Stevens v. Kinsey

STATE OF MAINE SUPERIOR COURT
FRANKLIN, ss. CIVIL ACTION
DOCKET NO.CV-18-06

CUSTA STEVENS,
Plaintiff

V. JUDGMENT INCLUDING
FINDING OF FACT AND
CONCLUSIONS OF LAW

JOSEPH S. KINSEY et. al.
Defendants

This matter was heard on October 1 and 2, 2019 on the Complaint of the
Plaintiff against the three Defendants. After hearing, and after the Court has
reviewed its notes of the hearing, the countless exhibits offered and admitted into
evidence, the pertinent case law and statutes, and gave the parties an opportunity
to file post-hearing memoranda of law, the last material being filed by Plaintiff's
counsel on N-ovember 7,-2019,-the -Court-ma:kes the following Findings of Fact and
Conclusions of Law upon which the Judgment' set for below is based:

I. Findings ofFact:

1. T11e undersigned (hereinafter "the Court") notes with irony that initially
anyway these four litigants were business "partners", or at least involved to
varying degrees in business together, and were on friendly terms to varying
degrees. That clearly ended when Defendant Joey Kinsey (hereinafter "Kins y")
sought and succeeded in evicting Plaintiff Oista Stevens (hereinafter "Stevens)
from his property in December of 2015, see SA-15-176 for more details. See also
SC-16-100 in which Kinsey filed a small claims suit against Stevens seeking
$4,225.03 £o · "rent late fees, attorney's fees, cleaning and repair fees, rental fees.
(sic) for October and November, 2015. January and February 2016." He was
awarded Judgment for $246.00 after contested hearing on May 19, 2016.

2. Defendant Linda Tokarz (hereinafter "Tokarz") also sued Stevens in
Small Claims Court for $4,188.50 for monies allegedly owed her in connection with

' This case presented a challenge to the undersjgr,.ed as well as to Plain.tiff's counsel and the parties,
three of which were unrepresented. However, the Cow·t repeatedly made the black-letter-law
point to the Defendants that litigants who elect to represent themselves are bound by the same
rules as ones represented by counsel; they are not entitled to any preferential treabnent. Gurschick
v. Clark, 511 A.2d 36 (Me. 1986).
the business enterprise the ladies were involved in, see SC-16-050 for more details.
Tokarz was awarded Judgment after contest d hearing for $751.10. Both this
judgment and Kinsey's judgment remained w1satisfied as of the dates of this
hearing.

3. This case involves claims filed by Stevens against Kinsey, Tokarz, and
Diane Mosher (hereinafter "Mosher") for illegal vjction (as to Kinsey only), as
well as conversion, negligence, and unjust enrichment, see Amended Complaint
dated March 20, 2018 for more details.

4. Stevens during the pertinent time periods in question was involved m
the purchase and subsequent resale of various items of personalty. Her business
was krl.own as "Pigley's Treasures." She initially began her career by starting up
a consignment business on E-Bay in 1999, setting the price herself for the items she
was offering for sale.

5. Stevens began her relationship with Tokarz initially as Tokarz being a
customer of Stevens. Tokarz sought and eventually became involved in the
business of Stevens, initially havmg her wares at Stevens' business and paying
Stevens a percentage of what Tokarz'a wares sold for.

6. Stevens' involvement with Mosher initially began by meeting Mosher
at a flea market in 2010. Mosher eventually also began a business relationship
with Stevens, having a space at Stevens' shop to sell her wares and working thx e
days per week at the shop. Mosher basically traded any pay for her work for space
iri the snap. · -­
7. Stevens began her business relationship with Kinsey pertinent to this
lawsuit by renting a space for her business by lease dated 10 /29 / 14 for a year.
Stevens not only used the spac for her business but also resided there from time
to time.

8. Stevens fell behind in her rent owed to Kinsey such that Kinsey wanted
Stevens out of the space. Stevens was basically shut out of the space, and her
business, beginning on or about November 20, 2015. She was not allowed to
inventory her property at the space and was told not to be on the property. Locks
to the property were changed. The Court concludes an illegal eviction occurred.
Kinsey had extensive experience in the field of being a landlord and no excuse for
not following landlord/ tenant law concerning the legal way to evict a tenant who
has defaulted on their rental obligations. The fact that Stevens wrote a 'bad'' check
for rent due does not excuse Kinsey's taking the law into his own handsand
illegally evicting Stevens.

9. The fact that Stevens was evicted from the business space obviously
affected the respective business endeavms of Tokarz and Mosher . There resulted
an agTeement between Kinsey, Tokarz, and Mosher that Tokarz and Mosher
would operate the business in the same space initially rented to Stevens. The new
business was known as "The Shoppe."

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10. Kinsey did not initiate a forcible entry and detainer action against
Stevens until December 23, 2015.

11. The Com"t specifically finds that a1I of the litigants during the hearing
offered testimony that at times was self-serving and frankly not believable to the
Court. For example, the mere fact that the values of items listed onExhibit2B were
assigned values "based on (Stevens') extensive experience in the purchase and sale
of second hand merchandise ... " does not automatically mean the Court has to
accept the testimony, just as the evidence presented by the De£endants that they
have no property that belongs to Stevens has to be accepted by the Court.

12. The Court specifically finds that property of the Plaintiff was converted
by Kinsey, that an illegal eviction occurred, and that a Judgment on behalf of
Plaintiff is in order. A Judgment against whom, and based upon what theory of
recovery, and in what amount, is discussed below:

II. Conclusions of Law:

(A) Illegal Eviction:

13. The remedies for illegal eviction are set forth in 14 M.R.S. § 6014(2)(A).
Whether the lease here was residential or commercial in nature, or had aspects of
both, is immaterial, as it is clear that the statute applies to both residential and
commercial leases. Rodriquez v.Tomes, 610 A.2d 262 (Me. 1992). Kinsey never
followed- the law for evicting-tenants until he filed ,rfordble entry and- detainer
action well after he had effectively illegally evicted Stevens.

14. A tenant who has been illegally evicted is entitled to actual damages or
$250.00, whichever is the greater amount, along wHh the aggregate amount of
costs and expenses incurred by the tenant together with a reasonable amount of
attorney's fe s. 14 M.R.S. § 6014(2)(A),(B). Although the term "actual damages"
is not defined in the statute, lost profits and lost goods are examples of actual
damages. Reardon v. Lovely Dev., Inc. 852 A.2d 66, 69 (Me. 2004). Damages must
not be U11certain or speculative, but must be grounded in facts and evidence. Id.

15. Taking all of the evidence into account, the Court finds the appropriate
amount of damages for the illegal eviction to be $12,000.00.

16. Concerning attorney's£ es, most if not all of the claims of Stevens are
inextricably interwoven based upon the same conduct related to the illegal
eviction. Thus, it is appropriate for the Court to take into account the entire
amount of atto ·ney's fees claimed in this case in determining the appropriate
amount of attorney's fees to be awarded. Withers. v. Hackett, 714 A.2d 798 (Me.
1998).

17. The Court determines that an award of $9,000.00 in counsel fees is in
order, so that Judgment against Kinsey on Count I of the Complaint in the amount
of $21,000.00 is caUed for. So Ordered.

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(B) Conversion:

18. To establish a claim for conversion, a plaintiff must show an invasion.
of the plaintiff's possession or right to possession by demonsttating: (1) a property
interest in the goods; (2) the right to their possession at the time of the alleged
conversion; and (3) when the holder has acquired possession rightfully, a demand
by the person entitled to possession and a refusal by the holder to surrender.
Mitchell v. Allstate Ins. Co., 2011 ME 133.

19. Any claim pursuant to an action for conversion for damages for lost
earnings and profits is limited to the time period it would take a reasonable person
to replace the converted items. Newbury v. Virgin, 2002 ME 119, <fr 20.

20. Mosher admitted the Defendants sold a buffet for $300.00 that was on
consignment with Stevens. She also admitted that several items of jewelry on
consignment with Stevens were still at the shop, and that the Defendants
determined not to give back to Stevens certain items on consignment "because we
knew she didn't own" them.

21. Tokarz acknowledged that she kept the cash register of Stevens "as a
lien." She also testified that "we are not sure of what we sold of Stevens." Mosher
also testified that "we didn't keep a list of what we were packing up" of Stevens.

22. The Court finds Defendants Kinsey and Tokarz responsible for
conversion of Stevens' property, and again sets the amount converted to be
$12,000.00. The Court does- not find by ·a preponderance of the evidence- that"
Mosher has converted property of Stevens.

(C) Negligence:

23. The acts of the Defendants were intentional or reckless in nature, and
thus the Court does not find it appropriate to award damages on this count.

(D) Unjust Enrichment:

24. The Court declines to find sufficient evidence to hold Mosher
responsible under a theory of unjust enrichment. The Court finds sufficient
evidence to hold Tokarz and Kinsey liable under a theory of unjust enrichment in
the amount already established above.

ill. Tudgment:

25. For the reasons stated above, the Court enters Judgment for Stevens
against Kinsey in the amount of $21,000.00, plus interest and costs in Count I.

26. For the reasons stated above, the Court enters Judgment for Stevens
against Kinsey and Tokarz jointly and severally in the amount of $12,000.00 plus
interest and costs in Count II. Judgment for Mosher is ent red with respect to
Count II.

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• I I

27. For the r asons stated above, the Court enters Judgment for Stevens
against Kinsey and Tokarz jointly and severally in the amount of $12,000.00 plus
interest and costs in Count III. Judgment is entered for Mosher with respect to
Count III.

28. In summary, Tokarz and Kinsey are jointly and severally liable to
Stevens for $12,000.00, plus interest and costs. Kinsey is liable to Stevens for
attorney's fees in the amount of $9,000.00 with respect to Count I. Mosher owes
no damages to Stevens.

The Clerk is directed to incorporate this Decision and Judgment by
reference into the docket for this case, pursuant to Rule 79(a), Maine Rules of Civil
Procedure.

Date: 1/17/2020

BY~f____.. Iii~
R bert E. Mullen, Chief Justice
Maine Superior Court

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CLISTA M STEVENS - PLAINTIFF SUPERIOR COURT
PO BOX 255 FRANKLIN, ss.
DRYDEN ME 04225 Docket No FARSC-CV-2018-00006
Attorney for: CLISTA M STEVENS
SCOTT J LYNCH - RETAINED
LYNCH & VAN DYKE PA DOCKET RECORD
261 ASH ST
PO BOX 116
LEWISTON ME 04243-0116

vs
DIANE L MOSHER - DEFENDANT
432 INTERVALE ROAD
TEMPLE ME 04984
LINDA S TOKARZ - DEFENDANT
PO BOX 407
RUTLAND MA 01543
JOSEPHS KINSEY - DEFENDANT
PO BOX 855
WILTON ME 04294

Filing Document: COMPLAINT Minor Case Type: OTHER NON-PERSONAL INJURY TORT
Filing Date: 03/26/2018

Docket Events:
03/26/2018 FILING DOCUMENT - COMPLAINT FILED ON 03/26/2018

03/27/2018 Party(s): CLISTA M STEVENS
ATTORNEY - RETAINED ENTERED ON 03/26/2018
Plaintiff's Attorney: SCOTT J LYNCH

04/12/2018 Party(s): LINDA S TOKARZ
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 03/26/2018

04/12/2018 Party(s): LINDA S TOKARZ
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/05/2018

04/12/2018 Party(s): JOSEPHS KINSEY,DIANE L MOSHER,LINDA S TOKARZ
RESPONSIVE PLEADING - ANSWER FILED ON 04/06/2018

04/20/2018 ORDER - SCHEDULING ORDER ENTERED ON 04/17/2018
ROBERT E MULLEN, JUSTICE
ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO
PARTIES/COUNSEL

04/20/2018 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 12/17/2018

05/11/2018 Party(s): JOSEPHS KINSEY
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/05/2018

05/11/2018 Party(s): JOSEPHS KINSEY
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 05/10/2018

06/11/2018 Party(s): DIANE L MOSHER
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/16/2018
Page 1 of 8 Printed on: 12/29/2020