Meng v. Vann

• Court: Superior Court of Maine
• Decided: July 14, 2006
• Docket: CUMre-06-3
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss. - . t I ,

- SUPERIOR COURT CIVIL ACTION Docket No. RE-06-3 / MAKARA MENG,

Plaintiff,

v. ORDER

MAOMUNNY VANPJ, et al.,

Defendants.

Before the court are (1) defendant Maomunny Vann's motion to dismiss the

complaint based on the Statute of Frauds; (2) plaintiff Makara Meng's motion to amend

the complaint to assert claims for unjust enrichment, quantum merit, and an accounting

under partnership law; and (3) a motion by defendant to dissolve what he characterizes

as an extrajudicial attachment.

1. Defendaint's motion to dismiss is denied. First, it appears that the primary

relief sought by plaintiff consists of monetary damages based on defendant's alleged

failure to pay amounts he had promised to plaintiff once the property was refinanced.

The Statute of Frauds does not bar such a claim.

Moreover, for purposes of a motion to dismiss, the material allegations of the

complaint must be taken as admitted. The complaint must be read in the light most

favorable to the plaintiff to determine if it sets forth elements of a cause of action or

alleges facts that would entitle plaintiff to relief pursuant to some legal theory. A claim

shall only be dismissecl when it appears beyond a doubt that a plaintiff is not entitled to

relief under any set of facts that he might prove in support of his claim. In re Wage

Pavment Litigation, 2000 ME 162 ql3,756 A.2d 217,220. To the extent that the complaint here can be read as asserting an equitable

interest in property lheld in defendant's name at 860 Broadway in South Portland, the

court concludes that the complaint alleges facts which might entitle plaintiff to such

relief. In this connection, a statute of frauds defense can be overcome if a claimant

proves the elements of promissory estoppel. E.n., Stevens v. G a ~ n e 1997 , ME 88 ¶ 13,

696 A.2d 411,416.

2. Plaintiff's motion to amend is granted under the principle that, at least at

the outset of a case, leave to amend should be freely granted. Defendant has offered no

reason why that principle should not be applied here. Defendant shall respond to the

amended complaint w i h n 10 days from the date this order is filed.

3. Defendant's motion to dissolve what he characterizes as an extrajudicial

attachment is denied. It has always been the court's understanding that a litigant can

give notice of a dispute as to property by filing a lis pendens. This is not the same as an

attachment because it only gives notice of the claim and does not establish a priority for

purposes of enforcing a judgment.

As far as the court is aware, a party may file a lis pendens either by filing a copy of

the complaint in the liegistry of Deeds or by filing a notice in the Regstry that there is

pending litigation over the property. The us of lis pendens has been frequently referred

to - without disapprolval - in Maine cases. See, e.~.,Macomber v. MacQuinn-Tweedie,

2003 ME 121qI 7,834 A.2d 131,134; Mott v. Lombard, 655 A.2d 362,363 (Me. 1995).

If plaintiff were to determine that she is not asserting an interest in the property

but is only seeking ~nonetarydamages, the court would agree with defendant that

plaintiff's proper remedy would be to move for an attachment. Under those

circumstances, the lis pendens would remain in effect until there has been a ruling on

plaintiff's motion for an attachment. The entry shall be:

Defendant's motion to dismiss is denied. Plaintiff's motion to amend is granted.

Defendant's motion to dissolve extrajudicial attachment is denied. The clerk shall

incorporate this order in the docket by reference pursuant to Rule 79(a).

DATED: July / q ,2006 J f Thomas D. Warren Justice, Superior Court : COURTS i d County )X 287 e 04 112-0287

TIMOTHY FAGDEN ESQ 75 I'EARL STFtEET SUITE 208 PORTLAND ME 04101 / P'

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