Hazen v. Hazen

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-15-438

) STEVEN KELSEY HAZEN, ) ) Plaintiff, ) ) ORDER ON ALL PENDING ) MOTIONS V. ) ) FRANKLIN GRAHAM HAZEN, ) MARY ELIZABETH OSGOOD, ) RODERIC OSGOOD, ) ROBERT E. MacDONALD, trustee for the ) PRUDENCE ELEANOR HAZEN TRUST, ) ) Defendants, ) and, ) ) RODERIC OSGOOD, trustee for the ) THE FRANKLIN GRAHAM HAZEN ) REVOCABLE TRUST, MICHAEL ) FRANKLIN HAZEN, ) ) Party-in-Interest. )

Presently before the Court are the following Motions: (1) Plaintiff Steven Kelsey Hazen's

Motion for Leave to file a Second Am.ended Complaint; (2) Plaintiffs Partial Motion for

Summary Judgment as to Counts VI and VII of Plaintiffs Complaint; and (3) Defendants

Franklin Graham Hazen, et al.' s Motion for Summary Judgment as to all Counts of Plaintiffs

Complaint. Each party filed Statements of Material Fact, Oppositions, and Reply Statements of

Material Fact, in support of their Cross Motions for Summary Judgment, collectively laid out in

over one-hundred-and-fifty pages. In their Statements of Material Facts, the parties rely heavily

upon the extensive deposition testimony taken in this case, which, taken together, number over

eight-hundred-and-fifty pages. Also filed are the pertinent estate planning documents, emails,

Plaintiff- Glenn Israel, Esq. Defendant Franklin G Hazen-Bruce Merrill, Esq. Defendants Mary Osgood, Michael F Hazen, Roderic Osgood -Alfred Frawley, Esq. and Thimi Mina, Esq. Defendant Robert MacDonald-Richard O'Brien, Esq. other correspondence, and the arguments themselves, which, in combination with the previous

documents, constitute well over a thousand pages of related material that the Court has

considered in deciding the pending Motions. After carefully considering the parties' voluminous

filings, the Court denies Plaintiffs Motion for Leave to Amend the Complaint, and grants in part

and denies in part the parties' Cross Motions For Summary Judgment for the reasons stated

below.

I. BACKGROUND

Franklin and Prudence Hazen were married for 65 years. (Defs.' Mot. Summ. J. S.M.F. ,r

1.) During their lifetime, they acquired the following relevant real property assets: a seasonal

camp on Thomas Pond (the "Camp"); a house on route 302 in Casco, Maine (the "Kelsey

House"); a partially completed seasonal camp on Thomas Pond (the "Deck"); and undeveloped

land adjacent to the Kelsey House (the "Tree Farm"). (Pl. 's Mot. Partial Summ. J. S.M.F. ,r 13.)

They also had four children, Steven, Michael, Mary, and Susan. (Id. ,r 2.) At a suggestion of

one of their children, Franklin and Prudence retained an Attorney, Jacqueline Rider, to construct

and implement their own respective trusts. (Mary Hazen Dep. 65.)

Franklin requested that Steven, with appropriate input from Mary and Michael, put

together a draft of recommendations for his parents' estate plan. (Pl.' s Mot. Partial Summ. J.

S.M.F. ,r 12.) Steven contacted Attorney Rider and received information pertaining to his

parents' real property. (Id. ,r 25.) He used that information to conduct a detailed analysis, which

is captured within a report that was eventually entitled, "Report of Recommendations Regarding

the Estates of Franklin G. and Prudence E.K. Hazen." (Id.) Franklin and Prudence Hazen signed

the front page of the report, and Franklin wrote "Prudence and I discussed this today [and] we

both agree with it." (Report of Recommendations, Pl.'s Compl. Ex. C.)

2 With the assistance of Attorney Rider, Prudence and Franklin executed their respective

Trusts, known as the Prudence Eleanor Hazen Revocable Trust Agreement ("Prudence Trust")

and the Franklin Graham Hazen Revocable Trust Agreement ("Franklin Trust"). (Pl.' s Mot.

Partial Summ. J. S.M.F. ,r 33.) The Prudence Trust was funded with the Camp, the Deck, and

the Tree Farm, while the Franklin Trust was funded with the Kelsey House and$ 275,000 in

cash and securities. (Id. ,r 34.) Attorney Rider served as the Trustee for the Prudence Trust. (Id.

,r 51.) Regrettably, Prudence passed away on October 7, 2009. (Id. ,r 50.) Both parties dispute

the ensuing events, but suffice it to say that after this time Plaintiff and Defendants viewpoints

on how to utilize the real property assets in the Prudence Trust began to diverge. Plaintiffs

approach favored liquidating the Tree Farm and the Deck in order to provide liquidity to

Prudence's Trust and also to provide enough funds to maintain the Camp, which approach he

thought would be consistent with Prudence's wishes. (Steven Hazen Dep. 18, 20, 34, 81, 97-98,

150-51.) On the other hand, Defendants denied the existence of a liquidity dilemma and

preferred to retain all the real property in the Prudence Trust, and, in accordance with Franklin's

wishes, to personally undertake repair services and to fund any potential liquidity issues with

capital infusions from Mary, Michael, and Steven. (Franklin Hazen Dep. 6; Mary Hazen Dep.

13-19, 27, 72, 90, 94-96; Michael Hazen Dep. 35, 38, 55-57, 98; Mary Hazen Aff. ,r,r 2-3.)

These differences of opinion culminated in significant family discord, in the removal of

Attorney Rider as the Trustee of the Prudence Trust, and in the eventual ostracization of Plaintiff

from the other members of his family. (Pl.' s Mot. Partial Summ. J. Ex. H. at 5-6, 11; Defs.' Mot.

Summ. J. Exs. X, 19; Steven Hazen Aff. 27-35.) Plaintiff ultimately filed his six Count

Complaint on September 28, 2015 alleging in Count I) breach of contract with respect to

3 Defendant, Franklin Hazen; in Count II) breach of an implied contract with respect to Defendant,

Franklin Hazen; in Count III) interference with contractual relations as to Defendants, Franklin

Hazen, Michael Hazen and Mary Osgood; in Count IV) tortious interference with expected

inheritance as to Defendants, Mary Osgood and Michael Hazen; in Count V) undue influence

with respect to Defendants, Mary Osgood and Michael Hazen; and in Count VI) a declaratory

judgment that the Report of Recommendations is a valid contract. On October 20, 2015,

Defendants, Mary Osgood and Michael Hazen, and, separately, Defendant, Franklin Hazen,

answered Plaintiffs Complaint and asserted a Counterclaim for a declaratory judgment that the

Report of Recommendations is not a valid contract.

Plaintiff filed his First Amended Complaint on May 12, 2016, which added Count VII)

declaration of trustee's authority with respect to Defendant, Trustee of the Prudence Trust Robert

McDonald, as well as attached Roderic ("Rick") Osgood as a Defendant with respect to Counts

III, IV, and V. On May 20, 2016, Defendants Mary and Rick Osgood, Michael Hazen, and

separately on May 23, 2016, Defendant, Franklin Hazen, filed answers and a counterclaim to

Plaintiff's First Amended Complaint, and restated their counterclaim for a declaratory judgment

that the Report of Recommendations is not a contract. On May 31, 2016, Defendant, Trustee of

the Prudence Trust Robert McDonald, filed his answer to Plaintiffs Complaint.

On September 19, 2016, Plaintiff filed a Motion for Leave to file a Second Amended

Complaint. In his proposed amendments, Plaintiff seeks to change the party status of Defendant,

Michael Hazen, to a party-in-interest, and to make other minor changes. Defendants filed an

opposition to Plaintiffs Motion on September 22, 2016, arguing that Plaintiffs Motion was (1)

untimely, (2) that undue prejudice would result to Defendants, and (3) that Plaintiff's

amendments would be futile.

4 On September 30, 2016, while his Motion to Amend his Complaint was pending with the

Court, Plaintiff moved for Partial Summary Judgment concerning Count VI) declaratory

judgment that the Report of Recommendations is a valid contract, Count VII) declaration of

trustee's authority with respect to Defendant, Trustee of the Prudence Trust Robert McDonald,

and for the dismissal of Defendants' Counterclaim seeking a declaratory judgment that the

Report of Recommendations is not a valid contract. On the same day, Defendants filed a Motion

for Summary Judgment as to all Counts of Plaintiffs Complaint.

II. PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

A. Standard of Review

When confronted with "both a motion for a summary judgment and a Rule 15(a) motion

to amend pleadings, considerations of finality and judicial economy suggest that a court should

dispose of the pending Rule 15(a) motion prior to entertaining a summary judgment." Kelly v.

Michaud's Ins. Agency, 651 A.2d 345,346 (Me. 1994); Dune/awn Owners' Ass'n v. Gendrau,

2000 ME 94, ,i 6 n.6, 750 A.2d 591 ("we stress once again that a court should explicitly rule on a

pending motion to amend a complaint prior to ruling on a pending motion for summary

judgment."). Rule 15(a) provides that leave to amend "shall be freely given when justice so

requires." M.R. Civ. P. 15(a). The motion will not be granted when the moving party is acting

in bad faith or for delay, or where there exists the presence of undue prejudice. Kelly, 651 A.2d

345 at 346.

B. Discussion

In support of their argument, Defendants argue, inter alia, that Plaintiffs proposed

Second Amended Complaint comes almost six-months after the deadline established for

amendments to pleadings. (Defs.' Joint Opp. to PL' s Mot. to file a Second Am. Compl. 3.)

5 Plaintiff legitimately retorts that through the process of discovery, he has discovered new

evidence that warrants an amendment to his Complaint. (Pl. 's Reply to Def. 's Opp. to file

Second Am. Compl. 1-2.)

Plaintiff, however, concedes that the substantive changes of his proposed amendment

only reflect the fact that Michael Hazen's party status is changed from "defendant" to "party in

interest," and that the claims for tortious interference and the declaration of trustee authority will

incorporate the fact that Defendant, Mary Osgood, allegedly acted through fraud. (Id. at 1.)

The Court is not satisfied that these exiguous amendments warrant the filing of a Second

Complaint. Plaintiff is not adding any new claims, facts, or parties, and his admitted purpose is

to rename a current defendant and to add language to his existing claims highlighting the

existence of fraudulent conduct. Furthermore, claims of fraud, even within the confines of

intentional interference with an advantageous relationship, must be plead with particularity, M.R.

Civ. P. 9(b); James v. MacDonald, 1998 ME 148, ,r 8, 712 A.2d 1054; Levesque v. Lilley, No.

CV-13-206, 2014 Me. Super. LEXIS, at *7 (June 9, 2014) (citing to James).

The Court is not aware that Plaintiffs proposed Complaint would satisfy these

heightened requirements of Rule 9(b). Moreover, at this stage in the litigation, Plaintiffs

admittedly slight amendments are outweighed by the undue delay that would result from a filing

of a second amended complaint. The Court would have to postpone its consideration of both

parties' Motions for Summary Judgment, and the size of the already voluminous file would only

continue to increase. The Court is satisfied that the purposes behind Plaintiffs Motion can be

accomplished without an amendment to Plaintiffs Complaint. The Court will consider fraud in

its analysis of the Cross Motions for Summary Judgment, and Defendant, Michael Hazen, will

6 hereinafter be made a party-in-interest. 1 Therefore, Plaintiffs Motion is unnecessary, and the

Court denies Plaintiffs Motion for Leave to Amend his Complaint.

III. CROSS MOTIONS FOR SUMMARY JUDGMENT

Cross motions for summary judgment "neither alter the basic Rule 56 standard, nor

warrant the grant of summary judgment per se." FR. Carroll, Inc. v. TD Bank, NA., 2010 ME

115, ~ 8, A.4d 646. Under M.R. Civ. P. 56, summary judgment is appropriate when review of

the parties' statements of material facts and record evidence to which the statements refer,

considered in the light most favorable to the non-moving party, demonstrates that there is no

genuine issue of material fact that is in dispute and the moving party is entitled to judgment as a

matter oflaw. Beal v. Allstate Ins. Co., 2010 ME 20, ~ 11, 989 A.2d 733. A material fact is one

that can affect the outcome of the case, and there is a genuine issue when there is sufficient

evidence for a fact-finder to choose between two competing versions of the facts. Stewart-Dore

v. Webster Hosp. Ass 'n, 2011 ME 26, ~ 8, 13 A.3d 773. The evidence offered to establish a

dispute as to a material fact, submitted in opposition to a motion for summary judgment, "need

not be persuasive at that stage, but the evidence must be sufficient to allow a fact-finder to make

a factual determination without speculating." Estate ofSmith v. Cumberland Cnty. , 2013 ME 13,

~ 19, 60 A.3d 759.

When acting on a motion for summary judgment, a court may not make inferences based

on credibility or weight of the evidence. Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ~

16,917 A.2d 123 (citing Emerson v. Sweet, 432 A.2d 784, 785 (Me. 1981)). A party who moves

for summary judgment is entitled to a judgment only if the party opposing the motion, in

1 The Court notes that Plaintiff is free to file a Motion to conform the Complaint to the evidence adduced at trail, if and when fraud is proven.

7 response, fails to establish a prima facie case for each element of his cause of action. Lougee

Conservancy v. CitiMortgage, Inc., 2012 ME 103, ,r 12, 48 A.3d 774.

B. Count I) Breach of Contract

As a threshold matter, Defendants rehash their arguments from their Motion to Dismiss

by arguing that Plaintiffs claims are barred by the previous Release Agreement entered into

between the parties on May 31, 2013. (Defs.' Joint Mot. Summ. J. 5.) Defendants focus the

Court's attention on Plaintiffs statement that "the statute oflimitations for enforcing the

provisions of Mother's Trust and her estate planning agreements could have run out on October

7, 2015, 6 years after her death." (Id.) This statement is not determinative of the fact that the

claim arose in 2009, only that there exists a distinct possibility that the claim "could" have arose

solely during that time period. As articulated in the previous Order on Defendants' Motion to

Dismiss, Plaintiff is barred from asserting any claim arising prior to May 31, 2013. However, as

Plaintiff has not specified a time frame for the alleged conduct giving rise to his claim for breach

of contract, the Court is effectively inhibited from deciding, as a matter oflaw, that Defendants

are entitled to summary judgment.

Furthermore, viewing the evidence in the light most favorable to Plaintiff as the non­

moving party, it is evident that a claim could have arisen after the Release Agreement was

entered into. For example, Trustee Robert Macdonald was appointed to the position of Trustee

after the Release Agreement was entered into. Plaintiff alleges, in part, that Defendants

intimidated Trustee MacDonald into not disposing of real property within the Prudence Trust to

generate liquidity. The fact that this conduct took place after the Release Agreement was entered

into highlights the probability that Plaintiffs claim, in part, also arose after the Release

Agreement was executed.

8 Moving on to address the substance of Plaintiffs breach of contract claim, in order to

establish a valid contract there must be mutual assent to be bound by the material terms of the

agreement, and consideration. Tobin v. Barter, 2014 ME 51, ,r 9, 89 A.3d 1088; Snow v. BE&K

Constr. Co., 126 F. Supp. 2d 5, 9 (D. Me. 2001 ). The existence of a contract is a question of

fact. Tobin, 2014 ME 51, ,r 9, 89 A.3d 1088. In order to prove a breach of a valid contract, a

plaintiff must further show ( 1) that the defendant breached a material term of the contract; and

(2) that the plaintiff suffered damages on account of the defendant's material breach. Id. ,r 10.

Both elements are also questions of fact. Id

Here, Defendants make a compelling argument that the "Report of Recommendations" is

not a contract. Defendants argue that the contract is not sufficiently definite to fix the legal

liabilities between the parties. See Stanton v. Univ. ofMaine Sys., 2001 ME 96, ,r 13, 773 A.2d

1045 ("the contract must be sufficiently definite to enable the court to determine its exact

meaning and fix exactly the legal liabilities of the parties."). Defendants counters that the report

constituted a mere recommendation, but when Franklin and Prudence signed it, and Franklin said

they both agreed with it, that it became a binding succession contract.

It is clear from the parties' contentions that whether the "Report of Recommendations"

constitutes a valid contract is a critical issue in this case. Unfortunately for Defendants, the

resolution of Plaintiffs claim for breach of contract requires the determination of disputed and

material factual issues, which the Court is inhibited from engaging in at the summary judgment

stage. For this reason, Defendants' Motion for Summary Judgment as to Count I is denied.

C. Count II) Breach of an Implied Contract

In Count II of his Amended Complaint, Plaintiff claims that Defendant, Franklin Hazen,

breached an implied contract between himself and Prudence by failing to leave the remainder of

9 his estate equally to Mary, Michael and Steven, by failing to ensure that the Camp remains

within the family and is preserved, and by failing to liquidate other assets in the Trust in order to

create capital to preserve the Camp. (Pl.'s Am. Compl. ,r,r 49-55; Pl.'s Opp. Defs.' Mot. Summ.

J. 16.)

In contrast to a written contract, "[a]n implied contract refers to that class of obligations

which arises from mutual agreement and intent to promise, when the agreement and promise

have simply not been expressed in words." Stanton v. Univ. ofMaine Sys., 2001 ME 96, ,r 12,

773 A.2d 1045 ( quoting 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of

Contracts§ 1:5, at 20 (4th ed. 1990)).

Here, Plaintiff argues that Franklin made a promise to Prudence, embodied in the Report

of Recommendations. Since the Report constitutes a written document as well as the only

promise Plaintiff relies upon to formulate his claim for breach of an implied promise, Plaintiff

has not effectively pointed to any oral promise, as necessary in order to adequately establish a

foundation to suppo1i his claim for breach of an implied contract. This being the case, his claim

must fail on that basis alone. For these reasons, the Court grants Defendants Motion for

Summary Judgment as to Count II.

D. Count III) Interference with Contractual Relations

In Count III, Plaintiff claims that Defendants, Mary, Rick, and Franklin, interfered with

the Report of Recommendations by, inter alia, allegedly intimidating the Trustee of Prudence's

Tmst to refrain from selling any real property in the Trust. (Pl.'s Am. Compl. ,r,r 56-59.)

1. Mary and Franklin

Interference with contractual relations occurs "whenever a person by fraud or

intimidation procures the breach of a contract that would have continued but for such wrongful

10 interference, that person can be liable in damages for such tortious interference." Pombriant v.

Blue Cross/Blue Shield ofMaine, 562 A.2d 656, 659 (Me. 1989); see also Harlor v. Amica Mut.

Ins. Co., 2016 ME 161, ,r 12, _ A.3d _ . The First Circuit has stated that the defendant in a

tortious interference case must be a stranger to the contract. Richards v. Relentless, Inc., 341

F.3d 35, 43-44 (1st Cir. 2003). Over a century ago, in Perkins, the Law Court apparently

impliedly incorporated this requirement into a claim for intentional interference by stating that

"for a person to wrongfully ... that is by the employment of unlawful or improper means, induce

a thirdparty to break a contract with the plaintiff, whereby injury will naturally and probably,

and does in fact, ensue to the plaintiff, is actionable." Perkins v. Pendleton, 90 Me. 166, 171-72,

38 A. 96, 97 (Me. 1897) (emphasis added). The Law Court recently stated that a case for

intentional interference can be shown when a defendant either induces a third-party, or the

plaintiff, to break a contract. Harlor, 2016 ME 161, ,r,r 12-13, _ A.3d _ ("Generally, a

plaintiff claiming tortious interference alleges that the defendant interfered with a contract or

prospective economic advantage involving the plaintiff and someone other than the defendant."

The Court then rejected the notion that the defendant's conduct must be directed solely at the

plaintiff and referenced a First Circuit case which stated a claim for intentional interference lies

where it is alleged "(a) that the defendant interfered with the plaintiffs advantageous relationship

with a third party by committing fraud or intimidation against the third party or (b) that the

defendant interfered with the plaintiffs relationship with a third party by committing fraud or

intimidation against the plaintiff."). Therefore, it is established that the defendant's conduct can

be directed at either the plaintiff or a third-party, but that the defendant must not be a party to the

contract. This protective doctrine is known as the "stranger doctrine."

11 Here, it is undisputed that Franklin was a party to the contract between himself and

Prudence, however, Defendants allege that Mary, as a third-party beneficiary, is also a party to

the contract and similarly cannot be sued. The Court must, therefore, determine whether third­

party beneficiaries are "parties" to a contract sufficient to protect them from an intentional

interference with economic relations claim.

This provides an opportunity of first impression, as the Court is unaware of any existing

Maine authority governing this issue. Looking then to Courts around the country, many have

found that a third-party beneficiary is a party to the contract for the purposes of intentional

interference with an economic relationship. Hanley v. Continental Airlines Inc., 687 F. Supp.

533, 538 (D. Colo. 1988) ("Thus I conclude that an intended third party beneficiary to a contract

may assert a claim for tortious interference with contractual relations to recover for intentional

and improper interference with its rights under that contract."); Tamposi Assocs. v. Star Mkt. Co.,

119 N.H. 630, 632 (1979) ("A third-party beneficiary may recover from one who intentionally

interferes with the contract that established the third party's rights."); Reynolds v. Owen, 34

Conn. Supp. 107, 111 (1977) ("As a third-party beneficiary, the plaintiff possesses the requisite

contractual rights to bring a cause of action in tort."); CSY Liquidating Corp. v. Harris Trust &

Sav. Bank, 162 F.3d 929, 932-33 (7th Cir. 1998) ("[T]he tort of intentional interference with

contract is meant to protect the parties (including third-party beneficiaries, assignees, and others

having the rights of the parties) ...."); Baron Fin. Corp. v. Natanzon, 471 F. Supp. 2d 535, 540

(D. MD. 2006) (citing to CSY Liquidating Corp, 162 F.3d 929 at 932-33); K & K Recycling Inc.

v. Alaska Gold Co., 80 P.3d 702, 716 n.22 (Ak. 2003) (citing to CSY Liquidating Corp, 162 F.3d

929 at 932-33).

This line ofreasoning is also supported by the Restatement, which provides "[t]hus, if A

12 induces B to break a contract with C, persons other than C who may be harmed by the action as,

for example, his employees or suppliers, are not within the scope of the protection afforded by

this rule, unless A intends to affect them." Restatement (Second) of Torts § 766 cmt. p (1979).

The restatement highlights the importance of intent in the final determination of party status for

purposes of the stranger doctrine. The Court finds the case law and the restatement persuasive

and sees no reason why intended third-party beneficiaries, such as Mary, should not be included

within the protection of the stranger doctrine. For these reasons, in this case, Mary, as an

intended third-party beneficiary to the Report, was not a stranger to it, because of her third-party

beneficiary status. Therefore, under the stranger doctrine, Plaintiffs claim for intentional

interference with an economic relationship cannot survive. Consequently, the Court Grants

Defendants' Motion for Summary Judgment as to Count III with respect to Franklin and Mary.

2. Rick

In regards to Defendant, Rick Osgood, Plaintiff indicates that after Trustee MacDonald

stated his intentions to list the Tree Farm for sale, that Rick threatened to remove him from his

position as Trustee. (MacDonald Dep. 73; Pl.'s Opp. Defs.' Joint Mot. Summ. J. 8.) Plaintiff

argues that this conduct establishes intentional interference by fraud, or through intimidation.

(Pl.'s Opp. Defs.' Joint Mot. Summ. J. 6-9.) In order to prove tortious interference with an

advantageous relationship by fraud, the plaintiff must show:

(1) making a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or refrain from acting in reliance on it, and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff.

Rutland v. Mullen, 2002 ME 98, ,i 14, 798 A.2d 1104; see Id. ,i 15 ("The assertion of a legal

right, however, is by itself insufficient as a matter of law to support a finding of interference by

fraud."). Plaintiff has not provided sufficient facts to demonstrate that Rick, engaged in tortious

13 interference through fraud. Plaintiff has provided numerous facts exhibiting the fact that

Defendant, Mary Osgood, engaged in action that may constitute tortious interference through

fraud, but has failed to display any conduct on behalf of Rick. (Pl.' s Opp. Defs.' Joint Mot.

Summ. J. 7 (citing to Pl.'s Opp. S.M.F. ,r 89); Pl.'s Opp. S.M.F. ,r 89 (citing instances where

Mary engaged in allegedly fraudulent conduct, but not mentioning Rick.)) Accordingly, there is

no genuine issue of fact in dispute that would salvage Plaintiffs tortious interference by means

of fraud claim against Rick.

To establish a case for intentional interference through intimidation, the plaintiff must

show the presence of unlawful extortion or coercion. Rutland, 2002 ME 98, ,r 16, 798 A.2d

1104; Holdsworth v. Bernstein, NO. CV-13-03, 2014 Me. Super. LEXIS 265, at *51-52 (Aug.

27, 2014) (citing to Rutland'); see Pombriant v. Blue Cross/Blue Shield ofMaine, 562 A.2d 656,

659 (Me. 1989 ("intimidation is not restricted to 'frightening a person for coercive purposes."').

Black's Law Dictionary defines extortion as "[t]he act or practice of obtaining something or

compelling some action by illegal means, as by force or coercion." Black's Law Dictionary 520

(9th ed. 2009). Coercion is defined as "[c]ompulsion by physical force or threat of physical

force," or"[c]onduct that constitutes the improper use of economic power to compel another to

submit to the wishes of one who wields it." Id. at 236; see Holdsworth, 2014 Me. Super. LEXIS

265 at *51-52 (citing to Black's Law Dictionary to define coercion and compulsion). From the

definitions provided by Black's Law Dictionary, as well as the discussion in Pombriant and

Rutland, it becomes clear that coercion can take the form of either physical harm or threats of

physical harm, or economical harm or threats of economical harm.

In this case, there is no allegation that Rick physically threatened or harmed Trustee

MacDonald. The only remaining argument is whether Rick's threat to remove Trustee

14 Macdonald constituted an economic threat or harm covered under the intentional interference

claim. Defendants' argue that since Trustee MacDonald does not accept any compensation for

his services that "any suggestion that Defendant might exercise their right to remove Mr.

MacDonald as an uncompensated Trustee is not actionable." (Pl.'s Joint Mot. Summ. J. 15.)

However, Trustee MacDonald explicitly stated that "[i]t is not my present intention to take

reasonable compensation for my services, but I reserve the right to do so, both retrospectively

andprospectively." (Pl.'s Mot. Partial Summ. J. Ex. H. at 6 (emphasis added).) Therefore, it is

clear that while Trustee MacDonald did not receive present remuneration, he retained the right to

be compensated for all of his previous work, and if Roderic were to threaten to remove him,

Trustee MacDonald would potentially be harmed economically.

Nonetheless, Defendants have not provided any other facts tending to support the fact

that through Rick's threat, Trustee MacDonald was coerced into removing the Tree Farm for

sale. Furthermore, Rick did not have the authority to remove Trustee MacDonald, as he was not

a beneficiary of the Trust. In essence, Rick wielded no power over Trustee MacDonald to utilize

to bend Trustee MacDonald's will into submission. For these reasons, Plaintiffs claim against

Rick rests upon conclusory allegations, improbable inferences and unsupported speculation.

Accordingly, summary judgment is warranted for Defendant, Rick, with respect to Count III.

See Dyer v. Dot, 2008 ME 106, ,r 14, 951 A.2d 821.

E. Count IV) Tortious Interference with an Expected Inheritance and Count V) Undue Influence

In Count IV, Plaintiff alleges that Defendants, Mary and Rick, inter alia and through the

use of undue influence, intimidation, or duress, caused Defendant, Franklin, to modify his Trust

to significantly reduce the amount of Plaintiffs inheritance. (Pl.'s Am. Compl. ,r,r 60-66.)

Similarly, in Count V) Plaintiff alleges that Mary and Rick exhibited undue influence upon

15 Franklin, through the existence of a confidential relationship, and for the purpose of coercing

him into reducing the inheritance that Steven would receive. (Id ,r,r 67-71.)

To establish a claim for tortious interference with an expected inheritance, the following

elements must be met: (1) the existence of an expectancy of inheritance; (2) an intentional

interference by a defendant through tortious conduct, such as fraud, duress, or undue influence;

(3) a reasonable certainty that the expectancy of inheritance would have been realized but for the

defendant's interference; and (4) damage resulting from that interference. Morrill v. Morrill,

1998 ME 133, ,r 7, 712 A.2d 1039. Undue influence is the "unfair persuasion of a party who is

under the domination of the person exercising the persuasion or who by virtue of the relationship

between them is justified in assuming that that person will not act in a manner inconsistent with

his welfare." Theriault v. Burnham, 2010 ME 82, ,r 6, 2 A.3d 324 (citing to Desmarais v.

Desjardins, 664 A.2d 840, 843 (Me. 1995)). Undue influence may be presumed where a

confidential relationship exists. Id A confidential relationship, in turn, occurs when one

individual "places trust and confidence in the defendant and there was a great disparity of

position and influence in the relationship." Id. (citing to Ruebsamen v. Maddocks, 340 A.2d 31,

36 (Me. 1975)).

Here, Plaintiff expected to receive one third of the assets held within the Franklin Trust.

(Franklin G. Hazen Revocable Trust Agreement, Defs.' Mot. Summ. J. Ex. G.) Subsequent to

executing his Trust, Plaintiff alleges that Defendants, Mary and Rick, through the exertion of

undue influence or fraud, caused Franklin to modify his Trust to Plaintiffs detriment.

Defendants rely on the fact that Attorney Watson, who executed Franklin's second Trust,

stated that Franklin was not under any undue influence and was confident that the changes

Franklin was making to his Will were the result of his own free will. (Watson Dep. 10-12, 26.)

16 Defendants also rely on Mr. Hazen's own testimony that Steven was the only child who ever

exerted pressure on him. (Franklin Hazen Dep. 7.)

Plaintiff effectively counters by arguing that Mary and Rick possess a confidential

relationship with Franklin, giving rise to the corresponding presumption of undue influence.

Mary has received a significant benefit from Franklin's Second Trust, because she currently

holds a one half interest in the second Trust, compared to her one-third interest in the First Trust.

Mary is also named on Franklin's bank accounts, and Rick manages Franklin's second Trust.

(Pl.' s Opp. Defs.' Mot. Summ. J. 11.)

Plaintiff also references an email from Mary Hazen, in which she stated, "[Roderic and I]

are encouraging Dad to put in specific amounts for Susan and Steven instead ofjust a 4-way

split." (Pl. 's Opp. Defs.' Mot. Summ. J. Ex. 3.) Mary Hazen testified in her deposition that she

encouraged her father to leave Plaintiff in the Franklin Trust, and that her father, not herself,

wanted to exclude Steven from his Trust. (Mary Hazen Dep. 106-7.) Unfortunately, Mary's

email directly contradicts her deposition testimony, and creates a genuine dispute as a material

fact, as to whether and to what extent she and Rick influenced, or did not influence, Franklin.

For these reasons, the Court denies Defendants Motion for Summary Judgment as to Count IV)

and Count V) as to Defendants' Mary and Rick.

F. Count VI) Declarato1y Judgment

In Count VI, Plaintiff seeks the Court to declare that the Report of Recommendations a

valid, enforceable contract concerning succession between Franklin and Prudence Hazen. (Pl.' s

Compl. ,r,r 72-74.) Conversely, Defendants, in their counterclaim, seek a judgment that the

Report is not a valid, enforceable contract.

Under the Maine Declaratory Judgment Act, "[a]ny person interested as ...an devisee,

17 legatee ... may have a declaration of rights or legal relations ... [t]o determine any question

arising in the administration of the estate or trust, including questions of construction of wills and

other writings." 14 M.R.S. § 5956 (2015). Two prerequisites to the Act require (1) that the

declaratory judgment will "terminate the controversy or remove an uncertainty," and (2) that "all

persons shall be made parties who have or claim any interest which would be affected by the

declaration and no declaration shall prejudice the rights of persons not parties to the proceeding."

14 M.R.S. §§ 5957, 5963 (2015).

Here, Plaintiff and Defendants dispute whether the Report is a contract. The Court is

satisfied that, through this dispute, a controversy exists. However, not all persons who have an

interest in the Report are parties to the instant proceeding. The Report significantly and

detrimentally forecloses any inheritance that would accrue to Susan. Thus, a declaration that a

contract exists would prejudice the rights of Susan without affording her the opportunity to be

present.

In addition, under 14 M.R.S. § 5961, "when a proceeding under this chapter involves the

dete1mination of an issue of fact, such issue may be tried and determined in the same manner as

issues of fact are tried and determined in other civil actions in the court in which the proceeding

is pending." As mentioned in the Court's discussion of Count I, breach of contract, an issue of

fact lingers with respect to whether the Report is a valid contract. This issue of fact in

combination with Susan's statutory right to be made a party to the action effectively prohibit the

Court from issuing a declaratory judgment.

G. Count VII) Declaration of Trustee Authority

In Count VII, Plaintiff asks the Court to issue a declaratory judgment ordering the

Trustee of Pmdence's Trust, Robert McDonald, to sell real property from the Trust in order to

18 establish liquidity in the trust.

As mentioned above, there are two prerequisites to obtaining a declaratory judgment.

The first is that the Court's decision would "terminate the controversy or remove an

uncertainty." 14 M.R.S. § 5957. Second, all persons having an interest in the proceeding must

be made parties to the action. 14 M.R.S. § 5963. Previously, the Court declined to issue a

declaratory judgment on the basis that Susan was not made a party to the proceeding and an issue

of fact permeated throughout the dispute.

Here, the Court is satisfied that a controversy exists. Both parties dispute the authority of

the Trustee. Defendants' take the position that the Trustee must get permission from Franklin

Hazen before disposing of any real property. (Defs.' Mot. Summ. J. S.M.F. ,r,r 103-110.) On the

other hand, Plaintiff opines that no such permission is necessary or required. (Pl.' s Mot. Partial

Summ. J. ,r,r 100-101.)

However, Prudence's Trust makes explicit reference to Susan, and reserves authority in

the Trustee to reinstate her as a beneficiary under the Trust. The statute makes it clear that any

person with an interest shall be made a party. 14 M.R.S. § 5963. Susan's interest affords her a

legitimate, statutory-right to be made a party. Therefore, her absence operates to preclude the

Court's ability to issue a declaratory judgment. For these reasons, both parties respective

Motions for Summary Judgment as to Count VII are denied.

The Entry is:

1) Plaintiffs Motion for Leave to Amend his Complaint is DENIED.

2) Plaintiffs Motion for Partial Summary Judgment is DENIED.

3) Defendants' Motion for Summary Judgment is GRANTED as to Counts II, and III.

19 4) Defendants' Motion for Summary Judgment as to Counts I, IV, V, VI, and VII is DENIED.

5) Defendant's Motion to Dismiss Defendant Michael Hazen is GRANTED without prejudice. Michael Hazen is hereafter a Party-in-Interest.

6) This Order shall be incorporated into the docket by reference pursuant to M.R. Civ. P. 79.

Dated: June 13, 2017

Justice, Maine Superior Court

20 STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION DOCKET NO. CUMSC-CV-15-438

STEVEN KELSEY HAZEN, ) ) Plaintiff, ) ) V. ) ORDER ON DEFENDANTS ' MOTION ) TO DISMISS COUNTS I, II, III, VI, & VII FRANKLIN GRAHAM HAZEN, ) OF THE AMENDED COMPLAINT, MARY ELIZABETH OSGOOD, ) DEFENDANTS' MOTION TO MICHAEL FRANKLIN HAZEN, ) DISQUALIFY, & PLAINTIFF'S MOTION RODERIC OSGOOD, and ) FOR SANCTIONS ROBERT E. MacDONALD, trustee for th~ ) PRUDENCE ELEANOR HAZEN TRUST, ) ) Defendants, ) STATE OF~lNf;_ ) CmnbGnantl,~, Clen(-s OffiOO and ) ) AUG O9 2016 RODERIC OSGOOD, trustee for the ) FRANKLIN GRAHAM HAZEN ) RECEIVED REVOCABLE TRUST, ) ) Party-in-Interest. )

Presently before the court are the following motions: (1) Defendants Mary Elizabeth

Osgood and Michael Franklin Hazen's motion to dismiss Counts I, II, III, VI, and VII of Plaintiff

Steven Kelsey Hazen's amended complaint; (2) Defendants Mary Osgood and Michael Hazen's

motion to disqualify Plaintiff's counsel, Colby Wallace, Esq.; and (3) Plaintiff's motion for

sanctions. Defendant Franklin Graham Hazen has moved to join Mary Osgood and Michael

Hazen's motions. 1 Based on the following, Defendants' motion to dismiss and motion to

disqualify are both denied. Plaintiffs motion for sanctions is also denied.

1 Franklin Hazen's motion to join is granted. Mary Osgood, Michael Hazen, and Franklin Hazen are collective referred to as "Defendants" in this order. Although Defendant Roderic Osgood is represented by the same counsel as Mary Osgood and Michael Hazen, Roderic Osgood is not a party to the motion to dismiss or motion to disqualify. Roderic Osgood is not a beneficiary the Prudence Trust or signatory of I. BACKGROUND

According to Plaintiffs amended complaint, Franklin Hazen and Prudence Eleanor

Hazen were married until Prudence Hazen's death in October 2009. (Am. Compl. 1 15.) On

March 25, 2009, Franklin and Prudence Hazen entered into an agreement regarding the

organization, ownership, and disposition of their respective estates by signing a document

entitled "Report of Recommendations Regarding the Estates of Franklin G. and Prudence E.K.

Hazen" (the "Agreement"). (Id. 1116-17.) According to Plaintiff, the Agreement provided that

Franklin and Prudence Hazen would divide their assets between two trusts, the Prudence Eleanor

Hazen Trust (the "Prudence Trust") and the Franklin Graham Hazen Revocable Trust (the

"Franklin Trust"). (Id. 11 5-6, 18.) The Prudence Trust and the Franklin Trust were established

on April 17, 2009, in accordance with the Agreement. (Id. 11 5-6, 28-29.) Plaintiff asserts that

Franklin Hazen, Mary Osgood, Michael Hazen, and he are the four beneficiaries of the Prudence

Trust. (Id. 1 8.) Plaintiff asserts that Franklin Hazen is the only beneficiary of the Franklin Trust

while he is living. (Id. 1 9.) Plaintiff asserts that, as a result of a March 25, 2013 amendment to

the trust, only Mary Osgood and Michael Hazen have remainder rights in the Franklin Trust. (Id.

110.)

According Plaintiff, one of the assets transferred to the Prudence Trust was a parcel of

real property located 70 Murch Point Road in South Casco, Maine referred to as the "Camp."

(Id. 119.) According to Plaintiff, the Agreement provided that the Camp would be preserved for

Franklin and Prudence Hazen's use during their lives and would then pass to Mary Osgood,

Michael Hazen, and Plaintiff, upon the death of the second to die of Fra~in and Prudence

the Release . Thus, the affirmative defense raised by Defendants' motions does not apply to him. Similarly, Defendant Robert E. MacDonald, as trustee for the Prudence Trust, is also not a beneficiary of the trust or signatory to the Release. Thus, the affirmative defense raised by Defendants' motions also does not apply to him. Defendant Robert E. MacDonald, as trustee for the Prudence Eleanor Hazen Trust, has not appeared or participated in this action.

2 Hazen. (Id. ~ 22.) According to Plaintiff, the Agreement provided that all other property held by

both the Prudence and Franklin Trusts would be managed, liquidated, subdivided and generally

utilized to maintain and improve the Camp and to take care of Franklin and Prudence Hazen

during their lives. (Id. ~ 23.) Prudence Hazen died on October 7, 2009. (Id. ~ 30.)

On May 31, 2013, Plaintiff, Mary Osgood, Michael Hazen, and Franklin Hazen, as

beneficiaries of the Prudence Trust, entered into a Nonjudicial Settlement Agreement regarding

the Prudence Trust (the "Settlement Agreement"). (Defs. Mot. Dismiss, Ex. A.) As part of the

Settlement Agreement, Plaintiff, Mary Osgood, Michael Hazen, and Franklin Hazen entered into

a Consent and Release Agreement (the "Release"), discharging each other from all claims based

on actions taken or not taken with regard to the Prudence Trust. (Id.) The Settlement Agreement

and the Release were incorporated into a June 5, 2013 Order issued by the Cumberland County

Probate Court, docket number 2013-0695. (Am. Compl. ~ 5, Ex. A.)

Plaintiff initially filed his complaint in this action on September 28, 2015. Plaintiff filed

an amended complaint May 12, 2016. Plaintiff's amended complaint alleges that the trustees of

both the Prudence and Franklin Trusts have failed or refused to market or sell the property held

by the Prudence and Franklin Trusts in accordance with the Agreement. (Id. ~ 31-32.) Plaintiff

alleges that the trustees' failure to liquidate all property in Prudence and Franklin Trusts is the

result ofrepeated intentional interference by Defendants. (Id. ~ 31-3 3.) Plaintiff alleges that, as

a result of Defendants' interference, the Camp has not been maintained or improved in

accordance with the Agreement. (Id. ~ 34.) Plaintiff also alleges that Franklin Hazen has

materially altered the terms of the Franklin Trust by reducing Plaintiffs one-third share of the

Franklin Trust as a result of undue influence from Mary Osgood, Michael Hazen, and Roderic

Osgood. (Id. ~~ 36-38.) Plaintiffs amended complaint asserts claim for breach of contract

3 (Count I), breach of implied contract (Count II), interference with a contractual relationship

(Count III), tortious interference with an expected inheritance (Count IV), undue influence

(Count V), declaratory judgment (Count VI), and a declaration of trustee's authority (Count VII).

(Id. ,r,r 45-80.)

Mary Osgood, Michael Hazen, and Roderic Osgood filed an answer and counterclaim on

May 20, 2016. Franklin Hazen filed his answer and counterclaim on May 23, 2016. On May 20,

2016, Defendants Mary Osgood and Michael Hazen also filed a motion to dismiss Counts I, II,

III, VI, and VII of the amended complaint for failure to state a claim or, in the alternative, to

disqualify Plaintiffs counsel, Colby Wallace, Esq. Franklin Hazen filed a motion to join Mary

Osgood and Michael Hazen's motion to dismiss and their motion to disqualify on June 6, 2016.

Plaintiff filed an opposition to the motion to dismiss and motion to disqualify on June 8, 2016.

In his opposition, Plaintiff requests that the court impose sanctions on Defendants. Defendants

Mary Osgood and Michael Hazen filed a reply on June 17, 2016. The court addresses each

motion in turn.

II. DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Defendants have moved to dismiss Counts I, II, III, VI, and VII of Plaintiffs amended

complaint pursuant to Maine Rule of Civil Procedure 12(b)(6) for failure to state a claim upon

which relief can be granted. (Defs. Mot. Dismiss 1-3.) Typically, Rule 12(b) motions are made

before the filing of a responsive pleading. See M.R. Civ. P. 12(b). Defendants in this case

simultaneously answered and moved to dismiss. Therefore, Defendants' motion is more

accurately a motion for judgment on the pleadings pursuant to Rule 12(c). See M.R. Civ. P.

4 12(c) ("After the pleadings are closed but within such time as not to delay the trial, any party

may move for judgment on the pleadings.").

However, a motion for judgment on the pleadings by a defendant "is the equivalent of a

motion to dismiss for failure to state a claim." MacKerron v. MacKerron, 571 A.2d 810, 813

(Me. 1990); 2 Harvey, Maine Civil Practice § 12:14 at 429-30 (3d ed. 2011). Therefore,

regardless of whether Defendants' motion is titled as a motion to dismiss for failure to state a

claim or motion for judgment on the pleadings, the court's analysis is the same. Both motions

test the legal sufficiency of the complaint. MacKerron, 571 A.2d at 813. The sufficiency of the

complaint is a question of law. Id. The court reviews the complaint in the light most favorable

to the plaintiff to determine whether the complaint "sets forth elements of a cause of action or

alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Bean v.

Cummings, 2008 ME 18, ~ 7, 939 A.2d 676 (internal citation and quotation marks omitted). "A

complaint is sufficient unless it appears to a certainty the plaintiff is entitled to no relief under

any set of facts he might prove in support of his claim." MacKerron, 571 A.2d at 813 (internal

citation, alterations, and quotation marks omitted).

The sole basis for Defendants' motion to dismiss is the May 31, 2013 Release. (Defs.

Mot. Dismiss 5.) Defendants assert that, under the terms of the Release, they were released from

the claims asserted in Counts I, II, III, VI, and VII of the amended complaint. (Id. at 5-10.)

Release is an affirmative defense. M.R. Civ. P. 8(c). Generally, a defendant may not assert

affirmative defenses in either a motion for judgment on the pleadings or a motion to dismiss for

failure to state a claim. MacKerron, 571 A.2d at 813; 2 Harvey, Maine Civil Practice§ 12:14 at

429-30. An affirmative defense may be raised in motion to dismiss for failure to state a claim

only if the facts giving rise to the defense appear on the face of the complaint. 2 Harvey, Maine

5 Civil Practice § 12: 12 at 423. Release has been recognized as an affirmative defense that may be

raised on a motion to dismiss for failure to state a claim. Id. § 12: 12 at 424-25 (citing Hoover v.

Lacey, 80 F. Supp. 691 (D.D.C. 1943)).

Neither the Settlement Agreement nor the Release are referenced in or attached to

Plaintiffs amended complaint. See (Am. Compl.) Defendants have provided the court with a

copy of the Settlement Agreement and the Release as part of their motion to dismiss. (Defs.

Mot. Dismiss, Ex. A.) Normally on a motion to dismiss for failure to state a claim, only the facts

alleged in the complaint are considered by the court. Moody v. State Liquor & Lottery Comm 'n,

2004 ME 20, 1 8, 843 A.2d 43. If the court considers materials outside the pleading, the court

must convert the motion to dismiss into a motion for summary judgment under Rule 56. M.R.

Civ. P. 12(b). However, in limited circumstances, the court may consider certain extraneous

documents without converting a motion to dismiss to one for a summary judgment. Moody,

2004 ME 20, 1 9, 843 A.2d 43. The court may consider "official public documents, documents

that are central to the plaintiffs claims, and documents referred to in the complaint, without

converting a motion to dismiss into a motion for a summary judgment when the authenticity of

such documents is not challenged." Id. 1 10.

Although the Release is not referenced in or attached to the amended complaint, the

Settlement Agreement and the Release were incorporated in and attached to the June 5, 2013

Probate Court Order. (Am. Compl. 1 5, Ex. A.) The Probate Court Order is referenced in and

attached to the amended complaint without the Settlement Agreement or the Release. (Id.)

Defendants argue that, because the Settlement Agreement and the Release were incorporated in

and attached to a court order, they are public documents. (Defs. Mot. Dismiss 4-5.) Plaintiff

6 does not dispute that the Settlement Agreement and the Release are public documents, nor their

authenticity. (Pl. Opp'n to Defs. Mot. Dismiss 2-6.)

Because June 5, 2013 Probate Court Order, which references both the Settlement

Agreement and the Release, is referenced in and attached to the amended complaint, the

Settlement Agreement and the Release constitute documents referred to in the amended

complaint. Moreover, because the Settlement Agreement and the Release were referenced in and

attached to the June 5, 2013 Probate Court Order, they are also public documents. Accordingly,

the Release is both a document referred to in the amended complaint and a public document

under the Moody exception. Therefore, the court may consider the Release in deciding

Defendants' motion to dismiss without converting the motion to one for summary judgment.

The court shall review the facts on the face of the amended complaint in the light most favorable

to Plaintiff to determine whether Plaintiffs claims fall with the terms of the Release.

B. Analysis

Principles of contract law govern the court's interpretation of settlement agreements and

releases. Hawkes v. Commercial Union Ins. Co., 2001 ME 8, 1120-21, 764 A.2d 258. Like all

contracts, a release must be construed to effectuate the parties' intentions as reflected in the

written instrument. See VIP., Inc. v. First Tree Dev., 2001 ME 73, 13, 770 A.2d 95. Thus, the

court must give the terms used in a release their plain meaning. See Am. Prat. Ins. Co. v. Acadia

Ins. Co., 2003 ME 6, 1 13, 814 A.2d 989. "If a release is absolute and unequivocal in its terms, it

cannot be explained by parol evidence and must be construed according to the language that the

parties have seen fit to use." 2301 Cong. Realty, LLC v. Wise Bus. Forms, Inc., 2014 ME 147, 1

10, 106 A.3d 1131 (internal quotation marks and citation omitted). Unless the release expressly

reserves a parties' right to bring a cause of action, the release constitutes the complete accord and

7 satisfaction of all claims by immediate parties arising out of the same transaction or occurrence.

Butters v. Kane, 347 A.2d 602, 604 (Me. 1975).

Section IV of the Release, signed both Plaintiff and Defendants, expressly states:

IV. Each of the undersigned Beneficiaries hereby releases and forever discharges each of the other Beneficiaries, and his or her estate, heirs, successors and assigns, from and against, all manner of actions, causes of action, suits, accounts, claims and demands whatsoever, whether presently known or unknown, for any action taken or not taken with regard to the [Prudence] Trust through the date hereof and actions reflected herein, that he or she ever had, now has or shall or may have.

(Defs. Mot. Dismiss, Ex. A) The plain and unambiguous language of the Release contains no

limitations on the types of claims covered by its terms. However, the plain and unambiguous

language of the Release clearly limits its scope to only claims based on "any action taken or not

taken with regard to the [Prudence] Trust through the date hereof and actions reflected

herein, ... " (Id.) (emphasis supplied). Thus, based on its plain and unambiguous language, the

Release discharges only those claims based on any action or inaction regarding the Prudence

Trust that occurred prior to its effective date, May 31, 2013.

1. Breach ofContract by Franklin Hazen

Count I of Plaintiffs complaint is a breach of contract claim against Franklin Hazen.

Plaintiff alleges that Franklin Hazen has breached the material terms of the Agreement, which

has diminished the assets in both the Prudence Trust and Franklin Trust, injuring Plaintiff as an

intended beneficiary. (Am. Compl. 11 46-48.) Plaintiff alleges that Franklin Hazen has

prevented the trustees of the Prudence Trust from selling property held by the Prudence Trust in

accordance with the Agreement. (Id. 11 23, 31.) Any breach of contract claims based on any

actions by Franklin Hazen regarding the Prudence Trust that occurred prior to May 31, 2013, are

barred by the Release. However, Plaintiffs complaint does not specify when Franklin Hazen's

8 alleged conduct occurred. Therefore, any actions by Franklin Hazen regarding the Prudence

Trust that occurred after to May 31, 2013, could be the basis for a breach of contract claim

against Franklin Hazen.

Plaintiffs amended complaint also alleges that Franklin Hazen has interfered with the

trustee of the Franklin Trust's efforts to market propertY. held by the Franklin Trust, has

materially altered the terms of the Franklin trust by reducing Plaintiffs share, and has

intentionally failed to market property held by the Franklin Trust, all in violation of the terms of

the Agreement. (Id. 1123, 32, 38, 42.) All of these allegations relate to the Franklin Trust and

do not directly involve the Prudence Trust. Any claims based on Franklin Hazen's actions

regarding the Franklin Trust are not barred by the Release.

Therefore, Plaintiffs amended complaint sufficiently sets forth a claim for breach of

contract against Franklin Hazen for any actions regarding the Franklin Trust and any actions

regarding the Prudence Trust that occurred after May 31, 2013.

2. Breach ofImplied Contract by Franklin Hazen

Count II of Plaintiffs amended complaint is a breach of implied contract claim against

Defendant Franklin Hazen. Plaintiff asserts that Franklin Hazen made certain promises to

Prudence Hazen, which Franklin Hazen should have reasonably expected would induce her to act

or forebear, and that Prudence Hazen was induced to take action or forbearance. (Am. Compl. 1

50.) Plaintiff asserts that Franklin Hazen's alteration of terms of the Franklin Trust are a breach

of his promises to Prudence Hazen, which have resulted in injury to Plaintiff as an intended

beneficiary of the promises. (Id. 11 52-53 .) As previously stated, Plaintiff alleges that Franklin

Hazen has materially altered the terms of the Franklin trust by reducing Plaintiffs share. (Id. 1

38.)

9 On its face, Plaintiffs breach of implied contract claim appears to be solely based on

Franklin Hazen's alleged alteration of terms of the Franklin Trust. Plaintiffs breach of implied

contract claim does not appear to be based on any conduct by Franklin Hazen regarding the

Prudence Trust. Thus, Plaintiffs breach of implied contract claim is not barred by the Release.

Therefore, Plaintiffs amended complaint sufficiently sets forth a claim for breach of an

implied contract against Franklin Hazen for actions regarding the Franklin Trust. Any breach of

implied contract claim based on actions regarding the Prudence Trust that occurred prior to May

31, 2013, would be barred by the Release.

3. Interference with a Contractual Relationship by Defendants

Count III of the complaint is a claim for tortious interference with a contractual

relationship against Defendants. Plaintiff asserts that Defendants have interfered with efforts by

the current and former trustees of the Prudence Trust to market for sale some or all of the

property held by the Prudence Trust, which had resulted in a breach of the Agreement. (Am.

Compl. ~1 57-58.) Plaintiff asserts that Defendants intentional conduct has jointly and severally

damaged Plaintiff as an intended beneficiary. (Id. 1~ 58-59.)

On its face, Plaintiffs claim for tortious interference with a contractual relationship

appears to be based solely on Defendants' actions regarding the Prudence Trust. Any claims

based on actions regarding the Prudence Trust that occurred prior May 31, 2013 are barred by

the Release. However, Plaintiffs complaint does not specify when Defendants' alleged

interference occurred. Therefore, any conduct by Defendants regarding the Prudence Trust that

occurred after May 31, 2013, could support a claim for tortious interference with a contractual

relationship.

10 Therefore, Plaintiffs amended complaint sufficiently sets forth a claim for tortious

interference with a contractual relationship against all Defendants for any actions regarding the

Prudence Trust that occurred after May 31, 2013.

4. Declaratory Judgment

Count VI of Plaintiffs amended complaint is a claim for declaratory judgment. Plaintiff

asserts that there is a controversy among the parties concerning their rights and obligations under

the Agreement, the trusts, and the promises, including but not limited to, whether the Agreement

is an enforceable contract. (Am. Compl. ~~ 73-74.)

Plaintiffs claim for declaratory judgment is not based on any prior action or inaction

regarding the Prudence Trust. On it face, Plaintiffs claim for declaratory judgment seeks a

judicial determination of the parties' rights and obligations under the Agreement, the trusts, and

the promises going forward. Therefore, Plaintiffs claim for declaratory judgment is not barred

by the Release. Accordingly Plaintiffs amended complaint sufficiently sets forth a claim for

declaratory judgment.

5. Declaration of Trustee Robert E. MacDonald's Authority

Count VII of Plaintiffs amended complaint is claim for judicial determination and

declaration of trustee Robert E. MacDonald's authority. MacDonald is the current trustee of

Prudence Trust. (Am. Compl. ~ 5.) Plaintiff seeks a declaration that MacDonald's failure to

market, liquidate, maintain, or improve property held by the Prudence Trust constitutes breach of

trust. (Id. ~~ 76-79.) Plaintiff request that the court issue an order compelling MacDonald and

any subsequent trustee to market and sell the property held by the Prudence Trust in order to

maintain and improve the Camp in accordance with the terms of the Agreement. (Id. ~ g.)

11 Like Plaintiffs claim for declaratory judgment, Plaintiffs claim for declaration of the

trustee's authority is prospective. Plaintiff seeks a declaration of trustee's authority going

forward and an order compelling the trustee to take certain actions in the future. Thus, Plaintiff's

claim for declaration of the trustee's authority is not based on any action or inaction regarding

the Prudence Trust that occurred prior to May 31, 2013, and not barred by the Release.

Plaintiffs amended complaint sufficiently sets forth a claim for a declaratory judgment regarding

trustee Robert E. MacDonald's authority.

Based on the foregoing, Plaintiffs amended complaint sufficiently sets forth claims for

breach of\ontract, breach of implied contract, interference with a contractual relationship,

declaratory judgment, and declaration of the trustee's authority. Therefore, Defendants' motion

to dismiss Counts I, II, III, VI, and VII of the amended complaint pursuant to Rule 12(b)( 6) for

failure to state a claim must be denied.

III. DEFENDANTS' MOTION TO DISQUALIFY

Defendants have also moved to disqualify Plaintiffs counsel, Colby Wallace, Esq.

(Defs. Mot. Dismiss 10.) Defendants assert that, if the court finds that Counts I, II, III, VI, and

VII cannot be dismissed because of any perceived ambiguity in the Release, the court will need

to consider parol evidence in order to construe the terms of the Release. (Id.) Defendants assert

that Attorney Wallace was a key negotiator of the Release and that his testimony will be

necessary to resolve any ambiguity. (Id. at 13-14.) Defenda...'1.ts assert that Maine Rule of

Professional Conduct 3.7 prohibits Attorney Wallace from continuing to represent Plaintiff in

this action, and therefore, Attorney ·wallace must be disqualified. See M.R. Prof. Conduct 3 .7(a)

("A lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary

. witness... ") .

12 Although the court finds the Defendants' motion to dismiss Counts I, II, III, VI, and VII

must be denied, the court's decision is not based on any perceived ambiguity in the Release. As

discussed above, the court finds the terms of the Release to be plain and unambiguous. The plain

language of the Release unambiguously limits its scope only to claims based on "any action

taken or not taken with regard to the [Prudence J Trust through the date hereof and actions

reflected herein, ... " (Defs. Mot. Dismiss, Ex. A) (emphasis supplied). Thus, based on its plain

and unambiguous language, the Release discharges only claims based on any action or inaction

regarding the Prudence Trust that occurred prior to its effective date, May 31, 2013. The court

finds that Counts I, II, III, VI, and VII of the amended complaint sufficiently set forth causes of

action not discharged by the Release.

Because the court finds the Release to be unambiguous, the court need not resort to parol

evidence in order to construe its terms. See 2301 Cong. Realty, LLC, 2014 ME 147, ~ 10, 106

A.3d 1131. Therefore, the court sees no reason for Attorney Wallace to be called as a witness in

this case at this time. Accordingly, Defendants' motion to disqualify Colby Wallace, Esq. is

denied.

IV. PLAINTIFF'S MOTION FOR SANCTIONS

In his opposition, Plaintiff requests that the court impose Rule 11 sanctions on

Defendants. (PL Opp'n to Defs. Mot. Dismiss 7-8.) Plaintiff argues that Defendants have

mischaracterized the allegations in the amended complaint, misconstrued the Release, and

brought their motion to dismiss in bad faith. (Id.)

Pursuant to Maine Rule of Civil Procedure 11, every motion must be signed by at least

one attorney of record. M.R. Civ. P. 1 l(a). The signature constitutes a representation that the

attorney has read the motion; that to the best of the attorney's knowledge, information, and belief

13 there are good grounds to support the motion; and that it is not interposed for delay. Id. If a

motion is signed with intent to defeat the purpose of Rule 11, the court may impose appropriate

sanctions upon the attorney, the party, or both. Id.

There is no basis for the court to conclude that Defendants filed their motion to dismiss in

violation of Rule 11. Defendants have not misconstrued the plain language of the Release.

Defendants acknowledge that the Release does not discharge claims based on conduct that

occurred after its execution on May 31, 2013. (Defs. Reply to Pl. Opp'n to Defs. Mot. Dismiss

6-7.) Further, although Defendants' characterization of the allegations in the amended complaint

differs from Plaintiffs characterization, there is no indication that Defendants have acted in bad

faith. Therefore, the court declines to impose sanctions.

V. CONCLUSION

Based on the foregoing, Defendants Mary Elizabeth Osgood and Michael Franklin

Hazen' s motion to dismiss Counts I, II, III, VI, and VII of Plaintiffs amended complaint is

Defendants Mary Elizabeth Osgood and Michael Franklin Hazen's motion to disqualify

Colby Wallace, Esq. is also denied.

Plaintiff Steven Kelsey Hazen's motion for sanctions is denied.

The Clerk is directed to enter this Order on the civil docket by reference pursuant to

Maine Rule of Civil Procedure 79(a).

Date: 8(1//~