Maine Mulch, Inc. v. Bell

• Court: Superior Court of Maine
• Decided: March 16, 2009
• Docket: PENcv-08-060
• Status: Unpublished

Opinion

STATE OF MAINE ISTRICT COURT PENOBSCOT, SS. FILED &ENTERED VILACTION SUPERIOR COURT OCKET NO CV-08-060 Vi P / ' ' . , . ~_ tJ.AR 1 6 2009 MAINE MULCH, INC. A JANICE ROWBOTHAM, PENOBSCOT COUNTY Plaintiff, v. DECISION and ORDER LEE BELL d /b / a BELL CONSTRUCTION and TRANSPORT,

Defendant.

Hearing was held on the plaintiff's complaint on February 18, 2009. The plaintiff

was present and represented by counsel, Eugene Sullivan, Esq., while the defendant

was present and represented by counsel, Charles Cox, Esq.

Preliminarily, the court addresses plaintiff's motion to dismiss made orally at

trial. Since 2003, including the period of time that is the subject of this litigation, Maine

Mulch has been a suspended corporation and defendant contends that the corporation's

suspended status prevents the plaintiffs from recovering the funds claimed. Although

the plaintiff argues that defendant's pleadings fail to properly raise this defense, the

court disagrees. Defendant denied that Maine Mulch was a Maine corporation in its

answer and lists "misnames (sic) of correct parties" as an affirmative defense. The court

finds that this is sufficient to raise the issue. The court agrees with defendant that since

Maine Mulch was prohibited by 13-C M.R.S.A. 1421(3) from transacting business in

2006, it cannot recover damages associated with its business activities during that

period. The remaining question, therefore, is whether plaintiff Janice Bell can recover

instead of Maine Mulch.

Before answering this question, the court turns to the complaint to construe the

nature of the cause of action. In her post-trial memorandum, plaintiff argues that the elements of unjust enrichment apply equally to Maine Mulch and Ms. Rowbothem. In

making this argument, he fails to address the fact that the elements of unjust

enrichment are not contained in the complaint. Instead, the complaint speaks in terms

of conversion. From the complaint, one could conclude that plaintiff alleged that after

an alleged mistake in billing was discovered, it retained money in which the plaintiff

had an interest and in which plaintiff then had a right to possess, and that the plaintiff

had made a demand that it be retained, satisfying the elements specified in Withers v.

Hackett, 1998 ME 164

Returning to the question of whether Ms. Rowbotham individually can maintain

the action against defendant, the court answers the question affirmatively. She testified

that she was the company president and she only occasionally had employees. All

correspondence went through her and she conducted all relevant transactions. When a

billing controversy arose, all communications from defendant went to her. It was

represented by defendant's bookkeeper in pI. ex. #2 that "you" (referring to Janice

Rowbotham) had paid $89, 765 and indicated elsewhere in the same document that

"you" paid and "you" owe. From this the court concludes that defendant acted as if

Maine Mulch and Ms. Rowbotham were interchangeable and that in the absence of a

corporate plaintiff, the elements of conversion can be made out by Ms. Rowbotham.

Sturdevant v. Town a/Winthrop, 732 A.2d 264 (Me 1999) does not prevent this result

because that case dealt with Mr. Surdevant's ability to enforce a contract that had been

terminated by the town because the contract was originally between the town and Mr.

Sturdevant's corporation, which became suspended. It did not address payment for

work completed or recovery of money already paid and did not address unjustment

enrichment or conversion. In her complaint plaintiff alleges she overpaid for trucking services that

defendant provided her company. Maine Mulch is a business that purchases bulk

mulch from a variety of producers/ sources and resells to landscaping and nursery

businesses in New England. In order to transport the product to her customers, she

hired the defendant. They had no written contract concerning the transactions, instead,

the defendant would indicate to plaintiff or his driver what she was willing to pay for

transporting a certain load to a certain destination and if the amount was satisfactory,

defendant accepted the offer, usually recorded the amount on a bill of lading, and

moved the load according to plaintiff's terms. During their business relationship, the

plaintiff paid $765 on 3/09/06, $17,000 on 4/10/06, $35,000 on 5/02/06, $20,000 on

5/31/06, and $17,000 on 6/21/06, for a total payment of $89,765.

During the trial, the defendant submitted a compilation of the charges in def. ex.

#6, with transactions grouped according to invoice number. According to this exhibit,

the defendant maintains that appropriate charges total $88,169.75, indicating an

overpayment of $1,595.25. Since the plaintiff does not have a complete list of what she

claims are appropriate charges, but contests some of the charges on defendant's list, the

court will evaluate the claimed deficiencies on defendant's list.

The plaintiff alleges that some of the charges were improper, beginning with

those associated with invoice #1007 for $1,673.25, representing a February 2006 delivery

to Walter woods in Southboro Mass. The court finds that plaintiff has proved that this is

not a delivery to a customer of her and is not an amount that should have been included

in the overall compilation, def. ex. #6.

Next, the plaintiff alleges that, based on handwritten changes to inv. # 1030 and

#1032 found in the versions of those invoices contained in the exhibit notebook (def. ex.

#1), she was charged twice for the same $630 delivery for mm#4632-06 (her numbering). Since only one of these charges appears in the compilation being used by

the court to evaluate this issue (def. Ex. #6), she is not being double charged for

purposes of this decision. Likewise, because of another handwritten entry on the

notebook version of invoice #1046, plaintiff claims that she was double billed for the

delivery reflected in MM3766, totaling $1,033. The court has examined how the

separate #1046 charges were entered into def. ex. #6, and finds that on that document

there was no double charge.

Finally, plaintiff disputes several charges from invoice #1051. The court rejects

her claims with regard to MM5201-06 and 5507-06 because they appear to be shipments

to Worcester, Mass. And Concord, Mass and she has failed to prove that the charges of

$830 and $1,107, respectively, are not appropriate, given the fact that the shipment to

Worcester emanated from Milford, Maine (see 5/5 bill of lading from Northland) and

the shipment to Concord probably emanated from the more distant location of

Baileyville (see 5/9 scale ticket). MM5200-06 represents a load picked up in Milford (see

other 5/5 bill of lading from Northland) and the bill of lading indicates "load pays

$424.50" which the court concludes is correct and will make the $681.50 adjustment

accordingly. The evidence surrounding the remaining bills of lading in invoice #1051 is

less exact. One bill of lading MM5211-06 relates to a 5/11 shipment from Baileyville to

Scarborough, Maine (see 5/11 scale ticket), and has a notation "pays $1107"; and

another, MM 5606-6 relates to a 5/10 shipment from Baileyville to Raymond, Maine (see

5/10 yard pass) and has no notation. Under these circumstances, the court cannot

conclude that they were not billed correctly since they reflect shipments from

Baileyville. It would stand to reason that the charge would be greater than the charge

from Milford to the Scarborough area, already determined to be $424.50 since

Baileyville is more distant. Although one would suspect that the difference would be less, plaintiff's evidence on this point is insufficient. Finally, the other 5506-06 and 5166­

66 relate to shipments to Scarborough from either Baileyville or Milford. Each has a

notation "pays $1,107" and here is no evidence of which of the two locations was the

origin of the shipment; thus the court cannot conclude that the $1,107 charge for each

was not correct.

The plaintiff asks that the court also impose attorney fees and double damages.

The court does not do so because there is no authority for such a request. Defendant did

not engage in serious misconduct in this litigation.

Based on the above, the court Orders that judgment be entered against plaintiff

Maine Mulch, Inc., but for plaintiff Janice Rowbotham in the amount of $3,950 plus

interest and costs against Lee Bell d/b / a/ Bell Construction and Transport.

The clerk is directed to incorporate this Decision and Order into the docket by

reference.

Dated: March 6, 2009

JUSTICE, SUPERIOR COURT 04/27/2009 MAINE JUDICIAL INFORMATION SYSTEM NEWPORT DISTRICT COURT PAGE P - PARTY VIEW MAINE MULCH INC VS LEE BELL DBA BELL CONSTRUCTION AND TRANSPORT CASE #:NEWDC-CV-2008-00060

SEQ TITLE NAME DOB ATTY 001 PL MAINE MULCH INC by Joseph Baldacci, Esq. T 003 PL JANICE ROWBOTHAM 1 1 PRO 002 DEF LEE BELL by Charles Cox, Esq. T