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Sturtevant v. Town of Winthrop dissenting opinion.
DANA, J., with whom CLIFFORD, J., joins, dissenting.

	[¶24]  For want of a writing, ("I as President assign the contract to
myself") the trial court and now this Court elevates form over substance and
finds that the assignment never happened.  I respectfully dissent.
	[¶25]  This discussion requires a more thorough examination of the
facts.  In 1986, Sturtevant, prior to incorporation as M.E.S. Environmental
Services, Inc., entered into a contract with the Town of Winthrop for
snowplowing services.  In 1991, after its formation, the Town renewed the
contract with the corporation.   
	[¶26]  In July 1992, Sturtevant dissolved M.E.S. Environmental
Services, Inc.  He testified that he informed the Town of the corporate
dissolution.  Thereafter, Town correspondences, Town Council minutes, and
other Town documents written after the corporate dissolution refer to
Sturtevant in his individual capacity.  For example, correspondences from
the Town manager to Sturtevant written in February and July 1994 are
addressed to M.E.S. Environmental Services, not the corporate entity.  The
Town Council minutes from May 16, 1994, refer to "Mark Sturtevant,
Contract Snowplower."  In July 1994, the Town manager submitted "An
Analysis of Snowplowing Alternatives" to the Town Council that states that
"We have a contract with Marc [sic] Sturtevant."  Town Council minutes
from August 1, 1994, refer to "Mark E. Sturtevant" performing "his
snowplow contract."
	[¶27]  Similarly, all correspondences from Sturtevant or Sturtevant's
attorney to the Town after corporate dissolution refer to M.E.S.
Environmental Services, without any reference to the corporate entity.  In
July 1994, Sturtevant wrote to the Town regarding a possible contractual
arrangement with Buzzell and crossed out "Inc." on his letterhead to reflect
the corporate dissolution.  The Town attorney who received the letter
testified that the crossed-out "Inc." indicated that M.E.S. was no longer a
corporation.
	[¶28]  Around this same time, Sturtevant expressed his intent to
assign the contract to Elwood Buzzell, another snowplower, but the Town
argued that such an assignment would violate the contract.  The Town
attorney's letter in response reflects the Town's understanding that a
contract existed with Sturtevant individually and that the Town would
attempt to enforce the contract.  The attorney states that the Town Council
discussed "your snowplowing contract with the Town," contends that
"assignment of your contractual interests and obligations to Elwood Buzzell
further violates the contract," and questions "whether you will continue to
personally manage the snowplowing activities as you have done in the past." 
Similarly, in August 1994, the Town attorney wrote Sturtevant's attorney
regarding the Town Council's concern "over Mark's current intentions
regarding an assignment of the contract."  In all respects the Town treated
Sturtevant-not the corporation-as the contracting party and attempted to
enforce the contract to prohibit an assignment to Buzzell.
	[¶29]  While the Town continued to refer to Sturtevant in his
individual capacity in Town minutes and communications, the Town also
paid Sturtevant in his individual capacity for services rendered after
corporate dissolution.  Sturtevant testified that after dissolution he
requested that the Town make payments to him individually, doing business
as M.E.S. Environmental Services, instead of to the corporation.  The only
evidence offered by the Town that it was not aware of the assignment was
provided by the Town's outside counsel who testified that he personally was
not aware that Sturtevant had notified the Town of the dissolution or that
the Town was paying Sturtevant individually for his performance of the
contract.  There is no dispute, however, that Sturtevant performed the
snowplowing contract and that the Town paid Sturtevant in his individual
capacity for this work.
	[¶30]  When the Town terminated the contract in October 1994,
Sturtevant, d/b/a M.E.S. Environmental Services, sued for breach of the
contract.  Although the Town in its answer denied the existence of a
contract with Sturtevant individually, it failed to move for a summary
judgment.  At trial, the Town argued that Sturtevant violated the contract
regarding the condition of his equipment and the quality of his snowplowing
and that he therefore failed to perform satisfactorily the snowplowing
contract.  At the close of Sturtevant's case, the Town moved for a directed
verdict on the ground that Sturtevant did not have standing because M.E.S.
Environmental Services, Inc., did not assign the contract to him individually. 
The Town renewed its motion at the close of evidence.
	[¶31]   The jury found that the Town had breached the contract and
awarded Sturtevant damages of $156,000.  The Town again renewed its
motion after the jury verdict, and the court permitted the parties to submit
evidence on the issue of the assignment.  As evidence of the assignment,
Sturtevant submitted an affidavit explaining that all of the corporation's
assets were distributed to himself and attached the articles of dissolution of
M.E.S. Environmental Services, Inc.  Finding "no evidence of any written or
verbal manifestation of intent to assign the contract" the court concluded
there had been no assignment and Sturtevant, therefore, lacked standing to
sue the Town.  This appeal followed.
	[¶32]  "[T]he intent to vest in the assignee a present right in the thing
assigned must be manifested by some oral or written word or by some
conduct signifying a relinquishment of control by the assignor and an
appropriation to the assignee."  Shiro v. Drew, 174 F. Supp. 495, 498 (D.
Me. 1959) (emphasis added) (quoting Lone Star Cement Corp. v. Swartwout,
93 F.2d 767, 769-70 (4th Cir. 1938)).  M.E.S. Environmental Services, Inc.,
through its president and sole shareholder Sturtevant, manifested its intent
to assign the contract when Sturtevant, in his corporate capacity, dissolved
his corporation and when Sturtevant, in his individual capacity, continued to
perform the plowing contract after dissolution.  See id.; Doughty v. Sullivan,
661 A.2d 1112, 1124 (Me. 1995).  Here, the assignor and the assignee are
the same person acting in two capacities.  To deny that Sturtevant's conduct
evidences an assignment frustrates the intent of both the corporation and
Sturtevant individually.  Moreover, 13-A M.R.S.A. § 1110 (1981) requires
that a corporation shall only file articles of dissolution when "all debts,
liabilities and obligations of the corporation have been paid and discharged,
or adequate provision has been made therefor, and all remaining property
and assets of the corporation have been distributed to its shareholders." 
The filing of the articles, therefore, is further evidence that should be
considered in determining whether the corporation had assigned the
contract.  I conclude that Sturtevant's conduct, the filing of the articles of
dissolution, and the absence of any evidence to the contrary is compelling
evidence of an assignment.
	[¶33]  No evidence whatsoever was presented indicating that
Sturtevant and the Town negotiated or entered into a new contract
following the dissolution of the corporation.  Yet both Sturtevant and the
Town continued to reference "the contract" and to act under its terms. 
The inescapable conclusion is that the contract entered into between the
Town and the corporation was assigned to Sturtevant personally and that
Sturtevant, in fact, continued to fulfill the obligations under that contract.
	[¶34]  Notwithstanding this evidence of an assignment, the trial court
concluded that Sturtevant had "failed to present sufficient evidence to
establish that any such assignment actually occurred."  In this regard, in my
view, the court clearly erred.  In doing so the court acknowledged that for
an assignment to be effective it need not be in writing{9} and that since the
contract was not a personal services contract, the Town's consent to the
assignment was also not required.{10}
	[¶35] An assignee of a contract has the right to sue for a subsequent
breach of the contract notwithstanding Maine's survival statute.  See 13-A
M.R.S.A. § 1122 (1981).  Section 1122(1) provides that "[t]he dissolution of
a corporation . . . shall not take away or impair any remedy available to or
against such corporation, its directors, officers or shareholders for any right
or claim existing . . . prior to such dissolution, if action or other proceeding
thereon is commenced within 2 years after the date of such dissolution."
(emphasis added).  Section 1122(1) does not apply to assignees who seek
recovery in their individual capacities for a claim that arose after the
assignment.  See id.; Hunter v. Old Ben Coal Co., 844 F.2d 428, 435 (7th Cir.
1988) (applying Illinois law) ("If a claim is held individually, even if it arises
in conjunction with a corporate matter . . . , the corporate survival statute
does not bar a suit to enforce the claim even if it is brought after the time
period specified in the corporate survival statute."); Davis v. St. Paul Fire &
Marine Ins. Co., 727 F. Supp. 549, 552 (D.S.D. 1989) (distinguishing
individual claims from derivative corporate claims for purpose of applying
survival statute);  Halliwell Assocs., Inc. v. C.E. Maguire Servs., Inc., 586 A.2d
530, 533 (R.I. 1991) (same).  An individual claim arises when there has been
a violation of a duty owed directly to the individual.  See Davis, 727 F. Supp.
at 552.  If, however, the claim arises from an injury to the corporation or is
an action instituted to redress a wrong to the corporation, then the action is
derivative in nature.  See id.
	[¶36]  Here, Sturtevant is asserting an individual contractual right
pursuant to an assigned contract-he is not asserting a corporate claim.  See
Hunter, 844 F.2d at 435.  The breach occurred more than two years after
corporate dissolution and is in no way derivative of an injury to M.E.S.
Environmental Services, Inc.  The cases cited by the Court to suggest that
section 1122 might bar Sturtevant from asserting his individual claim are
inapposite because those cases address the assignment of corporate claims,
not individual claims.  See Nix v. W.R. Grace & Co.-Conn., 830 F. Supp. 601,
605 (S.D. Ala. 1993); Davis, 727 F. Supp. at 553; Riley v. Fitzgerald, 223 Cal.
Rptr. 889, 895 (Cal. Ct. App. 1986).  Consequently, Sturtevant, as an
assignee asserting an individual claim, is not barred by section 1122 from
bringing this action which arose more than two years after corporate
dissolution.
	[¶37]  Because of a valid assignment of the contract, Sturtevant had
standing to sue.  I would restore the jury verdict in his favor.
       
Attorneys for plaintiff: Paul F. Macri, Esq., (orally) Julian L. Sweet, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorney for defendant: Joseph J. Hahn, Esq., (orally) Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029
FOOTNOTES******************************** {1} . There was testimony that M.E. Sturtevant Contractors, Inc., "lapsed" in 1990. {2} . The Town records of payments for snow removal show payments to "M E Sturtevant Contractors" and "M E Sturtevant Contractors Inc" for the winter of 1989-90; to "M E Sturtevant Contractors Inc" for the winters of 1990-91 and 1991-92; and to "MES Environmental Services" for the winters of 1992-93 and 1993-94. {3} . The dissolution of a corporation . . . shall not take away or impair any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution, if action or other proceeding thereon is commenced within 2 years after the date of such dissolution. 13-A M.R.S.A. § 1122(1) (1981). {4} . Even if the court had found an assignment, it is not clear it would give Sturtevant the right to sue on the contract more than two years after dissolution. Several courts have concluded that an assignee of a corporate right cannot assert that right after the expiration of the survival statute, because that would violate the rule that an assignee has no greater rights than his assignor and would defeat the statute's purpose of providing a fixed time limit for the wind up of corporate affairs. See Nix v. W.R. Grace & Co.-Conn., 830 F. Supp. 601, 605 (S.D. Ala. 1993); Davis v. St. Paul Fire & Marine Ins. Co., 727 F. Supp. 549, 553 (D.S.D. 1989); Riley v. Fitzgerald, 223 Cal. Rptr. 889, 895 (Cal. Ct. App. 1986). {5} . Sturtevant admitted at trial that he had been convicted in 1994 of perjury and bank fraud. {6} . The correspondence between Sturtevant and the Town, and the Town documents and minutes, show that Sturtevant was sometimes referred to by the Town, and by himself, as an individual and sometimes as a corporation. For example, the Town payment records, referred to above, show that he was paid for snow removal in various capacities; a letter dated February 25, 1994, from the Town is addressed to Mark E. Sturtevant, President, M.E.S. Environmental Services; the Town attorney wrote to Sturtevant in August 1994, in his capacity as president of the corporation, stating that the Town was terminating the snowplow contract with M.E.S. Environmental Services, Inc. The vehicles used by Sturtevant in the snow plow business were variously registered to M.E. Sturtevant Contractor; M.E. Sturtevant Contractor, Inc.; Mark E. Sturtevant, and M.E. Sturtevant. {7} . See Crum v. Krol, 425 N.E.2d 1081, 1088-89 (Ill. App. Ct. 1981) (piercing corporate veil on behalf of shareholder who neglected to join corporation as plaintiff in suit on corporate contract); Roepke v. Western Nat'l Mut. Ins. Co., 302 N.W.2d 350, 352-53 (Minn. 1981) (piercing corporate veil on behalf of shareholder's estate where shareholder died in crash of car for which corporation was named insured). {8} . In the context of sales tax cases, we have been loath to allow taxpayers to disclaim the corporate form to avoid paying taxes. We said that people who choose to operate a business through a corporation and accept whatever benefits are available through that form must also accept its burdens. See Maine Aviation Corp. v. Johnson, 160 Me. 1, 6 (1964); Bonnar-Vawter, Inc. v. Johnson, 157 Me. 380, 388 (1961). {9} . Although no contemporaneous writing or corporate record memorialized the assignment, no such writing is required. In the absence of an applicable statute, a manifestation of a present intent to assign a right need not be in writing. See Restatement (Second) of Contracts § 324 (1981). Maine law does not require a writing for a corporation to assign a contract, therefore, M.E.S. Environmental Services, Inc.'s failure to generate a writing or corporate record to evidence the assignment is not controlling. {10} . The court concluded that a snowplowing contract is not a service that involves the type of personal service, trust, or confidence that would require the Town's consent, particularly where the contract was purportedly assigned by the corporation to the sole shareholder who controlled its operations. See Salmon Lake Seed Co. v. Frontier Trust Co., 130 Me. 69, 74, 153 A. 671, 673 (1931).

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