The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. a CIVIL ACTION
~ Docket No. RE-0Q0-112
JLY “CUM - af [e002
wee
Plaintiff
VS. DECISION AND ORDER
MICHAEL B. LUFKIN, CON
Defendant
FEB 14 2002
This matter is before the Court on the plaintiffs’ complaint for the
equitable partition of real estate situated at 1337 Edes Falls Road, Harrison,
Maine ("Property").
BACKGROUND
The Property consists of a single-family residence situated on
approximately 4.5 acres of land. The home is situated in the middle of the
parcel. On July 10, 1987, the Property was conveyed to Donna Woodward
and the defendant Michael Lufkin, as joint tenants, for $22,000. Plaintiff's
Ex. 1. In 1994, the plaintiff began residing at the Property. On March 31,
1995, Donna Woodward conveyed her undivided one-half interest to the
plaintiff for $20,000. Plaintiffs Ex. 2.1 As a result, the plaintiff and the
defendant now own the Property as tenants-in-common.
1The plaintiff was formerly known as Jean Munroe and is the named grantee in
the deed which is Plaintiff's Ex. 2.
The parties lived together on the Property from 1994 until the
defendant's departure in May 1997. The plaintiff continued to reside there
until late 2000. During this period, she paid all maintenance and insurance
costs and the real estate taxes. She rented part of the premises from time
to time, but did not derive any profit from that pursuit.
The Property was in a significant state of disrepair when the plaintiff
acquired her one-half interest in 1995. The kitchen plumbing was
inadequate, leaking caused damage to the flooring, bathroom fixtures were
inadequate and there were structural problems. After the defendant's
departure, the plaintiff made or arranged for many repairs to the home,
including: repair or replacement of most of the fixtures and appliances in
the kitchen and bathroom; replacemert of electrical wiring throughout the
house; repairs to the living room, hallway and upstairs bathroom; repairs to
sills and ceiling joists in the barn and the carriage house; replacement of the
siding of the barn; repairs to the roof of the house; installation of an artesian
well; and replacement of the hot water heater and furnace. The court finds
that the plaintiff reasonably expended $45,461.87 for these repairs and
renovations and that they were necessary for the integrity, safety and
insurability of the premises.? The plaintiff has also paid all of the parties’
real estate tax obligations on the Property totalling $2,679.95. The
defendant did not contribute to any of these costs. Thus, the plaintiff's
contributions to the Property total $48,141.82.
2Although the plaintiff paid a total of $50,207.87 for repairs and renovations,
the court disallows $4,740 because it finds that Gary Pendexter's bill is overstated by
$3,840 and the wood stove ($900) was not a necessary expenditure.
2
The Property was worth approximately $49,000 immediately prior to
the time that the above-referenced repairs and renovations were made. Its
fair market value at the time of trial was approximately $66,000. The court
finds that a substantial part of this appreciation in value is attributable to
those repairs and renovations. The court also finds that physical division of
the Property is impractical and would materially injure the rights of the
parties and that the Property should be disposed of as a single entity. Libby
v. Lorrain, 430 A.2d 37, 39 (Me. 1981).
DISCUSSION
Under the circumstances, a buy-out or sale of the Property pursuant to
the court's power of equitable partition is the most appropriate remedy. 14
M.R.S.A. §§ 6051(13); see also Murphy v. Daley, 583 A.2d 1212 (Me. 1990).
Mindful of the plaintiffs contributions and their appreciable impact on the
value of the Property and also mindful of the duration of her exclusive
possession of the Property, the court concludes that the plaintiff is entitled
to credit for and reimbursement from the net equity of the Property in the
amount of $48,150 and the parties are each entitled to one-half of any
remaining balance of the net equity. Libby, 430 A.2d at 40; see also Boulette
v. Boulette, 627 A.2d 1014, 1016 (Me. 1993).
DECISION
Based upon the foregoing, Judgment is entered for Plaintiff on the
complaint and equitable partition is ordered, as follows:
1, This Judgment pertains to that certain lot or parcel of land,
together with the buildings and improvements thereon, situated at 1337
3
Edes Falls Road, Harrison, Maine, being more particularly referenced and
described in a deed from Eva M. DeWitt to Michael Lufkin and Donna
Woodward, dated July 10, 1987, and recorded in the Cumberland County
Registry of Deeds in Book 7883, Page 177, and also a deed from Donna
Woodward to Jean Munroe, now Jean C. Palanza, dated March 31, 1995, and
recorded in said Registry of Deeds in Book 12093, Page 297 (hereafter,
"Property").
2. All of Defendant's right, title and interest in and to the Property
is hereby transferred and set over to, and full title is vested in, Plaintiff, but
solely for the purposes of effecting the provisions and conditions of this
Judgment, as hereafter set forth, and the recording of this Judgment on the
appropriate land records shall have the force and effect of a Quit Claim deed
of conveyance of the Property from Defendant to Plaintiff.
3. Purchase Option. In or within 60 days from the date on which
this Judgment becomes final, Plaintiff shall either
(a) Purchase and acquire all of Defendant's right, title and interest
in the Property by paying to him the sum of $8,925: or
(b) Send written notice to Defendant by United States mail, postage
prepaid, at his last known address that she elects not to
exercise this Purchase Option.
4, Sale Option. If Plaintiff does not exercise such Purchase Option,
then no later than the 75th day following the date on which this. Judgment
becomes final, she shall cause the Property to be listed for sale and sold and,
to this end, she shall have sole and exclusive authority to do the following:
(a) Designate and engage the services of a licensed real estate
broker or brokers to list and sell the Property in a commercially
reasonable manner at a price reasonably approximating its fair
market value based upon the recommendation(s) and advice of
such broker(s); and
(b) Enter into and execute a bona fide contract for the sale of the
Property and transfer and convey all of Plaintiff's and Defendant's
right, title and interest in and to the Property to a bona fide
purchaser by deed in Plaintiffs name, only;
(c) The net sales proceeds shall be paid and applied in the following
order of priority:
(i) |The sum of $48,150 shall be paid to Plaintiff: and
(ii) | The remaining balance, if any, shall be divided
equally between the parties.
(d) For the purposes of this Judgment, "net sales proceeds" shail
mean the gross proceeds from the sale of the Property less
(i) Payoff amounts for all liens and encumbrances on the
Property jointly owed by the parties;3
(ii) | Real estate broker's commission(s):
(iii) All usual and customary closing costs, including, but not
limited to, real estate taxes and adjustments; and
(iv) Reasonable attorney's fees incurred by Plaintiff relating to
and/or in any way connected with listing, selling and/or
closing the Property pursuant to this Judgment.
(e) Following the completed closing transaction, Plaintiff shall
forthwith transmit to Defendant a bank or certified check for his
share of the remaining balance of the net sales proceeds, as
aforesaid, together with a written report and accounting of the
sale. ~
SAt trial, neither party presented any evidence that the Property is burdened by
a mortgage or other encumbrance. Any liens or encumbrances on the Property that
are not jointly owed by the parties shall be paid out of the share of the party owing
such indebtedness without affecting the distributive share of the other party.
5
4. This Judgment is binding upon, and shall inure to the benefit of,
the parties, their heirs, successors, personal representatives and assigns.
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this
Decision and Order on the Civil Docket by a notation incorporating it by
reference.
Dated: February 4, 2002 LO Agel
Justice, Superior Court
10-06-00 CUMBERLAND Docket No. _RE 00-112
Date Filed
County
Action _ EQUITABLE REMEDIES
JEAN C, PALANZA MICHAEL B. LUFKIN
VS.
Plaintiff’s Attorney Defendant’s Attorney
DANIEL W. BOUTIN, ESQ 774-6665 | MICHAEL B. LUFKIN
477 CONGRESS ST., SUITE 814 BOX A
PORTLAND ME 04101 THOMASTON, MAINE
Date of C
Entry \
2000
Oct. Ll Received 10-06-00:
Complaint Summary Sheet filed.
"oN" Complaint with Exhibits A and B filed.
Oct. 19 Received 10-18-00:
Summons showing officers return of service on- 10-14-00 upon Michael
Lufkir filed.
Oct. 25 Received 10-25-00.
Defendant's Motion to Dismiss filed.
ne Defendant's Memorandum in Support of Motion to Dismiss with Exhibit Al-
Exhibit A13 filed.
uu Defendant's notice to all parties filed.
wn Proposed Order filed.
Nov. 3 Received 11-03-00 :
Plaintiff's objection to Motion to Dismiss with Incorporated
on Memorandum of Law filed
Proposéd order filed.
Dec. 28 Received 12-28-00:
Scheduling Order filed. (Delahanty, J.).
Scheduling Order filed. Discovery deadline is August 28, 2001.
On 12-28-00 Copies mailed to Daniel W. Boutin, Esq. and Michael B. Lufkin a
Box A at Thomaston, Maine.
2001
Feb. 22 Received 2-22-01. ‘
Plaintiff's notification of discovery service filed.
Plaintiff's answer to defendant's first set of interrogatories served on
Michael B. Lufkin on 2-21-01.
2001
Mar. 1 Received 03-01-01:
Letter from Daniel W. Boutin, Esq. advising that the Defendant is an inmate
at the Bolduc Center in Warren, Maine filed.
=
STATE OF MAINE jjwpee Aint SUPERIOR COURT ,_//
AIA
CUMBERLAND, SS. 8) cre, 0 3%) §§ CIVIL ACTION
TEN ee UE BE 4 te ape RE-00-112
Hie 8 I2uy py rg) =. SE CUMS p.]ae0)
JEAN C. PALANZA,
Plaintiff
vs. ORDER
MICHAEL B. LUFKIN,
Defendant
This matter is before the court on defendant’s Motion to Dismiss,
dated October 23, 2000 pursuant to M.R.Civ.P. 12(b)(6). A motion to
dismiss for failure to state a claim tests the legal sufficiency of the
complaint. Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995). The court
is required to examine the complaint in the light most favorable to the
plaintiff and assume that the facts and allegations made by the plaintiff are
true and then determine whether the complaint alleges elements of a cause
of action or facts entitling the plaintiff to rely on some legal theory. Marxsen
v. Board of Directors, M.S.A.D. #5, 591 A.2d 867 (Me. 1991). Dismissal for
failure to state a claim is appropriate only where it appears beyond doubt
that the plaintiff is entitled to no relief under any set of facts which it might
provide in support of its claim. Dutil v. Burns, 674 A.2d 910, 911 (Me.
1996).
Applying the foregoing standard to this case, the court concludes that
the complaint alleges the elements of a cause of action for equitable
partition. 14 M.R.S.A. §§ 6501, 6051(7) and (13) (1980). There exists two
types of partition: statutory and equitable. Libby v. Lorrain, 430 A.2d 37, 39
(Me. 1981). While statutory partition pursuant to 14 M.R.S.A. §§ 6501 &
6502 may only be carried out by a physical division of the property, equitable
partition may be accomplished by a sale of the real property as well as by
physical division. Boyer v. Boyer, 1999 ME 128, II 7-8, 736 A.2d 273, 276.
The court has the power to order equitable partition “[iJn cases ...
between ... part owners of ... real and personal property to adjust all matters
... between such part owners, compel contribution, make final decrees and
enforce their decrees by proper process ....” 14 M.R.S.A. § 6051(7) (1980).
Equitable partition is a flexible procedure, allowing the equity court to order
sale and division of the proceeds “where physical division is impractical or
would materially injure the rights of the parties.” Libby, 430 A.2d at 39.
The plaintiff has stated a claim for equitable partition by sale because
she has alleged that she holds legal title, as a tenant in common with the
defendant, to real property and a residential dwélling.! She has clearly
described the property and has alleged that a physical division would be
impractical. See 14 M.R.S.A. §§ 6501 & 6502 (1980 & Supp. 2000); see
also Libby, 430 A.2d at 39.
The issue of whether the plaintiff is entitled to reimbursement for her
costs because she had exclusive use of the house is not a proper subject for a
1Although the plaintiffs complaint does not specify whether the estate is held
in fee simple, for life, or for a term of years, the quitclaim deed attached to the
complaint establishes that the plaintiff holds the property in fee simple as opposed to
a life estate or term of years. See Pl.’s Ex. B.
2
motion to dismiss. The exclusive possession of the property by one party
and the credits to be given for improvements made should be considered by
the court in determining how the property should be partitioned. See Libby, —
430 A.2d at 39-40. Such factors do not impact whether the plaintiff has
stated a claim for relief.
Based on this analysis, the court concludes that the defendant's
motion to dismiss ought to be, and hereby is, DENIED.
Pursuant to Rule 79(a) M.R.Civ.P., the Clerk is directed to enter this
Order on the Civil Docket by a notation incorporating it by reference.
Dated: March 8, 2001 by
Thomas E. Humphrey
Justice, Superior Court
-0287
DANIEL BOUTIN ESQ
477 CONGRESS. STREET SUITE 814
PORTLAND ME 04101
OURTS
>ounty
287
4112-0287
MICHAEL BOUTIN
BOX A
THOMASTON ME 04861