Preview:

. -
-1 '
STATE OF MAINE SUPEWOR COURT CUMBERLAND, ss. -:CIVIL,ACTION /DOCKET NO. CV-05-720
. , --... -
., , ,
--,. . . J
'' '.._
-,-i.,:,?2
-.-.
, L . I . . -
" . .' 7-d->/o!l
JASON ARTHUR SNYDER
Plaintiff
ORDER ON
DEFENDANTS' MOTION
TO DISMISS VERRILL DANA, LLP, ANTHONY CALCAGNI, CHARLES OESTREICHER, THE BOULOS COMPANY, INC., JOSEPH BOULOS, and KENT WHITE
Defendants
Before the court are two motions to dismiss plaintiff Jason Arthur Snyder's ("Plaintiff") complaint. The first motion to dismiss is made by defendants Verrill Dana, LLP, Anthony Calcagni and Charles Oestreicher (collectively, "Verrill Dana"). The second motion to dismiss is made by defendants The Boulos Company, Inc., Joseph Boulos, and Kent White (collectively, "Boulos").

BACKGROUND
In 1999, Plaintiff was the owner in joint tenancy, along with hs brother, of real estate in Portland, Maine comprising approximately 75 acres ("Rand Road Land.") In December, 1999, Plaintiff and his brother conveyed ownership of approximately 47 acres of the Rand Road Land ("Parcel") to the City of Portland for $1.7 million ("Sale"). Plaintiff claims that the Parcel was worth significantly more than $1.7 million. Verrill Dana represented Plaintiff and his brother in ths transaction; Boulos was the real estate listing agent for the Rand Road Land, and received a commission from the Sale.
In six counts, Plaintiff claims (I) legal malpractice against Verrill Dana, (11) misrepresentation against Boulos, (111) breach of contract against Boulos, (IV) breach of the covenant of good faith and fair dealing against Boulos, (V) Consumer protection [commercial context] against all defendants, and (VI) breach of fiduciary duty against all defendants, relating to the Sale.

DISCUSSION
On its motion to dismiss, Verrill Dana asserts that Plaintiff should be judicially estopped from claiming that he personally held title to the Parcel in 1999'. Verrill Dana asserts that, in a judicial settlement reached in 2004 with members of his family ("2004 Agreement"), Plaintiff acknowledged that he held the Parcel jointly with his brother as co-trustee of a trust established by hs father for the benefit of the members of his immediate family. Verrill Dana claims, therefore, that any claim relating to the Sale belongs to the trust acknowledged by the 2004 Agreement, and not to Plaintiff himself. Finally, Verrill Dana claims that ths deficiency in Plaintiff's pleading should be fatal to the claims asserted because Plaintiff was aware of his status at trustee at the time he filed the complaint, and therefore should not be allowed to amend the complaint to relate back to the date of the original filing. (the statute of limitations on these claims ran shortly after Plaintiff filed the complaint.) Verrill Dana also separately asserts that Plaintiff does not have a claim for which relief may be granted
' Verrill Dana suggested at oral argument that perhaps a better theory on which to base this motion to dismiss would be collateral estoppel. Collateral estoppel prevents the relitigation of factual issues already decided if the identical issue was determined by a prior final judgment and the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding. State v. Hughes, 2004 ME 141, 9[ 5; 863 A.2d 266, 268 (quoting Cline v. Maine Coast Nordic, 1999 ME 72, P 9, 728 A.2d 686, 688.) Although the court stated in the order approving the 2004 Agreement that "Defendants Jason A. Snyder and Simon A. Snyder hold title to certain parcels of real estate as trustees of the said trust," this finding was made solely for the purpose of settling claims among the family members, and applies only to the parties to that suit. It did not affect the brothers' transactions with third parties, or, with respect to the Parcel, change their legal status as owners in joint tenancy prior to its sale to the City of Portland. Accordingly, as the issues in that suit are not related to the issues in this suit, collateral estoppel is inapplicable. See id.
because it was released by the terms of the 2004 Agreement from any claims relating to the Sale. These positions are adopted by Boulos as the bases for its motion to dismiss.
Judicial estoppel is not applicable to this case. First, Plaintiff's position in this litigation, that he was a joint owner along with hs brother of the Parcel at the time of the Sale, is not inconsistent with the terms of the 2004 Agreement. See New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (stating, "a party's later position must be clearly inconsistent with its earlier position.") As acknowledged above in fn. 1, the 2004 Agreement affected rights among the litigants in that dispute only, and did not change Plaintiff's legal status with respect to thrd parties.
Second, Plaintiff derives no unfair advantage and imposes no unfair detriment on Verrill Dana or Boulos in bringing this claim on hs own behalf as the former owner, in joint tenancy, of the Parcel. See id. (stating, "a[nother] consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.") Whether Plaintiff is required, as a result of the 2004 Agreement, to share any proceeds of this litigation with his family members can be of no consequence to Verrill Dana or Boulos. As joint owners of the Parcel, only Plaintiff and his brother may bring action against Verrill Dana and Boulos for their actions relating to the Sale; the 2004 Agreement gives Maria and Carolyn Snyder (Plaintiff's sister and mother) rights only as against Plaintiff and his brother, and does not establish any right by Maria or Carolyn Snyder to sue thrd parties, such as Verrill Dana or Boulos, for their actions related to the Sale.
Finally, judicial estoppel is inapplicable because Plaintiff's assertion in this litigation that he had an ownershp interest in the Parcel prior to the Sale does not create any perception that the court was misled in the litigation related to the 2004 Agreement. See id. (stating, "courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.") The court's findings in that litigation were made upon the parties' joint motion, for the purpose of settling their claims. They were not made on the basis of the court's review of evidence. Indeed, the 2004 Agreement recites, "Jason A. Snyder has denied the allegations of the lawsuit, but has agreed to acknowledge [them] as part of the settlement of the lawsuit.. .".
Given that there is no basis to estop Plaintiff from asserting a claim in hs own behalf, the court does not reach Defendants' subsequent arguments on this issue. Defendants have also failed to demonstrate that they were released from liability for their actions in connection with the Sale by the terms of the 2004 Agreement. Paragraph 9 of the 2004 Agreement contains a release related only to Plaintiff, and Plaintiff's brother, sister and mother.
The entry is: Defendants' motions to dismiss are DENIED.
A
Dated at Portland, Maine this ?O day of
$obert E. Crowley ' Justice, Superior Court
F COURTS
~ndCounty
30x 287 ne 041 12-0287
THEODORE KIRCHNER ESQ -Defs. Verrill Dana, Calcagni & PETER DETROY ESQ Oestricher NORMAN HANSON & DETROY PO BOX 4600 PORTLAND ME 04112-4600
IF COURTS  
and County  
Box 287  
.in@041 12-0287  
DAVID VAN  DYKE  ESQ -Plaintiff  
HORNBLOWER LYNCH RABASCO &  VAN DYKE  
PO BOX 116  
LEWISTON ME 04243-0116  

ROBERT FRANK ESQ -Defs. J. Boulos, K. White &
HARVEY & FRANK The Boulos Co.
PO BOX 126
PORTLAND ME 04112-0126

~'.~ /.T= CF MAf~,!E
STATE OF MAINE ~: d.~ BERL ANO.

Download CUMcv-05-720.pdf

Maine Law