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STATE OF MAINE SUPERIOR COURT
Cumberland, ss. STATE Of Mf\\NE Cum~rl~nd ·~ Clerk'& OffteP PAMELA GLEICHMAN and KARL NORBERG JAN 12 2017 Plaintiffs RECEIVED v. Docket No. PORSC-CV-15-0539
ROSA SCARCELLI, STANFORD MANAGEMENT, LLC, ACADIA MAINTENANCE, LLC, PRESERVATION HOLDINGS, LLC and NORMAN, HANSON & DETROY, LLC
Defendants
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS SCARCELLI, STANFORD, ACADIA AND PRESERVATION
Defendants Rosa Scarcelli, Stanford Management, LLC ["Stanford"], Acadia
Maintenance, LLC ["Acadia"] and Preservation Holdings, LLC ["Preservation"] have filed
a motion for judgment on the pleadings. Plaintiffs Pamela Gleichman and Karl Norberg
have opposed the motion, and the moving Defendants have filed areply. The court elects to decide the motion without oral argument. See M.R. Civ. P.
,,(b )(7).
Background
This case presents another chapter in the history of litigation between Plaintiffs
Pamela Gleichman and Karl Norberg and Defendant Rosa Scarcelli, who is ·Plaintiff
Gleichman's daughter and Plaintiff Norberg's step-daughter. In addition to naming the
moving Defendants in this case, the Plaintiffs have named the Norman, Hanson & DeTroy,
LLC law firm (NHD) as a defendant. (_
The Plaintiffs' operative pleading is their Second Verified Amended Complaint ["the
Amended Complaint"], which is too long to summarize here. Defendants' motion contends
that many of the twenty two counts of the Amended Complaint are legally insufficient.1
The standard of review applicable to a motion for judgment on the pleadings under
Rule 12(c) of the Maine Rules of Civil Procedure is similar to that on a Rule 12(b)(6)
motion-whether the pleading to which the motion is directed, viewed in a light most favorable
to the non-moving party, states a valid claim. See Town ef Eddington v. University ef Maine
Foundation,__2007 ME 74,, §5, 926 A.2d 183, 184; Heber v. Lucerne-in-Me. Vill. Corp., 2000 ME
137, ~ 7, 755 A.2d 1064, 1066.
The court's rulings are as follows:
Count I
The disagreement between Defendants and Plaintiffs about the validity of Count I
seems to focus on whether the references to the Defendants' alleged violation of statutes
regarding registration of securities, auctioneer licensing and secured transactions are meant
to assert private causes of action for violation of those statutes. On its face, count I is a
declaratory judgment claim regarding the validity of the sale by auction to Preservation
Holdings, LLC of the stock of General Holdings, Inc. Plaintiffs say that their references to
the securities, auctioneer license and secured transaction statutes are not intended to state
any causes of action based on those statutes. The court agrees with the Defendants that
Plaintiffs likely do not have standing to assert causes of action under any of the statutes,
but agrees with Plaintiffs that their Second Verified Amended Complaint states a
cognizable declaratory judgment claim as to the validity of the disputed auction. If the
1 The Second Verified Amended Complaint contains counts numbered I through XXIII, but there is no count IX. "[T]here is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant."
2 L
references to the auctioneer and securities statutes are simply meant to bolster Plaintiffs'
challenge to the sale, the court need not say at the pleadings stage whether evidence of any
statutory violation might be admissible. Accordingly, based on Plaintiffs' assertion that
Count I asserts a declaratory judgment claim only, the Defendants' motion for judgment on
the pleadings will be denied as to Count I.
Counts IV, V, VI, X and XVIII
Defendants Scarcelli, Stanford, Acadia and Preservation move for partial judgment
on the pleadings on Counts IV, V, VI and X of the Amended Complaint on grounds of res
judicata/claim preclusion. Their motion plainly relies on material outside the pleadings,
and in fact is accompanied by exhibits from the prior litigation that the motion contends
preclude the claims in Counts IV, V, VI, X and XVIII. The exception to the rule that only
the pleadings may be considered in a motion to dismiss or for judgment on the pleadings
does not encompass all of the material on which the Defendants rely for their res
judicata/ claim preclusion argument. See Moody v. State Liquor & Lottery Comm'n, 2004 ME
20, ~ 11, 843 A.2d 43. The Moody exception extends to documents central to the Plaintiffs'
claims, documents referred to in the complaint, or official public documents. The various
documents from the 'prior litigation on which 'the moving Defendants rely do not appear to fall
in any of these categories.
On the present record, the court is unable to say that the Defendants are entitled to
judgment on claim preclusion grounds and therefore denies their motion on these counts.
These issues would better be raised in the summary judgment process.
3 Count VIII
Defendants moved for summary judgment on Count VIII (which is titled Count IIX
m the Amended Complaint), which alleges that the Defendants converted stock of
Gleichman & Co. (presumably referred to the sale by auction of General Holdings, Inc.
stock).
Although the court has already ruled that Defendant NHD is entitled to judgment
on the pleadings as to Count VIII, the court agrees with Plaintiffs that Defendants are not
entitled to judgment on that count, at least at this stage, so at least for pleading purposes,
the claim may proceed as to the Defendants other than NHD.
Count XI
Count XI advances what is labeled as an abuse of process claim. It says that
Defendant Scarcelli "misused legal process" but that "Plaintiffs suffered damages as a result
of the Defendants' misuse of process." It is thus not clear whether Count XI is alleged
against all Defendants or just Defendant Scarcelli.
The Supreme Judicial Court of Maine, sitting as the Law Court, has defined the tort ;of
abuse of process as follows:
Abuse of process is the use of process in a manner not proper 'in the regular conduct of the proceedings where there is an ulterior motive. In contrast to a claim of wrongful use of civil proceedings which lies where there is no basis for an entire claim, abuse of process "covers the allegedly improper use of individual legal procedures after a suit has been filed properly. Typical abuse of process cases involve misuse of such procedures as discovery, subpoenas, and attachment.
Pepperell Trust Co. v. Mountain Heir Fin. Corp. 708 A.2d 651, 655 n.8 (Me. 1998), citing Goucher v. Dineen, 471 A.2d 688, 689 (Me.19 84); Nadeau v. State, 395 A.2d 107, 117 (Me.1978) (internal quotes and ellipses omitted).
The abuse of process tort "require[sJ a prima facie showing of two elements: ( 1) 'the use
of process in a manner improper in the regular conduct of the proceeding," and (2) "the
4 . --- {.
existence of an ulterior motive."' Nader v. Maine Democratic Party, 2012 ME 57, ~38, 41 A.3d
558, 563, quoting Advanced Constr. Corp. v.
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( (
STATE OF MAINE SUPERIOR COURT
Cumberland, ss. STATE Of Mf\\NE Cum~rl~nd ·~ Clerk'& OffteP PAMELA GLEICHMAN and KARL NORBERG JAN 12 2017 Plaintiffs RECEIVED v. Docket No. PORSC-CV-15-0539
ROSA SCARCELLI, STANFORD MANAGEMENT, LLC, ACADIA MAINTENANCE, LLC, PRESERVATION HOLDINGS, LLC and NORMAN, HANSON & DETROY, LLC
Defendants
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS SCARCELLI, STANFORD, ACADIA AND PRESERVATION
Defendants Rosa Scarcelli, Stanford Management, LLC ["Stanford"], Acadia
Maintenance, LLC ["Acadia"] and Preservation Holdings, LLC ["Preservation"] have filed
a motion for judgment on the pleadings. Plaintiffs Pamela Gleichman and Karl Norberg
have opposed the motion, and the moving Defendants have filed areply. The court elects to decide the motion without oral argument. See M.R. Civ. P.
,,(b )(7).
Background
This case presents another chapter in the history of litigation between Plaintiffs
Pamela Gleichman and Karl Norberg and Defendant Rosa Scarcelli, who is ·Plaintiff
Gleichman's daughter and Plaintiff Norberg's step-daughter. In addition to naming the
moving Defendants in this case, the Plaintiffs have named the Norman, Hanson & DeTroy,
LLC law firm (NHD) as a defendant. (_
The Plaintiffs' operative pleading is their Second Verified Amended Complaint ["the
Amended Complaint"], which is too long to summarize here. Defendants' motion contends
that many of the twenty two counts of the Amended Complaint are legally insufficient.1
The standard of review applicable to a motion for judgment on the pleadings under
Rule 12(c) of the Maine Rules of Civil Procedure is similar to that on a Rule 12(b)(6)
motion-whether the pleading to which the motion is directed, viewed in a light most favorable
to the non-moving party, states a valid claim. See Town ef Eddington v. University ef Maine
Foundation,__2007 ME 74,, §5, 926 A.2d 183, 184; Heber v. Lucerne-in-Me. Vill. Corp., 2000 ME
137, ~ 7, 755 A.2d 1064, 1066.
The court's rulings are as follows:
Count I
The disagreement between Defendants and Plaintiffs about the validity of Count I
seems to focus on whether the references to the Defendants' alleged violation of statutes
regarding registration of securities, auctioneer licensing and secured transactions are meant
to assert private causes of action for violation of those statutes. On its face, count I is a
declaratory judgment claim regarding the validity of the sale by auction to Preservation
Holdings, LLC of the stock of General Holdings, Inc. Plaintiffs say that their references to
the securities, auctioneer license and secured transaction statutes are not intended to state
any causes of action based on those statutes. The court agrees with the Defendants that
Plaintiffs likely do not have standing to assert causes of action under any of the statutes,
but agrees with Plaintiffs that their Second Verified Amended Complaint states a
cognizable declaratory judgment claim as to the validity of the disputed auction. If the
1 The Second Verified Amended Complaint contains counts numbered I through XXIII, but there is no count IX. "[T]here is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant."
2 L
references to the auctioneer and securities statutes are simply meant to bolster Plaintiffs'
challenge to the sale, the court need not say at the pleadings stage whether evidence of any
statutory violation might be admissible. Accordingly, based on Plaintiffs' assertion that
Count I asserts a declaratory judgment claim only, the Defendants' motion for judgment on
the pleadings will be denied as to Count I.
Counts IV, V, VI, X and XVIII
Defendants Scarcelli, Stanford, Acadia and Preservation move for partial judgment
on the pleadings on Counts IV, V, VI and X of the Amended Complaint on grounds of res
judicata/claim preclusion. Their motion plainly relies on material outside the pleadings,
and in fact is accompanied by exhibits from the prior litigation that the motion contends
preclude the claims in Counts IV, V, VI, X and XVIII. The exception to the rule that only
the pleadings may be considered in a motion to dismiss or for judgment on the pleadings
does not encompass all of the material on which the Defendants rely for their res
judicata/ claim preclusion argument. See Moody v. State Liquor & Lottery Comm'n, 2004 ME
20, ~ 11, 843 A.2d 43. The Moody exception extends to documents central to the Plaintiffs'
claims, documents referred to in the complaint, or official public documents. The various
documents from the 'prior litigation on which 'the moving Defendants rely do not appear to fall
in any of these categories.
On the present record, the court is unable to say that the Defendants are entitled to
judgment on claim preclusion grounds and therefore denies their motion on these counts.
These issues would better be raised in the summary judgment process.
3 Count VIII
Defendants moved for summary judgment on Count VIII (which is titled Count IIX
m the Amended Complaint), which alleges that the Defendants converted stock of
Gleichman & Co. (presumably referred to the sale by auction of General Holdings, Inc.
stock).
Although the court has already ruled that Defendant NHD is entitled to judgment
on the pleadings as to Count VIII, the court agrees with Plaintiffs that Defendants are not
entitled to judgment on that count, at least at this stage, so at least for pleading purposes,
the claim may proceed as to the Defendants other than NHD.
Count XI
Count XI advances what is labeled as an abuse of process claim. It says that
Defendant Scarcelli "misused legal process" but that "Plaintiffs suffered damages as a result
of the Defendants' misuse of process." It is thus not clear whether Count XI is alleged
against all Defendants or just Defendant Scarcelli.
The Supreme Judicial Court of Maine, sitting as the Law Court, has defined the tort ;of
abuse of process as follows:
Abuse of process is the use of process in a manner not proper 'in the regular conduct of the proceedings where there is an ulterior motive. In contrast to a claim of wrongful use of civil proceedings which lies where there is no basis for an entire claim, abuse of process "covers the allegedly improper use of individual legal procedures after a suit has been filed properly. Typical abuse of process cases involve misuse of such procedures as discovery, subpoenas, and attachment.
Pepperell Trust Co. v. Mountain Heir Fin. Corp. 708 A.2d 651, 655 n.8 (Me. 1998), citing Goucher v. Dineen, 471 A.2d 688, 689 (Me.19 84); Nadeau v. State, 395 A.2d 107, 117 (Me.1978) (internal quotes and ellipses omitted).
The abuse of process tort "require[sJ a prima facie showing of two elements: ( 1) 'the use
of process in a manner improper in the regular conduct of the proceeding," and (2) "the
4 . --- {.
existence of an ulterior motive."' Nader v. Maine Democratic Party, 2012 ME 57, ~38, 41 A.3d
558, 563, quoting Advanced Constr. Corp. v. Pileckz; 2006 ME 84, ~ 2.3, 901 A.2d 189. See also
Tanguay v. Asen, 722 A.2d 49, 50 (Me.1998) ("Regular use of process ... cannot constitute abuse,
even if a decision to act or a decision not to act, was influenced by a wrongful motive."). 2
Count XI does not specify what legal process was abused, nor does a fair reading of the
complaint reveal a basis for the claim. Clearly the Plaintiffs are claiming that Scarcelli and
other Defendants acted out of improper motives, but there is no allegation that the Defendants
used any form of legal process-such as a subpoena or a writ of attachment-in a manner not
permitted by law. Whatever their purpose or motive, if the Defendants utilized legal process
in the manner by which it is permitted to be used, their actions cannot constitute abuse of
process.
Accordingly, the moving Defendants are granted judgment on Count XI.
Count XVI
The moving Defendants move for judgment on the pleadings as to Count XVI on the
ground that it simply presents a claim for punitive damages, which is a form of relief rather
than a theory of.liability or a cause of action. Punitive damages indeed are not a freestanding
cause of action or theory of liability, but are only a form of relief that depends on proof of an
independent tort involving actual or implied malice, but Plaintiffs note that this and other
courts have sometimes allowed such counts to stand and sometimes not.
In any event, Plaintiffs have demanded an award of punitive damages elsewhere in their
Verified Second Amended Complaint, in paragraph (e) of their prayer for relief at page 83,
"[T]here is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." RESTATEMENT (SECOND) OF TORTS§ 682, comment b.
5 thereby rendering surplus the identical prayer reflected in Count XVI. Count XVI will be
dismissed as redundant.
IT IS HEREBY ORDERED AS FOLLOWS:
1. The Motion for Partial Judgment on the Pleadings filed by Defendants Rosa
Scarcelli, Stanford Management, LLC Acadia Maintenance, LLC and Preservation
Holdings, LLC is hereby grarited in part and otherwise denied. , ....~
2. Defendants Rosa Scarcelli, Stanford Management, .LLC Acadia Maintenance, LLC
and Preservation Holdings, LLC are granted judgment on Count XI of the Plaintiffs'
Verified Second Amended Complaint.
4 . Count XVI of the Verified Second Amended Complaint is dismissed.
Pursuant to M .R. Civ. P . 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated January 11, 2017
A. M. Horton, Justice