Conservancy v. CitiMortgage, Inc.

• Decision Date: 02 August 2012
• Docket Number: Docket No. Yor–11–211.
• Citation: 48 A.3d 774,2012 ME 103
• Parties: LOUGEE CONSERVANCY et al. v. CITIMORTGAGE, INC. et al.
• Court: Maine Supreme Court

48 A.3d 774

2012 ME 103

LOUGEE CONSERVANCY et al.

v.CITIMORTGAGE, INC. et al.

Docket No. Yor–11–211.

Supreme Judicial Court of Maine.

Argued: Jan. 11, 2012.

Decided: Aug. 2, 2012.

Michael A. Cunniff, Esq. (orally), and Shaun M. Garry, Esq., McCloskey, Mina & Cunniff, LLC, Portland, for appellants The Lougee Conservancy, Eleanor Lougee Chapin, David Lougee, and Arther James Lougee.

Mark E. Porada, Esq. (orally), Pierce Atwood LLP, Portland, for appellees Shelley Alley and David Alley.

Christopher P. Silva, Esq. (orally), Edwards Angell Palmer & Dodge LLP, Boston, Massachusetts, for appellee Citimortgage, Inc.

Michael D. Traister, Esq., and Nicole L. Bradick, Esq., Murray, Plumb & Murray, Portland, for appellee Safeguard Properties, LLC.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SILVER, J.

[¶ 1] The Lougee Conservancy; Eleanor Lougee Chapin, as trustee and beneficiary of the Lougee Conservancy; David Lougee, as trustee and beneficiary of the Lougee Conservancy; and Arthur “Jim” Lougee, as beneficiary of the Lougee Conservancy (collectively, the Lougees) appeal from a summary judgment entered in the Superior Court (York County, Fritzsche, J.). The court granted summary judgment in favor of CitiMortgage, Inc. on the Lougees' complaint for common law and statutory trespass, invasion of privacy, conversion, intentional infliction of emotional distress, punitive damages, and negligence, and in favor of Safeguard Properties, LLC, and David and Shelly Alley, d/b/a D & S Properties, LLC, on all claims except common law and statutory trespass. The Lougees' claims arose when an unencumbered home and barn owned by the Lougee Conservancy were entered and secured as part of CitiMortgage's foreclosure action that pertained to a neighboring property. We affirm the judgment on the claims for invasion of privacy, conversion, intentional infliction of emotional distress, and punitive damages, and vacate on the claim of negligence as to all three defendants.

I. BACKGROUND

[¶ 2] We review the facts found in the summary judgment record in the light most favorable to the plaintiffs as the nonmoving party. See Davis v. Dionne, 2011 ME 90, ¶ 2, 26 A.3d 801.

[¶ 3] The Lougee Conservancy is an irrevocable trust that holds legal title to 593 acres of land along North Road in Parsonsfield. Eleanor Lougee Chapin, Jim Lougee, and David Lougee are beneficiaries of the trust, and Eleanor and David are trustees. The Conservancy was created by the Lougees' parents in 1964 to conserve and maintain the property for the benefit of the Lougee family. The property includes a house (the Homestead) and a barn. Since the Lougees' father died in 2005 the Homestead has served as a storage place for family heirlooms and for personal items that belonged to the Lougees' parents. The property also stores some personal possessions of the individual Lougees. Jim lives on the Conservancy property in a separate home about 500 feet from the Homestead.

[¶ 4] In December 2008, CitiMortgage began a foreclosure action against a property located four miles from the Homestead on North Road (North Road property). In August 2008 the mortgage on the North Road property reached a certain delinquency threshold, triggering CitiMortgage to issue an order to Safeguard, CitiMortgage's property preservation services provider, to determine whether the home was vacant or abandoned. Safeguard, through various subcontractors, periodically checked on the North Road property and reported to CitiMortgage. In February 2009 Safeguard determined that the North Road property had been abandoned and reported this to CitiMortgage.

[¶ 5] Safeguard issued an order to secure and winterize the North Road property and assigned the job to one of its subcontractors, D & S Properties. D & S was to confirm that the North Road property was vacant and, if so, secure it. Safeguard provided D & S with the correct address of the North Road property to complete this task, but D & S was unsure as to which house on North Road was the correct house. The electronic navigation system used by D & S brought them to the Conservancy property in the vicinity of the Homestead. Many homes on the street, including the Homestead, lacked street numbers; a neighbor could not confirm the correct address; and the Homestead had been winterized, and its driveway was not plowed. D & S sent digital pictures of the Homestead and another nearby house—not the North Road property—to Safeguard requesting verification of which was the correct house. Although a Safeguard employee responded by stating that Safeguard's inspector had the same photographs as D & S, so she could not determine which was the right house, D & S believed Safeguard had confirmed that the Homestead was the correct house.

[¶ 6] Despite the hundreds of “No Trespassing” signs posted on the Conservancy property, D & S entered the Homestead on March 24, 2009. D & S examined, inventoried, and photographed the contents of the home. While doing so, D & S emptied shelves and cupboards and moved items around. The parties dispute whether D & S damaged a door, a doorframe, and an antique desk that belonged to Maine's first governor. D & S secured the Homestead by putting a code-entry lockbox on the side door. D & S also entered the barn on the Conservancy property by prying open a door. In doing so D & S broke the lock on the door. The parties dispute whether this caused damage to an interior wall. D & S searched, inventoried, and photographed the barn's interior. Upon leaving, D & S placed a board across the door but did not otherwise protect it from entry. The Lougees have not alleged that D & S removed any items from either the Homestead or the barn.

[¶ 7] Eight days later, on April 2, 2009, Jim discovered the lock on the Homestead door, which prevented him from entering. The parties dispute whether Jim could have gained immediate access through another door to the home. Jim called Eleanor, who called a deputy sheriff. The deputy arrived at the Homestead and called Safeguard, per a sticker D & S posted near the lockbox with Safeguard's contact information. Safeguard notified D & S, and D & S then gave the deputy the access code for the lockbox. Jim and the deputy were able to enter the home immediately. Jim observed that the contents of the home were in disarray. D & S returned to the Homestead on the same day to change the lock on the Homestead and replace the lock on the barn. Jim did not report any items broken or stolen to D & S or the deputy at that time.

[¶ 8] As a direct result of this incident, Jim was left upset and anxious and obtained counseling for ten months. The Lougees allege that his existing anxiety-related mental health conditions have been exacerbated. Eleanor feels anxious, defeated, resistant to going to the Homestead, discouraged, offended, disgusted, and as though the Homestead has been “dirtied.” David feels outraged, violated, and “greatly upset.” His “sense of security and isolation at the Homestead” has been “destroyed.”

[¶ 9] The Lougees brought suit against CitiMortgage, Safeguard, and D & S in the Superior Court as individual beneficiaries and trustees of the Lougee Conservancy, claiming (1) common law trespass, (2) statutory trespass pursuant to 14 M.R.S. § 7551–B (2011), (3) invasion of privacy, (4) conversion, (5) intentional infliction of emotional distress, (6) punitive damages, and (7) negligence. D & S and Safeguard filed cross-claims against each other for common law indemnification, and D & S filed a cross-claim against Safeguard for common law contribution. CitiMortgage moved for summary judgment on all counts on the basis that it was not vicariously liable for the actions of Safeguard or D & S. Safeguard also moved for summary judgment on all counts. D & S moved for summary judgment on all counts except statutory and common law trespass. Safeguard also sought a summary judgment on D & S's cross-claim for common law indemnification.

[¶ 10] The court granted a summary judgment in favor of CitiMortgage on all of the claims. The court denied Safeguard's motion as to statutory and common law trespass, but granted its motion as to invasion of privacy, conversion, intentional infliction of emotional distress, punitive damages, and negligence. The court granted D & S's motion as to invasion of privacy, conversion, intentional infliction of emotional distress, punitive damages, and negligence. The court denied Safeguard's motion for summary judgment on the cross-claim against D & S. Only the statutory and common law trespass claims against Safeguard and D & S now remain for trial. Pursuant to M.R. Civ. P. 54(b)(1), the court certified the summary judgments on the five claims as final to allow the Lougees to pursue this interlocutory appeal.¹

II. DISCUSSION

A. Summary Judgment Standard

[¶ 11] We review a summary judgment de novo. Stewart–Dore v. Webber Hosp. Ass'n, 2011 ME 26, ¶ 8, 13 A.3d 773. We view the evidence in the light most favorable to the party against whom judgment has been granted to determine whether the record reveals a genuine issue of material fact on any claim. Id. “A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact-finder to choose between competing versions of the fact.” Id. (quotation marks omitted). “When facts, though undisputed, are capable of supporting conflicting yet plausible inferences—inferences that are capable of leading a rational fact-finder to different outcomes in a litigated matter depending on which of them the fact-finder draws—then the choice between those inferences is not for the court on summary judgment.” See F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646 (quotation marks and alterations omitted).

[¶ 12] “To survive a defendant's motion for a summary judgment, the plaintiff must establish a prima facie case for each element of her cause of...