STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. RE-09-081 p~ F - 'lOt!.. ~ 1 1 ,'~~.; 11 0 THE LOUGEE CONSERVANCY, et al.,
Plaintiffs
v. DECISION AND ORDER ON PENDING MOTIONS
CITIMORTGAGE, INC., et al.,
Defendants
I. INTRODUCTION
The Lougee Conservancy, Eleanor Lougee Chapin, David Chapin and Arthur
James Chapin have brought a seven count first amended complaint for compensatory
and punitive damages against CitiMortgage, Inc., Safeguard Properties, LLC and
Shelley Alley and David Alley doing business as D & S Properties.
The Lougee Conservancy is a non-revocable trust on North Road in Parsonsfield
formed in 1964, which holds title to nearly 600 acres of land. The property includes
several structures including a building known as the Lougee Homestead. The various
buildings, including a barn, contain a large number of items which have been in the
Lougee family for multiple generations. The property is clearly posted with no
trespassing signs and is not and has not been encumbered by a mortgage.
In December of 2008 CitiMortgage began a foreclosure action against property
owned by an Adrienne Northrup located at 515 North Road in North Parsonsfield some
4 miles away from the Lougee property. CitiMortgage had requested that Safeguard
lexamine the properly. Safeguard, which has its headquarters in Ohio, later engaged the Alleys who are based in Waterboro to actually enter and secure the property at 515
North Road after it appeared to Safeguard that the property was vacant and
abandoned.
D & S however improperly entered the Lougee property about March 24, 2009,
removed and changed some locks, opened a number of drawers, closets and containers,
examined much of the contents of the property, allegedly ransacked the property and
may have damaged some of the personal property. No property was removed. Once
this entry was discovered on April 2, 2009 by Arthur James Lougee who lived in a
nearby but separate building on the Conservancy property, the Sheriff's department
was contacted which in turn contacted D & S. As soon as D & S was informed of its
error the locks were promptly removed. This suit followed. After extensive discovery
three motions have been filed, comprehensively briefed and fully argued. D & S has
filed for partial summary judgment, while Safeguard and CitiMortgage have filed for
summary judgment. As was done at oral argument I will consider each of the seven
counts in turn and then discuss whether Safeguard or CitiMortgage are potentially
liable for the actions of D & S.
II. COUNTS I AND II - TRESPASS COUNTS
Count I alleges a common law trespass, while Count II sought damages for
statutory trespass pursuant to 14 M.R.S.A. §§7551-B. The plaintiffs have indicated that
they are not seeking damages for emotional distress pursuant to either Count I or Count
II. Once the evidence has been presented at trial I can determine whether the trespass
claims belong only to the Conservancy or whether any of the individual plaintiffs have
a claim. It appears that either the entire trespass claim or at least the majority of it
belongs to the Conservancy, as the owner of the property, and not the individuals.
2 III. COUNT III - INVASION OF PRIVACY
In Count III the plaintiffs "claim that the property was a place of solitude and
seclusion, that the buildings contained personal and private property and that they had
a reasonable expectation of privacy. None of the individuals resided in any building
that was entered and most of the personal property belonged to the Conservancy rather
than the individuals. The Conservancy property was certainly private and was used in
part to store the family's antiques, family memorabilia and a variety of items
accumulated by multiple generations of the family. It was agreed that the Lougee
Conservancy, as a trust, cannot maintain a claim for invasion of privacy. The question
is whether any of the three individuals, one who lives in a non-entered separate
building on the property, one who resides in a nearby town, and one who lives in
California may bring this claim.
In Estate of Berthiaume v. Pratt, 365 A.2d 792, 795 (Me. 1976) the Law Court
recognized a "right to privacy", at 794, and held that the law of privacy addressed "four
distinct interests of the individual." It held that, "Each of the four different interests,
taken as a whole, represent an individual's right 'to be let alone'." The Court further
stated that, "These four kinds of invasion are:
(1) intrusion upon the plaintiff's physical and mental solitude or seclusion;
(2) public disclosure of private facts;
(3) publicity which places the plaintiff in a false light in the public eye;
(4) appropriation for the defendant's benefit or advantage of the plaintiff's name or likeness.
Only the first prong, an intrusion upon the plaintiff's physical and mental solitude or
seclusion, applies in this case. The Berthiaume case quoted Prosser at Law of Torts, 804
(4 th Ed. 1971) where he stated, in part, " ... the first and second require the invasion of
something secret, secluded or private pertaining to the plaintiff."
3 In Nelson v. Maine Times, 373 A.2d 1221 (Me. 1977) the Law Court addressed a
claim by a member of the Penobscot Tribe who objected to the publication of a
photograph of her infant son without her permission. The Law Court discussed three
of the four types of invasion of privacy. In discussing an intrusion upon the seclusion
of another the Law Court referred to the Restatement (Second), Torts §652B. That
Section states, "One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is subject to liability to
the other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person." The section creates liability for either the intrusion upon the
soli tude or seclusion of a person or the intrusion into his or her private affairs. Any" ...
interference with a plaintiff's seclusion must be a substantial one, of a kind that would
be highly offensive to the ordinary reasonable man, as the result of conduct to which
the reasonable man would strongly object." Comment d.
The Law Court, at 1223, also referred to Froelich v. Werbin, 219 Kan. 461, 548 P. 2d
482, 5 (1976) and the Restatement for the proposition that, "a complaint should
minimally allege a physical intrusion upon premises occupied privately by a plaintiff
for purposes of seclusion."
While the Lougee family members certainly had every right to expect that the
Conservancy's and their desire for privacy would be respected the entry was into
property owned by the Conservancy. None of the plaintiffs resided in any of the
property that was entered and the items that were looked at primarily belonged to the
Trust. I have carefully reviewed Section 652B, its comments and examples, and do not
find that the trespass, while certainly wrong and certainly offensive, also constitutes an
invasion of privacy by intrusion upon seclusion.
4 The plaintiffs have cited Muratore v. MiS Scotia Prince, 656 F.5upp.
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STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. RE-09-081 p~ F - 'lOt!.. ~ 1 1 ,'~~.; 11 0 THE LOUGEE CONSERVANCY, et al.,
Plaintiffs
v. DECISION AND ORDER ON PENDING MOTIONS
CITIMORTGAGE, INC., et al.,
Defendants
I. INTRODUCTION
The Lougee Conservancy, Eleanor Lougee Chapin, David Chapin and Arthur
James Chapin have brought a seven count first amended complaint for compensatory
and punitive damages against CitiMortgage, Inc., Safeguard Properties, LLC and
Shelley Alley and David Alley doing business as D & S Properties.
The Lougee Conservancy is a non-revocable trust on North Road in Parsonsfield
formed in 1964, which holds title to nearly 600 acres of land. The property includes
several structures including a building known as the Lougee Homestead. The various
buildings, including a barn, contain a large number of items which have been in the
Lougee family for multiple generations. The property is clearly posted with no
trespassing signs and is not and has not been encumbered by a mortgage.
In December of 2008 CitiMortgage began a foreclosure action against property
owned by an Adrienne Northrup located at 515 North Road in North Parsonsfield some
4 miles away from the Lougee property. CitiMortgage had requested that Safeguard
lexamine the properly. Safeguard, which has its headquarters in Ohio, later engaged the Alleys who are based in Waterboro to actually enter and secure the property at 515
North Road after it appeared to Safeguard that the property was vacant and
abandoned.
D & S however improperly entered the Lougee property about March 24, 2009,
removed and changed some locks, opened a number of drawers, closets and containers,
examined much of the contents of the property, allegedly ransacked the property and
may have damaged some of the personal property. No property was removed. Once
this entry was discovered on April 2, 2009 by Arthur James Lougee who lived in a
nearby but separate building on the Conservancy property, the Sheriff's department
was contacted which in turn contacted D & S. As soon as D & S was informed of its
error the locks were promptly removed. This suit followed. After extensive discovery
three motions have been filed, comprehensively briefed and fully argued. D & S has
filed for partial summary judgment, while Safeguard and CitiMortgage have filed for
summary judgment. As was done at oral argument I will consider each of the seven
counts in turn and then discuss whether Safeguard or CitiMortgage are potentially
liable for the actions of D & S.
II. COUNTS I AND II - TRESPASS COUNTS
Count I alleges a common law trespass, while Count II sought damages for
statutory trespass pursuant to 14 M.R.S.A. §§7551-B. The plaintiffs have indicated that
they are not seeking damages for emotional distress pursuant to either Count I or Count
II. Once the evidence has been presented at trial I can determine whether the trespass
claims belong only to the Conservancy or whether any of the individual plaintiffs have
a claim. It appears that either the entire trespass claim or at least the majority of it
belongs to the Conservancy, as the owner of the property, and not the individuals.
2 III. COUNT III - INVASION OF PRIVACY
In Count III the plaintiffs "claim that the property was a place of solitude and
seclusion, that the buildings contained personal and private property and that they had
a reasonable expectation of privacy. None of the individuals resided in any building
that was entered and most of the personal property belonged to the Conservancy rather
than the individuals. The Conservancy property was certainly private and was used in
part to store the family's antiques, family memorabilia and a variety of items
accumulated by multiple generations of the family. It was agreed that the Lougee
Conservancy, as a trust, cannot maintain a claim for invasion of privacy. The question
is whether any of the three individuals, one who lives in a non-entered separate
building on the property, one who resides in a nearby town, and one who lives in
California may bring this claim.
In Estate of Berthiaume v. Pratt, 365 A.2d 792, 795 (Me. 1976) the Law Court
recognized a "right to privacy", at 794, and held that the law of privacy addressed "four
distinct interests of the individual." It held that, "Each of the four different interests,
taken as a whole, represent an individual's right 'to be let alone'." The Court further
stated that, "These four kinds of invasion are:
(1) intrusion upon the plaintiff's physical and mental solitude or seclusion;
(2) public disclosure of private facts;
(3) publicity which places the plaintiff in a false light in the public eye;
(4) appropriation for the defendant's benefit or advantage of the plaintiff's name or likeness.
Only the first prong, an intrusion upon the plaintiff's physical and mental solitude or
seclusion, applies in this case. The Berthiaume case quoted Prosser at Law of Torts, 804
(4 th Ed. 1971) where he stated, in part, " ... the first and second require the invasion of
something secret, secluded or private pertaining to the plaintiff."
3 In Nelson v. Maine Times, 373 A.2d 1221 (Me. 1977) the Law Court addressed a
claim by a member of the Penobscot Tribe who objected to the publication of a
photograph of her infant son without her permission. The Law Court discussed three
of the four types of invasion of privacy. In discussing an intrusion upon the seclusion
of another the Law Court referred to the Restatement (Second), Torts §652B. That
Section states, "One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is subject to liability to
the other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person." The section creates liability for either the intrusion upon the
soli tude or seclusion of a person or the intrusion into his or her private affairs. Any" ...
interference with a plaintiff's seclusion must be a substantial one, of a kind that would
be highly offensive to the ordinary reasonable man, as the result of conduct to which
the reasonable man would strongly object." Comment d.
The Law Court, at 1223, also referred to Froelich v. Werbin, 219 Kan. 461, 548 P. 2d
482, 5 (1976) and the Restatement for the proposition that, "a complaint should
minimally allege a physical intrusion upon premises occupied privately by a plaintiff
for purposes of seclusion."
While the Lougee family members certainly had every right to expect that the
Conservancy's and their desire for privacy would be respected the entry was into
property owned by the Conservancy. None of the plaintiffs resided in any of the
property that was entered and the items that were looked at primarily belonged to the
Trust. I have carefully reviewed Section 652B, its comments and examples, and do not
find that the trespass, while certainly wrong and certainly offensive, also constitutes an
invasion of privacy by intrusion upon seclusion.
4 The plaintiffs have cited Muratore v. MiS Scotia Prince, 656 F.5upp. 471, 483
(D.Me. 1987) which involved, in part, the plaintiff's unsuccessful "intrusion upon
seclusion" privacy claim. That opinion does change the outcome in this case.
IV. COUNT IV - CONVERSION
Count IV seeks damages for conversion because of the temporary control over
personal property between March 24, 2009 and April 2, 2009. This count fails in large
part as to the individual plaintiffs as the Conservancy owned most of the personal
property. It fails fully as to all plaintiffs. The Restatement (Second) of Torts §222A
defines conversion as the " ... intentional exercise of dominion or control over a chattel
which so seriously interferes with the right of another to control it that the actor may
justly be required to pay the other the full value of the chattel." "In determining the
seriousness of the interference and the justice of requiring the actor to pay the full value,
the following factors are important: (a) the extent and duration of the actor's exercise of
dominion or control; ... (d) the extent and duration of the resulting interference with the
other's right of control; (e) the harm done to the chattel; (f) the inconvenience and
expense caused to the other."
A claim for conversion does not fit this case where the duration of the wrongful
dominion and control was brief, little if any harm was done to the chattels and the
inconvenience and expense were minimal. A successful claim for conversion would
produce the ironic result that the defendants, upon satisfaction of judgment on a
conversion count, would own the property. They would " ... in effect (be) required to
buy it .... " See comment C. Also see illustration 12.
V. COUNT V - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The Conservancy itself cannot bring this claim, but it is potentionally available to
each of the three individual plaintiffs.
5 This claim was most recently extensively discussed by the Law Court in the case
of Lyman v. Huber, 2010 ME 139 (Dec. 28, 2010) where the Law Court reversed a
substantial award for the intentional infliction of emotional distress involving a plaintiff
who suffered for over a decade from a psychological and emotionally abusive
relationship. The Law Court at <[16 restated the requirements for recovery. They
include the requirement that the defendant intentionally or recklessly inflicted severe
emotional distress or was certain or substantially certain that such distress would result;
that the conduct was so extreme and outrageous as to exceed all possible bounds of
decency and must be regarded as atrocious and utterly intolerable in a civilized
community; that the actions of the defendant caused emotional distress to the plaintiff;
and that the emotional distress was so severe that no reasonable person could be
expected to endure it." See Curtis v. Porter, 2001 ME 158, <[10, 784 A.2d 18,22-3.
There is no indication that D & S intentionally inflicted severe emotional distress,
but the evidence could support a claim that it did so recklessly given the uncertainty as
to whether it was entering the correct property. The entry of an unoccupied property,
the inspection of it and even the examination of the private contents of the property,
while wrong, do not exceed all possible bounds of decency and are not atrocious and
utterly intolerable.
All plaintiffs suffered emotional distress but of varying degrees. However, the
claim also fails for all three individuals as it was not so severe that no reasonable person
could be expected to endure it. The focus must be on the "reasonable person" not on an
individual who may be more sensitive or more vulnerable than the average person.
Unoccupied property was entered in error, nothing was stolen, items were not
deliberately damaged and the error was promptly corrected.
6 VI. COUNT VI - PUNITIVE DAMAGES
The plaintiffs have understandably sought punitive damages perhaps, in part, to
reflect an ongoing national concern over a variety of misconduct in some cases by some
members of the financial services industry. To prevail on a punitive damage claim the
plaintiffs must establish by clear and convincing evidence, that it is highly probable,
that D & S acted with malice or implied malice.
A mistake was clearly made and sufficient care was not taken. D & S decided,
after attempting to but not conclusively determining where the property was, to
proceed anyway. There was confusion in a rural area, where neither property was
numbered, where a neighbor was not sure and where conflicting information was being
provided. However there was no malice which requires a finding of ill will.
Carelessness certainly. Inattention to detail certainly. But no malice.
Likewise there is no implied malice which, as stated by Justice Alexander at
Instruction 7-114 in Maine Jury Instruction Manual, Fourth Edition, means " ... that the
defendant engaged in deliberate conduct which, while motivated by something other
than ill will toward any particular person, is so reprehensible that malice toward a
person injured as a result of the conduct can be implied."
It is true that purposes of awarding punitive damages are to deter the repetition
of such conduct and to force individuals and corporations to change their ways.
Portions of the banking industry and certain practices need reformation. We also wish
to deter negligent driving and, even more importantly, operating under the influence.
But the existence of a wrong, in the absence of malice or implied malice, does not permit
the possibility of punitive damages. The conduct of D & S in entering was neither
malicious nor "so reprehensible that malice ... can be implied."
7 VII. COUNT VII - NEGLIGENCE
In this final count the plaintiffs seek damages for negligence. The trespass counts
will permit recovery for the limited types of damages available to the plaintiffs. In
summary, judgment will be entered for all defendants on Counts III - VII of the first
amended complaint.
VIII. MOTION OF SAFEGUARD FOR SUNIMARY JUDGMENT
Safeguard claims to be an independent contractor and thus not liable for any
actions of D & S. Given Safeguard's involvement with D & S and their combined
confusion concerning the location of the property, along with factual disputes as to the
relationship between Safeguard and D & S the motion is denied.
IX. MOTION OF CITIMORTGAGE FOR SUMMARY JUDGMENT
Here I agree that CitiMortgage cannot be held liable for the acts of D & S. Its
involvement is too remote, it gave only general instructions to Safeguard and did not
control or have the right to control the details of the actions of Safeguard or D & S. See
generally Murray's Case, 130 NIB 181, 6 (1931).
The entries are:
Motion of Shelley Alley and David Alley for partial summary judgment is granted.
Motion of Safeguard Properties, LLC for summary judgment is denied.
Motion of CitiMortgage, Inc. for summary judgment is granted.
Judgment for all defendants on Counts III - VII of the first amended complaint.
Judgment for the defendant CitiMortgage, Inc. on Counts I and II of the first amended complaint.
Dated: January 6, 2011 pe~;:~fr+ Justice, Superior Court
8 ATTORNEYS FOR PLAINTIFF: THIMI MINA, ESQ. KATHERINE M LYNCH, ESQ. MICHAEL A CUNNIFF, ESQ. MCCLOSKEY MINA & CUNNIFF 12 CITY CENTER PORTLAND ME 04101
ATTORNEY FOR DEFENDANT SAFEGUARD PROPERTIES LLC: MICHAEL TRAISTER, ESQ. MURRAY PLUMB & MURRAY PO BOX 9785 PORTLAND ME 04104-5085
ATTORNEY FOR DEFENDANT CITIMORTGAGE INC: CHRISTOPHER P SILVA, ESQ. EDWARDS ANGELL PALMER & DODGE LLP III HUNTINGTON AVENUE BOSTON MA 02119
ATTORNEY FOR DEFENDANTS DAVID & SHELLEY ALLEY & D&S PROPERTIES LLC: MARK E PORADA, ESQ. PIERCE ATWOOD ONE MONUMENT SQUARE PORTLAND ME 04101-1110