s Opp. S.M.F.
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~ 36.) 3

Tony DiNicola, an architect, performed the PCA.
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(Defs.' Supp. S.M.F.

Pl.'s Opp. S.M.F.
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DiNicola has never been licensed to practice
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architecture in Maine. (Pis.' A.S.M.F.

Defs.' Reply S.M.F.
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URS Corp. completed a
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draft PCA on October 19, 2004. (Defs.' Supp. S.M.F.

Pl.'s Opp. S.M.F.

URS Corp.
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delivered the draft PCA via e-mail to Harpers on October 20, 2004. (Defs.' Supp. S.M.F. Pl.'s Opp. S.M.F.
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Harpers reviewed the report and informed URS Corp.: "This looks
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very good! It is ready to print.'' (Defs.' Supp. S.M.F.

Pl.'s Opp. S.M.F.

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URS Corp.

corrected several typos in the report and sent a clean, final copy to Harpers on October 28,
2004.

(Defs.' Supp. S.M.F.

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Pl.'s Opp. S.M.F.

~50.)

The PCA's statement of the condition of the fa<;ade of the building forms the basis of Plaintiffs' claims against the URS Defendants. (See Compl. Opp. S.M.F.
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Defs.' Supp. S.M.F.

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Pl.'s

In their statements ofmaterial facts, Plaintiffs and URS Defendants cite to

different exhibits for the language of the report regarding the fa<;ade. The URS Defendants cite to the draft, dated October 19, 2004, and sent to the Plaintiffs on October 20, 2004;

There is some dispute as to what party was in fact hired. (SeeDefs.' Supp. S.M.F. 1111 8, 10-12; Pis.' Opp. S.M.F. 1111 8, 10-12.) The URS Defendants asserts that URS Group and URS Corp. are separate and distinct entities. (Defs.' Supp. S.M.F. 11 10.) The URS Defendants also claim that URS Group had no involvement in any transaction or occurrence that is the subject of the plaintiffs' complaint. (Defs.' Supp. S.M. F. 11 11.) Accordingly, the URS Defendants contend that there is no contract between either plaintiff and URS Group. (Defs.' Supp. S.M.F. 11 12.) Plaintiffs aver that there is no record evidence to support separate corporate entities, and the record evidence suggests Plaintiffs were doing business with URS Group. (Pis.' Opp. S.M.F.1111 10-12.)
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3 The URS Defendants state that they "performed the PCA on October 13, 2004," but Plaintiffs properly deny the statement and point out that the record citations only support that the site visit or inspection occurred that day. (Defs.' Supp. S.M.F. 11 S6; Pls.' Opp. S.M.F. 11 56.)

Plaintiffs cite to the final report, dated and sent on October 28 2004. (See Defs.' Supp. S.M.F.
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Pl.'s Opp. S.M.F.

~53-55.)

The parties do not dispute, however, the content of the

PCA regarding the fa<;ade, which is identical in both versions:

Download CUMcv-11-03.pdf

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