Online Transp., Inc. v. Forest Mansur

• Court: Superior Court of Maine
• Decided: October 14, 2010
• Docket: YORcv-09-189
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-09-189 l::.:i Ij-'Utl - '/0 f,- I 0': I ,! 'f/ Cl v iJ

ONLINE TRANSPORT, INC.,

Plaintiff

v. ORDER

FOREST MANSUR d / b / a HERITAGE MEMORIALS

and

OCEAN VIEW CEMETARY,

Defendants

Plaintiff Online Transport, Inc., brought this action against defendants Forest

Mansur and Ocean View Cemetery after they allegedly trespassed onto Online

Transport's property, removed a stone wall, and then converted the stones to their own

use. Mr. Mansur and Ocean View each move for summary judgment. Following

hearing, the Motions will be Granted.

BACKGROUND Ocean View Cemetery operates a cemetery located on Post Road in Wells, Maine.

(Supp. S.M.F. en: 2.) Online Transport, Inc., is a real estate holding corporation that

acquired property adjacent to Ocean View's cemetery on February 28, 2000. (Supp.

S.M.F. en:en: 3, 5-6.) A stone wall existed at or near the boundary between the cemetery

and Online Transport's property until October 2007, when Ocean View hired Forest

Mansur to remove it. (Supp. S.M.F. en:

Ocean View and Mansur assert that the wall was located entirely on Ocean View's

property and have provided uncontroverted evidence supporting their position. (Supp.

S.M.F. 9I 8.)

Acting through its attorney, Online Transport filed its five-count complaint

against the defendants on June 12, 2009. Online Transport accused the defendants of

both statutory and common-law trespass, conversion of the granite stones in the wall,

negligence, and malicious intent warranting punitive damages. Ocean View responded

with a counterclaim for declaratory judgment. Counsel withdrew from representation

of Online Transport on January 28, 2010, due to fundamental disagreements between

himself and his client. Online Transport has not obtained new counsel, and has

proceeded pro se through Richard Lambert, its president, principal and sole office

holder. (Supp. S.M.F. 9I 4.)

On March 10, 2010, Ocean View filed its motion for summary judgment in

accordance with Rule 56 of the Maine Rules of Civil Procedure. It argues that the stone

wall was entirely on its property, and Online Transport consequently has no claim. Mr.

Mansur joined in Ocean View's motion on March 22, 2010. Online Transport filed its

timely opposition on April 1, 2010, through its president Mr. Lambert. While this

opposition was accompanied by survey plats and Mr. Lambert's affidavit, it did not

include "a separate, short, and concise opposing statement" of material facts admitting,

qualifying, or denying the defendants' assertions. M.R. Civ. P. 56(h)(2) (2009).

The defendants replied, prompting Online Transport to submit a "Revised

Objection to Defendant's Motion for Summary Judgment" which included within it

numbered responses to the defendants' statements of fact. These responses were not

contained in a separate document, and were not supported by citations to admissible

2 evidence in the record. M.R. Civ. P. 56(h)(2) (2009). They also explicitly do not dispute

the defendants' statement that: "No portion of the disputed stone wall existed on

Online Transport property." (Supp. S.M.F. <[ 8.)

DISCUSSION

Before the court can address the defendants' motions for summary judgment it

must address the preliminary issue of Online Transport's representation in this case.

Mr. Mansur correctly argues in his reply that a corporate entity may only appear in

court through a licensed attorney. Spickler v. Dube, 644 A.2d 465, 468 n.6 (Me. 1994);

Land Management, Inc. v. Dept. of Envtl. Prot., 368 A.2d 602, 603 (Me. 1977). Corporate

plaintiffs may not represent themselves pro se through their officers or board members

because doing so would allow non-attorneys to practice law on behalf of another in

violation of 4 M.R.S.A. § 807 (2009). Land Management, Inc., 368 A.2d at 603. This means

that Mr. Lambert cannot represent Online Transport in this court, and all of Online

Transport's filings made after its attorney withdrew are null and void. Id. at 604. These

are primarily the filings related to the defendants' motions for summary judgment.

Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c);

see also Levine v. R.B.K. Caly Corp., 2001 ME 77, <[ 4, 770 A.2d 653, 655. "A party opposing

a motion for summary judgment shall submit with its opposition a separate, short, and

concise opposing statement ... [that] shall admit, deny or qualify the facts asserted ...

[and] shall support each denial or qualification by a record citation ...." M.R. Civ. P.

56(h)(2) (2009). Factual assertions that are supported by a citation to admissible

evidence "shall be deemed admitted unless properly controverted." M.R. Civ. P. 56

(h)(4) (2009).

3 Online Transport did not submit any cognizable opposition to Mr. Mansur's and

Ocean View's motions for summary judgment because it cannot proceed pro se as a

corporation, and its filings were not signed by a licensed attorney. The opposition that it

did file failed to include a separate statement of facts admitting or denying the

defendants' assertions, and at one point expressly admitted that the stone wall in

controversy was entirely on Ocean View's property. Online Transport failed to

controvert any of the defendants' statements of fact, so they are all deemed admitted if

properly supported by admissible evidence. Ocean View supports its facts with

citations to deeds, survey plats, and the affidavit of its expert surveyor. All of this

evidence appears to be admissible, so all of Ocean View's factual assertions are deemed·

admitted.

The uncontroverted record shows that the stone wall was entirely on Ocean

View's property. Without a property interest in the wall or the stones within it, Online

Transport has suffered no cognizable injury from its removal and has no basis for its

claims of trespass, conversion, negligence, or punitive damages. Further, Ocean Views'

Motion for Summary Judgment on its claim for Declaratory Judgment is Granted.

CONCLUSION

The court Grants Ocean View's and Mr. Mansur's motions, and enters judgment

in their favor on all counts of Online Transport's complaint, and Summary Judgment

for Ocean View on its counterclaim. Counsel for Ocean View may prepare a judgment

suitable for filing in the registry of deeds.

Dated: October 1(,2010

4 PLAINTIFF PRO SE: ONLINE TRANSPORT INC 1501 POST ROAD WELLS ME 04090

ATTORNEY FOR DEFENDANT OCEAN VIEW CEMETERY: RONALD BOURQUE, ESQ. BOURQUE & CLEGG PO BOX 1068 SANFORD ME 04073

H PETER DEL BIANCO, ESQ. LAMBERT COFFIN PO BOX 15215 PORTLAND ME 04101-5215

ATTORNEY FOR DEFENDANT FOREST MANSUR DBA HERITAGE MEMORIALS: FREDERICK MOORE, ESQ. LAW OFFICES OF FREDERICK C MOORE 511 CONGRESS ST 4TH FL PORTLAND ME 04101