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Johnson v. Esclusive Properties
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 244 
Docket: 	Cum-97-490
Submitted 
 on Briefs:	October 14, 1998
Decided:	November 20, 1998

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

BRUCE JOHNSON

v.

EXCLUSIVE PROPERTIES UNLIMITED, et al.

RUDMAN, J.

	[¶1]  Bruce Johnson appeals from the judgment of the Superior Court
(Cumberland County, Brennan, J.) in favor of defendants Harry Andrews and
Kent Lewis.  Johnson contends that the court erred by: (1) applying an
incorrect legal standard in its analysis of his claim seeking to pierce the
corporate veil; and (2) failing to hold either Andrews or Lewis personally
liable as fiduciaries.  We agree that the trial court erred by applying an
incorrect legal standard when it declined to pierce the corporate veil and
therefore vacate the judgment.
	[¶2]  In a jury-waived trial, Johnson presented evidence that
established the following facts.  Lewis was a real estate broker operating an
unincorporated business under the name Exclusive Properties Unlimited
until he surrendered his broker's license to the Maine Real Estate
Commission in July 1988, pursuant to a consent agreement.  As a broker,
Lewis had secured options to purchase home sites at Lake Arrowhead
Estates in Limerick ("Arrowhead") and made efforts to sell the lots.  In
1989, Lewis and Andrews joined to form a corporation under the name
Exclusive Properties Unlimited ("EPU"),{1} for the purpose of taking over the
efforts of Lewis to market and sell the Arrowhead properties.
	[¶3]  In December 1989, Johnson signed a purchase and sale
agreement ("the contract") with EPU for an Arrowhead site.  Johnson paid
$5,000 as earnest money and part payment to EPU.  Lewis accepted
Johnson's check, payable to EPU, on behalf of the corporation.  Andrews
deposited the funds in EPU's corporate bank account.  The contract
contained a clause releasing Johnson from performance if he was unable to
obtain financing at eleven percent or less per annum.  The contract also
provided for a closing date within forty-five days and a forfeiture of the
deposit upon Johnson's failure to perform.  As the closing date approached,
Johnson unsuccessfully attempted to negotiate either a discount from the
contract price or a return of the deposit.  Both parties considered the
contract to remain in force during the negotiations, which continued after
the closing date.  After negotiations broke down, Johnson maintained that
he was entitled to a return of his deposit because his good faith efforts to
obtain suitable financing were unsuccessful.  The defendants refused to
return the deposit, on the grounds that Johnson failed to perform and
reneged on his purchase obligation, despite available financing that satisfied
the contract terms.  The court found that Johnson was entitled to recover
the deposit and entered summary judgment against EPU, but refused to
pierce the corporate veil to hold Andrews or Lewis personally liable.

I.  Piercing The Corporate Veil

	[¶4]  Although the court found that Andrews was an "alter ego" of
EPU, and that EPU was liable for breach of contract, the court refused to
ignore the corporate form and hold Andrews or Lewis personally liable. 
Citing Theberge v. Darbro Inc., 684 A.2d 1298, 1301 (Me. 1996), the court
stated:

To recover against Harry Andrews and/or Kent Lewis, Mr.
Johnson must prove that the corporate entity was the alter ego
of an individual and, in the contract arena, that they 	engaged in
some fraud or illegality with respect to the formation of the
contract.  Mr. Johnson has proven that the corporation was
merely the alter ego of Mr. Andrews (but not Mr. Lewis). 
However, Mr. Johnson has failed to prove any fraudulent or
illegal conduct on the part of either Mr. Andrews or Mr. Lewis
with respect to the formation of the contract.  Thus, Mr.
Johnson's attempt to "pierce the corporate veil" must fail.

	[¶5]  As a matter of public policy, "corporations are separate legal
entities with limited liability." Theberge, 684 A.2d at 1301 (quoting
Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752, 756 n.5 (Me.
1981)).  "As such, courts are generally reluctant to disregard the legal entity
and will cautiously do so only when necessary to promote justice." 
Anderson, 433 A.2d at 756 n.5.  However, a court may pierce the corporate
veil when equity so demands, and may disregard the corporate entity "when
used to cover fraud or illegality, or to justify a wrong."  Id. (quoting Maine
Aviation Corp. v. Johnson, 160 Me. 1, 5, 196 A.2d 748, 750 (1964)). 
	[¶6]  An examination of the different tests courts apply suggests two
common elements that a plaintiff must establish before a court will
disregard the corporate entity: (1) some manner of dominating, abusing, or
misusing the corporate form; and (2) an unjust or inequitable result that
would arise if the court recognized the separate corporate existence.  See,
e.g., Bonnar-Vawter, Inc. v. Johnson, 157 Me. 380, 387-88, 173 A.2d 141,
145-46 (1961); Anderson, 433 A.2d at 756; 1 William Meade Fletcher et al.,
Fletcher Cyclopedia of the Law of Private Corporations § 41 (perm. ed. rev.
vol. 1990).  This two-pronged formulation provides a means for balancing
the policy of encouraging business development with the policy of
protecting those who deal with the corporation.  See Wm. Passalacqua
Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 139 (2d Cir.
1991).{2}  Therefore, before a court may pierce the corporate veil, a plaintiff
must establish that: (1) the defendant abused the privilege of a separate
corporate identity; and (2) an unjust or inequitable result would occur if the
court recognized the separate corporate existence.  
	[¶7]  To determine whether a shareholder has abused the privilege of
a separate corporate identity under the first prong of the piercing doctrine,
courts examine a variety of factors.  For example, Massachusetts courts
weigh the following twelve factors:

(1) common ownership; (2) pervasive control; (3) confused
intermingling of business activity[,] assets, or management; (4)
thin capitalization; (5) nonobservance of corporate formalities;
(6) absence of corporate records; (7) no payment of dividends;
(8) insolvency at the time of the litigated transaction; (9)
siphoning away of corporate assets by the dominant
shareholders; (10) nonfunctioning of officers and directors; (11)
use of the corporation for transactions of the dominant
shareholders; [and] (12) use of the corporation in promoting
fraud.

The George Hyman Constr. Co. v. Gateman, 16 F. Supp. 2d 129, 149-50 (D.
Mass. 1998).{3}  Presumably, the court's finding that Andrews was an "alter
ego"{4} of EPU indicated that Johnson satisfied the first element of his
piercing claim by demonstrating that Andrews abused the corporate form. 
See id.  Therefore, the court did not err in its analysis under the first prong
of the piercing doctrine. 
	[¶8]  However, contrary to the court's assertion, the second prong of
the piercing doctrine does not require a finding of fraud or illegality.  See
Anderson, 433 A.2d at 756 n.5; see also Wm. Passalacqua Builders, Inc., 933
F.2d at 141 (stating that New York's corporate disregard doctrine does not
require a finding of fraud).  Courts may also disregard the theory of separate
corporate existence to prevent injustice or inequitable consequences.  See,
e.g., Anderson, 433 A.2d at 756 n.5 (employing equitable estoppel theory to
pierce the corporate veil).  In fact, fraud or illegality may provide a basis of
recovery against a shareholder independent of the piercing doctrine. 
Therefore, the court erred in concluding that only fraud or illegality can
satisfy the second element.  
	[¶9]  After finding that Andrews abused the privilege of a separate
corporate identity, the court should have continued its analysis to inquire
whether recognizing the separate corporate existence would produce an
inequitable result.  Since piercing the corporate veil is an equitable remedy,
it is consistent with equitable principles to disregard the corporate entity
where a claimant demonstrates both: (1) some misuse of the privilege of the
corporate form; and (2) an inequitable result.  See Theberge, 684 A.2d at
1301 (holding courts may pierce the corporate veil if: (1) the corporation is
a mere "alter ego"; and (2) "when necessary in the interest of justice").

II.  Escrow

	[¶10]  Johnson also claims that Andrews assumed a personal obligation
as an escrow agent when he received Johnson's deposit from Lewis. 
Johnson argues that, as an escrow agent, Andrews is personally liable for any
breach of fiduciary duty in handling the escrow funds.
	[¶11]  According to the terms of the contract for sale of real estate,
EPU purported to hold Johnson's deposit in escrow as his escrow agent.{5} 
However, the court found as a factual matter that the parties failed to create
an escrow agreement because they did not intend to do so, despite the
contractual language.
	[¶12]  An "escrow" is a written instrument, imparting a legal
obligation, that one party to a transaction (i.e., grantor, promisor, or obligor)
deposits with a third party, the escrow agent, for the escrow agent to hold
until the performance of a condition or occurrence of an event, and then to
deliver to the other party to the transaction (i.e., grantee, promisee, or
obligee).  See Progressive Iron Works Realty Corp. v. Eastern Milling Co.,
155 Me. 16, 19-20, 150 A.2d 760, 762 (1959); Black's Law Dictionary 641
(4th ed. 1951).  The creation of an escrow agreement consists of four
elements: (1) an agreement regarding the subject matter and delivery of the
deposit or instrument; (2) an escrow agent; (3) delivery of the funds or
instrument to the escrow agent, conditioned upon the performance of an act
or occurrence of an event; and (4) relinquishment by the grantor or
depositor.  See, e.g., Press v. Marvalan Industries, Inc., 422 F. Supp. 346,
349 n.* (S.D.N.Y. 1976). 
	[¶13]  Whether an instrument that one party deposits with a third
person is an escrow, rather than a completely executed instrument,
depends on the intent of the parties, and is generally a question of fact for
the factfinder.  See Progressive Iron Works Realty Corp., 155 Me. at 20, 150
A.2d at 762.  We will not disturb the trial court's factual findings unless they
are clearly erroneous.  See VanVoorhees v. Dodge, 679 A.2d 1077, 1080
(Me. 1996).  The court's factual findings are clearly erroneous when the
record lacks competent evidence to support them.  See id.   
	[¶14]  The party who asserts the existence of an escrow has the
burden of proving its existence by a preponderance of the evidence.  See,
e.g., Vellaringattu v. Caso, 544 N.Y.S.2d 455, 457 (1989).  No particular form
of words is necessary to constitute an escrow.  See, e.g., Kunick v. Trout, 85
N.W.2d 438, 445 (N.D. 1957).  The use of the term "escrow" is a factor for
courts to consider in determining the intent of the parties.  See, e.g.,
Lechner v. Halling, 216 P.2d 179, 185 (Wash. 1950).  However, although
such use is the clearest indication of the parties' intent, it does not
necessarily create an escrow.  Id.  
	[¶15]  The court based its finding that the parties did not intend for
Andrews to hold the deposit in escrow on the fact that "Johnson clearly
delivered the earnest money deposit to EPU[,] and Andrews, acting as
[EPU's] agent, deposited the money in [EPU's] account."  Since a party
generally cannot deposit escrow funds with the agent of an obligor or
obligee, the court interpreted the failure of the parties to designate a third
party escrow agent as a manifestation of intent that Johnson's check was not
an escrow instrument.  See Progressive Iron Works Realty Corp., 155 Me. at
19-20, 150 A.2d at 762.  Although the agent of an obligor or obligee may
become an escrow agent if acting in an individual capacity and where it
would not be antagonistic to the principal's interest, the record contains
evidence to support the finding that Andrews was not acting in an individual
capacity.  See id.  In light of the requirements for creating an escrow, the
record contains evidence to support the court's finding that the parties did
not actually intend for Andrews to become an escrow agent.  See
VanVoorhees, 679 A.2d at 1080.  Therefore, we will not disturb the court's
factual finding that the parties failed to create an escrow agreement.
	The entry is:
Judgment vacated.  Remanded for proceedings
consistent with this opinion.
Attorneys for plaintiff:

Francis M. Jackson, Esq.
Jackson & MacNicol
P O Box 17713
Portland, ME 04112-8713

Ralph W. Brown, Esq.
19 Candlewyck Rd.
Portland, ME 04102

Attorney for appellee:

Daniel F. Driscoll, Esq.
Smith Elliott Smith & Garmey, P.A.
P O Box 1179
Saco, ME 04072
(for Harry Andrews)