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Johanson v. Dunnington
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 169
Docket:	Yor-01-426
Argued:	November 6, 2001
Decided:	December 12, 2001

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

GILBERT A. JOHANSON SR. et al.

v.

THOMAS C. DUNNINGTON JR.

SAUFLEY, C.J.

	[¶1]  Gilbert and Irene Johanson appeal from the judgment entered in
the Superior Court (York County, Fritzsche, J.) granting Thomas
Dunnington's motion to dismiss their complaint alleging that Dunnington
engaged in professional negligence when he represented them in a real
estate transaction.  The Johansons argue that New Hampshire's statute of
limitations should control rather than Maine's; that if the Maine statute of
limitations applies, Dunnington's work was tantamount to a real estate title
opinion, thus bringing it within the "discovery" extension; and that they can
maintain a contribution claim against Dunnington.  We affirm the judgment
of dismissal.

I.  BACKGROUND

	[¶2]  Because this case is on appeal from the granting of a motion to
dismiss pursuant to M.R. Civ. P. 12(b)(6), we accept all the material
allegations of the complaint as admitted.  In re Wage Payment Litig., 2000
ME 162, ¶ 3, 759 A.2d 217, 220.
	[¶3]  The Johansons sold a parcel of land in Eliot, Maine, to H. W.
Crowley on October 10, 1990.  They were represented in that transaction by
Thomas Dunnington, a New Hampshire attorney,{1} who prepared a bill of
sale, mortgage deed, and promissory note for the Johansons.  Neither the
warranty deed nor a subsequent clarifying deed were prepared by
Dunnington, although they were signed by the Johansons after consultation
with Dunnington.  Both deeds failed to disclose an easement that the
Johansons had granted to another party.  After discovering the easement,
Crowley filed suit against the Johansons.  The suit was settled when the
Johansons agreed to pay $21,000 to Crowley.  The Johansons also incurred
$21,957 in legal bills.
	[¶4]  On November 15, 2000, the Johansons filed a complaint against
Dunnington, alleging breach of contract, negligence, contribution, and
negligent infliction of severe emotional distress.  Dunnington filed a motion
to dismiss for failure to state a claim upon which relief can be granted
pursuant to M.R. Civ. P. 12(b)(6).  The Superior Court granted that motion,
holding that the Johansons's breach of contract, negligence, and negligent
infliction of severe emotional distress claims were barred by Maine's statute
of limitations, 14 M.R.S.A. §§ 752, 753-A (1980 & Supp. 2000). 
Additionally, the court ruled that the Johansons could not maintain an action
against Dunnington for contribution because the Johansons and Dunnington
were not joint tortfeasors.  This appeal followed.

II.  DISCUSSION

A.  Standard of Review

	[¶5]  We review a trial court's dismissal of a complaint pursuant to
M.R. Civ. P. 12(b)(6) by examining the complaint "in the light most favorable
to the plaintiff to determine whether it sets forth elements of a cause of
action or alleges facts that would entitle the plaintiff to relief pursuant to
some legal theory."  In re Wage Payment Litig., 2000 ME 162, ¶ 3, 759 A.2d
at 220.  Dismissal is warranted when it appears beyond a doubt that the
plaintiff is not entitled to relief under any set of facts that he might prove in
support of his claim.  Id.

B.  Applicable Statute of Limitations

	[¶6]  On the facts set out in the Johansons's complaint, Maine's
statute of limitations applies.  "Under traditional choice of law rules, the
forum state generally applies its own statute of limitations to a cause of
action, even though it may apply the substantive law of another state." 
Ouellette v. Sturm, Ruger & Co., Inc., 466 A.2d 478, 482 (Me. 1983).  There
are two exceptions to this rule: (1) where Maine's borrowing statute applies;
and (2) where the claim is predicated on a foreign statutory enactment. 
Hossler v. Barry, 403 A.2d 762, 765 (Me. 1979).{2}  
	[¶7]  The Johansons argue that their claims fall within the second
exception because they are predicated on a New Hampshire statute.  They
allege that the professional negligence of an attorney licensed to practice in
New Hampshire is governed by N.H. Rev. Stat. § 508:4.  That statutory
provision, however, merely sets forth New Hampshire's statute of
limitations.  The substantive claims of professional negligence, breach of
contract, and negligent infliction of emotional distress all arise from
common law.  Because these claims are not predicated on a specific New
Hampshire statute, we look not to New Hampshire law but to the Maine
statute of limitations to determine the dates after which the negligence,
breach of contract, and negligent infliction of emotional distress claims are
time-barred.  Pursuant to 14 M.R.S.A. § 752, the Johansons were required to
file those claims within six years of the conduct they now challenge.  That
conduct occurred in the fall of 1990; thus, their claims were time-barred
after the fall of 1996, long before they filed their complaint against
Dunnington on November 15, 2000.

C.  Discovery Exception for Title Opinions

	[¶8] The Johansons contend, however, that even if the Maine statute
of limitations applies, it did not begin to run until they discovered
Dunnington's malpractice.  They rely on the limited discovery exception to
the standard six-year statute of limitations regarding title opinions.  The
applicable section provides:

In actions alleging professional negligence or breach of contract,
for legal service, by a licensed attorney, the statute of limitations
shall start to run from the date of the act or omission giving rise
to the injury and not from the discovery of the malpractice,
negligence or breach of contract, except: 

A. In an action alleging professional negligence in the rendering
of a real estate title opinion.

14 M.R.S.A. § 753-A (emphasis added).  In order to bring their claims within
this exception, the Johansons contend that the work Dunnington performed
in connection with the sale of their property constituted the equivalent of
the rendering of a real estate title opinion.  We agree with the Superior
Court that it did not.
	[¶9]  Nothing alleged in the Johansons's complaint presents a credible
argument that Dunnington undertook any action that was equivalent to
rendering a title opinion.  Dunnington drafted the mortgage deed, the note,
and the bill of sale.  The Johansons do not allege that he searched the title,
issued a formal title opinion, or actually rendered any opinion as to the
accuracy of the title.{3}  As the Superior Court concluded, Dunnington simply
"did not render a real estate title opinion."  Although Dunnington may have
acted negligently in providing legal advice and counsel to his clients, none of
his alleged actions could be found to constitute the rendering of a title
opinion.{4}  Thus, the statute of limitations on the Johansons's claims against
Dunnington ran in 1996 and the court properly dismissed their claims as
time-barred.

D.  The Contribution Claim

	[¶10]  Finally, we find no error in the court's conclusion that the
Johansons's contribution claim fails because Dunnington and the Johansons
were not joint tortfeasors.{5}  See Thermos Co. v. Spence, 1999 ME 129,
¶¶ 12-13, 735 A.2d 484, 487.
	[¶11]  Because Maine's statute of limitations applies, and because the
discovery exception related to real estate title opinions does not apply, and
finally because the Johansons have no right of contribution against
Dunnington, the court correctly dismissed the Johansons's cause of action.
	The entry is:
Judgment affirmed.
 Attorney for plaintiffs:

Daniel R. Warren, Esq. (orally)
Jones & Warren, P.A.
243 U.S. Route One
Scarborough, ME 04074

Attorneys for defendant:

Roy T. Pierce, Esq. (orally)
Jonathan S. Piper, Esq.
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546