MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 113 Docket: Han-16-533 Argued: May 11, 2017 Decided: June 6, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
KERRY A. JOHNSON et al.
v.
BARBARA C. CRANE
JABAR, J.
[¶1] Kerry A. Johnson and Kathleen A. Thommen appeal from a
judgment of the Superior Court (Hancock County, R. Murray, J.) dismissing
their complaint for tortious interference with an expectancy and breach of
contract against Barbara C. Crane following Crane’s motion filed pursuant to
M.R. Civ. P. 12(b)(6). Because we conclude that the issues raised by the
complaint are not yet ripe for judicial review, we vacate the court’s judgment
and remand for entry of a dismissal without prejudice.
I. BACKGROUND
[¶2] The following facts, taken in the light most favorable to the
plaintiffs, are derived from the allegations in the complaint. See Moody v. State
Liquor & Lottery Comm’n, 2004 ME 20, ¶ 7, 843 A.2d 43. 2
[¶3] Jean Quayle Johnson was the mother of Kerry A. Johnson, Kathleen
A. Thommen, Kim A. Johnson, and Kasey A. Reid (collectively, the children),1
and sister of Barbara C. Crane. Jean died testate on October 31, 2015.
Consistent with the terms of Jean’s will, Crane filed an application for informal
probate of the will and was appointed personal representative of the estate by
the Hancock County Probate Court.
[¶4] The assets of the estate include a one-half interest in JKJ Property
Group, LLC, a Maine limited liability company, and one half of the outstanding
shares of stock in The Colony Cottages, Inc., a Maine corporation (collectively,
the properties). JKJ Property Group owns commercial land and buildings in
Bar Harbor—subject to a mortgage and assignment of rents—and The Colony
Cottages owns and operates seasonal rental cottages on the property owned
by JKJ Property Group. Jean’s will devised the properties to Crane.
[¶5] On May 25, 2016, Kerry Johnson and Kathleen Thommen filed a
complaint against Crane, and Kasey Reid and Kim Johnson were later added as
interested parties. The complaint contains two counts. Count I, for tortious
interference with an expected inheritance, alleges that Crane fraudulently
induced Jean to bequeath the properties to Crane with the assurance that
1 Jean’s other child, Kyle A. Johnson, is not a party to this action. 3
Crane would either distribute equal shares of the properties to the children or
sell the properties and divide the net proceeds among the children. Count II,
for breach of contract,2 alleges that Crane agreed with Jean, as a condition of
Crane becoming Jean’s personal representative according to the will, to
distribute among the children the properties or the net proceeds from any
sale of the properties, and that Crane breached that agreement.
[¶6] The Superior Court (Hancock County, R. Murray, J.) granted Crane’s
motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), concluding that Count I
did not satisfy the rule articulated in Shine v. Dodge, 130 Me. 440, 443, 157 A.
318 (1931), that a promise to take a future action will not support an action
for fraud; Count I did not state the nature, content, or scope of the children’s
fraud allegations with particularity pursuant to M.R. Civ. P. 9(b); and the
contract alleged in Count II did not satisfy the statute of frauds. The children
timely appeal. See M.R. App. P. 2(b)(3).
II. DISCUSSION
[¶7] The children contend that the court erred in each of its
conclusions. Specifically, they assert that their complaint adequately pleads
2 Though identified in the complaint as a second claim for tortious interference with expected
inheritance, in subsequent filings, including the briefs on appeal, Count II is described as a breach of contract claim. We will therefore address Count II as a claim for breach of contract. 4
all elements of tortious interference with an expectancy, that it alleges fraud
with particularity and therefore satisfies M.R. Civ. P. 9(b), and that the statute
of frauds does not bar their breach of contract claim because Jean at least
partly performed her duties under the alleged contract. Because we conclude
that their claims are not yet ripe for judicial review, we do not address these
contentions.
[¶8] “We undertake appellate review only of cases that present
justiciable controversies, and do not review matters that present merely
theoretical disputes.” Jipson v. Liberty Mut. Fire Ins. Co, 2007 ME 10, ¶ 5,
912 A.2d 1250; see also Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999 ME
143, ¶ 12, 738 A.2d 1239 (“Courts can only decide cases before them that
involve justiciable controversies.”). We may raise issues of justiciability on
our own motion. See Dubois Livestock, Inc. v. Town of Arundel, 2014 ME 122,
¶ 9, 103 A.3d 556; Francis v. Dana-Cummings, 2007 ME 16, ¶ 20, 915 A.2d 412.
[¶9] “Ripeness is a question of law that we review de novo.” Johnson v.
City of Augusta, 2006 ME 92, ¶ 7, 902 A.2d 855. “To determine if an issue is
ripe for review, [we] focus[] on the fitness of the issue for judicial decision and
the hardship to the parties of withholding court consideration.” Me. AFL-CIO v. 5
Superintendent of Ins., 1998 ME 257, ¶ 8, 721 A.2d 633 (quotation marks
omitted).
[¶10] Without a “concrete, certain, or immediate legal problem,” a
controversy is not fit for judicial consideration. Wagner v. Sec’y of State,
663 A.2d 564, 567 (Me. 1995). For example, where a plaintiff alleged but
failed to establish an ownership interest in land underlying a disputed right of
way, and the defendants counterclaimed seeking declaratory judgment for a
prescriptive easement, we concluded that the “prescriptive easement claim
[was] not ripe for adjudication until an owner of the land in dispute [was]
declared.” Lamson v. Cote, 2001 ME 109, ¶¶ 7-9, 20, 775 A.2d 1134. In the
absence of a declaration of the owner of the land, the defendants’ claim of an
interest in that land had “lost its vitality” and did not present a justiciable
controversy. Id. ¶ 20.
[¶11] The children’s claims here similarly lack a justiciable
“controversial vitality.” Me. Civil Liberties Union v. City of S. Portland, 1999 ME
121, ¶ 8, 734 A.2d 191 (quotation marks omitted). The complaint does not
state and the record does not show that the estate has been closed. See
18-A M.R.S. § 3-1003(a) (2016) (stating that all assets of an estate must be
distributed to the entitled entities before a personal representative may close 6
an estate). Although Crane has been appointed personal representative by
informal probate, the children acknowledged during oral argument that Crane
has not taken possession of the properties or submitted a final account for the
estate. Additionally, the children acknowledged that Crane may yet assign the
properties or the proceeds from sale of the properties to the children. The
complaint merely alleges that, thus far, she has refused to inform the plaintiffs
about her intentions concerning the properties and that she intends to retain
ownership of the properties if she takes possession. Until the estate has been
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 113 Docket: Han-16-533 Argued: May 11, 2017 Decided: June 6, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
KERRY A. JOHNSON et al.
v.
BARBARA C. CRANE
JABAR, J.
[¶1] Kerry A. Johnson and Kathleen A. Thommen appeal from a
judgment of the Superior Court (Hancock County, R. Murray, J.) dismissing
their complaint for tortious interference with an expectancy and breach of
contract against Barbara C. Crane following Crane’s motion filed pursuant to
M.R. Civ. P. 12(b)(6). Because we conclude that the issues raised by the
complaint are not yet ripe for judicial review, we vacate the court’s judgment
and remand for entry of a dismissal without prejudice.
I. BACKGROUND
[¶2] The following facts, taken in the light most favorable to the
plaintiffs, are derived from the allegations in the complaint. See Moody v. State
Liquor & Lottery Comm’n, 2004 ME 20, ¶ 7, 843 A.2d 43. 2
[¶3] Jean Quayle Johnson was the mother of Kerry A. Johnson, Kathleen
A. Thommen, Kim A. Johnson, and Kasey A. Reid (collectively, the children),1
and sister of Barbara C. Crane. Jean died testate on October 31, 2015.
Consistent with the terms of Jean’s will, Crane filed an application for informal
probate of the will and was appointed personal representative of the estate by
the Hancock County Probate Court.
[¶4] The assets of the estate include a one-half interest in JKJ Property
Group, LLC, a Maine limited liability company, and one half of the outstanding
shares of stock in The Colony Cottages, Inc., a Maine corporation (collectively,
the properties). JKJ Property Group owns commercial land and buildings in
Bar Harbor—subject to a mortgage and assignment of rents—and The Colony
Cottages owns and operates seasonal rental cottages on the property owned
by JKJ Property Group. Jean’s will devised the properties to Crane.
[¶5] On May 25, 2016, Kerry Johnson and Kathleen Thommen filed a
complaint against Crane, and Kasey Reid and Kim Johnson were later added as
interested parties. The complaint contains two counts. Count I, for tortious
interference with an expected inheritance, alleges that Crane fraudulently
induced Jean to bequeath the properties to Crane with the assurance that
1 Jean’s other child, Kyle A. Johnson, is not a party to this action. 3
Crane would either distribute equal shares of the properties to the children or
sell the properties and divide the net proceeds among the children. Count II,
for breach of contract,2 alleges that Crane agreed with Jean, as a condition of
Crane becoming Jean’s personal representative according to the will, to
distribute among the children the properties or the net proceeds from any
sale of the properties, and that Crane breached that agreement.
[¶6] The Superior Court (Hancock County, R. Murray, J.) granted Crane’s
motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), concluding that Count I
did not satisfy the rule articulated in Shine v. Dodge, 130 Me. 440, 443, 157 A.
318 (1931), that a promise to take a future action will not support an action
for fraud; Count I did not state the nature, content, or scope of the children’s
fraud allegations with particularity pursuant to M.R. Civ. P. 9(b); and the
contract alleged in Count II did not satisfy the statute of frauds. The children
timely appeal. See M.R. App. P. 2(b)(3).
II. DISCUSSION
[¶7] The children contend that the court erred in each of its
conclusions. Specifically, they assert that their complaint adequately pleads
2 Though identified in the complaint as a second claim for tortious interference with expected
inheritance, in subsequent filings, including the briefs on appeal, Count II is described as a breach of contract claim. We will therefore address Count II as a claim for breach of contract. 4
all elements of tortious interference with an expectancy, that it alleges fraud
with particularity and therefore satisfies M.R. Civ. P. 9(b), and that the statute
of frauds does not bar their breach of contract claim because Jean at least
partly performed her duties under the alleged contract. Because we conclude
that their claims are not yet ripe for judicial review, we do not address these
contentions.
[¶8] “We undertake appellate review only of cases that present
justiciable controversies, and do not review matters that present merely
theoretical disputes.” Jipson v. Liberty Mut. Fire Ins. Co, 2007 ME 10, ¶ 5,
912 A.2d 1250; see also Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999 ME
143, ¶ 12, 738 A.2d 1239 (“Courts can only decide cases before them that
involve justiciable controversies.”). We may raise issues of justiciability on
our own motion. See Dubois Livestock, Inc. v. Town of Arundel, 2014 ME 122,
¶ 9, 103 A.3d 556; Francis v. Dana-Cummings, 2007 ME 16, ¶ 20, 915 A.2d 412.
[¶9] “Ripeness is a question of law that we review de novo.” Johnson v.
City of Augusta, 2006 ME 92, ¶ 7, 902 A.2d 855. “To determine if an issue is
ripe for review, [we] focus[] on the fitness of the issue for judicial decision and
the hardship to the parties of withholding court consideration.” Me. AFL-CIO v. 5
Superintendent of Ins., 1998 ME 257, ¶ 8, 721 A.2d 633 (quotation marks
omitted).
[¶10] Without a “concrete, certain, or immediate legal problem,” a
controversy is not fit for judicial consideration. Wagner v. Sec’y of State,
663 A.2d 564, 567 (Me. 1995). For example, where a plaintiff alleged but
failed to establish an ownership interest in land underlying a disputed right of
way, and the defendants counterclaimed seeking declaratory judgment for a
prescriptive easement, we concluded that the “prescriptive easement claim
[was] not ripe for adjudication until an owner of the land in dispute [was]
declared.” Lamson v. Cote, 2001 ME 109, ¶¶ 7-9, 20, 775 A.2d 1134. In the
absence of a declaration of the owner of the land, the defendants’ claim of an
interest in that land had “lost its vitality” and did not present a justiciable
controversy. Id. ¶ 20.
[¶11] The children’s claims here similarly lack a justiciable
“controversial vitality.” Me. Civil Liberties Union v. City of S. Portland, 1999 ME
121, ¶ 8, 734 A.2d 191 (quotation marks omitted). The complaint does not
state and the record does not show that the estate has been closed. See
18-A M.R.S. § 3-1003(a) (2016) (stating that all assets of an estate must be
distributed to the entitled entities before a personal representative may close 6
an estate). Although Crane has been appointed personal representative by
informal probate, the children acknowledged during oral argument that Crane
has not taken possession of the properties or submitted a final account for the
estate. Additionally, the children acknowledged that Crane may yet assign the
properties or the proceeds from sale of the properties to the children. The
complaint merely alleges that, thus far, she has refused to inform the plaintiffs
about her intentions concerning the properties and that she intends to retain
ownership of the properties if she takes possession. Until the estate has been
closed and Crane has in fact received and retained ownership of the
properties, the children’s claims for tortious interference with an expectancy
and breach of contract will lack both the critical liability and damages
components. See Morrill v. Morrill, 1998 ME 133, ¶ 7, 712 A.2d 1039 (setting
out the elements for a claim of tortious interference with an expectancy);
Deering Ice Cream Corp. v. Colombo, Inc., 598 A.2d 454, 456-57 (Me. 1991)
(stating that “breach of contract damages, as a general proposition, should be
based on the injured party’s expectation interest, defined as its interest in
having the benefit of its bargain by being put in as good a position as it would
have been in had the contract been performed” (alterations omitted)
(quotation marks omitted)). 7
[¶12] Further, while the estate continues in probate, the children retain
other avenues to seek to take possession of the properties, including
petitioning the Probate Court to “compel or approve an accounting and
distribution.” 18-A M.R.S. § 3-1002 (2016). Because any remedy imposed by
a court would, at this time, be premature, see Wagner, 663 A.2d at 567-568,
we hold that the children’s claims are not yet ripe for adjudication. We
therefore remand for entry of a dismissal without prejudice. See Homeward
Residential, Inc. v. Gregor, 2015 ME 108, ¶ 24, 122 A.3d 947.
The entry is:
Judgment dismissing the plaintiffs’ complaint vacated. Remanded for entry of dismissal without prejudice.
Barry K. Mills, Esq. (orally), Hale & Hamlin, LLC, Ellsworth, for appellants Kerry A. Johnson and Kathleen A. Thommen
William B. Devoe, Esq. and Kady S. Huff, Esq. (orally), Eaton Peabody, Bangor, for appellee Barbara C. Crane
Hancock County Superior Court CV-2016-27 FOR CLERK REFERENCE ONLY