Moore V. Erickson and Ralph, Inc.

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STATE OF MAINE SUPERIOR COURT Sagadahoc, ss. Docket No. CV-10-33 ' , ¢ {l _\ _j L- /: ) /' DWIGHT A. MOORE and ANNE MARIE MOORE, Plain tilTs v. ORDERANDIUDGMENT ERICKSON AND RALPH, INC., d/b/a/ RALPH'S HOME SALES, and M.M.H. PRESTIGE HOMES, INC., Defendants This matter is before the court on the motion of Defendant M.M.H. Prestige Homes, Inc. for summary judgment; the motion of Erickson and Ralph Inc. for summary judgment; and the motion of Plaintiffs Dwight and Anne Marie Moore, motion to amend the complaint. BACKGROUND rl11e undisputed facts of this case may be briefly summarized as follows: 1 On or about September 16, 2003, Plaintiffs Dwight and Anne Marie Moore entered into an agTeement with Defendant Erickson and Ralph, Inc., d/b/a/ Ralph's Home Sales ("Ralph's 1 The court notes that the Plaintiffs have filed numerous "qualified" statements in response to Prestige's Statement of Material Facts. However, the majority of these statements do not contain supporting record cit-1.tions as required by M. R. Civ. P. 56(h)(2), therefore, the court deems these facts admitted. SeeM. R. Civ. P. 56(h)(4); see also Platz Assocs. v. Finley, 2009 ME 55,~ 18,973 A.2d 743,749. Similarly, many of the Plaintifls' Additional Statements of Material Fact do not contain supporting record citations, and therefore are not considered in deciding these motions. M. R. Civ. P. 56(h)(2). -:Jc ; , Homes") for a "Ralph's Homes Modular Package" for tl1eir property located at 19 Granite Ledge Road, Phippsburg, Maine. The package included, but was not limited to, a foundation, backlill, drainage, excavation, water line, sewer line, finish work, loom and seed, as well as a modular home built to plans and specifications provided by Defendant M.M.H. Prestige Homes, Inc. ("Prestige"). Ralph's Homes entered into a contract witl1 Prestige under which Prestige would sell to Ralph's Homes a modular home to be delivered to tl1e Phippsburg address. 2 Prestige was compensated for tl1e home by Ralph's Homes, and was not paid directly by Plaintiff<>. Prestige contends that tl1e only parties to tl1e home sale contract were Prestige <md Ralph's Homes, while the Plaintiffs contend tl1at, as the customers, tl1ey were also parties to tl1e contract. Prestige admits tl1at tl1e home sold to Ralph's Homes was customized for Plaintiffs, and tl1at Prestige prepared floor plans, elevation pl;ms, st.-'lir plans, and foundation plans specifically for tl1e Plaintiffs' home. Some of tl1ese plans were stamped: "Issued for Construction Ccmnot Proceed witl10ut: Customer Approval ... ," and were signed by Plaintiff Dwight Moore. The contract between Ralph's Homes and Prestige stated that all site, foundation, and site finish work for tl1e Phippsburg home would be completed by parties otl1er tl1an Prestige. Prestige did not construct tl1e foundation for tl1e Phippsburg home, nor did Prestige at any time complete maintenance work on tl1e foundation. The construction of tl1e foundation was completed prior to tl1e delivery of tl1e home. The modular home arrived in Phippsburg on dates during December 2003 and January 2004. It came in four parts via truck from Prestige's facility in Sussex, New 2 Generally, Prestige does not contract directly witl1 consumers but instead sells its products tl1rough vendors like Ralph's Home. (Prestige S.M.F. ~ 12.) 2 Brunswick. Prestige completed delivery of the home and was paid in full by Ralph's Home on january 13, 2004. The Plaintitls and Ralph's Homes closed on the modular home package on March 1t, 2004. Plaintifls were provided with Prestige's Home Owner's Manual that included a W<UTanty & Service Program Section that stated: "Your Prestige warranty gmrrantees all workmanship and materials used in the construction of your home." Additionally, according to the Perform<mce Stand<rrds Section of the Manual, "Prestige Homes' warranty covers all workmanship and materials supplied by Prestige Homes for a period of 12 months from the date of possession." (P.A.S.M.F. ~ 5; Prestige R.S.M.F. ~ 5 (admitting the statement despite objections) 3). The Ralph's Homes Service Policy for Modular Homes also limited Ralph's Homes' warr;.mty on the home to one year: fi·om M;.rrch 4, 2004 through March 5, 2005. (Ralph's S.M.F. ~~ 4-6.) The Service Policy was made a part of the contract through the Purchase and Sale Addendum that was initialed by the Plaintiffs. (Jd.) On March 25, 2004., Dwight Moore and Prestige construction supervisor, Norman Harding, completed a Warranty Inspection/Customer Orienta.tion Fom1. This fonn, signed by both Mr. Moore and Mr. Harding, notes Plaintiffs numerous complaints of defects in the home, including a complaint regarding the defective roof. On or about January 18, 2005, the Plaintiffs communicated to Ralph's Homes that the foundation wall had cracked. The Plaintiffs admit to communicating with both Defendants about these defects over the course of the next five yecrrs. Plaintifls were continually in contact with 3 Prestige docs not dispute, for the limited purpose of summ;.rry judgment, the existence of defects as set forth in Plaintifls' Additional Statements of Material Fact, and the court views Plaintifls' allegations of defects in a light most favorable to them. 3 both Defendants over the next five years about the remediation of the defects Plaintiffs asserted needed to be addressed. On April 21, 2010, Plain tills filed the current complaint against the Defendants alleging that their failure to construct the home in a reasonable and workm<mlike m<mner resulted in defects in the roof and foundation and caused injuries to the Plaintiffs. Specifically, the complaint slc'ltes the following claims: Count I: Negligence; Count II: Breach ofWarr<mty; Count III: Breach of Agreement; Count IV: Breach of Covenant of Good Faith <md Fair Dealing; Count V: Unfair Trade Practice; Count VI: Breach of Warranties Under the Home Construction Act; and Count VII: Breach.oflmplied Warranty of Fitness. On December 20, 2010, Prestige filed the pending motion for summary judgment. On .January 6, 2011, the Plaintifls filed the pending motion to cunend the complaint to add a claim of fraud (Count VIII). On january 25, 2011, Defendant Ralph's Homes also filed a motion for summary judgment. The court addresses these motions below. DISCUSSION I. Motion to Amend the Complaint: In the interests of finality and judicial economy, courts should rule on a motion to cunend before considering a dispositive motion, such as a motion to dismiss or a motion for sunumuy judgment. See Sherbert v. Remmel, 2006 ME 116, ~8, 908 A.2d 622, 624; Kelly v. Michaud's Ins. Agency, 651 A.2d 345,346 (Me. 1994). After a responsive pleading is served, a plaintifl' may amend its complaint "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." M.R. Civ. P. 15(a); see also Al'statlliou v. Aspinquid, Inc., 2008 4 ME 145, ~ 21, 956 A.2d 110, 118. "Whether to allow a pleading amendment resl'i with the court's sound discretion." Holden v. Weinschenk, 1998 ME 185, ~ 6, 715 A.2d 915, 917 (quoting Divers1fied Foods, Inc. v. First Nat'l Bank o[Boston, 605 A.2d 609, 616 (Me. 1992)). Courts should freely allow an amendment to a complaint except for bad faith, dilatory t.-1ctics, or undue delay resulting in prejudice to the opponent. Longiey v. Knapp, 1998 ME 142, ~ 19, 713 A.2d 939, 945; sec also 1 Field, McKusick & Wroth, Maine Civil Practice§ 15.4 (2d ed. 1970). However, where "a proposed amended complaint would be subject to a motion to dismiss, the court is well within its discretion in denying leave to amend." See Glynn v. CityolS. Pordand, 640 A.2d 1065, 1067 (Me. 1994). The Plaintifis' motion to amend seeks to add a claim of fraud to their complaint. Fraud occurs when a defendant: (1) makes a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance upon it, and (5) the plaintiff justifiably relies upon the representation as true and acts upon it to his damage. l./stadu'ou, 2008 ME 145, ~ 15, 956 A.2d at 116 (citing St. Francis de Sales Fed. Credit Union v. Sun Ins. Co. o[N. Y., 2002 ME 127, ~ 26, 818 A.2d 995, 1003). Therefore, "(p]rocedurally, a party seeking to amend its complaint to include a fraud count must provide 1) a description of the fraud with particularity in its motion to amend and 2) a draft order granting it pennission to include the count of fraud." Anderson v. Cigna Heald1care olMaine, 2005 Me. Super. LEXIS 139 (Oct. 27, 2005) (citing M.R. Civ. P. 7(b)(3); M.R. Civ. P. 9(b)). Here, the Plaintifls' submitted amended fraud claim states: Ralph's and/or Prestige made representations of material fact to the Plaintiffs on 5 numerous occasions that they were aware of the defects in the structure, that they (sic) were legitimate d;:unage claims, that they had an obligation to make the necess;:rry repairs, and that they would do so. (Am. Compl. ~ 46.) These representations of material facts by Ralph's <md/or Prestige constituted false and material misrepresent.-1.tions to Plaintiffs, and were made with the knowledge that they would not, and had no intent of, making the necess;:rry repairs to Plaintiffs' structure. (Am. Compl. ~ 47.) Ralph's and/or Prestige false and material misrepresentations to Plaintiffs were made with knowledge of their falsity or in reckless disregard of whether they were true or false. (Am. Compl. ~ 48.) These false ;:md material representations made by Ralph's and/or Prestige were made for the purpose of inducing Plaintiffs to act or defer action in reliance upon them, in that Plaintifls reasonably believed Ralph's and/or Prestige would honor their obligations and make the repairs. (Am. Compl. ~ 49.) Plaintiffs justifiably relied upon the representations made by Ralph's and/or . Prestige as being true and acted upon them or deferred action on them to their detriment. (A.m. Compl. ~50.) The Plaintiffs have failed to plead fraud with particularity as required by M.R. Civ. P. 9(b). The Plaintiffs never specified who made the alleged misrepresentations, or the specific content of the misrepresentations. Although "[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally" when pleading fraud, the actual circumst.-1.nces surrounding the allegation must be plead with particularity. M.R. Civ. P. 9(b); see also Barnes v. McGough, 623 A.2d 144, 146 (Me. 1993). A distinct reason why the proposed fraud count would likely not survive a motion to dismiss is that the gravcunen of the Plaintifls' fraud allegations, appears to be that the Defendants made promises to remedy defects that they never intended to keep. Under Maine law, a dmnages claim for fraud requires misrepresent.-1.tion as to an existing fact, and a breach of a promise to do something in the future cannot qualify, at least in the absence of some special relationship between the parties, which is not alleged. See Boivin v.]ones 6 & Vining~ Inc., 578 A.2d 187, 188-89 (Me. 1990); Shine v. Dodge, 130 Me. 440, 443, 157 A. 318 (1931). As the Plaintiffs have not alleged fraud with adequate particularity, and because their claim would likely not withstcmd a motion to dismiss, amendment would be futile, and their motion to mnend the complaint is denied. II. Motions for Summary Judgment A. S&·wdard olReview "Summary judg1ncnt is appropriate when review of the parties' statements of material f~1cts and the referenced record evidence, considered in the light most favorable to the non-moving party, indicates that no genuine issue of material fact is in dispute." Blue S&u Corp. v. CKF Props. LLC, 2009 ME 101, Dep'tof1};wsp., 2008 ME 106, Comm'rs, 2004 ME 157, ~ ~ ~ 23, 980 A.2d 1270, 1276 (citing Dyer v. 14,951 A.2d 821, 825; S&1.nleyv. Hancock County 13,864 A.2d 169, 174); see also M. R. Civ. P. 56. A party wishing to avoid summary judgment must present a prima facie case for the claim or defense that is asserted. Reli;wce Nat'] Indem. v. K11owles Indus. Serv., 2005 ME 29, ~ 9, 868 A.2d 220, 224-25. A genuine issue is raised "when suHicient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, A.2d 778, 781. A material f~1ct ~ 8, 828 is a htct that has "the potential to aflect the outcome of the suit." Burdzel v. Sobus, 2000 ME 81, ~ 6, 750 A.2d 573, 57 5. "If material facts are disputed, the dispute must be resolved through fact-finding." Curtis v. Porter, 2001 ME 158, ~ 7, 781 A.2d 18, 21-22. B. Statute olLimilat.ions 7 The parties disagree about whether the Plaintiffs' claims <rre barred by the statute of limitations. 1. Maine's Unifonn Commercial Code Plaintiffs' contract and warranty claims are governed by the four-year st.-'ltute of limitations under Maine's Unifonn Commercial Code ("U.C.C.") which controls all "transactions in goods." See 11 M.R.S.A. § 2-102. The U.C.C. has a four-year st.-'ltute of limit.-'ltions for actions involving transactions in goods. See 11 M.R.S. § 2-725(1) ("An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.") According to the U.C.C.: [a) cause of action accrues when the breach occurs, regardless of the aggrieved party's lack ofknowledge ofd1e breach A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future perfonnance of tl1e goods <md discovery of tl1e breach must await tl1e time of such perfonnance tl1e cause of action accrues when tl1e breach is or should have been discovered . . A cause of action for personal injuries arising under tllis Article for breach of warranty occurs when the injury t,.'lkes place and is governed by tl1e limitation of action period under Title 14, section 752. 11 M.R.S. § 2-725(2) (emphasis added). Here, tl1e tender of delivery occurred no later tl1an]anuary 13,2004. Therefore, under tl1e U.C.C., tl1e Plaintifls should have filed tl1eir claims by January 13, 2008. However, botl1 Defendants reduced tl1e warranty period to one year as stated in tl1e Prestige Home Owner's Manual and Ralph's Home Service Policy, resulting in a st.-'ltute of limit.-'ltions deadline of no later tl1an March 5, 2005.4 The complaint was not filed until 4 Pursuant to tl1e Ralph's Home Service Policy, its warranty ended on March 5, 2005. (Ralph's S.M.F. ~~ 1-6.) The Prestige warranty was valid for 12 months "from tl1e date of 8 April 21, 201 0. Accordingly, under either a one-year or a four-year statute of limitations, the Plaintiffs' contract and warranty claims are untimely. 5 2. Maine's General Statute of Limitations The Defend<mts also contend that the Plaintiffs' remaining claims are barred by Maine's stand<rrd six-year statute oflimitations. Under Maine law, a civil cause of action must be brought within six years of the date it accrued. 14 M .R.S. § 752 ("All civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards, ... except as otherwise specially provided."). "The general test for detennining when a cause of action accrues is when a plaintiff 'received a judicially recognizable injury."' johnston v. Dow & Coulombe, 686 A.2d 1064, 1065-66 (Me. 1996) (citing Bozzuto v. Ouellette, 408 A.2d 697, 699 (Me. 1979) (noting that the plaintill's "ignorance of the defend<mt's misfeas<mce for about seven years does nothing by itself to prevent the running of the statute of limitations")). "lA) cause of action sounding in tort accrues when the plaintiff sust.-llns hann to a protected interest." !d. at 1066 (citing Chiapetta v. Clark Assocs., 521 A.2d 697, 699 (Me. 1987)); sec also McLaughlin v. Supeni1tcndingSch. Comm., 2003 ME 114, ~ 22, 832 A.2d 782, 788 ("In other words, it accrues at 'the point at which a wrongful act produces an injury for which a potential plaintiffis entitled to seekjudicial vindication."') citing Williams v. Ford Motor Co., 342 A.2d 712, 714 (Me. 197 5)). "'When the Legislature does not give explicit possession." (P.A.S.M.F. ~ 5; Prestige R.S.M.F. ~ 5.) As the delivery of the home was complete by January 13, 2004, (Ralph's S.M.F. ~ 8.), tl1e warranty expired on january 13, 2004. 5 Similarly, Plaintiffs' Unfair Trade Practices Act claim is also untimely, as such a claim is derivative of the alleged contract claim. (Compl. ~~ 28-33.); see also 5 M.R.S. §§ 207, 213; 10 M.R.S. §§ 1487, 1490. 9 directions, 'definition of the time of accrual ... remains a judicial function."' Dunelawn Owners'Ass/1 v. Gendreau, 2000 ME 94, Trust Co., 1999 ME 11.7, ~ ~ 11,750 A.2d 591,595 (citing Ncv1i1 v. Union 21t, 726 A.2d 694, 699). For example, in .Johnston v. Dow & Goulombe, supra} the Law Court found that a property owner's cause of action against a surveyor "accrued for purposes of the st-1tute of limitations when the surveyors pedonned" their negligent survey. 686 A.2d at 1066. The Court concluded that, although at the time of the survey the plaintiffs "had not yet suffered the pecuni<rry loss of the quiet title action that would later be brought against them," tl1ey sufTered tl1eir "if\iury at tl1e time of tl1e performance of the survey," and aflinned judgment in tl1e surveyors' f~lVor. ]olmslon v. Dow & Coulombe, 686 A.2d at 1065-66. Similarly, in Dunelawn Ownc1:s'Ass'n v. Gendreau, , a condominium association and condominium owner sued the condominium developer for fire dmnages due to tl1e negligent installation of electrical wiring. 2000 ME 94, ~ 12, 750 A.2d at 595. The Law Court concluded tl1at the plaintiffs' claims were barred by the statute of limitations because the claims "accrued citl1er at tl1e time that construction was completed ... or at the time of purchase," because "it was at tl10se times tl1at ltl1e defendant! breached a duty to, respectively, construct a condominium and convey a condominium unit free of material defects." Id. ~ 12, 750 A.2d at 595-96 (citing Andreoli v.]olm Henry Homes} Inc., 696 N .E.2d 1193, 1196 (Ill. App. Ct. 1998) (holding tl1at "the time of accrual ... governing a purchaser's suit against a builder to recover for latent defects in the purchaser's new house begins from the date when tl1e house is conveyed");]aworsky v. Frolich, 850 P.2d 1052, 1054 (Okla. 1992) (applying rule tl1at "the statute oflimit-1tions starts to run for breach of a construction contract ... 'when tl1e contract is completed"'); Stephens v. Creel; 429 So. 2d 10 278, 280 (Ala. 1983) (holding that breach of W<UTanty of habitability is a contract claim that accrues when the defendant completes performance); Ciiamel F. Ridge View Really Coi]J., 115 A.D.2d 279,496 N.Y.S.2d 154, 154. (N.Y. App. Div. 1985) ("In our view, plaintiffs' claim is essentially one for breach of contract and, therefore, could not accrue later than the date the contract was completed .... ")). Here, it is undisputed that both the foundation and Prestige's construction of the home were completed prior to the delivery date of January 13, 2004. (Prestige S.M.F. 'II'II 8, 15.) It is also undisputed that the Plaintiffs <md Ralph's Homes closed on the purchase of the home on March 4, 2004. (Ralph's Home S.M.F. 'II 9.) Therefore, in order for the Plaintiffs' claims to be timely they had to be filed by no later than March 4, 2010. Dunelawn, 2000 ME 94, 'II 12, 750 A.2d at 595. As the Plaintiffs failed to do so, their claims arc barred by the statute of limitations. 6 1. Fraudulent Concealment The Plaintiffs argue that the statute of limitations was tolled due to the fraudulent misrepresenta.tions of the Defendants pursuant to 14 M.R.S.A. § 859? The court 6 The Plaintiffs also argue that the contract was not completed because the repairs they requested were never accomplished. However, it is undisputed that the PlaintifJs entered into an agreement for the purchase of a modular home that was delivered on January 13, 2004, with a closing that took place on March 4, 2004. Therefore, the court concludes that the Defendants have established both the existence and "completion" of the contract. See, e.g., ForrestAssocs. v. Passamaquoddy Tribe, 2000 ME 195, 'II 9, 760 A.2d 1041, 1044 ("The establishment of a contract requires that the parties mutually assent 'to be bound by all its material tenus; the assent must be manifested in the contract, either expressly or impliedly; and the contract must be sufliciently definite to enable tl1e court to detennine its exact meaning and fix exactly the legal liabilities of the parties."') (citing Van Voorhees v. Dodge, 679 A.2d 1077, 1080 (Me. 1996)). 7 Title 11{. M.R.S. § 859 states: [ilf a person, liable to any action mentioned, fraudulently conceals tl1e cause thereof 11 disagrees. "Section 859 extends the time for bringing an action by six years if the cause of action is fraudulently concealed, or the claim itself is grounded on fraud." Harkness v. Fitzgerald, 1997 ME 207, ~ 6, 701 A.2d 370,372 (citing Akins v. Firstb;mk, N.A., 415 A.2d 567,569 (Me. 1980)). In order for plaintifTis] to claim the benefit of the statute, [they] must establish either: (1) that defendants actively concealed material facts from [them] and that [they] relied on their acts and st1.tements to [their] detriment; or (2) that a special relationship existed between the parties that imposed a duty to disclose the cause of action, and the failure of defendants to honor that duty. !d. (citing H.E.P. Dcv. Group, Inc., v. Nelson, 606 A.2d 77 4, 77 5 (Me. 1992)). The Plaintiti., suggest that although they had knowledge of the defects soon after delivery of tl1e home, tl1e Defendants misrepresented tl1at tl1ey would fix the problems, knowing tl1at they never intended to, in order to avoid tl1eir statutory and contractual warranties. The Plainti1Ts maintain that tl1ey justifiably relied on these misrepresent1.tions <md did not pursue litigation until tl1ey realized that tl1e Defendants had no intention of fixing tl1e detects. They further allege tlmt, in reli<mce on section 859, tl1e statute of limitations was tolled until tl1ey discovered tl1at the Defendants had no intention of following tl1rough with tl1e repairs. As already discussed, tl1e Plaintiffs' causes of action accrued for purposes of tl1e statute of limit1.tions by .J <muary 13, 2004 as to Defendant Prestige, and by March 5, 2004 as to Defendant Ralph's Homes; tl1e time of delivery and the contract closing date respectively. The Plaintiffs have not presented any issue of material fact tl1at tl1e from the person entitled thereto, or if a fraud is committed which entitles any person to an action, tl1e action may be commenced at any time witl1in 6 years after the person entitled tl1ereto discovers tl1at he has just cause of action, except as provided in section 3580 [governing fraudulent transfers as defined in sections 3575 <md 3576]. 12 Defendants actively concealed any cause of action, in fact, the communications between the parties regarding the defects indicate that the Plaintiffs were well aware of tl1e defects.8 Harkness, 1997 ME 207, ~ 6, 701 A.2d at372, sccalsol,lslathiou, 2008 ME 145, ~ 18, 956 A.2d at 117 (noting that where tl1e Plaintiff was aware of the "pertinent facts", she could not claim tl1at the Defendants fraudulently concealed her cause of action). Accordingly, tl1e court concludes tl1at tl1e Plaintiffs have failed to generate a genuine issue of material fact regarding tl1eir claim of fraudulent concealment. 2. Equi&1ble Estoppel The Plaintiffs also argue tl1at tl1e Defendants are estopped from invoking the statute of limitations because tl1ey continuously represented tl1at tl1ey would repair tl1e problems witl1 tl1e home. "[EJquit..1.ble estoppel should be 'carefully ;mel sparingly applied."' Nord1cast Harbor Golf' Club, Inc. v. Harn:.,, 1999 ME 38, ~ 23, 725 A.2d 1018, 1024-25 (quoting Nuccio v. Nuccio, 673 A.2d 1331, 1334 (Me. 1996)). Iftl1e elements of estoppel are present, "estoppel may be applied to prevent an otl1erwise valid aflinnative defense of st..1.tute of limitations from successfully being raised." Hanusek v. Soud1crn Maine Medical Center, 584 A.2d 634, 636 (Me. 1990). To prove estoppel, a plaintiff must demonstrate tl1at tl1e defendant conducted itself in a "manner which actually induces the plaintiff not to ttke timely legal action on a claim," causing tl1e plaintiff to rely on tl1is conduct to its detriment by failing to "seek legal redress while tl1e doors of tl1e courtl10use remain open to [it!." I d. "The acts of tl1e plaintiff in reliance on the defendant's conduct, however, must be reasonable." Id. at 636-37 (citing 8 The Plaintifls have not alleged tlmt a special relationship exist<> between the parties. 13 City o/Aubum v. Degmsseillers, 578 A.2d 712, 714 (Me. 1990); .Shackford & Gooch, Inc. v. Town of'Kcnnebunk, 486 A.2d 102, 106 (Me. 1984)). The Plaintilfs argue that since the Defendants acknowledged and represented that they would repair the home's defects, they should not be able to assert a statute of limitations defense. Up to a point, the argument is valid. As to assur<mces made during the contractual wammty periods of one year <md two years, the Plaintiffs might have a cognizable case for estoppel to prevent those limit:.-1.tions periods from being enforced ag-ainst them. However, the delay of five years is a different matter. As the court in Hanusek v. Soud1em Maine Medical Center noted of the f~tcts in that case, "This is not the case of a misleading st:.-1.temcnt made shortly before tl1e expiration of the limitations period prompting a brief delay in bringing suit." 584 A.2d 634, 636-37 (Me. 1990).9 Based on tl1e undisputed facts tl1at tl1e defects at issue surfaced within the first year after tl1e home was delivered, tl1e court finds tl1at the delay of <m additional five years is unreasonable as a matter of law. Sec Hanusek v. Southem Maine Medical Center, supra. Moreover, in tl1eir statements of material bet tl1e Plaintiffs have not shown how tl1ey intended to pursue legal action but were induced not to by tl1e Defendants' actions.'" 9 The facts of Hanusek bear some resemblance to those here. Plaintiffs alleged that, immediately after tl1e alleged medical malpractice occurred, a hospit:.-1.1 nurse warned them against consulting an attorney about a possible claim, and tl1at tl1ey refrained from pursuing a claim for several years as a result of that warning. The Law Court found tl1e resulting forbearance for nearly tl1ree years to be unreasonable "as a matter of law." 584 A.2d at 637. Admittedly, tl1e facts here are different-tile Plaintiffs appear to rely on multiple assurances by Defend<mts tl1at tl1ey would repair tl1e defects-but the delay is almost twice as long. 10 The Plaintiffs include copies of numerous e-mail exchanges between tl1em and representatives of tl1e Defendants, the last of which appears to date to April 2009, about a year before Plaintiffs filed suit. There is no apparent explanation for tl1e furtl1er delay of 14 Sec NordJCast Harbor GolF Club, Inc. v. Hanis, 1999 ME 38, ~ 23, 725 A.2d 1018, 102425 (quoting Nuccio v. Nuccio, 673 A.2d 1331, 13~H (Me. 1996)). Therefore, the court concludes that the Plaintiffs have failed to raise an issue of material fact with regard to estoppel. For these reasons, the Defendants arc entitled to judgment as a matter of law on tl1e basis of tl1e statute of limit.-1.tions. Even assuming tl1e six-year statute-tile longest possible limit.-1.tions period tl1at Maine law provides for claims of tl1is nature-is tl1e governing period, tl1e complaint was untimely filed. CONCLUSION For the reasons stated, Plaintiffs' Motion to Amend the Complaint is DENIED. Defendant Prestige's Motion for Summary judgment is hereby GRANTED. Defendant Ralph's Homes' Motion for Summary .Judgment is hereby GRANTED. Judgment on tl1e complaint is hereby granted to tl1e Defendants, witl1 costs. Pursuant to M.R. Civ. P. 79(a), tl1e Clerk is hereby directed to incorporate tl1is Decision and Order by reference in tl1e docket. Dated May 3, 2011 A. M. Horton,.Justice that year, and no specific evidence of any statements or actions by DefendanL<> during tl1at year that dissuaded Plaintitls from filing. The six-year statute expired in 2010, so, even assuming tl1c Plaintiffs could establish equitable estoppel as to the contractual warranty periods or tl1e four-year U.C.C. period, tl1ere is simply no evidence on which to support an estoppel during 2009-10. 15

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