Vincent L. McKusick

In Burton v. Merrill, a client sued his former attorney for professional negligence after the attorney failed to file a counterclaim or aggressively defend against a city's enforcement action for illegal operation of a rooming house, resulting in the loss of the property. The jury found the attorney liable and awarded damages of approximately $50,000 on a general verdict. The Maine Supreme Court affirmed the judgment, holding that the evidence was sufficient to establish the elements of negligence, causation, and damages, and that the trial court did not err in its jury instructions or by refusing to direct a verdict on certain claims.

torts & liabilityproperty

In Paine v. Spottiswoode, homeowners sued their unlicensed designer, unlicensed engineers, and general contractor for negligence and breach of warranties after their custom-built house suffered extensive defects, including leaks and inadequate heating that rendered it uninhabitable and led to its sale at a loss. The Superior Court accepted a referee's report finding the contractor liable for multiple construction defects and awarding damages based on repair costs, with joint and several liability for some defects shared among defendants; it also rejected a cross-appeal seeking to extend joint liability to the designer. The Maine Supreme Court affirmed, holding that the referee's factual findings were supported by competent evidence, that the contractor could be held responsible for construction shortcomings even where design flaws contributed, that the cost-of-repair measure was appropriate, and that joint liability applied under the single-injury rule when defendants failed to prove apportionment. The cross-appeal was dismissed because the plaintiffs had not preserved the issue by objecting to the referee's report.

torts & liabilityprocedure

In Cameron v. Pepin, the parents of a young man seriously injured in a car accident sued the defendant driver for negligent infliction of emotional distress after they arrived at the hospital and witnessed their son's condition over the six days until his death. The trial court awarded the plaintiffs damages, but the Maine Supreme Judicial Court vacated the judgment. The court held that indirect victims like the parents, who were not present at the accident scene, cannot recover for NIED. It reaffirmed the three-factor foreseeability test from Culbert v. Sampson’s Supermarkets, requiring that a plaintiff be present at the scene, suffer distress from contemporaneously perceiving the accident, and be closely related to the victim, rejecting a broader pure-foreseeability standard that would allow recovery based solely on later observations of the victim's suffering.

torts & liability

In this case, plaintiff Jacques obtained a default judgment against attorney Mackey for legal malpractice after Mackey failed to timely file a wrongful discharge suit, then sought to reach and apply the proceeds of Mackey's legal malpractice insurance policy issued by defendant American Home Assurance Company under Maine's reach-and-apply statute. The Superior Court granted summary judgment to the insurer, and the Supreme Judicial Court affirmed. The court held that the insurer received constitutionally insufficient notice of the malpractice action, depriving it of a meaningful opportunity to defend as required by due process, and that the insurer had not clearly waived this right. Although the insurer had earlier received notice of a potential claim, it was not informed of the actual lawsuit until after the default judgment was entered. The court did not decide whether the statute applies to claims for purely economic loss from legal malpractice.

proceduretorts & liability

The case involved the Estate of Ronald Althenn seeking life insurance proceeds from his ex-wife Cynthia Althenn, alleging that Ronald had changed the beneficiary to the Estate or that Cynthia had agreed to convey the proceeds to the Estate or use them for their minor son's benefit. The Superior Court granted summary judgment to Cynthia, and the Maine Supreme Judicial Court affirmed. The court found no genuine issues of material fact because the beneficiary was never changed in accordance with the policy and statutory requirements, and there was no evidence that Cynthia knew about the policy or made any promises regarding the proceeds. The affidavits submitted by the Estate were insufficient to support its claims.

family lawpropertyprocedure

The case involved Thelma Bowen suing the Department of Human Services and her supervisor Dolores Bartley for sexual discrimination via hostile work environment harassment, retaliatory discharge, and related tort claims after resigning from her probationary position due to vulgar language and offensive conduct in the office. The Superior Court granted summary judgment to the defendants, and the Maine Supreme Court affirmed. The court reasoned that Bowen failed to show the offensive conduct occurred because of her sex, as it was used by and directed at both men and women; there was no evidence of retaliation for opposing discrimination; and the supervisor was immune from tort claims for discretionary supervisory decisions.

civil rightslabor & employmenttorts & liability

In this case arising from a failed real estate deal, buyer Rosario Boisvert sued sellers Norman Reef as trustee of GHR Trust and the Estate of Robert Zalko, along with broker Portland Five, Inc., to recover a $10,000 earnest money deposit after the transaction did not close. The Superior Court granted summary judgment to Boisvert, and the Maine Supreme Judicial Court affirmed. The purchase agreement contained an express warranty by the sellers of good and marketable title at signing and conditioned the buyer's performance on the accuracy of that warranty, with a refund required if it proved untrue. It was undisputed that the sellers lacked title to the property both at signing and at the time they declared the contract expired. The court held that the agreement's provision addressing title defects did not apply to the sellers' complete lack of title, so Boisvert had no further obligation and was entitled to the deposit's return.

property

The case involved Perry Lamb seeking an injunction to require the Town of New Sharon and Franklin County to repair a road traversing his property, which the town claimed had been abandoned. The Superior Court granted summary judgment in favor of the defendants after finding that the road had been abandoned under 23 M.R.S.A. § 3028 due to lack of repairs and public use over a thirty-year period. The Maine Supreme Court affirmed, holding that the town was not precluded from litigating the abandonment issue, that the statute did not violate constitutional rights in this context, and that the evidence supported the abandonment finding, thus removing any duty to repair.

propertyprocedure

The case involved plaintiffs who purchased subdivided lots and sued defendants McPherson, his timber management company Timberlands, and logger Robinson after Robinson's crew bulldozed a road and cut timber across the plaintiffs' land. The jury found all defendants liable for trespass and timber removal under 14 M.R.S.A. § 7552, awarding treble damages on the ground that the conduct was willful or knowing. The Maine Supreme Court vacated the judgment, holding that the evidence was insufficient to show Robinson acted willfully or knowingly because it lacked subjective awareness that it was cutting on the plaintiffs' property, and that McPherson and Timberlands could not be held vicariously liable because they neither authorized, directed, nor ratified the trespass. The court therefore ordered entry of a judgment for single damages against Robinson only.

propertytorts & liability

In State v. Reynoso, the defendant was convicted after a jury trial of aggravated trafficking in a schedule W drug based on police observations of cocaine and a shotgun linked to him during a search of an apartment. On appeal, Reynoso challenged the admission of an undisclosed bill of sale for the shotgun, claimed ineffective assistance of counsel for failing to object and for other questioning, and sought resentencing. The court affirmed the conviction, finding no obvious error in admitting the evidence without objection and no clear inadequate representation on the record, but it vacated the sentence and remanded for reconsideration under recent precedent on Class A offense sentencing. The decision focused on procedural rules for discovery violations and appellate review standards without altering the underlying conviction.

criminal lawprocedure

In State v. Bragg, the defendant was convicted after a jury trial of two counts of gross sexual misconduct for engaging in sexual acts with a 13-year-old girl. He appealed the denial of his motion to suppress a signed statement given to police, arguing it was involuntary and obtained after he invoked his right to counsel, as well as the trial court's exclusion of a letter written by the victim that could have impeached her testimony. The Maine Supreme Court upheld the suppression ruling, finding the confession voluntary because no promises of leniency induced it and the defendant was not in custody when questioned at the station, as he had been repeatedly told he was not under arrest and was free to leave. However, the court vacated the convictions, holding that the letter was erroneously excluded under M.R. Evid. 412 because the rule does not bar a victim's statement about past sexual conduct when offered for impeachment purposes, and the exclusion was not harmless error.

criminal lawprocedure

In State v. Dube, the defendant was convicted after a jury trial of Class A gross sexual assault based on the victim's testimony that he had raped her after providing her alcohol. On appeal, the defendant argued that the trial court erred in admitting the victim's out-of-court statements to her sister, school principal, and a detective, a detective's testimony about believing the victim, and evidence of the victim's changed behavior after the incident. The Maine Supreme Judicial Court affirmed the conviction, holding that the out-of-court statements were admissible as prior consistent statements to rebut an implication of recent fabrication even though introduced early, that the detective's testimony did not invade the jury's role on credibility at trial, and that the behavior evidence was relevant to showing a traumatic event occurred, with any potential errors not rising to obvious error affecting substantial rights given the lack of timely objections.

criminal lawprocedure

In State v. Jones, defendant Steven Jones was convicted by a jury in Superior Court of aggravated assault and assault on a minor after an infant in his care on February 1, 1988, was diagnosed with brain injuries consistent with shaken baby syndrome. Jones appealed, claiming the trial court erred by excluding evidence suggesting an alternative suspect, by limiting his closing argument about a polygraph test, and by allowing an improper prosecutorial comment on his presence at trial that allegedly violated his confrontation rights; he also challenged witness sequestration compliance and the sufficiency of the evidence. The Maine Supreme Judicial Court affirmed the convictions, ruling that the trial court acted within its discretion on evidentiary matters, any improper argument was cured by instruction and not preserved for reversal, and the evidence was sufficient for a rational jury to find guilt beyond a reasonable doubt.

criminal law

The case concerned a challenge by several commercial whitewater rafting outfitters to the Maine Department of Inland Fisheries and Wildlife's allocation of limited daily passenger slots on the Kennebec and Penobscot Rivers for 1988-1990 under the Commercial Whitewater Rafting Act. The Superior Court sustained the outfitters' appeals, holding that they possessed a protected property interest in allocations and that the Department's scoring-based allocation process violated due process under the Maine Constitution because it lacked adequate notice and opportunity to comment on the criteria. On appeal, the Supreme Judicial Court affirmed in part and vacated in part, addressing preservation of claims, the validity of the criteria adopted without formal rulemaking, and related procedural issues while upholding the due process violation finding. The core reasoning focused on whether the agency's informal hearing and post-hearing scoring memorandum satisfied statutory and constitutional requirements for fair allocation of limited business opportunities.

business & regulatoryenvironmentprocedure

This case involves Teresa P.'s appeal of a District Court judgment terminating her parental rights to children Joseph and Lisa under 22 M.R.S.A. § 4055, based on findings of physical abuse by her former partner and her inability to protect the children. The Law Court affirmed the termination, concluding that clear and convincing evidence supported the District Court's determination that the mother had a serious personality disorder unlikely to change and that she was unwilling or unable to prioritize the children's safety over her relationships. The Department had pursued reunification through service agreements, supervised visits, counseling, and expert evaluations, but these efforts failed despite the mother's partial compliance, and the court held that the quality of such efforts informs the evaluation of parental conduct rather than serving as a separate proof element. The children were found to be thriving in foster care with no significant bond to the mother, supporting permanent placement elsewhere.

family law

The case involved Randall Gammon's appeal of his conviction on three counts of manslaughter under 17-A M.R.S.A. § 203(1)(A) stemming from a 1984 automobile collision on Route 108 in Peru, Maine, in which his vehicle struck a stopped car, causing a fire that killed three occupants. The Superior Court had affirmed the District Court's judgment, and the Maine Supreme Judicial Court affirmed that decision as well. The court held that the evidence supported a finding of recklessness, as Gammon had driven at 60 mph despite seeing the stopped vehicle ahead, looked away from the road for an appreciable distance, and thereby consciously disregarded a known risk that grossly deviated from the standard of conduct a reasonable person would observe. The court further concluded there was no abuse of discretion in admitting a state trooper's expert testimony on accident reconstruction or evidence of the defendant's speed prior to the collision.

criminal lawprocedure

The case involved an appeal by three beneficiaries of William H. Rosen's estate from a Penobscot County Probate Court order that approved a corporate fiduciary's fee as personal representative under 18-A M.R.S.A. § 3-721 and assessed the bank's attorney fees against the objecting beneficiaries. The Supreme Judicial Court of Maine affirmed the approval of the personal representative's fee, holding that the Probate Court had not committed clear error in finding the fee reasonable based on testimony about the estate's complexity and customary local charges, despite the lack of detailed time records. The court vacated the assessment of attorney fees against the beneficiaries, ruling that under § 3-720 and M.R.Prob.P. 54(d)(1) such fees must be paid from the estate unless the objection is found to be frivolous or malicious, a finding absent here. A dissent would have also vacated the personal representative's fee on grounds that it appeared to rely impermissibly on a percentage-based calculation.

propertyprocedure

This case concerned the validity of a deed executed by a life tenant under the terms of a will that devised a homestead to the testator's widow for her lifetime, with authority to trade, sell, or consume the property for her comfortable support and care, and the remainder to the testator's daughter. The Superior Court voided the deed to defendant Shirley Varney, finding that the conveyance was not necessary because the widow had other assets. The Supreme Judicial Court of Maine vacated that judgment, holding that the will's language expressed the testator's intent without imposing a necessity requirement and that the life tenant's exercise of the power was valid absent proof of fraud. The court reasoned that the testator's expressed intention controls and that the lower court had improperly read additional limitations into the will.

propertyfamily law

The case involved a law firm seeking to enforce a fee arbitration award against members of an unincorporated association (CCA) after representing the group in a legislative apportionment matter. The Superior Court denied the firm's motion for judgment and vacated the award, ruling that CCA lacked capacity to petition for arbitration and that the pleadings failed to establish the defendants' relationship to CCA. On appeal, the court held that the arbitration panel implicitly decided the capacity issue, any error was merely a procedural irregularity not warranting vacation under the limited review of arbitration awards, and the relationship was adequately shown by attachment of the award. It further determined that the four defendants who participated in the arbitration were bound by the panel's finding that the fees were reasonable and remanded for entry of judgment against them in the amount of $12,741.23.

procedurebusiness & regulatory

In Bouford v. Bath Iron Works Corp., the Maine Supreme Judicial Court addressed whether an employer could offset benefits paid under the federal Longshore and Harbor Workers' Compensation Act against a state award for permanent impairment under Maine's Workers' Compensation Act. The worker had received federal benefits for permanent partial disability after a back injury and was awarded additional permanent impairment benefits by the state commissioner. The court affirmed the decision allowing no credit against the permanent impairment award, reasoning that the federal benefits compensated for loss of earning capacity while the state award addressed the loss of use of the back separately, consistent with concurrent jurisdiction principles that prevent double recovery only for identical benefits. The Appellate Division's affirmance was upheld, distinguishing the types of compensation provided by each scheme.

labor & employmentfederal power