2 Only after Hoffman paid the taxes did Mechanics discover the error. (Supp.
S.M.F. ':II 28.) The Town of Richmond now recognizes Mechanics as the owner of
the property at 19 Frog Lane. (Supp. S.M.F. ':II 36.)
Procedural History
Mechanics filed its complaint on October 26, 2012. It seeks declaratory
judgment pursuant to 14 M.R.S. § 5953 that it owns the property located at 19
Frog Lane in Richmond, Maine. Following a discovery dispute between the
parties, the court sanctioned defendants for failing to appear for properly noticed
depositi~ns and violating a court order. The court ordered that defendants could
not file opposing statements of material fact but allowed them to file opposing
legal memoranda.
Discussion
1. Standard of Review
"Summary judgment is appropriate when there is no genuine issue of
material fact that is in dispute and, at trial, the parties would be entitled to
judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ':II 9, 983 A.2d
382. "An issue is genuine if there is sufficient evidence supporting the claimed
factual dispute to require a choice between the differing versions; an issue is
material if it could potentially affect the outcome of the matter." Brown Dev. Corp.
v. Hemond, 2008 ME 146, ':[ 10, 956 A.2d 104.
2. Tax Lien Foreclosure
Mechanics argues that the Town of Richmond's tax lien foreclosure was
invalid because the Town did not send notice of the liens and impending
foreclosure to the record owner as required by statute. Malamute argues that
because Mechanics did not record its foreclosure deed until March 22, 2011, it
3 was not the record owner and therefore not entitled to receive notice of the tax
liens and impending foreclosure.
Under Maine's tax lien statute,
At the time of the recording of the tax lien certificate in the registry of deeds, in all cases the tax collector shall file with the municipal treasurer a true copy of the tax lien certificate and shall hand deliver or send by certified mail, return receipt requested, to each record holder of a mortgage on that real estate, to the holder's last known address, a true copy of the tax lien certificate. If the real estate has not been assessed to its record owner, the tax collector shall send by certified mail, return receipt requested, a true copy of the tax lien certificate to the record owner.
36 M.R.S. § 942 (2013). Similarly, the foreclosure section provides:
The municipal treasurer shall notify the party named on the tax lien mortgage and each record holder of a mortgage on the real estate not more than 45 days nor less than 30 days before the foreclosing date of the tax lien mortgage, in a writing signed by the treasurer or bearing the treasurer's facsimile signature and left at the holder's last and usual place of abode or sent by certified mail, return receipt requested, to the holder's last known address of the impending automatic foreclosure and indicating the exact date of foreclosure.
36 M.R.S. § 943.
"[S]tatutes governing the procedures whereby an owner may lose his
property for the nonpayment of taxes are to be strictly construed against the
taxing authority." Johnson v. Town of Dedham, 490 A.2d 1187, 1190 (Me. 1985)
(quoting City of Augusta v. Allen, 438 A.2d 472, 474 (Me. 1981)). If a-town fails to
comply strictly with statutory requirements, its tax lien is void. Cary v. Town of
Harrington, 534 A.2d 355, 358 (Me. 1987).
The Town of Richmond mistakenly sent the lien and foreclosure notices to
Malamute, even though Malamute was no longer the record owner of the
property as of 2006. Malamute argues that Mechanics was not the record owner
at the time due to its failure to record, but Malamute was also not the record
4 owner because it had conveyed the property to Winslow. Because only
Malamute received the notices, they were sent to the w:rong party, regardless of
whether Winslow or Mechanics was the record owner. The Town of Richmond,
therefore, failed to comply with the statutory requirements. Accordingly, its tax
liens and subsequent foreclosure of the property are void.
Malamute received a quitclaim deed from the Town of Richmond. "[A]
quit claim deed is only effective to convey whatever interest the grantor may
have had in the land." Ricker v. United States, 417 F. Supp. 133, 140 (D. Me. 1976).
Because the Town had no interest to convey, Malamute received no interest in 19
Frog Lane.
The entry is
Mechanics' motion for summary judgment is GRANTED.
The court declares that Plaintiff Mechanics Savings Bank owns the property at 19 Frog Lane in Richmond, Maine, which property is shown on the Town of Richmond Tax Map U13, Lot 4.2, and is more particularly described at Sagadahoc County Registry of Deeds Book 3277, Page 334.
Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate
Dated May 27, 2014
Recording Requirements Pursuant to 14 M.R.S. § 2401:
1. Names and addresses of the parties to the action, including counsel of record:
Plaintiff:
Mechanics Savings Bank 100 Minot Avenue P.O. Box400
5 Auburn, ME 04212
Counsel of Record:
Sonia Buck, Esq. Linnell, Choate & Webber 83 Pleasant St. P.O. Box 190 Auburn, ME 04212
Defendants:
Malamute Investment Management, Inc. 3 Dirigo Dr. Scarborough, ME 04074
Town of Richmond 26 Gardner St. Richmond, ME 04357
Elliott R. Teel, Esq. 615 Congress St. P.O. Box 5072 Portland, ME 04101
Party-in-Interest:
Howard Hoffman 3 Dirigo Dr. Scarborough, ME 04074
2. The docket number: Sagadahoc County Superior Court RE-12-28.
3. The Court expressly finds that all parties have received notice of the proceedings as required by the Maine Rules of Civil Procedure.
4. The property is found at 19 Frog Lane in Richmond, ME. It is Lot 4.2 on the Town of Richmond's tax map U13 and found in the Sagadahoc County Registry of Deeds at Book 3277, page 334.
6 •,\1ECHANICS SAVINGS BANK - PLAINTIFF SUPERIOR COURT SAGADAHOC, ss. Attorney for: MECHANICS SAVINGS BANK Docket No BATSC-RE-2012-00028 f ~ J BUCK - RETAINED 10/26/2012 LiNNELL CHOATE & WEBBER LY 83 PLEASANT STREET DOCKET RECORD PO BOX 190 AUBURN ME 04212-0190 :>~~r/10lLi VS TOWN OF RICHMOND - DEFENDANT 26 GARDNER STREET RICHMOND ME 04357 Attorney for: TOWN OF RICHMOND SALLY DAGGETT - RETAINED JENSEN BAIRD GARDNER HENRY 10 FREE STREET PO BOX 4510 PORTLAND ME 04112
MALAMUTE INVESTMENT MANAGEMENT INC - DEFENDANT 3 DIRIGO DRIVE SCARBOROUGH ME 04074 Attorney for: MALAMUTE INVESTMENT MANAGEMENT INC ELLIOTT R TEEL - RETAINED LAW OFFICE OF ELLIOTT R TEEL PA 615 CONGRESS ST SUITE 511 PO BOX 5072 f .AND ME 04101
HOWARD HOFFMAN - PARTIES IN INTEREST 3 DIRIGO DRIVE SCARBOROUGH ME 04074
Filing Document: COMPLAINT Minor Case Type: QUIET TITLE Filing Date: 10/26/2012 .~-3'/1/tf'ZDI~ ~uf IN TERED OCT 3 0 Z014
STATE OF MAINE SUPERIOR COURT Sagadahoc, ss. Sq Er-AMt}- 03-)rJ -11.} MECHANICS SAVINGS BANK
v. Docket No. BATSC-CV-12-028
TOWN OF RICHMOND and MALAMUTE INVESTMENT MANAGEMENT
Party in interest
ORDER FOR SANCTIONS
Before the court is Plaintiff Mechanic Saving Bank's Motion For Sanctions
Pursuant To Rule 37. Plaintiff requests that the court impose sanctions against
defendant Malamute Investment Management and party-in-interest Howard Hoffman,
based on their failure to appear for deposition upon oral examination in violation of the
discovery rules and an order of the court. Malamute and Mr. Hoffman have filed
oppositions to the Bank's motion. The court elects to decide the Motion without oral
argument. See M.R. Civ. P. 7(b)(7).
Plaintiff Bank filed its complaint on October 26, 2012, seeking a declaratory
judgment to the effect that it owns the property located at 19 Frog Lane, Richmond,
Maine. The Town of Richmond filed its answer on November 16, 2012. On November
26, 2012, defendant Malamute Investment Management ("Malamute") filed an answer, a
counterclaim, a motion for summary judgment, and an application to proceed without fees. The president and sole shareholder of Malamute, Howard Hoffman, signed all of
the court filings for Malamute. Mr. Hoffman is not an attorney authorized to engage in
the practice oflaw in the State of Maine.
The court denied the application to proceed without fees on November 29, 2012.
On December 6, 2012, Malamute, again via Mr. Hoffman, filed a motion to withdraw its
previous demand for a jury trial. Mr. Hoffman later moved to intervene individually as
a party in interest in the case, and has been representing himself in that capacity.
On December 7, 2012, the Bank filed a motion to strike all of Malamute's court
filings and requested default, and Malamute, again through Mr. Hoffman, filed an
opposition. In an order dated January 8, 2013, the court granted the motion to strike all
of the filings signed by Mr. Hoffman on behalf of Malamute, because Malamute has to
be represented by an attorney authorized to practice in Maine, and Mr. Hoffman is not
an attorney. However, the court afforded Malamute the opportunity to set aside the
default by retaining an attorney to file a motion to set aside default by February 8, 2013.
Attorney Elliot Teel entered an appearance on behalf of Malamute and filed a motion to
set aside default on February 7, 2013. On March 5, 2013, the court granted the motion
to set aside default and granted Hoffman's motion to intervene as a party-in-interest.
Hoffman filed an answer on March 25, 2013. The court set the discovery deadline for
September 5, 2013.
Plaintiff Bank's counsel attempted to schedule depositions upon oral examination
of both Malamute and Mr. Hoffman for the end of August but Hoffman responded that
he could not attend because he was moving. On September 4, 2013, the Bank filed a
2 motion to extend the discovery deadline, on the ground that Hoffman and Malamute 1
did not appear for their properly noticed depositions. The court extended the discovery
deadline to November 3, 2013. The Bank's counsel noticed a deposition for October 15,
2013, but Hoffman once again stated that he could not attend in person. Malamute then
filed a motion seeking an order for the depositions to be conducted remotely on October
10, 2013.
In an order dated November 5, 2013, the court denied Malamute's request for
remote deposition and ordered Hoffman to provide opposing counsel with five dates on
which he would be available for a deposition at plaintiffs counsel's office before January
15, 2014. The court specifically stated that it was "a discovery order for purposes of
M.R. Civ. P. 37."
The court held a status conference on January 7, 2014, in which the Bank's and
Malamute's counsel, but not Mr. Hoffman, participated, and as a result issued an order
noting that Hoffman had failed to appear at a properly scheduled deposition pursuant to
its November 5 order, and also noting that a motion under Rule 37 could be filed.
Despite this clear warning, Mr. Hoffman still failed to make himself available for his and
Malamute's depositions.
On January 27, 2014, plaintiff filed its Motion For Sanctions Pursuant To Rule
37, asking the court, among other sanctions, to preclude Malamute and Mr. Hoffman
from opposing summary judgment in favor of the Bank. Both Malamute and Hoffman
filed oppositions to the motion on February 18, 2014, and the Bank filed a reply
memorandum February 24, 2014.
1 Mr. Hoffman was to be deposed individually and Malamute was to designate someone to testify on its behalf pursuant to M.R. Civ. P. SO(b)(6).
3 Discussion
1. Timeliness of Defendants' Oppositions
Plaintiff first argues that defendants Hoffman and Malamute filed late
oppositions to plaintiffs motion for sanctions. Plaintiff states that its motion was filed
on January 24, 2014, however, the date stamp shows that it was received on January 27,
2014. Defendants were required to file within 21 days of this date. M.R. Civ. P. 7(c)(2).
Although the deadline would have been February 17, 2014, that date, President's Day,
is a legal holiday. Under the rules, defendants were allowed to file the following day,
February 18, 2014. M.R. Civ. P. 6(a). Defendants' filings were stamped as received on
February 18, 2014 and were therefore timely filed.
2. Motion for Sanctions
Plaintiffs motion seeks sanctions under Rule S7 because Mr. Hoffman and
Malamute failed to appear for their properly noticed depositions, and to comply with the
court's order regarding their depositions. Rule S7 provides
[i]f a party or an officer, director, or managing agent of a party or a person designated under Rule SO(b )( 6) or S 1(a) to testify on behalf of a party fails ... to appear before the officer who is to take a deposition, after being served with a proper notice ... without having made an objection thereto ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
M.R. Civ. P. S7(d).
Malamute is a party defendant, and Mr. Hoffman clearly qualifies as both a party
and an officer of a party, for purposes ofthe rule. Malamute's and Mr. Hoffman's
depositions were always scheduled seriatim, and whenever Mr. Hoffman failed to appear,
4 Malamute failed to appear as well. See Plaintiffs Motion for Sanctions Pursuant to Rule
37, Exhibits A, B and F. On that basis, the court has no hesitation in deeming party-in-
interest Hoffman's dilatory conduct to be the conduct of Defendant Malamute as well.
Plaintiff has clearly established that Malamute as a party and Mr. Hoffman as a
party have both failed repeatedly to appear for deposition upon oral examination.
Section (b)(2) ofRule 37 gives the court discretion to order a remedy for a
discovery failure, including issuing "[a]n order striking out pleadings or parts thereof,
or staying further proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default against the
disobedient party." M.R. Civ. P. 37(b)(2)(C). In this case, Mr. Hoffman and Malamute
not only violated the discovery rules by failing to appear at a deposition, but Mr.
Hoffman violated the court's November 5, 2013 order.
The Law Court has said that, in determining a Rule 37 discovery sanction, "the
trial court should consider ( 1) the specific purpose of the discovery rules; (2) the party's
conduct throughout the proceedings; (3) the party's bona fides in its failure to comply
with the discovery rules; (4) prejudice to the other parties; and (5) the need for the
orderly administration ofjustice." Douglas v. Martel, 2003 ME 132, ~ 5, 835 A.2d 1099.
Parties are "not entitled to a 'warning' that their blatant violations of the discovery
rules could result in the dismissal of their action." St. Paul Ins. Co. v. Hayes, 2001 ME 71,
~ 14, 770 A.2d 611.
For purposes of the first listed factor, Mr. Hoffman's conduct on behalf of
himself and Malamute has frustrated the purpose of the discovery rules. As the Law
Court explained in St. Paul Insurance Co., the Maine Rules of Civil Procedure must "be
construed to secure the just, speedy and inexpensive determination of every action." Id.
5 ~ 8 (quoting M.R. Civ. P. 1). The discovery rules aim to "eliminate the sporting theory
of justice and to enforce full disclosure between the parties." I d. (internal quotation
omitted). Mr. Hoffman's ongoing failure to appear for his and Malamute's deposition
has delayed the case by over six months. His actions required opposing counsel to spend
time and money on setting up alternate dates for depositions and required the court to
hold additional status conferences.
The second factor also weighs against Mr. Hoffman and Malamute. Mr.
Hoffman previously filed motions on behalf of Malamute in violation of 4 M.R.S. § 807
(2013), which prohibits the unauthorized practice oflaw. As a result, Malamute was
conditionally defaulted for failing to retain an attorney. Although the court is not
obligated to warn a party to follow the rules, Malamute and Hoffman were on notice
that they must comply with the law or suffer the consequences, including an entry of
default against them. Mr. Hoffman repeatedly informed opposing counsel that he
could not be present for properly noticed depositions, stated that he moved without
providing opposing counsel his new address, and requested remote deposition without
any good cause other than his own inconvenience. Given this behavior, the court finds
that Hoffman has not acted in good faith in repeatedly failing to appear for his
deposition.
Turning to the third listed factor, Malamute's and Mr. Hoffman's excuses are
unconvincing. Hoffman blames his failure to appear for the December 30 deposition on
bad weather. He notified opposing counsel on December 25, 2013 that he would not be
able to make the deposition on December 30, the date that he chose, because it was
impossible to get a flight to Maine due to the holiday season and bad weather. In its
November 5, 2013 order, the court made clear that Hoffman is not an out-of-state
6 defendant and that he must make himself available for an in-person deposition in Maine.
Hoffman's excuse that bad weather prevented him from appearing in Maine on a date of
his own choosing does not constitute good cause. His failure to rectify his
nonappearance at any time since then also counts against Malamute and Mr. Hoffman.
Regarding the fourth factor, the Bank has been prejudiced by the additional time
and expense incurred as a result of Malamute's and Mr. Hoffman's conduct. See Douglas,
200.3 ME 152, ~ 9, 835 A.2d 1099. While Hoffman and Malamute would both be
prejudiced by the sanction that the court imposes in response to their conduct, "they
have ... only themselves to blame ... " St. Paul. Ins. Co., 2001 ME 71, ~ 12, 770 A.2d
611.
Finally, the fifth factor also weighs against Hoffman and Malamute. As the Law
Court has explained, "[r]ecourse to the authority of the court for orders compelling
compliance with the rules must be the exception rather than the rule." Harris v. Soley,
2000 ME 150, ~ 17, 756 A.2d 499. Because Hoffman refused to appear for deposition,
the Court had to hold additional status conferences, issue an order denying remote
deposition, and repeatedly extend the discovery period in the case.
For these reasons, the court hereby grants the Plaintiffs' Motion for Sanctions
Pursuant to Rule 57. As to sanction, the court notes that it has already ordered Mr.
Hoffman to appear for deposition, and has no intention of doing so again.
The nature ofthe violation should influence the nature of the sanction. Because
Malamute and Mr. Hoffman have refused to provide discovery in the form of their own
deposition testimony, it is entirely fair to preclude them from presenting evidence. As a
sanction, the court will preclude Malamute and Mr. Hoffman from presenting any
evidence, either at trial or in response to a motion for summary judgment, to defend
7 against the Bank's declaratory judgment claim. (Malamute's counterclaims filed on its
behalfby Mr. Hoffinan have already been stricken). Malamute through counsel and
Mr. Hoffman, through counsel or prose, may, however, oppose the Bank's claim on legal
grounds.
The court will also award the Bank its reasonable attorney fees and costs against
Malamute and Mr. Hoffman for the expense ofbringing its Rule S7 motion, and also for
the time and expense incurred in attempting to schedule the depositions of Malamute
and Mr. Hoffman.
IT IS HEREBY ORDERED AS FOLLOWS:
1. Plaintiff Bank may either request the case be set for jury-waived trial, or may
file a motion for summary judgment at any time in the next 60 days.
2. If the Bank files a motion for summary judgment, Defendant Malamute
through counsel and party-in-interest Hoffman may file opposing legal memoranda in
response to the Bank's motion for summary judgment, but may not file any responsive
statement of material facts, any affidavits or any other material in an attempt to raise
genuine issues of material fact. Based on the facts set forth in the Bank's statement of
material facts and any affidavits or other material filed by the Bank, and the legal
memoranda of all parties, the court will determine whether the Bank has demonstrated
that it is entitled to judgment as a matter oflaw. If the motion is granted, the court will
enter final judgment. If the motion is denied, the court will set the case for jury-waived
trial.
2. If a trial is held, Malamute through its counsel and Mr. Hoffman may appear
and cross-examine the Bank's witnesses, but under this Order they are precluded from
presenting evidence.
8 S. The Bank may within SO days file a detailed application for fees and expenses,
supported by counsel's affidavit on reasonableness and a breakdown of the time and
expenses for which reimbursement is requested. Malamute and Mr. Hoffman may file a
response within H days of the filing of the Bank's application.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated March 27, ~Wl4 / A. M. Horton Justice, Superior Court
9 STATE OF MAINE Sagadahoc, ss.
MECHANICS SAVINGS BANK
TOWN OF RICHMOND and MALAMUTE INVESTMENT MANAGEMENT, INC.
ORDER
Before the court are the Plaintiffs request for default to be entered against Defendant
Malamute Investment Management ["Malamute"] and Plaintiffs motion to strike Malamute's
filings. The court elects to decide both without hearing, see M.R. Civ. P. 7(b )(7).
Plaintiff Mechanics Savings Bank seeks a declaratory judgment regarding its claim to own
real estate at 19 Frog Lane, Richmond, Sagadahoc County. Defendant Malamute Investment
Management ["Malamute"] is a Maine corporation that claims ownership in the same property.
However, Malamute has not properly appeared and answered in response to the summons and
complaint. Instead, it has purported to file an answer through its president, Howard Hoffman,
who has not provided a bar number and therefore does not appear to be an attorney licensed to
practice law in Maine.
By statute, a corporation must be represented in litigation by an attorney licensed in Maine,
with some exceptions, none of which applies here. See 4 M.R.S. § 807. Because none of
Malamute's filings, including its answer, in this case are signed by a licensed attorney, they are of
no validity and it is as if they were never filed at all. See also Land Management, Inc. v. Dep't of
Environmental Protection, 368 A.2d 602, 603 (Me. 1977) (pleadings filed by a corporation without
proper representation are a "nullity"). Therefore, the Plaintiff's request for default and motion to strike are well-founded. The court
is entering Malamute's default. However, the court will give Malamute an opportunity to avoid being
defaulted by arranging for a licensed Maine attorney to enter a general appearance (not a limited
appearance) on Malamute's behalf.
IT IS HEREBY ORDERED:
1. Plaintiff's motion to strike is hereby granted. The court will disregard and take no action
regarding any and all papers flied by Malamute prior to this order, and will similarly disregard any
papers filed hereafter by Malamute unless they are signed by a licensed Maine attorney.
2. Defendant Malamute is hereby declared to be in default. However, Malamute may file a
motion to set aside default by February 8, 2013, provided the motion is signed by an attorney
licensed to practice in the State of Maine who is appearing generally in this case for Malamute.
3. If no motion signed by a licensed Maine attorney is filed by Malamute by February 8, 2013,
Malamute's default will stand and Plaintiff may file a motion for entry of default judgment against
Malamute, including a proposed form of judgment in its filing.
Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this order by
reference in the docket.
Date: January 8, 201.3 A.M. Horton Justice, Superior Court