Gleason v. Tuttle

Maine Superior

Gleason v. Tuttle

DecidedOctober 15, 2009

DocketKENcv-08-159

StatusUnpublished

This text of Gleason v. Tuttle (Gleason v. Tuttle) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gleason v. Tuttle, (Me. Super. Ct. 2009).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NOS. CV-08-159 11/lt;. , }/ I'... '\: . /" " . / ,) / .. ) c ·

KIMBERLY TUTTLE GLEASON, et al.,

Plaintiffs, ORDER ON MOTION FOR v. SUMMARY JUDGMENT

PAULETTE TUTTLE, et a1.,

Defendants

Before the court is plaintiffs Kimberly Gleason and Anthony Tuttle's motion for

partial summary judgment. For the following reasons, the motion is granted in part

and denied in part.

Factual and Procedural Background

The Certificate of Limited Partnership for theTuthill Family Limited Partnership

(TFLP) was filed on October 1, 1998. PIs.' SUMF, <]I 1. Kenneth Tuttle was named as the

sale general partner. PIs.' SUMF, <]I 2. The original partnership agreement cannot be

found. PIs.' SUMF, <]I 8; TFLP's SOMF, <]I 8.

The plaintiffs claim that they are limited partners in TFLP and support their

claim through testimony and through partnership documents that indicate that they,

along with their brother, Nathan Tuttle, are limited partners. PIs.' SUMF, <]I 5; PIs.' Rep.

to TFLP's SAMF, <]I 22. The defendants assert that the only limited partners are three

trusts created as part of Kenneth and Paulette Tuttles' estate plan. Pl.'s SUMF, <]I 5;

TFLP's Rep. to P1.s' SUMF, <]I 5; TFLP's SAMF, <]I<]I 2-3. In June 2002, Kenneth Tuttle died. l PIs.' SUMF,

appointed as Personal Representative of the Estate on September 10, 2002. TFLP's

SAME

Hunter replaced Paulette Tuttle as Personal Representative. TFLP SAMF,

Rep. to TFLP SAMF,

Standard of Review

Summary Judgment is appropriate when there exist no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.

M.R.Civ.P 56(c). A material fact is one that has "the potential to affect the outcome of

the suit." Burzdel v. Sobus, 2000 ME 85,

material fact exists "when sufficient evidence requires a fact-finder to choose between

competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90,

778, 781. Facts are reviewed "in the light most favorable to the nonmoving party."

Lightfoot v. Sch. Admin Dist. No. 35, 2003 ME 24,

Discussion

1. Limited Partners

The plaintiffs argue they are limited partners in the TFLP. The defendants'

support for their assertion that the plaintiffs are not partners is a copy of the first two

pages of what may be the original partnership agreement, which does not include

plaintiffs in its recitation of limited partners. The plaintiffs challenge the admissibility

of this document and argue that it is not properly authenticated?

I The parties agree that this event had the legal effect of .dissolving the partnership, despite the fact that the partnership was not actually wound up by the parties at that time. 2 Plaintiffs have further argued that the twp pages also contain hearsay and violates the best evidence rule, and that even if the document is admissible, it is so incomplete and against the weight of the evidence that it fails to create a genuine issue of fact. "The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims." M.R.Evid. 901(a). The defendants argue that

the Agreement can be authenticated because plaintiff Kimberly Gleason testified that

she believes the two pages are a copy of part of the original document. TFLP's SAMF,

8. The defendants further argue that the Agreement can be authenticated by

comparison with other documents. IQ"

Neither the testimony of plaintiff Kimberly Gleason nor other documents

provide the required evidence of authenticity of the documents. The defendants have

failed to raise a genuine issue of material fact regarding the plaintiffs' status as limited

partners. The plaintiffs withdrew as limited partners by letter received by Paulette

Tuttle on December 22,2008. PIs.' SUMF,

2. Indispensable Party

The defendants argue that the plaintiffs' brother, Nathan Tuttle, is an

indispensable party under M.R.Civ.P. 19. Nathan Tuttle is a limited partner in the

TFLP. The defendants argue that dissolution could significantly impact Nathan Tuttle

and his position on partnership issue is unclear. The plaintiffs argue that Nathan Tuttle

is not liable for partnership debts and is not entitled to participate in management as a

limited partner. Because the partnership has already been dissolved, the person who

ultimately winds up the partnership's affairs will be required to make distributions to

all limited partners, including Nathan Tuttle, pursuant to 31 M.R.S. § 4843 •

3 This is a reference to the Revised Uniform Limited Partnership Act ("the old Act"), which was superseded by the Maine Uniform Limited Partnership Act ("the new Act"). The savings clause of the new Act states that actions commenced prior to the effective date of the new Act will be governed by the old Act. 31 M.R.S. § 1454. Because this action was filed before the effective date of July I, 2008, the old Act applies to the issues in this case. In Ocwen Federal Bank, FSB v. Cile, the Law Court held that the bank could not

foreclose on a property without joining the town as a party because the town claimed

an ownership interest in the property. Ocwen, 2001 ME 120, en 21, 777 A.2d 275, 282.

The Court determined that Rule 19(a) serves to protect unjoined but interested parties

and active parties. Id. at en 14, 777 A.2d at 280. Distributions to all limited partners will

be made pursuant to 31 M.R.S. § 484. 4 Nathan Tuttle is not a participant in management

of the partnership business. 31 M.R.S. § 433. He is not an indispensable party to this

lawsuit.

3. Distributions

Section 484 provides that the partnership assets must be distributed first to

creditors, second to partners in satisfaction of interim or withdrawal distributions, and

finally, unless otherwise provided in the partnership agreement, to partners "(I) [f]or

the return of their contributions; and (2) [r]especting their partnership interests, in the

proportions in which the partners share in distributions." 31 M.R.S. § 484. A

"distribution" is defined as "the transfer of property by a limited partnership to one or

more of its partners in the capacity as a partner." 31 M.R.S. § 402(3). The plaintiffs

argue they are each entitled to 25% based on the fact that the partnership's records

allocated 25% of the profits and losses to each of the three children.

The defendants argue that plaintiffs are not entitled to any distributions because

they never contributed anything of value to the partnership. 31 M.R.S. § 484(C)(1).

Although the original agreement is not in the record, the business records of the

4Nathan Tuttle has had notice of this proceeding and has not attempted to intervene in this action. The companion case in the Superior Court is an action to recover money lent to the TFLP by Kenneth Tuttle Antiques, Inc..

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