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Tang v. Bayley's
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 264
Docket:	Cum-98-113	
Argued:	December 1, 1998
Decided:	December 11, 1998


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

TANG OF THE SEA, INC.

v.
 
BAYLEY'S QUALITY SEAFOODS, INC.

SAUFLEY, J.

	[¶1]  Bayley's Quality Seafoods, Inc., appeals from the judgment of the
Superior Court (Cumberland County, Brennan, J.) entered after a jury trial,
in favor of Tang of the Sea, Inc., on Tang's claim for conversion.  On appeal,
Bayley's argues, inter alia, that Tang was limited to seeking a formal
accounting as to partnership affairs, and thus was precluded from bringing
its conversion claim, that there was insufficient evidence to support the
jury's award of damages on the conversion claim, and that Tang failed to
mitigate its damages.  We affirm the judgment.

I.  Background

	[¶2]  Tang of the Sea, Inc., is a Maine corporation owned and operated
by Roland Hurtubise, and Bayley's Quality Seafoods, Inc., is a Maine
corporation owned and operated by Stanley Bayley.  Both Tang and Bayley's
process shrimp.  The dispute here centers on shrimp processing
equipment, which was owned by Tang, and which was, during all relevant
times, installed at the Bayley's shrimp processing plant.
	[¶3]  During the late eighties, Tang and Bayley's began to work
together in the shrimp processing business, although they never discussed
or prepared a formal partnership agreement.  To facilitate this arrangement,
Tang and Bayley's shared the use of the equipment necessary for their
business.  Much of the equipment installed at the Bayley's plant was actually
owned by Tang.  In addition to other equipment, in 1993, Tang and Bayley's
each bought a line of Skeemata shrimp processing equipment--each line
consisting of a cooker/peeler, a washer, and a meat and shell separator--and
both lines were installed at the Bayley's plant.
	[¶4]  In November 1994, Hurtubise and Bayley met with a
representative of Seamark Corporation, a distributor of shrimp products, to
discuss an arrangement in which Seamark would buy 500,000 pounds of
processed shrimp from Tang and Bayley's.  Soon thereafter, Bayley met
individually with representatives of Capespray, another distributor, and
discussed an arrangement in which Capespray would agree to purchase all
the shrimp Bayley's could produce.  In December, Bayley informed Hurtubise
that he had decided to sell the output of Bayley's to Capespray rather than
work together with Tang to fill the Seamark order.  For a short time, Tang
continued to use its equipment at the Bayley's plant to process shrimp for
its own sales to other buyers.
	[¶5]  Hurtubise, however, almost immediately became dissatisfied with
the new arrangement between Tang and Bayley's, which left Tang with only
limited access to its own equipment.  By February 1995, Hurtubise asked
Bayley to remove Tang's equipment from the Bayley's plant and return it to
Tang.  Bayley declined to do so.  In March, Hurtubise followed his previous
oral request with a written request for Tang's equipment.  Bayley continued
to refuse to return the equipment until the end of the shrimp season,
because removing the equipment from his plant any sooner would have been
"disruptive" to his business.{1}  Without the equipment, Hurtubise closed the
Tang of the Sea plant.  The equipment was finally returned to Tang after the
close of the 1994-1995 shrimp season.
	[¶6]  Tang then brought the instant suit against Bayley's alleging a
conversion of Tang's shrimp processing equipment.  A jury trial was held,
and the jury returned a verdict finding that Bayley's was liable to Tang on
Tang's claim for conversion in the amount of $75,000.  The Superior Court
entered a judgment in accordance with the jury's verdict, and subsequently
denied a motion for a new trial filed by Bayley's.  Bayley's filed timely notice
of appeal.

II.  Remedy

	[¶7]  Bayley's first contends that Tang and Bayley's were partners
under the Uniform Partnership Act, 31 M.R.S.A. §§ 281-323 (1996 & Supp.
1998) (UPA), and that, as such, Tang was limited to the remedy of seeking a
formal accounting as to partnership affairs and was not entitled to proceed
on its conversion claim.  See 31 M.R.S.A. § 302 (1996); Dalton v. Austin, 432
A.2d 774, 778 (Me. 1981).  The evidence demonstrates, however, that even
if Tang and Bayley's did enter into a partnership agreement, the equipment
demanded by Tang was not partnership property.  See 31 M.R.S.A.
§ 288(2)(A) (1996) (defining partnership property as "[a]ll property
originally brought into the partnership stock or subsequently acquired by
purchase or otherwise, on account of the partnership").  Neither party in
this case intended or considered the equipment to be partnership property;
in fact, everyone who testified on the issue, including Bayley, acknowledged
that the equipment was always known to be the property of Tang.  The
requirement of a formal accounting is applicable to disputes over
partnership property or partnership affairs.  See Dalton v. Austin, 432 A.2d
at 778; 31 M.R.S.A. § 301 (1996).  Because neither party disputed the
ownership of the property, Tang was free to pursue its claim for conversion.

III.  Damages

	[¶8]  Bayley's next contends that there was insufficient evidence to
support the jury's award of $75,000 damages on Tang's conversion claim as
compensation for lost profits.  "'In order to be recoverable, damages must
not be uncertain or speculative but must be grounded on facts in evidence.'" 
Williams v. Ubaldo, 670 A.2d 913, 917 (Me. 1996) (quoting King v. King,
507 A.2d 1057, 1059 (Me. 1986)).  Because "[t]he assessment of damages is
the sole province of the fact-finder," we will not disturb the jury's decision
unless there is "no basis in the evidence for the award."  VanVorhees v.
Dodge, 679 A.2d 1077, 1081 (Me. 1996) (citations omitted) (emphasis
added).  Therefore, although a jury may not be left to base its decision on
mere speculation, "'damages need not be proved to a mathematical
certainty.'"  Williams v. Ubaldo, 670 A.2d at 917 (quoting Currier v. Cyr, 570
A.2d 1205, 1210 (Me. 1990)).
	[¶9]  Viewed in the light most favorable to Tang, the evidence is
sufficient to support the jury's award of damages.  The jury heard Tang's
evidence as to its damages from Hurtubise who opined that, if the
equipment had been returned upon Hurtubise's first demand in February,
Tang could have produced and sold to Seamark at least 100,000 pounds of
processed shrimp, at a price that would have generated a profit of at least
75¢ per pound.  Specifically, Hurtubise testified that he always calculated
the price of processed shrimp sold by Tang to generate a profit of 75¢ to $1
per pound, and that he would have done the same for any processed shrimp
that he would have produced in 1995 if Tang's equipment had been
returned.
	[¶10]  In addition to Hurtubise's testimony, there was evidence that
Seamark had purchased shrimp from Tang and Bayley's in the past under
similar circumstances, and that Seamark would "absolutely" have purchased
up to 500,000 pounds of shrimp from Tang in 1995 if it was able.  Although
Bayley's challenges the lack of precision and detail in Hurtubise's
explanation of the profit-per-pound figure of 75¢ to $1, "[t]he jury is
entitled to act upon probable and inferential . . . proof in determining
damages," and may base an award of damages on a judgmental
approximation, "provided the evidence establishes facts from which the
amount of damages may be determined to a probability."  Currier v. Cyr, 570
A.2d at 1210.
	[¶11]  Moreover, while Bayley's expert disputed the profit-per-pound
estimate advanced by Hurtubise, the jury was not required to believe his
testimony.{2}  The jury heard evidence that Hurtubise had substantial
experience in the business of selling processed shrimp, that he would set
his price at a number that would garner a specific profit-per-pound, that he
had done so in the past, that he had a buyer for his product, and that the
buyer would have purchased up to 500,000 pounds of product.  Under these
circumstances, we will not disturb the jury's determination of damages.

IV.  Mitigation

	[¶12]  Bayley's also contends that, by choosing to close its plant for the
remainder of the season, Tang failed to mitigate its damages.  Failure to
mitigate damages is an affirmative defense, and therefore Bayley's had the
burden of proving that Tang failed to take reasonable steps to mitigate its
damages.  See Marchesseault v. Jackson, 611 A.2d 95, 99 (Me. 1992).  We
will vacate the judgment only if the jury was compelled to find that Tang had
failed to mitigate damages.  See Agliato v. Norton, 632 A.2d 144, 145 (Me.
1993).  
	[¶13]  The record, however, contains evidence that Tang was limited
to using its own equipment at night, that to use its equipment it would
either have had to leave its shrimp in the hands of the employees of Bayley's
or hire its own new employees, and that, although it had access to some
replacement equipment owned by Bayley's, it would have had to modify that
equipment to install it at the Tang plant.  Under these circumstances, the
jury was not compelled to find that Tang had failed to take reasonable steps
to mitigate its damages.  Bayley's simply failed to persuade the jury that Tang
had not satisfied its "'duty' to use reasonable efforts to mitigate its
damages."  Marchesseault v. Jackson, 611 A.2d at 99 (footnote omitted).
	[¶14]  Bayley's other arguments on appeal are without merit.
	The entry is
Judgment affirmed.
Attorney for the Plaintiff: 				
Joseph J. Hahn, Esq.      (orally)
Bernstein, Shur, Sawyer & Nelson, P.A.
l00 Middle St.
P.O. Box 9729
Portland, Maine 04104-5029	

Attorney for the Defendant:

Gene R. Libby, Esq.	  (orally)
Verrill & Dana
Lafayette Center
P.O. Box 147
Kennebunk, Maine 04043-0147