JENNIFER ROUSSEL v. SHELDON ASHBY
Cum-14-271
MAINE SUPREME JUDICIAL COURT
April 28, 2015
2015 ME 43
Submitted On Briefs: February 26, 2015; Reporter of Decisions
HJELM, J.
[¶1] Jennifer Roussel appeals and Sheldon Ashby cross-appeals from a judgment entered in the Superior Court (Cumberland County, Wheeler, J.) in favor of Roussel after entry of default against Ashby. Roussel‘s claims arose from Ashby‘s failure to return a security deposit that she paid in anticipation of renting an apartment from Ashby. Roussel contends that the court erred in failing to award punitive damages and in limiting the award of attorney fees. Ashby contends that the court erred in denying his motion to set aside the entry of default. We affirm the judgment.
I. BACKGROUND
[¶2] The evidence in the record, viewed in the light most favorable to the judgment, supports the following facts. See Estate of Hunt, 2010 ME 23, ¶ 2, 990 A.2d 544. On June 18, 2008, Roussel met with Ashby to discuss renting an apartment located in Portland. Because Ashby
[¶3] After reviewing Roussel‘s PHA file, Ashby agreed to rent her the apartment, but Roussel never moved in. Roussel had obtained a Section 8 voucher, but by the time she met with Ashby on June 18, it was due to expire approximately two weeks later. Roussel believed that, in order to use the voucher, she had to find an apartment and have it inspected by the PHA before the voucher expired. Approximately a week after the meeting, Ashby informed Roussel that he could not guarantee that the apartment would be ready in time for an inspection that had been scheduled for June 30. Roussel then found a different apartment that would be ready for an inspection before the voucher‘s expiration date, and she sought the return of her security deposit from Ashby.
[¶4] After Ashby did not respond to her demand for the refund, Roussel filed a small claims action in District Court (Portland), and in response Ashby filed a small claims action for lost rent and the expenses he incurred in renting the apartment to another tenant. Roussel then filed a complaint in Superior Court, alleging (1) breach of the warranty of habitability; (2) breach of the warranty of quiet enjoyment; (3) conversion of personal property; (4) wrongful retention of the security deposit pursuant to
[¶5] Roussel first tried to serve Ashby with the Superior Court complaint on September 16, 2009, using the address listed on his small claims filings, but the sheriff who attempted service was told that Ashby no longer worked at that address. Next, Roussel attempted to serve Ashby through the attorney who represented him in the small claims action, but the attorney declined to accept service. Roussel‘s next attempt to find Ashby and serve him with the complaint was not until August 2011. At that point, Roussel‘s attorney found the business address that Ashby had listed with the Maine Real Estate Commission as a requirement of his associate real estate broker‘s license. A sheriff‘s deputy attempted to serve Ashby at that address three times in September 2011. The deputy left messages for Ashby when he went to the office and also called Ashby repeatedly, but Ashby never responded.
[¶6] In January 2012, Roussel filed a motion for alternative service, and the court (Wheeler, J.) authorized Roussel to serve Ashby by mail. She sent the complaint by certified mail to the address listed with the Maine Real Estate Commission, but Ashby did not sign the return receipt. The court (Cole, J.) then granted Roussel‘s motion for service by publication, and service was completed on July 19, 2012, pursuant to
[¶7] Ashby then entered an appearance and filed a motion to set aside the
II. DISCUSSION
A. Punitive Damages
[¶8] Roussel first argues that the court erred by not awarding punitive damages. “Punitive damages are available if the plaintiff can establish by clear and convincing evidence that the defendant‘s conduct was motivated by actual ill will or was so outrageous that malice is implied.” Laux v. Harrington, 2012 ME 18, ¶ 35, 38 A.3d 318 (quotation marks omitted). Our review of the trial court‘s decision not to award punitive damages “is limited to deciding whether the findings of fact are clearly erroneous.” Id. (quotation marks omitted). In order to successfully challenge the trial court‘s decision not to award punitive damages, Roussel must establish that “the evidence of malice presented by [Roussel] is of such a nature that the factfinder was compelled to believe it.” Kleinschmidt v. Morrow, 642 A.2d 161, 165 (Me. 1994) (quotation marks omitted). Roussel has not met that standard.
[¶9] Roussel contends that the laws prohibiting non-refundable security deposits and governing retention of security deposits are so clear that Ashby‘s “flagrant” violation of those laws justified a finding of implied malice. Even if we assume that Ashby‘s violation of the applicable statutes was evident, however, his conduct was not necessarily so outrageous as to compel the court to award punitive damages. See id. at 165. Thus, the trial court did not err in declining to award punitive damages to Roussel.1
B. Attorney Fees
[¶10] Roussel also argues that the court erred in awarding only those attorney fees that she had initially requested in her motion for default judgment and not the additional fees she incurred to oppose Ashby‘s motion to set aside the default. The trial court‘s award of attorney fees is reviewed for abuse of discretion, Kezer v. Cent. Me. Med. Ctr., 2012 ME 54, ¶ 28, 40 A.3d 955, and “the court‘s factual findings are final unless demonstrated to be clearly erroneous,” Poussard v. Commercial Credit Plan, Inc. of Lewiston, 479 A.2d 881, 884 (Me. 1984). We
[¶11] Here, the court awarded Roussel $4,824 in attorney fees, which is the amount she requested prior to Ashby‘s appearance in the case.2 When Roussel requested an additional amount, the court concluded that the original amount was “more than adequate” to cover the additional legal work. That finding was not clear error, especially given that Ashby was absent for more than two years after Roussel filed her complaint and there was little activity in the case during that time. Moreover, it is not an abuse of discretion for a trial court to take into account whether a party “had already been awarded substantial attorney fees” in refusing to award additional fees. See Town of China v. Althenn, 2013 ME 107, ¶ 16, 82 A.3d 835. Therefore, “[g]iven the broad discretion allowed trial courts in the award of attorney fees,” Saucier v. Allstate Ins. Co., 1999 ME 197, ¶ 35, 742 A.2d 482, the court did not abuse its discretion in denying Roussel‘s motion to amend the judgment by awarding additional attorney fees.
C. Motion to Set Aside the Default
[¶12] In his cross-appeal, Ashby contends that the court erred in denying his motion to set aside the default. The denial of a motion to set aside the entry of default is reviewed for abuse of discretion, and we “will vacate that decision only if the denial works a plain and unmistakable injustice against the defendant.” Ireland v. Carpenter, 2005 ME 98, ¶ 14, 879 A.2d 35 (quotation marks omitted). “We give considerable deference to the presiding justice‘s decision on [a motion to set aside default] because of his familiarity with the case and his superior position to evaluate the credibility and good faith of the parties who appeared before him.” Levine v. KeyBank Nat‘l Ass‘n, 2004 ME 131, ¶ 13, 861 A.2d 678 (quotation marks omitted).
[¶13] An entry of default may be set aside “[f]or good cause shown.”
[¶14] As to the first of these requirements, Ashby contends that his appearance was not timely because he did not know about the suit and that Roussel did not demonstrate the requisite due diligence in attempting to locate and serve him before filing a motion for service by publication. See
[¶15] Ashby defended against Roussel‘s small claims action and filed his own small claims action related to the same incident. The District Court dismissed Roussel‘s claim against Ashby because “plaintiff has [a] similar case pending in Superior Court,” and Ashby also agreed to
[¶16] The court therefore did not commit clear error by finding that Ashby was avoiding service when he did not respond to these repeated contacts and that he did not have a good excuse for his untimely appearance in this case. Based on its finding that Ashby did not satisfy the first prong of the “good cause” analysis, the court did not abuse its discretion in denying his motion to set aside the default.
The entry is:
Judgment affirmed.
On the briefs:
Robert C. Andrews, Esq., Portland, for appellant Jennifer Roussel
Roy T. Pierce, Esq., Jensen Baird Gardner & Henry, Portland, for appellee Sheldon Ashby
Cumberland County Superior Court docket number CV-2009-473
FOR CLERK REFERENCE ONLY