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.
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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
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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.
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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).
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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.
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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.
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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.
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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.
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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,
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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
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