The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-09-189
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ONLINE TRANSPORT, INC.,
Plaintiff
v. ORDER
FOREST MANSUR d / b / a
HERITAGE MEMORIALS
and
OCEAN VIEW CEMETARY,
Defendants
Plaintiff Online Transport, Inc., brought this action against defendants Forest
Mansur and Ocean View Cemetery after they allegedly trespassed onto Online
Transport's property, removed a stone wall, and then converted the stones to their own
use. Mr. Mansur and Ocean View each move for summary judgment. Following
hearing, the Motions will be Granted.
BACKGROUND
Ocean View Cemetery operates a cemetery located on Post Road in Wells, Maine.
(Supp. S.M.F. en: 2.) Online Transport, Inc., is a real estate holding corporation that
acquired property adjacent to Ocean View's cemetery on February 28, 2000. (Supp.
S.M.F. en:en: 3, 5-6.) A stone wall existed at or near the boundary between the cemetery
and Online Transport's property until October 2007, when Ocean View hired Forest
Mansur to remove it. (Supp. S.M.F. en:<n 7, 9; Brown Af£. en: 7.) Online transport alleges
that the wall was on its property and that it had an ownership interest in the stones.
Ocean View and Mansur assert that the wall was located entirely on Ocean View's
property and have provided uncontroverted evidence supporting their position. (Supp.
S.M.F. 9I 8.)
Acting through its attorney, Online Transport filed its five-count complaint
against the defendants on June 12, 2009. Online Transport accused the defendants of
both statutory and common-law trespass, conversion of the granite stones in the wall,
negligence, and malicious intent warranting punitive damages. Ocean View responded
with a counterclaim for declaratory judgment. Counsel withdrew from representation
of Online Transport on January 28, 2010, due to fundamental disagreements between
himself and his client. Online Transport has not obtained new counsel, and has
proceeded pro se through Richard Lambert, its president, principal and sole office
holder. (Supp. S.M.F. 9I 4.)
On March 10, 2010, Ocean View filed its motion for summary judgment in
accordance with Rule 56 of the Maine Rules of Civil Procedure. It argues that the stone
wall was entirely on its property, and Online Transport consequently has no claim. Mr.
Mansur joined in Ocean View's motion on March 22, 2010. Online Transport filed its
timely opposition on April 1, 2010, through its president Mr. Lambert. While this
opposition was accompanied by survey plats and Mr. Lambert's affidavit, it did not
include "a separate, short, and concise opposing statement" of material facts admitting,
qualifying, or denying the defendants' assertions. M.R. Civ. P. 56(h)(2) (2009).
The defendants replied, prompting Online Transport to submit a "Revised
Objection to Defendant's Motion for Summary Judgment" which included within it
numbered responses to the defendants' statements of fact. These responses were not
contained in a separate document, and were not supported by citations to admissible
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evidence in the record. M.R. Civ. P. 56(h)(2) (2009). They also explicitly do not dispute
the defendants' statement that: "No portion of the disputed stone wall existed on
Online Transport property." (Supp. S.M.F. <[ 8.)
DISCUSSION
Before the court can address the defendants' motions for summary judgment it
must address the preliminary issue of Online Transport's representation in this case.
Mr. Mansur correctly argues in his reply that a corporate entity may only appear in
court through a licensed attorney. Spickler v. Dube, 644 A.2d 465, 468 n.6 (Me. 1994);
Land Management, Inc. v. Dept. of Envtl. Prot., 368 A.2d 602, 603 (Me. 1977). Corporate
plaintiffs may not represent themselves pro se through their officers or board members
because doing so would allow non-attorneys to practice law on behalf of another in
violation of 4 M.R.S.A. § 807 (2009). Land Management, Inc., 368 A.2d at 603. This means
that Mr. Lambert cannot represent Online Transport in this court, and all of Online
Transport's filings made after its attorney withdrew are null and void. Id. at 604. These
are primarily the filings related to the defendants' motions for summary judgment.
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
see also Levine v. R.B.K. Caly Corp., 2001 ME 77, <[ 4, 770 A.2d 653, 655. "A party opposing
a motion for summary judgment shall submit with its opposition a separate, short, and
concise opposing statement ... [that] shall admit, deny or qualify the facts asserted ...
[and] shall support each denial or qualification by a record citation ...." M.R. Civ. P.
56(h)(2) (2009). Factual assertions that are supported by a citation to admissible
evidence "shall be deemed admitted unless properly controverted." M.R. Civ. P. 56
(h)(4) (2009).
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Online Transport did not submit any cognizable opposition to Mr. Mansur's and
Ocean View's motions for summary judgment because it cannot proceed pro se as a
corporation, and its filings were not signed by a licensed attorney. The opposition that it
did file failed to include a separate statement of facts admitting or denying the
defendants' assertions, and at one point expressly admitted that the stone wall in
controversy was entirely on Ocean View's property. Online Transport failed to
controvert any of the defendants' statements of fact, so they are all deemed admitted if
properly supported by admissible evidence. Ocean View supports its facts with
citations to deeds, survey plats, and the affidavit of its expert surveyor. All of this
evidence appears to be admissible, so all of Ocean View's factual assertions are deemed·
admitted.
The uncontroverted record shows that the stone wall was entirely on Ocean
View's property. Without a property interest in the wall or the stones within it, Online
Transport has suffered no cognizable injury from its removal and has no basis for its
claims of trespass, conversion, negligence, or punitive damages. Further, Ocean Views'
Motion for Summary Judgment on its claim for Declaratory Judgment is Granted.
CONCLUSION
The court Grants Ocean View's and Mr. Mansur's motions, and enters judgment
in their favor on all counts of Online Transport's complaint, and Summary Judgment
for Ocean View on its counterclaim. Counsel for Ocean View may prepare a judgment
suitable for filing in the registry of deeds.
Dated: October 1(,2010
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PLAINTIFF PRO SE:
ONLINE TRANSPORT INC
1501 POST ROAD
WELLS ME 04090
ATTORNEY FOR DEFENDANT OCEAN VIEW CEMETERY:
RONALD BOURQUE, ESQ.
BOURQUE & CLEGG
PO BOX 1068
SANFORD ME 04073
H PETER DEL BIANCO, ESQ.
LAMBERT COFFIN
PO BOX 15215
PORTLAND ME 04101-5215
ATTORNEY FOR DEFENDANT FOREST MANSUR DBA HERITAGE MEMORIALS:
FREDERICK MOORE, ESQ.
LAW OFFICES OF FREDERICK C MOORE
511 CONGRESS ST 4TH FL
PORTLAND ME 04101