Efstathiou v. Aspinquid, Inc.

• Court: Superior Court of Maine
• Decided: July 19, 2005
• Docket: YORre-05-046
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. RE-05-046 I r:' '

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MERRILL ANDREWS EFSTATHIOU,

Plaintiff

ORDER

THE ASPINQUID, INC., et al.,

Defendants

This case involves competing claims of ownership of real estate located at 48

Beach Street in Ogunquit. The plaintiff and the defendant Dennis Andrews Efstathiou

purchased the real estate during their marriage in April of 1986 and transferred it to the

defendant Aspinquid, Inc. on December 31, 1986. The plaintiff has resided there since

1986.

In 2004 a divorce action began and since then a dispute has arisen over the

ownership of the property. The plaintiff claims that her husband told her in December

of 1986 that the transfer was "just on paper" and that they would get the property back.

The plaintiff has filed a multi-count complaint seeking monetary damages,

ownership of the property and attorney's fees. The defendants have filed motions to

dismiss and the plaintiff has filed a motion to amend the complaint.

The first question is whether the motion to amend should be gdanted. The

motion will be granted even though portions of the amended complaint will be

dismissed. The next issue is whether the amended complaint is timely. Normally it would

not be as there is a six-year statute of limitation. See 14 M.R.S.A. g752. That six-year

period can be extended if there is a fraudulent concealment. In those cases then ". . . the

action may be commenced any time within 6 years after the person entitled thereto

discovers that he has just cause of action ..." See 14 M.R.S.A. g859. That statute has

been interpreted to mean six years from the date when the fraud is discovered or

should have been discovered in the exercise of due diligence and ordinary prudence.

Kqbank National Association v. Sargent, 2000 ME 153, n. 6, 758 A.2d 528, 534 quoting

Westmarl v. Armitage, 215 A.2d 919, 922 (Me. 1966).

If we assume that a fraud was committed in 1986 and that the wrong was

fraudulently concealed, then the question becomes when should the plaintiff have

discovered that her husband's claimed statement was not true and that the transfer of

title was instead exactly what it looked like, a transfer for value to a legitimate

purchaser. In the light most favorable to the plaintiff there was no reason to ask to have

the transfer undone as she was living there and her marriage was intact. There would

be no compelling reason to push the issue at least until the time of the parties'

separation. At the motion to dismiss stage the full complaint will not be dismissed as

untimely.

The plaintiff's complaint will, however, be dismissed in part. First, without

objection, the motion to dismiss of John Andrews Efstathiou will be granted. He is no

longer a defendant. Second, the request for attorney's fees is dismissed. Third, the

request to impose a constructive trust on the property will be dismissed to the extent

that it requests that the plaintiff receive the entire property without her husband

receiving any portion. Fourth, Counts VI and VII regarding estoppel are dismissed. The entry is:

Motion to amend complaint is granted.

Motion of defendant John Andrews Efstathiou to dismiss is granted.

Motion of defendant Dennis Andrews Efstathiou to dismiss is granted in part.

Motion of defendant Aspinquid, Inc. to dismiss is granted in part.

Counts VI and VII of the amended complaint are dismissed. The claims for attorney's fees are dismissed. Any constructive trust must consider the interests of the defendants and any lenders.

Dated: July 19, 2005

/I f

Paul A. Fritzsche v M. J . D o n l a n , E s q . - P L Justice, Superior Court A. H. Jordan, E s q . - DEF. THE A S P I N Q U I D , I N C . G. J . O r s o , E s q . - D E F . JOHN ANDREWS EFSTATHIOU R . P . L e b e l , E s q . - DEE'. D E N N I S ANDREWS EFSTATHIOU