Theberge v. Darbro, Inc.

684 A.2d 1298, 1996 Me. LEXIS 225
CourtSupreme Judicial Court of Maine
DecidedOctober 30, 1996
StatusPublished
Cited by27 cases

This text of 684 A.2d 1298 (Theberge v. Darbro, Inc.) 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
Theberge v. Darbro, Inc., 684 A.2d 1298, 1996 Me. LEXIS 225 (Me. 1996).

Opinions

GLASSMAN, Justice.

After a nonjury trial, Darbro, Inc., Albert L. Small and Mitchell Small appeal from the judgment entered in the Superior Court (An-droscoggin County, Brennan, J.) in favor of Thomas J. Theberge and Michael J. The-berge (Theberges) and Claude Tremblay, Angie White and Timothy Worden (the Wor-den Group).1 The defendants contend the trial court erred by piercing the corporate veil of Horton Street Associates and holding Darbro, Albert and Mitchell liable on the Worden Group’s promissory note payable to the Theberges. The Worden Group cross-[1299]*1299appeals, contending the court erred by denying their claim for attorney fees. We vacate the judgment and remand to the Superior Court for the entry of a judgment in favor of the defendants.

The record developed before the trial court discloses the following: Michael and Thomas Theberge owned, inter alia, seven rental properties in the Lewiston/Aubum area. On August 19, 1986, the Theberges transferred to the Worden Group the seven properties for a total of $900,000 and the Worden Group executed a promissory note payable to the Theberges for $180,000 secured by a mortgage on the property.

Later in 1986, as a result of negotiations with the Worden Group, Darbro2 entered into an agreement with the Worden Group for the sale and purchase of the properties for $970,000. Prior to the closing, the Wor-den Group was informed that Horton Street Associates,3 a newly formed corporation, and not Darbro, was to be the purchaser of the properties. To finance the purchase of the seven buildings, Horton Street (1) executed a promissory note to Casco Northern Bank in the amount of $720,000 secured by a first mortgage on the premises;4 (2) assumed the $180,000 promissory note to the Theberges, secured by a second mortgage on the premises; 5 (3) executed a promissory note to Casco Northern for $120,000, secured by a third mortgage on the premises, with Albert as comaker; and (4) executed a $20,000 note payable to the Worden Group with Albert as comaker.

As a result of the downturn in the real estate market, the increase in vacancy rates in the Lewiston/Auburn area, a flood that damaged one of the buildings, and certain other unexpected repairs that were required on the properties, Horton Street quickly began to lose money. To compensate for these losses, Albert loaned money to Darbro which in turn loaned the money to Horton Street. Darbro loaned additional monies to Horton Street.

In the spring of 1989, Horton Street sold two of the seven buildings. As a result of these sales, pursuant to the terms of the Theberge mortgage, the Theberges were paid to partially discharge the second mortgage, and the third mortgage to Casco Northern was retired.6 The net balance was applied to reduce the Casco Northern first mortgage.7

By May 1989, Darbro had loaned to Horton Street approximately $225,000 and had received only “a couple small payments.” Albert then informed Mitchell that Darbro would not loan additional monies to Horton Street. Albert also advised the Theberges that he could not make any further payments and that he wished to negotiate “a solution.” Although Albert met with the Theberges, the Worden Group and a representative from Casco Northern, the group, collectively, was unable to reach a resolution. Casco Northern thereafter sent a letter to Horton Street demanding payment of the $682,049.47 then due on the promissory note secured by the first mortgage, together with demands to [1300]*1300Darbro and Albert for $450,000 and $330,000, the respective amount each had guaranteed. Pursuant to the terms of an agreement dated November 17, 1989, Casco Northern agreed to loan Darbro $700,000 secured by mortgages on Albert’s real property, and the assignment by Albert of a $200,000 certificate of' deposit, 1000 shares of Coca-Cola common stock, and his municipal bonds. Casco Northern assigned to Albert, or his nominee, the existing Horton Street promissory note and mortgage on the condition that foreclosure proceedings on that mortgage be commenced within 30 days of the assignment. Pursuant to this agreement, Albert assigned the promissory note and mortgage to Darbro which instituted foreclosure proceedings resulting in the sale of the remaining five buildings at public auction for $320,000. The Theberge second mortgage was, accordingly, extinguished.

In an action brought by the Theberges against the Worden Group on the default of their promissory note, the court on May 22, 1991, issued a default judgment against the third-party defendant Horton Street in favor of the third-party plaintiff Worden Group. The execution of that judgment was stayed pending the outcome of the present litigation.

In September 1991, the Theberges and the Worden Group instituted the present action against Darbro, Inc., Albert Small and Mitchell Small, seeking a judgment obligating them to pay the Worden Group any amounts they were obligated to pay the The-berges by reason of a default on the August 19, 1986, promissory note. By their complaint, the plaintiffs allege, inter alia, that (1) Horton Street is the alter ego of Darbro, Albert and Mitchell; (2) the sale to Horton Street was based on representations made to the Worden Group that Albert would “stand behind” the Theberge mortgage; and (3) the defendants manipulated the application of the proceeds from the sale of the two buddings prior to the foreclosure sale of the remaining five buildings in an effort to obtain release of their personal guarantees and to avoid liability on the Theberge mortgage.

Following a five-day trial and consideration of the parties’ post-trial briefs, the court specifically found that the Theberges and the Worden Group had faded to establish that the defendants acted illegally or fraudulently and also found that none of the defendants had guaranteed the payment of the Theberge promissory note. The court further found that the Theberges and the Wor-den Group were sophisticated real estate investors in the Lewiston/Auburn area market in 1986 and understood the formalities, and the effect, of a personal guarantee in a real estate transaction. The court also found that Horton Street had no separate offices, utilities or employees; maintained no corporate records or books; co-mingled its business with that of the other defendants; and failed to conduct formal corporate meetings. Both Horton Street and Darbro were, in essence, Albert, as evidenced by the fact that, when in a financial crisis, Albert “unilaterally assumed full control of Horton Street on his own initiative” and acted to the defendants’ own benefit and to the detriment of the plaintiffs.

Based on these findings, the court concluded that “notions of equitable estoppel ought to preclude” the defendants from asserting Horton Street’s corporate status as a defense and that the defendants were liable to the plaintiffs for the outstanding balance on the Theberge promissory note. Following further submissions by the parties, the court determined that (1) by the terms of the Theberge promissory note, the Theberges, as holders of the note, are entitled to attorney fees;8 (2) because the Worden Group is not a holder, they are not entitled to attorney fees; and (3) the total amount due the Theberges from the defendants is $253,764.13. From the judgment entered accordingly, the defendants appeal, and the Worden Group cross-appeals.

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684 A.2d 1298, 1996 Me. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theberge-v-darbro-inc-me-1996.