Forbes v. Wells Beach Casino, Inc.

• Decision Date: 11 May 1966
• Citation: 219 A.2d 542
• Parties: Vander W. FORBES v. WELLS BEACH CASINO, INC.
• Court: Maine Supreme Court

Page 542

219 A.2d 542

Vander W. FORBES v. WELLS BEACH CASINO, INC.

Supreme Judicial Court of Maine.

May 11, 1966.

J. Armand Gendron, Sanford, for plaintiff.

Berman, Berman, Wernick & Flaherty, by Sidney W. Wernick, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN, DUFRESNE, JJ.

WILLIAMSON, Chief Justice.

The issue is whether personal jurisdiction over the defendant Elias M. Loew asserted under the 'long arm' statute is constitutionally permissible. The case is reported to us on an agreed statement of facts for decision on the defendant's motion to dismiss for lack of jurisdiction over his person. Our concern is solely with jurisdiction, and not at all with the merits of the complaint.

The 'long arm' statute, so-called, (14 M.R.S.A.) reads in part:

' § 704. Persons subject to jurisdiction

'1. Causes of action. Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated in this section, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:

'A. The transaction of any business within this State 'C. The ownership, use or possession of any real estate situated in this State;

'3. Jurisdiction based upon this section. Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.'

See Maine Rules Civil Procedure, Rule 4(e); Field & McKusick, Maine Civil Practice, Reporter's Notes p. 33; comment § 4.13, p. 50; Memorandum to Judiciary Committee, p. 662. The statute was first enacted in P.L.1959, c. 317, § 125.

The pending civil action was brought in York Superior Court by the plaintiff Forbes, a resident of York County, against Wells Beach Casino, Inc., a Maine corporation (Wells Beach), Lawrence C. Laskey, Moritz Loew, and Elias M. Loew, a resident of Milton, Massachusetts. No question of personal jurisdiction is raised by the first three named defendants. Moritz Loew plays no part in the issue before us. For convenience we will refer to the defendant Elias M. Loew as 'Loew' or 'defendant'. No objection is raised to the method used in serving process on the defendant by a deputy sheriff in Massachusetts.

The defendant's position is plainly and succinctly set forth in his brief as follows:

'The activities in which the human nonresident defendant, Elias M. Loew, had engaged in the State of Maine, because they are activities of a kind which the State of Maine has not regarded as exceptional and has not subjected to special and unique regulation, cannot without violation of the 'due process' clause of the Constitution of the United States, be a valid ground of jurisdiction over the person of Elias M. Loew in the present proceeding.'

Wells Beach is a Maine corporation of which at all times pertinent to the case Loew and Laskey have each owned fifty percent of the capital stock, and Loew has been a director and treasurer.

In July 1960 Laskey brought an action in York Superior Court against Loew, Wells Beach, and one Pinkus charging the defendant with mismanagement of the corporation and asking for receivership and dissolution. Wells Beach was then and now is the owner of certain real estate and personal property at Wells Beach, Maine. After hearing, at which all present were represented by counsel, the hearing was suspended for an indefinite time. As a result thereof on October 6, 1960, in Portland, Maine, Laskey and Loew both personally signed an agreement pertaining to Wells Beach designed 'to terminate their business relationship in the Corporation.' On February 6, 1961, at law offices in Portland Laskey and Loew both in person, and the plaintiff through his attorney, submitted bids in writing for the real estate and personal property of Wells Beach in accordance with the terms and procedures outlined in the October 1960 agreement.

The agreement provided that a board of appraisers be appointed which would list the property of Wells Beach with real estate brokers 'to secure binding offers for the sale and purchase of said property.' Within 120 days after date of the contract and after reports from the brokers, the highest cash offer at least equal to the appraised value and determined by the Board to constitute a reasonable offer, 'shall be accepted and the property shall be sold in accordance with this offer and acceptance.' It was further provided that 'after the sale, the Corporation shall be fully liquidated * * *' and 'the parties shall complete all corporate matters necessary to carry out' the agreement which was stated to be binding upon their heirs, administrators and assigns.

On April 19, 1961, Laskey, as plaintiff, sued Loew, Wells Beach and Moritz Loew in York Superior Court. In his complaint Laskey sought that a certain lease of a part of the premises of Wells Beach 'be declared null and void and of no force and effect and be cancelled as a matter of record' and that the 'defendants be ordered and directed to comply specifically with the agreement of October 6, 1960.'

Loew joined in a common answer by the defendants, and also filed as a part of the answer a counterclaim seeking...