Salvaggio v. JCS 2, LLC, SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-12-392
| Decision Date | 20 August 2014 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-12-392 |
| Parties | PAULA R. SALVAGGIO d/b/a, JAAAMM'S ASSOCIATES, Plaintiff v. JCS 2, LLC, Defendant |
| Court | Maine Superior Court |
CUMBERLAND, ss
This matter is before the Court on Defendant's motion for summary judgment on all counts of the complaint. Defendant filed the motion on September 11, 2013. After the court conducted on July 16, 2013 a Rule 26(g) discovery conference and ordered plaintiff to produce all financial information requested in discovery, Plaintiff filed on August 30, 2013 a motion to dismiss without prejudice. That motion was based on Michael Salvaggio Jr.'s (Michael Jr.) unavailability to sort out the business records in order to produce then to defendant. On October 25, 2013, the court denied plaintiff's motion but gave plaintiff until November 22, 2013 to respond to the motion for summary judgment. Plaintiff filed an opposition to defendant's motion for summary judgment on November 22, 2013. Defendant filed its reply and the motion was argued before the court on January 2, 2014.
The following facts are not controverted, unless the court indicates otherwise. Many of defendant's statements of material fact were deemed admitted because plaintiff failed to properly qualify or deny the statement.
The genesis of this action was the foreclosure of real property located at 29 School Street in Gorham, Maine (29 School Street) that was formerly owned by Bedford Falls Associates, LLC. (SMF ¶ 1.) Bedford Falls Associates, LLC, (Bedford Falls) is now a dissolved LLC with Michael Salvaggio (Michael Sr.) as the prior owner.1 (SMF ¶ 2.) The plaintiff Paula Salvaggio (Paula) is Michael's wife. (SMF ¶ 3.) Michael Jr. is their son.
Paula Salvaggio is the sole member of JAAAMM'S Associates, LLC. (JAAAMM'S) (SMF ¶ 4.) JAAAMM'S was a property management company set up by Paula and Michael Salvaggio without the assistance of a lawyer about August 5, 2009. (SMF ¶ 5.) JAAAMM'S was set up to run multiple businesses out of the 29 School Street, a former church, including a short-lived church performing arts center, the Bella Chiesa Banquet Center, and a Sons of Italy Lodge. (SMF ¶ 6.) All of these businesses were established in order to have functions, weddings, and anything else where people needed space. (SMF ¶ 7.) Paula initially capitalized JAAAMM'S with her own personal funds. (SMF ¶ 8.) Paula was the only person with authority to sign checks on behalf of JAAAMM'S bank, Town and Country Federal Credit Union. (SMF ¶ 9.)
The church performing arts center, Bella Chiesa Banquet Center, and Sons of Italy Lodge were run and managed by Michael Jr. with the assistance of Michael Sr. (SMF ¶ 10.) Michael Jr. had no ownership interest in JAAAMM's, could not sign checks, is not a member, and had no personal money at stake in the business. (SMF ¶ 11.)
About March 3, 2011, Paula on behalf of JAAAMM'S signed a lease to rent a portion of the premises at 29 School Street from Bedford Falls for a term of ten years and with a base rent payment of $1,500 per month. (SMF ¶ 12.) The business location listed for JAAAMM'S was the home of Paula and Michael Salvaggio in Falmouth, Maine. (SMF ¶ 13.)
On May 24, 2012, 29 School Street was sold at a foreclosure auction sale. (SMF ¶ 14.) Jonathan Smith (Smith), the managing partner of JCS 2, LLC (JCS2) was the successful bidder at the auction. (SMF ¶ 15.) JCS 2 was set up to hold and manage 29 School Street. (SMF ¶ 16.)
On the day of the auction, Michael Sr. called Smith to ask "what about my brides" and other scheduled events. The day after the foreclosure sale, Smith met with Michael and Michael Jr. to discuss among other things that an event center was being run out of the recently purchased 29 School Street. (SMF ¶ 17.) At no point during the meeting between Smith, Michael, and Michael Jr. did Smith state that Michael and Michael Jr. would need to vacate the premises. (SMF ¶ 18.)2
JCS 2 closed on the purchase of 29 School Street on July 9, 2012. (SMF ¶ 19.) On July 11, 2012, Attorney John Sawyer of the law firm Sawyer, Sawyer & Minot, P.A., as attorney for JCS 2, wrote a "notice to immediately quit and surrender" 29 School Street premises to JAAAMM's. (SMF ¶ 20.) Attorney Sawyer did not follow the mandates of Maine's forcible entry and detainer statute. (Id.) Within a couple of days after the time of the notice to quit and surrender the premises was delivered to JAAAMM's, it was also given a new set of keys to the building because the locks werechanged following the foreclosure sale closing. (SMF ¶ 21.) Arrangements were made to allow the tenants of the former foreclosed upon entity to continue to have access to the property. JCS 2 consented to the continued occupation by its tenants despite the provision of the notice to quit and surrender the premises. (SMF ¶ 22.)
Following the notice to quit and surrender, Michael Sr. contacted Smith to discuss an upcoming birthday party that was booked at JAAAMM's leased premises at 29 School Street. (SMF ¶ 23.) Smith stated to Michael that the booked event could be held and Smith was willing to work out any difficulties. (SMF ¶ 24.) At the same time, Michael discussed the events that were to take place or were planned for 29 School Street.3
JAAAMM's and the Salvaggios were given the opportunity to lease the space at 29 School Street that they were occupying before the foreclosure sale. (SMF ¶ 26.) Smith met with Michael Sr. on July 24, 2012, and at this meeting, Michael, on behalf of JAAAMM's told Smith that although he was very interested in entering a new lease, he would not be able to lease the premises due to the fact that he could not afford the rent. (SMF ¶ 27.)4 At this meeting, Michael also gave to Smith a list of property he intended to take out of the leased premises or sell to JCS 2. (SMF ¶ 28.) On the next day, July 25, 2012, Smith had the locks changed because there were items on the list Smith did not think Michael or JAAAMM's were entitled to take. (SMF ¶ 29.) JCS 2 and Smith made the premises available to JAAAMM's and the Salvaggios after changing the locks provided they went through Smith to retrieve their items, but it took months for theJAAAMM's or the Salvaggios to remove the items.5 (SMF ¶ 30.) The parties disagree about why it took so long to remove plaintiff's property; however, this dispute does not involve a material fact.
Eventually, JAAAMM's or Paula removed the vast majority of the contents of 29 School Street by November 2012. (SMF ¶ 31; OSMF ¶ 31.) Paula believes that only five items that she owns remain in the premises that she did not remove. (SMF ¶ 32.) Paula lists the following as not recovered from 29 School Street and for which she claims a continued ownership interest: (1) exterior board sign; (2) brass/glass dividers on balcony; (3) filters in exhaust hood; (4) bars on balcony in main ballroom; and (5) chandeliers and wall sconces in the main ballroom, balcony, hallways and downstairs function room. (Id.) Paula originally listed two additional items that were left behind, but now agrees that those items were the subject of an agreement/trade between her or JAAAMM's and JCS 2. (SMF ¶ 32.) JCS 2 disagrees that Paula or JAAAMM's has any personal property remaining at 29 School Street because the identified remaining five items are fixtures attached or affixed to 29 School Street, and as such belong to the owner of the premises. (SMF ¶ 33.) It is a legal question whether these items are fixtures.
Plaintiff filed a four-Count Complaint against Defendant on September 19, 2012, alleging tortious interference with prospective economic advantage (Count I); conversion (Count II); unjust enrichment (Count III); and illegal eviction under 14 M.R.S. § 6001 et. seq. (Count IV). Plaintiff also seeks punitive damages and attorney's fees in the Complaint.
Notwithstanding the allegations in the Complaint, Paula, the sole member of JAAAMM's, states that she was not operating the day-to-day business operations of the business and therefore does not have any first hand knowledge of the details of the finances of the business other than she knows that in 2011 it lost $30,303.00. (SMF ¶ 36.) Although Paula provided contracts for events scheduled, Paula cannot provide any information about gross revenue or actual damages JAAAMM's claims to have lost as a direct result of the eviction. (SMF ¶ 38.)6 Paula does not know whether the delay in retrieving her items from JCS 2's premises was caused by JCS 2. (SMF ¶ 41.) Paula does not know what clients JAAAMM's was unable to service due to the alleged length of time access to 29 School Street was denied to her. (SMF ¶ 42.)7 Neither JCS 2 nor any of its representatives could have fraudulently misrepresented to her that she could continue to operate JAAAMM's banquet center at 29 School Street. (SMF ¶ 44.) Plaintiff does not properly controvert the statement contained in SMF ¶ 44. Moreover, Plaintiff previously replied to SMF ¶¶ 26, 27 that JAAAMM's was unwilling to pay the rent Smith wanted for the space.
Although Paula and JAAAMM's are seeking loss of business that they claim they could have had if they were not evicted, they cannot say what the dollar amount is for loss of business, and they have no expert witness to establish that business was lost. (SMF 46.) Paula cannot say if the loss of business was related to the eviction or a poor business model for JAAAMM's. (PSM ¶ 47.) Neither Paula, Michael, Michael Jr., nor anyone on behalf of JAAAMM's ever communicated to Smith or JCS 2 that they hadbooked events that they were going to miss out on, where JCS 2 did not make appropriate accommodations. (SMF ¶ 49.) Plaintiff states only that at the May 25, 2012 meeting with Smith that Michael Sr. expressed his concern about the "brides" who had booked weddings or receptions at the center. (OSMF ¶ 49.) Plaintiff fails to provide any admissible evidence...
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