Daigle v. Northwest Trailer Park P'ship

STATE OF MAINE 4 SUPERIOR COURT

CUMBERLAND, ss. >) CIVIL ACTION

oe DOCKET NO. TE

MP Say EP Qp PE CeO 2f

JANET M. DAIGLE, et al.,

Plaintiffs

Vv. ORDER ON MOTION

FOR SUMMARY JUDGMENT

OF DAVID J. DAIGLE, PEGGY

A. MOORE, AND IRENE

DAIGLE

t DONALD L. GARBRECHT

NORTHWEST TRAILER PARK LAW! yb mivaAR

PARTNERSHIP, et al.,

B 2002

Defendants MAY

Defendants, David James Daigle (hereinafter “James”), Peggy Moore, and

Irene Daigle, have filed a motion for summary judgment as to Counts I, I, V, VI,

and VII of the plaintiff’s complaint. Upon review of the motion, opposition, and

the applicable law, the motion for summary judgment will be granted in part and

denied in part.

BACKGROUND

The plaintiff, Janet M. Daigle, brought this complaint in connection with the

administration of a trust established by David D. Daigle for the benefit of the

plaintiff, Janet, and another sibling, John Daigle, who is not involved in this

lawsuit, and administered by co-trustees, the defendants James Daigle and Peggy A.

Moore; and the operation of the defendant Northwest Trailer Park Partnership.!

The trust provides that during the life of Irene Daigle, widow of David D. Daigle,

trust funds may be used for the care of Irene if needed, and that upon her death the

trust funds are to be distributed to Janet Daigle and John Daigle.

The trailer park is a partnership that paid net monthly income to each partner

in proportion to the percentage interest in the partnership. It was managed by James

Daigle until 1982, by Janet Daigle from 1982 to 1992, and by James Daigle from 1992 to

present. David D. Daigle borrowed from the income generated by the trust’s interest

and when he died on January 16, 1972, his ledgers showed a personal loan of

$18,355.06 from the trust, and a loan of $9,182.06 from the trust to the corporation,

David D. Daigle Farms. In her complaint Janet Daigle asserted the following claims:

breach of fiduciary duty - James Daigle (Count I); breach of fiduciary duty - Peggy A.

Moore (Count II); breach of fiduciary relationship (Count III); dissolution of

partnership (Count IV); wrongful discharge/breach of implied covenant of good

faith and fair dealing (Count V); intentional infliction of emotional distress (Count

VI); and punitive damages (Count VII). The defendants, Irene, James, and Peggy,

have filed this motion for summary judgrnent as to Counts I, Il, V, VI, and VII.

FACTS

David D. Daigle established the “Irrevocable Trust for John Daigle and Janet

Mae Daigle” (hereinafter “the trust”) on December 27, 1961. Defendants’ Statement

1 Since 1961 ownership of the trailer park has been in the following

percentages: James Daigle - 25%; Peggy Moore - 25%; Irene Daigle - 22.5%; Janet

Daigle - 10%; and Trust - 17.5%.

of Material Fact (DSMF) { 1; Plaintiff's Opposing Statement of Material Fact

(POSMF) I 1. James Daigle and Peggy Moore were appointed trustees of the trust.

DSMF { 2; POSMF { 2. James Daigle, as trustee, is obligated to exercise good faith in

his position, and must not engage in willful misconduct in his financial dealings

with the trust. Plaintiff's Additional Statement of Material Facts (PASMF) { 3;

Defendants’ Response to Plaintiff's Additional Statement of Material Facts (DRPMF)

{ 3. The trust provides that during the lifetime of Irene Daigle, the trustees may, in

their discretion, distribute income and principal of the trust as needed for Irene’s

care, comfort maintenance, support and medical care and attention. DSMF { 3;

POSMEF { 3. The trust provides that upon the death of Irene Daigle, the remainder

of the trust will be distributed to John Daigle (25/40) and Janet Daigle (15/40). A 17.5

percent interest in the trailer park was conveyed to the trust.2, DSMF { 5. David D.

Daigle died January 16, 1972, and by that time had personally borrowed $ 18,355.06

from the trust, and his corporation, David D. Daigle Farms had borrowed $ 9,182.06

"from the trust; there was no provision for interest to be paid on these loans.? DSMF

{ 6. The loans were unpaid at the time of David D. Daigle’s death. DSMF J 7;

2 The plaintiff is unsure that this was the sole asset transferred to the trust,

because she claims that she has been denied access to the accounts of the trust.

POSMF { 5.

3 The plaintiff attempts to dispute the fact that there was no provision for

interest by pointing to subsequent loans rade by the trust to the trailer park, which

do include provisions for interest; however, the subsequent loans were not made to

one of. David D. Daigle’s business entities while David D. Daigle was living, nor

were the subsequent loans made to David D. Daigle, personally. POSMF { 6;

Plaintiff’s Exhibit C.

POSMF q 7. James Daigle and his wife, Eloise, are shareholders of the corporation

David D. Daigle Farms, which has been inactive for many years and has no assets or

liabilities. PASMF J 2; DRPMF { 2. The parties are in dispute as to whether they

agreed, at the time of David D. Daigle’s death, that the outstanding loans would be

paid by Irene Daigle’s estate at the time of her death. DSMF { 8; POSMF J 8; see

Exhibit C3 to James Daigle Aff. The loans made by the trust to David Daigle,

personally, and David D. Daigle Farms have been repaid by Irene Daigle. DRPMF

3.

Peggy Moore, as trustee since 1982, has had primary responsibility for the

management of the trust and has rendered personal and financial services to

beneficiary Irene Daigle.? DSMF { 14. Peggy Moore, with the approval of Irene

Daigle, charged an average of $ 1949.00 annually for personal and financial services

rendered to the trust and beneficiary Irene Daigle from 1983 through 1992; however

she charged nothing from 1983 through 1991 and then charged $ 19,490.00 for her

services in 1992-93. DSMF {J 15; POSMF ¥ 15. The average amount of fees charged

4 The document alleged to be an agreement for the forgiveness of debt does

not clarify the dispute, as it makes no reference to the debt owed by David D. Daigle

and David D. Daigle Farms to the trust. Exhibit C3 to James Daigle Aff.

5 Janet Daigle asserts that she performed most (99 percent) of the financial

services for the trust during the years 1982-1993. POSMF { 14; Janet Daigle (10-11-01)

Aff. TJ 23, 24, 25, 26; Janet Daigle (12-6-93) Aff. | 4; Barbara Bagley (CPA who

reviewed financial records and tax returns prepared by Janet, since 1983, pertaining

to Northwest Trailer Park) Aff. {J 10, 12.

by Peggy Moore is less than a bank in the locality would charge to oversee the trust.®

DSMF { 16. The corpus of the trust increased from $ 241,140.00 in 1982 to $

451,037.00 in 1994. DSMF J 17; POSMF 17.

On May 27, 1993, Peggy Moore withdrew, or caused to be withdrawn,

$20,000.00 from the trust account 060-50-178-0, and invested the money in a trust CD

along with other trust funds. DSMF J 18; POSMF { 18.

Janet Daigle was employed as manager by Northwest Trailer Partnership as an

at-will employee. DSMF { 19; Peggy Moore Aff. I 14; Janet Daigle Dep. pp. 64, 69, 72

(no written contract); POSMF J 19. In December 1992, the other partners removed

her as manager because of her difficult and abusive behavior and hostility in all

matters including the operation of the trailer park.’ DSMF { 20; James Daigle Aff.

{i 10, 11, 12, 13; Peggy Moore Aff. [J 16, 17, 18; Irene Daigle Dep. pp. 24, 25, 32, 33, 62,

63. After her removal as manager, Janet Daigle continued to receive her

distribution from Northwest Trailer Park and received $ 14,270.00 in 1993, an

increase of about $ 470.00 from the previous year. DSMF J 21; James Daigle Aff. {

6 Janet Daigle asserts that the comparison is unpersuasive as the services

provided by Peggy Moore and those that would have been provided by a bank are

not comparable. POSMF { 16; Janet Daigle (10-11-01) Aff. {| 28; Janet Daigle (12-6-93)

Aff. [J 5-6; Bagley Aff. [J 10, 11, 13.

7 Janet Daigle asserts that she was terminated because she requested a raise.

She cites her own affidavit as the supporting reference; however, the cited

paragraph indicates the statement is made on “belief”. POSMF J 20; Janet Daigle

(10-11-01) Aff. { 9. The paragraph at issue is not about information for which Janet

Daigle’s personal knowledge can be inferred. See Casco Northern Bank, N.A. v.

Estate of Grosse, 657 A.2d 778, 781 (Me. 1995) (although the affidavit failed to state

that it was made on personal knowledge, the affiant’s personal knowledge was

apparent from the body of the affidavit).

14; Exhibit E; Pegpy Moore Aff. { 19; POSME { 21.

Janet Daigle was temporarily denied access to the trailer park financial

information in 1993 in an effort to make her deliver trailer park records to the other

partners.® DSMF { 22; James Daigle Aff. {{ 14, 15.

The defendants assert as a factual matter that any emotional distress suffered

by Janet Daigle “was not so severe that no reasonable person could be expected to

endure it.” DSMF { 26. The supporting citation is to testimony of Janet Daigle

related to her physician’s opinion that Janet was suffering stress that was severely

aggravated by the lawsuit and deposition, and that her injuries were worsened by

the situation. Janet Daigle Dep. pp. 6-9.

Janet Daigle asserts that Peggy Moore and James Daigle attempted to obtain a

Protection From Harassment Order that would keep Janet from crossing over into

Canada to get to her camp. Janet Daigle cites her own affidavit to support this

assertion, however without more the court cannot accept that she has personal

knowledge of Peggy Moore’s motivation, especially in light of Peggy Moore’s

testimony as to her own motivation.’ Supplemental Peggy Moore Aff. { 5. There is

no evidence that James Daigle participated in obtaining the order. See

8 Janet Daigle asserts that the records and information were withheld from

her because she asked for an accounting of the trust management; however, she

cites her own affidavit for support, and the cited paragraph indicates that the

statement is made on “belief.” Janet Daigle (10-11-01) Aff. | 9. The paragraph at

issue is not about information for which Janet Daigle’s personal knowledge can be

inferred. See Casco Northern Bank, 657 A.2d at 781.

9 Janet Daigle does include the factual statement that the order was dissolved.

PASMF { 4. However, that fact is insufficient to support her allegation of motive.

6

Supplemental Peggy Moore Aff. J 5; Supplemental James Daigle Aff. { 2; Janet

Daigle (10-11-01) Aff. | 13. There is a dispute as to whether Janet Daigle was stopped

from crossing over the border into Canada because of the protection order or because

the border authorities discovered a weapon (billy club) in Janet’s car. See Janet

Daigle (10-11-01) Dep. { 13; but see Supplemental Kenneth Michaud Aff. { 2.

DISCUSSION

Summary judgment is appropriate if the record reflects that there is no

genuine issue of material fact and the moving party is entitled to a judgment as a

matter of law. M. R. Civ. P. 56(c); Saucier v. State Tax Assessor, 2000 ME 8, J 4, 745

A.2d 972, 974. “A genuine issue of material fact is present only when ‘there is

sufficient evidence supporting the claimed factual dispute to require a choice

between the parties’ differing versions of the truth at trial.’” Francis v. Stinson, 2000

ME 173, { 37, 760 A.2d 209, 217 (quoting Prescott v. State Tax Assessor, 1998 ME 250, I

5,721 A.2d 169, 171-72).

In order to survive a defendant’s motion for summary judgment, a plaintiff

must establish a prima facie case for each element for each of her causes of action.

Curtis v. Porter, 2001 ME 158, { 8, 784 A.2d 18, 22; see also Stanton v. Univ. of Maine

System, 2001 ME 96, { 6, 773 A.2d 1045, 1048-49 (“To survive a defendant’s motion

for summary judgment, a plaintiff must produce evidence that, if produced at trial,

would be sufficient to resist a motion for judgment as a matter of law”) (citation

omitted). The court is charged with “determin[ing] the elements of the causes of

action at issue and then review[ing] the facts set forth in the parties’ statements of

material facts that are supported by appropriate record references.” Id.

I. Breach of Fiduciary Duty - James Daigle

A trustee who breaches his or her fiduciary duty is “(a) accountable for any

profit accruing to the trust through the breach of trust; or (b) chargeable with the

amount required to restore the values of the trust estate and trust distributions to

what they would have been if the trust has been properly administered.” Estate of

Wilde, 1998 ME 55, { 8, 708 A.2d 273, 276 (quoting Restatement (Third) of Trusts §

205 (1992)). A breach of trust is a breach by the trustee of a duty owed to the

beneficiary. Id. Under 18-A M.R.S.A. § 7-302, a trustee “who invests and manages

trust assets owes a duty to the beneficiaries of the trust to comply with the prudent

“he

investor rule set forth in this section.” However, “[t]he prudent investor rule may

be expanded, restricted, eliminated or otherwise altered by the provisions of a trust.”

18-A M.R.S.A. § 7-302(a).!?

10 Under 18-A M.R.S.A. § 7-302:

(b) A trustee shall apply the following requirements in complying with the prudent

investor rule.

(1) A trustee shall invest and manage trust assets, as a prudent investor would,

by considering the purposes, terms, distribution requirements and other

circumstances of the trust. In satisfying this standard, the trustee shall exercise

reasonable care, skill and caution.

(2) A trustee’s investment and management decisions respecting individual

assets must be evaluated not in isolation but in the context of the trust portfolio

as a whole and as a part of an overall investment strategy having risk and

return objectives reasonably suited to the trust.

(3) Among circumstances that a trustee shall consider in investing and managing

trust assets are all of the following that are relevant to the trust or its

beneficiaries:

The plaintiff asserts that James Daigle breached his fiduciary duty as trustee by

his failure, as a director and shareholder of David D. Daigle Farms, to repay or cause

to be repaid the loans made to David D. Daigle Farms; and by his failure, as trustee,

to exert effort to compel David D. Daigle Farms and the David D. Daigle estate to

repay the loans. This argument is moot as to the principal amount due on the loans

now that Irene Daigle has paid the principal amount. However, the terms of the

loans are still at issue - i.e., whether James Daigle breached his fiduciary duty by

failing to charge and collect interest on the loans during the course of the 32 year

loan period. The plaintiff also asserts that James Daigle has breached his fiduciary

duty by failing to inform and render accurate accounts with respect to the

administration of the trust.

(v) The expected total return from income and_ the

appreciation of capital; ,

(vi) Other resources of the beneficiaries, to the extent the other

resources are known to the trustee;

(vii) Needs for liquidity, regularity of income and preservation or

appreciation of capital; and

(e) A trustee shall invest and manage the trust assets solely in the interest of the

beneficiaries.

(g) In investing and managing trust assets, a trustee may only incur costs that are

appropriate and reasonable in relation to the assets, the purposes of the trust and the

skills of the trustee.

(h) Compliance with the prudent investor rule is determined in light of the facts and

circumstances existing at the time of a trustee’s decision or action and not by hindsight.

9

The defendants argue that they are entitled to summary judgment on this

claim for two reasons: (1) the challenged conduct is not a breach of the fiduciary duty

because under the terms of the trust, the trustees are authorized to make loans to

the grantors’ executors or administrators on terms as they deem advisable, and are

relieved of liability for involuntary losses or damage except that caused by willful

misconduct; and (2) all parties, including Janet, agreed at the time David D. Daigle’s

estate was settled to waive claims for the loans with the understanding that Irene

would make a specific bequest in her will to provide funds to “settle the account

with the trust.”

A. Failure to Charge and Collect Interest

1. Challenged Conduct is not a Breach of Fiduciary Duty

The defendants do not direct their arguments toward the failure to charge

interest, except to indicate that under the terms of the trust the trustees are

empowered to make loans “on such terms as the trustee deemed advisable,” as “if

they were the absolute owners thereof, free of Trusts.” Defendants’ Motion for

Summary Judgment p. 5.

The trust document does provide that the trustees have the same powers of

management, disposition and control of the trust which they would have if they

were the absolute owners (subject only to the liability to account therefor). Exhibit A

to Peggy Moore’s Aff. p. 3. The grant of authority, however, does not purport to

relieve the trustees from their fiduciary duty to the beneficiaries of the trust. Even if

the defendants’ argument is accepted, and the trustees can only be held liable for

10

willful misconduct, there is a question of fact as to whether James Daigle’s conduct

rises to that level. Specifically, a reasonable trier of fact could conclude that James

Daigle’s decision not to repay a loan made to a corporation for which he and his wife

are shareholders, and the decision to refrain from charging or collecting interest on

that same loan constitute willful misconduct. In addition, the second loan was

made to David D. Daigle. When David D. Daigle died, rather than repay the

accounts by taking money out of the estate to repay the trust, the trustees arranged to

delay payment until Irene Daigle died. There is an issue of fact as to whether the

decision not to repay the accounts at that time, and the decision to refrain from

charging or collecting interest on that loan was willful misconduct, because it is

unclear who benefitted from maintaining the outstanding loan, and deciding not to

charge or collect interest.

2. Waiver

“Waiver is the voluntary and knowing relinquishment of a right and may be

shown by a course of conduct signifying a purpose not to stand on a right, and

leading, by a reasonable inference, to the conclusion that the right in question will

not be insisted upon.” Dep’t of Human Serv. v. Bell, 1998 ME 123, { 6, 711 A.2d 1292,

1294-95. Waiver is an affirmative defense, and as such the defendants bear the

burden of proof in this motion for summary judgment. See Townsend v. Chute

Chemical Co., 1997 ME 46, I 9, 691 A.2d 199, 202; see also Associated Builders, Inc. v.

Coggins, 1999 ME 12, J 2,722 A.2d 1278, 1279.

James Daigle asserts that Janet Daigle may not complain of his failure to

11

charge or collect interest, even if the failure to do so constitutes a breach of fiduciary

duty, because she waived the issue. The evidence cited by the defendants as

supporting the existence of a waiver is not conclusive: the purported waiver (Exhibit

C3 to Peggy Moore Aff.) makes no reference to money owed by David D. Daigle

Farms or David D. Daigle to the trust; the letter from C.P.A. Earl C. Carson (Exhibit

C1 to Peggy Moore Aff.) merely references his understanding that an agreement has

been reached; and the letter from attorney Robert L. Jalbert (Exhibit C4 to Peggy

Moore Aff.) references an agreement that the amount owed by David D. Daigle and

his various business associations would be forgiven. However, in 1990 Irene Daigle

wrote a letter in which she asserted that she would make a specific bequest to the

trust in her will. DSMF { 11. Therefore, a reasonable fact finder could determine

that there was no agreement to waive debts owed by David D. Daigle and David D.

Daigle Farms at the time of David D. Daigle’s death. See, e.g., Curtis v. Porter, 2001

ME 158, { 9, 784 A.2d 18, 22 (“Although [the court] will not speculate, [it] accord[s] the

nonmoving party the full benefit of all favorable inferences that may be drawn from

the facts presented”) (citation and quotation omitted). The defendants have not

established that there are no genuine issues of fact as to their affirmative defense of

waiver.

B. Failure to Inform and Render Accurate Accounts

The defendants do not challenge this claim in their motion for summary

judgment. Furthermore, the defendants admit that they withheld information

from Janet Daigle in order to coerce her into turning over trailer park records to the

other partners, DSMF { 22. The defendants have not established that they are

entitled to judgment as a matter of law on this claim.

I. Breach of Fiduciary Duty - Peggy A. Moore

Janet Daigle asserts that Peggy Moore has breached her fiduciary duty by

taking excessive and unreasonable trustee fees, and by withdrawing $ 20,000 from

the trust account on May 27, 1993. Specifically, the plaintiff asserts that Peggy Moore

has taken fees in the amount of $19,489.41 since November 29, 1991; purportedly

these fees are retroactive for services provided by Peggy Moore over the previous

ten years (1983-1992). The defendants argue that they are entitled to summary

judgment on this claim because the fees taken were not unreasonable or excessive,

on average. The defendants assert that the terms of the trust (Article IV, § 7)

establish that the trustees have broad discretion in paying compensation for services

provided to the trust, and that the trustee’s duties include providing personal

services and attention needed to assure Irene Daigle’s continued standard of living

as well as financial management of her affairs (Article II). The fees charged were 0.6

percent of the total value of the trust beginning in 1983, but payment did not begin

until 1991.

Whether a duty has been breached is generally a question of fact. See, e.g,

Stanton v. Univ. of Maine System, 2001 ME 96, { 11, 773 A.2d 1045, 1050. Here, there

is a genuine issue of fact as to whether the fees taken by Peggy Moore were

unreasonable and excessive. That is, because Peggy Moore did not take any trustee

fees for ten years, a reasonable trier of fact could conclude that there was an

13

agreement established by a course of dealing to waive trustee fees. In addition, there

is a question of fact as to the reasonableness of the trustee fees as related to the duties

performed by Peggy Moore. POSMF { 14.

The breach of fiduciary duty claim against Peggy Moore also contains an

allegation that she improperly withdrew $ 20,000 from the trust. The funds never

left the trust, but were reinvested in a certificate of deposit. DSMF J 18; POSMF { 18.

Accordingly, Peggy Moore did not breach her fiduciary duty by withdrawing $20,000

from the trust.

I. Wrongful Discharge/Breach of Implied Covenant of Good Faith and Fair

Dealing

A. Breach of Employment Agreement

In general, an employment contract of indefinite duration may be terminated

at will by either party. Bard v. Bath Iron Works Corp., 590 A.2d 152, 155 (Me. 1991).

Parties to an employment contract of indefinite duration may enter an employment

contract terminable only pursuant to its express terms. Id. “Such a contract must

expressly restrict the employer’s common law right to discharge the employee at will

and clearly limit the employer to the enumerated method or methods of

terminating the employment.” Id. (citing Libby v. Calais Regional Hosp., 554 A.2d

1181, 1183 (Me. 1989)). Implied language, whether written or oral, will not be

sufficient to abrogate or limit the employer’s common law right. Bard, 590 A.2d at

155 (citing Libby, 554 A.2d at 1183); see also Barrera _v. Town of Brownville, 139 F.

Supp. 2d 136, 141 (D. Me. 2001) (employee handbook can constitute such an

14

employment contract where the terms explicitly provide that removal or

termination must be grounded in good cause).

This count of the complaint arises out of the removal of Janet Daigle as the

managing partner of the trailer park. Janet Daigle asserts that she was removed

without just cause in violation of an express or implied contract of employment.

This claim, although entitled “wrongful discharge” is, in actuality, a claim for a

breach of an employment agreement. The defendants argue that Janet Daigle was an

at-will employee with no written employment contract.

The plaintiff did not direct any arguments in her opposition to the motion for

summary judgment to her claim of wrongful discharge. In addition, Janet Daigle

admitted that she was an at-will employee of the trailer park. DSMF J 19; POSME J

19. Janet Daigle has not pointed out any written agreement, or provided the court

with evidence of any oral agreement, that would abrogate or qualify the employer’s

right to terminate Janet Daigle’s employment. Accordingly, the defendants are

entitled to summary judgment as to the claim of wrongful discharge. See Curtis

2001 ME 158, ¥ 8, 784 A.2d at 22 (in order to survive a defendant’s motion for

summary judgment a plaintiff must establish a prima facie case for each element of

her cause of action).

B. Implied Covenant of Good Faith and Fair Dealing

Maine has “consistently refused to recognize implied promises in

employment contracts of indefinite duration.” Bard, 590 A.2d at 156; see also Scott v.

John T. Cyr & Sons, 660 A.2d 918 (Me. 1995). The plaintiff has not provided any

15

evidence or argument to persuade the court to vary from this general principle.

Accordingly, the defendants are entitled to summary judgment as to this claim. See

Curtis, 2001 ME 158, J 8, 784 A.2d at 22.

IV. Intentional Infliction of Emotional Distress

The Law Court has written that:

To withstand a defendant’s motion for summary judgment on a claim

of intentional infliction of emotional distress, a plaintiff must present

facts in support of each of the following four elements:

(1) the defendant intentionally or recklessly inflicted severe

emotional distress or was certain or substantially certain that

such distress would result from her conduct;

(2) the conduct was so “extreme and outrageous as to exceed all

possible bounds of decency and must be regarded as atrocious,

utterly intolerable in a civilized community”;

(3) the actions of the defendant caused the plaintiff’s emotional

distress; and

(4) the emotional distress suffered by the plaintiff was “so severe

that no reasonable person could be expected to endure it.”

Curtis, 2001 ME 158, { 10, 784 A.2d at 22-23 (quoting Champagne v. Mid-Maine Med.

Ctr. 1998 ME 87, 7 15, 711 A.2d 842, 847).

This count of the plaintiff's complaint is based on assertions that the

defendants, James Daigle, Peggy Moore, and Irene Daigle, excluded the plaintiff from

partnership business intentionally causing her emotional distress. The defendants

assert that they are entitled to summary judgment on this count for the following

reasons: (1) the removal of Janet Daigle as managing partner was not an extreme or

outrageous act; (2) the circumstances of Janet Daigle’s removal do not meet the

applicable standard for severe emotional distress - where a reasonable person,

normally constituted, would be unable to adequately cope with the mental stress

16

engendered by the circumstances of the event; (3) the plaintiff has presented no

evidence of severe mental distress; and (4) Maine cases have consistently held that

an employer’s refusal to rehire, even though antagonistic to free speech, is not

intolerable conduct to support an intentional infliction of emotional distress claim.

The plaintiff did not direct any arguments, in her memorandum in

opposition to the motion for summary judgment, to the intentional infliction of

emotional distress count of her complaint. However, in her statement of material

fact the plaintiff asserts that the Peggy Moore’s and James Daigle’s actions in

removing Janet Daigle from her job, withholding partnership asset and income

information, attempting to cut off contact between Janet Daigle and her mother

(Irene Daigle), and attempting to obtain a harassment order from Maine District

Court were extreme and outrageous acts. POSMF {{ 23, 24; see Stanton, 2001 ME 96,

{ 6, 773 A.2d at 1048-49 (in evaluating a motion for summary judgment the court is

to look to the statements of material fact to determine whether the plaintiff has

made out a prima facie case for all of the elements of the cause of action). In

response to the assertion that Janet Daigle has not established emotional distress,

she only replies that the conduct of the defendants was extreme and outrageous and

“was initiated and carried out to attack her financially, assault her spiritually,

ostracize her from her family and restrict[{] her rights and ability to travel freely to

her camp.” POSMF { 26. The court concludes that Janet Daigle has not provided

evidence to support the emotional distress element of her intentional infliction of

emotional distress claim against the defendants. Accordingly, the defendants are

17

entitled to summary judgment as to the plaintiff’s claim for intentional infliction of

emotional distress. See Curtis, 2001 ME 158, { 8, 784 A.2d at 22 (a plaintiff must

establish a prima facie case for each element of her cause of action).

V. ‘Punitive Damages

Punitive damages are available if a plaintiff establishes “by clear and

convincing evidence that the defendant's conduct was motivated by actual ill will or

was so outrageous that malice is implied." Fine Line, Inc. v. Blake, 677 A.2d 1061,

1065 (Me. 1996); see also Waxler v. Waxler, 1997 ME 190, { 16, 699 A.2d 1161, 1165

(evaluation of punitive damages claim in the context of breach of fiduciary duty).

The defendants assert that they are entitled to summary judgment as to the

plaintiff’s claim for punitive damages because the defendants’ conduct with regard

to removing the plaintiff from the managing partner position was nothing more

than their rightful discretion as partners. The defendants assert that their election to

terminate an unresponsive, demanding and abusive manager does not demonstrate

malice to any degree.

The plaintiff’s claim for punitive damages encompasses every claim she

asserts against the defendants. The breach of fiduciary duty claims survive this

motion for summary judgment. There is a question of fact as to whether James

Daigle and Peggy Moore, in breaching their fiduciary duties as trustees, engaged in

conduct so outrageous that malice can be implied.

18

The entry is

The defendants’ motion for summary judgment as to Count I (breach of

fiduciary duty - David James Daigle) is DENIED;

The defendants’ motion for summary judgment as to Count II (breach of

fiduciary duty - Peggy Moore) is GRANTED as to the claim of improperly

withdrawing $20,000, and is DENIED as to the claim of excessive fees; .

The defendants’ motion for summary judgment as to Count V (wrongful

discharge/breach of implied covenant of good faith and fair dealing) and Count VI

(intentional infliction of emotional distress) is GRANTED; and

The defendants’ motion for summary judgment as to Count VII (punitive

damages) is GRANTED as to the underlying claims of wrongful discharge (Count V)

and intentional infliction of emotional distress (Count VI), and is DENIED as to the

remainder of the underlying claims.

Po Mn

Dated at Portland, Maine this 30th day of Aprif 2002.

bl beA.

obert E. Crowley

Justice, Superior Court

19

Action

Date Filed

07-02-93 Cumberland Docket No. CV93-722

County

Damages

JANET M. DAIGLE

THE JOHN DAIGUE AND JANET M. DAVID J. DAIGLE

IRREVOCABLE TRUST . PEGGY A. MOORE

IRENE DAIGLE

PORTLAND, ME 04101

871-7232

VS.

Plaintiff’s Attorney Defendant’s Attorney (Daigles/Moore)

ANDREW J. DOUKAS, ESQ. William Smith, “Esq. 868-5248

P.O. BOX 4185 55 Main Street, Van Buren, ME 04785

Dewid-F-Perkine;-Esaq- W/D

P.O. Box 449

Portland, Maine 04112

Date of

Entry

1993

July 02 Received 07-02-93.

Complaint with Exhibits A thru Z and AA thru PP filed.

" " (4) Summonses filed.

Defendant, Irene Daigle served 06-24-93 in hand.

Defendant, Peggy Moore served 06-24-93 in hand,

Defendant, David Daigle served 06-24-93 to Eloise Daigle, Wife.

Defendant, Northwest Trailer Park Partnership served 06-24-93 to Peggy

Moore.

" " Plaintiff's Emergency Motion for Appointment of Receiver Pendente Lite

and Protection of Witness filed.

" " Plaintiff's Memorandum of Law in Support of Emergency Motion for @ircenl8

Appointment of Receiver Pendente Lite filed.

" " Affidavit of Janet M. Daigle with Exhibits A thru Z and AA thru ZZ and

AAA thru KKK filed.

July 20 Received 07/16/93:

Defendants David J. Daigle, Peggy A. Moore, Irene Daigle and Northwest

Trailer Park ‘Partnership's Answer filed.

" " Defendant's Objection and Memorandum in Opposition to Plaintiff's Motion

for Appointment of Receiver Pendente Lite and Protection of Witnesses

filed. . /

" " Defendant's David J. Daigle, Peggy Moore and Irene Daigle's Motion for

Extension of Time to File Answer to Complaint filed.

July 21 On 7-20-93.

As to Defendnts, David J. Daigle, Peggy Moore, and Irene

Daigle's, Motion for Extension of Time to File Answer to

Complaint, Motion Granted. (Saufley, J.) ,

7-22-93 copy mailed to William Smith and Andrew Doukas, Esqs.

NORTHWEST TRAILER PARK PARTNERSE