STATE OF MAINE BUSINESS AND CONSUMER COURT
Cumberland, ss.
ALAN MILLER, individually and in the right of and for the benefit of SAM Miller, Inc.,
Plaintiff
v. Docket No. BCD-CV-14-36 t'
STEVE N. MILLER, MARK K. MILLER and MILLER'S LOBSTER COMPANY, INC.
Defendants
SAM MILLER, INC.,
Nominal Defendant
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants Steve Miller, Mark Miller, and Miller's Lobster Company, Inc. (collectively
"Defendants") move this court for summary judgment against the Plaintiff Alan Miller.
Defendants assert that the applicable statute oflimitations bars all claims set forth in the
Plaintiffs Second Amended Complaint. Plaintiff, on the other hand, contends that his claims
were timely brought because the statute oflimitations has been tolled.
The court elects to decide the Motion without oral argument. See M.R. Civ. P. 7(b)(7).
MATERIAL FACTS
The following summary is taken from the parties' Statements of Material Facts, with
factual disputes noted:
Plaintiff Alan Miller, and Defendants Steve and Mark Miller, are brothers. (Defs.' Supp.
S.M.F. ~ 1; Pl.'s Opp. S.M.F. ~ 1.) In 1968, their father, Luther Miller, purchased the wharf
that is at issue in this lawsuit. (Defs.' Supp. S.M.F. ~ 2; Pl.'s Opp. S.M.F. ~ 2.) In 1978, Steve
Miller, along with another brother who is not a party to this action, established Miller's
1 Lobster Company, Inc. (Miller's Lobster). In 1992, Luther Miller retired from lobster fishing.
At that time, Mark Miller joined his brother Steve Miller as an owner of Miller's Lobster.
(Defs.' Supp. S.M.F. ~ 5; Pl.'s Opp. S.M.F. ~ 5.) Together they have been the sole
shareholders. (Defs.' Supp. S.M.F. ~ 6; Pl.'s Opp. S.M.F ~ 6.) Between 1992 and 1997, Miller's
Lobster continued to use the wharf and continued to pay the real estate taxes, insurance, and
maintenance on the wharf (Defs.' Supp. S.M.F. ~ 7; Pl.'s Opp. S.M.F. ~ 7.)
In 1997, a decision was reached to transfer ownership of the wharffrom Luther Miller
and his wife to Steve, Alan, and Mark Miller. To take ownership of the wharf, the three
brothers formed a new entity known as SAM Miller, Inc. SAM Miller, Inc. was incorporated
on September 2, 1997, and each of the three brothers owns 1/.'3 of the voting shares. (Defs.'
Supp. S.M.F. ~ 8; Pl.'s Opp. S.M.F. ~ 8.) Plaintiff contends that his brothers have been in
control of the corporation by voting their shares together against the Plaintiff (Pl.'s Addt'l
S.M. F.~ 1; Defs.' Rep. S.M. F. ~ 1.)
Also on September 2, 1997, SAM Miller, Inc. executed a promissory note in favor of
Luther Miller in payment for the wharf, and entered in a lease of the wharf to Miller's Lobster.
(Defs.' Supp. S.M.F. ~ 9; Pl.'s Opp. S.M.F. ~ 9.) The lease was for a three-year period, ending
in 2000. SeeAff ofSteve Miller, Ex. E, ~2. Under the terms ofthe 1997lease, Miller's
Lobster was required to pay all real estate taxes, insurance, and maintenance on the wharf, but
was not required to pay rent to SAM Miller, Inc. (Defs.' Supp. S.M.F. ~ 12; Pl.'s Opp. S.M.F.
~ 12.) Also in September 1997, Steve, Alan, and Mark Miller also executed a Cross Purchase
Plan regarding their ownership interests in SAM Miller, Inc. (Defs.' Supp. S.M.F ~ 11; Pl.'s
Opp. S.M.F ~ 11.)
Between 1997 and 2005, the Miller brothers paid their respective one-third shares of the
SAM Miller, Inc.'s promissory note obligation until it was paid off (Defs.' S.M.F ~ 12)
2 Miller's Lobster continued to pay the real estate taxes, insurance, and maintenance on the
wharf, and continued to use the wharf without paying rent to SAM Miller, Inc. for its
occupation and use. (Defs.' Supp. S.M.F ~ 11; Pl.'s Opp. S.M.F ~ II.)
The I997 wharflease expired according to its stated term in September 2000 and was
renewed in 200I by SAM Miller, Inc. (Defs.' Supp. S.M.F. ~ IS.) Plaintiffwas not notified of
the 200I lease renewal. (Pl.'s Opp. S.M.F. ~ IS.) On May I, 2004, the lease was again
renewed, this time for a period of I5 years. 1 (Defs.' Supp. S.M.F. ~ IS.) Steve Miller, as
president of both SAM Miller, Inc. and Miller's Lobster, executed the 2004lease on behalf of
both corporations. Again, Plaintiffreceived no notice of the execution of the 2004lease.
SAM Miller, Inc. entered into the 200I and 2004leases without Plaintiffs knowledge or
consent. Plaintiff further contends that, because he was not properly notified, and no meeting
concerning the corporate decision to renew the lease was held, he did not become aware of the
2004lease and its fifteen-year term until 20I2. (Pl.'s Addt'l S.M.F. ~ 5.) In 20I2, Plaintiff
requested, and was provided with, a copy of the 2004lease renewal. He asserts that only then
did he become aware of the terms of that lease.
The Defendants acknowledge that no formal notice of either of the 200 I lease or the
2004lease was provided to the Plaintiff. (Pl.'s Addt'l S.M.F. ~ 4; Defs.' Rep. S.M.F. ~ 4.)
However, Defendants contend that the Plaintiff knew or should have known that the I997 lease
had been extended because Miller's Lobster continued to occupy the wharf in accordance with
Luther Miller's previous use. (Defs.' Supp. S.M.F. ~ 4.) They also contend that Plaintiffwas
aware that Miller's Lobster was using the wharf exclusively and paying taxes and insurance,
but not paying rent to SAM Miller, Inc. (Defs.' Rep. S.M.F. ~ 5.)
1 Apart from duration, the terms of the May l, 2004 lease were identical to the terms of the September 2, 1997 lease.
3 Plaintiffs response to the Defendants' Statement of Material Facts acknowledges that
Plaintiffwas "fully aware that Miller's Lobster Company, Inc. has been using the wharf
exclusively and paying real estate taxes, insurance and maintenance, and that Miller's Lobster
Company, Inc. has never paid any rent to SAM Miller, Inc.", although Plaintiff qualifies his
response by adding the phrase "despite increasing the extent of its use in terms of seating
capacity and a liquor license." Pl.'s Opp. S.M.F. ~ 17.
The extent to which Plaintiffwas on notice of the 2001 and 2004leases is a disputed
issue offact that the court treats in a light favorable to Plaintiff as the non-moving party.
Accordingly, this Order assumes that Plaintiffhad no actual notice of the 2001 or 2004lease
renewals at the time they occurred, and no knowledge of the terms of the 2004 lease until he
received it in 2012. On the other hand, it is undisputed that the Plaintiffhas known since 1997
that Miller's Lobster has occupied and used the wharf continuously without paying rent to
SAM Miller, Inc.
Upon learning of the 2004lease renewal, Plaintiffrequested that the Defendants
undertake a more equitable arrangement or take action to cause SAM Miller, Inc. to collect
from Miller's Lobster an amount equal to the rent that Plaintiff claims should have been paid
over the years. (Pl.'s Addt'l S.M.F. ~ 13.) Although he contends that SAM Miller received
inadequate compensation for use of the wharf under the 1997lease was inadequate, Plaintiff
asserts that the inadequacy has increased over time, given that Miller's Lobster has grown
markedly since 1997. (Pl.'s Addt'l S.M.F. ~ 12.) For example, he asserts that the
establishment now encompasses over forty tables and owns a liquor license. (Pl.'s Addt'l
S.M.F. ~ 11.)
On or about August 16,2013, Plaintiffmade demand pursuant to 13-C M.R.S. § 753
(2014) that an action be brought by SAM Miller, Inc. against the Defendants for damages. To
4 date, no such action has been brought. (Pl.'s Addt'l S.M.F. ~ 8.) The Defendants refuse to
terminate or modify the lease. Plaintiff contends that given the changing nature ofMiller's
Lobster, the Defendants should make the buyout figure established by previous agreements
more equitable because the original agreement was made when the property had a much lower
value. (Pl.'s Opp. S.M.F. ~ ~ 10, IS.)
STANDARD OF REVIEW
To survive a motion for summary judgment on a claim, "the [party asserting the claim]
must establish a prima facie case for each element of [its] cause of action." Bonin v. Crepeau,
2005 ME 59,~ 8, 87S A.2d S46. Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of
law. M.R. Civ. P. 56( c). A "material fact" is one that can affect the outcome of the case, and a
genuine issue exists when there is sufficient evidence for a factfinder to choose between
competing versions of the fact. See Lougee Conservancy v. CitzMortgage, Inc., 2012 ME lOS,~ 11,
48 A.sd 774. Although parties may differ as to the legal conclusions to be drawn from the
record, summary judgment is proper where the material facts are not in dispute. See S.D.
Warren Co. v. Town of Standish, 1998 ME 66, ~ 9, 708 A.2d 1019. The court views the evidence
in the light most favorable to the non-moving party. Webb v. Haas, 1999 ME 74, ~ 18, 728
A.2d 1261.
DISCUSSION
The issue before the court is to what extent Plaintiffs claims are time-barred by the
statute oflimitations. The parties appear to agree that the applicable statute oflimitation is
six (6) years. 14 M.R.S. § 752 (2014). Generally, "[t]he statute oflimitations is an affirmative
defense and the burden of establishing the expiration of the limitations period is on the party
5 asserting it." See Nuccio v. Nuccio, 67S A.2d ISS I, ISS4 (Me. I996) (citing Kasu Corp. v. Blake,
Hall & Sprague, Inc., 540 A.2d 11I2, IllS (Me. I988)); M.R. Civ. P. 8(c).
Defendants contend that under the applicable statute, Plaintiffs claims became time-
barred, at the latest, after April SO, 20IO, six years after a lease agreement/renewal entered into
by SAM Miller, Inc. on May I, 2004.. Because Plaintiff filed his original Complaint on
February I9, 20 I4, Defendants say this action was commenced almost four years too late.
(Defs. Supp. Mot. 4.)
Plaintiff agrees that the six-year statute applies, but he contends that it has been tolled
on several different grounds. The Law Court has recognized that the applicable statute of
limitations may be tolled based on adverse domination, fraud, and estoppel, all three of which
doctrines are advanced in the Plaintiffs opposition to the Defendant's Motion. The court
addresses each below. Because each ground for tolling may apply independently of the others,
this Order examines all three of the Plaintiffs arguments in opposition.
In the court's view, once the Defendants have made a prima facie showing that the
statute oflimitations applies-meaning a showing that the Plaintiffs claims accrued at a time
outside the six-year limitations period-then the burden shifts to the Plaintiff to make at least a
prima facie showing that the statute has been tolled or for other reasons does not bar his claims.
It must be noted, however, that Plaintiffs tolling argument does not apply to any and
all direct claims of the Plaintiff relating to the shareholder buyout agreement-he has known
the terms of the buyout agreement since signing ofthe Cross Purchase Plan.
Accrual ofthe Plaintiffs Claims
Although not a focus of the parties' briefing, the court deems it appropriate to discuss
briefly the threshold question of when the Plaintiffs claims accrued, because the statute of
limitations clock does not begin ticking until the claim has accrued. The Law Court has said,
6 "The general test for determining when a cause of action accrues is when plaintiff received a
judicially recognizable injury. " McLaughlin v. Superintending Sch. Comm. ofLincolnville, 2003
ME 114, ~ 22, 832 A.2d 782 (internal citations and quotations omitted). Claims for
declaratory relief accrue similarly, with the difference that declaratory reliefrequires a
justiciable controversy that may or may not involve actual injury or loss. See Bog Lake Co. v.
Town ofNorthfield, 2008 ME 37 ~~8-9, 942 A.2d 700, 703-04.
Plaintiffs Second Amended Complaint characterizes his claims as being asserted both
derivatively, on behalfofSAM Miller, Inc., and in his own name. The Second Amended
Complaint allege wrongdoing by the individual Defendants, Mark Miller and Steve Miller, as
follows:
• causing Miller's Lobster, a company owned by the individual Defendants, to occupy the wharf owned by SAM Miller, Inc. rent-free pursuant to a series ofleases dating back to
1997.
• refusing to cancel or modify the current lease to make it fairer to SAM Miller, Inc.
• refusing to renegotiate the shareholder buyout agreement, the interpretation and enforceability ofwhich are the subject of the individual Defendants' declaratory
judgment counterclaim.
Defendants' contention that all ofthe Plaintiffs claims--derivative and in his own
name-are time-barred rests on the fundamental premise that all of the Plaintiffs claims
accrued, at the latest, in 2004 when the wharflease was renewed. Plaintiffs Opposition does
not take issue with that premise. Plaintiff argues that this action is timely, not because his
claims in fact accrued within the six years before the action was commenced, but because the
7 statute oflimitations has been tolled, meaning that, even though his claims accrued more than
six years before the action was filed, the statute has not run so as to bar his claims. 2
Plaintiffs memorandum in opposition also does not contend-nor does it appear-that
any ofhis claims accrued when the Defendants allegedly refused to terminate or modify the
lease or to renegotiate the buyout provision of the Cross Purchase Agreement. Assuming it
happened, Defendants' alleged refusal did nothing to change the status quo. See Bog Lake Co. v.
Town ofNorthfield, supra, 2008 ME S7 at ~8, 942 A.2d at 70S-OS ("The Town's rejection of Bog
Lake Company's request to amend the ordinance did no more than preserve the status quo," and
thus did not reset the limitations clock).
Accordingly, rather than dwell on legal issues not raised, the following analysis focuses
upon the issue raised by the briefs: whether the six-year statute oflimitations has been tolled
on any one or more of three alternative grounds.
Specifically, the Plaintiff does not contend that his direct or derivative claims have accrued within the six- year period prior to the filing of the action under the continuing wrong doctrine, and in fact the doctrine may not apply to these facts. Although the Law Court has recognized the applicability of the continuing wrong doctrine in the context of shareholder derivative claims, see Forbes v. Wells Beach Casino, Inc., 307 A.2d 210, 223-24 (Me. 1973), the court has more recently indicated that the doctrine applies when there is a series of independently actionable tortious acts, see McLaughlin v. Superintending School Comm., 2003 ME 114, 1f23 n.6, 832 A.2d 782, 789 ("The common law continuing tort doctrine may be applied when no single incident in a chain oftort[i]ous activity can fairly or realistically be identified as the cause of significant harm. In such cases, the breach of duty is regarded as a single continuing wrong that terminates when the exposure to the harm terminates) (internal quotes and citation omitted).
Elsewhere, the continuing wrong doctrine has been held not to apply to the performance of an allegedly unfair contract. See Elster v. American Airlines, Del. Ch., 34 Del. Ch. 94, 100 A.2d 219, 224 ( 1953) ("Assuming that the individual defendants did wrong to the Corporation by entering into the contract it does not follow that they committed any wrong in carrying out the contract once it had been made. Indeed, had they not done so, the Corporation would presumably have been subject to liability for breach of contract. The continuing wrong doctrine has been applied to a shareholder derivative suit seeking damages against a majority shareholder based on an unfair contract executed well outside the limitations period, based on the contract being divisible in nature. See Ripley v. International Railways of Central America, 8 N.Y.2d 430, 171 N.E.2d 443, 209 N.Y.S.2d 289 (1960). On the other hand, there is authority that a series of payments made under an allegedly fraudulent lease does not constitute a series of actionable wrongs but instead constitute continuing damages stemming from a single initial wrong. See Quintana v. Wiener, 717 F. Supp. 77, 79-80 (S.D.N.Y. 1989) ("The subsequent rent payments Mr. Quintana made, if improper, amount only to damages stemming from this initial fraud."). By analogy the same conclusion might obtain when the alleged damages stem from the absence of rent payments in an allegedly self- serving lease. See also Schreiber v. Bryan, Del. Ch., 396 A.2d 512, 516 ( 1978)("what must be decided is when the specific acts of alleged wrongdoing occur, and not when their effect is felt."
8 Tolling Based on the Doctrine of Adverse Domination
The doctrine of adverse domination is an equitable doctrine that prevents the running
of the applicable statute oflimitations on a corporation's claim against controlling directors
who have a duty to cause the corporation to institute an action against themselves. See Bates St.
Shirt Co. v. Waite, ISO Me. S52, 156 A.29S (1921). The statute oflimitations is tolled until such
time as the wrongdoers cease to be directors and have given up control of the corporation. Id.
at S58. Because adverse domination prevents a corporation from asserting claims, it applies in
this case only to Plaintiffs derivative claims on behalf of SAM Miller, Inc., and does not apply
to any direct claims of the Plaintiff
"The rationale for the principle is that control of the board by wrongdoers precludes the
possibility for filing suit, and that the controlling parties cannot be expected to sue themselves
or to initiate an action contrary to their own interests." Resolution Trust Corp. v. Grant, 1995
Okla. 68, 901 P.2d 807. Resolution Trust specifically identifies Maine as a jurisdiction that has
adopted the doctrine of adverse domination. I d. at 818 n.l6 (citing Bates Street Shirt Co. v. Waite,
supra.
The Law Court in Bates noted:
The reason and justice of the rule is apparent. Directors have no authority to act for the corporation in matters in which they are personally interested. They owe their whole duty to the corporation and they are not to be permitted to act when duty conflicts with interest. They cannot serve themselves and the corporation at the same time.
I d. (citing European N. A. Ry. Co. v. Poor, 59 Me. 277).
The undisputed facts indicate that the doctrine may fit here. Defendants Steve and
Mark Miller together hold a controlling interest in SAM Miller, Inc. and, in the absence of an
elected board of directors, they act as directors with respect to the corporation. 3 (Defs.' Opp.
:l Defendants contend that the doctrine of adverse domination does not apply to Steve Miller and Mark Miller because they are shareholders, not directors. The SAM Miller, Inc. bylaws provide that the corporation has no board of directors and that shareholders shall manage the business of the corporation. When a corporation
9 S.M. F. ~ ~ 1-3.) They owe statutory and fiduciary duties to the corporation including the
duties of good faith, loyalty, reasonable care, to serve the best interest of the corporation, and to
refrain from self-dealing. See 13-C M.R.S. §§ 83 1-83.'3, 841-843, 871-874 (2014).
Plaintiff contends that the duty the individual Defendants owed to SAM Miller, Inc.
conflicts with their self-interest as shareholders of Miller's Lobster. (Pl.'s Opp. Mot. 5.)
According to the Plaintiff, by extending the lease for such a long period of time and upon
favorable terms to Miller's Lobster, the individual Defendants have enriched themselves at the
expense of, and in violation of their duties toward, SAM Miller, Inc. and derivatively, the
Plaintiff.
Thus, viewing the facts in a light favorable to the Plaintiff, Plaintiff has made at least a
prima facie showing of adverse domination by the Defendants for purposes of tolling the statute
oflimitations on SAM Miller, Inc.'s claims against the Defendants.
However, the issue at hand is not whether SAM Miller, Inc.'s claims are time-barred,
but whether the Plaintiffs derivative claims on behalf of SAM Miller, Inc. are time-barred. The
distinction has a basis in logic-even if a corporation is unable to pursue claims against insiders
because it is dominated by them, the tolling of the limitations period should not necessarily
apply when a shareholder has the requisite information and ability to assert derivative claims.
In Aiello v. Aiello, 447 Mass. 388, 852 N.E.2d 68 (2006), the Supreme Judicial Court of
Massachusetts held that adverse domination must be "complete" in order to toll the limitations
period, meaning that "the statute oflimitations should toll only where a plaintiff can show that
the culpable directors (or officers) completely and exclusively controlled the corporation." 447
Mass. at 404, 852 N.E. 2d at 80. The court explained:
dispenses with a board of directors in favor of management by the shareholders of the corporation, the shareholders have the powers and liabilities of directors. See IS-C M.R.S. § 74S(8)(A)-(B) (2014). Because Plaintiff and the individual Defendants have functioned as directors in the absence of an elected board, the adverse domination doctrine still is applicable.
10 The concerns justifying the application of the adverse domination doctrine are substantially mitigated where an informed, disinterested director is also a shareholder in the corporation. Where such a person could have induced the corporation to sue, it cannot be said that the corporation is barred from seeking redress of the injury to it, and there is no longer a good reason to refuse to impute that person's knowledge of the wrongdoing to the corporation itself.
447 Mass. at 404, 852 N.E.2d at 80-81 (internal quotes and citations omitted).
Although the Maine courts have not addressed the issue, it seems likely that Maine law
takes the same common-sense approach. There is no reason why a corporate shareholder who
has the ability to assert a derivative claim on behalf of the corporation should benefit from
tolling if that person has the knowledge and means needed to assert a derivative claim. A rule
automatically tolling the limitations period for shareholder derivative claims for as long as
there is adverse domination of the corporation would mean that the deadline for asserting
derivative claims could be tolled for decades, especially in the case of closely held corporations
with limited or no turnover on the board.
Here, because SAM Miller, Inc. has no directors, the shareholders function as directors,
and there is no reason why the principle should not apply to Plaintiffs derivative claims. Thus,
the inquiry turns to whether the Plaintiff himself had a sufficient basis on which to pursue his
claims during the six-year limitations period that expired in 2010. If not, then the period is
likely tolled; if not, his derivative claims, as well as his direct claims, are time-barred. Plaintiffs
ability to initiate and sustain litigation is not in question, so the real question is whether he was
on sufficient notice of the claims he now asserts to have been able to pursue them within the
six-year period.
In this case, the Plaintiff is a one-third shareholder with the same duties and obligations
as the Defendants. Plaintiff was privy to and aware of the terms of the original lease executed
in 1997, and knew that it expired in 2000. He also knew that Miller's Lobster has continued to
11 use and occupy the wharffor the 15 years since the 1997lease expired without paying rent to
Thus, the fact that he was never told ofthe 2001 and 2004lease renewals-assuming it
is a fact-is immaterial, because he knew all along that SAM Miller, Inc. was receiving no rent
for Miller Lobster's continuing use of the wharf, and thus knew that SAM Miller, Inc. had a
potential claim against Miller's Lobster for the value of the use of the wharf If Plaintiff indeed
had no knowledge ofthe 2001 or 2004leases, then from his standpoint Miller's Lobster had no
right to occupy the wharf rent-free after the 1997lease expired according to its terms.
For these reasons, the court concludes that, even if SAM Miller, Inc. has been adversely
dominated by the individual Defendants, the statute oflimitations has not been tolled as to
Plaintiffs claims to the extent they seek relief based on wrongful acts by the individual
Defendants occurring more than six years before the action was filed, such as relief invalidating
the lease ab initio and seeking damages on behalf of SAM Miller, Inc. ab initio.
Tolling Based on Fraud
The Law Court in Bates stated:
As a general rule, the statute oflimitations begins to run against an action against directors of corporations for their malfeasance or nonfeasance from the time of the perpetration of the wrongs complained of This does not apply in cases offraudulent concealment, when the statute does not commence to run until discovery or until the time prior thereto when the exercise of reasonable vigilance would have disclosed the facts ...
Bates St. Shirt Co. v. Waite, 130 Me. 352,353, 156 A. 29.3, 295 (19.31). 4
4 Pursuant to 14 M.R.S. § 859 (2014):
If a person, liable to any action mentioned, fraudulently conceals the cause thereof from the person entitled thereto, or if a fraud is committed which entitles any person to an action, the action may be commenced at any time within 6 years after the person entitled thereto discovers that he has just cause of action, except as provided in section 3580.
See also Bornstein v. Poulos, 793 F.2d 444, 446 (1st Cir. 1986) ("Maine's discovery statute provides that in a case of fraud or fraudulent concealment, an action may be commenced at any time within six years after the person entitled thereto discovers that he has a cause of action.").
12 Fraud or fraudulent concealment can toll the statute oflimitations on both the direct
claims and the derivative claims asserted by Plaintiff in this case. However, the summary
judgment record does not support Plaintiffs tolling argument as to either his direct claims or
his derivative claims.
Even assuming the Defendants executed a renewal of the lease agreement without
notifying the Plaintiff of the corporate action, as mentioned above, not disclosing something is
not tantamount to fraudulent concealment. Plaintiffis a one-third shareholder with the same
duties and obligations as the Defendants. He, too, functions as a director of SAM Miller, Inc.
Plaintiffwas privy to and aware of the terms of the original lease executed in 1997 and knew it
had expired as of September 2000. He thus knew that Miller's Lobster continued to use and
occupy the wharf on some basis-leasehold or otherwise-without paying any rent. In sum,
the material fact that is the basis for all of SAM Miller's potential claims against the Defendant,
and the basis for all of the Plaintiffs derivative claims-that Miller's Lobster had never paid
rent to SAM Miller, Inc. for use and occupancy ofthe wharf-was known to Plaintiff at all
pertinent times. Moreover, the Plaintiffhas not made
The Plaintiff argues that the Defendants' "omission by silence" is enough to establish
fraud by concealment. See Glynn v. Atlantic Seaboard Corp., 1999 ME 53, ~ 12, 728 A.2d 117
(When a "special relationship" exists, that is a fiduciary relationship, "omission by silence may
constitute the supplying offalse information."). However, an inference offraud arises where the
defendant knows particular facts and does not disclose them causing the plaintiff to rely on
those facts. See id. ~ 13, 728 A.2d 117. However, in this case, even assuming the individual
Defendants failed to appropriately notify the Plaintiff of the two renewals of the wharflease,
there is no indication in the summary judgment record that they or Miller's Lobster misled
13 Plaintiff--he knew or should have known that Miller's Lobster was using the wharf without
paying rent. In turn, there is no indication that Plaintiff in fact relied on any act or omission of
the Defendants. According, the Plaintiff has not shown that the limitations period was tolled
as a result offraud on the part of the Defendants.
S. Estoppel
"In cases of equitable estoppel, the statute oflimitations has expired and the defendant
asserts the running of the statute ... as a defense. The defendant ... is estopped from
benefitting from the ... defense because the defendant has acted in such a way as to cause the
claimant to forego filing a timely ... action." Dasha v. Maine Med. Ctr., 665 A.2d 993,995 n.2
(Me. 1995) (internal citations omitted). The Law Court has noted:
The gist of an estoppel barring the defendant from invoking the defense of the statute of limitations is that the defendant has conducted himself in a manner which actually induces the plaintiff not to take timely legal action on a claim. The plaintiff thus relies to his detriment on the conduct of the defendant, by failing to seek legal redress while the doors to the courthouse remain open to him.
Dugan v. Martel, 588 A.2d 744, 747 (Me. 1991).
In this case, the summary judgment record does not indicate that any conduct by the
Defendants actually induced the Plaintiff to delay bringing suit. Rather, the record indicates
that, as far as the Plaintiff knew (assuming he was never notified of the two renewals of the
lease) the Defendants' company, Miller Lobster, openly continued to occupy the wharfwithout
paying rent and with no valid lease or other right to do so. Thus, the Defendants are not
estopped from asserting the statute oflimitation as an affirmative defense.
CONCLUSION
Based on all of the Plaintiffs claims having accrued more than six years before this
action was brought, and based on the six-year statute oflimitations having not been tolled
14 during that six-year period, the statute oflimitations has run and the Plaintiffs claims are
barred. Defendants' Motion for Summary Judgment is GRANTED.
The Clerk will schedule a telephonic conference of counsel to discuss the schedule for
the remainder of the case.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by
reference in the docket. ~~:t. /-/:;; d~~~./ /{// / / ' .. . , ~{/ / \..._./ Dated August 7, 2015 A.M. Horton, Justice Business and Consumer court
15 Alan S. Miller v. Steve N. Miller, et al.
BCD-CV-14-36
Alan S. Miller, Counsel: William Welte, Esq. 13 Wood St. Camden, ME 04843
Defendants ·
SteveN. Miller, Mark K. Miller, Counsel: Christopher MacLean, Esq. 20 Mechanic St. Camden, ME 04843
Miller's Lobster Company, Counsel: Wayne Crandall, Esq. 10 School St. PO Box 664 Rockland, ME 04841
SAM Miller, Inc., Counsel: joseph Baiungo, Esq. 111A Church St. Belfast, ME 04915