Motion To Dismiss

These are the basic steps for filing a Motion to Dismiss:

  1. Identify the defense or defenses that best describe the flaw(s) in the complaint/counterclaim (instructions below).
  2. Determine which ‘case law’ applies in your case (instructions and basic case law below). 
  3. Set up your headings (instructions and free templates below) for your Motion to Dismiss and your (optional) Memorandum of Law.
  4. Identify and list the legal flaws in the complaint/counterclaim, together with the case law that supports them. Summarize for Motion to Dismiss, list with case law in Memorandum of Law (instructions below).
  5. Complete the Relief section of your Motion to Dismiss (instructions below)
  6. Sign and Date your Motion to Dismiss (instructions below).
  7. Prepare the Certificate of Service, certifying that you ‘served’ a copy of your Answer to each party named in the Complaint.
  8. Mail a copy of your Motion to Dismiss to the Court and to each party named in the complaint/counterclaim.

Notice
I am not an attorney. This information is based on my personal research, observations and opinions. Laws vary from state to state. You are responsible for verifying the accuracy of any information you take from this site – and are liable for what you do with it.

– This article is still under construction –

Introduction

What is a Motion to Dismiss?

A Motion to Dismiss is a pleading asking the court to dismiss a complaint or counterclaim against you. It is generally the first attempt to have a case thrown out. It can be filed with, or even instead of (in some cases), an Answer (although, if the Motion to Dismiss is not granted, you will have to immediately file your Answer to the complaint/counterclaim. 

The Motion to Dismiss is only granted when a claim, as presented, is not supported by law.  The case is basically thrown out without the plaintiff getting their ‘due process’ because it cannot possibly succeed. It doesn’t work, even when examined from the plaintiff’s point of view. This is why a Motion to Dismiss is difficult (but certainly not impossible) to achieve. When reviewing a Motion to Dismiss, the court ‘accepts all allegations as true‘ and examines the motion ‘in the light most favorable to the plaintiff.’ Evidence and facts don’t come into it. The question is whether or not the case, if true, is supported by law.

Briefly, a ‘Motion to Dismiss’ addresses a case that is, simply put, not worthy of the court’s time. The theory is that everyone is entitled to their ‘day in court,’ unless the lawsuit in question can not possibly succeed. Here are some examples of why this might be:

The case is filed in the wrong court (jurisdiction and/or venue)

The case was not filed in time (statute of limitations and/or missed deadlines)

The requested ‘relief’ is not supported by law (there is no legal relief available under the stated circumstances so, even if the allegations are true, there is not case)

The allegations do not entitle the Plaintiff to the relief requested

The allegations to 

Notice that none of these are about the truthfulness of the allegations themselves.

Is there a time limit on a Motion to Dismiss?

It depends. The Motion to Dismiss is the earliest (and hardest) method for having a case thrown out. This is because it does not permit any scrutiny of the facts. Technically, there is case law (judgments) to support filing a Motion to Dismiss right up to trial, but I haven’t found any actual law to support those rulings. On the contrary, the law seems to encourage these motions early on, sometimes even with deadlines entered into the Rule, to ‘provide fair notice’ to the plaintiff (see Rule 12). In any case, why would you file a Motion to Dismiss if there was a better option? When someone first files a lawsuit, they are entitled to their ‘day in court.’ But as the case progresses, better opportunities should arise (provided you are not actually as guilty as the plaintiff would have the court believe), as follows:

The key ingredient in a Motion to Dismiss is the law. Know the claims that have been made against you. Know the case law (previous rulings) that pertain to them. 

The question the Motion to Dismiss must answer is whether the allegations, if true, fail to state a claim that is legally entitled to relief.

The standard of review on a motion to dismiss is “whether the allegations [in the plaintiffs’ pleadings] are reasonably susceptible of a construction that would permit recovery. In ruling upon a motion to dismiss, the factual allegations of the plaintiff are assumed to be true and all reasonable inferences drawn therefrom are construed most favorably to the plaintiff. If the facts as alleged would constitute a basis for legal relief, the motion to dismiss should be denied. This is a threshold inquiry, requiring the court to test the facts in the complaint against the applicable law.”

Ronayne v. State, 137 N.H. 281, 283 (N.H. 1993), quoting Provencal v. Vermont Mut. Ins. Co., 132 N.H. 742, 744-45, 571 A.2d 276, 278 (1990)

“The standard of review in considering a motion to dismiss is ‘whether the allegations [in the plaintiff’s pleadings] are reasonably susceptible of a construction that would permit recovery.'”

Putnam v. University of New Hampshire, 138 N.H. 238, 239 (N.H. 1994), quoting Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985) 

In other words, the ‘construction’ of the claim, as presented by the allegations, must be capable (by law) of achieving relief.  If not, it must be dismissed.

A Motion to Dismiss should be filed if even one of the claims qualify. A partial dismissal can weaken the case and reduce time, money and stress during the litigation of the remaining claims.

So let’s begin…

– This article is still under construction –

1. Identify your defense(s)

Examine the claims that have been made against you. You are looking for reasons why the case doesn’t work – even assuming the allegations are true. This could be because the allegations don’t meet the minimum standard (or ‘burden’) for that claim. Or perhaps there are circumstances that invalidate the claim, such as a deadline for when the claim should’ve been filed (Statute of Limitations). It could be as simple as the claim being filed in the wrong court (jurisdiction). 

As you go over the claims, eliminate any conclusions that have been drawn by the plaintiff. Although the allegations are presumed true at this stage, a ‘court need not accept statements in the complaint which are merely conclusions of law.’ 

Jay Edwards, Inc. v. Baker, 130 N.H. 41, 45, 534 A.2d 706, 708 (1987) 

‘Conclusions of law’ (ie., ‘defendant’s conduct represents negligence‘ or ‘plaintiff is entitled to relief under the law‘) are not considered by a court considering a Motion to Dismiss. The Motion to Dismiss examines the actual allegations. Think of the claim as a math equation. It must ‘add up’ to something like this: 

conduct + harm + law = relief

Conduct: the complaint must state (or ‘allege’) precisely what the defendant did (or didn’t) do. The conduct should be very specific, with dates, usually in chronological order. If the wrongfulness of the conduct described is based on something other than a law (ie., a contract, a duty, etc.), that basis must be identified. A simple way to test this is, if the plaintiff’s conclusion cannot be reached from the allegations alone, then the plaintiff has failed to state a claim upon which relief may be granted. Do the allegations justify the  claim? Make a list of anything that is missing.

Harm: the complaint must also specify exactly how the conduct described has adversely affected the plaintiff. The harm must be outlined in specific detail. To simply say, ‘the plaintiff was damaged,’ is not enough.  A claim that fails to specify what harm was done fails to state a claim upon which relief may be granted.  

Law: all the conduct and harm in the world don’t mean anything if they’re not actionable under the law. The final ingredient therefore is the law. 

And that brings us to the next step…

– This article is still under construction –

2. Identify Your Laws

The laws you draw upon to defend yourself should come from ‘common law‘ and ‘case law.’ Basically, your state has laws, rules, doctrines, articles, acts, etc., which make up common law. When a court makes a significant ruling on a law, it becomes case law.

I find case law particularly useful because it illustrates how laws were meant to be used. It provides a ‘case in point.’ If other courts are ruling a certain way on an issue similar to yours, the judge will be hard pressed to go in the opposite direction.

For example, let’s say you’re suing someone for ‘Breach of Contract.’   Pennsylvania recognizes ‘the general measure of damages for breach of contract [to be] that the injured party is entitled (1) to recovery of all damages that accrue naturally from the breach, and (2) to be put into as good a pecuniary position as he would have had if the contract had been performed.’Diedrick v. School Dist. 81, 87 Wn.2d 598, 610, 555 P.2d 825 (1976) A breach of contract occurs when there is a failure without legal excuse to perform any promise which forms the whole or part of a contract. Lassonde v. Stanton, 157 N.H. 582, 588 (2008). Whether a party has breached or anticipatorily repudiated a contract, and whether a breach of contract is material, are questions of fact. See Fitz v. Coutinho, 136 N.H. 721, 725 (1993). Although a contract may exist, if the court determines that the conduct of a defendant as alleged in the complaint does not amount to a breach of that contract, then the complaint is properly dismissed. Valevais v. City of New Bern, 10 N.C. App. 215, 220, 178 S.E.2d 109, 113 (1970) Damages Asserting a claim for damages that are not recoverable in a breach of contract action is another fatal pleading defect. Mental anguish damages are not recoverable in the vast majority of breach of contract cases, and when those damages are alleged, they are the proper subject of a motion to dismiss. Stanback v. Stanback, 297 N.C. 181, 194, 254 S.E.2d 611, 620 (1979) (affirming the Court of Appeals’ opinion, found at 37 N.C. App. 324, 246 S.E.2d 74 (1978)),; Reis v. Hoots, 131 N.C. App. 721, 732, 509 S.E.2d 198, 205 (1998) (Greene, J., concurring), disc. rev. denied, 350 N.C. 595, 537 S.E.2d 481 (1999) (“[I]t is rarely the case that damages for mental anguish are recoverable under a breach of contract theory”). In Stanback, the Supreme Court affirmed the dismissal of the plaintiff ’s claim for consequential damages for “great mental anguish and anxiety” arising out of the defendant’s alleged breach of a separation agreement. Id. at 195, 254 S.E.2d at 620-21. Mental anguish damages are recoverable under very limited circumstances involving non-commercial contracts and where “the benefits contracted for relate directly to matters of dignity, mental concern or solicitude, or the sensibilities of the party to whom the duty is owed, and which directly involves interests and emotions recognized by all as involving great probability of resulting mental anguish if not respected.” Id. at 194, 254 S.E.2d at 620.  sta’Nex…g my post entitled ‘Affirmative Defenses,‘ to see if anything applies to the claims that have been made against you. Cut and past these into a document, including all relevant case law that goes with them (relevant to the claim you’re defending).

2. Find Relevant Case Law

The case law should be related to similar claims to you that have been dismissed, so go to the claims themselves. Start on this site, and search ‘Claims and case law’ plus the claim. If I have a post on it, it will discuss the ‘elements’ that must be included to make the claim survive a motion to dismiss.

Sample case law

“Summary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law.” Rivera v. Liberty Mutual Fire Ins. Co., 163 N.H. 603, 606 (2012), quoting New Hampshire Law: RSA 491:8-a, III (2005). And; “We review the trial court’s application of the law to the facts de novo.” Id. (de novo: starting from the beginning)

A fact is “material” if it affects the outcome of the litigation under the applicable substantive law. Palmer v. Nan King Rest., Inc., 147 N.H. 681, 683 (2002).

In considering a party’s motion for summary judgment, the Court examines the evidence submitted and makes all necessary inferences from the evidence “in the light most favorable to the non-moving party.” Sintros v. Hamon, 148 N.H. 478, 480 (2002).

When a motion for summary judgment is properly made and supported, “the adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue for trial.” New Hampshire Law RSA 491:8-a, IV.

“To the extent that the non-moving party either ignores or does not dispute facts set forth in the moving party’s affidavits, they are deemed to be admitted for purposes of this motion.” N.H. Division of Human Services v. Allard, 141 N.H. 672, 674 (1997).

– This article is still under construction –Some Preliminary Case Law

A motion to dismiss
for failure to state a claim can be filed “as late as trial upon the merits”
under Rule 12(h). Dale v. Lattimore, 12 N.C. App. 348, 350, 183
S.E.2d 417, 418 (1971). Nevertheless, an early motion has the advantage
of reducing the cost of litigation.
The motion to dismiss need not lay out every detailed reason for
dismissal. Under Rule 7(b)(1), the motion must “state with particularity
the grounds therefor, and shall set forth the relief or order sought.”
The motion to dismiss is sufficiently particular if it simply cites to Rule
12(b)(6) and states that the complaint fails to state a claim upon which
relief can be granted. Austin Hatcher Realty, Inc. v. Arnold, 2008
N.C. App. LEXIS 1080, at *6-8, 190 N.C. App. 822, 662 S.E.2d 36 (June
3, 2008) (unpublished) (ruling that motion was sufficiently particular
but reversing dismissal where plaintiff broker suing to enforce a listing
agreement adequately alleged a valid contract existed and that defendants
breached it); see also Lane v. Winn-Dixie Charlotte, Inc., 169
N.C. App. 180, 182-83, 609 S.E.2d 456, 458 (2005) (holding similarly
with respect to a 12(b)(4) and (b)(5) motion).
Under this relaxed pleading standard, counsel for the non-moving
party may not be aware of the exact deficiencies in the pleading
until the hearing, unless the moving party chooses to submit a brief
in support of the motion. If a brief is submitted, although the memorandum
of law will educate your opponent as to the defects in the
pleading, it will also provide the trial judge with a full explanation of
the basis for your motion and may make your oral argument more
persuasive. Briefs must be served at least two days before the hearing
on the motion. N.C. R. Civ. P. 5(a1), 6(a); Harrold v. Dowd, 149 N.C.
App. 777, 786-87, 561 S.E.2d 914, 920-21 (2002) (finding that service
of a brief on Thursday for a hearing on Monday was timely service).
If the plaintiff does not attach the contract to the complaint, then
defense counsel may attach the contract to the motion to dismiss
without converting the motion into one for summary judgment. Because
the contract is necessarily the subject matter of the suit and
is likely referred to in the complaint, attaching the contract to the
motion to dismiss does not expand the scope of the motion beyond
the pleadings. See Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52,
60-61, 554 S.E.2d 840, 847 (2001); Coley v. N.C. Nat’l Bank, 41 N.C.
App. 121, 126-27, 254 S.E.2d 217, 220 (1979).
A hearing on a motion to dismiss can be an excellent opportunity
for the non-moving party to become educated about the defects
in its case. Counsel for the non-moving party should therefore make
a motion at the hearing for leave to amend the pleading to cure the
deficiencies in it. Waiting until later to make a motion to amend may
prove to be fatal, since the trial judge may rule on the motion to
dismiss before the motion to amend can be filed and brought to the
Court’s attention. In either case, if the trial court ultimately dismisses
the pleading without ever ruling on the motion to amend, the order
dismissing the complaint will be deemed to be an effective denial of
the motion to amend. McGuire v. Riedle, 190 N.C. App. 785, 790 &
n.2, 661 S.E.2d 754, 759 & n.2 (2008) (affirming dismissal of medical
malpractice action; trial court effectively denied plaintiff ’s motion to
amend complaint when it granted defendant’s Rule 9(j) motion). If
defense counsel has only filed a motion to dismiss in lieu of an answer,
then an amended complaint can be filed as of right under Rule
15(a). Hardin, 221 N.C. App. at 320-21, 730 S.E.2d at 773.

 

 

 

“Summary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law.” Rivera v. Liberty Mutual Fire Ins. Co., 163 N.H. 603, 606 (2012), quoting New Hampshire Law: RSA 491:8-a, III (2005). And; “We review the trial court’s application of the law to the facts de novo.” Id. (de novo: starting from the beginning)

A fact is “material” if it affects the outcome of the litigation under the applicable substantive law. Palmer v. Nan King Rest., Inc., 147 N.H. 681, 683 (2002).

In considering a party’s motion for summary judgment, the Court examines the evidence submitted and makes all necessary inferences from the evidence “in the light most favorable to the non-moving party.” Sintros v. Hamon, 148 N.H. 478, 480 (2002).

When a motion for summary judgment is properly made and supported, “the adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or by reference to depositions, answers to interrogatories, or admissions, must set forth specific facts showing that there is a genuine issue for trial.” New Hampshire Law RSA 491:8-a, IV.

“To the extent that the non-moving party either ignores or does not dispute facts set forth in the moving party’s affidavits, they are deemed to be admitted for purposes of this motion.” N.H. Division of Human Services v. Allard, 141 N.H. 672, 674 (1997).

Sample BAD FAITH wording

ALLEGATIONS:

The allegations need to go directly to the points in law that entitle you to relief.

If you’re looking for sympathy or an opportunity to to vent, you will not only be disappointed, but you may well find yourself sanctioned for wasting the court’s time. The court doesn’t care about your feelings, or even how mean and horrible the other party is. Even if they did care (which, again, they don’t), the court has no jurisdiction over those issues. The court must (or at least, is supposed to) rule on points of law. Court rulings that are not supported by law can (and should) be reversed on appeal. And no judge wants their rulings overturned, which is why your best chance for getting the ruling you want is to make sure that every allegation you make represents (or supports) 1) a violation of the law, and/or 2) a violation of your rights under the law. 

Again, the allegation should either be or support a violation. Every allegation that doesn’t accomplish either of these things weakens your claim. 

Now, in case you’re thinking ‘the plaintiff has an attorney and his/her allegations don’t meet this standard,’ let me just set you straight. You’re here because you believe the lawsuit that has been filed against you is frivolous, and that it’s been filed in bad faith, right? In fact, you think you might even have a legitimate claim for costs and sanctions. That’s why you’re here. If this is true, and if the plaintiff’s allegations don’t meet the standard I’ve just outlined above, it stands to reason that there’s a good chance those bogus allegations will (ultimately) work in your favor. Don’t be alarmed just because an attorney signed off on them.  The attorney was paid to sign off on them. Most attorneys are going to sign off on any claim that has even the slightest chance of surviving discovery (that’s where the big money is anyway. After that it’s pre-trial and trial, which involves real work and not nearly as much pay). The attorney no doubt expects opposing counsel to do the same. It’s a little game they play called ‘let’s make some money on these battling buffoons.’ When a ‘pro se‘ litigant enters into the mix, the expectation is that the game just got easier, because making a pro se litigant look bad is a piece of cake for someone who knows the law inside and out – and also knows how to play on the prejudices in courtrooms against pro se litigants. Don’t mimic the behavior of the opposing counsel. You won’t get by with the stuff lawyers can get by with. Don’t even try. Stick close to the law and don’t get sucked into the drama. 

DEFENDANT’S COUNTERCLAIM FOR SANCTIONS

In addition to the aforementioned responses, Defendant makes the following assertions:

1. The Plaintiff, Robert M.A. Nadeau, has in the past, and continues to use his law license and all the trusts that come with it, to terrorize people.

2. The Plaintiff, Robert M.A. Nadeau, has been a party in well over twenty lawsuits in the last decade.

3. The Plaintiff, Robert M.A. Nadeau, has already sued the Defendant twice. The claims in both lawsuits were withdrawn before trial, but only after a grueling, expensive, drawn out and extremely abusive litigation process.

4. The only purpose served in the above referenced litigations against the Defendant, was that the Plaintiff was able to use those litigations to harass the Defendant, the Defendant’s family, and the Defendant’s friend. This failure to produce a legitimate case while harassing his victims was noticed by a judge in yet another of the Plaintiff’s litigations, who stated in his final order: “No credible evidence was produced by the Plaintiff [Nadeau] to explain how [his evidence] was anything other his harassing [the Defendant in that case].” (see Robert M.A. Nadeau vs. XXX, York District Court, PA-13-185).

5. In fact, Judge Dreschler, of this Court, also noticed the abusive, harassing nature of Nadeau’s litigation against the Defendant in his previous litigation against her when, in particular he singled out Nadeau’s sending monthly bills to the Defendant for that very same litigation he was pursuing against her, during the litigation, calling his behavior ‘outrageous and unacceptable.’ (see Robert M.A. Nadeau vs. Nancy Madore, ESCV2014-00487-D, Dec 3, 2014 order).

6. These are not isolated incidents. Other judges, in other cases, have also remarked upon Nadeau’s abusive litigation tactics (although no one ever actually does anything about it). One judge was particularly thorough in describing the abuse in his final order (see Robert M.A. Nadeau et el, v. Hunt, York Superior Court, CV-05-221). This pattern of behavior will continue until the Court addresses it.

7. In all of these cases, Nadeau’s lawsuits, or the bulk of his claims, were either thrown out or withdrawn before trial.

8. In all of these cases, the Plaintiff makes wild accusations without ever offering a shred of evidence, always promising that the evidence will be revealed at a later date, and always failing to provide the promised evidence.

9. In all of these cases, the various Courts trust the Plaintiff, based on his position as a lawyer.

10.These frivolous lawsuits, and the illegal misconduct that accompanies them, is now actively being investigated by the Massachusetts BBO.

11.The Plaintiff’s latest lawsuit against [Defendant in Maine, in case Nadeau is seeking this deposition for] is clearly more of the same. The most obvious flaw in the Plaintiff’s case is that the Plaintiff is suing for damages caused by signs that he alleges (again, without evidence) to be illegal, and even more inconceivably, to have caused his loss of the election, despite the fact that the Plaintiff was in the local news every other week, being cited for his numerous violations of the judicial codes, and for his misconduct as an attorney. In fact, long before the election, in the Plaintiff’s second lawsuit against this Defendant, he had been claiming that the Defendant had caused a ‘serious and irreparable decline’ to his law firm, which indicates this turn in public opinion long before [his current defendant in Maine] put the ‘no Nadeau’ signs out on his own property.

12.The frivolousness of the Plaintiff’s lawsuit against [the Maine Defendant] and this complaint to depose the Defendant is further underscored by the Plaintiff’s claims regarding the deposition of the Defendant, all of which the Defendant denies, and all of which the Plaintiff has once again failed to provide a single shred of evidence to support.

13.The motives for both the lawsuit against [his Maine defendant] and this complaint for a deposition against the Defendant are clear: [the Maine Defendant] is the son of [the woman], who [works in the] Court where the Plaintiff used to be a judge. At one point [the woman] reported misconduct she witnessed from the Plaintiff. Since then, he has actively harassed her. In fact, it was his behavior, not hers or her sons, during the last election, which was unethical and unprofessional. And here again, the Plaintiff has been cited for his unethical and illegal behavior during the election process before, and was even given a 30 day suspension for doing it in a previous election. (see Maine Supreme Judicial Court Decision, JUD-05-01)

14.The Defendant has never met, or spoken to, [the Maine Defendant]. She has spoken to his mother, [the woman who worked with Nadeau], on several occasions. The activities that the Plaintiff describes in his complaint simply did not occur (incidentally, the activities the Plaintiff fabricated do not represent misconduct or illegal behavior in any event). Once again, all of the Plaintiff’s allegations are vague and unfounded, and offered without the slightest bit of evidence.

15.It is noteworthy that the Plaintiff represents himself in these litigations, so that it is his victims, not himself, who have to pay the cost of his abusive litigation techniques.

16.The Plaintiff is a seasoned attorney and has also served as a part time elected judge. Therefore, he knows, or should know, that any claims he makes in his pleadings should be truthful. He also knows, or should know, that his requests during discovery should be based on truths. He cannot prove any of his claims against the Defendant in his Complaint with this Court, because none of them are true. Yet he is expecting that this Court will trust him, as a seasoned lawyer and former judge, just as the courts always do, to be acting on facts and in good faith.

17.Given the abusive, litigious and dishonest history of this Plaintiff, along with the numerous citations from judicial and other disciplinary boards, and the recent ongoing investigation with the Massachusetts BBO, it would be extremely remiss of this Court to trust this Plaintiff and give him the benefit of the doubt, at the risk of him further harming this Defendant.

18.Given the abusive, litigious and dishonest history of this Plaintiff, along with the numerous citations from judicial and other disciplinary boards, and the recent ongoing investigation with the Massachusetts BBO, it would be an act of injustice to order this Defendant to attend yet another deposition to answer what almost always amounts to unrelated but very personal questions to provide the Plaintiff with information he can use against his deponents outside the scope of the litigation, which is not how the lawmakers intended the discovery process to be used, but it is how this Plaintiff has used the process in every single litigation the Defendant has been forced to participate in.

19.Regardless of this Court’s ruling on this matter, the Defendant has yet again been forced to respond to yet another unfounded claim from this Plaintiff. At some point, the Court must protect this Defendant’s civil rights against what is clearly harassment from this Plaintiff.

                   WHEREFORE THE DEFENDANT, Nancy Madore, requests the following relief:

1. That the Court deny the Plaintiff’s Complaint against the Defendant, if not on the basis of the Plaintiff’s past abusive history and his harassment of this Defendant, then based on the fact that the claims in the Plaintiff’s Complaint, even if true, would not merit the inconvenience of having this Defendant travel out of state to attend a deposition on such vague and flimsy claims (ie., how, specifically, were the signs [his Maine Defendant] supposedly put in his yard ‘illegal’?).

2. That if the Court grants the Plaintiff’s Complaint against the Defendant, that it order the Plaintiff to put his questions in writing, and submit them for approval from this Court before submitting them to the Defendant; and that the Court permit the Defendant to answer in writing as well.

3. That the Court Sanction the Plaintiff on two counts: first, for the Defendant, for the time involved in having to answer yet another Complaint that was submitted to this Court without any evidence to support it—especially in light of his most recent litigation against her in this same Court, which ended on April 2017, when the Plaintiff submitted a Motion to Dismiss his own case on the morning of trial; and second, a sanction for the Court, for the time involved in reading his complaint and this answer, and scheduling a hearing and/or issuing an order.

4. Any and all other relief this Court deems just.

DEFENDANT

 

_________________________________________________              _____________________

Nancy Madore                                                                           Date

[Address]

[Phone] 

Certificate of Service

 

 I, Nancy Madore, certify that I caused a copy of the foregoing document to be mailed to the Plaintiff, Robert M.A., at his latest known address, as identified in his Complaint, on the date indicated above.

_____________________________

Nancy Madore

​

 

Eastlake Construction v. Hess

Annotate this Case

  

102 Wn.2d 30 (1984)

686 P.2d 465

EASTLAKE CONSTRUCTION COMPANY, INC., Respondent, v. LeROY HESS, ET AL, Petitioners.

No. 49191-7.

The Supreme Court of Washington, En Banc.

June 21, 1984.

The general measure of damages for breach of contract is that the injured party is entitled (1) to recovery of all damages that accrue naturally from the breach, and (2) to be put into as good a pecuniary position as he would have had if the contract had been performed. Diedrick v. School Dist. 81, 87 Wn.2d 598, 610, 555 P.2d 825 (1976). In the case of construction contracts, special problems have been encountered in putting the injured party in the pecuniary position he would have enjoyed had the contract been properly performed by the builder. These special problems have led to the creation of special rules for measuring damages in such cases.

*40 The genesis of these rules in this state is White v. Mitchell, 123 Wash. 630, 213 P. 10 (1923). This case established two different measures of damages for breach of a construction contract. The appropriate measure of damages in a particular case depends upon whether there had been “substantial performance” of the contract.

The court said in 123 Wash. at 637 that there

is a substantial performance of a contract to construct a building where the variations from the specifications or contract are inadvertent and unimportant and may be remedied at relatively small expense and without material change of the building…

In such a case, the measure of damages is the cost of completing the structure as contemplated by the contract.

On the other hand, there is not substantial performance of the contract where, in order to make the building comply with the contract, the structure in whole or material part must be changed, or there will be damage to parts of the building, or the expense of repair will be great. Where the contract has not been substantially performed, the measure of damages is the difference between the value of the building as constructed and the value had it been constructed in accordance with the contract.

The rules enunciated in White v. Mitchell have been applied in numerous cases. In Kenney v. Abraham, 199 Wash. 167, 90 P.2d 713 (1939), for instance, this court held that the construction contract had not been substantially performed where the contractor, in violation of the contract, had constructed a house on foundations placed on loosely filled ground. The measure of damages was therefore the “difference in value”. In Bernbaum v. Hodges, 43 Wn.2d 503, 261 P.2d 968 (1953), the court determined that there had been substantial performance of the contract where a building had been constructed with heating equipment which did not conform to the contract specifications, floors which had settled unevenly, walls which leaked, and asphalt paving which had cracked. The court reasoned that there had been substantial performance because it was not *41 “`necessary to tear down and rebuild large portions of the structure'”. 43 Wn.2d at 508, quoting Mahan v. Springer, 155 Wash. 98, 99, 283 P. 667 (1930). Therefore, the cost of repairs was the appropriate measure of damages.

The next significant decision in the development of the rules governing this issue appears to be Forrester v. Craddock, 51 Wn.2d 315, 317 P.2d 1077 (1957). In that case, there were numerous breaches of the contract specifications, the most serious of which were cracks in the foundations. The trial court concluded that the contract had not been substantially performed and that the value of the house was $3,500 less than it would have been if constructed in accordance with the contract. Of this impairment of value, $2,600 was attributable to the cracks in the foundations. The trial court also found that the cost of repairing the other defects was $1,443.75. It awarded the owners of the building $4,043.75: $2,600 for loss of value for the defective foundations (which were presumably irremediable), and $1,443.75 for the cost of repairing the other defects. This court reversed, holding that:

Having determined that appellants had not substantially performed their contract, it was error for the trial court to award respondents a sum greater than $3,500, the amount found to be the difference between the value of the building as constructed and its value had it been constructed in accordance with the contract.

51 Wn.2d at 322.

All of the cases discussed thus far cite White v. Mitchell, supra, or cases decided thereunder as the source of the rules governing the measure of damages. A different approach was taken in more recent cases. In Baldwin v. Alberti, 58 Wn.2d 243, 362 P.2d 258 (1961), the court applied Restatement of Contracts § 346 (1932) to determine the appropriate measure of damages. This rule provides that if completion or repair of the construction does not involve “unreasonable economic waste” the measure of damages is the cost of completion or repair. Section 346(1)(a)(i). If completion or repair would involve unreasonable *42 economic waste, the measure of damages is the difference in value. Section 346(1)(a)(ii). Applying this rule to the facts before it, this court said:

In the instant case, the evidence discloses, and the trial court found, that the defects could be “adequately and reasonably” repaired. In other words, the court found that the defendant substantially performed the contract and that the defects could be repaired without unreasonable economic waste; hence, our disposition of this case is controlled by the rationale of 1 Restatement, Contracts, § 346 (a)(i)…

58 Wn.2d at 246. In this way, unreasonable economic waste came to be combined with substantial performance as part of the formula by which the appropriate measure of damages is determined.

The nature of unreasonable economic waste was considered in more detail in Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 442 P.2d 621 (1968), a case involving the defective construction of an ice rink. The defects could be remedied only by tearing out the base of the rink and replacing it. This court applied Baldwin v. Alberti, supra, to determine the appropriate measure of damages. The issue turned upon whether demolition and reconstruction of the ice rink constituted unreasonable economic waste. The court quoted extensively from Professor Corbin in considering this issue. Part of the quoted passage is as follows:

It is true that the phrase “unreasonable economic waste” is no more definite and certain in its meaning and application than is the phrase “substantial performance.” It too raises a question of fact. Whether the “economic waste” involved in any specific tearing down and rebuilding is “unreasonable” cannot be resolved by the application of any rule of law; prevailing practices and opinions (the mores) of men, involving their emotions as well as reason and logic, must be taken into account.

5 A. Corbin, Contracts § 1089, at 492 (1964), quoted in Prier, 74 Wn.2d at 30.

In Prier, this court decided that, although the cost of reconstruction was great, it did not amount to unreasonable *43 economic waste. No remedy other than reconstruction was available to protect the very foundations of the building housing the ice rink; indeed, neither party had urged the application of the unreasonable economic waste measure of damages. 74 Wn.2d at 31.

The most recent decision of this court dealing with this issue, Fuller v. Rosinski, 79 Wn.2d 719, 488 P.2d 1061 (1971), stated that the question of damages in cases of this type is governed by Restatement of Contracts § 346 (1932). This court determined in Fuller that the contract had not been substantially performed. This conclusion was based on the trial court’s finding that “it would cost more than the contract price to remedy the defects”. 79 Wn.2d at 723. Therefore, this court held the appropriate measure of damages was not the cost of repair but the difference in value.

The principal issue in all of these cases, as in the present case, is which of the two measures of damages should be applied. The touchstone of the earlier decisions was substantial performance. This term has received only the vaguest of definitions. White v. Mitchell, 123 Wash. 630, 213 P. 10 (1923) indicates that substantial performance is determined by the nature of the defects and the difficulty and expense of correcting them. In Bernbaum v. Hodges, 43 Wn.2d 503, 261 P.2d 968 (1953), the critical fact indicating substantial performance was that repair of the defects would not require rebuilding large portions of the structure. Forrester v. Craddock, 51 Wn.2d 315, 317 P.2d 1077 (1957) accepted without analysis the trial court’s conclusion that there had been substantial performance.

Nevertheless, although the concept of substantial performance remained somewhat vague in these cases, the operation of the rule remained reasonably straightforward. It was complicated substantially, however, by cases which, without rejecting the notion of substantial performance, began applying alongside it the Restatement concept of unreasonable economic waste. It is not made explicit in any opinion how the two concepts relate. The cases appear, however, to treat substantial performance and unreasonable *44 economic waste as interchangeable labels denoting the same thing. Fuller v. Rosinski, 79 Wn.2d 719, 488 P.2d 1061 (1971); Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 442 P.2d 621 (1968); Baldwin v. Alberti, 58 Wn.2d 243, 362 P.2d 258 (1961). The only approach to a definition of unreasonable economic waste is in Prier, quoting the passage from Professor Corbin, who says in effect that unreasonable economic waste, like substantial performance, is essentially indefinable. 74 Wn.2d at 30. 

It appears, therefore, that adoption of the Restatement terminology has added little to the original rule laid down in White v. Mitchell, supra. The juxtaposition of two labels to identify the same amorphous concept is, however, unnecessarily confusing.

This idea was recognized by Professor McCormick in his treatise on damages:

In whatever way the issue arises, the generally approved standards for measuring the owner’s loss from defects in the work are two: First, in cases where the defect is one that can be repaired or cured without undue expense, so as to make the building conform to the agreed plan, then the owner recovers such amount as he has reasonably expended, or will reasonably have to spend, to remedy the defect. Second, if, on the other hand, the defect in material or construction is one that cannot be remedied without an expenditure for reconstruction disproportionate to the end to be attained, or without endangering unduly other parts of the building, then the damages will be measured not by the cost of remedying the defect, but by the difference between the value of the building as it is and what it would have been worth if it had been built in conformity with the contract.

(Footnotes omitted. Italics ours.) C. McCormick, Damages § 168, at 648-49 (1935).

The crux of the determination of which measure of damages to apply is therefore the proportionality of the cost to the corresponding benefits. This is a factual question which must be resolved, as Professor Corbin points out, according to “prevailing practices and opinions (the mores) of men, *46 involving their emotions as well as reason and logic”. 5 A. Corbin, Contracts § 1089, at 492 (1964).

The authors of the Restatement have recently recognized in Restatement (Second) of Contracts (1981) that the concept of unreasonable economic waste is unhelpful in determining damages, and have turned instead to consider the proportionality of the cost of repairs to the value conferred. The second Restatement provides a convenient and effective means of clarifying and regularizing the rules governing this issue.

[1] The general rule of damages is stated in Restatement (Second) of Contracts § 347, at 112 (1981):

Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by (a) the loss in the value to him of the other party’s performance caused by its failure or deficiency, plus (b) any other loss, including incidental or consequential loss, caused by the breach, less (c) any cost or other loss that he has avoided by not having to perform.

Further comments to section 347 recognize that in some cases it may be difficult to determine with sufficient certainty the damage to the injured party’s expectation interest. Comment b states, in part:

Where the injured party’s expected advantage consists largely or exclusively of the realization of profit, it may be possible to express this loss in value in terms of money with some assurance. In other situations, however, this is not possible and compensation for lost value may be precluded by the limitation of certainty. See § 352. In order to facilitate the estimation of loss with sufficient *47 certainty to award damages, the injured party is sometimes given a choice between alternative bases of calculating his loss in value. The most important of these are stated in § 348.

The alternatives set out in Restatement (Second) of Contracts § 348, at 119-20, include measures of damages specifically applicable to construction contracts.

(1) If a breach delays the use of property and the loss in value to the injured party is not proved with reasonable certainty, he may recover damages based on the rental value of the property or on interest on the value of the property. (2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on (a) the diminution in the market price of the property caused by the breach, or (b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.

The comments to section 348 include a helpful discussion of the considerations applicable to a determination of damages for a breach of the construction contract. Comment c at page 121 is especially relevant to this case and is here set out in full:

c. Incomplete or defective performance. If the contract is one for construction, including repair or similar performance affecting the condition of property, and the work is not finished, the injured party will usually find it easier to prove what it would cost to have the work completed by another contractor than to prove the difference between the values to him of the finished and the unfinished performance. Since the cost to complete is usually less than the loss in value to him, he is limited by the rule on avoidability to damages based on cost to complete. See § 350(1). If he has actually had the work completed, damages will be based on his expenditures if he comes within the rule stated in § 350(2). Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable *48 certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be undercompensated by being limited to the resulting diminution in the market price of his property. Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party. Damages based on the cost to remedy the defects would then give the injured party a recovery greatly in excess of the loss in value to him and result in a substantial windfall. Such an award will not be made. It is sometimes said that the award would involve “economic waste,” but this is a misleading expression since an injured party will not, even if awarded an excessive amount of damages, usually pay to have the defects remedied if to do so will cost him more than the resulting increase in value to him. If an award based on the cost to remedy the defects would clearly be excessive and the injured party does not prove the actual loss in value to him, damages will be based instead on the difference between the market price that the property would have had without the defects and the market price of the property with the defects. This diminution in market price is the least possible loss in value to the injured party, since he could always sell the property on the market even if it had no special value to him.

next issue in same case:

 In order for a private individual to bring an action under RCW 19.86, the conduct complained of must: (1) be unfair or deceptive; (2) be within the sphere of trade or commerce; and (3) impact the public interest. Anhold v. Daniels, 94 Wn.2d 40, 45, 614 P.2d 184 (1980).

There is ample evidence in this case that Eastlake committed numerous unfair and deceptive acts (including misrepresentations and substitutions of unauthorized materials) not only in connection with its contract with defendants, but also (as shown in the offer of proof) in contracts with several other people. See Keyes v. Bollinger, 31 Wn. App. 286, 292, 640 P.2d 1077 (1982) (holding that a contractor’s business practice of providing estimates to purchasers is an “unfair or deceptive act or practice” when *50 the contractor is unable to substantially comply with the estimates due to reasons which should be reasonably foreseeable in light of the contractor’s knowledge and experience). Indeed, the evidence suggests a continuing program of unfair and deceptive acts. The second criterion is satisfied because Eastlake’s contracts to construct houses and other buildings were clearly sales of assets and services, and therefore within the express definition of trade and commerce in RCW 19.86.010.

[4] All that remains, therefore, is to determine whether Eastlake’s conduct affected the public interest. Conduct has an impact upon the public interest if:

1. The defendant, by unfair or deceptive acts or practices in the conduct of trade or commerce, has induced the plaintiff to act or refrain from acting;

2. The plaintiff suffers damage brought about by such action or failure to act;

3. The defendant’s deceptive acts or practices have the potential for repetition. Anhold, 94 Wn.2d at 46.

The purpose of the public interest requirement is to limit actions under the act to those which are the consequence of a generalized course of conduct by a seller, and to exclude actions arising from single transactional disputes. Anhold placed the inducement requirement on private suits as a reasonable and logical limitation on the scope of private actions. See Comment, Private Suits Under Washington’s Consumer Protection Act: The Public Interest Requirement, 54 Wash. L. Rev. 795 (1979). An element of “inducement” has a bearing on the establishment of a public interest in that it confines actions to those types of conduct which concern direct or indirect solicitation of the consuming public to act or refrain from acting.

Such solicitation occurred in this case. When a contractor submits a bid or agrees to do a job, he is, in effect, representing that he will perform that job in a workmanlike manner, according to the specifications provided him, in the time stated, and for the price quoted. The purchaser is led to believe that the contractor will substantially comply with these representations. The representations serve to induce potential purchasers in much the same way an advertisement or representation by a salesman would.

A contractor does not provide “estimates” … merely to be helpful to the purchaser, but to influence the purchaser to buy the contractor’s product or to rely upon the contractor’s services to remedy defects in the product. The purchaser will likely rely upon such “estimates.”

Keyes v. Bollinger, 31 Wn. App. at 291. As we noted above, a contractor’s business practice of providing estimates to purchasers, with which estimates he is unable to substantially comply due to reasons which should be reasonably foreseeable in light of the contractor’s knowledge and experience, is an “unfair or deceptive act or practice”. As such conduct serves to induce potential purchasers, and as Eastlake appears to have engaged in such conduct, we find that Hess has made the requisite showing of inducement under Anhold v. Daniels, supra.

A contrary conclusion would exclude from the operation of the act conduct which clearly should be subject to the express legislative purpose of protecting the public from unfair, deceptive and fraudulent acts or practices. RCW 19.86.920. In particular, the act is designed to protect the public from those who would repeatedly indulge in unfair or deceptive practices, as Hess claims Eastlake has done. In order that this purpose be served, the act is to be construed liberally. RCW 19.86.920. Courts should not readily find an absence of inducement to act in cases where evidence is presented of a pattern of deceptive practices.

We now proceed to consider briefly the remaining two elements of a showing of impact upon the public interest. A plaintiff seeking to bring an action under the act must prove beyond the balance of probabilities that he suffered damages as a result of the action or inaction induced by the defendant’s unfair or deceptive acts, and that those unfair or deceptive acts have the potential for repetition. In particular, there must be shown a real and substantial potential for repetition, as opposed to a hypothetical possibility of an isolated unfair or deceptive act’s being repeated.

In the present case, the damages suffered by defendants arising out of the construction contract have been thoroughly discussed earlier in this opinion. There can be no doubt that this element is established.

The potential for repetition may also be present here. Defendants’ offer of proof might well support a finding that this dispute was not an isolated incident (which would not impact the public interest), but part of a protracted course of conduct by Eastlake. Such a finding would establish the potential for repetition.

Defendants, therefore, offered to present evidence from which the trier of fact could find that Eastlake had indeed violated the Consumer Protection Act. Accordingly, the trial court should allow the defendants to present their evidence and apply the principles set forth in this opinion to determine whether the criteria for an action under the act have been satisfied.

other case law:

https://cases.justia.com/maryland/court-of-appeals/90a94-0.pdf?ts=1396123755

https://law.justia.com/cases/new-york/court-of-appeals/2008/2008-05780.html

https://law.justia.com/cases/kansas/supreme-court/1979/49-850-1.html

https://law.justia.com/cases/vermont/supreme-court/2015/2014-194.html

https://law.justia.com/cases/federal/district-courts/FSupp/717/1090/1583950/

https://law.justia.com/cases/california/supreme-court/3d/18/840.html

https://law.justia.com/cases/pennsylvania/supreme-court/1987/368-pa-super-383-0.html

https://law.justia.com/cases/federal/district-courts/FSupp/969/7/1808472/

https://law.justia.com/cases/montana/supreme-court/2015/da-14-0759.html

https://law.justia.com/cases/alaska/supreme-court/2016/s-15951.html

https://law.justia.com/cases/federal/appellate-courts/ca2/17-1605/17-1605-2018-07-24.html

 

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