Meng v. Vann

Opinion

STATE OF MAINE CUMBERLAND, ss. -

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SUPERIOR COURT

CIVIL ACTION

Docket No. RE-06-3

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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

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ANDREW KULL ESQ

PO BOX 1398

PORTLAND ME 04104-1398