Opinion
Civil Action CV-22-380
11-15-2023
LYN J. SALISBURY Plaintiff, v. SANDRA L. BISHOP Defendant.
Plaintiff-William Vickerson, Esq. Defendant Bishop-Pro Se.
Plaintiff-William Vickerson, Esq. Defendant Bishop-Pro Se.
ORDER ON DAMAGES
Deborah P. Cashman Justice.
Introduction/ Background
This matter came before the Court for hearing on the issue of damages on November 7, 2023. Plaintiff, Lyn J. Salisbuiy was present and represented by Attorney William L. Vickerson, Esquire. Defendant, Sandra L. Bishop, was present and self-represented.
A two-count complaint was filed in the Cumberland County Superior Court on November 22, 2022. In Count I, Conversion Plaintiff allege that Defendant unlawfully sold, without authority, a mobile home, and in Count II, Restitution for Funds Had and Received, Plaintiff seeks return of the funds received for the unlawful conversion of the mobile home.
Having been duly served with the complaint on November 7, 2022,Defendant failed to answer or otherwise defend the action as required by the Maine Rules of Civil Procedure. May 11, 2023, Plaintiff filed an Affidavit and Request for Default and Default Judgment against Defendant. The Court denied the original request for default judgment as the request did not comply with the notice requirement of M. R. Civ. P. 55(f). Following a second filing of an Affidavit and Request for Default and Default Judgment against Defendant an entry of default was issued against Defendant on September 8, 2023. A hearing on damages was scheduled for November 7, 2023, with notice to the parties. The Court has considered the evidence and exhibits presented at hearing and issues the following findings and Order for Entry of Judgment.
Defendant, for the first time at the damages hearing, alleged that she was not served in hand as the return of service states. However, based on the testimony of Defendant on this issue, and the specific information that Defendant asserts the officer said to her "roommate" and not her, the court did not find this testimony credible. Notwithstanding this testimony, other notices and the request for default were sent to Defendant and no communication was received in response to such actions.
Findings of Fact
Plaintiff and Defendant are sisters, and the adult daughters of Douglas M. Clark. On July 29, 2010, Douglas M. Clark executed a bill of sale for his 1987 Oxford Skyline Hampshire Mobile Home located at Lot #3, 101 Lisbon Road, Sabattus Creek Mobile Home Park, Lisbon, Maine. (Plaintiff's Exhibit #1.). This bill of sale was witnessed by Clark's attorney Marsha Weeks Trail, Esquire and done in consultation with Attorney Weeks Trail. Notwithstanding the execution of the bill of sale, Clark remained in the trailer. Clark died on January 9, 2019.
Learning of her father's death, Plaintiff texted Defendant, whom the court finds she was estranged from, informing Defendant of the bill of sale and Plaintiff's asserted ownership of the mobile home. On January 16, 2019, Plaintiff sent Defendant a screen shot of the bill of sale in support of her assertion that she was the owner of the mobile home. Plaintiff did not receive a response from Defendant.
At a date which is unknown to the court, Plaintiff learned from the clerk for the Town of Lisbon that Defendant had sold the mobile home. Plaintiff was shown a handwritten letter requesting that the clerk add Defendant's name to the mobile home. Plaintiff retained counsel who sent a written letter on Plaintiffs behalf to Defendant on June 16, 2020, again referencing the bill of sale, Plaintiffs ownership of the mobile home, and requesting return of the funds obtained as a result of the fraudulent sale of the mobile home in the amount of $10,000.00. (Plaintiff's Exhibit 2.)
In response, Defendant's retained counsel stated that the sale was not fraudulent and that the sale was conducted in good faith and in keeping with Clark's wishes as identified in his Last Will &Testament. Clark's will calls for his personal representative either give the mobile home to a single mother or in. the event the park owner would not allow that conveyance, to sell it and use the proceeds to provide housing to a single mother. (Plaintiffs Exhibit 3.). Defendant refused to return the funds to Plaintiff.
Defendant did not go through probate to be named personal representative for Clark's estate and she did not file any action in probate to address the will. Defendant sold the mobile home to the owner of the mobile home park for $10,000.00. Both Plaintiff and Defendant testified that they believed that $10,000.00 was a fair market value for that mobile home, and based on that testimony the court finds that the value of the mobile home is $10,000.00.
Defendant testified that she was unaware of Plaintiff's ownership claim of the property. The court does not find that assertion credible. As early as 7 days after their father's death, Plaintiff was texting Defendant about the bill of sale and asserting ownership of the mobile home. Whether or not Clark remembered the transfer of title to Plaintiff, or if the will instructed otherwise, j should have been challenged in court or through a probate proceeding. Defendant made no effort to legally challenge the bill of sale and Plaintiff's ownership of the mobile home.
Upon receiving the $10,000.00 from the unlawful transfer, Defendant opened an account and deposited the money. The principal amount remains in that account and in the three years since Clark's death, Defendant proports to have given the interest to the Shriner's in her father's name.
The generated interest in the account was $176.46, $211.00, $207.23 for a total of $594.69 which Defendant donated to the Shriner's to assist "a single mother."
Damages
"The necessary elements to make out a claim for conversion are: (1) a showing that there is a property interest by the person claiming the property was converted; (2) that person had a right to possession at the time of the alleged conversion; and (3) that the party with the right to possession made a demand for a return, which was refused by the holder." Leighton v. Fleet Bank of ME, 634 A.2d 453, 457 (Me. 1993). For conversion, the "traditional measure of damages is the full value of the property at the time of the unlawful conversion." Newbury v. Virgin, 202 ME 119, ¶16, 802 A.2d 413, 417.
The court finds that Defendant transferred the mobile home for the fair market sum of $10,000.00. At the time of the transfer, Plaintiff held an ownership right to the mobile home. The court finds that Defendant converted the mobile home and that Plaintiff's damages in this case are $10,000.00. Plaintiff shall also have interests and costs.
The entry will be:
Judgment for the Plaintiffs in the amount of $10,000.00 plus interests and costs.
The clerk shall incorporate this Order on the docket by reference pursuant to M.R. Civ. P. 79(a).