Plumbago Min. Corp. v. Sweatt

• Decision Date: 21 April 1982
• Citation: 444 A.2d 361
• Parties: PLUMBAGO MINING CORPORATION v. Dale SWEATT, et al. STATE of Maine v. Dale SWEATT and Carol Sweatt.
• Court: Maine Supreme Court

Page 361

444 A.2d 361

PLUMBAGO MINING CORPORATION v. Dale SWEATT, et al.

STATE of Maine v. Dale SWEATT and Carol Sweatt.

Supreme Judicial Court of Maine.

Argued Nov. 18, 1981.

Decided April 21, 1982.

Sewall, Mittel & Hefferan, Robert Edmond Mittel (orally), Portland, Mark G. Sullivan, Washington, D.C., for appellant Plumbago Min. Corp.

Arthur LaFrance (orally), Portland, Craig E. Turner, South Paris, for appellees Dale Sweatt, et al.

Before McKUSICK, C. J., GODFREY, NICHOLS, ROBERTS CARTER and VIOLETTE, JJ., and DUFRESNE, A.R.J.

VIOLETTE, Justice.

In these two appeals, this Court is presented with an issue of first impression: the appropriate disposition of property illegally seized from the defendants in a criminal prosecution (Dale and Carol Sweatt) which, in two pending civil actions, is claimed to have been stolen from its alleged rightful owner (Plumbago Mining Corporation). We hold that under the unique circumstances of these cases the Superior Court erred in ordering, on the authority of our mandate in State v. Sweatt, Me., 427 A.2d 940 (1981), the property returned to the defendants, and victims of the illegal search and seizure, Dale and Carol Sweatt.

On appeal, Plaintiff Plumbago alleges error in two of the Superior Court's orders entered in State v. Sweatt after remand from this Court. Plumbago argues that the Superior Court erred in ordering the State, through its police officers who had custody of the seized property (tourmalines), to return the property to the Sweatts. The Superior Court denied Plumbago's motion to intervene as a third party claimant or to appear as amicus curiae in the criminal case, and Plumbago assigns error to this ruling. We affirm that ruling, entered in State v. Sweatt, which is now before this court on appeal as Docket No. Law-81-192.

Plumbago also appeals from a Superior Court order entered in two cases titled Plumbago Mining Corp. v. Dale Sweatt, et al., which on appeal have been consolidated as Docket No. Law-81-203. Two civil actions were commenced by plaintiff: a forcible entry and detainer action for personal property commenced pursuant to 14 M.R.S.A. § 6012 (1980) [hereinafter referred to as the FED action] and an action seeking damages and an accounting for conversion, breach of fiduciary duty, breach of contract, and violation of 14 M.R.S.A. § 3155 (1980) [hereinafter referred to as the conversion action]. Defendant Dale Sweatt has moved to dismiss the appeals. Because we find that this appeal is not moot and is within an exception to the final judgment rule, we deny defendant's motion to dismiss the appeal.

I. PROCEDURAL HISTORY

A. State v. Sweatt

On March 30, 1981, this Court held that various tourmaline gems had been illegally seized from the defendants, Dale and Carol Sweatt. State v. Sweatt, Me., 427 A.2d 940 (1981). Acting upon search warrants, police officers had seized tourmalines found at the Sweatts' home, Dale Sweatt's office and bank vault, a retail store that sold the gems on consignment, and a safe which was co-owned by the Sweatts and their attorney and located in that attorney's office. On November 26, 1980, a Superior Court justice, following a hearing, ordered suppression of part of the seized property and ordered it returned to the defendants pursuant to M.R.Crim.P. 41(e). ¹ He denied suppression of the remainder of the seized property. In deciding that the Superior Court had properly granted part of defendants' motion to suppress and improperly denied the remainder of the motion, the Court stated that "where the suppressed evidence is neither contraband by force of law nor stolen property nor evidence of a crime, it must be returned to the movant absent an adverse claim of ownership." Id. at 951. The Court expressly noted that "no third-party claim has been advanced." Id. The mandate of the Law Court was "Remanded for entry of an order suppressing all property seized and directing its prompt return to the movants." Id.

The State moved for a rehearing of the appeal on April 13, 1981, claiming that the District Attorney was left "in a state of doubt and confusion as to her responsibilities with respect to this property" since there existed pending civil claims. Counsel for the defendants submitted a letter to the court explaining the issues and opposing the State's motion. The motion was denied without an opinion on April 21, 1981.

Plumbago's participation in State v. Sweatt was quite limited prior to the issuance of the Court's decision since it was not a party to the criminal case. Only the defendants' counsel and the District Attorney participated in the suppression hearing. However, counsel for Plumbago did address the hearing court briefly on the question of the tourmalines' disposition should the court grant the suppression motion. The presiding justice noted that this was not a civil action and that the suppression issue was the only matter before the court; "If there are civil suits pending or contemplating attorneys would do well if they think it feasible to protect themselves as--attachment of [sic] trustee process."

After this Court's opinion and mandate were issued, Plumbago moved on April 10, 1981, to intervene as a third-party claimant or to appear as amicus curiae in the criminal case on remand. It also moved for a stay of the November 26, 1980, Superior Court order returning the seized tourmaline to the Sweatts. Both motions were denied on April 29, 1981, following the issuance of an order by a Superior Court Justice on April 27, 1981, implementing the mandate of the Law Court directing the return of the tourmalines to the Sweatts. In the criminal case, Plumbago has timely appealed from the denial of its motions to intervene and for a stay, and from the April 27, 1981 order.

B. The Civil Cases

Plumbago's appeal focuses on the propriety of a Superior Court order issued in both civil cases on May 15, 1981. Prior to that date, the FED and conversion actions had been treated separately by the parties ² and the courts. At the time this appeal was taken, neither case had reached the pre-trial stage, and so no decision on the merits of Plumbago's claim that Dale Sweatt stole the tourmaline from the corporation has been made.

1. The FED Action

The FED action was commenced in District Court (Rumford) on November 20, 1980. On the same date, plaintiff also filed a motion for a temporary restraining order seeking to restrain the state troopers, who had custody of the tourmalines at that time, from releasing the gems to anyone "pending the outcome of this litigation" which motion was granted following a hearing. ³ A subsequent motion to dismiss the action filed by Sweatt was denied, the judge having found that plaintiff's pleadings were proper and sufficient and that the FED action was not in conflict with the Superior Court criminal case.

A "consent judgment" ^3.5 was rendered by the District Court on January 15, 1981, which read in pertinent part that, "by agreement of counsel,"

Defendant White and Ouellette [the state troopers who had custody of the gems] have no right, title or interest in the property in question other than as custodians. They shall retain the property in question until any pending criminal proceedings involving defendants Sweatt or Austin have terminated in the Superior Court. If this civil action is pending at that time they shall continue to hold it until the entry of any final judgment.

A complaint was entered in Superior Court, Oxford County, on February 26, 1981, pursuant to 14 M.R.S.A. § 6012. ⁴ On March 30, 1981, the State v. Sweatt opinion was issued. One month later defendants White and Ouellette moved to vacate the November 20 order granting a temporary restraining order and to modify the January 15 judgment so that they could turn over the gems to Sweatt, as required by the April 27, 1981, order entered in State v. Sweatt by the Superior Court, Oxford County, without violating the orders issued in the FED action. On May 15, 1981, defendant Sweatt's motion to dissolve the temporary restraining order was granted by the Superior Court, Oxford County, which held that the Law Court mandate ordering the return of the tourmaline to the Sweatts controlled the disposition of the gems.

2. The Conversion Action

Plumbago commenced the conversion action in Superior Court Oxford County, on December 15, 1980, about one month after commencement of the FED action. Plaintiff moved on January 19, 1981, for approval of an attachment and trustee process "against the property of defendants Sweatt and Austin in an amount of $1,500,000." Affidavits of Dean McCrillis, the President of Plumbago, and others were submitted to show that plaintiff had a reasonable likelihood of recovering judgment and that the judgment would probably exceed the limits of defendant's liability insurance, as required by M.R.Civ.P. 4A. On April 17, 1981, a Superior Court Justice ordered that "an attachment including an attachment on trustee process, may be made against Dale Sweatt's property in the amount of $1,000,000." A writ of attachment was issued on April 24, and on April 27 at 9:10 a. m. a Cumberland County deputy sheriff attached "a black footlocker and its contents" [hereinafter referred to as the tourmalines] which were being held by Eagle Savings and Loan Association in an account in the names of the state troopers who had seized the tourmalines. The attaching deputy sheriff subsequently appointed Eagle Savings keeper of the gems. 14 M.R.S.A. § 4152 (1980). On April 29 the bank refused to give Sweatt the footlocker when he attempted to obtain possession pursuant to the April 27 order of the Superior Court in the criminal action.

The State of Maine moved to dissolve the writ of attachment on May 1, 1981, on the grounds that the property was deposited into the account of the two state troopers who were ordered by a Superior Court Justice on April 27 to return the evidence to the Sweatts and were prevented from doing so by...