Newbury v. Virgin

2002 ME 119, 802 A.2d 413, 2002 Me. LEXIS 130
CourtSupreme Judicial Court of Maine
DecidedJuly 30, 2002
StatusPublished
Cited by17 cases

This text of 2002 ME 119 (Newbury v. Virgin) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newbury v. Virgin, 2002 ME 119, 802 A.2d 413, 2002 Me. LEXIS 130 (Me. 2002).

Opinion

CLIFFORD, J.

[¶ 1] Justin Newbury appeals from a judgment entered in the Superior Court (Kennebec County, Harden, J.) against Howard Virgin for illegal eviction and conversion of personal property. Pursuant to M.R. Civ. P. 50(b) the court, concluding that the evidence was insufficient as a matter of law, vacated that part of the jury verdict awarding Newbury consequential damages for lost profits and punitive damages. Following the court’s action, the judgment in favor of Newbury was limited to compensatory damages for conversion, and damages and attorney fees for the illegal eviction. Newbury contends that the court erred because the evidence, viewed in a light most favorable to him, was sufficient to support a jury finding-that Newbury was entitled to recover damages for lost profits, and a finding that Virgin acted with malice, entitling New-bury to punitive damages. We vacate the court’s judgment.

[415]*415[¶ 2] The evidence, viewed in a light most favorable to Newbury, establishes the following facts: During and following college, Newbury worked at over a dozen nightclubs in a variety of capacities. He developed familiarity with inventory, cash flow, and the financial aspects of clubs and bars. He also ran a successful disk jockey business while living in Maine.

[¶ 3] After saving his money for more than two years, Newbury decided to open a chemical-free dance club in Augusta, which he eventually named “Club Xtrem-is.” Using an employee manual and business plan he obtained from his previous work in the nightclub industry, and relying on his own knowledge and experience, he created a business plan for Club Xtremis. Newbury agreed to rent space for the nightclub from Virgin at a property located at 333-339 Water Street for $93 per week, with the first six weeks of rent being waived because Newbury had to clean-up and repair the leased premises.

[¶4] Virgin is an experienced landlord who has owned as many as forty residential and commercial rental properties at one time. He has a law degree, has worked in the real estate business for over fifty years, is knowledgeable about landlord-tenant relationships, and is familiar with leases, including lease agreements similar to his agreement with Newbury. Virgin is familiar with the forcible entry and detainer procedures for evicting tenants.

[¶ 5] During the initial six weeks of the lease, Newbury, along with family, friends, and volunteers, worked long hours cleaning and repairing the property, and preparing it for the chemical-free dance club. Newbury leased personal property and equipment for the club, such as chairs, tables, dishes, sinks, and a security system. He also obtained the required licenses and certificates for opening a dance club.

[¶ 6] Club Xtremis opened for business on October 15, 1998. The club was an immediate success, drawing 120 patrons on the first evening, a Friday, and 150 people on the following evening. The club sustained its success over the next couple of weekends, hosting even larger crowds. In its first three weekends, Club Xtremis generated gross revenues totaling more than $4600. The revenue generated within the first three weeks of business allowed Newbury to recover all the costs he incurred in creating and starting the business. Newbury testified that he would have been able to sustain the revenues he received during the first three weeks of business indefinitely, revenues that essentially amounted to a net profit of $350 per week.

[¶ 7] On Saturday, October 31, 1998, Newbury tendered a check to Virgin for the upcoming week’s rent and the prior month’s electric bill. The next morning, Newbury went back to Club Xtremis to clean-up. When he arrived at the club, Newbury found a note on the door written by Virgin, stating that the locks were changed and that Newbury would have to contact Virgin at his Florida residence in order to get into the building. The note listed Virgin’s telephone number in Florida. Virgin had left for Florida immediately after changing the locks on the club. Virgin had long standing plans to leave for Florida on that Sunday, but never gave Newbury any prior notice that he was going to lock Newbury out.

[¶ 8] Newbury reached Virgin by telephone in Florida that day. Virgin refused to discuss the matter and hung up on him. Only after Newbury’s mother called and pleaded with Virgin to let her son retrieve his personal items, such as his insulin to treat his diabetes, did Virgin send a key to [416]*416Justin Roy, a tenant of Virgin who managed Virgin’s property. It was not until November 5 that Newbury was able to get back into the club, and even then, New-bury was allowed to retrieve only his personal financial records, money that was in the cash box, personal tools and disk jockey items, and his insulin. Roy, at Virgin’s direction, refused to allow Newbury to retrieve any of his business equipment at that time. Newbury was unable to regain possession of his business equipment until the third week of November. Virgin returned the week’s rent paid by Newbury via postal mail sometime during the first week of November.

[¶ 9] Prior to Club Xtremis’s opening, Roy and Virgin had discussed the possibility of Roy running his own dance club where Club Xtremis was located. Virgin had even purchased an insurable interest in Roy’s disk jockey equipment to help Roy with his plans. Virgin testified that he had become “pretty well upset” with Newbury because Newbury was not operating the club in the manner Virgin wanted. After Newbury was locked out, Roy obtained a dance license for a club at the same location as Club Xtremis.

[¶ 10] In December of 1998, in an attempt to sustain the momentum generated, by Club Xtremis, Newbury opened another club called Club Fusion located at 349 Water Street. Newbury could not open Club Fusion earlier because of the delay he incurred in reacquiring his business equipment. Club Fusion did not generate the business generated at Club Xtremis before the lock out, and Club Fusion was eventually shut down.

[¶ 11] Newbury brought suit against Virgin for illegal eviction and for conversion of Newbury’s property during the course of the illegal eviction. Virgin acted pro se at the trial. Following the close of the evidence, pursuant to M.R. Civ. P. 50(a), the trial court granted Newbury’s request for a directed verdict on Virgin’s liability for the illegal eviction. The trial court also stated that although it was going to let the jury consider lost profits and punitive damages claimed by Newbury, it intended to vacate any such awards and direct verdicts in favor of Virgin.

[¶ 12] With a special verdict form, the jury returned a verdict for Newbury awarding $4575 as damages on the illegal eviction, $3500 for conversion of the property, $52,000 for subsequent lost profits and earnings from the temporary loss of use of Newbury’s property, and $25,000 in punitive damages. Following the jury’s verdict, without any request from Virgin, and based on what it considered to be insufficient evidence, pursuant to M.R. Civ. P. 50(b) the trial court vacated the damages awarded by the jury for lost profits, and also vacated the award for punitive damages. The court then entered a judgment on the verdict, awarding Newbury $8075 in damages for the eviction and conversion, and $16,542 in attorney fees and $1603.24 in court costs on his illegal eviction claim. See 14 M.R.S.A. § 6014(2)(B) (Supp.2001) (attorney fees may be awarded to tenant illegally evicted).

[¶ 13] Newbury appealed. Virgin filed no notice of appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
2002 ME 119, 802 A.2d 413, 2002 Me. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newbury-v-virgin-me-2002.