Opinion

Stewart Title of N. New England v. Pike

Court
Superior Court of Maine
Filed
Mar 11, 2003
Status
Unpublished
On the bench
Jeffrey L. Hjelm
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. CV- 312

JLH - PEN - Wr00%

DONALD L. GarcPcCnt

Stewart Title of Northern New England, LAW! Liseea 2

Plaintiff

MAR £4 2005

V. Order (Motigt to-Disimissy

ray 2 ;

Defendant

PENOBSCOT COUNTY

Pending before the court is the defendant’s motion to dismiss all counts of the

complaint, based on arguments that the plaintiff has not alleged grounds upon which

relief could be granted. See M.R.Civ.P. 12(b)(6). The court has read and considered the

parties’ written submissions associated with the motion at bar.’

“A motion to dismiss tests the legal sufficiency of the complaint.” McAfee v.

Cole, 637 A.2d 463, 465 (Me. 1994). On a motion to dismiss, the complaint must be

examined "in the light most favorable to the plaintiff to determine whether it sets forth

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

pursuant to some legal theory.” Jd. A dismissal is proper “only 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.” Hall v. Board of Environmental Protection, 498 A.2d 260, 266

(Me. 1985). See also Heber v. Lucerne-in Maine Village Co., 2000 ME 137,97, 755

A.2d 1064, 1066. Because a motion to dismiss tests the sufficiency of the allegations in

the complaint, the court disregards and does not consider other submissions that the

parties have filed, particularly those materials (including affidavits) that they have

submitted in conjunction with a pending motion for attachment and trustee process.

Consequently, the court also cannot consider those portions of the defendant’s opposition

' One of the bases for the plaintiff’s objection to the motion to dismiss was its contention

that the motion was not filed in a timely way. Counsel have conferred regarding the date

of service (which was not noted legibly on the return), and as a result, the plaintiff has

withdrawn that part of its opposition.

to the motion to dismiss that are predicated on that material that is extraneous to this

motion.

In this action, the plaintiff claims that the defendant wrongfully obtained or

retained part of the proceeds (roughly $42,000) generated by the sale of her residence. It

alleges that the proceeds at issue should have been used to satisfy several liens that

encumbered the property, that that part of the proceeds was mistakenly included in the

net proceeds to which the defendant in fact was entitled, that the defendant took that

money to which she was not entitled and that she has refused to return that money to the

plaintiff. The plaintiff has framed its request for relief in three counts: conversion (count

1), unjust enrichment (count 2) and intentional misrepresentation or fraudulent

concealment (count 3).

Contrary to the defendant’s arguments, the allegations supporting each of these

three counts are sufficient to state claims upon which relief can be granted. Much of the

defendant’s arguments rests on the factual support for those allegations as revealed by the

affidavits that the parties have filed as part of the motion for attachment and trustee

process. When those arguments are stripped from the defendant’s presentation and the

bare allegations in the complaint are considered in light of the deferential standard of

review applicable to a motion to dismiss, the court is satisfied that those allegations are

sufficient to withstand the instant challenge.

The defendant makes a secondary argument that the plaintiff has failed to allege

the circumstances of a claim for fraud “with particularity.” See M.R.Civ.P. 9(b). The

allegations in the complaint adequately set out the particular factual predicate for the

lointi ff a mt that > :

plaintiffs argument that the defendant’s conduct was fraudulent. Sez, ¢.g., Complaint at

ql 7, 21, 22, 24.

The entry shall be:

For the foregoing reasons, the defendant’s motion to dismiss is denied.

Dated: March 11, 2003 . \ WN Map

Fees WE brior Court

’

f

ve

STEWART TITLE OF NORTHERN NEW ENGLAND INC - PLAINTIFF SUPERIOR COURT

ONE MERCHANTS PLAZA PENOBSCOT, ss.

BANGOR ME 04401 Docket No BANSC-CV-2003-00012

Attorney for: STEWART TITLE OF NORTHERN NEW ENGLAND

INCMI MINA :

HURLEY & MINA DOCKET RECORD

12 CITY CENTER

PORTLAND ME 04101

VS

ELAINE J PIKE - DEFENDANT

P O BOX 75

SURRY ME 04684

Attorney for: ELAINE J PIKE

GEORGE KURR

GROSS MINSKY MOGAL PA

23 WATER ST SUITE 400

PO BOX 917

BANGOR ME 04402

Attorney for: ELAINE J PIKE

JAMES NIXON

GROSS MINSKY MOGAL PA

23 WATER ST SUITE 400

PO BOX 917

BANGOR ME 04402

Filing Document: COMPLAINT Minor Case Type: OTHER CIVIL

Filing Date: 01/17/2003

Docket Events:

01/17/2003 FILING DOCUMENT - COMPLAINT FILED ON 01/17/2003

(ATTACHMENT: ATTACHED)

01/17/2003 Party(s): STEWART TITLE OF NORTHERN NEW ENGLAND INC

ATTORNEY - RETAINED ENTERED ON 01/17/2003

Plaintiff's Attorney: THIMI MINA

01/17/2003 Party(s): STEWART TITLE OF NORTHERN NEW ENGLAND INC

MOTION - EX PARTE ATTACH/TRUSTEE PROC FILED WITH AFFIDAVIT ON 01/17/2003

EX PARTE MOTION FOR WRIT OF ATTACHMENT AND ATTACHMENT OF TRUSTEE PROCESS, WITH

INCORPORATED MEMORANDUM OF LAW, AFFIDAVIT OF NANCY MAHEU (EXHIBIT 1, 2, & 3 ATTACHED), AND

AFFIDAVIT OF THIMI R. MINA, ESQ., WITH PROPOSED ORDER.

01/17/2003 Party(s): STEWART TITLE OF NORTHERN NEW ENGLAND INC

OTHER FILING - REQUEST FOR HEARING FILED ON 01/17/2003

REQUEST FOR EXPEDITED HEARING, NON-TESTIMONIAL, GOOD FAITH ESTIMATE OF 1/4 HOUR.

01/17/2003 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 01/17/2003

TO PLAINTIFF'S ATTORNEY.

01/21/2003 Party(s): STEWART TITLE OF NORTHERN NEW ENGLAND INC

MOTION - EX PARTE ATTACH/TRUSTEE PROC DENIED ON 01/21/2003

JEFFREY L HJELM , JUSTICE

Page 1 of 4 ' Printed on: 03/11/2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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