MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 51 Docket: Yor

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- 207 Submitted

On	Briefs: February	10,	2017 Decided: March	16 ,	2017 Panel: ALEXANDER , MEAD , GORMAN ,	JABAR,	HJELM,	and	HUMPHREY,	JJ.
ESTATE	OF	JOHN	R.	BARRON

v. SHAPIRO	&	MORLEY,	LLC , et	al.

ALEXANDER ,	J. [¶1]	 	 The	 Estate	 of	 John	R.	 Barron	 appeals	 from	 a	 summary	judgment entered	in	the	Superior	Court	(York	County, Douglas,	J. )	in	favor	of	Shapiro	& Morley,	 LLC , and	 JPMorgan	 Chase	 Bank,	 N.A. , on	 a	 complaint	 fi led by John R. Barron, 1 alleging	 conversion,	 intentional	 infliction	 of	 emotional distress,	unfair	trade	practices,	and	civil	conspiracy.		Barron’s	claims	arose	out of	 alleged	 delays	 in	 the	 distribution	 of	 surplus	 funds	 following	 the	 sale	 of Barron’s	home	afte r	a	foreclosure.		We	affirm	the	judgment.

1 On	January	2,	2017,	while	this	appeal	was	pending, we granted the	Estate	of	John R. Barron’s motion to	be	substituted	as	plaintiff.2 I.		CASE	HISTORY [¶2 ]		The	summary	judgment	record	contains	the	 following	 facts	taken from	 the	 parties’	 statements	 of	 material	 fact	 that	 were	 admitted	 or	 not properly	 objected	 to	 by	 Barron,	 the	 opposing	 party. See Murdock	 v.	 Thorne , 2016	ME	41,	¶	2,	135 A.3d	96 .		In	addition,	Barron’s	brief	on	appeal	states	that “[t]he	‘Facts’	are	recited	by	the	Trial	Court	in	its	March	25,	2016	Decision	and Order,”	apparently	accepting	the	facts	stated	by	the	trial	court,	but	disa greeing with	its	legal	conclusions. [¶3 ]	 	 Shapiro	 &	 Morley,	 a	 South	 Portland	 law	 firm,	 represented JPMorgan	 Chase	 Bank	 in	 a	 foreclosure	 action against	 John R.	 Barron in	 the
District	 Court ( Springvale )

. On	 July	 19,	 2013,	 the	 District Court	 issued	 a judgment	 in	 favor	 of	 Chase	 and	 against	 Ba rron	 in	 the	 foreclosure	 action. Barron	 failed	 to	redeem	 the	property	during	 the	180

- day	redemption	period

stat ed	in	the	foreclosure	judgment. Chase,	by	and	through	its	counsel,	Shapiro &	Morley,	published	notice	o f	the	public sale	of	the	subject	property. [¶4 ]		On	March	6,	201 4,	a	foreclosure	sale	was	held. At	the	sale,	the	high bidder	made	a bid	of	$160,000	and	signed a	purchase and	sale	agreement	with Chase. Chase	 and	 the	 high	 bidder	 extended the original closi ng	 date	 by agreement. On	 July	16,	2014,	 the	closing	occurred,	and	 the	high	bidder	paid3 the	 $155,000	 balance	 fo r	 the	 purchase	 of	 the	 property. The	 sale	 proceeds were	deposited	into	Shapiro & Morley’s	client	trust	account. [¶5 ]	 	 On	 July	 31,	 2014,	 Shapiro	 & Morley	 sent	 Chase	 a	 ch eck	 for $118,178.49,	 representing	 Chase’s	 portion	 of	 the	 sale	 proceeds. Soon thereafter ,	 Barron	 sought	 distribution	 of	 the	 surplus	 to	 him

. However, Shapiro	&	Morley,	as	is	its	custom,	does	not	disburse	surplus	funds	to	a	third party,	 such as	 Barron,	 until	 expiration of	 the statutory thirty

- day objection period	 after	 the filing	 of	 the report	 of	 s ale required	 by	 14	 M.R.S.	 § 6324 (2016) .	 	 The	 purpose	 of	 the	 delayed	 final	 distribution	 is to	 allow any interested	party an	opportunity to	object	to	the	report	of	sale. When	Shapiro
& Morley	failed	to	comply	with	his	demands,	Barron	sent	a	notice	of	intent	to file a claim	for unfair	trade	practice s . [¶6 ]	 	 Shapiro	&	Morley	 filed	 the	 report	 of	 sale on	 September	 9,	 2014. The	report	of	sale stated that	the	surplus	of	$41,820.94	would	be	disbursed	to Barron	upon	the	expiration	of	the	objection	period	 following	the	 filing	of	the report	of	sale	or	upon	a waiver	of	objection	by	Barron. [¶7 ]	 	On	October	 9,	 2014,	 the	last	 day	 of	 the	 objection	 perio d,	 Barron filed in	the	District	Court	foreclosure	action a	motion	objecting	to	the	report	of sale

. The	motion	sought	a	ninety

- day	discovery	period	to	examine	“inherently4 untrustworthy	claims”	and	unspecified	errors	in	the	report	of	sale	and	sought an	evid entiary	 hearing	 t o	 challenge	 the	 report	 of	 sale. The	Superior	 Court’s decision	 indicates	 that	 Barron	 was	 claiming	 entitlement	 to	 approximately $3 , 000	in	addition	 to	 the	 funds	indicated	as	du e	 to	him	in	 the	report	of	sale. There	is	no	indication	in	the	re cord	before	the	Superior	Court	that	the	District Court	 considered	 Barron’s	 motion,	 or	 that	 the	 pendency	 of	 Barron’s	 motion delayed	disbursement	of	the	surplus	funds	to	Barron. 2 [¶8] On	 October	 23,	 2014,	 the	 $41,820.94	 surplus	 identified	 in	 the report	of sale	was	disbursed	to	Barron. [¶9 ]	 	 Payment	 of	 the	 proceeds	 from	 a	 for eclosure	 sale	is	 governed	 by
14 M.R.S.	§	6324 ,	which ,	in	addition	to	requiring	payment	of	any	surplus	from the	sale	to	the	mortgagor, provides,	as	relevant	to	this	action: After	first deducting	the	expenses	incurred	in	making	the	sale,	the mortgagee	 shall	 disburse	 the	 remaining	 proceeds	 in	 accordance with	 the	 provisions	 of	 the	 judgment.	 	 The	mortgagee	 shall	 file	 a report	of	the	sale	and	the	disbursement	of	the	proceeds	therefrom with	 th e	 court	 and	 shall	 mail	 a	 copy	 to the	 mortgagor	 at	 the mortgagor’ s	 last	 known	 address.	 	 This	 report	 need	 not	 be accepted	 or	approved	 by	 the	 court,	 provided	 that	 the	mortgagor or	 any	 other	 party	 in	 interest	 may	 contest	 the	 accounting	 by motion	filed	within	3 0	days	of	receipt	of	the	report,	but	any	such

2 Barron’s	brief	asserts	that	after	the	Superior	Court	entered	its	judgment,	the	District	Court,	on April	 26,	 2016,	 found	 that	 Barron	 was	 entitled	 to	 an	 additional	 $2,506.18	 payment	 fr om	 Chase. That	information	is	 not	 part	 of	 the	 trial	 court	 record	 before	 us,	 and	 even	if	it	were,	it	would	 not affect	our	analysis.5 challenge	may	 be	 for	money	 only	and	 does	 not	affect	 the	 title	 to the	real	estate	purchased	by	the	hig hest	bidder	at	the	public	sale.
S ection	6324	sets	no	time	limits	for	post

- sale	disbursement s of	proceeds. [¶10 ]		On	October	3,	2014,	before the expiration	of	the statutory	period for	 objecting	 to	 the	 report	 of	 sale,	 and	 before he	 filed his obj ection to	 the report	 o f	 sale in	 the	 District	 Court,	 Barron	 filed	 this	 action	 in	 the	 Superior Court.	 	 Barron’s	 four

- coun t	 complaint	 against	 Shapiro	 &	 Morley	 and	 Chase includes	 claims	 for	 conversion,	 intentional	 infliction	 of	 emotional	 distress, unfair	 trade	p ractices,	and	civil	conspiracy. Barron	contends	 that	Shapiro	& Morley	converted	the	surplus	proceeds	owed	to	him from	the	foreclosure	sale when	Shapiro	&	Morley	disbursed	the	sale	proceeds	to	Chase	in	July	2014,	but did	not	disburse	the	surplus	proceeds	to	Barron	until	October	2014. 3 Barron argues	 that	 Shapiro	 &	 Morley	 had	 no	 lawful	 justification

— by	 statute,

common law,	or	court	order

— for	withholding	the	surplus	afte r	Barron	made	a demand	for	it. [¶1 1 ]	 	 In	 October	 2014,	 Chase	 moved	 to	 di smiss	 the	 complaint. In August	 2015,	 Shapiro	 &	 Morley	 moved	 for	 summary	 judgment. After	 a

3 As	 the	 trial	 court	 noted,	Barron’s	 pleadings	generally	 do	 not	 distinguish	 between	Shapiro	& Morley	 and	 Chase.	 	 Barron	 col lectively	 refers	 to	 them	 as	 the	 “defendants.”	 	 Any	 liability	 for conversion	as	 to	Chase	appears	 to	be	wholly	derivative	of	Shapiro	&	Morley’s	conduct	during	 the foreclosure	proceedings.6 hearing,	by	judgment	dated	March	25,	201 6,	the	court	treated	Chase’s	motion to	dismiss	as	one	for	summary	judgment	and	granted	both	motions. 4 S ee M.R.
Civ. P. 12(b); Moody	 v.	 State	 Liquor	 &	 Lottery	 Comm’n ,	 2004	 ME	 20,	 ¶	 8,
843 A.2d	43 .		Barron	timely	appealed. 5 See M.R. App. P.	2.
II.		LEGAL	A NALYSIS [¶1 2 ] We	review	summary	judgment	decisions	de	novo,	as	a	question	of law. Budge	v.	Town	of	Millinocket ,	2012	ME	122,	¶	12,	55	A.3d	484

. Summary judgment	 is	 appropriate	 when	 review	 of	 the	 parti es’	 statements	 of	 material

4 The	Superior	Court	addressed	its	consideration	of	the	parties’	statements	of	material	fact	in	an extensive	footnote	as	follows: Shapiro	 &	 Morley	 filed	 a	 33

- paragraph	 statement	 of	 material	 facts	 along	 with	 its motion	as	required	by	 the	rules.		 [Barron] filed	an	opposing	statement	of	material facts	denying	two	of	the	33	paragraphs,	qualifying	six	paragraphs	and	admitting	the remaining	 25 paragraphs.	 	 Included	 in	 the	 opposing	 statement	 is	 a	 69

- paragraph additional	statement	of	material	facts	pursuant	to	Ru le	56(h)(2).		Shapiro	&	Morley filed	 a	 reply	 denying	most	 and	 objecting	 to	 nearly	 all	 of	 the	 69	 paragraphs,	 citing various	 grounds	 including	 relevance,	 materiality,	 inadequate	 record	 support	 and recitation	 of	 legal	 conclusions	 as	 facts.	 	 The	 court	 agrees	 w ith	 many	 of	 the objections.		To	the	extent	that	either	party’s	statement	of	material	facts	or	additional statement	of	material	facts	sets	forth	statements	that	are	irrelevant,	immaterial,	do not	 have	 adequate	 record	 support	 and/or	 are	 conclusory	 legal	 stat ements	 as opposed	to	statements	of	facts,	the	court	does	not	rely	on	them	for	purposes	of	this motion. The	 trial	court’s	approach	 to	 the	 statements	 of	material	 fact	was	appropriate	and	provided	an adequate	 record	 of	 material	 facts	 on	 which	 to	 base	 its	 dec ision	 and	 our	 review	 on	 appeal. See M.R. Civ.	P.	56(h)(4); Dyer	v.	Dep’t	of	Transp. ,	2008	ME	106,	¶	14,	951	A.2d	821	(statements	of material	 fact	 that	 “rest[]	 merely	 upon	 conclusory	 allegations,	 improbable	 inferences,	 and unsupported	speculation”	may	be	d isregarded).

5 In	 its	 brief, Shapiro	 &	 Morley asserts	 that	 Barron’s	 claims	 are	 barred	 by	 the	 doctrine	 of duplicity.	 	 The	 Superior	 Court	 rejected	 the	 duplicity	 argument,	 noting	 that	 the	 claims	 and	 relief sought	in	 this	 action	 are	 different	 from	 the	 relief sought	in	District	 Court,	 citing Geary	 v.	 Stanley , 2007 ME	133,	¶	14,	931	A.2d	1064.		We	need	not	address	the	duplicity	issue	to	resolve	this	appeal.7 fact and	the	record	evidence	to	which	the	statements	refer,	considered	in	the light	most	favorable	to	the	party	opposing	summary	judgment,	demonstrates that	 there	is	no	genuine	issue	 of	material	 fact	 that	is	in	dispute	and that the party	seeking	summary	judgme nt	is	entitled	 to	judgment	as	a	matter	of	law. Remmes	 v.	 Mark	 Travel	 Corp

. , 2015	 ME	 63,	 ¶	 18,	 116	 A.3d	 466 ; Budge , 2012 ME	122,	¶	12,	55	A.3d	484

. [¶1 3 ] To survive	 a	 defendant’s	 motion	 for	 a	 summary	 judgment,	 a plaintiff	must	establish	a	prima	facie	case	for	each element	of	his	or	her	cause of action. Lougee	 Conservancy	 v.	 CitiMortgage,	 Inc. ,	 2012	 ME	 103,	 ¶	 12,
48 A.3d	 774

. If	 a	 plaintiff	 presents	 insuffic ient	 evidence	 on	 an	 essential element	 of	 a	 cause	 of	 action,	 such	 that	 the	 defendant	 would	 be	 entitled	 to judgment	 as	 a	 matter	 of	 law	 on	 that	 state	 of	 the	 evidence	 at	 a	 trial,	 the defendant	is	entitled	to	a	summary	judgment. Id. [¶1 4 ]		“The	gist	of convers ion is	the	invasion	of	a	party’ s	possession	or right	to	possession	at	the	time	of	the	alleged conversion .” Withers	v.	Hackett , 1998	ME	164,	¶	7,	714	A.2d	798

. T he	necessary	elements	to	establish a	claim for conversion are a	 showing	 that (1) the	 person	 claiming	 that	 his or	 her property	 was	 converted	 has	 a	 property	 inter est	 in	 the	 property;	 (2)	 the
person had	the	right	to	possession	at	the	time	of	the	alleged conversion ;	and8 (3) the	party	with	 the	right	 to	possession	made	a	demand	 for	its	retu rn	 that was	denied	by	the	holder

. Id. ; accord Leighton	v.	Fleet	Bank of	Maine ,	634	A.2d 453,	457	(Me. 1993)

. [¶1 5 ]		Thus, Barron	was	required	to	demonstrate a	property	interest	in and	the	right	to	possession	of	the	surplus	proceeds	at	the	time	of	the	alleged
conversion. See Lougee ,	 2012	 ME 103,	 ¶ 21,	 48	 A.3d	 774.	 	 Barron has demonstrated

— and Shapiro	 &	 Morley	 do es not	 dispute

— that	 he	 had	 a property	 interest	 i n	 the	 surplus	 and	 that	 he	 made	 a	 demand	 for	 its	 release shortly	 after	 the	 closing	 of the	 sale.	 	 H ow ever,	 Barron	 has	 not generated	 a prima	facie	claim that	he	had	a	right	to	exclusive	possession	of	the	surplus	at the	time	of	the	alleged conversion

— between	J uly	2014	and	October	2014. [¶1 6 ] The	 District	 Court	 foreclosure	 judgment	 ordered	 that,	 after	 the redemption	 period,	 Chase	 “shall	 sell	 the	 [property]	 pursuant	 to	 14	 M.R.S. § 6321 et	seq., and	shall	disburse	the	proceeds	of	the	sale,	after	deducting the
exp enses	 thereof,	 in	 the	 following	 order:	 	 First,	 to	 JPMorgan	 Chase	 Bank, National	 Association,	 its	 successors	 and	 assigns,	 as	 set	 forth	 above;	 Second, the	 surplus	 proceeds,	if	 any,	 to	 John R.	 Barron	in	 accordance	with	 14 M.R.S. § 6324.” The	 judgment	 did	 not provide	 a	 specific	 time frame	 for disbursements, al though	 its	 reference	 to	 section	 6324	 inferentially9 i ncorporated	 the	 required	 thirty

- day	 period to	 object	 to	 the	 report	 of	 sale before	the	disbursements	following	the	sale	could	be	finalized. [¶1 7 ] “[C]on version requires	an	actual	interference	with	 the	property owner’s	right s	beyond	a	brief	and	ultimately

- harmless	withholding.” Lougee , 2 012	ME	103,	¶	22,	48 A.3d	774; see Northeast	Bank	of	Lewiston	&	Auburn	v. Murphy ,	 512 A.2d 344,	 347	 (Me.	 1986) (stating	 that	 conversion	 requires	 an intent	to	exercise	dominion	that	“in	fact”	seriously	interferes	with	the	owner’s rights).	 	 “To	 determine	 whether	 an	 interference	 is	 sufficiently	 serious	 as	 to

amount	 to conversion ,	 the	 court	 should	 consider	 the	 extent and	 duration	 of the	actor’s	exercise	of	dominion	or	control;	 the	actor’s	good	 faith;	 the	extent and	duration	of	the	resulting	interference	with	the	other’s	right	to	control;	the harm	done;	and	the	inconvenience	and	expense	caused	to	the	owner.” Lougee , 20 12 ME	103,	¶	22,	48	A.3d	774. [¶1 8 ]	 	 The	 Superior	 Court determined	 that	 “Shapiro	 &	 Morley	 was	 a lawful,	transient	possessor	of	the	surplus	funds,	and	so	acted	in	the	context	of an	 ongoing	 proceeding	 in	 District	 Court	 to	 finally	 account	 for	 the	 sale proceed s	 and	 close	 out	 the	 foreclosure	 proceeding.	 	 The	 firm	 was	 under	 no legal	obligation	to	disburse	the	funds	ear lier or	upon	Barron’s	demand.” This determination	was appropriate and	accurate, based on the	nature	of Shapiro10 & Morley’s	 regular	 business	 practic e	 for	 disbursements	 to	 third	 parties	 and the	undisputed	facts	in	the	statements	of	material	fa ct. [¶1 9 ]	 	 Applying	 the	 standards	 suggested	 in Lougee , the	 evidence establishes	 as	 a	 matter	 of	 law	 that Shapiro	 &	 Morley	 retained	 the	 surplus funds	in	good	faith and	consistent	with its past	practice	until	expiration	of	the
time established	by	law for objection	 to	 the	 report	of	sale;	and retention	 for that	period	of	time	was	not	unreasonable

. We	note,	also,	that Barron	chose	to delay	his objection to	the	report	of	sale	until	the	last	possible	day,	and	sought to	 further	 delay	 final	 resolution	 for at	least	 another	 ninety	 days. Shapiro	& Morley	 lawfully	 possessed	 the	 surplus	 following	 the	 sale , and	 neither	 the statute	 nor	 the	 foreclosure	judgment	 requ ired	Shapiro	&	Morley	 to	 disburse the	surplus	to	Barron	sooner	than	October	2014. 6 [¶20 ]	 	 The	 case	 might	 be	 closer	 had	 Shapiro	 &	 Morley	 delayed distribution	 of	 the	 surplus	 until	 resolution	 of	 the	 payment	 dispute	 in	 the District	Court,	 but	 that	 did	 not	 occu r.	 	The	 funds	were	 paid	 two	weeks	after expiration	of the	deadline	for	filing	objections	to	the	report	of	sale	and	while Barron’s	objection	was	pending	and	unresolved.		Barron has	not	presented	a

6 To	support	his	claim	 that	he	was	entitled	 to	payment	soon	after	 the	sale,	Barron	points	 to	a provisio n	 in	 section	 6324	 which	 states	 that	 “[a]ny	 surplus	 must	 be	 paid	 to	 the	 mortgagor,	 the mortgagor’s	 successors,	heirs	 or	assigns	in	 the	proceeding.”		This	provision	 sets	no	 time	limit	 for payment	of	the	surplus,	and	certainly	no	time	limit	before	the	prepara tion,	filing , and	expiration	of the	period	for	objecting	to	the	report	of	sale	required	by	section	6324.11 triable	claim	that	he	had	a right	of	exclusive	possession	be fore	that	time.		The Superior	Court	properly	granted	summary	judgment	on	the	conversion	claim. [¶21 ]		Barron	argues	that	if	we	reinstate	his	conversion	cl aim,	the	other three	 claims

— intentional	 infliction	 of	 emotional	 distress ,	 unfair	 trade practices,	and	civil	conspiracy

— should also be	reinstated	because,	he	argues, the	trial	court	granted	a	summary	judgment	on	the	three	claims	because	they are	deri vative	of	the	conversion	claim. Barron’s	contention	misconstrues	the trial	 cou rt’s	 decision,	 which	 granted	 a	 summary	 judgment	 on	 each	 claim
i ndependent	of	the	other	claims. Because	the three	remaining	claims	are	not addressed	in	any	detail	in	Barron’s	brief,	we	view	argument	on	the	other	three claims	 as	waived. See Mehlhorn	 v.	Der by ,	 2006	ME	 110,	 ¶	 11,	 905	 A.2d	 290 (“[I] ssues	 adverted	 to	 in	 a	 perfunctory	 manner,	 unaccompanied	 by	 some effort	at	developed	argum entation,	are	deemed	waived

. ”). The	entry	is: Judgment	affirmed.12
Mark	A.	Kearns,	Esq.,	and	Mark	L.	Randall,	Esq.,	Por tland,	for appellant	Estate of	John	R.	Barron Adam	 J.	 Shub,	 Esq.,	 Preti	 Flaherty	 Beliveau	 &	 Pachio s ,	 LLP,	 Portland , for appellee	JPMorgan	Chase	Bank,	N.A. Joshua	 D.	 Hadiaris,	 Esq.,	 Norman,	 Hanson	 &	 DeTroy,	 LLC,	 Portland,	 for appellee	Shapiro	&	Morley, LLC

York	County	Superior	Court	docket	number	CV

- 2014

- 191 F OR C LERK R EFERENCE O NLY