Doughty v. Sullivan, 7323

CourtSupreme Judicial Court of Maine (US)
Writing for the CourtBefore WATHEN; LIPEZ
Citation661 A.2d 1112
PartiesCecil Amos DOUGHTY v. Ethelyn Doughty SULLIVAN v. Neil DOUGHTY. DecisionLaw
Docket NumberNo. 7323,Docket No. CUM-94-703,7323
Decision Date07 July 1995

Page 1112

661 A.2d 1112
Cecil Amos DOUGHTY
Ethelyn Doughty SULLIVAN
Decision No. 7323.
Law Docket No. CUM-94-703.
Supreme Judicial Court of Maine.
Argued March 3, 1995.
Decided July 7, 1995.

Page 1116

John P. McVeigh (orally), Preti, Flaherty, Beliveau & Pachios, Portland, for Ethelyn Sullivan.

Stephen C. Chute (orally), Chute & Associates, Portland, for Neil Doughty.

Daniel W. Boutin (orally), Jewell & Boutin, Portland, for Cecil Amos Doughty.


LIPEZ, Justice.

Ethelyn Sullivan (Ethelyn) appeals from the judgment entered in the Superior Court (Cumberland County, Brennan, J.) affirming the judgment entered in the District Court (Portland, Rogers, J.) in favor of Cecil Amos Doughty (Amos) on his complaint requesting a writ of replevin and damages for Ethelyn's wrongful conversion of an 18-foot Pointer boat which Amos allegedly purchased from Neil Doughty (Neil). Ethelyn also appeals from a judgment entered in Neil's favor on her third-party complaint alleging that Neil owed her $1,000. We vacate both judgments.


The record reveals that Bernard Doughty loaned his son, Neil, $1,000 to enable Neil to purchase an 18-foot Pointer boat. To evidence the loan, Neil gave his father a signed "receipt" which stated, "Received from Bernard Doughty $1,000 for one 18-foot Pointer and 45 H.P. motor." Neil Doughty signed this receipt. Bernard believed the receipt gave him a security interest in the boat. Neil testified that he did not intend to give his father a security interest in the boat. He simply wanted his father to have the boat if something happened to him while he was at sea.

Neil stored the boat during the winter of 1989-1990 in the yard of John and Ethelyn Sullivan, his sister. Although Neil used the boat a few times, during the summer of 1990, seawater disabled the engine and Neil left the boat on its mooring in Chandler's Cove. According to John Sullivan, he towed the boat from Chandler's Cove to Bennett's Beach in early October 1990 where he left the boat on the beach for a couple of weeks. Bernard testified that he instructed John to haul the boat back to the Sullivans' yard because he was concerned that the boat would be destroyed over the winter unless it was removed from the beach. Sullivan and a friend testified that they hauled the boat to the Sullivan's yard in late October or early November. Bernard believed that he had a right to repossess the boat because Neil had not yet repaid the loan. On November 19, 1990, Bernard signed a document which stated: "As of this date I transfer my ownership and claim to the note for $1000.00 from Neil Doughty, for the boat (18' Pointer) and 45 HP Chrysler motor as yet unpaid to Ethelyn L. Sullivan." The document was witnessed and signed by a family friend.

During this same time period, Neil accepted an offer by Amos to buy the boat for $500. On November 21, 1990, Amos gave Neil a check for $500 which Neil cashed that same

Page 1117

day. Both Neil and Amos testified that, contrary to the Sullivans' contentions, the boat was still lying on the beach when the sale occurred. Neil could not recall how the boat got from the mooring in Chandler's Cove to Bennett's Beach. Amos testified that he had no idea that someone else claimed an interest in the boat. Sometime after Neil sold the boat to Amos, Amos discovered that the boat was in the Sullivans' yard and he asked Ethelyn to return it to him as he was now the owner. Ethelyn refused, asserting that Bernard owned the boat.

In December 1990, Amos decided that he could not engage in commercial lobstering during 1991 because Ethelyn would not return the boat that he had intended to use. Amos did not attempt to replace the boat until 1992, when he purchased another boat for $1,000.

Amos filed a complaint on July 6, 1992 against Ethelyn, alleging that she had wrongfully converted the boat after he purchased the boat from Neil. Amos sought a writ of replevin pursuant to 14 M.R.S.A. §§ 7301-7312 (1980) to obtain possession of the boat and damages for Ethelyn's wrongful conversion. As a part of his damages claim, Amos sought lost profits that he sustained when he was unable to use the boat during the 1991 lobster season. At trial, it was stipulated that Amos earned $3,830 from lobster fishing in 1992. Amos also sought reimbursement for the boat he purchased in 1992 to replace the boat converted by Ethelyn. In total, Amos claimed damages in excess of $8,500. At the time he filed his complaint, Amos did not attach a bond or an affidavit to support his request for a writ of replevin.

Ethelyn answered Amos's complaint by denying Amos's claim of title and claiming title in herself by virtue of Bernard's assignment to her of his right to enforce the debt and the security interest. Ethelyn contended that the receipt evidencing the loan by Bernard to Neil represented a security interest in the boat which was perfected when Bernard repossessed the boat. Furthermore, Ethelyn contended that Amos had notice that someone claimed a security interest in the boat. Amos, therefore, did not qualify as a bona fide purchaser. In the event that her security interest was held to be unperfected, Ethelyn filed a third-party action for money lent against Neil. Ethelyn also charged Neil and Amos with creating a contrived sale to deprive her of her interest in the boat.

Prior to the trial, Ethelyn filed a motion to dismiss Amos's complaint for failure to file the pleadings required by M.R.Civ.P. 64 to obtain a pre-judgment writ of replevin. 1 Ethelyn contended that 14 M.R.S.A. §§ 7301-7312 and M.R.Civ.P. 64 provided a writ of replevin as a pre-judgment remedy only. Amos attempted to cure his failure to conform to M.R.Civ.P. 64 by filing a motion for a writ of replevin and a personal bond for $1,000 and an affidavit before trial.

After a trial, the District Court concluded that it had subject matter jurisdiction pursuant to 14 M.R.S.A. §§ 7301-7312 (1980), and that Amos was entitled to seek a post-judgment writ of replevin without first seeking a pre-judgment writ of replevin. The court further decided that regardless of whether the receipt signed by Neil evidenced a valid security interest, Bernard had not perfected the interest by the time Amos bought the boat from Neil because it was more likely than not that the boat was in Chandler's Cove at the time of the purchase and not in Bernard's possession. The trial court concluded that Amos was a bona fide purchaser for value and was entitled to possession of the boat and entitled to $3,680.10 for damages he sustained when Ethelyn converted the boat and prevented him from lobster fishing in 1991. Accordingly, a judgment was entered in favor of Amos.

Page 1118

The trial court entered a separate judgment in favor of Neil on Ethelyn's third-party complaint. Although the trial court found that Bernard loaned $1,000 to Neil, it concluded that Bernard had forgiven the loan, as he had forgiven other loans to his children. The court further found that Neil twice attempted to pay his father $500 as installment payments but that Neil's efforts were rejected by Bernard. From these judgments, Ethelyn appeals.

Jurisdiction to Issue a Post-Judgment Order of Replevin

Ethelyn first contends that because Amos had failed to replevy the boat before the action was tried, the District Court erroneously concluded that it had jurisdiction pursuant to 14 M.R.S.A. §§ 7301-7312 to issue a writ of replevin after a judgment had been entered. 2 According to Ethelyn, the statute provides a pre-judgment remedy only. Ethelyn further contends that even if Amos was permitted to cure his failure to request a pre-judgment writ of replevin, Amos still did not provide a bond "with sufficient sureties." Ford New Holland, Inc. v. Thompson Machine, Inc., 617 A.2d 540 (Me.1992) (holding personal bond insufficient to satisfy statute). Hence, the District Court was without subject matter jurisdiction to hear Amos's action in replevin.

Amos responds that the bond requirement is intended merely to provide security to the defendant in a replevin action when the plaintiff seeks a pre-judgment writ of replevin. Because he was willing to wait until after a judgment was entered before he obtained possession of the boat, Amos argues that requiring him to post a bond is superfluous. According to Amos, the filing of a complaint confers jurisdiction on the District Court to hear an action in replevin pursuant to 14 M.R.S.A. § 7301, rather than the filing of a pre-judgment writ of replevin. After a careful review of the laws of other states and our own statute, we conclude that 14 M.R.S.A. §§ 7301-7312 confers jurisdiction on the District Court to hear an action in replevin only if the plaintiff has already replevied the property through the issuance of a pre-judgment writ of replevin.

Replevin is one of the oldest legal remedies available under the common law. Historically, replevin lay to recover immediate possession of a specific chattel as compared with other common law actions for trespass or conversion which lay to recover damages for the wrongful taking of a chattel. Cobbey, A Practical Treatise on the Law of Replevin, § 17 (2d ed. 1900). Replevin sought only to establish the right to possession and not the right to legal title. The common law action of replevin could be commenced only by the issuance of a writ of replevin and seizure of the property which was deemed necessary for the court to obtain jurisdiction over the action. Hart v. Moulton, 104 Wis. 349, 80 N.W. 599, 600 (1899).

The plaintiff would apply for a writ of replevin from the court by supplying an affidavit alleging the right to immediate possession of the goods currently in the wrongful possession of a third party. 3 If the affidavit satisfied the common law formalities, the court would issue the writ directing the sheriff to seize the chattel and to deliver the...

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