1213-14. "A dismissal should only occur when it appears 'beyond doubt that a
plaintiff is entitled to no relief under any set of facts that he might prove in
support of his claim.'" McAfee v. Cole, 637 A.2d 463,465 (Me. 1994), quoting Hall
v. Bd. ofEnvtl. Protection, 498 A.2d 260,266 (Me. 1985).
The Court first addresses Polli's argument that the Third Party Complaint
should be dismissed because it does not comply with M.R. Civ. P. 7(a) because it
does not name a third-party plaintiff or defendant. Polli filed the original
Complaint for foreclosure in her capacity as personal representative of Vasile's
Estate. The Warrens answered this Complaint and asserted several
counterclaims. Thereafter, the Warrens, as Third Party Plaintiffs, filed the Third
Party Complaint at issue here against Polli in her capacity as personal
representative and in her individual capacity. Thus, the Warrens have properly
named a third-party defendant (namely, Polli individually) and the Court refuses
to grant Polli's Motion to Dismiss on the basis of M.R. Civ. P. 7(a).
Polli also argues that her Motion to Dismiss the Warrens' Counterclaims
should be granted because three of the four counterclaims are the same as three
of the counts alleged against her in the Third Party Complaint. 2 While the Court
notes that the proper procedure would have been for the Warrens to assert all
their claims against Polli in her representative capacity as counterclaims and all
their claims against Polli individually in the Third Party Complaint, the Court
2 The three counts at issue are breach of fiduciary duty (Counterclaim I/Third Party Complaint Count III); breach of the duty to inform and account to beneficiaries (Counterclaim III/Third Party Complaint Count IV); and an action for accounting of Estate assets (Counterclaim IV /Third Party Complaint Count VI). The counterclaims are solely against Polli in her capacity as personal representative. The counts in the Third Party Complaint are against Polli both individually and in her representative capacity.
5 refuses to dismiss the Warren's Counterclaims simply because certain counts are
realleged in the Third Party Complaint. Instead, the Court treats the claims as if
they had been pled properly and rules on each as set forth below.
A. Third Party Complaint Count I: Request for Declaratory Judgment and Third Party Complaint Count II: Partition
In Count I of their Third Party Complaint, the Warrens seek a declaratory
judgment setting forth the legal rights and interests of the parties relating to the
Vesper Street property. Specifically, the Warrens ask that this Court declare Mrs.
Warren to be the owner of an undivided one-half interest in the property. In
Count II of their Third Party Complaint, the Warrens ask that the Court order a
partition of the Vesper Street property.
As the Warrens concede that Polli in her capacity as personal
representative is not the proper defendant on Third Party Complaint Count I and
Count II, the Court grants Polli's Motion to Dismiss Counts I and II against her in
capacity as personal representative. Opposition to Third Party Defendant Bonnie
V. Polli's Motion to Dismiss, page 6 n. 1 ("The Warrens concede that Ms. Polli in
her individual capacity is the proper defendant on Counts I and II of the Third
Party Complaint..."). The Warrens also do not oppose Polli's argument that Mr.
Warren has no interest in the Vesper Street property and therefore does not have
standing with respect to Third Party Complaint Counts I and II. Accordingly,
the Court grants Polli's Motion to Dismiss Third Party Complaint Counts I and II
brought against her by Mr. Warren.
Polli further argues that Third Party Complaint Count I should be
dismissed because Mrs. Warren has failed to plead an actual controversy
entitling her to declaratory judgment. However, taking the facts alleged in the
6 Third Party Complaint as true, as the Court must do in the context of a motion to
dismiss, it is clear that the parties do in fact disagree as to their rights with
respect to the Vesper Street property, particularly relating to the collection and
division of any potential rent or income derived from the property. Polli's only
objection to Third Party Complaint Count II as brought by Mrs. Warren is that it
can only be brought against her in her individual capacity. As stated above, the
Court grants Polli's Motion to Dismiss Third Party Complaint Counts I and II
against her in her representative capacity.
Therefore, Polli's Motion to Dismiss Counts I and II of the Third Party
Complaint brought against her by Mr. Warren and brought against her in her
capacity as personal representative is granted. Polli's Motion to Dismiss Third
Party Complaint Counts I and II against her in her individual capacity by Mrs.
Warren is denied. In sum, Counts I and II of the Third Party Complaint as
brought by Mrs. Warren against Polli in her individual capacity are to go
forward on the merits.
B. Counterclaim I/Third Party Complaint Count III: Breach of Fiduciary Duty and Counterclaim III/Third Party Complaint Count IV: Breach of Duty to Inform and Account to Beneficiaries
In Counterclaim I and in Count III of their Third Party Complaint, the
Warrens allege that Polli misappropriated and mismanaged Estate assets in
violation of the fiduciary duty she owed to them as personal representative of the
Estate. In Counterclaim III and Third Party Complaint Count IV, the Warrens
allege that Polli had a duty as personal representative to keep them informed of
the Estate and its administration and that she breached this duty.
7 Mr. Warren has not alleged that he is a beneficiary of the Estate.
Therefore, Mr. Warren is not an interested person in the Estate and has no
standing with respect to Estate matters. Thus, Counterclaims I and III and Third
Party Complaint Counts III and IV as brought by him against Polli are dismissed.
Without citing any legal authority for the proposition, Polli argues that
Third Party Complaint Counts III and IV "are not counts that can be brought
against Ms. Polli in her individual capacity." Third Party Defendant's Motion to
Dismiss with Incorporated Memorandum of Law, page 4. To the contrary, the
Law Court has expressly held that a personal representative can be personally
liable for abuse of his fiduciary duties. See Estate of Whitlock, 615 A.2d 1173, 1178
(Me. 1992). Accordingly, Polli's Motion to Dismiss Third Party Complaint
Counts III and IV against her in her individual capacity by Mrs. Warren is
denied.
Polli's sole argument in support of her Motion to Dismiss Third Party
Complaint Counts III and IV as brought by Mrs. Warren against her in her
representative capacity is that Mrs. Warren had already asserted these breaches
in her counterclaims to Polli's foreclosure Complaint and Mrs. Warren failed to
oppose Polli's Motion to Dismiss the Counterclaims. In fact, Mrs. Warren did file
a timely opposition to Polli's Motion to Dismiss the Counterclaims. 3 As such,
and as the Court finds that Mrs. Warren has set forth elements of a cause of
action that may entitle her to relief, the Court denies Polli's Motions to Dismiss
Mrs. Warren's Counterclaims I and III and Third Party Complaint Counts III and
3 Polli's Motion to Dismiss the counterclaims was filed on July 12, 2007. The Warrens filed an Opposi tion to Counterclaim Defendant Bonnie V. Polli's Motion to Dismiss on July 31,2007.
8 IV against her in both her individual capacity and her capacity as personal
representative.
C. Counterclaim II: Conversion
In their Counterclaims against Polli, the Warrens allege that Polli
wrongfully misappropriated, converted, took and conveyed Estate assets.
As Mr. Warren has not alleged that he is a beneficiary of the Estate and is
therefore not a person interested in the Estate, Polli's Motion to Dismiss
Counterclaim II as brought by Mr. Warren is granted. Polli's Motion to Dismiss
Counterclaim II as brought by Mrs. Warren, however, is denied as Mrs. Warren
has alleged facts that, if true, may entitle her to recovery on the theory of
conversion.
D. Third Party Complaint Count V: Unjust Enrichment
In Count V of their Third Party Complaint, the Warrens claim that Polli
has been unjustly enriched to the detriment of the Warrens by her actions
allowing her daughter and others to occupy and use the Vesper Street property
without charging rent or receiving any type of income in return. The Warrens
claim that Polli's actions in this regard occurred both before and after the June 27,
2006 conveyance of the Vesper Street property to Polli individually and Mrs.
Warren as tenants in common.
As Mr. Warren has not pled that he has an interest in the Vesper Street
property or that he is a person interested in the Estate, this Court grants Polli's
Motion to Dismiss Third Party Complaint Count V against her by Mr. Warren.
Polli argues that Mrs. Warren's unjust enrichment claim against her
should be dismissed because Mrs. Warren did not explicitly allege that Polli
9 excluded her from using the property. Polli argues that, as a co-tenant, she had
the right to permit her daughter to stay at the Vesper Street property rent-free
without Mrs. Warren's consent. Polli's only obligation to Mrs. Warren would
have been to share profits received from rental income if rent had in fact been
collected. However, in light of the Law Court's statement that "[a] dismissal
should only occur when it appears 'beyond doubt that a plaintiff is entitled to no
relief under any set of facts that he might prove in support of his claim,''' McAfee,
637 A.2d at 465, quoting Hall, 498 A.2d at 266, this Court must deny Polli's
Motion to Dismiss as Mrs. Warren may be able to prove that Polli was unjustly
enriched, both individually and in her capacity as personal representative,
because Mrs. Warren may in fact have been excluded from use of the Vesper
Street property.
E. Counterclaim IV/Third Party Complaint Count VI: Action for Accounting
The Warrens also bring an action for accounting against Pollio As Mr.
Warren has not alleged that he is a person interested in the Estate nor has he
alleged that he has an interest in the Vesper Street property, he has no standing
to bring this cause of action and the Court grants Polli's Motions to Dismiss Mr.
Warren's action for accounting against her. Polli also argues that Mrs. Warren's
action for accounting should be dismissed because only the Probate Court has
jurisdiction to order an accounting of Estate assets and because Polli has no
ongoing duty to inform or account.
The Court makes no decision regarding Polli's claim that she has no
ongoing duty to inform and account. However, the Court agrees with Polli that
10 Mrs. Warren's action for an accounting of Estate assets is not properly before this
Court pursuant to 18 M.R.S.A. § 3-105. That statute states in relevant part:
§ 3-105. Proceedings affecting devolution and administration; jurisdiction of subject matter
***
The court has exclusive jurisdiction of informal and formal proceedings to determine how decedents' estates subject to the laws of this State are to be administered, expended and distributed. The court has concurrent jurisdiction of any other action or proceeding concerning a succession or to which an estate, through a personal representative, may be a party, including actions to determine title to property alleged to belong to the estate, and of any action or proceeding in which property is distributed by a personal representative or its value is sought to be subjected to rights of creditors or successors of the decedent.
Thus, by the plain language of the statute, the Probate Court alone has
jurisdiction over proceedings to determine how estates are to be administered,
expended and distributed. Black's Law Dictionary defines an "accounting" as "a
rendition of an account," which is "a detailed statement of the debits and credits
between parties to a contract or to a fiduciary relationship." Black's Law
Dictionary 7, 8 (2nd Pocket Edition 1996). Black's Law Dictionary continues, "The
term frequently refers to the report of all items of property, income, and expenses
prepared by a personal representative, trustee or guardian and given to heirs,
beneficiaries, and the probate court." Id. at 8. This definition clearly shows that
an accounting relates to expenditures and distributions and, therefore, the
Probate Court has exclusive jurisdiction and Polli's Motion to Dismiss
Counterclaim IV and Third Party Complaint Count VI against her in her
representative capacity is granted as to the accounting of Estate assets.
11 Polli's Motion to Dismiss Third Party Complaint Count VI against her in
her individual capacity, however, is denied. On June 27, 2006, the Vesper Street
property was distributed to Polli, individually, and Mrs. Warren as tenants in
common. It is solely on the basis of this tenancy in common, and not Polli's
position as personal representative of the Estate of Vasile, that the Court denies
Polli's Motion to Dismiss Third Party Complaint Count VI against her in her
individual capacity with respect to an accounting of the Vesper Street property
from June 27, 2006 onward.
F. Third Party Complaint Count VII: Defamation, Third Party Complaint Count VIII: Libel and Slander Per Se, Third Party Complaint Count IX: Intentional Infliction of Emotional Distress and Third Party Complaint Count X: Negligent Infliction of Emotional Distress
Third Party Complaint Counts VII (defamation) and VIn (libel and
slander per se) both relate to statements Polli made about Mr. and Mrs. Warren
in her May 14, 2007 letter to Benjamin Marcus. Polli argues that the Warrens
have failed to plead an actionable publication because the letter was sent only to
Attorney Marcus, counsel for the Warrens. Polli cites several cases from other
jurisdictions in which courts have held that a communication to opposing
counsel is not a publication for defamation purposes because it is the equivalent
to communicating directly to the plaintiff. Polli admits, however, that Maine has
never decided this issue. Even if Maine were to adopt this rule of law, the
Warrens have pled facts that, if proven true, may remove the May 14, 2007 letter
from this rule. 4 This Court also rejects Polli's argument that her statements in the
4 Specifically, the Warrens argue that Polli was not communicating with Attorney Marcus in the normal course and, thus, the fact that Attorney Marcus represented the Warrens may be of no effect.
12 letter were solely expressing her subjective view and therefore are not actionable.
Accordingly, Polli's Motion to Dismiss Third Party Complaint Counts VII and
VIII is denied.
Counts IX and X of the Third Party Complaint are claims for emotional
distress, both intentionally and negligently inflicted, stemming from Polli's
alleged mismanagement of the Estate, her misuse of her position as personal
representative and her allegedly defamatory statements. While offering no
opinion as to the merits of these arguments, the Court finds that such claims
have been sufficiently pled to survive Polli's Motion to Dismiss. Therefore,
Polli's Motion to Dismiss Third Party Complaint Counts IX and X is denied.
Therefore, the entry is:
Third Party Plaintiffs Frank and Deborah Warren's Motion to Amend their Third Party Complaint is GRANTED.
Third Party Defendant Bonnie Polli's Motion to Dismiss the Third Party Complaint pursuant to M.R. Civ. P. 7(a) is DENIED.
Third Party Defendant Bonnie Polli's Motion to Dismiss the Counterclaims as redundant is DENIED.
Third Party Defendant Bonnie Polli's Motion to Dismiss Counts I (declaratory judgment) and II (partition) of the Third Party Complaint is GRANTED IN PART and DENIED IN PART. Third Party Complaint Counts I and II brought by Frank Warren and brought against Polli in her individual capacity are dismissed. Third Party Complaint Counts I and II brought by Deborah Warren against Polli individually are to proceed on the merits.
Counterclaim Defendant/Third Party Defendant Bonnie Polli's Motions to Dismiss Counterclaim I/Third Party Complaint Count III (breach of fiduciary duty) and Counterclaim III/Third Party Complaint Count IV (breach of duty to inform and account) is GRANTED IN PART and DENIED IN PART. Counterclaim I/Third Party Complaint Count III and Counterclaim III/Third Party Complaint Count IV as brought by Frank Warren are dismissed. Counterclaim I/Third Party Complaint Count III and
13 Counterclaim III/Third Party Complaint Count IV as brought by Deborah Warren are to proceed on the merits.
Counterclaim Defendant Bonnie Polli's Motion to Dismiss Counterclaim II (conversion) is GRANTED IN PART and DENIED IN PART. Counterclaim II as brought by Frank Warren is dismissed. Counterclaim II as brought by Deborah Warren is to proceed on the merits.
Third Party Defendant Bonnie Polli's Motion to Dismiss Count V (unjust enrichment) of the Third Party Complaint is GRANTED IN PART and DENIED IN PART. Third Party Complaint Count V as brought by Frank Warren is dismissed. Third Party Complaint Count Vas brought by Deborah Warren is to proceed on the merits.
Counterclaim Defendant/Third Party Defendant Bonnie Polli's Motions to Dismiss Counterclaim IV/Third Party Complaint Count VI (action for accounting) is GRANTED IN PART and DENIED IN PART. Counterclaim IV/Third Party Complaint Count VI as brought by Frank Warren is dismissed. Counterclaim IV as brought by Deborah Warren is dismissed. Third Party Complaint Count VI as brought by Deborah Warren is to proceed on the merits.
Third Party Defendant Bonnie Polli's Motion to Dismiss Counts VII (defamation), VIII (libel and slander per se), IX (intentional infliction of emotional distress) and X (negligent infliction of emotional distress) of the Third Party Complaint is DENIED.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this day of -----'--M-'---'-~~_ _ _'L. . ._I, 2007.
R6bertE:CfOWieY Justice, Superior Court
14 BONNIE V POLLI PR - PLAINTIFF SUPERIOR COURT 7 WOODVIEW DRI IE CUMBERLAND, 55. SCARBORUUGH ME 04070 Docket No PORSC-RE-2007-00179 Attorney for: BONNIE V POLL I PR
JENSEN BAIRD ET AL DOCKET RECORD 11 MAIN STREET SUITE 4 KENNEBUNK ME 04043
Attorney for: BONNIE V POLLI PR BRENDAN RIELLY - RETAINED 07/13/2007 JENSEN BAIRD ET AL 10 FREE STREET PO BOX 4510 PORTLAND ME 04112
ESTATE OF PAULINE M VASILE - PLAINTIFF
Attorney for: ESTATE OF PAULINE M VASILE BRENDAN RIELLY - RETAINED 07/13/2007 JENSEN BAIRD ET AL 10 FREE STREET PO BOX 4510 PORTLAND ME 04112
V5 FRANK 0 WARREN III - DEFENDANT 49 BUTTONWOOD ROAD BEDFORD NH 03110 Attorney for: FRANK 0 WARREN III BRIAN D WILLING - RETAINED 06/28/2007 DRUMMOND WOODSUM & MACMAHON 245 COMMERCIAL ST. PO BOX 9781 PORTLAND ME 04104-5081
DEBORAH V WARREN - DEFENDANT 49 BUTTONWOOD ROAD BEDFORD NH 03110 Attorney for: DEBORAH V WARREN BRIAN D WILLING - RETAINED 06/28/2007 DRUMMOND WOODSUM & MACMAHON 245 COMMERCIAL ST. PO BOX 9781 PORTLAND ME 04104-5081
CITIZENS BANK OF NEW HAMPSHIRE - PARTIES IN INTEREST
Attorney for: CITIZENS BANK OF NEW HAMPSHIRE JAMES AUDIFFRED - RETAINED 08/13/2007 LAW OFFICE OF JAMES L AUDIFFRED 374 MAIN STREET PO BOX 1005 SACO ME 04072 page 1 of 6 Printed on: 11/21/2007 PORSC-RE-2007-00179 DOCKET RECORD
ESTATE OF PAULINE M VASILE - THIRD PARTY DEFENDANT
Attorney for: ESTATE OF PAULINE M VASILE ELIZABETH STOUDER - RETAINED 08/24/2007 RICHARDSON WHITMAN LARGE & BADGER 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545
BONNIE V POLLI AND INDIV - PERSONAL REPRESENTATIVE
Attorney for: BONNIE V POLLI AND INDIV ELIZABETH STOUDER - RETAINED 08/24/2007 RICHARDSON WHITMAN LARGE & BADGER 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545
Filing Document: COMPLAINT Minor Case Type: FORECLOSURE Filing Date: 04/11/2007
Docket Events: 07/03/2007 TRANSFER - REMOVAL TO SUPERIOR COURT EDI ON 07/03/2007 @ 18:01 TRANSFERRED CASE: SENDING COURT CASEID PORDCRE200700106
FILING DOCUMENT - COMPLAINT FILED ON 04/11/2007
ATTORNEY - RETAINED ENTERED ON 04/11/2007
CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 04/12/2007 RICHARD TEMPLETON , ASSOCIATE CLERK Plaintiff's Attorney: DAVID J JONES
Party(s): CITIZENS BANK OF NEW HAMPSHIRE SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 05/10/2007 ANTOINETTE DEMARCO, ADMINISTRATIVE CLERK Plaintiff's Attorney: DAVID J JONES
Party(s): CITIZENS BANK OF NEW HAMPSHIRE SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/03/2007
Party(s): BONNIE V POLLI PR SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON 05/10/2007 ANTOINETTE DEMARCO, ADMINISTRATIVE CLERK plaintiff's Attorney: DAVID J JONES
Party(s): BONNIE V POLL I PR MOTION - AFFID & REQUEST DEFAULT/JUDG FILED ON 05/30/2007 RICHARD TEMPLETON, ASSOCIATE CLERK Plaintiff's Attorney: DAVID J JONES
Page 2 of 6 Printed on: 11/21/2007 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION ;: 52~OCKETNO.~-07-ry> I.. J'.''; I
BONNIE V. POLLI, in her capacity as the personal representative of the Estate of Pauline M. Vasile, Plaintiff and Counterclaim Defendant
FRANK O. WARREN III and DEBORAHV. WARREN, ORDER ON ALL Defendants, Counterclaim Plaintiffs PENDING MOTIONS and Third-Party Plaintiffs
BONNIE V. POLLI, individually and in her capacity as the personal representative of the Estate of Pauline M. Vasile, Third-Party Defendant
Before the Court is Plaintiff Bonnie Polli's Motion for Summary Judgment
on her foreclosure Complaint; Third-Party Plaintiff Deborah Warren's Cross
Motion for Summary Judgment on Counts I and II of her Third-Party Complaint;
Third-Party Defendant Bonnie Polli's Motion to Bifurcate Third-Party Complaint
Counts I and II; and Plaintiff Bonnie Polli's Motion to Strike.
PROCEDURAL BACKGROUND Plaintiff Bonnie Polli ("polli"), in her capacity as the personal
representative of the Estate of Pauline M. Vasile ("Vasile"), filed a Complaint for
foreclosure and sale of property located at Oceanwood Drive, Scarborough,
Maine ("Oceanwood Drive property") against mortgagors Frank Warren III
("Mr. Warren") and Deborah Warren ("Mrs. Warren") (collectively, the "Warrens") in Portland District Court on April 11, 2007. 1 The Warrens answered
the Complaint on June 28,2007, the same date on which they removed this action
from the District Court to the Superior Court. As of November 1, 2007, Polli
claims that the amount due on the note relating to the Oceanwood Drive
property is $346,568.23. The Warrens have asserted four counterclaims against
Polli in her capacity as personal representative: breach of fiduciary duty;
conversion; breach of the duty to inform and account to beneficiaries; and an
action for accounting. On July 27, 2007, the Warrens filed a Third-Party
Complaint against Polli that included, inter alia, a Count for declaratory
judgment and a Count for partition, both relating to property located on Vesper
Street in Scarborough, Maine that is owned by Polli (individually) and Mrs.
FACTS
Polli and Mrs. Warren are sisters and the daughters of Vasile, who died on
March 5, 2005. In her Will, Vasile named Polli as her personal representative.
Pursuant to the terms of Vasile's Will, Polli, in her individual capacity, and Mrs.
Warren received real property located on Vesper Street in Scarborough, Maine as
tenants in common. The property was conveyed from the Estate to Polli and
Mrs. Warren in a deed dated June 27, 2006, which was recorded in the
Cumberland County Registry of Deeds. To date, Polli and Mrs. Warren have
been unable to reach an agreement concerning the sale of the Vesper Street
property.
1Citizens Bank of New Hampshire was also named as a party-in-interest in this Complaint.
2 In 1987, Mr. Warren and Mark Polli executed a promissory note to Vasile
in the amount of $164,400.00. This promissory note was secured by a mortgage
on real property owned by the Warrens located on Oceanwood Drive in
Scarborough, Maine (the "Oceanwood Drive property"). In 1989, Mrs. Warren
was substituted for Mark Polli on the note and mortgage. Polli alleges that the
Warrens have failed to make any payments pursuant to the note since May 1995
and brought a foreclosure action in April 2007 in her capacity as personal
representative of Vasile's Estate.
The Warrens assert that they owe no debt relating to the note because
Vasile intended to discharge the note. Moreover, the Warrens argue, they are
entitled to offset any amount that they may be found to owe on the note with
Mrs. Warren's interest in the Estate. For these, and other, reasons, the Warrens
argue that judgment of foreclosure is not appropriate.
I. MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is proper where there exist no genuine issues of
material fact such that the moving party is entitled to judgment as a matter of
law. M.R. Civ. P. 56(c); Arrow Fastener Co., Inc. v. Wrabacon, Inc., 2007 ME 34,
15, 917 A.2d 123, 126. "A court may properly enter judgment in a case when the
parties are not in dispute over the [material] facts, but differ only as to the legal
conclusion to be drawn from these facts." Tondreau v. Shenvin-Williams Co., 638
A.2d 728, 730 (Me. 1994). A genuine issue of material fact exists "when the
evidence requires a fact-finder to choose between competing versions of the
truth." Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93 ']I 9,
878 A.2d 504, 507. An issue of fact is material if it "could potentially affect the
3 outcome of the suit." Id. An issue is genuine if "there is sufficient evidence to
require a fact-finder to choose between competing versions of the truth at trial."
Lever v. Acadia Hasp. Corp., 2004 ME 35,
exist, they must be resolved in favor of the non-moving party. Beaulieu v. The
Aube Corp., 2002 ME 79,
A. POLLI'S FORECLOSURE COUNT
Polli, in her capacity as personal representative of the Vasile Estate, seeks
summary judgment on her Complaint to foreclose on the Oceanwood Drive
property on the basis that the Warrens have failed to make payments pursuant to
the promissory note. The Warrens make three primary arguments in opposition
to Polli's Motion: first, that no debt is owed to the Estate because Vasile intended
to forgive the note; second, that Polli's Motion for Summary Judgment must be
denied because it is entangled with various other claims between the parties;
and, finally, that even if the Warrens do owe on the note, Mrs. Warren's interest
in the Estate must be used to set off the debt pursuant to 18-A M.R.S.A. § 3-903
(2007). The Court will address each of these arguments in turn.
The Court rejects the Warrens' argument that they owe no amount on the
note because Vasile "had intended to gift the [Oceanwood Drive property] to the
Warrens." Defendants' Opposition to Motion for Summary Judgment, page 6.
There is no dispute that Vasile did not devise the Oceanwood Drive property to
the Warrens via her Will. Thus, no testamentary gift was made and this Court
must turn to the question of whether an inter vivos gift was made. It is axiomatic
that for an inter vivos gift to be valid, three requirements must be met: donative
intent, delivery and acceptance. Restatement (Second) of Property § 31.1 (1992);
Brackett v. Larrivee, 562 A.2d 138, 139 (Me. 1989). While there is some question
4 about whether Vasile had the requisite donative intent, the Court need not
attempt to answer this question as it is clear on the undisputed facts that no
delivery was ever accomplished. Indeed, the Warrens do not allege and the
evidence does not show that Vasile ever discharged or released the note or the
mortgage deed filed in the Cumberland County Registry of Deeds. Nor was a
gift tax form ever filed relating to the Oceanwood Drive property. While it is
true that Vasile never attempted to collect on the note for approximately ten
years, she also never took steps to forgive the note or release the mortgage,
which she could have done either while alive or via her Will. For all of these
reasons, this Court rejects the Warrens' argument that they have no obligation
under the note because Vasile intended to gift the Oceanwood Drive property to
them.
The Court also rejects the Warrens' argument that Polli's Motion for
Summary Judgment on the foreclosure count should be denied because this
count is entangled with counterclaims that have not yet been resolved. The
Warrens rely exclusively on Wells Fargo Home Mortgage, Inc. v. Spaulding, 2007
ME 116, 930 A.2d 1025, in support of this argument. In Wells Fargo, the bank
moved for summary judgment to foreclose on the defendants' house; the
defendants opposed this motion on the basis that the parties had executed a loan
modification agreement that eliminated the bank's right to foreclose. Wells Fargo,
2007 NIB 116, 930 A.2d 1025. In reversing the trial court's grant of the bank's
motion for summary judgment, the Law Court held that "the factual and legal
entanglement of the adjudicated and unadjudicated claims in the complaint and
the counterclaim render the certification problematic in this case. [The bank's]
complaint requesting a judgment of foreclosure is directly challenged by the
5 [defendants'] nine-count counterclaim." Id. <[ 15, 930 A.2d at 1029. The Warrens
have asserted various counterclaims against Polli in the instant case, but none is
a counterclaim akin to that at issue in Wells Fargo because success on anyone
would not be sufficient to defeat foreclosure. As such, the Court rejects the
Warrens' entanglement argument.
The Warrens' final argument is that any debt they owe on the note must
be offset by Mrs. Warren's interest in the Estate as required by 18-A M.R.S.A. § 3
903, which states in toto:
The amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt. Such debt constitutes a lien on the successor's interest in favor of the estate, having priority over any attachment or transfer of the interest by the successor.
The Court disagrees with the Warrens' interpretation of § 3-903 as
granting them a right to demand an offset. Indeed, § 3-903 states only that an
estate has a right of retainer; it says nothing about the right of the indebted
successor to demand that an estate exercise this right of retainer. As such, the
Court declines to deny Polli's Motion for Summary Judgment on the foreclosure
Complaint on the basis of § 3-903.
While the Court declines to deny summary judgment and therefore enters
judgment for Polli on her Complaint for foreclosure, it does not issue an order
pursuant to M.R. Civ. P. 54(b) to certify this judgment as final. Maine Rule of
Civil Procedure 54(b)(1) provides:
[W]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is
6 no just reason for delay and upon an express direction for the entry of judgment.
There is just reason for delay in the instant case. Indeed, there have been
various allegations of bad faith and improper actions by Polli, whose actions as
personal representative are charged to the Estate. While these alleged actions are
not sufficient to deny summary judgment based on an entanglement argument
(see reasoning supra), they are sufficient to refuse to certify the foreclosure
judgment as final.
B. MRS. WARREN'S COUNTS I AND II OF THIRD-PARTY COMPLAINT
Mrs. Warren moves for summary judgment on Counts I (declaratory
judgment) and II (partition and sale) of her Third-Party Complaint asserted
against Polli individually. These Counts relate to the Vesper Street property,
which was conveyed from the Estate to Mrs. Warren and Polli individually as
tenants in common in June 2006. Both parties agree that physical partition of the
property is impossible. Polli argues that factual disputes remain as to Mrs.
Warren's share of any proceeds in light of the fact that Polli asserts that she alone
has paid certain costs, expenses and taxes relating to the Vesper Street property.
However, Polli does not argue that partition is inappropriate. To the contrary,
Polli asks the Court to order partition by buy-out or auction in particular.
"Statutory partition may be carried out only by physical division of the
jointly owned real estate." Libby v. Lorrain, 430 A.2d 37, 39 (Me. 1981); 14
M.R.S.A. §§ 6501 et seq. (2007). Thus, this Court must invoke its equity
jurisdiction in order to require a partition by sale of the Vesper Street property.
The Superior Court's equity power is "broad and flexible." Withee v. Garnett,
1998 ME 30, «JI 4, 705 A.2d 1119, 1120. By statute, the Superior Court can grant
7 equitable relief "in cases ...between...part owners ...of []real and personal
property." 14 M.R.S.A. § 6051(7) (2007). This statutory grant of equity power
also extends to "all other cases where there is not a plain, adequate and complete
remedy at law." 14 M.R.S.A. § 6051(13). The Libby court described equitable
partition: "[it] is more flexible in its procedure than 'partition by petition' and is
not limited to a physical division and may be carried out by sale, as statutory
partition may not be, and is free of any special and restrictive procedures laid
down by statute." Libby, 430 A.2d at 39. In sum, the Libby court held, "[t]he
equity court will order sale and division of the proceeds where physical division
is impractical or would materially injure the rights of the parties." Id.
The Law Court in Libby also stated that the trial court had various options
as to how the partition by sale should be conducted. Id. at 39-40. One option is
to permit one part owner to retain the property in return for paying the other co
owner the value of his share (termed by the Libby court as a "partition by buy
out"). Id. A second option, and the option employed by the trial court and
affirmed by the Law Court in Libby, was to order the sale of the real estate and
distribution of the net proceeds to the joint owners. Id. at 38, 40.
In light of the Court's equity powers and the express desire of both Polli
and Mrs. Warren to sever their co-ownership of the Vesper Street property
immediately, the Court grants Mrs. Warren's Cross Motion for Summary
Judgment on Counts I and II of the Third-Party Complaint. The Court orders
that the parties confer and submit a plan to the Court detailing how the property
should be partitioned within seven (7) days of the date of this Order. If the
parties fail to agree on a plan, the Court orders that each party submit its own
proposal for how to partition the property within fourteen (14) days of the date
8 of this Order. If the Court does not accept either of these plans, a receiver will be
appointed to conduct the partition of the Vesper Street property. Any claims by
either party for unequal distribution can be made against the proceeds of the
disposition of the property.
II. MOTION TO BIFURCATE
Subsequent to Mrs. Warren filing her Cross Motion for Summary
Judgment on Counts I and II of the Third-Party Complaint, Polli filed a Motion to
Bifurcate Counts I and II and asked the Court to schedule a bench trial relating to
the partition of the Vesper Street property. As the Court grants Mrs. Warren's
Cross Motion for Summary Judgment, Polli's Motion to Bifurcate is moot. The
parties are to proceed with respect to the Vesper Street property as set forth supra
in Section I.B of this Order. To the extent this Motion to Bifurcate meant to
address claims for expenses paid relating to the property, such claims can be
asserted against the proceeds from the sale of the property as discussed in
section I.B supra.
III. MOTION TO STRIKE
On March 17, 2008, Polli moved to strike paragraphs 26 through 35 of the
Warrens' Opposing Statement of Material Facts (filed in opposition to Polli's
Motion for Summary Judgment on the foreclosure count) on the basis that the
evidence contained in those paragraphs is prohibited under Maine Rule of
Evidence 408, which governs compromises and offers to compromise. Motions
to strike an assertion contained in a statement of material facts are expressly
prohibited by M.R. Civ. P. 56(i) (entitled "Motions to Strike Not Permitted").
Rule 56(i) lays out the proper procedure for a party that contends that a
particular assertion should not be considered by the court: "the party may set
9 forth an objection in either its opposing statement or in its reply statement and
shall include a brief statement of the reason(s) for the objection and any
supporting authority or record citations." Polli's Motion to Strike is not
permitted under M.R. Civ. P. 56 and is therefore denied.
The Warrens have also filed a Motion to Strike Polli's Supplemental
Response to paragraphs 26 through 35 arguing that Polli failed to properly
controvert the facts in these paragraphs. For the reasons stated above, a Motion
to Strike is improper in the context of this summary judgment proceeding. The
Warrens' Motion to Strike is therefore denied. The Court also notes that the
statements of material fact underlying both of these Motions to Strike
(concerning Vasile's alleged desire to forgive the note on the Oceanwood Drive
property) have no bearing on the Court's decision with respect to this argument
for the reasons set forth in section LA supra, further supporting the decision to
deny both Motions to Strike.
Plaintiff Bonnie Polli's Motion for Summary Judgment on her foreclosure Complaint is GRANTED. As there is just reason for delay, the foreclosure judgment is not certified as final.
Third-Party Plaintiff Deborah Warren's Cross Motion for Summary Judgment on Counts I and II of the Third-Party Complaint against Third-Party Defendant Bonnie Polli is GRANTED. The parties are to confer and submit a plan to the Court detailing how the Vesper Street property should be partitioned within seven (7) days of the date of this Order. If the parties fail to agree on a plan, each party is to submit its own proposal relating to the partition of the property within fourteen (14) days of the date of this Order. If the Court does not accept either of these plans, a receiver will be appointed to conduct the partition of the Vesper Street property.
Third-Party Defendant Bonnie Polli's Motion to Bifurcate Third Party Complaint Counts I and II is DENIED.
10 Plaintiff Bonnie Polli's Motion to Strike is DENIED.
Defendants Frank Warren and Deborah Warren's Motion to Strike is DENIED.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this /). It1 day of 1ft ' 2008.
~
11 BONNIE V POLLI PR - PLAINTIFF SUPERIOR COURT 7 WOODVIEW DRIVE CUMBERLAND, 55. SCARBOROUGH ME 04070 Docket No PORSC-RE-2007-00179 Attorney for: BONNIE V POLLI PR
JENSEN BAIRD ET AI, DOCKET RECORD 11 MAIN STRBET SUITE 4 KENNEBUNK MB 04043
Attorney fOl:: BONNIE V POLLI PR BRENDAN RIEI,LY - RETAINED 07/13/2007 JENSEN BAIRD ET AI, 10 FREE STREET PO BOX 4510 PORTLAND ME 04112
ESTATE OF PJ\.ULINE M VASILE - PLAINTIFF
Attorney for: ESTATE OF PAULINE M VASILE BRENDAN RIEI"LY - RETAINED 07/13/2007 JENSEN BAIRD ET AI, 10 FREE STREET PO BOX 4510 PORTLAND ME 04112
V5 FRANK 0 WARREN I II - DEFENDANT 49 BUTTONWOOD ROAD BEDFORD NH 03110 Attorney for: FRANK 0 WARREN III BRIAN D WILLING - RETAINED DRUMMOND WOODSUM & MACMAHON 245 COMMERCIAL ST. PO BOX 9781 PORTLAND ME 04104-5081
DEBORAH V WARREN - DEFENDANT 49 BUTTONWOOD ROAD BEDFORD NH 03110 Attorney fo:(": DEBORAH V WARREN BRIAN D WILI"ING - RETAINED DRUMMOND WOJDSUM & MACMAHON 245 COMMERCIAL ST. PO BOX 9781 PORTLAND ME 04104-5081
Attorney for: CITIZENS BANK OF NEW HAMPSHIRE JAMES AUDIFFRED - RETAINED 08/13/2007 LAW OFFICE OF JAMES I, AUDIFFRED 374 MAIN STREET PO BOX 1005 SACO ME 04072 page 1 of 13 Printed on: 05/14/2008 PORSC-RE-2007-00179 DOCKET RECORD
Attorney for: ESTATE OF PAULINE M VASILE ELIZABETH STOUDER - RETAINED 08/24/2007 RICHARDSON 'flHITMAN LARGE & BADGER 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545
BONNIE V POLL I AND INDIV - PERSONAL REPRESENTATIVE
Attorney for: BONNIE V POLLI AND INDIV JAMES MAIN - RETAINED HOY & MAIN 76 DEPOT ROAD PO BOX 1569 GRAY ME 04039
Attorney for: BONNIE V POLLI AND INDIV ELIZABETH STOUDER - WITHDRAWN 02/05/2008 RICHARDSON WHITMAN LARGE & BADGER 465 CONGRESS STREET PO BOX 9545 PORTLAND ME: 04112-9545
Filing Document: COMPLAINT Minor Case Type: FORECLOSURE Filing Date: 04/11/2007
Docket Events: 07/03/2007 TRANSFER - REMOVAL TO SUPERIOR COURT EDI ON 07/03/2007 @ 18:01 TRANSFERRED CASE: SENDING COURT CASEID PORDCRE200700106
CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 04/12/2007 RICHARD TEMPLETON, ASSOCIATE CLERK Plaintiff's Attorney: DAVID J JONES
Party(s): CITIZENS BANK OF NEW HAMPSHIRE SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 05/10/2007 ANTOINETTE DEMARCO, ADMINISTRATIVE CLERK Plaintiff's Attorney: DAVID J JONES
Party(s): CITIZENS BANK OF NEW HAMPSHIRE SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 05/03/2007
Party(s): BONNIE V POLLI PR SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON 05/10/2007 ANTOINETTE DEMARCO, ADMINISTRATIVE CLERK Page 2 of 13 Printed on: 05/14/2008