The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. CIVIL ACTION
Docket No. CV- 312
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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withdrawn that part of its opposition.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
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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