Opinion

Town of Anson v. Viles

Court
Superior Court of Maine
Filed
Oct 23, 2018
Status
Unpublished
On the bench
Richard Mulhern
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERIOR COURT

SOMERSET, ss. SKOWHEGAN

DOCKET NO. CV-15-020

TOWN OF ANSON,

Plaintiif

V. ORDER ON PLAINTIFFS

MOTION FOR SUMMARY JUDGMENT

CLAUDIA G. VILES,

Defendant

This matter came before the undersigned on Plaintiff's Motion for

Summary Judgment filed 7 /30/18. Defendant filed its opposition to the Motion

for Summary Judgment on 8/21/18, and the Plaintiff filed its Reply on 8/28/18.

After reviewing the file, the pleadings the parties have filed with respect to the

pending motion, relevant case law, and applicable rules and statutes, the Court

enters the following Order for the reasons set forth below:

Baclcground:

1. The Plaintiff, Town of Anson ("Town"), alleges that the Defendant,

Claudia G. Viles (''Viles"), the town's former tax collector, intentionally and

knowingly converted town property by misappropriating funds from town

residents intended for excise taxes for her own use. Pl.'s Comp!. <JI<J[ 38-40. The

Town's complaint was filed on August 10, 2015, and Viles filed a timely Answer.

The parties agreed to a stay of the action because of the possibility of criminal

charges against Viles. The stay was granted on August 31, 2015.

2. Viles was in fact indicted for one count of theft, Class B, eleven counts

of failure to pay tax or file a return, Class D, and one count of tampering with

public records or information, Oass D. Pl.'s Motion for Summary Judgment

(hereinafter "MSJ") at 3.

3. Viles pled not guilty to the charges against her and a three-day jury trial

was held June 20-22, 2016. Id. Viles was found guilty on all counts. Id. The trial

court ordered $566,257.65 in restitution, comprised of $500,948.00 for theft of excise

taxes and $65,309.65 in economic losses payable to the town. Id. Viles was

sentenced to eight years' imprisonment with all but five years suspended. Id. To

the knowledge of the Court she remains incarcerated at this time. On appeal of the

jury verdict Viles argued that there was insufficient evidence for the jury to find

her guilty of theft by unauthorized taking or transfer. Pl's MSJ at 4. The Law

Court affirmed the judgment on July 6, 2017.•

4. On July 26, 2017, by consent of the parties, this Court lifted the stay in

this matter. On October 11, 2017, acting pro se, the Town filed a Request for

Restitution Order to be Made a Money Judgment pursuant to 17-A M.R.S. § 1330­

C, and the clerk signed the Order on October 13, 2017. On N ovember 29, 2017, this

Court ordered the p arties to "advise the Court in w riting how the Ord er in Docket

No. SA-17-31 9 impacts, or shou ld imp act, the pxocessing of the [Town's] claims

against [Viles] in this matter." N either party has complied with this Order.' The

money judgment remains in effect. A writ of execution was issued by the Clerk on

May 16, 2018.

5. Pen ding now is the Town's Motion for Summary Judgment on its

conversion claim, requesting jw:lgment in the amount of $566,257.65 plus

preju d gment interest.• Pl.'s MSJ at 7-8. The Town asserts that Viles' criminal

conviction for theft by unauthorized taking or transfer satisfies the elements of

conversion as alleged in its initial complaint. Id. 5-6. Should this motion be granted,

the Town agrees to dismiss its other claims of consequential damages, fraud, and

punitive damages without prejudice. Id. 8.

1

Standatd of R eview:

6. Summary judgment is appropriate if, reviewing the evid ence in the

statements of fa ct and record referen ces in the light most favorable to the non­

moving party, there is no genuine issue of material fact and the moving p arty is

entitled to judgment as a matter of law. 1'1.LR. G v. P. 56(a),(c); Pla tz Assocs. v . Finley,

2009 ME 551 <l[ 10, 973 A.2d 743 (internal citations omitted).

7. A fact is material if "it has the potential to affect the outcome of the suit."

Id. A genuine issue of material fact exists when the fact finder must choose

11

between competing versions of the truth." Id. When the party moving for

sum mar y judgmentbears the burd E!n on a claim or defense, the moving party must

establish the existen ce of each element of the claim or defense without dispute as

to any material fact in the record in order to obtain summary judgment. Cach, LLC

v. Kulas, 2011 ME 70, <JI 8, 21 A.3d 1015.

8. If the motion for summary judgment is properly supported, then the

burden shifts to the non-moving party to respond with specific facts indicating a

genuine issue for trial in order to avoid summary judgment. M.R. Civ. P. 56(e).

, State v. Viles, 2017 ME 148, 166 A.3d 1016.

'A check of the SA-17-319 file resulted in nothing of note being filed after the writ of execution

was issued.

' Given that the Town already has a Writ of Execution for $566;257.65 against Vi les, one might

question why the Town is pursuing the present course of action. 14 M .R.S. § 1602-B(3) allows

prejudgment inte1·est iI1. civil actions other than small claims, and actions where a note or contract

already sets the prejudgment interest rate. It appears that the SA docket money judgmen t would

be entitled to prejudgment interest.

2

Discussion:

I. Should the fad that Viles' opposition to the MSJ was untimely by one

day result in a finding that Viles has waived any objections to the

MSJ?

9. It appears that Viles' Opposition to the Town's Motion for Summary

Judgment was w1timely filed; therefore she could be found to have waived all

objections to the motion pursuant to the Rules of Civil Procedure. A party

opposing a motion has 21 days to file a response with supporting affidavits. M.R.

Civ. P. 7(C)(2). "A party failing to file a timely memorandum in opposition to a

motion shall be deemed to have waived all objections to the motion. 11 Id. 7(c)(3).

10. The Law Court has clarified that this Rule does not require that the court

grant the unopposed motion; instead, the rule "provides only that an adverse

party who has not filed an opposition has waived any opposition to the motion."

Petit v. Lumb, 2014 ME 117, <_[ 8, 103 A.3d 205.

11. If appealed1 the Law Court reviews the trial court's decision on a

motion based on a procedural default by the non-moving party for an abuse of

discretion. Id.

12. In Petit, the prose plaintiff filed a motion in opposition to the defendant's

motion to dismiss at the 21 day deadline. Id. ':I[ 3. However, this motion was a

photocopy and not a signed original as required by the Rules. Id. The Clerk

notified plaintiff of her mistake and asked that she resubmit the notices with

original signatures, but the plaintiff failed to respond. Id. Under these

circumstances, the plaintiff was "deemed to have waived all objections to the

motion." Id. (quoting M.R. Civ. P. 7(c)(3)). A month later the Superior Court

granted the defendant's motion to dismiss without notice or further hearing

pursuant to Rule 7(c)(3). Petit, 2014 :ME 117, <_[ 5, 103 A.3d 205.

13. On appeat the Law Court reasoned that because the plaintiff's motion

was not signed it did not have legal effect, making the defendant's motion to

dismiss unopposed, therefore not requiring the court to reach the merits of the

defendant's motion. Id. CJI 8. However, because the Rule does not obligate the court

to act favorably on the motion, the Law Court undertook an analysis of whether

the trial court abused its discretion in granting the motion. The Court took note of

the plaintiffs "substantial prior experience in litigation as reflected in the record

... and the express opportunity she was given to submit a corrected and proper

court filing." Id. 'll 9.

14. The Court also referenced the nlle that "self-represented litigants are

afforded no special consideration in procedural matters." Id. 'll 6 (quoting

Clearwater Artesian Well Co. v. LaGrandeur, 2007 ME 11, <J[ 8, 912 A.2d 1252).

3

15. Here, the Town's Summary Judgment Motion was filed with the Court

on July 30•h,• Viles' opposition was due 21 days later under M.R. Civ. P. 7(c)(2).

Rule of Civil Procedure 6(a) requires that the day the filing was received be

excluded, and the final day of the 21 allowed be included. Using this computation

of ti.me, Viles' opposition was due August 20. It was received by the Court on

August 21», one day outside the required time under the Rules. Accordingly, the

undei-signed could treat the Plaintiff's motion as unopposed.

16. Viles has alternated between defending herself pro se and being

represented by counsel.• The Court notified her that pro se litigants are bound by

the same rules as a litigant represented by counsel in its August 8•h, 2018 Order of

Court after the Town filed its MSJ. Viles should be familiar with litigation as this

case has been pending since 2015, and her criminal matters spanned from 2015

through the appeal decided in 2017.

17. However, a wrinkle in this case is that Viles has been incarcerated for

a major portion of this particular litigation's life. Although this does not change

her prose status before August 2t it is a factor that this Court considers in deciding

whether Viles' opposition was untimely, and therefore waiving all objections to

the Town's Motion.

18. Because Viles' motion was only one day late, combined with her off

and on prose status, and because she is incarcerated, the undersigned decides that

the Court should address the merits of the Town's motion and not waive Viles'

objections for failure to timely file a response.

II. Should the conviction of the Defendant affirmed by the Law Court be

considered conclusive against the Defendant in a civil action on the same facts?

19. The question above was addressed in Field & Munay, Maine Evidence

(fri. Ed.) at page 506 by acknowledging that "(T)here is an increasing tendency" to

do so, ''especially when otherwise a convicted criminal would profit by the crime."

20. · In Hanover Insurance Co. v. Hayward, 464 A.2d 156 (Me. 1983), the Law

Court noted that a final judgment of conviction in a criminal case is preclusive in

favor of a third party in a subsequent civil action against the Defendant in that

criminal case. As the Law Court stated, "there is no reason that a defendant,

having vigorously asserted a defense and been adjudicated guilty on a beyond-a­

reasonable-doubt standard, should be allowed to relitigate the issues previously

determined." Id. at 160-161.

11n its Reply the Town asserts that it filed its Motion on July 27. The MotionforSununaryJudgment

was signed that date but was not received by the Comt until July 30, making the 30th the proper

filing date. M.R. Civ. P. S(e) provides that the filing of papers "shall be made by filing them with

the clerk of the court." A check with the clerk' office confirmed that the da.te received by the cou.r t

is the filing date, not the date the motion was signed; moreover the MSJ is stamped 7 /30/18.

• Viles was represented by Walter McKee w1til November 2017, by Thomas Nale Jr. from January

2018 through May 2018, and now by Jason Dionne as of August 21, but on a limited basis, regarding

only the Town's Motion for Summary Judgment.

4

21. Viles argues that the possession element of conversion cam1ot be

conclusively established because in her criminal case the State did not have to

prove exclusive possession. Viles stretches that to mean that the State did not

prove possession at all. Collateral estoppel mandates that "when issues are

actually litigated and finally adjudicated in a crimin.al proceeding, the conviction

conclusively establishes all facts essential to the final judgment of conviction and

is preclusive in favor of a third party in a subsequent civil action against the

defendant in the criminal case." Butler v. Mooers, 2001 ME 56, <[ 8, 771 A.2d 1034

(internal quotations and citation omitted).

22. A conversion claim is properly asserted when the plaintiff shows (1) a

property interest in the property, (2) a right to possession of the property at the

time of the alleged conversion, and (3) a demand for the return of the property that

was denied by the holder. Estate of Barron v. Shapiro & Morley, LLC 2017 ME 51, 1

14, 157 A.3d 769. Conversion boils down to "the invasion of a party's possession

or right to possession at the time of the alleged conversion.'' Withers v. Hackett,

1998 ME 164, <J[ 7, 714 A.2d 798. A Class B theft is proven when, in short, a "person

obtains or exercises unauthorized control over the property of another with intent

to deprive the other person of the property" and the value of the property is more

than $10,000. 17-A M.R.S. § 353(1).

23. At issue in this case is the third element of conversion. In some cases

this element is stated as ''(3) when the holder has acquired possession rightfully, a

demand by the person entitled to possession and a refusal by the holder to

surrender." Mitchell v. Allstate Ins. Co., 2011 .NIB 133, <]I 15, 36 A.3d 876. Viles cites

to pieces of cases that make it appear as though a plaintiff must show that a

defendant had the property in their hands to be found to have converted property."

However, the Law Court has recently stated that a "converter ... need only act

with an intent to exercise a dominion or control over the goods which is in fact

inconsistent wjth the plaintiff's rights." Id. (internal quotations omitted). This

"dominion or control" piece of conversion aligns squarely with theft when it

comes to "exercis[ing] unauthorized control" over property.

24. Because Viles was convicted of theft, it has been conclusively

established that she "exerdse[d] unauthorized control over the property of

another." Viles is collaterally estopped from denying the civil conversion claim.

The theft conviction is sufficient to meet the third element of conversion, because

Viles had control of and did not return the money. It is irrelevant that the Law

Court decided that the State did not need to prove exclusive possession to be

_convicted of theft, because exclusive possession is not an element of conversion.

There is no genuine dispute that Viles had possession of the money at one time or

another. In her response to Plaintiff's statement of material facts she "admits that

beginning in 2008, the bag containing cash and checks she collected was kept in a

bag that was stored in her desk drawer during the day" and at night stored in a

shared filing cabinet. Def.'s Response to Pl.'s S.M.F. 'iI 4. Viles' theft conviction

conclusively establishes that she "exercise[d] unauthorized control over the

, In its Reply Brief, the Town gives a fair and accurate rendering of Fernald and Leighton, which

Viles unsuccessfully attempts to use to suppo1t her position. Pl.'s Reply to Def.'s Opp'n 3-4.

5

property of another" and she is accordingly collaterally estopped from denying

the civil conversion claim.

III. Is there an issue as to what damages Plaintiff should recover from the

Defendant?

25. Viles argues that economic losses are not recoverable in a conversion

claim. She further contends that any remaining amount the Town claims she owes

it should be subject to an offset by the $58,500 that State Police seized from her

home, the 3% commission that the Town owes her for the excise taxes that were

never reported due to her theft, and the commission that was withheld for 2015

before her discharge. The Town conceded to give Viles credit for the money seized

by the State Police but denies that she is entitled to any offset. Pl.'s Reply to Def.'s

Opp'n5.

26. While it is true that in a conversion claim the traditional measure of

damages is the value of the property at the time of the conversion, "[i]n certain

cases ... consequential damages ... may be warranted when the plaintiff can show

that the damages were proximately caused by the defendant's acts and the amount

0£ damages can be shown with reasonable certainty." NewbttrtJ v. Virgin, 2002 ME

119, 1 16, 802 A.2d 413. In Newbury, the court found that lost profits were

appropriate when the defendant converted the plaintiff's nightclub premises, but

that the damages had to be limited to the lost profits that could be shown with

reasonably certainty. Id. <]191 19-20.

27. Here, the Town had to hire an accounting company to determine the

extent of money that was stolen. Had Viles not misappropriated excise taxes, the

Town would not have incurred this expense. Thus, the money paid to the

accounting company was proximately caused by Viles' acts. However, although

$65,309.65 in economic losses was ordered to be paid to the Town, there is no

breakdown of what that figure entails. Throughout the pleadings, the Town refers

to the "great expense" of paying the accounting company, but only in its Reply

does it assert that the $65,309.65 is comprised solely of payments to the accounting

company. Even if one takes judicial notice of the Law Court appeal, that decision

only states the figure in its entirety as "economic losses.'',. Because the Town has

not specifically pled in its Motion what the economic losses are comprised of, there

is a genuine dispute of whether the full amount of $65,309.65 can be shown with

reasonable certainty to be recoverable as consequential damages under this

conversion claim. ·

28. Viles argues that she is owed $25,200 for commissions for excise taxes

collected in 2015, and $15,028.44, representing 3% of $500,948, the amount of excise

taxes that Viles withheld instead of depositing to the Town, for a total owed to her

of $40,228.44. Viles cites no statutory authority for her claim that this Court is

even allowed to offset the judgment, nor can any caselaw be found that would

, State v. Viles doesn't specify that the economic losses are for accounting expenses and no affidavit

stating the amount that was paid to the accounting company can be found in the file, let alone the

Town's statement of material facts.

6

allow an offset as Viles is requesting. It seems that this claim would have been

more appropriately made in mediation1 or settlement negotiations, where a

compromise could occur. These parties engaged in unsuccessful mediation on

March 27, 2018.

29. Caselaw on this matter does not support an offset .in Viles., favor. In

Tarbuck v. ]aeclcel, the defendant appealed the Superior Court's judgment that

affirmed the District Court's award of interest on a child support arrearage that

the defendant owed. 2000 ME 105, <[ 25, 752 A.2d 176. The defendant argued that

the District Court erred by not awarding her offsets against the arrearage for half

the proceeds of a sale of mutual property in the divorce decree and a handwritten

"IOU" note. Id. 112 n.1. Although the Court declined to weigh in on the issue

because the defendant was seeking those offsets for the first time in her appeal, it

noted that the defendant failed to file counterclaims under Rule 13(a) or {b).

Tarbuclc further cited to Federal Deposit In.s. Corp. v. Notis, noting that "recoupment

must be pleaded affirmatively, and i£ it is not raised it is ordinarily deemed

waived." 602 A.2d 1164, 1165 (Me. 1992). If used as an affirmative defense,

recouprnent "may be adequately pleaded even though the specific words are not

used. Id.

11

30. Here, as the Town points out, Viles has not made any counterclaim

pursttant to Rule 13 for these amounts. Further, in her answer to the complaint,

Viles did not plead any affirmative defenses at all. Because Viles has not raised

the offset issue as any sort of counterclaim or affirmative defense, she should be

not allowed to argue it now. Therefore, Viles' offset claim is not a material fact,

and should not bar summary judgment in favor of the Town. ·

31. Hununing in the backgrow1d of this Motion is the $566,257.65 money

judgment that the Town obtained against Viles via its 10/10/17 Request ior

Restitution Order to be Made a Money Judgment in SKODC-SA-17-319. The

statute authorizing the change from restitution to a money judgment provides

that:

Upon the request of ... a person entitled to restitution under an order

of restitution, the clerk shall enter the order of restitution in the same

manner as a judgment in a civil action. When entered under this

section, the order of restitution is deemed to be a money judgment.

Upon default, the order to make restitution is enforceable in

accordance with Title 14, chapter 502 by any person entitled to

restitution under the order.

17-A M.R.S. § 1330-C.

32. Chapter 502 governs the enforcement of money judgments. 14 M.R.S.

§§ 3120. That chapter is "not an exclusive procedure and may be utilized with any

other available procedure." Id. Enforcement occurs in Dishi.ct Court, where the

judgment creditor can subpoena the debtor for disclosure once every six months.

§§ 3121-A, 3124. The debtor may be ordered to make installment payments to the

creditor . § 3126-A. N oncompliant debtors may be found in contempt by the cmtrt,

7

which has the power to impose reasonable fines or jail time if the debtor does not

comply with an order of the court.§ 3136(5).

33. It appears that this chapter would apply equally to both the money

judgment that the Town has, and the money judgment that it is seeking. No

discernible difference can be found regarding the tteahnent of, or effect of, the

money judgment that the Town has vis a vis the money judgment that it is

requesting.

34. Writs of execution are issued on final judgments and the purpose of

the writ is to enforce a monetary judgment. Desjardins v. Desjardins, 2005 ME 77 'lI

9, 876 A.2d 26 (citing M.R. Civ. P. 69, 14M.R.S.A. § 4651 (2003)). In Docket No. SA­

17-319, the writ of execution does not include prejudgment interest, although there

is a section provided for it. The statute addressing interest before judgment oDly

prohibits prejudgment interest on small claims actions. 14 M.R.S. § 1602-B(l). It

further limits prejudgment interest to the amount already considered in the

contract or note if that is what the claim involves. § 1602-B(2). Writs of execution

may be reissued to include interest. See Chamberlain v. Harriman, 2017 ME 127, 'JI<[

6-9, 165 A.3d 351 (where a party submitted a motion to "amend and correct" a

writ the court heard oral argument on the motion and ultimately ordered a new

writ including post-judgment interest).

35. Resea.r ch. shows that the money judgment that the Town is requesting

would be enforced under the same statute as the current money judgment and that

the Town could request that the writ of execution be modified to include

prejudgment interest. Because of this, the undersigned continues to ponder to why

the Town wants to pursue this money judgment on the conversion claim,

especially considering, if granted, the Town agrees to dismiss without prejudice

~e consequential damages, fraud, and puru:tive damages claims. Having two

money judgments from two different docl<ets on the same set of circumstances is

unnecessary. Further, it is likely to create confusion down the line when

potentially different attorneys are attempting to enforce an.d / or defend the money

judgment. Of course, if the parties had followed the Court's Order of 11/29/17

perhaps all of the above would have been addressed.

36. Finally, in the event that prejudgment interest is awarded in this case,

the Court assumes the parties are aware that Viles could request a full or partial

waiver of that interest. Here, prejudgment interest could be awarded from the date

the Town's complaint was filed: August 10, 2015. 14 M.R.S. § 1602-B(5). There is a

presumption that the prevailing party is entitled to prejudgment interest so long

as he does not cause the proceedings to be delayed. Pierce v. Cent. Me. Power Co.,

622 A.2d 80, 85 (Me. 1993).

37. Despite thatprestunption, "[o]n petition of the nonprevailing party and

on a showing of good cause, the trial court may order that interest awarded by this

section be fully or partially waived." § 1602-B(S). The Law Court reviews a trial

coui-t' s discretionary grant of a partial or complete waiver of prejudgment interest

for an abuse of discretion. Brown v. Habrle, 2010 ME 72, en 10, 1 A .3d 401. Lengthy

proceedings, unsuccessful interlocutory Law Court appeals, new counsel

8

appearing, and settlements with other parties are not "Lmwananted delays

sufficient to overcome the presumption of[] entitlement to prejudgment interest."

Pierce, 622 A.2d at 84-85. There is limited case law on what good cause is, other

than the prevailing party requesting, .and being granted, continuances. The

tmdersigned is also not sure how a prevailing party who consented to a stay of the

case for almost two years would affect a waiver request of prejudgment interest.

Conclusion:

38. The Court concludes that Viles' theft conviction conclusively

establishes the elements of conversion and that she is collaterally estopped from

denying the civil conversion claim. Thus, the Court grants the MSJ insofar as

liability is concerned.

39. Regarding the amount that the Town is entitled to recover, the Court

d enies summary judgment regarding the economic losses because there is a

genuine dispute about the certainty of those losses.

40. The Court again orders the parties to advise, the Court in writing how

the Order sough.t by Plaintiff impacts, or should impact, the future proceedings

in this c~se. The Court also or~ers.that.the_parties estimate the ~e 1:ecess~y for

the hearing on damages, keepmg m mind that the only amount m dispute 1s the

am01.mt of economic losses the Town is entitled to be awarded.

The Clerk is directed to incorporate this Order by reference into the docket

for this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.

Date: 10/23/18

BY 1?J4 ). tlJ

Robert E. Mullen, Deputy Chief Justice

.

Maine Superior Court

9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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