White v. White

• Court: Superior Court of Maine
• Decided: May 10, 2018
• Docket: CUMcv-18-69
• Status: Unpublished

Opinion

STATE OF MAINE SUPERJOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-18-69 / Pamela E. White as Persom,J , Representative of the Estate of Joel D. White, ORDER ON PENDING MOTIONS Plaintiff ST/s"T[-: r · V. Cumbe:-/an ,: ... Cheryl A. White, MAY 10 2Q;B q;3 2. Q,,i.-. Defendant RECEIVED Before the court are plaintiff Pamela E. White's ex parte motion for approval of attachment

and trustee process and defendant Cheryl A. White's motion to dismiss plaintiff's demand for

trustee process and motion to dismiss plaintiff's complaint. For the following reasons, plaintiff's

motion is granted and defendant's motions are denied.

Background

On February 15, 2018, plaintiff filed a complaint alleging one count of conversion and an

ex parte motion seeking attachment and trustee process. In support of her motion, plaintiff filed

an affidavit of Pamela Whfte along with numerous exhibits. On February 16, 2018, defendant

filed a response to plaintiff's ex parte motion . On the same day, plaintiff filed a reply to

defendant's opposition. On March 5, 2018, defendant filed an answer, a motion to dismiss

plaintiff's complaint, and a motion to dismiss plaintiff's motion for trustee process. In support of

her motions,_defendant also filed an affidavit of Cheryl White, an affidavit of Guy Converse, a

bank statement, an affidavit of a bank teller, and two letters from attorneys. A revised affidavit of

Cheryl White was filed on March 7, 2018. On March 26, 2018, plaintiff filed an opposition to

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both motions. In support ofher oppositions, plaintiff filed an affidavit of Marian Caouette Ryerson

and a deposition of Guy ·Converse.

I. Plaintiff's Motion for Attachment and Trustee Process

a. Standard of Review

A party seeking eith,er attachment or trustee process must show "that it is more likely than

not that the plaintiff will recover judgement, including interest and costs, in an amount equal to or

greater than the aggregate sum" of the attachment or trustee process. M.R. Civ. P. 4A(c); M.R.

Civ. P. 4B(c); Libby O'Brien Kingsley & Champion, LLC v Blanchard, 2015 ME 101, ~ 5, 121

A .3d 109. Accordingly, the movant must show a greater than 50% chance of successfully

recovering a judgment. Richardson v. McConologue, 672 A .2d 599, 600 (Me. 1996). "Motions

for attachment must be supported by affidavit evidence." Lindner v. Barry, 2003 ME 91, ~ 5, 828

A.2d 788 (citing Wilson ''.' . DelPapa, 634 A.2d 1252, 1254 (Me. 1993)). "In making [its]

determination, the court assesses the merits of the complaint and the weight and credibility of the

supporting affidavits." Porrazzo v. Karofsky, 1998 ME 182, ~ 7, 714 A.2d 826. The court may

enter an ex parte order for attachment only where "there is a clear danger that the defendant if

notified in advance ... will remove [the property] from the state or will conceal it or will otherwise

make it unavailable, ... or there is immediate danger that the defendant will damage or destroy

the property." M.R. Civ. P. 4A(g); see also M.R. Civ . P. 4B(i).

b. Analysis

i. Whether Plaintiff is More Likely Than Not to Recover Judgment

Plaintiff seeks an ex parte order of attachment and trustee process in the amount of

$199,300. (P. White Aff.1/ 29.) In her complaint, plaintiff alleges one count of conversion. To

prevail on her conversion claim plaintiff must establish: (1) that she has a property interest in the

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property; (2) that she had a right to possession of the property at the time of the alleged conversion;

and (3) that she made a demand for the return of the property that was denied by the defendant.

Estate of Barron v. Shapiro & Morley, LLC, 2017 ME 51,, 14, 157 A.3d 769.

Plaintiff supports her motion with an affidavit and attached exhibits that allege the

following facts. Plaintiff is 'the personal representative of the estate of her father, Joel D. White,

Sr. (P. White Aff. ,, 8, 12.) Prior to his death, Mr. White provided floor plan financing to Good

Guys Cars & Trucks (GGC&T). (P. White Aff., 13.) Funds paid to GGC&T and repaid to Mr.

White were withdrawn and deposited into a bank account issued solely in Mr. White's name. (P.

White Aff. ,, 15-17; Pl.'s Ex. B.) At the time of his death, GGC&T owed Mr. White $136,300 in

principal for the financing. (P. White Aff. ,, 15, 26; PJ's Ex.'s A, B.) GGC&T owed at least

$59,600 in origination fees as of June 2017. (P. White Aff., 22; Pl.'s Ex. E.)

After Mr. White's death, defendant received $127,637.78 from GGC&T in return for floor

plan financing provided to .GGC&T by the decedent. (P. White Aff. ,, 23, 26.) Defendant has

directed GGC&T to make all payments to her. (P. White Aff. ~ 21.) Defendant admits that the

amounts owed pursuant to the financing arrangement are assets of the estate. (P. White Aff., 18;

PI .'s Ex. C.) After Mr. White's death, defendant also spent $15,140.52 from a bank account owned

solely by the decedent. (P. White Aff. ,, 20, 26.) Plaintiff has made a demand for the return of

money owed pursuant to the financing arrangement and which was withdrawn from the decedent's

bank account. (P. White Aff., 27 .) The demand has been ignored. (P. White Aff., 27 .)

In her opposition to plaintiff's motion for attachment, defendant argues that the floor plan

financing is not an estate asset. To support her argument, defendant has submitted an affidavit

asserting that the funds for th~ floor plan financing were obtained from an investment brokerage

account she shared with Mr. White, her husband. (Rev. C. White Aff. ,, 1, 9.) Upon repayment,

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funds would be deposited back into the joint brokerage account. (Rev. C. White. Aff. , 10.)

According to defendant, her characterization of the floor plan financing arrangement as an asset

of the estate was only a proposal with regard to an amount she might give to Mr. White's children.

(Rev. C. White. Aff., 18.) Other than providing funds from her jointly shared investment account,

defendant did not become involved in the financing transactions until after her husband's death.

(Rev. C. White Aff." 7, 14, 44; Converse Aff. , 10, 14.) Defendant admits that the funds for the

floor plan financing were paid out of her husband's bank account. (C. White Aff. ! 38.)

After reviewing the parties competing affidavits the court finds that it is more likely than

not that the floor plan financing is an asset of the estate. In her affidavits, defendant avers that she

was not involved in the daily business of the enterprise until after her husband's death. Both parties

agree and an exhibit shows that financing was paid for directly from Mr. White's bank account.

Documents reflecting amounts owed pursuant to the floor plan transactions are in Mr. White's

name . (Pl.'s Ex.'s A, H.) · Finally, plaintiff's exhibit C appears to be an estimate of the final

settlement of the decedent's estate.

As an estate asset, plaintiff had an interest in the money owed the estate and the right to

possession and control of that money when it came due. 18-A M.R.S. §§ 3-709, 3-711 (2016).

Further, plaintiff's interest in the estate's assets relates back prior to her appointment as personal

representative and she, therefore, had an interest in the property at the time of the conversion. 18­

A M.R.S. § 3-701 (2016). Finally, plaintiff has made an unsuccessful demand for the return of the

property. Plaintiff has established that it is more likely than not that she will recover judgment on

her claim for conversion in the amount of $195,900. See Estate of Barron, 2017 ME 51,, 14, 157 1

A.3d 769.

, This figure is arrived at by adding the $136,300 principal obligation and the $59,600 in origination fees .

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ii. Whether There is a Danger That Property Will be Unavailable to Satisfy a Judgment

Although plaintiff's motion for attachment and trustee process is styled as "ex parte,"

defendant filed an opposition to the motion the day after plaintiff's motion was filed, and plaintiff

filed a response to defendant's objection the same day. To the extent any finding is necessary with

regard to the unavailability of the property, plaintiff states in her affidavit that defendant has

intentionally transferred funds from the decedent's bank account into her own bank account,

received payments from GGC&T that should have been paid to the estate, and directed GGC&T

to make all repayments under the financing agreement to defendant. (P. White Aff. ,, 21-23 .)

Further, defendant has close ties to Massachusetts where she owns property, is registered to vote,

and licensed to drive. (Rev. C. White Aff. , 3.) Defendant's conduct and ties to a foreign

jurisdiction evince a clear danger that defendant will remove estate assets from the state or will

conceal or otherwise make the assets unavailable.

iii. Conclusion

Plaintiff has established that she is more likely than not to recover judgment and that there

is a clear danger that the property will be otherwise unavailable to satisfy a judgment. Accordingly,

plaintiff's motion for attachment and trustee process is granted and defendant's motion to dismiss

plaintiff's motion for trustee process is denied.

2. Defendant's Motion to Dismiss

Defendant has moved to dismiss plaintiff's complaint pursuant to M.R. Civ. P. 12(b)(6)

and 12(b)(l).

When reviewing a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), the court

"examine[s] the complaint in the light most favorable to the plaintiff to determine whether it sets

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forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant

to some legal theory." In re Wage Payment Litig. v: Wal -Mart Stores . Inc., 2000 ME 162,, 3,

759 A.2d 217. "The general rule is that only the facts alleged in the complaint may be considered

on a motion to dismiss and must be assumed as true." Moody v. State Liquor & Lottery Comm' n,

2004 ME 20,, 8, 843 A.2d 43. "Dismissal is warranted when it appears beyond a doubt that the

plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim."

Johan son v. Dunnington, 2001 ME 169,, 5, 785 A.2d 1244. Contrary to a motion to dismiss

pursuant to Rule 12(b)(6), a court makes no inferences in favor of the plaintiff when evaluating a

motion to dismiss pursuant to Rule 12(b)(l). Tomer v. Me . Human Rights Comm'n, 2008 ME

190,' 9,962 A.2d 335.

Defendant does not challenge the sufficiency of the factual allegations of the complaint.

Instead, defendant argues that (1) plaintiff has failed to establish ownership of the amounts owed

under the financing agreement and (2) that this court lacks jurisdiction over the subject matter of

the dispute. (Def.' s Mot. Dismiss at 6, 11.) Defendant has attached numerous affidavits in support

of her first argument and requests that the court consider her motion as a motion for summary

judgment. Plaintiff argues that the court should not consider the affidavits submitted by defendant,

that she has adequately stated a claim for conversion, and that jurisdiction is proper.

When, in support of a rule 12(b)(6) motion, materials "outside the pleadings are presented

to and not excluded by the court, the motion shall be treated as one for summary judgment ...."

M.R. Civ. P. 12(b). The decision whether to exclude or consider such materials is left to the

discretion of the court . T rans-Spec Truck Serv . v. CaterpiJlar Inc., 524 F.3d 315, 321 (1st Cir.

2008). At this juncture, prior to the onset of discovery, the court declines to consider the materials

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outside the complaint that were filed in support of defendant's motion to dismiss. Defendant's

argument relies, in part, on the affidavit of Guy Converse. While plaintiff has attempted to depose

Mr. Converse, his deposition was postponed because he was suffering from physical distress.

(Converse Dep. 46-47.) Accordingly, conversion of defendant's rule 12(b)(6) motion to a rule 56

motion is inappropriate. See Whiting v. Maiolini, 921 F.2d 5, 7 (1st Cir. 1990).

In her complaint, plaintiff alleges that GGC&T owes the estate a principal amount of

$139,700 for floor plan financing provided to GGC&T by decedent. (Pl.'s Compl. ,, 12, 16-19.)

Defendant has received $127,637.78 in repayments from GGC&T and deposited these payments

into a bank account held in her name only. (Pl.'s Compl. ,, 20-21.) Defendant has also withdrawn

and spent $15,140.52 from the decedent's bank account. (Pl.'s Compl., 21.) At the time of his

death, decedent had the exclusive right to possess amounts owed him by GGC&T as well as the

amounts in his bank account. (Pl.'s Compl. ,,-30-31.) Defendant has refused plaintiff's demand

to return the above funds to the estate. (Pl.'s Compl., 26.) Accordingly, plaintiff's complaint

states a claim for conversion. See Estate of Barron, 2017 ME 51,, 14, 157 A.3d 769 (reciting the

elements of conversion).

Defendant's final argument is that this court has no jurisdiction over the subject matter of

this lawsuit because the Probate Court has exclusive jurisdiction to determine whether an asset is

a probate asset belonging to the estate. Contrary to defendant's argument, the Probate Code

provides that the Probate Court has "concurrent jurisclictioa ... [over] actions to determine title to

property alleged to belong to the estate . .. ." 18-A M.R.S. § 3-105 (2017). Accordingly, this court

has jurisdiction to determine whether the floor financing is an asset of Mr. White's estate. See id.

The entry is

Plaintiff's ex parte Motion for Attachment and Trustee Process is GRANTED _in a separate order. Defendant's Motion to Dismiss

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Plaintiff's Motion for Trustee Process and Motion to Dismiss Plaintiff's Complaint are DENIED.

Date: May 10, 2018 Nancy Mills Justice, Super or Court

CUM CV -18-069

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. Docket No. CV-20~9

PAMELA E. WHITE as Personal ) Representative of the Estate of ) Joel D. White, ) ) ORDER ON PLAINTIFF'S MOTION Plaintiff, ) FOR APPROVAL OF ATTACHMENT ) AND ATTACHMENT WITH TRUSTEE V. ) PROCESS WITH INCORPORATED ) MEMORANDUM OF LAW CHERYL A. WHITE, ) ) Defendant. )

After consideration of the pleadings before this Court pursuant to M.R.Civ.P. 4A

and 4B, and on Affidavit/hearing, the Court finds the following:

1. It is more likely than not that in this action the Plaintiff, Pamela White, in her

capacity as Personal Representative of the estate of Joel D. White will recover Judgment at least f_ve in the amount of one hundred and ninety-1:Htte thousand and IJJ~ $;95;qd~ hundred dollars ($1 99,300),

against the Defendant and that the value of liability insurance, bond or other security and any

other property attached by other writ of attachment or by trustee process for the benefit of

Plaintiff known to Plaintiff against the Defendants is zero.

2. It is hereby ORDERED and ADJUDGED that attachment, including attachment

on trustee process, may be had against Defendants, their property jointly and severally, both real

and personal, including but not limited to, bank accounts, real estate, inventory, fixtures,

furniture, equipment, accounts receivable and any and all other chattels belonging to them, and

not otherwise exempt from attachment and attachment on trustee process in the amount of

$199,300.

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The Clerk is instructed to incorporate this Order by reference on the docket for this case.