Luongo v. Luongo

• Court: Superior Court of Maine
• Decided: December 14, 2017
• Docket: CUMcv-17-37
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-2017-037

JOHN R. LUONGO, ) ) Plaintiff, ) ORDER ON PLAINTIFF'S ) MOTION IN LIMINE TO V. ) EXCLUDE EVIDENCE OF ) IRRELEVANT MICHAEL A. LUONGO, JR., ) "CONSTRUCTION ) OVERCHARGES" Defendant. )

Before the Court is Plaintiff John R. Luongo's Motion in Limine to Exclude

Evidence of Irrelevant "Construction Overcharges." Defendant Michael A. Luongo, Jr.

opposes the motion. For the following reasons, the motion is denied.

I. Background

Plaintiff and Defendant are the sons of Marie Jacobson, now deceased, and co­

trustees of the Marie A. L. Jacobson Trust u/ d August 8, 1983 ("the Trust"). The factual

background of Plaintiff's claims centers on a joint survivorship account owned by

Plaintiff and Ms. Jacobson. Shortly after Ms. Jacobson's death, Defendant allegedly

deceived Plaintiff into conveying funds from this account to Defendant and members of

Defendant's family on the premise that the account and funds were part of Ms.Jacobson's

estate or the Trust. Three counts of Plaintiff's Second Amended Complaint remain: Count

II, intentional misrepresentation; Count IV, negligent misrepresentation; and Count V,

unjust enrichment.

Defendant's two-count First Amended Counterclaim consists of claims of tortious

interference with an expectancy and conversion. The factual background of Defendant's

conversion claim involves Plaintiff's alleged failure to distribute Ms. Jacobson's personal

property according to her Will, which left one-half of her tangible personal property to

Page 1 of 3 ( (

Defendant. Defendant's tortious interference with expectancy claim centers on (1) Ms.

Jacobson's bank account, to which Ms. Jacobson allegedly added Plaintiff as a joint tenant

with rights of survivorship as a result of fraud, duress, or undue influence; and (2) $82,000

in checks made out from Ms. Jacobson's account to Plaintiff which were supposed to go,

but allegedly did not go, towards construction of Ms. Jacobson's home.

II. Discussion

In his pending motion, Plaintiff seeks to exclude from trial all evidence "relating

to certain alleged excessive charges by the Plaintiff when he oversaw the construction of

a home for his mother over eleven years ago." Plaintiff argues that Defendant's

allegations of overcharges are without any factual basis and are irrelevant to the case.

Plaintiff's first basis for exclusion, that the asserted overcharges are without factual

basis, may not be properly addressed through a motion in limine. This argument is more

appropriately the subject of a motion for summary judgment, the time for which has

passed. See Mid-America Tablewares, Inc. v. Magi Trading Co., 100 F.3d 1353, 1363 (7th Cir.

1996) (explaining that while an argument that goes to the sufficiency of the evidence

"might be a proper argument for summary judgment or for judgment as a matter of law,

it is not a proper basis for a motion to exclude evidence prior to trial"); C&E Servs., Inc. v.

Ashland, Inc., 539 F. Supp. 2d 316,323 (D.D.C. 2008) ("[A] motion in limine should not be used to resolve factual disputes or weigh evidence."); Masello v. Stanley Works, Inc., 825 F.

Supp. 2d 308,314 n.6 (D.N.H. 2011) ("[Sleeking what amounts to a pretrial resolution of

a disputed factual issue .... is not the appropriate function of a motion in limine ....").

And, contrary to Plaintiff's second argument, evidence of construction

overcharges is relevant to Defendant's tortious interference with expectancy claim. Once

again, whether this evidence is legally sufficient to support Defendant's tortious

interference with expectancy claim is not a proper subject for a motion in limine. Page 2 of 3 ( (

III. Conclusion

For the foregoing reasons, the Court denies Plaintiff's Motion in Limine.

The entry is:

Plaintiff John Luongo's Motion in Limine to Exclude Irrelevant "Construction Overcharges" is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

STATE OF MAINE Cum:Jerland, ss, Clerk's Office f11"\ MAY 1O2022 /'J:'> 7 Entered on the Docket: 65]101i1 RECEIVED

Plaintiff-John Campbell, Esq. Defendant-Roy Pierce, Esq.

Page 3 of 3 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-17-37 JOHN R. LUONGO, ) ) Plaintiff ) ) ORDER ON DEFENDANT'S v. ) MOTION TO DISMISS ) MICHAEL A. LUONGO, JR., ) ) Defendant. )

Before the Court is Defendant's motion ~0 disrniss Plaintiffs complaint pursuant to

Maine Rule of Civil Procedure 12. A hearing was held on this motion on September 6, 2017.

Following the hearing, Plaintiff filed a motion for leave to amend his complaint, which the Court

granted. For the following reasons, Defendant's motion to dismiss is granted in part and denied

in part.

On August 8, 1983, Marie A. L. Jacobson created the Marie A. L. Jacobson Trust.

Plaintiff and Defendant are the co-trustees of the trust. Plaintiff is a resident of Maine. Defendant

is a resident of Massachusetts. When the trust was created, Ms. Jacobson was a resident of

Florida. She subsequently moved to Massachusetts and, in 2008, to Maine, where she died in

2014. The trust instrument states: "This is a Massachusetts Trust made in this state and is to be

governed and construed and administered according to its laws and shall continue to be so

governed and construed and administered though administered elsewhere in the United States

except for its tax laws." (Def.'s Ans. Ex. A.)

By the terms of the trust, following the death of Ms. Jacobson, certain distributions of

trust assets are to be made, and the remainder of trust assets are to be divided into two trusts, one

for the benefit of Plaintiff and one for the benefit of Defendant. Plaintiff has brought this action 1 of 6 STATE OF MAINE Plaintiff-Frank Chowdry, Esq. Cumberland, S5, Clerk's Offioo Defendant-Deborah Mann, Esq. DEC 14 ~ RECiNED alleging that Plaintiff and Defendant are in deadlock concerning how the trust is to be

administered and how trust assets are to be divided. In Count I of his amended complaint,

Plaintiff requests that the Court order the distribution of trust assets to the two sub-trusts in

accordance with the terms of the trust. He further alleges that Defendant has failed to perform his

duties as co-trustee and demands from Defendant reimbursement for expenses incurred by

Plaintiff in administration of the trust and for expenses incurred by Plaintiff for Ms. Jacobson's

funeral.

In Count II, Plaintiff alleges that Defendant defrauded Plaintiff by misrepresenting advice

Defendant received from Charles - W. Sullivan, who was until his death counsel for Ms.

Jacobson's estate and a co-trustee of the trust. Plaintiff claims Defendant told Plaintiff, based on

Mr. Sullivan's advice, that a bank accountjointly held by Plaintiff and Ms. Jacobson was part of

Ms. Jacobson's estate. Plaintiff alleges the account was actually a non-probate asset that belongs

exclusively to Plaintiff. Based on Defendant's misrepresentations, Plaintiff made $70,000 of

distributions from the account to Defendant and his family members.

In Count Ill, Plaintiff alleges that Defendant has violated the Maine Uniform Prudent

Investor Act, 18-B M.R.S. §§ 901 et. seq., by abandoning his responsibilities as a trustee and

interfering with Plaintiff's attempts to administer the trust.

A. Personaljurisdiction

Throughout these proceedings, Defendant has repeatedly asserted that he is not subject to

personal jurisdiction in Maine. Defendant first raised this argument as an affirmative defense in

his answer. (Def.'s Ans., Aff. Defenses ~ 2.) Defendant then reasserted and elaborated on this

argument in his Motion to Dismiss. (Mot. Dismiss 3.) Although Defendant has since filed an

2 of6 amended answer and a counterclaim, this filing was made in the alternative and without waiving

the objections raised in his pending Motion to Dismiss. (Mot. Amend 1.) Finally, this argument

was reiterated at the hearing on this motion. The Court finds Defendant has preserved his

personal jurisdiction defense.

Defendant is a Massachusetts resident, and Plaintiff has alleged no facts to suggest

Defendant is subject to general jurisdiction in this state. Instead, Plaintiff contends that

Defendant "negotiated the terms of a trust re-domiciled in the State of Maine with the relocation

of the Settlor to Gray," subjecting him to personal jurisdiction for the purposes of Counts I and

III. (Opp'n to Mot. Dismiss 4.) Plaintiff further argues that Defendant defrauded Plaintiff, a

Maine resident, subjecting Defendant to personal jurisdiction in this state for the purposes of

Count II. (Id.)

Plaintiffs argument pertaining to personal jurisdiction for Counts I and III must fail.

Bases for jurisdiction over a foreign defendant in matters involving a trust are contained in the

Maine Uniform Trust Code. The Code provides: "By accepting the trusteeship of a trust having

its principal place of administration in this State or by moving the principal place of

administration to this State, the trustee submits personally to the jurisdiction of the courts of this

State regarding any matter involving the trust." 18-B M.R.S. § 202(1). The statute further

authorizes the exercise of personal jurisdiction over "the beneficiaries of a trust having its

principal place of administration in this State ...." Id. § 202(2). Plaintiff argues that as a trustee

and a beneficiary of a trust with its principal place of administration in Maine, Defendant is

subject to personal jurisdiction in Maine for claims involving the trust.

However, the principal place of administration of this trust is in Massachusetts, not

Maine. The trust was created in Massachusetts, and the instrument itself states the trust is

3 of6 administered in accordance with the laws of Massachusetts. Although Maine law recognizes that

the place of administration of a trust may be transferred, that has not occurred in this case. The

procedure for transferring the place of administration is outlined in 18-B M.R.S. § 108 and

requires that a trustee notify qualified beneficiaries of a proposed transfer and that the qualified

beneficiaries have an opportunity to object to the transfer. Id. § 108(4)-(5).

Plaintiff has not alleged that he followed the procedures described in § 108 to transfer the

administration of the trust from Massachusetts to Maine. Thus, because jurisdiction under § 202

only arises when the trust is administered in Maine, this Court cannot exercise personal

jurisdiction over Defendant under this section. Plaintiff has alleged no other basis for personal

jurisdiction over Defendant for the purposes of Counts I and III. 1 These counts, therefore, must

be dismissed for lack of personal jurisdiction.

However, the Court agrees with Plaintiff that personal jurisdiction may be exercised over

Defendant for the purposes of Count II. The Maine Long Arm Statute provides that "[d]oing or

causing a tortious act to be done, or causing the consequences of a tortious act to occur within

this State" is sufficient to subject a foreign Defendant to personal jurisdiction in Maine. 14

M.R.S. § 704-A(2)(B). Plaintiff has alleged that Defendant defrauded Plaintiff. Taking Plaintiffs

allegations as true, fraud is a tortious act, the consequences of which allegedly occurred in this

State. Thus, Defendant is subject to personal jurisdiction in Maine for the purposes of Count II.

B. Pleading fraud in the inducement

1In addition to a request to distribute trust assets, for which jurisdiction would be derived from§ 202, Count I also contains a claim for reimbursement of expenses incurred by Plaintiff in administering the trust and for funeral expenses . Although some of these claims arguably fall outside the ambit of the Trust Code, Plaintiff has alleged no other basis for personal jurisdiction over Defendant with respect to these claims. Thus, they must be dismissed. 4 of6 In addition to his jurisdictional argument, Defendant contends that Plaintiff has not

properly pied his fraud claim. Most civil actions must merely meet the notice pleading standard,

which requires only "a short and plain statement of the claim showing that the pleader is entitled

to relief." M.R. Civ. P. 8(a); Bean v. Cummings, 2008 ME 18, ,r 8, 939 A.2d 676. "The

allegations need to give the defendant 'fair notice' of the claim and the ground on which it rests,

and demonstrate that the claimant has more than a speculative right to relief." Pascoe v. Johnson

Controls, Inc., 2010 Me. Super. LEXIS 131, at *4 (Dec. 2, 2010) (citing Bell At!. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). However, all averments of fraud or circumstances

constituting fraud must be pled "with particularity." M.R. Civ. P. 9(b). Knowledge and other

conditions of a person's state of mind may be averred generally. Id.

The elements of fraud are:

(1) that [one party] made 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 party] to act in reliance upon it; and (5) [the other party] justifiably relied upon the representation as true and acted upon it to [its] damage.

Flaherty v. Muther, 2011 ME 32, ,r 45, 17 A.3d 640.

In an effort to address Defendant's objections regarding the lack of particularity with

which Plaintiff initially pled this claim, Plaintiff amended his complaint to properly allege each

of the elements of fraud; specifically, Plaintiff amended this count to state that he justifiably

relied on Defendant's misrepresentations because Defendant owes fiduciary duties to Plaintiff.

Plaintiff's claim for fraud, then, amounts to the following: (1) Defendant falsely represented that

(2) the money in the joint account was a probate asset, (3) knowing that statement was false

based on the advice of counsel for the decedent's estate, (4) for the purpose of inducing Plaintiff

to distribute the money; (5) and because Defendant owed fiduciary duties to Plaintiff, Plaintiff

5 of6 justifiably relied on Defendant's representation and dispersed funds in the amount of $70,000

that lawfully belonged exclusively to Plaintiff. The Court finds this claim has been pled with

sufficient particularity to survive a motion to dismiss.

For the foregoing reasons, Defendant's motion to dismiss is GRANTED as to Counts I

and III of Plaintiffs amended complaint and DENIED as to Count II of Plaintiffs amended

complaint. The Clerk is directed to incorporate this Order into the docket by reference pursuant

to Maine Rule of Civil Procedure 79(a).

Dated: _ f~ !f- / 7-__,_/_/ ,{___ _,__ ~ - -­ Maine Superior Court

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