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Thibodeau v. Cole
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 150
Docket:	Lin-98-642
Argued:	September 7, 1999
Decided:	October 26, 1999	

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

GARY THIBODEAU v. VICTOR COLE d/b/a PORT CLYDE GENERAL STORE

RUDMAN, J.

	[¶1]  Gary Thibodeau appeals from a summary judgment entered in
the Superior Court (Lincoln County, Perkins, A.R.J.) in favor of Victor Cole. 
Thibodeau asserts that the court erred (1) by implicitly denying his motion
to amend; and alternatively, (2) in granting the summary judgment.  We
disagree and affirm the judgment.
I. BACKGROUND
	[¶2]  On July 31, 1993, Thibodeau slipped and fell on either a dock
located next to the Port Clyde General Store or that dock's ramp.  Gasoline
had allegedly leaked onto the dock and ramp attached to the Store from gas
pumps adjacent to both the Store and the dock.  Within two weeks of the
accident, Thibodeau sent a notice of a potential tort claim pursuant to 14
M.R.S.A. § 1602(1) (1997) to Victor.  United States Fidelity and Guaranty
Company (USF&G), acknowledged receipt of the notice of claim and
informed Thibodeau that Victor did not own the store, but rather that
Pamela Cole "solely owned" the Store.
	[¶3]  Notwithstanding Victor being named as the defendant in this
action and USF&G's assertion that Pamela owned the Store, Port Side
Corporation (Port Side) actually owned and operated the Store.  Port Side
liquidated its corporate assets, and filed a notice of its intent to dissolve and
its articles of dissolution with the Secretary of State prior to the institution
of this suit.  Before its dissolution and at the time of Thibodeau's alleged
injuries, Port Side had leased the premises of the Store, which included the
deck, dock, ramp, floats, and lobster tank adjacent to the Store building.   
Port Side had the explicit responsibility by the terms of its lease to clean
and repair the dock and ramp attached to the Store.  Pamela signed the
lease and the lease addendum on behalf of Port Side.  The lease was
terminated as part of Port Side's winding up process; Pamela also signed the
lease termination agreement on behalf of Port Side as its "president."
	[¶4] After Port Side dissolved, Thibodeau instituted the instant
action against Victor.  Following limited discovery, Victor moved for a
summary judgment.  Thibodeau opposed summary judgment and sought to
amend his complaint.  The Superior Court granted Victor's summary
judgment motion.  Thibodeau then filed this appeal.
II. THE MOTION TO AMEND
	[¶5]  As part of his response to Victor's motion for a summary
judgment, Thibodeau attempted to amend his complaint to assert a cause of
action against Pamela.{1}  We review the denial of a motion to amend for abuse
of discretion.  In re Sen, 1999 ME 83, ¶ 10, 730 A.2d 680, 683.  "To
overturn a denial of leave to amend one must demonstrate a clear and
manifest abuse of that discretion and must demonstrate granting such
motion is necessary to prevent injustice."  Miller v. Szelenyi, 546 A.2d 1013,
1022 (Me. 1988) (internal citation omitted).  While Thibodeau indicated a
desire to assert a cause of action against Pamela, he failed to inform the
court as to the basis of that claim.  Thibodeau did not follow the requirement
of M.R. Civ. P. 7(b)(3) and file "a draft order which grants the motion and
specifically states the relief to be granted by the motion."  Thibodeau
neither attached a proposed amendment nor demonstrated how any
amendment could cure or change the basis of his complaint.  Faced with
such a situation, the court did not exceed the bounds of its discretion by
implicitly denying Thibodeau's leave to amend.  See Sen, ¶ 11, 730 A.2d at
683.
III. THE GRANT OF A SUMMARY JUDGMENT
	[¶6]  We review the grant of a summary judgment motion by
evaluating the "evidence in the light most favorable to the party against
whom judgment was entered."  Cottle Enterprises, Inc. v. Town of
Farmington, 1997 ME 78, ¶ 11, 693 A.2d 330, 333 (citing Gonzales v.
Commissioner, Dep't of Public Safety, 665 A.2d 681, 682 (Me. 1995)). 
Since Thibodeau would have the burden of proof at trial, he must have
presented enough evidence to have withstood a motion for directed verdict. 
Keyes Fibre Co. v. Lamarre, 617 A.2d 213, 214 (Me. 1992).
	[¶7]  Here, there are no issues of triable fact and the grant of a
summary judgment was proper.  Thibodeau fell on property leased by Port
Side, not by Victor.  Assuming arguendo that Thibodeau could pierce the
corporate veil, he still could not reach Victor who did not personally own
shares in Port Side.{2}  See LaBelle v. Crepeau, 593 A.2d 653, 655 (Me. 1991)
(noting that only shareholders will be liable when the corporate entity is
disregarded).  It would be not only improbable, but also impossible to find
liability against Victor on these facts.  Simply put, Thibodeau sued the wrong
party.  The Superior Court correctly granted a summary judgment.
	The entry is:
Judgment affirmed.

CLIFFORD, J. dissenting [¶8] Because in my view the trial court should have granted Gary Thibodeau's motion to amend his complaint prior to addressing summary judgment, I respectfully dissent.
	When faced with both a motion for a summary judgment
and a Rule 15(a) motion to amend pleadings, considerations
of finality and judicial economy suggest that a court should
dispose of the pending Rule 15(a) motion prior to
entertaining a summary judgment.
Kelly v. Michaud's Ins. Agency, Inc., 651 A.2d 345, 346 (Me. 1994).
	[¶9]  I would vacate the judgment and remand to the Superior Court
to allow Thibodeau to amend his complaint.
Attorney for plaintiff: Philip P. Mancini, Esq., (orally) Cloutier & Briggs, P.A. 247 Commercial Street Rockport, ME 04856-5964 Attorney for defendant: Sally A. Morris, Esq., (orally) Freidman Babcock & Gaythwaite P O Box 4726 Portland, ME 04112-4726
FOOTNOTES******************************** {1} . Thibodeau's response to Victor's motion for a summary judgment read in part: Alternatively, Plaintiff hereby moves to amend the pleadings to assert an action against Pam Cole, individually as an owner/manager, for negligence, all as more fully stated in the accompanying Statement of Material Facts, for which it is contended a genuine issue exists to be tried, and accompanying Memorandum of Law in support, with attachments. Thibodeau's attached material included only his counsel's affidavit which asserted that a fact question existed. {2} . Although both parties presented arguments on appeal regarding the propriety of allowing Thibodeau to amend the complaint to add the corporation as a defendant, Thibodeau did not seek to add the corporation in the Superior Court. Therefore we do not reach the issue.