Bragg v. Soley

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. “ CIVIL ACTION

DOCKET NO. CV-03-034 , -

PR OE Ot PE om Ue [dip eo

. j .

THOMAS BRAGG,

Plaintiff

Vv. ORDER ON DEFENDANT

° SOLEY’S MOTION FOR

JOSEPH SOLEY, et al., SUMMARY JUDGMENT

Defendants

Cee SE '

Less ra

JUN 8 200 .

Before the court is the motion of Defendant Joseph Soley for summary judgment

on Plaintiff's Complaint pursuant to MLR. Civ. P. 56.)

FACTUAL BACKGROUND

The following factual background is derived from the material facts submitted

by the parties.’

Defendant Soley owned 446 Fore Street, a commercial building in Portland’s Old

Port. (Def. Joseph Soley’s Statement of Material Facts in Support of His Mot. for Summ.

J. (SSMF) { 1.) In 1996, Soley executed a commercial lease with Scott Orchow and

“In this order, the court has implicitly dealt with Soley’s Motion to Strike portions of Plaintiff's

Response to Defendant Soley’s Statement of Material Facts in Support of His Motion For

Summary Judgment in its independent evaluation of all of the supporting, opposing and reply

statements of material facts submitted by the parties pursuant to M.R. Civ. P. 56(h).

Accordingly, the court determines that there is no need to separately rule on any such motion to

strike and declines to do so.

* The court notes that Plaintiff's Opposition memorandum contains a number of record citations

that have not been included in his accompanying statement of material facts. These citations

are not included in this factual background, nor does the court in its analysis of Soley’s motion

consider them. See M.R. Civ. P. 56(h)(4) (“The court shall have no independent duty to search

or consider any part of the record not specifically referenced in the parties’ separate statement

of facts”); see also Levine v. R.B.K. Calv Corp., 2001 ME 77, ¥ 9, 770 A.2d 653, 656.

Wayne Lewis. (SSMF { 2.) Orchow and Lewis, through their corporation, Waycot, Inc.

operated a bar on the premises known as the Bitter End, later known as the Better End.

(SSMF ¥ 4.) Lewis officially severed ties with the tavern on December 31, 1998. (P1’s

Response to Def. Soley’s Statement of Material Facts in Support of His Motion for

Summ. J. (PSMF) J 4.)

‘After Lewis was no longer associated with the bar, Stephen Wallace, Orchow’s

bookkeeper, purchased the assets of the Better End. (SSMF { 5.) Wallace and Soley

executed a lease, however, Defendant Soley claims that the actual lease no longer exists.

(SSMF { 6; PSMF.{ 6.)° The parties agree that Wallace obtained a liquor license, but

they dispute whether Wallace operated the bar. (SSMF J 7; PSMF J 7.)4

The parties also.dispute the extent of Soley’s involvement in the bar. (SSME { 8;

PSMF { 8.) There is a dispute over whether Soley had an interest in the bar, control

over the bar and involvement in the bar. (SSMF { 8; Defendants The Better End, Inc., et

al., Statement of Material Facts in Response to Joseph Soley’s Motion for Summary

Judgment (BSMF) { 8.)° Although the parties agree that during Wallace’s tenure, Soley

* Statements made by Plaintiff and Defendant about whether the terms of the lease are

standard commercial terms are inadmissible. Neither party has established that he is an expert

witness qualified to testify on what constitute standard terms of a commercial lease. See M.R.

Evid. 702.

“The court notes that while the first two sentences in PSMF 7 are proper qualifications and

have been considered by the court in its analysis, the other statements in Plaintiff's qualification

are additional statements of material fact that have been improperly co-mingled with Plaintiff’s

opposing statements and, accordingly, have not been considered by the court. See Doyle v.

Dep't of Human Servs., 2003 ME 61, { 11, 824 A.2d 48, 53 (holding that a court need not

consider additional facts when they are improperly commingled in the nonmoving party's

paragraphs responding to the moving party's material facts and are not set forth in a separate

section of additional facts organized in separate numbered paragraphs added pursuant to Rule

56(h)(2)).

° Soley asserts that Plaintiffs opposition to SSMF { 8 is inadmissible because it is not short

and concise and because it cites hearsay and unauthenticated documents. The court finds that

the statements in PSMF { 8 are short and concise, however, rather than simply citing the record,

Plaintiff has unnecessarily quoted and paraphrased the record after each of its statements in

support of its denial. Accordingly, the court elects not to bar PSMF { 8 on the ground that it is

2

or P.J. Lewis (Soley’s agent) picked up the rent check on a weekly basis, they dispute

whether the extent of Soley’s interactions with Orchow, Wallace and the Better End

management can be characterized as “occasional chats.” (SSMF J 9; PSMF { 9.) In

addition, the parties dispute whether Wallace and Soley had discussions prior to

Wallace’s purchase of the business other than negotiation of the lease. (SSMF J 10;

BSMF { 10; PSMF { 10.)

In January 2001, Plaintiff was injured in an incident with the bar’s bouncer on the

sidewalk in front of the bar. (PSMF { 12.) The bouncer was hired after Wallace began

leasing the premises. (SSMF { 14.)® At the time of the incident, Soley lived in New York

and his only contact with the bar was through his employee, P.J. Lewis, who collected

the rent. (SSMF J 13.) However, Soley maintained a residence located less than a

quarter mile from the bar and continued to vote in Maine. (PSMF J 13.) After

commencement of the Wallace lease, Soley was never aware that Wallace violated the

terms of the liquor lease, and to the extent that there were any incidents, Soley was not

informed. (SSMF { 11.)’

not short and concise. However, the court agrees that portions of PSMF { 8 cite

unauthenticated documents, see Pl.’s Exs. 10, 11 & 12 and are inadmissible. See M.R. Evid.

901(a).

° SSMF { 14 also states, “Soley did not know Torres and was not aware that he was hired.”

This statement is inadmissible because Kronholm does not have personal knowledge regarding

whether Soley knew Torres and whether Soley was aware that he was hired. See MR. Civ. P.

56(e); Levine, 2001 ME 77, { 6, 770 A.2d at 656 (holding that each party's statement of

material facts must contain specific record references which “refer to evidence of a quality that

could be admissible at trial").

’ PSMF { 11 is inadmissible for several reasons. First, the statements made in support of

Plaintiff's denial are not short, concise and backed by appropriate record citations as required

by MLR. Civ. P 56(h)(2). In addition, additional facts are improperly co-mingled in Plaintiff's

denial. See Doyle, 2003 ME 61, J 11, 824 A.2d at 53. Better End’s denial of SSMF ¥ 11 is also

inadmissible, as the cited portions of the record do not support a denial of SSMF { 11. See MLR.

Civ. P. 56(h)(2).

3

In December 2000, before the incident, Soley filed a complaint for eviction

because the bar had fallen behind in its rent. (SSMF ¥ 15.) By March 2001, the bar had

failed to pay its bills and was evicted. (SSME J 15.)

Plaintiff filed this action in January 2003. Plaintiff's Complaint names the

following Defendants: Joseph Soley, The Better End, Inc., Waycot, Inc., Stephen Wallace,

Scott Orchow, Miguel Torres, and Emily Kronholm. Plaintiff’s Complaint alleges:

Negligence (Counts I & III) and Assault and Battery (Count II) against The Better End,

Inc., Soley, Wallace, Orchow, Torres, and Kronholm; Negligent Hiring, Training and

Supervision (Count IV) against the Better End, Inc., Wallace, Orchow, Soley, and

Kronholm; and Nuisance (Count V) and Joint Enterprise (Count VI) against Waycot,

Inc., the Better End, Inc., Wallace, Orchow, and Soley. Plaintiff prays for judgment

against Defendants for compensatory damages, punitive damages, costs, attorney fees

and additional relief.

DISCUSSION

Plaintiff alleges two primary theories of liability against Soley. First, Plaintiff

claims that Soley is liable as a silent partner, or a co-venturer, under the theory of joint

enterprise. Second, Plaintiff argues that Soley is liable as the owner of property who

allowed a nuisance to be conducted by his tenant. Soley seeks summary judgment in

his favor on both theories.

Soley’s original motion for summary judgment also sought summary judgment

on Count II of Plaintiff's Complaint under a theory that the Count was barred by the

applicable statute of limitations, as well as summary judgment on Plaintiff's claim for

punitive damages. Soley abandoned the former argument at the May 13, 2004

4

hearing.® However, he maintains his claim that he is entitled to summary judgment on

Plaintiff's punitive damages claim.

Defendants The Better End, Inc., Waycot, Inc., Wallace, Orchow, Torres and

Kronholm adopt Plaintiff's argument in opposition to Soley’s Motion for Summary

Judgment to the extent that Plaintiff alleges that Soley was more than just a “mere

landlord.” They assert that the facts establish that Soley was much more involved in

the business venture than one would expect from a “mere landlord.”

Standard of Review

Summary judgment is proper where there is no genuine issue of material fact.

Rogers v. Jackson, 2002 ME 140, 9 5, 804 A.2d 379, 380. In reviewing a motion for

summary judgment, the court must consider the evidence and reasonable inferences

that may be drawn from the evidence in the light most favorable to the party against

whom the summary judgment has been sought in order to determine if the parties’

statements of material facts and referenced record evidence reveal a genuine issue of

material fact. Lever v. Acadia Hosp. Corp., 2004 ME 35, J 2, 845 A.2d 1178. “A

genuine issue of material fact exists when there is sufficient evidence to require a fact-

finder to choose between competing versions of the truth at trial.” Id. (citing Burdzel

v. Sobus, 2000 ME 84, { 6, 750 A.2d 573, 575).

* At the hearing, Defendant Soley conceded that Plaintiffs Count II claim is not barred by the

statute of limitations. An action for assault and battery must be brought within two years after

the cause of action accrues. 14 M.RS. § 753 (2003). In the present case, the cause of action

accrued on January 26, 2001, and Plaintiff’s Complaint was filed on January 24, 2003. In

addition, Plaintiff filed a return of service on Defendant Soley within the ninety-day period

required by Rule 3 of the Maine Rules of Civil Procedure. See MR. Civ. P. 3. Accordingly,

summary judgment on Count II in favor of Soley pursuant to section 753 is inappropriate.

5

Joint Enterprise Liability

In order to hold a defendant liable under a theory of joint enterprise, there must

be "proof of a community of interest in and the joint prosecution of a common purpose

under such circumstances that each participant has authority to act for all in directing

and controlling the means of agency employed.” Morey v. Stratton, 2000 ME 147, { 7,

756 A.2d 496, 498 quoting Illingworth v. Madden, 135 Me. 159, 164, 192 A. 273, 276

(1937)); see also Cullinan v. Tetrault, 123 Me. 302, 306, 122 A. 770, 772 (1923);

Trumpfeller v. Crandall, 130 Me. 279, 287, 155 A. 646, 650 (1931). The presence of a joint

pecuniary interest is not a required element of a joint enterprise. Morey, 2000 ME 147, {

7,756 A.2d at 498.

In the present case, Soley asserts that he cannot be held liable under the theory

of joint enterprise liability because there is no proof that he is one of two or more

individuals or entities who have agreed to pool their efforts and resources to jointly

seek profits. However, Plaintiff and the other defendants assert that Soley had’

significant pecuniary and proprietary interests in the bar and had considerable control

and authority regarding the bar. See PSMF { 8; BSMF { 8. To support this statement

Plaintiff and the other defendants cite Soley’s deposition testimony in which Soley

admits that in addition to leasing his property, he leased his tavern business to Orchow,

and later Wallace. See PSMF { 8 & BSMF { 8 (citing Soley Dep. at 31-32).

In addition, a letter written by Soley to the City of Portland on February 25,

2000, which evidences Soley’s involvement and control over the bar, supports Plaintiff's

position. See PSMF { 8 (citing Pl.’s Ex. 9).? Wallace’s deposition testimony, which

establishes that Wallace was not aware of the February 25, 2000 letter or its contents

and was not consulted on matters concerning the business addressed in the letter, also

supports Plaintiff's position. See PSMF { 8 (citing Wallace Dep. II at 33-36).

Similarly, a record citation provided by Soley himself in SSMF { 3 evidences the

existence of an agreement between Soley and Wallace under which Soley would lower

the amount of rent due, and allow payment at a later date, when Wallace experienced

financial problems. See SSMF { 3 (citing Wallace Dep. at 14-15). This statement

indicates that Soley may have had an interest in the bar and may be liable under a

theory of joint enterprise.

Finally, while the parties agree that during Wallace’s tenure, Soley or PJ. Lewis,

Soley’s agent, picked up the rent check on a weekly basis, (SSMF {| 9; PSMF { 9) they

dispute whether the extent of Soley’s interactions with Orchow, Wallace and the Better

End management can be characterized as “occasional chats.” (SSMF J 9; PSMF q 9.) In

addition, the parties dispute whether Wallace and Soley had discussions prior to

Wallace’s purchase of the business other than negotiation of the lease. (SSMF { 10;

BSMF { 10; PSMF { 10.)

These facts, when viewed together and in the light most favorable to Plaintiff, create a

material dispute over whether Soley was a partner in a joint venture involving the

Better End Tavern. Accordingly, Soley’s motion for summary judgment is denied as to

Counts I, I, II, IV and VI.

’ This letter is not hearsay, as it constitutes an admission of a party opponent. See MLR. Evid.

801(d)(2). In addition, the letter is self-authenticating under the reply letter doctrine, which has

long been employed in Maine. See Abbott v. McAloon, 70 Me. 98, 99 (Me. 1879).

7

Public Nuisance

The Restatement (Second) of Torts defines a public nuisance as an “unreasonable

interference with a right common to the general public.” Restatement (Second) of Torts

§821B (1979). Circumstances that amount to unreasonable interference of a public right

include:

(a) Whether the conduct involves a significant interference with the

public health, the public safety, the public peace, the public comfort

or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or

administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a

permanent or long-lasting effect, and, as the actor knows or has

reason to know, has a significant effect upon the public right.

To establish a cause of action for common or public nuisance, the plaintiff must

show that he has "suffered therefrom some special and peculiar damages other and

greater than those sustained by the public generally." Charlton v. Town of Oxford, 2001

ME 104, {27,774 A.2d 366, 375 (citing Brown v. Watson, 47 Me. 161, 162 (1859)). The

Law Court has also held that

a landowner is liable for a nuisance created by the activity of a third

party on the land if (1) the possessor knows or has reason to know

that the activity is being carried on and that it is causing or will

involve an unreasonable risk of causing the nuisance, and (2) the

possessor consents to the activity or fails to exercise reasonable

care to prevent the nuisance.

Eaton v. Cormier, 2000 ME 65, { 7, 748 A.2d 1006, 1008 (citations omitted); see also State

v. Charpentier, 126 N.H. 56, 489 A.2d 594, 599 (N.H. 1985) ("liability for common law

nuisance may be established if the landowner knew or had reason to know that a public

nuisance existed") (citing Restatement (Second) of Torts §§ 838 & 839 (1979)).

In the present case, Plaintiff’s Complaint alleges that Soley, as the property

owner of the Better End, knew or should have known about the unruly conduct and

public safety risk posed by the tavern that ultimately caused the nuisance and failed to

do anything to abate it. However, none of the admissible material facts before the

court support Plaintiff's allegation that activities at The Better End might have posed a

risk of public nuisance or that Soley was aware of a public nuisance or the possibility of

a public nuisance." Accordingly, summary judgment should be granted to Soley on

Count V.

Punitive Damages

The court may not award punitive damages in the absence of implied or actual

malice. Zemero Corp. v. Hall, 2003 ME 111, ¥ 10, 831 A.2d 413, 416. “Express malice

exists when ‘the defendant's tortious conduct is motivated by ill will toward the

plaintiff." St. Francis De Sales Fed. Credit Union v. Sun Ins. Co. of N.Y., 2002 ME 127,

{ 16, 818 A.2d 995, 1001 (quoting Tuttle v. Raymond, 494 A.2d 1353, 1354 (Me. 1985)).

“Implied malice arises when ‘deliberate conduct by the defendant, although motivated

by something other than ill will toward any particular party, is so outrageous that

malice toward a person injured as a result of that conduct can be implied. Id. “Implied

malice, however, is not established ‘by the defendant's mere reckless disregard of the

circumstances.’” Id.

® Although Plaintiff's opposition memorandum includes a number of record citations that

support his argument, these citations have not been considered by the court in its analysis

because either they are citations that have not been included in the parties’ statements of

material facts and are not properly before the court, see M.R. Civ. P. 56(h)(4); Levine, 2001 ME

77, J 9, 770 A.2d at 656, or because they are inadmissible under Rule 56(e) for failure to

comply with the Maine Rules of Evidence. See MLR. Civ. P. 56(e); Levine, 2001 ME 77, ¥ 6, 770

A.2d at 656.

Here, Soley argues that any claim against him for punitive damages must fail as

a matter of law and the court agrees. There is no evidence in the record to support a

finding that Soley acted maliciously toward Plaintiff. In addition, even if held liable

under a theory of respondeat superior for the actions of others, Soley may not be held

liable for punitive damages; to hold him liable would not likely serve to deter

reprehensible conduct. See Kopenga v. Davric Me. Corp., 1999 ME 65, J 24, 727 A.2d

906, 911 (holding that punitive damages should not be awarded where the stated goal

of deterring reprehensible conduct would be furthered only marginally or not at all).

Moreover, the court notes that Plaintiff has not made a timely attempt to oppose

summary judgment on his allegations of punitive damages," and as a result, he has

waived all objections to Soley’s motion. See M.R. Civ. P. 7(c)(3).

Accordingly, summary judgment is granted in favor of Soley on Plaintiff's

punitive damages claim.

®

DECISION

Based upon the foregoing, and pursuant to M. R. Civ. P. 79(a), the Clerk is

directed to enter this Order on the Civil Docket by a notation incorporating it by

reference and the entry is

" At the May 13, 2004 hearing, Plaintiff requested that he be given additional time to brief the

issue of punitive damages. Plaintiff made no such request in his opposition memorandum and

did not file a motion for enlargement of time to respond to Defendant’s motion for summ

judgment. In addition, he has not offered sufficient reason for the court to allow him to file an

opposition at this stage in the proceeding. Accordingly, his request is denied. See MLR. Civ. P.

56(c); M.R. Civ. P. 7.

10

Defendant Soley’s Motion for Summary Judgment on Counts [, II, Ill, IV & VI is

DENIED;

Defendant Soley’s Motion for Summary Judgment on Count V and on Plaintiff’s claim

for punitive damages is GRANTED.

Dated at Portland, Maine this 26th day of May 2004.

Li Mébagl..

Robert E. Crowley

Justice, Superior Court

11

THOMAS BRAGG - PLAINTIFF

Attorney for: THOMAS BRAGG

LINDA P COHEN

HANLEY & ASSOCIATES PA

43 MAIN ST

PO BOX 280

SOUTH PARIS ME 04281

Attorney for: THOMAS BRAGG

VISITING ATTORNEY

VISITING ATTORNEY

vs

JOSEPH SOLEY - DEFENDANT

Attorney for: JOSEPH SOLEY

HARRISON RICHARDSON

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Attorney for: JOSEPH SOLEY

THOMAS MCKEON

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

THE BETTER END, INC. - DEFENDANT

Attorney for: THE BETTER END, INC.

MATTHEW B NICHOLS

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

STEPHEN WALLACE - DEFENDANT

Attorney for: STEPHEN WALLACE

GUY D LORANGER

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

Attorney for: STEPHEN WALLACE

MATTHEW B NICHOLS

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

SCOTT ORCHOW - DEFENDANT

Page 1 of 12

SUPERIOR COURT

CUMBERLAND, ss.

Docket No PORSC-CV-2003-00034

DOCKET RECORD

Printed on:

05/26/2004

PORSC-CV-~2003-00034

DOCKET RECORD

Attorney for: SCOTT ORCHOW

GUY D LORANGER

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

Attorney for: SCOTT ORCHOW

MATTHEW B NICHOLS

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

MIGUEL TORRES - DEFENDANT

Attorney for: MIGUEL TORRES

GUY D LORANGER

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

Attorney for: MIGUEL TORRES

MATTHEW B NICHOLS

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

EMILY KRONHOLM ~- DEFENDANT

Attorney for: EMILY KRONHOLM

GUY D LORANGER

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

Attorney for: EMILY KRONHOLM

MATTHEW B NICHOLS

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

WAYCOT INC - DEFENDANT

Attorney for: WAYCOT INC

MATTHEW B NICHOLS

NICHOLS & WEBB PA

110 MAIN ST, SUITE 1520

SACO ME 04072

Filing Document: COMPLAINT Minor Case Type: OTHER PERSONAL INJURY TORT

Filing Date: 01/24/2003

Docket Events:

01/27/2003 FILING DOCUMENT - COMPLAINT FILED ON 01/24/2003

Page 2 of 12 Printed on: 05/26/2004