MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	51

Docket: Yor-16-207

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	 filed 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	after	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	disagreeing	

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	 Barron	 in	 the	 foreclosure	 action.		

Barron	 failed	 to	redeem	 the	property	during	 the	180-day	redemption	period	

stated	in	the	foreclosure	judgment.		Chase,	by	and	through	its	counsel,	Shapiro	

&	Morley,	published	notice	of	the	public sale	of	the	subject	property.

[¶4]		On	March	6,	2014,	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 closing	 date	 by	

agreement.		On	 July	16,	2014,	 the	closing	occurred,	and	 the	high	bidder	paid	
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the	 $155,000	 balance	 for	 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	 check	 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	 sale 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	practices.

[¶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	 period,	 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	“inherently	
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untrustworthy	claims”	and	unspecified	errors	in	the	report	of	sale	and	sought	

an	evidentiary	 hearing	 to	 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	due	 to	him	in	 the	report	of	sale.		

There	is	no	indication	in	the	record	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	 foreclosure	 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	 the	 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	30	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	 from	 Chase.		

That	information	is	 not	 part	 of	 the	 trial	 court	 record	 before	 us,	 and	 even	if	it	were,	it	would	 not	

affect	our	analysis.
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challenge	may	 be	 for	money	 only	and	 does	 not	affect	 the	 title	 to	

the	real	estate	purchased	by	the	highest	bidder	at	the	public	sale.

		

Section	6324	sets	no	time	limits	for	post-sale	disbursements 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	 objection to	 the	

report	 of	 sale in	 the	 District	 Court,	 Barron	 filed	 this	 action	 in	 the	 Superior	

Court.	 	 Barron’s	 four-count	 complaint	 against	 Shapiro	 &	 Morley	 and	 Chase	

includes	 claims	 for	 conversion,	 intentional	 infliction	 of	 emotional	 distress,	

unfair	 trade	practices,	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	after	Barron	made	a	

demand	for	it.

[¶11]	 	 In	 October	 2014,	 Chase	 moved	 to	 dismiss	 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	 collectively	 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.
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hearing,	by	judgment	dated	March	25,	2016,	the	court	treated	Chase’s	motion	

to	dismiss	as	one	for	summary	judgment	and	granted	both	motions.4		See 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	ANALYSIS

[¶12]		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	 parties’	 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	Rule	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	 with	 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	 statements	 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	 decision	 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	disregarded).

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.
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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	judgment	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.

[¶13]	 	 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	 insufficient	 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.

[¶14]		“The	gist	of	conversion 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.		The	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	 interest	 in	 the	 property;	 (2)	 the

person had	the	right	to	possession	at	the	time	of	the	alleged	conversion;	and	
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(3)	the	party	with	 the	right	 to	possession	made	a	demand	 for	its	return	 that	

was	denied	by	the	holder.		Id.;	accord Leighton	v.	Fleet	Bank of	Maine,	634	A.2d	

453,	457	(Me. 1993).

[¶15]		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	 does not	 dispute—that	 he	 had	 a	

property	 interest	 in	 the	 surplus	 and	 that	 he	 made	 a	 demand	 for	 its	 release	

shortly	 after	 the	 closing	 of	 the	 sale.	 	 However,	 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	July	2014	and	October	2014.

[¶16]	 	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	

expenses	 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,	 although	 its	 reference	 to	 section	 6324	 inferentially	
9

incorporated	 the	 required	 thirty-day	 period to	 object	 to	 the	 report	 of	 sale	

before	the	disbursements	following	the	sale	could	be	finalized.

[¶17]		“[C]onversion requires	an	actual	interference	with	 the	property	

owner’s	rights	beyond	a	brief	and	ultimately-harmless	withholding.”		Lougee,	

2012	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,	

2012 ME	103,	¶	22,	48	A.3d	774.

[¶18]	 	 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	

proceeds	 and	 close	 out	 the	 foreclosure	 proceeding.	 	 The	 firm	 was	 under	 no	

legal	obligation	to	disburse	the	funds	earlier or	upon	Barron’s	demand.”		This	

determination	was	appropriate	and	accurate,	based on	the	nature	of	Shapiro	
10

& Morley’s	 regular	 business	 practice	 for	 disbursements	 to	 third	 parties	 and

the	undisputed	facts	in	the	statements	of	material	fact.

[¶19]	 	 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	 required	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	 occur.	 	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	

provision	 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	preparation,	filing, and	expiration	of	

the	period	for	objecting	to	the	report	of	sale	required	by	section	6324.		
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triable	claim	that	he	had	a	right	of	exclusive	possession	before	that	time.		The	

Superior	Court	properly	granted	summary	judgment	on	the	conversion	claim.

[¶21]		Barron	argues	that	if	we	reinstate	his	conversion	claim,	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	derivative	of	the	conversion	claim.		Barron’s	contention	misconstrues	the	

trial	 court’s	 decision,	 which	 granted	 a	 summary	 judgment	 on	 each	 claim	

independent	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.	Derby,	 2006	ME	 110,	 ¶	 11,	 905	 A.2d	 290

(“[I]ssues	 adverted	 to	 in	 a	 perfunctory	 manner,	 unaccompanied	 by	 some	

effort	at	developed	argumentation,	are	deemed	waived.”).

The	entry	is:

Judgment	affirmed.
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Mark	A.	Kearns,	Esq.,	and	Mark	L.	Randall,	Esq.,	Portland,	for	appellant	Estate	

of	John	R.	Barron

Adam	 J.	 Shub,	 Esq.,	 Preti	 Flaherty	 Beliveau	 &	 Pachios,	 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

FOR	CLERK REFERENCE	ONLY