STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-2022-270 ) ERIC P. GIGUERE and MARKS. ) GIGUERE, ) ) Plaintiffs, ) ) v. ) ) JEREMY W. DEAN and MICHAEL ) KALTSAS, in their capacities as ) purported former agents of Linda C. ) ORDER ON DEFENDANT JEREMY Giguere and as Trustees of the LCG ) DEAN'S MOTION TO DISMISS TRUST, ) ) Defendants, ) ) and ) ) RIVER DOG PROPERTIES, LLC, ) ) Party-in-Interest. )
Before the Court is Defendant Jeremy W. Dean's Motion to Dismiss Plaintiffs Eric
P. Giguere ("Eric") and Mark S. Giguere' s ("Mark") Complaint. For the following
reasons, the Court grants Mr. Dean's Motion to Dismiss with respect to Count I and
denies the motion as to Count II.
I. Background
Eric and Mark are the children of William Giguere ("William"). (Comp!. 'l[ 8.)
Linda Giguere ("Linda") married William in 1995. (Comp!. 'l[ 9.) William died in 2015.
(Comp!. 'l[ 10.)
On May 15, 2021, after Linda had suffered a series of strokes, a Durable Power of
Attorney ("the Power of Attorney") was executed designating Mr. Kaltsas as agent and
Mr. Dean as successor agent. (Comp!. 'l['l[ 11, 18.) The Power of Attorney is signed by
Page 1 of 5 "Linda C. Giguere by Margaret Caiazzo by instruction of the principal" and bears a
witness signature of "Jenna Hapworth, RN." (Comp!. 'l['l[ 23-24.)
On May 25, 2021, Mr. Kaltsas executed two deeds conveying two parcels of real
property-one parcel at 150 Bridge Street, Westbrook ("the Bridge Street Property") and
one parcel located at 289 Highland Cliff Road, Windham ("the Windham Property")
(collectively, "the Properties")-from Linda to Mr. Kaltsas in his capacity as Trustee of
the LCG Trust ("the Trust"). (Comp!. 'l['l[ 26-29.)
On June 8, 2021, Dr. Maya Bulman examined Linda and completed a written
report, which found that Linda "had a stroke, resulting in profound medical and
cognitive impairments." (Comp!. 'l['l[ 12-13; Comp!. Ex. A.) The report further stated that
Linda was incapable at that time of entering into a contract. (Comp!. 'l[ 16; Comp!. Ex. A.)
On August 4, 2021, Mr. Kaltsas executed a Delegation of Authority, empowering
Mr. Dean as Linda's agent under the Power of Attorney. (Comp!. 'l['l[ 30-31.) In September
2021, Linda died. (Comp!. 'l[ 32.) In December 2021, Mr. Dean, in his capacity as Trustee,
executed a deed conveying the Bridge Street Property to Party-in-Interest River Dog
Properties, LLC ("River Dog"). (Comp!. 'l[ 33.) The Trust received $1,026,000 in the
transaction. (Comp!. 'l[ 34.)
Plaintiffs allege that they are named as devisees in a will executed by Linda ("the
Will"). (Comp!. 'l['l[ 44-45; Comp!. Ex. G.) Although they allege that the Will has been filed
with the Probate Court, they do not allege that it has been admitted. (Comp!. 'l['l[ 41-42.)
The Complaint contains two counts: Count I for Declaratory Judgment as to the
effectiveness of the Power of Attorney, the LCG Trust, and the conveyances of the
Properties; and Count II for Review of Agent Conduct pursuant to the Maine Uniform
Power of Attorney Act, 18-C M.R.S. §§ 5-901 to 5-963 (2022).
Page 2 of 5 Although Mr. Dean expressly brings his motion pursuant to Maine Rule of Civil
Procedure 12(b)(6), he argues that Plaintiffs lack standing, which relates to the Court's
subject matter jurisdiction. See JPMorgan Chase Bank v. Harp, 2011 ME 5, 'lI 7, 10 A.3d 718.
Accordingly, this motion is more appropriately characterized as a 12(b)(1) motion and
the Court will evaluate it as such.
II. Motion to Dismiss Standard
A party may plead lack of subject matter jurisdiction by motion. M.R. Civ. P.
12(b)(1). Whether subject matter jurisdiction exists is a question of law. R.C. Moore, Inc. v.
Les-Care Kitchens, Inc., 2007 ME 138, 'lI 18, 931 A.2d 1081. When a motion to dismiss is
based on the court's lack of subject matter jurisdiction, the court makes no favorable
inferences in favor of the plaintiff. Mutty v. Dep't of Corrs., 2017 ME 7, 'lI 8, 153 A.3d 775
(quoting Tomer v. Me. Human Rights Comm'n, 2008 ME 190, 'lI 9, 962 A.2d 335).
III. Discussion
"[S]tanding is a threshold issue bearing on the court's power to adjudicate
disputes." Franklin Prop. Tr. v. Foresite, Inc., 438 A.2d 218,220 (Me. 1981). "Standing to sue
means that the party, at the commencement of the litigation, has sufficient personal stake
in the controversy to obtain judicial resolution of that controversy." Halfway House, Inc.
v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996) (citing Sierra Club v. Morton, 405 U.S.
727, 731 (1972)). "Typically, a party's personal stake in the litigation is evidenced by a
particularized injury to the party's property, pecuniary, or personal rights." Mortg. Elec.
Registration Sys. v. Saunders, 2010 ME 79, 'lI 7, 2 A.3d 289.
A. Count I: Declaratory Judgment
In Count I, Plaintiffs seek a declaratory judgment regarding the validity of the
Power of Attorney, the Trust, the conveyances of the Properties to the Trust, and the
conveyance of the Bridge Street Property from the Trust to River Dog. Mr. Dean argues Page 3 of 5 that Plaintiffs do not have standing to seek a declaratory judgment regarding the validity
of Trust or the conduct of the Trustees because they have no interest in the Trust. Mr.
Dean also argues that Plaintiffs do not have standing to challenge the conveyances of the
Properties because that right belongs exclusively to the personal representative of Linda's
estate. The Court agrees that because Plaintiffs have failed to demonstrate that they have
any interest in the Trust other than that stemming from the allegedly invalid conveyance
of the Properties to the Trust, they do not have standing to seek a declaratory judgment
regarding the validity of the Trust or the conveyance from the Trust to River Dog.
As will be discussed below, Plaintiffs have established standing pursuant to
statute to seek review of the Power of Attorney and the agents' conduct under the Power
of Attorney, including the conveyances of the Properties to the Trust purportedly made
under the Power of Attorney. However, because Plaintiffs have standing only pursuant
to the Maine Uniform Power of Attorney Act and the remaining claims and relief sought
by Plaintiffs in Count I are duplicative of the claims stated and relief available in Count
II, the Court dismisses Count I in its entirety. 2
B. Count II: Review of Agents' Conduct
Plaintiffs bring Count II pursuant to 18-C M.R.S. § 5-916, which provides:
1. Petition. The following persons may petition the Probate Court or the Superior Court for the county in which either the principal or the agent resides to construe a power of attorney or review the agent's conduct and grant appropriate relief:
F. A person named as a beneficiary to receive any property, benefit or contractual right on the principal' s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal' s estate; ...
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-2022-270 ) ERIC P. GIGUERE and MARKS. ) GIGUERE, ) ) Plaintiffs, ) ) v. ) ) JEREMY W. DEAN and MICHAEL ) KALTSAS, in their capacities as ) purported former agents of Linda C. ) ORDER ON DEFENDANT JEREMY Giguere and as Trustees of the LCG ) DEAN'S MOTION TO DISMISS TRUST, ) ) Defendants, ) ) and ) ) RIVER DOG PROPERTIES, LLC, ) ) Party-in-Interest. )
Before the Court is Defendant Jeremy W. Dean's Motion to Dismiss Plaintiffs Eric
P. Giguere ("Eric") and Mark S. Giguere' s ("Mark") Complaint. For the following
reasons, the Court grants Mr. Dean's Motion to Dismiss with respect to Count I and
denies the motion as to Count II.
I. Background
Eric and Mark are the children of William Giguere ("William"). (Comp!. 'l[ 8.)
Linda Giguere ("Linda") married William in 1995. (Comp!. 'l[ 9.) William died in 2015.
(Comp!. 'l[ 10.)
On May 15, 2021, after Linda had suffered a series of strokes, a Durable Power of
Attorney ("the Power of Attorney") was executed designating Mr. Kaltsas as agent and
Mr. Dean as successor agent. (Comp!. 'l['l[ 11, 18.) The Power of Attorney is signed by
Page 1 of 5 "Linda C. Giguere by Margaret Caiazzo by instruction of the principal" and bears a
witness signature of "Jenna Hapworth, RN." (Comp!. 'l['l[ 23-24.)
On May 25, 2021, Mr. Kaltsas executed two deeds conveying two parcels of real
property-one parcel at 150 Bridge Street, Westbrook ("the Bridge Street Property") and
one parcel located at 289 Highland Cliff Road, Windham ("the Windham Property")
(collectively, "the Properties")-from Linda to Mr. Kaltsas in his capacity as Trustee of
the LCG Trust ("the Trust"). (Comp!. 'l['l[ 26-29.)
On June 8, 2021, Dr. Maya Bulman examined Linda and completed a written
report, which found that Linda "had a stroke, resulting in profound medical and
cognitive impairments." (Comp!. 'l['l[ 12-13; Comp!. Ex. A.) The report further stated that
Linda was incapable at that time of entering into a contract. (Comp!. 'l[ 16; Comp!. Ex. A.)
On August 4, 2021, Mr. Kaltsas executed a Delegation of Authority, empowering
Mr. Dean as Linda's agent under the Power of Attorney. (Comp!. 'l['l[ 30-31.) In September
2021, Linda died. (Comp!. 'l[ 32.) In December 2021, Mr. Dean, in his capacity as Trustee,
executed a deed conveying the Bridge Street Property to Party-in-Interest River Dog
Properties, LLC ("River Dog"). (Comp!. 'l[ 33.) The Trust received $1,026,000 in the
transaction. (Comp!. 'l[ 34.)
Plaintiffs allege that they are named as devisees in a will executed by Linda ("the
Will"). (Comp!. 'l['l[ 44-45; Comp!. Ex. G.) Although they allege that the Will has been filed
with the Probate Court, they do not allege that it has been admitted. (Comp!. 'l['l[ 41-42.)
The Complaint contains two counts: Count I for Declaratory Judgment as to the
effectiveness of the Power of Attorney, the LCG Trust, and the conveyances of the
Properties; and Count II for Review of Agent Conduct pursuant to the Maine Uniform
Power of Attorney Act, 18-C M.R.S. §§ 5-901 to 5-963 (2022).
Page 2 of 5 Although Mr. Dean expressly brings his motion pursuant to Maine Rule of Civil
Procedure 12(b)(6), he argues that Plaintiffs lack standing, which relates to the Court's
subject matter jurisdiction. See JPMorgan Chase Bank v. Harp, 2011 ME 5, 'lI 7, 10 A.3d 718.
Accordingly, this motion is more appropriately characterized as a 12(b)(1) motion and
the Court will evaluate it as such.
II. Motion to Dismiss Standard
A party may plead lack of subject matter jurisdiction by motion. M.R. Civ. P.
12(b)(1). Whether subject matter jurisdiction exists is a question of law. R.C. Moore, Inc. v.
Les-Care Kitchens, Inc., 2007 ME 138, 'lI 18, 931 A.2d 1081. When a motion to dismiss is
based on the court's lack of subject matter jurisdiction, the court makes no favorable
inferences in favor of the plaintiff. Mutty v. Dep't of Corrs., 2017 ME 7, 'lI 8, 153 A.3d 775
(quoting Tomer v. Me. Human Rights Comm'n, 2008 ME 190, 'lI 9, 962 A.2d 335).
III. Discussion
"[S]tanding is a threshold issue bearing on the court's power to adjudicate
disputes." Franklin Prop. Tr. v. Foresite, Inc., 438 A.2d 218,220 (Me. 1981). "Standing to sue
means that the party, at the commencement of the litigation, has sufficient personal stake
in the controversy to obtain judicial resolution of that controversy." Halfway House, Inc.
v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996) (citing Sierra Club v. Morton, 405 U.S.
727, 731 (1972)). "Typically, a party's personal stake in the litigation is evidenced by a
particularized injury to the party's property, pecuniary, or personal rights." Mortg. Elec.
Registration Sys. v. Saunders, 2010 ME 79, 'lI 7, 2 A.3d 289.
A. Count I: Declaratory Judgment
In Count I, Plaintiffs seek a declaratory judgment regarding the validity of the
Power of Attorney, the Trust, the conveyances of the Properties to the Trust, and the
conveyance of the Bridge Street Property from the Trust to River Dog. Mr. Dean argues Page 3 of 5 that Plaintiffs do not have standing to seek a declaratory judgment regarding the validity
of Trust or the conduct of the Trustees because they have no interest in the Trust. Mr.
Dean also argues that Plaintiffs do not have standing to challenge the conveyances of the
Properties because that right belongs exclusively to the personal representative of Linda's
estate. The Court agrees that because Plaintiffs have failed to demonstrate that they have
any interest in the Trust other than that stemming from the allegedly invalid conveyance
of the Properties to the Trust, they do not have standing to seek a declaratory judgment
regarding the validity of the Trust or the conveyance from the Trust to River Dog.
As will be discussed below, Plaintiffs have established standing pursuant to
statute to seek review of the Power of Attorney and the agents' conduct under the Power
of Attorney, including the conveyances of the Properties to the Trust purportedly made
under the Power of Attorney. However, because Plaintiffs have standing only pursuant
to the Maine Uniform Power of Attorney Act and the remaining claims and relief sought
by Plaintiffs in Count I are duplicative of the claims stated and relief available in Count
II, the Court dismisses Count I in its entirety. 2
B. Count II: Review of Agents' Conduct
Plaintiffs bring Count II pursuant to 18-C M.R.S. § 5-916, which provides:
1. Petition. The following persons may petition the Probate Court or the Superior Court for the county in which either the principal or the agent resides to construe a power of attorney or review the agent's conduct and grant appropriate relief:
F. A person named as a beneficiary to receive any property, benefit or contractual right on the principal' s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal' s estate; ...
2The Declaratory Judgment Act "does not create a new cause of action; its purpose is to provide a more adequate and flexible remedy in cases where jurisdiction already exists." Hodgdon v. Campbell, 411 A.2d 667, 669 (Me. 1980).
Page 4 of 5 Mr. Dean argues that Eric and Mark do not have standing under § 5-916(1)(F)
because the Probate Court has not yet determined whether they are, in fact, beneficiaries
of Linda's estate. This argument rests on a misinterpretation of the statute, which grants
standing not solely to actual beneficiaries, but to anyone named as a beneficiary. Eric and
Mark are named as beneficiaries in the Will.3 Although it remains for the Probate Court
to decide whether to admit the Will and to interpret the Will, these issues are immaterial
to Plaintiffs' standing under § 5-916 at this time.
Accordingly, Plaintiffs have standing to bring Count II of their Complaint. Mr.
Dean's motion is denied with respect to Count II.
IV. Conclusion
For the foregoing reasons, the Court grants Mr. Dean's Motion to Dismiss in part
and denies the motion in part.
The entry is:
Defendant Jeremy Dean's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Count I, only, of Plaintiffs' Complaint is DISMISSED.
The Clerk is directed to incorporate this Order into the docket by reference
pursuant to Maine Rule of Civil Procedure 79(a).
Dated: (M-tC. 91 JOJJ
3 This interpretation of§ 5-916 is also most consistent with the purposes of the statute. Section 5-916 can be
invoked while the principal is still living and, in fact, is intended to allow interested persons to protect the welfare of the principal during his or her lifetime as well as to protect their own interests. The statute must mean "named beneficiaries/' not actual beneficiaries, because a principal has no beneficiaries while he or she is still living.
Page5 of 5