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Maynard Saucier v. State Tax Assessor

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 8
Docket:	Aro-99-275
Argued:	November 3, 1999
Decided:	January 21, 2000




	[¶1]  Maynard Saucier appeals from a summary judgment entered in
the Superior Court (Aroostook County, Atwood, J.) in favor of the State Tax
Assessor.  Saucier contends that judgment was improperly entered because
there was a genuine issue of material fact regarding the amount of sales
taxes Saucier owed the State, and that the Assessor was barred from
proceeding against Saucier because the State had already elected to file its
claim against Saucier's bankruptcy estate.  In addition, Saucier contends
that the decision must be vacated because the court erred when it failed to
modify the Assessor's decision regarding penalties owed.  We agree with
Saucier only as to the penalties.  Accordingly, we modify the judgment to
eliminate the penalties, and affirm the modified judgment.
	[¶2]  Saucier has been a businessman in Fort Kent, operating a number
of small businesses over the years.  In 1991, he purchased a thirty-seven per
cent share in W.J. Ouellette, Inc. and began to actively participate in running
the business.  The only other shareholder was Bruce Freeman, who held the
majority of shares.  Freeman was president and secretary of the business,
while Saucier was vice president and treasurer.  Despite Saucier's efforts to
rehabilitate it, the business was in financial trouble.  Saucier personally
guaranteed loans for Ouellette and made further loans and purchased
equipment with his own funds.  Saucier became aware that there were
unpaid taxes beginning in 1992, and when the IRS placed a lien on Saucier's
residence, Saucier began to insist that Freeman make payments on the back
taxes with Freeman's own funds.  By 1994, it was apparent that the business
was going to fail.  For January through May of 1994, the period at issue in
this case, no state sales taxes were paid.  The State Tax Assessor issued an
assessment of these taxes and corresponding interest and penalties against
Saucier as a "responsible individual."  See 36 M.R.S.A. § 177(2)
(Supp. 1999).  Saucier's request for reconsideration of this assessment was
denied.  In the meantime, Freeman settled for $7,226.80, an assessment
against him for taxes owed that purported to include all taxes owed by him
between November of 1987 and May of 1994.
	[¶3]  Saucier petitioned for review of the assessment in the Superior
Court.  See 36 M.R.S.A. § 151 (Supp. 1999).  Several months later, he filed
for bankruptcy protection in the United States Bankruptcy Court.  Because
the case was stayed by such filing, we vacated a Superior Court judgment
dismissing Saucier's complaint.  See Saucier v. State Tax Assessor,
1998 ME 61, ¶ 7, 708 A.2d 281, 283.  On remand and following discovery,
the court granted the Assessor's motion for a summary judgment.  The trial
court found that the only evidence supporting Saucier's position that a
portion of the Freeman settlement should be applied to offset his liability
was the settlement agreement, which purported to absolve Freeman from
liability for taxes owed through May of 1994.  The court concluded, however,
that the agreement was simply evidence that Freeman was no longer
personally liable for the taxes, not that the 1994 taxes had been paid, either
in whole or in part.  The trial court also held that the Assessor's claim
against Saucier is not barred merely because the Assessor had filed a proof of
claim in the Bankruptcy Court.{1}  Finally, the court noted that the parties
agreed that Saucier's discharge in the Bankruptcy Court relieved him of
debts for penalties for nonpayment of taxes.  The judgment entered by the
court, however, failed to relieve Saucier from the assessment of penalties. 
This appeal by Saucier followed.
	[¶4]  Saucier contends that there exists a genuine issue of material
fact regarding the amount he owes the Assessor.  In general, "a party is
entitled to a summary judgment if there is no genuine issue of material fact
and that party is entitled to a judgment as a matter of law." 
Chadwick-BaRoss, Inc. v. T. Buck Constr., Inc., 627 A.2d 532, 534
(Me. 1993) (citing M.R. Civ. P. 56(c)).
	[¶5]  In considering a motion for summary judgment, "the court is to
consider only the portions of the record referred to, and the material facts
set forth, in the [M.R. Civ. P.] 7(d) statements."  See Gerrity Co. v. Lake
Arrowhead Corp., 609 A.2d 293, 295 (Me. 1992) (quoting M.R. Civ. P. 56(c)
advisory committee's note to 1990 amend., Me. Rptr., 563-575 A.2d LXXIII). 
Where a party opposing a motion for summary judgment fails to file a
statement of material facts in dispute with citations to the record in
accordance with Rule 7(d)(2), "all facts alleged in the moving party's
statement of undisputed facts are deemed admitted."  See Biette v. Scott
Dugas Trucking & Excavating, Inc., 676 A.2d 490, 494 (Me. 1996) (citing
Guiggey v. Bombardier, 615 A.2d 1169, 1171 (Me. 1992)).  We have recently
ruled that the party opposing summary judgment must specifically rebut the
movant's statement of material facts.  See Prescott v. State Tax Assessor,
1998 ME 250, ¶ 6, 721 A.2d 169, 172.  When the nonmoving party fails to
so rebut the movant's statement, the facts averred in that statement are
deemed admitted.  See id.
	[¶6]  Saucier's statement of material facts fails to rebut the facts
asserted by the Assessor as to the amount of taxes Saucier owes, pursuant to
36 M.R.S.A. § 177(2), as a responsible individual.  Accordingly, the
Assessor's statement of material facts must be taken as admitted.  Saucier
does not contend that the taxes were not properly assessed against him. 
Rather, his claim is that he is entitled to offset against the taxes owed for
the period of January through May of 1994:  (1) all overpayments that were
made prior to that period; and (2) the amount of taxes reflected in the
Assessor's settlement with Freeman.  Saucier's claim of overpayment is not
supported by the evidence.  Saucier relies on the deposition of Freeman,
along with accompanying affidavits, to contend that there should be a credit
balance for certain payment periods prior to 1994, and that Saucier should
be entitled to apply those overpayments to the taxes assessed against him
for 1994.  Even if Saucier were entitled to claim such a credit for
overpayments, the evidence fails to show that taxes in fact were overpaid. 
As to the settlement the Assessor made with Freeman, the record is clear
that the Assessor applied the money paid pursuant to the Freeman
settlement to taxes owed prior to January of 1994.  Although the settlement
agreement made by the Assessor with Freeman purports to absolve Freeman
personally for debts through May of 1994, that does not alter the fact that
the tax money Freeman paid was all applied to pre-1994 taxes.  The court
did not err in finding there was no genuine issue of material fact regarding
the amount Saucier owed as a responsible individual.
	[¶7]  Saucier also contends that the doctrine of election of remedies
applies to bar the Assessor from collecting the debt from him personally
because the Assessor has already elected to pursue payment of the debt
against Saucier's bankruptcy estate.  We disagree.
	[¶8]  Under the election of remedies doctrine, one cannot
simultaneously "utiliz[e] . . . two inconsistent and repugnant positions to
seek redress."  Brickyard Assocs. v. Auburn Venture Partners, 626 A.2d 930,
935 (Me. 1993) (citing State Dev. Office v. State Employees Appeals Bd.,
363 A.2d 688, 692 (Me. 1976)).  The doctrine applies, however, only after a
plaintiff has obtained a viable judgment on one of the claims.  See Murray v.
City of Augusta, 394 A.2d 1171, 1173 (Me. 1978) (citing United States v.
Oregon Lumber Co., 260 U.S. 290 (1922)), quoted in Brickyard Assocs., 626
A.2d at 935.
	[¶9]  The trial court correctly determined that the election of
remedies doctrine did not bar the Assessor's pursuit of Saucier personally. 
The Assessor's claim against Saucier's bankruptcy estate has not been
successful.  There is no enforceable judgment against the bankruptcy estate,
and the debt has not been satisfied.  Until that debt is satisfied, the Assessor
may pursue both remedies.  Accordingly, the Assessor's filing of a proof of
claim in the Bankruptcy Court does not bar his pursuit of Saucier personally.
	[¶10]  In its order on the Assessor's motion for summary judgment,
the trial court noted that the Assessor had waived any pursuit of Saucier for
penalties for nonpayment of taxes because such penalties were discharged in
bankruptcy.  The parties agree that the court's judgment reflects an
oversight in that it failed to modify the Assessor's decision to reflect the
elimination of penalties.  Accordingly, we will modify the judgment to
eliminate penalties.  We decline, however, Saucier's request that we vacate
the entire judgment based on this error.
	The entry is:
Judgment of the Superior Court is modified to
eliminate penalties assessed against Saucier,
and as modified, is affirmed.

Attorney for plaintiff: Wiliam J. Smith, Esq. (orally) P O Box 7 Van Buren, ME 04785 Attorneys for defendant: Andrew Ketterer, Attorney General Stanley W. Piecuch, Asst. Attorney General (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . Saucier filed a statement in the Bankruptcy Court stating that his bankruptcy estate had $41,000 worth of real property for distribution to creditors.