United States Court of Appeals For the First Circuit

No. 21-1822

PLEASANTDALE CONDOMINIUMS, LLC,

Plaintiff, Appellant,

v.

THOMAS J. WAKEFIELD,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

Roy T. Pierce, with whom Jensen Baird was on brief, for appellant. Daniel L. Cummings, with whom Norman, Hanson & DeTroy, LLC was on brief, for appellee.

June 21, 2022 SELYA, Circuit Judge. Following its purchase of an

apartment complex, plaintiff-appellant Pleasantdale Condominiums,

LLC (Pleasantdale) sued the seller, defendant-appellee Thomas J.

Wakefield (Wakefield), alleging nondisclosure of material

information under a Maine statute. Hidden within the penumbra of

the complaint was what Pleasantdale now characterizes as an

independent claim for fraud in the nature of active concealment.

The district court entered summary judgment in Wakefield's favor

on all claims. Pleasantdale appeals, asserting that the challenge

to its independent claim for fraud in the nature of active

concealment was not properly before the district court and that,

if it was, summary judgment should not have entered on that claim.

After careful consideration, we affirm the district court's entry

of summary judgment.

I

We briefly rehearse the relevant facts and travel of the

case. Our account is drawn from the summary judgment record, and

we take the facts and the reasonable inferences therefrom in the

light most flattering to the party against whom summary judgment

was entered (here, Pleasantdale). See Mancini v. City of

Providence,

(1st Cir. 2018); McKenney v. Mangino,

(1st Cir. 2017).

In 1975, Wakefield and a partner purchased real property

located at 9 Cole Street, South Portland, Maine (the Property).

- 2 - About a year later, construction began for the first of two four-

unit apartment buildings. After completion of the first building

but prior to construction of the second building, Wakefield

submitted a site plan (the Site Plan) to the city of South

Portland. As relevant here, the Site Plan, which was recorded in

the Cumberland County Registry of Deeds, designated an area on the

Property "to be filled" (the Fill). The owners then proceeded to

construct the second four-unit building on the Property. More

than two decades after securing approval of the Site Plan (that

is, around the early 2000s), Wakefield completed the Fill, using

gravel and assorted debris.

We fast-forward to the spring of 2019. At that time,

Fred Andrews (Andrews) of Spectrum Real Estate LLC contacted

Wakefield (who by then had become the sole owner of the Property)

and asked if he would sell the Property. Andrews had in mind a

potential purchaser, Telos Capital (Telos). After Wakefield

agreed to consider selling, Andrews served as the dual agent for

both Wakefield and Telos during the ensuing negotiations.

On May 6, 2019, Telos tendered a signed purchase and

sale agreement to Wakefield. That same day, Telos entered into a

contract (the Assignment), assigning all of its rights under the

prospective purchase and sale agreement to Pleasantdale. There is

no evidence in the record that Wakefield knew of the Assignment at

that time.

- 3 - On May 7, Wakefield — still unaware of the Assignment —

made a counteroffer to Telos, eliminating all contingencies

(including an inspection contingency). Wakefield and Telos agreed

to these amendments and signed the purchase and sale agreement, as

amended (the Agreement), on May 8. The parties understood that

the Property was being sold "as is." By virtue of the Assignment,

Pleasantdale stepped into the shoes of Telos with respect to the

Agreement. A closing took place on June 3, 2019, and Pleasantdale

purchased the Property for $725,000. Pleasantdale had no direct

communication with Wakefield and the only documents upon which it

relied in purchasing the Property were the Agreement and the

Assignment.1

Some months after the closing, Pleasantdale began

construction of additional apartment units on the Property. In

the course of excavation, Pleasantdale's contractor uncovered the

Fill. The existence of the Fill impeded Pleasantdale's plans for

building additional apartment units on the Property. Pleasantdale

About a year after the closing, Pleasantdale received an 1

unsigned property disclosure form. Andrews prepared and completed the form (apparently on a standard Spectrum Real Estate form). He says that he questioned Wakefield in the process, but Wakefield did not sign or otherwise acknowledge the completed form. Moreover, the record contains no evidence that Wakefield ever saw the completed form. And at any rate, Pleasantdale — which first received a copy of the completed form in July of 2020 — could not have relied upon it when purchasing the Property.

- 4 - cried foul, alleging that no one had ever disclosed to it that a

portion of the Property had been filled.

Frustrated in its aspirations to construct additional

apartment units, Pleasantdale sued Wakefield in a Maine state

court. In its fifty-two-paragraph complaint, Pleasantdale alleged

claims for fraud and negligent misrepresentation. As pleaded,

both counts were based on the alleged violation of a Maine statute.

See

(5).2 In the fraud count,

Pleasantdale alleged (in paragraph 39) that section 173(5) imposed

on Wakefield an "affirmative[] obligat[ion] to disclose

. . . 'known defects.'" In the negligent misrepresentation count,

Pleasantdale alleged (in paragraph 49) that "Wakefield had a

statutory duty" — under section 173(5) — "to disclose the presence

of the 'uncontrolled fills' on the Property." Pleasantdale went

on to allege that Wakefield breached that statutory duty.

Although the statutory disclosure requirement was the

cornerstone of Pleasantdale's complaints, paragraph 42 of the

complaint is of particular pertinence to the present proceeding.

There, Pleasantdale alleged that:

42. Not only did Mr. Wakefield have an affirmative statutory duty to disclose the existence of the 'uncontrolled fills' on the

2Under section 173(5), a "seller of residential real property shall provide to the purchaser a property disclosure statement containing," among other things, information regarding "[a]ny known defects" in the property being sold.

(5).

- 5 - Property, he actively concealed the presence of those 'uncontrolled fills' by (a) burying them so that they could not be seen by visual observation by prospective purchasers of the Property, including Pleasantdale; and (b) by lying about his knowledge of their presence on the Property Disclosure.

Paragraph 45 appeared to link this active concealment allegation

to the statutory claim by averring that "[a]s a direct and

proximate result of Pleasantdale's reliance on Mr. Wakefield's

failure to disclose . . . , Pleasantdale has sustained considerable

pecuniary damage."

Wakefield answered Pleasantdale's complaint, invoked

diversity jurisdiction, and removed the action to the United States

District Court for the District of Maine. See

(a), 1441(b). The district court entered a scheduling

order, which included a discovery period. See D. Me. R. 16.2. On

the day that discovery closed, Wakefield filed a notice of intent

to seek "summary judgment on the complaint." See

(h)(2).

Wakefield proceeded to file his summary judgment motion.

In it, he argued that he was entitled to summary judgment on both

counts primarily because section 173(5) applied only to

"residential real property," which the statute defined as "real

estate consisting of one or not more than 4 residential dwelling

units" (emphasis in original). Wakefield explained that the

Property, when sold, comprised eight residential units and that,

therefore, the strictures of section 173(5) were inapposite. He

- 6 - also argued that the doctrine of caveat emptor absolved him of any

liability to Pleasantdale.

Wakefield accompanied his motion for summary judgment

with a statement of material facts not in dispute (the Statement).

See

(b). Pleasantdale filed a counter-statement of material

facts in which it "[a]dmitted solely for purposes of summary

judgment" every fact set forth by Wakefield. See

(g)

(permitting admission of facts solely for purposes of summary

judgment).

In its response to Wakefield's motion for summary

judgment, Pleasantdale conceded that section 173(5) did not apply.

It therefore acknowledged that it could not recover on its

negligent misrepresentation claim but asserted that "the same

[wa]s not true with respect to [its] fraud claim." To validate

this assertion, Pleasantdale advanced an "alternate active

concealment basis for [its] fraud claim," which — it maintained —

"remain[ed] viable."

In his reply to Pleasantdale's response, Wakefield met

the newly emergent active concealment claim head on. He argued

both that fill is "[b]y definition . . . placed underground and

buried" and that, in any event, Pleasantdale had failed to submit

any "evidence that Wakefield took steps to hide the fact that the

Fill existed." Pleasantdale did not move to strike this portion

- 7 - of the reply, to file a sur-reply, to reopen discovery, or to

supplement the summary judgment record.

On September 21, 2021, the district court decided the

motion for summary judgment on the papers. See Pleasantdale

Condos., LLC v. Wakefield, No. 21-00014,

(D. Me.

Sept. 21, 2021). The court first determined that section 173(5)

did not apply to the Property and, thus, afforded Pleasantdale no

avenue for relief.

. That determination disposed of the

negligent misrepresentation claim. See

The same reasoning

also disposed of the fraud claim "to the extent that [the fraud

claim] [wa]s based on the statutory duty to disclose."

As to

the "second theory of fraud," the court noted that "[Pleasantdale]

point[ed] to no facts that demonstrate that Mr. Wakefield 'actively

concealed' (i.e., took steps to conceal) the debris."

Accordingly, the court held that "[Wakefield] [wa]s entitled to

summary judgment on both counts."

Pleasantdale did not move

for reconsideration, and this timely appeal followed.

II

Our standard of review is familiar: "[w]e review orders

for summary judgement de novo." Houlton Citizens' Coal. v. Town

of Houlton,

(1st Cir. 1999); see Moore v. British

Airways PLC,

(1st Cir. 2022). In conducting

this review, we examine "the record and all reasonable inferences

- 8 - therefrom in the light most hospitable to the summary judgment

loser." Houlton Citizens' Coal.,

.

To prevail on summary judgment, the movant must "show[]

that there is no genuine dispute as to any material fact and [that

he] is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a); see Morelli v. Webster,

(1st Cir. 2009).

In order to trigger the process, "the movant must [first] adumbrate

'an absence of evidence to support the nonmoving party's case.'"

Brennan v. Hendrigan,

(1st Cir. 1989) (quoting

Celotex Corp. v. Catrett,

(1986)). The burden

then shifts to the nonmovant to establish the existence of a

genuine issue of material fact. See

"Genuine issues of material fact are not the stuff of [a

nonmovant's] dreams." Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991). "On issues where the nonmovant bears the

ultimate burden of proof, [it] must present definite, competent

evidence to rebut the motion" for summary judgment. Id.; see

Brennan,

. Evidence that is "conjectural or

problematic" will not suffice to forestall summary judgment. Mack

v. Great Atl. & Pac. Tea Co.,

(1st Cir. 1989).

Before us, Pleasantdale takes issue only with the

district court's resolution of its fraud count. It offers two

reasons why — in its view — the district court's order should not

stand. Neither reason is convincing.

- 9 - A

Pleasantdale first complains that it was the victim of

a sneak attack. The district court's resolution of the active

concealment claim, Pleasantdale says, surprised it because

"[Wakefield] never moved for summary judgment on that claim." This

plaint, we think, comprises more cry than wool.

Pleasantdale argues that it was unfairly surprised

because Wakefield's motion did not place the active concealment

claim in issue. This argument has a patina of plausibility: when

Wakefield initially moved for summary judgment, he trained his

fire on the absence of liability under the statute. That emphasis,

however, was invited by Pleasantdale. After all, Pleasantdale's

purported active concealment claim was itself concealed.

Pleasantdale's complaint, fairly read, did not plainly

plead an independent claim for active concealment. Cf. Fed. R.

Civ. P. 8(a) (requiring "plain statement" of claims in plaintiff's

complaint). Of the fifty-two paragraphs in the complaint, the

only paragraph that so much as mentions active concealment was

paragraph 42. Even then, paragraph 45 indicated that paragraph 42

was in service of Wakefield's statutory claim under section 173(5)

and linked Wakefield's putative liability to Wakefield's failure

to adhere to his (alleged) statutory duty to disclose.

Pleasantdale makes a closely related argument. It notes

that Local Rule 56(h) provides that a party intending to move for

- 10 - summary judgment must file a notice of his intention to so move.3

See D. Me. R. 56(h). Pleasantdale claims that because Wakefield's

Local Rule 56(h) notice only mentioned the statutory basis for

Pleasantdale's claims, the district court never "authorize[d]"

Wakefield to seek summary judgment on the active concealment claim.

We do not think that Wakefield's Local Rule 56(h) notice

should be given such a crabbed reading. Nor do we think that the

notice can be said to have misled Pleasantdale. As we have said,

no independent claim of active concealment was readily apparent

from the face of the complaint. Given the way in which the active

concealment claim was hidden in the penumbra of the complaint,

Wakefield scarcely can be faulted for not initially responding to

this hidden claim.

In all events, Pleasantdale was the master of the

complaint. See, e.g., López-Muñoz v. Triple-S Salud, Inc.,

(1st Cir. 2014); ConnectU LLC v. Zuckerberg,

(1st Cir. 2008); Britell v. United States,

, 75

n.3 (1st Cir. 2003). Thus, it must have recognized that it was

attempting an active concealment claim. And because Wakefield had

secured leave of court to move "for summary judgment on the

3 Local Rule 56(h) provides that "a party intending to move for summary judgment shall file no later than seven (7) days after the close of discovery . . . a notice of intent to move for summary judgment, and the need for a pre-filing conference with a judicial officer." D. Me. R. 56(h).

- 11 - complaint," Pleasantdale must have understood that its active

concealment claim was at risk.

The sockdolager, of course, is the content of the

parties' dueling memoranda regarding the summary judgment motion.

In its response to Wakefield's summary judgment motion,

Pleasantdale asserted that it had an "alternate active concealment

basis for [its] fraud claim." It also suggested that —

notwithstanding Wakefield's arguments in support of summary

judgment — its active concealment claim "remain[ed] viable." It

is thus evident that Pleasantdale regarded the issue of active

concealment as squarely in play for purposes of summary judgment.

That recognition, in turn, defeats its claim of surprise: a party

hardly can claim unfair surprise when a court takes up an issue

that the party itself has put before the court. Cf. Curet-

Velázquez v. ACEMLA de P.R., Inc.,

(1st Cir.

2011) (finding that appellants could not claim unfair surprise

based on opposing party's reference to documents introduced by

appellants); United States v. Powell,

(7th Cir.

2011) (explaining that defendant could not claim unfair surprise

when government requested aiding and abetting instruction after

defendant had employed a trial strategy aimed at showing he was

not a principal).

In so concluding, we point to the parties' actions

following Pleasantdale's response to the summary judgment motion.

- 12 - In his reply to that response, Wakefield joined issue with the

newly emergent active concealment claim and offered a reasoned

rebuttal to it. He asserted that "[t]here is no evidence that

[he] took steps to hide the fact that the Fill existed."

Had Pleasantdale been surprised by this rejoinder, it

had remedies at hand. It could have moved to strike those portions

of Wakefield's reply or, alternatively, asked for leave to file a

sur-reply (in which it could have spelled out its claim of unfair

surprise). Pleasantdale did neither, and it cannot now fault the

district court for resolving an issue that was teed up for decision

by the parties. Pleasantdale's claim of surprise therefore fails.

B

This brings us to Pleasantdale's second plaint: that

Wakefield was not entitled to summary judgment on the merits of

the active concealment claim. Maine law governs this issue. See

Erie R.R. Co. v. Tompkins,

(1938); Eaton v. Penn-

Am. Ins. Co.,

(1st Cir. 2010).

To establish a claim for active concealment under Maine

law, a plaintiff must show that the defendant took steps "to hide

the true state of affairs from the plaintiff." Kezer v. Mark

Stimson Assocs.,

(Me. 1999). Consequently, to

avoid summary judgment in this case, the record, viewed in the

light most hospitable to Pleasantdale, would have to contain

definite, competent evidence from which a rational factfinder

- 13 - could conclude that Wakefield took steps to hide the Fill from

Pleasantdale. Pleasantdale has identified no such evidence in the

summary judgment record. These are the relevant facts:

• In 1976, the Site Plan, designating an area in the

Property to be filled, was recorded in the Cumberland

County Registry of Deeds. As such, it became a matter

of public record.

• The Site Plan made it apparent that a portion of the

Property would be filled.

• Prior to or around the early 2000s, gravel and debris

were used to fill the area of the Property designated on

the Site Plan, and the Fill was covered. The Property

was not for sale at that time, and Pleasantdale was not

in the picture.

• When Pleasantdale acquired the Property, there were no

direct communications between Pleasantdale and

Wakefield. Moreover, Wakefield made no representations

to Pleasantdale, which purchased the Property "as is."

Nor is there any evidence that Wakefield made any

representations to Telos (Pleasantdale's assignor).

- 14 - • The only documents that Pleasantdale relied on before

executing the Assignment were the Agreement and the

Assignment itself.4

• From the time that Wakefield was first contacted by

Andrews until the time that the sale of the Property was

completed, nothing in the record so much as suggests

that Wakefield (or any person acting on his behalf) took

any steps to conceal the Fill.

These facts, together with the reasonable inferences therefrom,

are entirely inadequate to establish that Wakefield took steps to

hide the Fill from Pleasantdale. See

(defining "active

concealment" as "steps taken by a defendant to hide the true state

of affairs from the plaintiff"); see also Active Concealment,

Black's Law Dictionary (11th ed. 2019) (defining "active

concealment" as "[t]he concealment by words or acts of something

that one has a duty to reveal"). A purchaser's ignorance of facts,

without more, does not amount to active concealment. See Kezer,

.

4 Pleasantdale adverts in passing to the unsigned disclosure form. But that form was neither received nor reviewed by Pleasantdale until well after the transaction closed. Moreover, there is no evidence in the record that either Pleasantdale or Telos relied upon the unsigned disclosure form in connection with the sale of the Property. The unsigned disclosure form is, therefore, irrelevant. Cf. Kezer,

(observing that timing of information vis-à-vis timing of closing is critical to reliance inquiry).

- 15 - Pleasantdale's only rejoinder is that Wakefield buried

the Fill "so that [it] could not be seen by visual observation by

prospective purchasers." But the record will not support a

reasonable inference that Wakefield had a malign intent when he

covered the Fill. The burying of the Fill preceded the sale by

roughly two decades; there is no evidence that the Property was

offered for sale in the interim; and there is no evidence that the

burying of the Fill was in any way connected with a plan to sell

the Property. Under these circumstances, no inference favorable

to Pleasantdale can reasonably be drawn from the covering of the

Fill. As the district court observed, "[f]ill, by its nature, is

generally covered." Pleasantdale Condos.,

, at *2.

If more were needed — and we doubt that it is — the fact

that the Site Plan was recorded belies any suggestion that

Wakefield intended to conceal the Fill from prospective buyers.

Recorded site plans are public records, see

(3), and spelling out one's plans for future action

in a public record is the antithesis of an intent to conceal, cf.

McKinnon v. Honeywell Int'l, Inc.,

(Me. 2009)

(noting absence of fraudulent concealment when relevant facts were

"publicly available in [] documents filed . . . with the Patent

and Trademark Office").

We need go no further. Discovery in this matter has

closed and Pleasantdale has wholly failed to adduce facts

- 16 - sufficient to establish that Wakefield took any steps to hide the

Fill from it. Thus, no rational factfinder could conclude that

Wakefield actively concealed the Fill from Pleasantdale. It

follows inexorably that Wakefield was entitled to summary judgment

as a matter of law on Pleasantdale's active concealment claim.

III

Because we find that the issue of active concealment was

properly before the district court and that the record contains no

genuine issue as to any material fact concerning active

concealment, Wakefield was entitled to summary judgment as a matter

of law.

Affirmed.

- 17 -