Gauthier v. Gerrish Corp.

• Court: Superior Court of Maine
• Decided: August 25, 2014
• Docket: YORre-13-133
• Status: Unpublished

Opinion

SUPERIOR COURT S'"IATB OF MA1N"E Docket No. RE-13-133 YORK,SS.

JAMIE L. BROWN, Personal ~epresentative Of the Estate of Shirley Gauthier,' Plaintiff,

v.

JOSEPH LENKOWSKI, ESQ., Successor Trustee of the Roland E. Gerrish East Side Trust ORDER AFTER and STATUS CONFERENCE JACQUELINE E. GERRISH,

and GERRISH CORPORATION,

and

JULIE B. GERRISH, Defendants.

Earlier this year the Maine Supreme Judicial Court vacated a judgment by

default iE:•sued by this court on August 25, 2014. See Gauthier v. Gerrish, 2015 ME 60. A status •:onference was held on December 7, 2015 to address how this matter should

proceed in light of the Law Court's ruling and remand. James J. Shirley, Esq.,

' Plaintiff Shirley Gauthier passed away while the appeal to the Law Court was pending. Upon counsel's filing of a suggestion of death, the Law Court issued an order determining that the appeal,Nould continue without a change in caption and further suspending M.R.App.P. 3(b) to permit the trial court to rule on any motions to substitute a party for Gauthier. Order Regarding Death of Shirley Gauthier dated March 3, 2015 (Gorman, J.). Plaintiff's counsel subsequently filed a motion for substitution in this court, which was granted on April 2, 2015 thereby substituting Jamie L. Brown, Personal Representative of the Estate ov Shirley Gauthier, as "succ~ssor ~o Shirley Gauthier's in~erest in the judgment by default ... and for all purposes in connection w1th any further proceedmgs that may become necessary to determine treatment of that interest post-appeal."

1 ·- appeared representing plaintiff. Pamela S. Holmes, Esq., appeared representing

defendants Jacqueline E. Gerrish, Gerrish Corporation and Julie B. Gerrish.

The Law Court determined that, contrary to this court's ruling, Julie B. Gerrish

was a neoessary party to this action. Although the Law Court did not overturn the

defaults entered against Jacqueline Gerrish and Gerrish Corporation, it did vacate the

default judgment and remand for a hearing if necessary "to craft a specific, enforceable

remedy after the entry of a default." Id. at

that defendants may wish to ask for reconsideration of the sanction that was the basis

for the defaults entered against Jacqueline Gerrish and Gerrish Corporation.

In the interests of expediting matters to see if all parties can reach a settlement,

counsel agreed generally to the process set out below. It calls for a brief period of

discovery, ADR and, if necessary, a follow-up status conference with the court and a

period for filing any appropriate motions.

Therefore, in accordance with the conference, it is hereby ORDERED as follows.

1. Joinder. Julie B. Gerrish is joined as a party defendant in this action.

2. Discovery. Unless the court orders otherwise for good cause shown,

discovery shall be completed not later than April 1, 2016. Discovery shall be initiated

so as to enable the opposing party to serve a response within the period allowed by the

rules but .n advance of this deadline. No extensions of the discovery period will be

granted except on motion demonstrating good cause and that discovery was timely and

diligently conducted in good faith. Counsel shall not assume that agreements to

conduct discovery beyond this deadline will be accepted by the court. Such

agreements shall not delay trial.

3. Alternative Dispute Resolution. The provisions of Rule 16B shall apply.

The partie·s shall confer promptly to choose an ADR process and neutral third party to

2 conduct the ADR process. Not later than 60 days after the date of this order, plaintiff

shall notify the court of the ADR process selected, the name of the neutral and the time

and place for the ADR conference. If the parties are unable to agree on either the

process or the neutral, they shall notify the court promptly in writing. Unless all

parties agree in writing as provided in M.R. Civ. P. 16(B)(a), the ADR conference shall

be held and completed not later than May 15, 2016. A report of the ADR conference

shall be filed by the neutral or the parties not later than 10 days after the completion of

the ADR conference.

4. Motions. All motions, including without limitation a motion to reconsider

the sanction/ defaults but excluding motions in limine or those affecting the conduct of

trial, shall be filed pursuant to M.R.Civ.P. 7 not later than the status conference

referenced in paragraph 5, below.

5. Status Conference. The clerk shall set this matter for a status conference

before thi~; judge on the first available date after June 15, 2016, unless the matter has

been resolved by ADR.

6. Sanctions. Failure to comply with deadlines as ordered may result in the

imposition of sanctions pursuant to M.R.Civ.P 16(a)(1).

The clerk may incorporate this order upon the docket by reference pursuant to

Rule 79(a) of the Maine Rules of Civil Procedure.

Dated: December 10, 2015 / _(I i

Wayne . Douglas if Justice, Superior Cou~

3 RE-13-U3

ATTORNEYS FOR PLAINTIFF: KENNETH D KEATING JAMES J SHIRLEY ROBERTS & SHIRLEY POBOX 307 SPRINGYALE ME 04083

PRO SE DEFENDANT: JOSEPH LENKOWSKI, ESQ., SUCCESSOR TRUSTEE OF THE ROLAND E GERRISH EAST SIDE TRUST POBOX 929 SANFORD ME 04073

ATTORJ...rEY FOR DEFENDANTS: PAMELA LEGAL GROUP PO BOX 1647 WELLS ME 04090 £ NT ERED AUG 2 7 l014

STATE OF MAINE SUPERIOR COURT CMLACTION YORK, ss. DOCKET NO. RE-13-133 PAF -'toR- OJ--;(5-Itf SI-ITRLEY GAUTHIER,

Plaintiff

v. ORDER

GERRISH CORP., et al.,

Defendants

On September 9, 2013 Shirley Gauthier filed a complaint for equitable partition

against Joseph Lenkowski, as successor Trustee for the Roland Gerrish East Side Trust,

Jacqueline Gerrish and the Gerrish Corp. The complaint involved a large piece of land

and rent producing buildings in Alfred that were owned by the parties. At the time

the suit was filed there was no indication in the Registry of Deeds that Joseph

Lenkowski, who is an experienced attorney in Sanford, had distributed the remaining

one-quarter share to Julie Gerrish. Ms. Gauthier who owns a one-quarter share also

sought an accounting and her share of the net income from the property.

All of the parties were served. Service upon the Gerrish Corporation was made

upon Julie Gerrish though she was not served in an individual capacity. On

September 18, 2013 Attorney Rodney Shain filed an answer without counterclaim on

behalf of Jacqueline Gerrish and Gerrish Corp. A standard scheduling order issued on

October 17, 2013 requiring the parties to engage in alternative dispute resolution.

When Attorney Lenkowski failed to answer a default was entered against him as

successor Trustee on October 31, 2013. On December 6, 2013 counsel for the plaintiff sent a letter to the Clerk informing

her that the defendants had failed to respond to his repeated attempts to arrange for

alternative dispute resolution. A follow up letter was sent on January 7, 2014

suggesting that the parties were "still working" to schedule mediation. That letter was

followed by a letter of January 15, 2014 from plaintiff's counsel indicating that he had

been informed that Mr. Shain would be withdrawing as counsel. A stay of the

deadlines was requested. On January 24, 2014 an order was signed staying the

deadlines for 21 days. The order also stated that, "Within that time the defendants

shall either schedule mediation or have new counsel enter an appearance." The order

did not state that there would be a penalty for non-compliance.

A motion to withdraw was filed on February 19, 2014 indicating that because of

personal circumstances Mr. Shain was unable to devote adequate time to the case and

that he wished to be given permission to withdraw. On February 25, 2014 the motion

was granted. All proceedings were stayed for an additional 21 days to allow the

defendants to obtain new counsel. The order also stated, "Failure to indicate whether

there will be new counsel or self-representation will result in a default." It should

have been dear that a response from the defendants was now required within the next

twenty-one days or there would be a default.

Counsel for the plaintiff waited well beyond the 21 days and sought a default in

a request of April 17, 2014 when no response was forthcoming from the defendants.

The default was granted on April25, 2014. New counsel for the defendants entered an

appearance through a notice dated April28, 2014.

Defendants Jacqueline Gerrish and the Gerrish Corporation filed a verified

motion to set aside default. The motion correctly noted that Mr. Shain was not

meeting his professional obligations and noted the difficulty they had in reaching Mr.

2 Shain. The defendants, who are in possession of the land and whatever net revenues

exist, did not check with the court clerk as the months passed or seek new counsel in a

prompt manner once they learned directly, as early as the second week of January, that

Mr. Shain was having difficulties.

Since a partition is inevitable and since I do not find good cause to set aside the

default, see Mockus v. Melanson, 615 A.2d 245, 247 (Me. 1992), the motion to set aside

default is denied. The argument that there should be an offset for payments for a

Cadillac as part of early probate proceedings is without merit.

A second motion was filed by the defendants separately on June 27, 2014. That

motion sought an order requiring Julie Gerrish to be joined as a defendant. At the time

that Attorney Lenkowski was served he was the successor trustee for a trust, which was

obligated to distribute a one-fourth share to Julie Gerrish. Mr. Lenkowski prepared

the appropriate deed and signed it on August 30, 2013. He delivered the deed to Mr.

Shain. It, however, was not recorded until February 24, 2014. Ms. Julie Gerrish was

fully aware of this suit having been served as the Clerk of the Gerrish Corp. She also

acted as the defendants' representative in dealing with or attempting to communicate

with Mr. Shain.

The motion will be denied as Mr. Lenkowski, as successor trustee, was the

proper party at the time service was made, a default was entered, and as Ms. Gerrish

was fully aware of the litigation. All necessary parties were joined. No motion to

substitute a party was made.

Lastly, a request for default judgment was requested. It will be granted by

separate order.

3 The entries are:

Verified motion to set aside default is denied.

Motion to order joinder of Ms. Julie Gerrish is denied.

Dated: August 25, 2014

Paul A. Fritzsche Justice, Superior Court

4 RE-13-133

ATTORNEYS FOR PLAINTIFF: JAMES J SHIRLEY KENNETH D KEATING ROBERTS & SHIRLEY POBOX307 SPRINGYALE ME 04083

ATTORNEY FOR DEFENDANT: PAMELA HOLMES HOLMES LEGAL GROUP PO BOX 1647 WELLS ME 04090