Connor v. Mazeika

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss. CIVIL ACTION DOCKET N0. BCD-REA 2023-00010

THOMAS CONNOR and ALYSSA K. MAZEIKA v. ORDER

ALICE MAZEIKA and DAVID MAZEIKA

The Plaintiffs own real property as tenants in common with the Defendants. Defendants

are the parents of Plaintiff Alyssa Mazeika. Plaintiff Thomas Connor is their son in law. The

property is a two-unit residential property on a single lot. Plaintiffs have filed this equitable

partition action asking the court to order the sale of the property and to divide the proceeds.

Defendants counterclaimed. They seek a statutory partition where the property is physically

divided between them.

Plaintiffs file this motion for summary judgment asking the court to order the sale of the

property. They assert that Defendants failed to generate a genuine issue of material fact that would

allow the Defendants any remedy other than a sale.

Statutory partition may be carried out only by physical division of the jointly owned real

estate. l4 M.R.S.A. § 6501; Libby v. Lorrain, 430 A.2d 37, 39 (Me. 1981). Equitable partition is

a more flexible procedure than the statutory action for partition. Libby, 430 A.2d at 39. Remedies

may include physically division of the property, ordering a sale of the property, or allowing a buy

out of the property. Id. Physical division of the property is not appropriate if it would materially

injure the rights of the parties. See Murphy v. Daley, 582 A.2d 1212, 1213 (Me. 1990). An order

allowing one party to "buy out" the other party would require that the paity seeking to buy out the

other party have the necessary financial capacity. See Hutz v. Alden, 2011 ME 27, 1] 13, 12 A.3d 1174. Ultimately, it is in the court's discretion to require a sake or allow a buyout after weighing

all the equities. See 1d

In their summary judgment motion, the Plaintiffs argue that the Defendants have not

generated a genuine issue of material fact in order to allow the court to employ either the "physical

division" or the "buy out" remedies. To survive a motion for summary judgment, the nonmoving

party must establish a prima facie case for every element of the party's cause of action. See Savell

v. Buddy, 2016 ME 139, 11 18, 147 A.3d 1 179. The court considers reasonable inferences that may

be drawn from the facts. Curtis v. Porter, 2001 ME 158, if 9, 784 A.2d 18. "When facts or

reasonable inferences are in dispute on a material point, summary judgment may not be entered."

Id. In addition, in a partition claim sounding in equity, there must be no genuine issue of material

fact affecting either the equitable claims or the equities that must be considered. Hutz, 2011 ME

27,1111, 12 A.3d1174.

The court concludes that Defendants have generated a genuine issue of material fact

sufficient to avoid summary judgment in this matter sounding in equity. Their Statement of

Material Facts incorporates the affidavit of Alice Mazeika. With respect to the physical division,

Mazeika asserts that the two-unit building can be physically partitioned and that they can refinance

the single mortgage. While her averments would probably be insufficient to persuade the court at

a hearing, the court cannot say as a matter of law that a physical division is impractical. Defendants

did not provide evidence that the Town ordinances would allow a division, but Plaintiffs did not

raise the issue in their Statement of Material Facts. The same is true of whether the property! could

be returned to a condominium, the property could be refinanced, or divided in more than two ways.

A plaintiff opposing a motion for summary judgment is not required to establish in the written

material filed in opposition to the motion a prima facie case for those elements of the cause of

2 action not challenged by the defendant. Corey v. Norman, Hanson, & DeTroy, 1999 ME 196, 1[ 9,

742 A.2d 933.

With respect to the potential of a buyout by one side or another, the court has no

information to determine whether that would be an appropriate remedy. In their briefs, Plaintiffs

ask that the parties be provided with the opportunity to buy one another out. The proposed order,

however, makes no reference to that request. Finally, the court has no information to determine

whether the method of the proposed sale is the appropriate here. The court appreciates that the

Plaintiffs are eager to start the sale process and notes that a hearing is set in about six weeks. It

certainly may be that a court~ordered sale is the appropriate result, but the court cannot make the

appropriate equitable determinations based on the scant record offered by the Plaintiffs' or the

Defendants' brief responses.

Plaintiffs' motion for summary judgment is DENIED.

This Order is incorporated on the docket by reference pursuant to M.R. Civ. P. 79(a).

DATE: 7/ x7 ,/ it /" ------------ 7L~""'¢"k,........ Thomas R. McKeon Justice, Business and Consumer Court