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Lalumiere v. Miller
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:1998 ME 274
Docket:Cum-98-60
Submitted
on Briefs:October 14, 1998
Decided:December 22, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, ALEXANDER, and
CALKINS, JJ.






ROBERT G. LALUMIERE v. EDWARD C. MILLER, III{1}



WATHEN, C.J.

	[¶1]  Defendant, Edward C. Miller, III, appeals from a judgment
entered in the Superior Court (Cumberland County, Brennan, J.) in favor of
plaintiff, Robert G. Lalumiere.  Defendant argues that the court erred in
granting summary judgment as to liability on the basis of his conviction for
Class A robbery in a related criminal action.  We agree that at the summary
judgment stage, the very limited record in this case does not conclusively
establish liability for battery in the civil action.  We vacate the judgment.
	[¶2]  Plaintiff filed a civil action against defendants, Edward C. Miller,
III, and William T. LaFond, alleging the following facts:  On July 11, 1996,
Miller and LaFond hired plaintiff, a taxicab driver, to drive them in his taxi
from the Old Port to Stevens Avenue in Portland.  One defendant sat in the
front seat and one defendant sat in the back seat.  When the taxi stopped,
the defendant in the back seat held plaintiff around the neck and the
defendant in the front seat struck plaintiff in the face repeatedly with hard
blows, causing serious bodily injury.{2}  Both defendants, in concert and active
participation, took his wallet.
	[¶3]  After the civil action was filed, Miller was found guilty by a jury of
robbery (Class A) (17-A M.R.S.A. § 651 (1983)).  Plaintiff then filed a motion
for summary judgment against Miller on the issue of liability, based on the
criminal conviction for robbery.  The court granted summary judgment in
favor of plaintiff and, after a subsequent hearing, awarded damages to
plaintiff. Miller now appeals.
	[¶4]  In opposing summary judgment, Miller presented sworn
testimony from his trial that he never touched the plaintiff.  He argues that
his criminal conviction for robbery does not conclusively establish civil
liability as a matter of law for battery.
	[¶5]  When a court grants a plaintiff's motion for summary judgment,
we examine the evidence in the light most favorable to the defendant as the
nonprevailing party to determine whether the court committed an error of
law.  Gorham Sav. Bank v. Baizley, 1998 ME 9, ¶ 6, 704 A.2d 398, 400.  We
will affirm a summary judgment only if "there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law."  Salvation
Army v. Town of Standish, 1998 ME 75, ¶ 4, 709 A.2d 727, 728.  When a
trial court rules on a motion for summary judgment, "'[it] is to consider only
the portions of the record referred to, and the material facts set forth, in
the Rule 7(d) statements.'"  Handy Boat Serv., Inc. v. Professional Servs.,
Inc., 1998 ME 134, ¶ 16, 711 A.2d 1306, 1310 (quoting Gerrity Co., Inc. v.
Lake Arrowhead Corp., 609 A.2d 293, 295 (Me. 1992)).    
	[¶6]  Based on M.R. Civ. P. 7(d), the only material facts properly before
the court were presented in plaintiff's limited and conclusory statement of
material facts filed with his motion for summary judgment.  This did not
include the indictment upon which the robbery conviction was based.  The
Rule 7(d) statement indicated that plaintiff was operating his taxicab on or
about July 11, 1996, he picked up defendants, one defendant sat in the
front seat and one sat in the back seat, plaintiff followed defendants'
directions to drive to Stevens Avenue in Portland, and a jury found Miller
guilty of Class A robbery.
	[¶7]  We have permitted "the offensive use of collateral estoppel, i.e.
where a plaintiff would estop the defendant from relitigating issues
previously litigated by the defendant against another party, . . . [but] only on a
case-by-case basis." Pattershall v. Jenness, 485 A.2d 980, 983 (Me. 1984)
(citing Hossler v. Barry, 403 A.2d 762, 768-769 (Me. 1979)).  We have also
stated that "a final judgment of conviction in a criminal case is preclusive in
favor of a third party in a subsequent civil action against the defendant in
that criminal case."  Hanover Ins. Co. v. Hayward, 464 A.2d 156, 160 (Me.
1983) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 85(2)(a) & comment e). 
However, these doctrines do not exempt a plaintiff from summary judgment
pleading and practice standards.  Thus, we have limited the third party
collateral estoppel rule stating that "'[u]nless it is shown that the judgment
necessarily involved a determination of the fact sought to be included in the
second suit, there will be no bar.'"  Id. (quoting Susi v. Davis, 133 Me. 354,
357, 177 A. 610, 612 (1935)). 
	[¶8]  In this case, plaintiff alleged in his civil suit that one defendant
"grabbed plaintiff's neck" and the other defendant "committed a vicious,
intentional, and unprovoked assault upon the Plaintiff, striking him in the
face repeatedly with hard blows, causing serious bodily injury."  Plaintiff also
alleged that "[a]s a direct and proximate result of said aggravated assault . . .,
the Plaintiff became sick, sore, lame, and disabled, was required to, and did,
undergo surgery for the reduction of facial fractures."  Therefore, we must
determine whether plaintiff established through his statement of material
facts that he was struck as alleged in his complaint.  His statement includes
no express assertion that he was struck and, if so, by whom.  It recites only
that  defendant was in the taxi and that he was convicted of Class A robbery. 
The record does not include the indictment or other information about the
criminal trial by which we might determine whether the robbery verdict
was based on a finding of use of force or only attempted use of force.
	[¶9]  Based on a general verdict of Class A robbery, the jury could have
found that defendant used physical force, intentionally inflicted bodily injury
or intentionally attempted to inflict bodily injury. 17-A M.R.S.A. § 651(1)(C),
(D) (1983) (emphasis added).  The alternative "attempting to inflict bodily
injury" does not necessarily require physical contact.  17-A M.R.S.A.
§ 152(1) (1983) (criminal attempt occurs when "with the intent to
complete the commission of the crime, he engages in conduct which, in
fact, constitutes a substantial step toward its commission");  see also State v.
Bridges, 413 A.2d 937, 944 (Me. 1980) ("actual consummation of bodily
injury is not a requisite element of  . . . attempted assault").  Therefore,
under this alternative, an actual striking of the victim as alleged in plaintiff's
complaint was not required for the robbery conviction.
	[¶10]  Accordingly, based on the limited information in this record
the conviction of Class A robbery does not inexorably establish the civil claim
of  battery alleged in plaintiff's complaint.  
	The entry is:
Judgment vacated.  Remanded for further 
proceedings consistent with this opinion.
 
Attorneys for plaintiff: Henry N. Berry, III, Esq. 169 Ocean Street South Portland, ME 04106 Joel C. Martin, Esq. Petruccelli & Martin, LLP P O Box 9733 Portland, ME 04104-5033 Attorney for defendant: Michael J. Waxman, Esq. P O Box 375 Portland, ME 04112-0375
FOOTNOTES******************************** {1} . Co-defendant, William T. LaFond, was dismissed from this action. {2} . Plaintiff does not identify in his complaint which defendant was sitting in the front seat and which defendant was sitting in the back seat.