MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	155	
Docket:	   BCD-16-419	
Argued:	   April	11,	2017	
Decided:	  July	13,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   ALAN	MILLER	
                                          	
                                         v.	
                                          	
                                STEVE	N.	MILLER	et	al.	
	
	
HUMPHREY,	J.	

       [¶1]	 	 Alan	 Miller	 appeals	 from	 summary	 judgments	 entered	 in	 the	

Business	 and	 Consumer	 Docket	 (Horton,	 J.)	 in	 favor	 of	 Miller’s	 Lobster	

Company	 Inc.	 (MLC),	 Steve	 N.	 Miller,	 and	 Mark	 K.	 Miller	 (collectively,	 the	

Millers);	 and	 in	 favor	 of	 SAM	 Miller,	 Inc.	 (SMI).	 	 After	 Alan	 sought	 injunctive	

relief	and	damages	arising	out	of	the	lease	of	wharf	property	in	St.	George	by	

SMI	 to	 MLC,	 the	 court	 granted	 the	 Millers’	 and	 SMI’s	 motions	 for	 summary	

judgment,	concluding	that	Alan’s	claims	are	barred	by	the	applicable	statute	of	

limitations.		We	affirm	the	judgments.	

                                    I.		BACKGROUND	

       [¶2]		On	August	8,	2014,	Alan,	acting	“individually	and	in	the	right	of	and	

for	 the	 [b]enefit	 of”	 SMI,	 filed	 the	 operative	 second	 amended	 complaint	
2	

against	 the	 Millers.1	 	 Alan	 alleged	 that	 he,	 Steve,	 and	 Mark	 are	 the	 sole	

shareholders	 of	 SMI;	 that	 Steve	 and	 Mark	 are	 the	 sole	 shareholders	 of	 MLC;	

and	that	SMI	leased	wharf	property	in	St.	George	to	MLC	without	conducting	a	

lawful	corporate	meeting	and	without	charging	MLC	rent,	to	the	detriment	of	

Alan	and	SMI.	

         [¶3]	 	 Alan	 asserted	 eight	 causes	 of	 action	 in	 connection	 with	 the	 lease	

agreement:	 a	 shareholder	 derivative	 action	 challenging	 Steve	 and	 Mark’s	

failure	 to	 prevent	 SMI	 from	 entering	 into	 the	 lease	 (Count	 1);	 breach	 of	

fiduciary	duty	(Count	2);	gross	mismanagement	(Count	3);	waste	of	corporate	

assets	 (Count	 4);	 unjust	 enrichment	 (Count	 5);	 punitive	 damages	 (Count	 6);	

breach	 of	 the	 duty	 of	 good	 faith	 and	 fair	 dealing	 (Count	 7);	 and	 interference	

with	 advantageous	 relationships	 (Count	 8).2	 	 The	 Millers	 moved	 for	 a	

summary	 judgment,	 arguing	 that	 each	 of	 Alan’s	 claims	 against	 them	 was	

barred	 by	 the	 statute	 of	 limitations.	 	 Alan	 opposed	 the	 motion	 and	 filed	

additional	statements	of	material	facts,	to	which	the	Millers	replied.3	



     1		Alan	filed	his	initial	complaint	on	February	19,	2014,	in	the	District	Court	(Rockland).		The	case	

was	transferred	to	the	Business	and	Consumer	Docket	in	June	2014.	
   	
   2		Alan	named	SMI	as	a	“Nominal	Defendant”	and	sought	relief	“Against	All	Defendants”	in	five	of	

the	causes	of	action.		SMI,	represented	by	separate	counsel,	filed	an	answer	and	asserted	that	Alan’s	
claims	were	barred	by	the	statute	of	limitations.	
   	
   3		SMI	did	not	separately	move	for	a	summary	judgment	or	join	the	Millers’	motion.	
                                                                                       3	

      [¶4]	 	 Viewed	 in	 the	 light	 most	 favorable	 to	 Alan,	 the	 nonprevailing	

party,	 the	 summary	 judgment	 record	 reveals	 the	 following	 facts.		

See	Pawlendzio	v.	Haddow,	2016	ME	144,	¶	9,	148	A.3d	713.		Alan,	Steve,	and	

Mark	are	brothers.		Their	father,	Luther	Miller,	purchased	the	wharf	at	issue	in	

the	 1960s.	 	 MLC,	 which	 conducts	 a	 restaurant	 business,	 was	 formed	 in	 1978	

and	 has	 operated	 from	 Luther’s	 wharf	 since	 its	 inception.	 	 Since	 1992,	 Steve	

and	Mark	have	been	the	sole	shareholders	of	MLC.		Between	1992	and	1997,	

MLC	 continued	 to	 operate	 on	 the	 wharf	 while	 paying	 the	 wharf’s	 real	 estate	

taxes,	insurance,	and	maintenance	costs.			

	     [¶5]		In	1997,	Luther	transferred	ownership	of	the	wharf	to	SMI,	a	new	

corporation	formed	by	Alan,	Steve,	and	Mark.		The	three	brothers	are	the	sole	

shareholders	of	SMI,	each	owning	a	one-third	interest	in	the	corporation.		On	

September	2,	1997,	SMI	executed	a	lease	allowing	MLC	to	continue	operating	

from	the	wharf	without	paying	rent	in	exchange	for	paying	the	wharf’s	taxes,	

insurance,	and	maintenance	costs.		That	lease	was	renewed	in	2001	and	again	

on	 May	 1,	 2004.	 	 Alan	 alleges	 that	 both	 lease	 renewals	 occurred	 without	 his	

knowledge	or	consent	and	without	a	meeting	of	all	of	the	SMI	shareholders.		It	

is	 undisputed,	 however,	 that	 MLC	 has	 operated	 in	 some	 capacity	 from	 the	

wharf	 continuously	 since	 it	 was	 formed	 in	 1978	 and	 that	 since	 1997	 it	 has	
4	

“been	 using	 the	 [w]harf	 exclusively”	 and	 paying	 for	 the	 wharf’s	 real	 estate	

taxes,	insurance,	and	maintenance	costs.4	

	        [¶6]		On	August	16,	2013,	Alan	demanded,	pursuant	to	13-C	M.R.S.	§	753	

(2016),	 that	 SMI	 file	 an	 action	 against	 the	 Millers	 for	 damages	 caused	 by	

MLC’s	 lease	 of	 the	 wharf	 for	 no	 or	 insufficient	 rent	 and	 for	 other	 fiduciary	

breaches.		SMI	has	not	instituted	such	an	action.			

	        [¶7]	 	 By	 order	 dated	 August	 7,	 2015,	 the	 court	 concluded	 that	 Alan’s	

claims	were	untimely	according	to	the	applicable	six-year	limitations	period,	

see	 14	 M.R.S.	 §	 752	 (2016),5	 and	 granted	 the	 Millers’	 motion	 for	 summary	

judgment	as	to	“all	of	[Alan’s]	claims.”		Alan	appealed	from	the	judgment	and	

we	 dismissed	 his	 appeal	 as	 interlocutory	 because	 to	 the	 extent	 that	 he	 had	

asserted	 claims	 against	 SMI	 as	 a	 “nominal	 defendant,”	 the	 judgment	 did	 not	

dispose	of	those	claims.	




     4		The	parties’	statements	of	material	facts	generate	several	disputes	regarding	Alan’s	notice	of	

and	 participation	 in	 SMI’s	 decisions,	 details	 of	 the	 executions	 of	 the	 leases,	 Alan’s	 level	 of	
knowledge	of	or	agreement	to	the	leases	and	the	timing	of	that	knowledge,	SMI’s	failure	to	charge	
MLC	rent,	and	the	extent	of	MLC’s	growth	(and	resulting	increase	in	its	use	of	the	wharf)	over	the	
years.		These	disputes	are	not	material	to	the	statute-of-limitations	issue,	which	is	the	sole	issue	in	
this	appeal.	
    	
    5		According	to	14	M.R.S.	§	752	(2016),	“All	civil	actions	shall	be	commenced	within	6	years	after	

the	cause	of	action	accrues	and	not	afterwards,	except	actions	on	a	judgment	or	decree	of	any	court	
of	record	of	the	United	States,	or	of	any	state,	or	of	a	justice	of	the	peace	in	this	State,	and	except	as	
otherwise	specially	provided.”	
                                                                                          5	

	         [¶8]	 	 In	 June	 2016,	 SMI	 moved	 for	 a	 summary	 judgment,	 arguing	 that	

Alan’s	 claims	 against	 it	 were	 barred	 by	 the	 statute	 of	 limitations.	 	 The	 court	

granted	 SMI’s	 motion,	 determining	 that	 to	 the	 extent	 Alan	 asserted	 claims	

against	 SMI,	 those	 claims	 were	 “barred	 by	 the	 statute	 of	 limitations	 to	 the	

same	extent	and	for	the	same	reasons	as	his	claims	against”	the	Millers.		Alan	

now	timely	appeals	from	the	summary	judgments	in	favor	of	the	Millers	and	

SMI.			

                                      II.		DISCUSSION	

	         [¶9]	 	 Alan	 argues	 that	 the	 court	 erred	 by	 concluding	 that	 his	 claims	

against	the	Millers	and	SMI	are	barred	by	the	applicable	statute	of	limitations.		

We	review	the	summary	judgment	record	in	the	light	most	favorable	to	Alan,	

the	 nonprevailing	 party,	 to	 determine	 de	 novo	 whether	 the	 parties’	

statements	 of	 material	 facts	 and	 the	 evidence	 cited	 therein	 establish	 that	 no	

genuine	 dispute	 of	 material	 fact	 exists	 and	 that	 the	 Millers	 and	 SMI	 are	

entitled	to	judgments	as	a	matter	of	law.		See	M.R.	Civ.	P.	56(c);	Angell	v.	Hallee,	

2014	ME	72,	¶	16,	92	A.3d	1154;	Pawlendzio,	2016	ME	144,	¶	9,	148	A.3d	713.		

“A	fact	is	material	if	it	has	the	potential	to	affect	the	outcome	of	the	suit,	and	a	

genuine	issue	of	material	fact	exists	when	a	fact-finder	must	choose	between	

competing	 versions	 of	 the	 truth,	 even	 if	 one	 party’s	 version	 appears	 more	
6	

credible	 or	 persuasive.”	 	 Angell,	 2014	 ME	 72,	 ¶	 17,	 92	 A.3d	 1154	 (quotation	

marks	omitted).	

	      [¶10]	 	 The	 Millers	 and	 SMI,	 who	 raised	 the	 affirmative	 defense	 of	 the	

statute	of	limitations,	first	had	the	burden	to	establish	that	there	is	no	genuine	

dispute	that	Alan’s	suit	was	commenced	after	the	limitations	period	elapsed.		

See	 M.R.	 Civ.	 P.	 8(c);	 Angell,	 2014	 ME	 72,	 ¶¶	 18,	 20,	 92	 A.3d	 1154;	 Nuccio	 v.	

Nuccio,	673	A.2d	1331,	1333	(Me.	1996).		If	they	met	that	burden,	it	was	then	

Alan’s	 burden	 to	 demonstrate	 that	 a	 dispute	 of	 material	 fact	 exists	 as	 to	

whether	 the	 statute	 of	 limitations	 was	 nonetheless	 tolled	 or	 otherwise	

inapplicable.		See	Nuccio,	673	A.2d	at	1334.		Alan	contends	that	the	Millers	and	

SMI	did	not	meet	their	burden	and	that	even	if	they	did,	he	met	his	burden	to	

establish	that	tolling	of	the	limitations	period	renders	his	complaint	timely.	

A.	    Accrual	

	      [¶11]	 	 Alan	 first	 contends	 that	 the	 Millers	 and	 SMI	 did	 not	 meet	 their	

burden	to	establish,	as	a	matter	of	law,	that	his	action	was	commenced	after	

the	limitations	period	for	each	claim	had	elapsed.		The	parties	agree	that	the	

six-year	limitations	period	provided	by	14	M.R.S.	§	752	applies	to	all	of	Alan’s	

claims;	therefore,	to	survive	the	defendants’	statute-of-limitations	defense,	his	

action	must	have	been	commenced	within	six	years	after	his	causes	of	action	
                                                                                          7	

accrued.		There	is	no	dispute	that	Alan	commenced	his	action	on	February	19,	

2014.			

	     [¶12]		Absent	express	direction	from	the	Legislature	stating	otherwise,	

a	 cause	 of	 action	 accrues	 when	 “the	 plaintiff	 sustains	 a	 judicially	 cognizable	

injury.”	 	 Nevin	 v.	 Union	 Tr.	 Co.,	 1999	 ME	 47,	 ¶	 24,	 726	A.2d	 694	 (quotation	

marks	 omitted).	 	 Generally,	 tort	 actions	 accrue	 “when	 the	 plaintiff	 sustains	

harm	to	a	protected	interest,”	i.e.,	when	a	plaintiff	is	“entitled	to	seek	judicial	

vindication.”	 	 McLaughlin	 v.	 Superintending	 Sch.	 Comm.,	 2003	 ME	 114,	 ¶	22,	

832	 A.2d	 782	 (quotation	 marks	 omitted).	 	 The	 same	 is	 true	 for	 a	 claim	 for	 a	

declaratory	 judgment.	 	 See	 Bog	 Lake	 Co.	 v.	 Town	 of	 Northfield,	 2008	 ME	 37,	

¶¶	1,	8-9,	942	A.2d	700.	

	     [¶13]	 	 Here,	 for	 each	 of	 his	 eight	 causes	 of	 action,	 Alan	 identified	 the	

operative	 wrong	 as	 the	 execution	 of	 the	 lease	 agreement	 between	 SMI	 and	

MLC	and	the	renewals	of	that	agreement.		Although	in	his	summary	judgment	

filings	he	disputed	whether	he	was	aware	of	the	lease	renewals,	he	conceded	

that	the	original	lease	agreement	was	executed	in	1997	and	that	he	has	been	

aware	 since	 then	 that	 MLC	 has	 been	 using	 the	 wharf	 exclusively	 and	 paying	

tax,	 insurance,	 and	 maintenance	 costs—but	 not	 rent—to	 SMI	 continuously.		

Alan	therefore	could	not	have	sustained	the	injury	of	which	he	now	complains	
8	

any	 later	 than	 May	 1,	 2004,	 and	 the	 summary	 judgment	 record	 reveals	 no	

genuine	dispute	of	material	fact	that	his	action,	commenced	in	February	2014,	

was	initiated	more	than	six	years	after	the	date	that	his	claims	accrued.6	

B.	       Tolling	

	         [¶14]	 	 We	 now	 turn	 to	 the	 issue	 of	 whether	 Alan	 met	 his	 burden	 to	

demonstrate	 a	 genuine	 issue	 of	 material	 fact	 as	 to	 whether	 the	 limitations	

period	 was	 nevertheless	 tolled	 or	 otherwise	 inapplicable.	 	 See	 Nuccio,	

673	A.2d	at	1334.		Alan	contends	that	the	limitations	period	was	tolled	based	

on	the	doctrine	of	adverse	domination.7			

	         [¶15]	 	 According	 to	 the	 equitable	 doctrine	 of	 adverse	 domination,	 the	

statute	 of	 limitations	 applicable	 to	 a	 corporation’s	 cause	 of	 action	 against	

controlling	 directors	 who	 are	 culpable	 of	 wrongdoing	 may	 be	 tolled	 in	 some	

circumstances	where	the	culpable	officers	would	have	a	duty	to	institute	the	

action	on	behalf	of	the	corporation	against	themselves.		See	Bates	St.	Shirt	Co.	


     6	 	 We	 need	 not	 discuss	 whether	 Alan’s	 claims	 accrued	 in	 1997,	 when	 the	 original	 lease	 was	

executed,	 or	 in	 2004,	 when	 it	 was	 most	 recently	 renewed,	 because	 there	 is	 no	 dispute	 that	 his	
action	 was	 filed	 more	 than	 six	 years	 after	 either	 date.	 	 To	 the	 extent	 that	 Alan	 preserved	 for	
appellate	 review—as	 to	 either	 the	 Millers	 or	 SMI—any	 argument	 that	 the	 summary	 judgment	
record	 contains	 a	 genuine	 dispute	 of	 material	 fact	 as	 to	 whether	 his	 claims	 accrued	 after	 May	 1,	
2004,	we	are	not	persuaded	by	those	arguments.		See	13-C	M.R.S.	§§	751-758	(2016);	Bog	Lake	Co.	
v.	Town	of	Northfield,	2008	ME	37,	¶¶	8-9,	942	A.2d	700;	McLaughlin	v.	Superintending	Sch.	Comm.,	
2003	ME	114,	¶	23	n.6,	832	A.2d	782.	
    	
    7		In	the	trial	court,	Alan	advanced	two	other	theories	as	to	why	the	limitations	period	was	tolled	

notwithstanding	the	accrual	date—fraud	and	equitable	estoppel.		He	has	not	raised	those	theories	
on	appeal.	
                                                                                           9	

v.	Waite,	130	Me.	352,	356-57,	156	A.	293	(1931).		The	doctrine	provides	for	

equitable	tolling	in	situations	where	controlling	officers	conceal	their	culpable	

conduct	from	those	who	would	otherwise	bring	an	action	on	the	corporation’s	

behalf,	 or	 where	 they	 control	 the	 corporation	 to	 the	 extent	 that	 they	 could	

refuse	to	allow	it	to	act	in	its	best	interest.		See	Aiello	v.	Aiello,	852	N.E.2d	68,	

79-80	(Mass.	2006);	see	also	Wilson	v.	Paine,	288	S.W.3d	284,	288	(Ky.	2009)	

(stating	 that	 the	 doctrine	 “prevents	 the	 culpable	 directors	 from	 benefiting	

from	their	lack	of	action	on	behalf	of	the	corporation”	because	“in	most	cases,	

defendants’	 control	 of	 the	 corporation	 will	 make	 it	 impossible	 for	 the	

corporate	 plaintiff	 independently	 to	 acquire	 the	 knowledge	 and	 resources	

necessary	to	bring	suit”	(quotation	marks	omitted)).	

	      [¶16]	 	 The	 record	 supports	 Alan’s	 contentions	 that	 Steve	 and	 Mark,	

together,	 hold	 a	 controlling	 interest	 in	 SMI	 and,	 as	 functioning	 directors,	

see	13-C	M.R.S.	§	743(8)(A),	(B)	(2016),	stood	as	fiduciaries	of	the	corporation,	

see	 13-C	 M.R.S.	 §	 831(1),	 (2)	 (2016).	 	 Alan	 takes	 issue	 with	 the	 trial	 court’s	

determination	that	the	doctrine	of	adverse	domination	does	not	apply	to	toll	

the	 statute	 of	 limitations	 in	 this	 case	 because	 “the	 tolling	 of	 the	 limitations	

period	should	not	necessarily	apply	when	a	[non-controlling]	shareholder	has	

the	requisite	information	and	ability	to	assert	derivative	claims.”			
10	

	      [¶17]		The	court’s	logic	is	sound.		As	the	Massachusetts	Supreme	Judicial	

Court	has	explained,	

       The	mere	existence	of	a	majority	of	culpable	directors	should	not	
       lead	 to	 a	 presumption	 that	 a	 corporate	 plaintiff	 is	 unable	 to	
       discover	 or	 redress	 the	 wrongs	 perpetrated	 by	 such	 directors,	
       thereby	 tolling	 a	 statute	 of	 limitations	 established	 by	 the	
       Legislature	 to	 provide	 the	 temporal	 finality	 necessary	 for	 the	
       orderly	conduct	of	human	affairs.	.	.	.	The	concerns	justifying	the	
       application	 of	 the	 adverse	 domination	 doctrine	 are	 substantially	
       mitigated	 where	 an	 informed,	 disinterested	 director	 is	 also	 a	
       shareholder	in	the	corporation.		Where	such	a	person	could	have	
       induced	 the	 corporation	 to	 sue,	 it	 cannot	 be	 said	 that	 the	
       corporation	is	barred	from	seeking	redress	of	the	injury	to	it,	and	
       there	is	no	longer	a	good	reason	to	refuse	to	impute	that	person’s	
       knowledge	of	the	wrongdoing	to	the	corporation	itself.	
	
Aiello,	852	N.E.2d	at	80-81	(citation	omitted)	(quotation	marks	omitted).		The	

United	States	Court	of	Appeals	for	the	Second	Circuit	has	held,	similarly,	that		

        a	plaintiff	who	seeks	to	toll	the	statute	[of	limitations]	on	the	basis	
        of	 domination	 of	 a	 corporation	 has	 the	 burden	 of	 showing	 a	 full,	
        complete	 and	 exclusive	 control	 in	 the	 directors	 or	 officers	
        charged.	.	.	.	This	principle	must	mean	at	least	that	once	the	facts	
        giving	 rise	 to	 possible	 liability	 are	 known,	 the	 plaintiff	 must	
        effectively	negate	the	possibility	that	an	informed	stockholder	or	
        director	could	have	induced	the	corporation	to	sue.	
        	
Int’l	 Rys.	 of	 Cent.	 Am.	 v.	 United	 Fruit	 Co.,	 373	 F.2d	 408,	 414	 (2d	Cir.	 1967)	

(quotation	marks	omitted).	

	      [¶18]	 	 We	 agree	 with	 the	 analysis	 of	 these	 courts.	 	 There	 is	 no	 reason	

that	 the	 limitations	 period	 should	 be	 stalled	 where	 a	 disinterested	
                                                                                        11	

shareholder	 is	 both	 aware	 of	 the	 alleged	 wrongdoing	 and	 able	 to	 initiate	 an	

action	on	the	corporation’s	behalf	against	the	allegedly	culpable	directors.		In	

those	 circumstances,	 the	 justifications	 for	 tolling	 based	 on	 adverse	

domination	 are	 absent	 because	 the	 corporation’s	 interests	 can	 be	 protected	

through	 a	 derivative	 action	 by	 the	 non-controlling	 shareholder.	 	 Cf.,	 e.g.,	

FDIC	v.	 Dawson,	 4	 F.3d	 1303,	 1310	 (5th	 Cir.	 1993)	 (citing	 “the	 possibility	 of	

concealment”	 as	 a	 “strong[]	 argument”	 for	 an	 approach	 under	 which	 the	

plaintiff	would	need	to	“show	only	that	a	majority	of	the	board	members	were	

wrongdoers	during	period	the	plaintiff	seeks	to	toll	the	statute”).	

	      [¶19]	 	 Here,	 the	 summary	 judgment	 record	 establishes	 that	 Steve	 and	

Mark	 did	 not	 have	 total	 control	 of	 SMI—they	 did	 not	 prevent	 a	 shareholder	

derivative	action	by	Alan,	the	owner	of	a	one-third	interest	in	SMI.		Moreover,	

Alan	 does	 not	 dispute	 that	 he	 has	 been	 aware,	 since	 at	 least	 May	 1,	 2004,	 of	

the	 alleged	 wrongdoing	 that	 forms	 the	 basis	 of	 his	 shareholder	 derivative	

action	 on	 behalf	 of	 SMI	 against	 its	 directors.	 	 As	 the	 trial	 court	 concluded,	

therefore,	 Alan	 had	 the	 knowledge	 and	 ability	 to	 assert	 a	 shareholder	

derivative	action	on	SMI’s	behalf	against	Steve	and	Mark	in	their	capacities	as	

SMI	directors,	see	13-C	M.R.S.	§§	751-758	(2016),	but	he	did	not	do	so	within	

the	 six-year	 limitations	 period.	 	 In	 these	 circumstances,	 the	 doctrine	 of	
12	

adverse	domination	does	not	apply	to	toll	the	statute	of	limitations.		Because	

no	 genuine	 dispute	 of	 material	 fact	 exists	 as	 to	 whether	 the	 statute	 of	

limitations	 was	 tolled,	 the	 court	 did	 not	 err	 when	 it	 granted	 the	 Millers’	 and	

SMI’s	motions	for	summary	judgment.	

         The	entry	is:	

                            Judgments	affirmed.	
	
	     	     	     	      	     	
	
William	H.	Welte,	Esq.	(orally),	Welte	&	Welte,	P.A.,	Camden,	for	appellant	Alan	
Miller	
	
Christopher	 K.	 MacLean,	 Esq.	 (orally),	 Elliott	 MacLean	 Gilbert	 &	 Coursey,	
Camden,	 for	 appellees	 Steve	 N.	 Miller,	 Mark	 K.	 Miller,	 and	 Miller’s	 Lobster	
Company,	Inc.	
	
	
Business	and	Consumer	Docket	docket	number	CV-2014-36	
FOR	CLERK	REFERENCE	ONLY	
