Sanders v. Cammack

• Court: Superior Court of Maine
• Decided: September 10, 2007
• Docket: PENap-07-13
• Status: Unpublished

Opinion

STATE OF MAINE PENOBSCOT, ss

DONNA SANDERS, ) ) Plaintiff ) ) DECISION AND ORDER v. ) ) ERIC CAMMACK, MICHAEL ) CAMMACK & ALL OTHER ) OCCUPANTS, ) C.". ·'·')'1'u ,-,,-I.L 2"07 " V

Defendants PENOBSCOT COUNTY

This matter is before the Court on Appellants', Eric

Cammack, Michael Cammack, and All Other Occupants, "Notice

of Appeal on Questions of Law and Demand for Jury Trial de

novo" pursuant to M.R. Civ. P. 80D(f). On April 4, 2007,

District Court Judge Murray decided this matter in favor of

the Plaintiff-Appellee, Donna Sanders. A subsequent

decision on May 21, 2007, in response to Appellants'

"Motion to Amend Judgment and Findings of Fact," affirmed

the initial decision.

The District Court's decision was appealed, and in an

earlier order, dated July 13, 2007, this Court addressed

Appellants' challenges to the District Court findings of

fact and legal conclusions raised on appeal. That Order

was vacated by Order dated July 22, 2007. This Court now

deals with the merits of Appellants' appeal, and reviews

1 their challenges to the District Court's evidentiary

rulings and conclusions of law.

DISCUSSION

A. Appellants' Request for a Jury Trial de novo

An appeal by jury trial de novo is governed by M.R.

Civ. R. 80D(f)(2). Pursuant to Rule 80D(f)(2)(A) the party

seeking a jury trial must file a notice of appeal and

includes a written demand for a jury trial along with an

affidavit or affidavits setting Uforth specific facts

showing that there is a genuine issue of material facts as

to which there is a right to a jury trial." The Superior

Court then reviews any affidavits and the record to

determine uwhether there is a genuine issue as to material

fact as to which there is a right to trial by jury." M.R.

Civ. P 80(D)(f)(3).

Appellants filed a notice of appeal with a jury demand

and a single affidavit of Michael Cammack (the Cammack

Affidavit). While Appellants have complied with the

procedural aspects of Rule 80D(f), they have failed to

establish that a genuine issue of material fact exists as

to which there is a right to a trial by jury. A material

fact is one having the potential to affect the outcome of

the suit. See Kenny v. Department of Human Services, 1999

ME 158, ~ 3, 740 A.2d 560, 562. A genuine issue exists

2 when sufficient evidence supports a factual contest to

require a fact finder to choose between competing versions

of the truth at trial. See Prescott v. State Tax Assessor,

1998 ME 250, ~ 5, 721 A.2d 169; Burdzel v. Sobus, 2000 ME

84, ~ 6, 750 A.2d 573, 575.

A comparison of the Cammack Affidavit with Judge

Murray's initial decision suggest that Judge Murray for all

practical purposes adopted the facts put forth in the

Cammack Affidavit. The paragraphs in the Cammack Affidavit

and the findings of Judge Murray in accord are referenced

below.

Cammack Affidavit District Court Decision (April 4, 2007) ~ 2 ~ 4 ~ 3 ~ 2+3 ~ 4 ~ 2 ~ 5 pg 3 under analysis ~ 6 ~ 8 ~ 7 ~ 8 ~ 8 ~ 9 ~ 9 ~ 9 ~ 10 ~ 10

Because the District Court has already adopted the

facts suggested in the Cammack Affidavit, there appears to

be no dispute or issue as to the material facts. The

Cammack Affidavit submitted in support of Appellants'

request for a jury trial de novo, does not meet the

required standard of showing that a genuine issue of

3 material fact exists. Therefore, the appeal by a jury

trial de novo under Rule 80D(f) is DENIED.

B. Challenges to the District Court's Evidentiary Rulings

Appellants identified two erroneous evidentiary

rulings in their "Notice of Appeal on Questions of Law and

Demand for Jury Trial de novo."

1. Statements Made by Michael Cammack's Mother

The first error involved statements made by Michael

Cammack's mother. Appellants point to the District Court's

refusal to admit evidence of a conversation between Michael

and his mother in 1995, during which his mother effectively

said Michael could stay at her house, the Holden property,

where Michael also lived, for his whole life. (Hearing Tr.

at 41-44 (April 3, 2007).) This conversation was offered

by Appellants as an exception to the hearsay rule as

either, (1) a statement of family history, (2) a party

admission and/or (3) a dying declaration. All three

exceptions are inapplicable for reasons stated below.

a. Statement of Personal or Family History

Statements of personal or family history are not

excluded by the hearsay rule if such statements concern

"the declarant's own birth, adoption, marriage, divorce,

legitimacy, relationship by blood, adoption, or marriage,

ancestry, or similar fact of personal or family history."

4 M.R. Evid. 804(b). The statements attributable to

Michaels's mother do not address those facts covered by the

family history exception. Rather, the statements

demonstrate an intent to convey property. No foundation

was laid or suggested to make this hearsay exception

applicable.

b. Party Admission

The suggestion that the District Court made a legal

error by failing to admit the proffered testimony as an

admission of a party opponent is also unfounded.

Michaels's mother is not a 'party opponent' in this

litigation, making M.R. Evid. 801(d)(2) inapplicable.

c. Dying Declaration

Appellants' final argument is that the statement

attributable to Michael's mother is admissible as a dying

declaration. Statements made under the belief of impending

death may be admissible if the declarant's death was

"imminent." M.R. Evid. 804(b)(2). The foundational

testimony reveals that Michael's mother died several months

after the reported statement was made. (Hearing Tr. at 44­

45 (April 3, 2007).) No other foundation was laid and the

statements by Michael's mother were properly found not to

qualify as a dying declaration.

5 The ruling to exclude the statements attributable to

Michael Cammack's mother was consistent with the Rules of

Evidence and did not represent legal error.

2. Statements Made by Appellee, Donna Sanders

The second evidentiary error identified by

Appellants was that "the court sustained the Plaintiff's

objection to admission into evidence of a statement the

plaintiff [Donna Sanders] made to Eric Cammack revoking the

Notice to Quit." The record reflects that Michael Cammack

attempted to testify about statements made by Donna Sanders

to Michael's son, Eric. (Hearing Tr. at 59-60 (April 3,

2007).) Had Michael been present when the statements were

made, such statements may have qualified as an inconsistent

statement by the Appellee (See M.R. Evid. 801(d)(1».

Michael, however, was not present when Donna spoke to Eric.

(Hearing Tr. at 61 (April 3, 2007).) Therefore, any

testimony by Michael as to statements made to Eric would

have been about out of court statements made by someone

other than Michael and offered for the truth of the matter.

As such, Michael's testimony as to statements made by Donna

Sanders was hearsay pursuant to M.R. Evid. 801(c) and

inadmissible under M.R. Evid. 802. The evidentiary ruling

of the District Court Judge was correct.

C. Challenges to the District Court's Conclusions of Law

6 Appellants also suggest in their appeal that the

District Court made erroneous conclusions of law.

1. Appellants challenge the conclusion that there was

insufficient evidence to support a finding of an agreement

that conveyed any interest in the Holden property to

Appellants. The District Court's conclusion that absent a

written agreement, the Statute of Frauds (33 M.R.S.A. §51)

precludes Appellants' interest in the Holden property being

beyond a tenancy at will, is supported by competent

evidence on the record and the application of the law to

that evidence.

2. Appellants also challenge the conclusion that

there was insufficient evidence as a matter to law to

establish or impose a constructive trust. A constructive

trust is an equitable remedy applied when unjust enrichment

is demonstrated or when title to property has been acquired

through duress, fraud, undue influence or violation of a

fiduciary duty. Thomas v. Fales, 577 A.2d 1181 (Me. 1990).

Here, there is no dispute that Appellee acquired title to

the Holden property from the estate of her mother. The

record on appeal reveals no evidence of fraud, duress or

undue influence to the detriment of Appellants. Likewise,

even if a fiduciary duty could be found to exist with

respect to the CD's from the mother's estate that were

7 reportedly used to pay taxes and insurance, there is no

dispute that the money was used to defray insurance and tax

expense while it lasted and that money was exhausted before

this action was filed. Any pre-existing fiduciary duty

would have terminated at that time. The legal conclusions

of the District Court Judge, on the facts, that there was

insufficient evidence to establish or impose a constructive

trust is supported by the law as applied to these facts.

3. While there was argument as to the revocation of

the Notice to Quit, the record does not support a fact

basis that the Notice to Quit was revoked. The District

Court was correct that it had jurisdiction in this matter.

For all of the above reasons, the District Court was

correct that the Plaintiff was entitled to relief under the

laws governing forcible entry and detainer actions.

CONCLUSION

Having reviewed the record and arguments in this

matter the appeal is hereby DENIED.

The clerk is directed to enter a docket entry in this

matter pursuant to M.R. Civ. P. 79(a) and provide a copy of

this decision to the parties.

Dated: September 7, 2007 vsrJi~..f Kevin M. Cuddy

A TRUE COpy ATIES~~~~ CLERK 8 Date Fi led _-----=-6<-/1"-,1=--

Action DISTRICT COURT APPEAL Forcible Entry and Detainer ASSIGNED TO JUSTICE KEVIN M. CunDY

ERIC CAMMACK, MICHAEL CAMMACK, and all other occupants DONNA SANDERS ys. of Brewer, Maine Plaintiff's Attorney Defendant's Attorney Peter Baldacci, Esq Sean Ociepka, Esq POBox 1718 Disability Rights Center Bangor, ME 04402-1718 24 Stone Street Augusta, ME 04338-2007 For: Michael Cammack