Thurlow v. Connolly

SUPERIOR COURT

CIVIL ACTION ,/

DOCKET NO. CV-04-745

KEVIN D. THURLOW, ALAN W. THURLOW,

INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVES OF THE ESTATE OF

DONALD A. THURLOW,

PLAINTIFFS

STATE OF MAINE

Cumberland, ss, Clerk's Office ORDER

V. SUPERlOR COldRT

JUL 11 2005

JO-AXNE CONNOLLY,

DEFENDANT RECEIVED

T h s case comes before the court on Plaintiffs Kevin D. Thurlow and Alan

W. Thurlow's Motion for Summary Judgment on the counterclaims of Defendant

Jo-Anne Connolly. Plaintiffs also move to strike Defendant Jo-Anne Connolly's

additional statements of material fact.

FACTS

Defendant Jo-Anne Connolly (Jo-Anne) and Donald A. Thurlow (Donald)

were engaged and lived together for over twenty years, but never married.

When Donald died on March 29,2004, his two adult sons, Kevin D. Thurlow and

Alan W. Thurlow (Plaintiffs) were named personal representatives of h s estate.

At the time of h s death, Donald held sole title to property at 32 Pillsbury Road in

Scarborough, Maine, and another property in Pompano Beach, Florida. He also

owned a 1997 Lincoln sedan, a boat and many items of personal property.

Donald's will, executed in 1988 when Donald was married to h s first wife, made

no mention of Jo-Anne. Under its terms, both Plaintiffs were beneficiaries.

On April 16,2004, shortly after Donald's death, Plaintiffs and Jo-Anne

entered into an agreement that To-Anne would be given, among other thngs, real

estate, the Lincoln, and $2000 a month for the next six months. Plaintiffs

tendered a check for $2000 to Jo-Anne. Jo-Anne repudiated the agreement on

May 26,2004, and did not return the $2000. On June 6,2004, Plaintiffs demanded

in writing that Jo-Anne vacate the premises at 32 Pillsbury Road, Scarborough,

which Jo-Anne continued to occupy, and surrender Donald's car, boat and

personal property.

The first publication to creditors of Donald's estate took place on May 9,

2004, and Jo-Anne filed timely claims against the estate on September 3,2004.

On, September 23,2004, Plaintiffs mailed a notice to Jo-Anne, disallowing those

claims. On December 16, 2004, ,Plaintiffsobtained a forcible entry and detainer

judgment against Jo-Anne, eventually removing her from the Scarborough

property and talung control of the real estate, the Lincoln, the boat, and almost

all of Donald's personal possessions. On December 10,2004, Plaintiffs brought

t h s suit, seelung compensation for Jo-Anne's unauthorized retention and use of

Donald's property and possessions (Count I) and return of the $2000 they gave

her as part of their failed agreement (Count 11).

On January 20,2005, in an amended answer, Jo-Anne counterclaimed

against Maintiffs in their capacity both as estate representatives and as

individuals. Jo-Anne alleged that Donald had repeatedly promised to marry her,

that she and Donald lived together as if they were husband and wife for over

twenty years, that she and Donald had purchased the Maine and Florida

properties together, althcugh title was kept in h s name only, and that Dcnald

had repeatedly promised to devise the Maine and Florida properties to Jo-Anne

upon his death. So-Anne also objected to the allowance of the 1988 will.

Jo-Anne co~~nterclaims

as follows: against Plaintiffs in their capacity as

representatives of Donald's estate, Jo-Anne claims breach of contract for

Donald's promises to marry her and to devise the Maine and Florida properties

to her (Counterclaim Count I); promissory estoppel, following her detrimental

reliance on Donald's breached promises (Count 11); and, alternatively, fraud, for

Donald's malung false promises to marry her and devise the properties to induce

her reliance (Count 111). Jo-Anne also counterciaims against Plaintiffs as

individuals for both tortious interference with expectancy (Count IV) and unjust

enrichment, seelung a constructive trust (Count V). Jo-Anne finally

counterclaims against Plaintiffs in both capacities for unlawful conversion of

Donald's personal property (Count VI).

On May 4,2005, Plaintiffs moved for summary judgment on all Jo-Anne's

counterclaims, arguing that her claims against the estate are time-barred under

the Probate Code, and that her claims against them individually concern estate

property and are therefore time-barred by the Probate Code as well.

DISCUSSION

On a motion for summary judgment, the court views the evidence in the

light most favorable to the party against whom judgment is sought, to decide

"whether the parties' statements of material facts and the referenced record

material reveal a genuine issue of material fact." Wentworth v. Sebra, 2003 ME 97,

4[ 9,829 A.2d 520,524 (citing Rogers v. Jackson, 2002 ME 140, q[ 5, 804 A.2d 379,

380). "M7egive the party opposing a summary judgment the benefit of any

inferences that might reasonably be drawn from the facts presented." Id. (citing

Curtis v. Porter, 2001 ME 158, Y, 784 A.26 18, 22). If the record reveals no

genuine issue of material fact, then a summary jud-gnent is proper. Id. (citation

omitted). When, as here, the moving party is the (counterclaim) defendant, the

burden rests on the defendant to show that the evidence fails to establish a prima

facie case for the elements of the cause of action. Id. (citing Stewart ex rel. Stewart

v. Aldrich, 2002 ME 16, ¶ 8, 788 A.2d 603, 606).

I. Counterclaims against Donald and Donald's estate. (Counts I, 11, I11

and, in part, VI).

Plaintiffs argue that the undisputed facts show Jo-Anne failed to bring her

claims against Donald or h s estate withn the statutory period prescribed for

such claims in § 3-806 of the Probate Code. Jo-Anne argues that her claims do

not fall withn the Probate Code's definition of "claims" against an estate and so

are not subject to the constraints of § 3-806. Jo-Anne also argues that statutes of

limitation apply differently to counterclaims under Maine law.

a. Time bar under 5 3-806.

Under 18-A M.R.S.A. § 3-806 of the Probate Code, when a claim is made

against an estate and disallowed by the personal representative, that claim is

barred "unless claimant files a petition for allowance in the court or commences

a proceeding against the personal representative not later than 60 days after the

mailii~gof the notice of disallowance." 18-A M.R.S.A. 5 3-806(a)(2004). The Law

Court has held that the statutory requirements of § 3-806(a) are "plain,

unambiguous, and mandatory." Estate of Staples, 672 A.2d 99, 101 (Me.

1995)(vacating Probate Court's reimb~rsementof expenses from the estate for

failure to meet the requirements sf Ej 3-800). Fzilure to comply with 5 3-806:a)'s

requ~rements"bars ofherwise justiciable claims" against an estate. Estate of

Sawyer, 2000 ME 3, q[ 3, 742 A.2d 943, 944.

Here, the undisputed facts show the Plaintiffs disallowed Jo-Anne's

claims against Donald's estate on September 23,2004. When Jo-Anne's

counterclaims against Donald's estate were filed January 20, 2005, they were well

outside 5 3-806's 60-day period of limitation.

To be subject to the 60-day requirement of 5 3-806, Jo-Anne's claims must

fall withn the definition of "claims" in the Probate Code:

(4) "Claims", in respect to estates of decedents and protected persons,

includes liabilities of the decedent or protected person whether arising in

contract, in tort or otherwise, and liabilities of the estate whch arise at or

after the death of the decedent or after the appoinbnent of the conservator,

including funeral expenses and expenses of administration. The term

does not include estate or inheritance taxes, or demands or disputes

regarding title of a decedent or protected person to specific assets alleged

to have been included in the estate.

18-A M.R.S.A. 5 1-201(4)(2004).Thus when a brother disputed the decedenys

title to property he claimed -properly

- belonged to their real estate partnershp, h s

claim fell outside the definition of "claims" subject to the Probate Code. Estate of

Shapiro, 1999 ME 25, ¶ 12,723 A.2d 886, 889. However, when a plaintiff claimed

the decedent breached a promise to devise a flower business to h m , the Law

Court held plaintiff alleged a contract claim against the decedent, not a dispute

as to decedent's title in estate property, falling squarely within the definition of §

1-201(4). Estate ofleavitt, 1999 ME 102, ¶ 6, 733 A.2d 348, 350.

Here Jo-Anne argues her claims are disputes as to Donald's or the estate's

title to real property that she parbcipated in acquiring. However, the express

language of Jo-Anne's own pleadings assert the liability of Donald and h s estate

and sound in contract (Counts I and 11), and tort (Counts I11 and VI), bringing

them squarely w i h n the Probate Code definition of "claims" and its statute of

limitations as well. Thus To-Anne can no longer independently assert

counterclaim Counts I, 11,111, and, in part, Count VI, against Donald or Donald's

estate because the 60-day time restrictions of § 3-806 have passed.

b. Statutes of limitation under 14 M.R.S.A. § 865.

Under Maine statutes, a counterclaim may be asserted outside the

limitation period for limited purposes and under certain conditions. Under 14

M.R.S.A. J€ 865, statutes of limitations also apply "to any counterclaim by the

defendant except a counterclaim arising out of the transaction or occurrence that

is the subject matter of the plaintiff's claim to the extent of the demand in the

plaintiff's claim." 14 M.R.S.A. 5 865 (2005). The limitations on such

counterclaims "shall be computed as if an action had been commenced therefor

at the time the plaintiff's action was commenced." Id. Thus, w h l e the defendant

can assert an otherwise stale claim by counterclaim under 14 M.R.S.A. § 865 for

recoupment purposes: "there can be no affirmative recovery by the defendant if

it is ultimately found that the defendant is not liable to the plaintiff." 1 Field,

McKusick & Wroth, Maine Civil Practice, § 13.8 at 124 (Supp. 198l)(citation

omitted). Here, Plaintiffs seek to recover damages, including the value of Jo-

Anne's use and occupancy of estate property, as well as punitive damages. If 14

M.R.S.A. 865 applies, Jo-Anne's counterciaims asserting she has a right, titie or

interest in that estate property could be allowed for the limited purpose of

reducing Plaintiffs' recovery.

However, 14 M.R.S.A. § 865 cannot be extended to limitations included in

the Probate Code, and is instead, by its express terns, confined to the limitations

periods found in Title 14, Chapter 205, Limitation of Actions. Section 865

appears in Titie 14, chapter 205, and is said to apply to "all the provisions hereof

respecting limitations." 14 M.R.S.A.€865.

j The Law Court has held that "by its

own terms, section 865 only applies to 'all the provisions hereof respecting

limitations,' meaning all provisions respecting limitations contained in chapter

205 of Titie 14 of the Maine Revised Statutes and does not govern a federal

statute of limitations on a cause of action arising under a federal statute." C.N.

Brown Co. v. Gillen, 569 A.2d 1206,1212 (Me. 1990)(emphasisadded). Thus, 14

M.R.S.A. § 865 applies only to the provisions in chapter 205 of Title 14 and does

not govern limitation periods arising under the Probate Code.

11. Counterclaims against Kevin D. Thurlow and Alan W. Thurlow as

individuals. (Counts IV; V and, in part, Count VI.)

Plaintiffs argue that Jo-Anne is barred from asserting counterclaims

against them as individuals to the extent that her counterclaims allege an interest

in property of the estate. Because claims asserting the liability of the estate or the

decedent are time-barred under 5 3-806 of the Probate Code, Plaictiffs mai~tain

they are entitled to judgment as a matter of law. Jo-Anne argues that her tort

actions against Plaintiffs as individuals are not subject to the limitations imposed

by the Probate Code on claims against a decedent or estate, and that summary

judgment is not appropriate.

a. Tortious interference with expectancy. Count IV.

A claim of tortious interference with an expectancy under a will is a tort

claim brought against the alleged interferers. See, e.g., Burdzel v. Sobtns, 2000 ME

84, ¶ 9, 750 A.2d 573,576; PZinzpton v. Geurard, 668 A.2d 882, 885 (Me. 1995);

Desh4arais v. Desjaudins, 654 A.2d 840, 841 (Me. 1995); Cy;. I;. Cote, 396 A.2d 1C13,

1018 (Me. 1979); Harmon v. H a m o n , 404 A.2d 1020 (Me. 1979). The statute of

iimitations for a ciaim of tortious interference is six years after the cause of acbon

accrues. 14 M.R.S.A. fj752. See also Burdzel v. Sobus, 2000 ME 84, 750 A.2d 573. A

cause of action accrues when plaintiff sustains the alleged harm to a protected

interest. Johnston v. Dow & Coulombe, Inc., 686 A.2d 1064 (_Me.1996).The

traditional remedy for tortious interference is damages, measured in terms of

what the plaintiff would have realized but for the interference. Harmon v.

Harmon, 404 A.2d 1020 (Me. 1979).

Here Jo-Anne's counterclaim Count IV for torhous interference is brought

against the individual Plaintiffs. Count IV does not assert liability of the estate or

Donald, the decedent, and is therefore not a "claim" pursuant to 18-A M.R.S.A. 5

1-201(4)of the Probate Code, subject to the 60-day statute of limitations on estate

claims pursuant to 18-A M.R.S.A. 5 3-806. Plaintiffs' Motion for Summary

Judgment on Count IV on that basis is therefore denied.

b. Constructive Trust. Count V.

In a claim for unjust enrichment, a claimant must establish that: (1)

she conferred a benefit on the other party; (2) the other party had

appreciation or knowledge of the benefit;, and (3) the acceptance or

retention of the benefit was under such circumstances as to make it

inequitable for them to retain the benefit without payment of its value.

Forrest Assocs. v. Passamaquoddy Tribe, 2000 VIE 195, 9 14, 760 A.2d 1041,

1045-46.

The statute of limitations on claims for unjust enrichment is six years from the

time the cause of action accrues. Maine Mun. Employees Health Trust v. Maloney,

2004 ME 51, ¶ 9,846 A.2d 336,339 (citing 14 M.R.S.A. 5 752).

A constructive trust is an equitable remedy imposed by the court to

prevent unjust enrichment when persons who have acquired title to property- I

would unfairly benefit by retaining that property. Horton & McGehee, Maine

Civil Remedies, § 9.1 at 205 (4th ed. 2004); Estate of Campbell, 1997 ME 212, ql5, 704

A.2d 329, 330-31. As Judge Cardozo stated, "When property has been acquired

in such circumstances that the holder of the legal title may not in good

conscience retain the beneficial interest, equity converts him into a trustee."

Beatty v. Guggenheim Exploration Co., 122 N.E. 378 (N.Y. 1919).

A plaintiff seeking the remedy of constructive trust must prove the

defendants acquired title to property by "fraud, abuse of confidential relations,

oppression or mistake." Chandler v. Dubq, 325 A.2d 6, 8 (Me. 1974)(quotingSacre

v. Sacre, 55 A.2d 592, 600 (Me. 1947)). The Law Court noted "stated in broader

language: '[a] constructive trust will be imposed by the Courts in order to do

equity and prevent unjust enrichment when title to property is acquired by

fraud, duress?undue influence or is acquired or retained in violation of a

fiduciary duty."' Id. (citation omitted). See also, Estate of Campbell, 1997 ME 212,

71 5, 704 A.2d 329, 330-31).

Here, Jo-Anne's claim of unjust enrichment, requesting a constructive

trust, concerns property formerly in Donald's estate to whch Plaintiffs now have

legal titie as beneficiaries under the terms of Donald's will. However, Jo-Anne's

Count V claim is brought against the Plaintiffs as individuals holding title to that

property whch she alleges they have retained through "fraud, abuse of

confidential relations, oppression or mistake." Clza?zdlerv. Dubey, 325 A.2d 6, 8

(Me. 1974). In t h s case, Jo-Arne pleads that Plaixtiffs knew they were expected

and obliged to convey real property to Jo-Anne after Donald's death, and failed

to do so. Jo-Anne's Count V is not brought against Donald's estate, nor does it

assert the liability of that estate or Donald, the decedent, and so does not meet

the definition of "claims" under the Probate Code. Count V is therefore not

subject to the 60-day statute of limitations on estate claims pursuant to 18-A

M.R.S.A. 5 3-806. Plaintiffs1Motion for Summary Judgment on Count V on that

basis is, therefore, denied.

c. Conversion. Count VI.

A claim for conversion asserts a right to ownershp or possession of

property and a talung of that property by a wrongful act of the defendant.

Horton & McGehee, Maine Civil Remedies, 5 18-3 at 356-57 (4th ed. 2004). The

elements of the claim, as defined by the Law Court are "(1) a showing that the

person claiming that l-us property was converted has a property interest in the

property; (2) that he had the right to possession at the time of the alleged

conversion; and (3) that the party with the right to possession made a demand

for its return that was denied by the h ~ l c i e r , "WiMers

~ v.Hackett, 1998 ME 164,

7, 714 A.2d 798, 800. Although a plaintiff must assert some property interest in

an action for conversion, a claim of absolute title to the property is not required.

Horton & McGehee, Maine Civil Remedies, 5 18-3 at 356 (citing cases). If the

plaintiff was, at the time of the alleged conversion, in actual possession of the

personal property, she is entitled to a presumption of titie and may maintain an

action against anyone who dispossesses her of it. Carey v. Cyr, 113 A.2d 614 (Me.

1955).Seizing property or misusing legal procedures to take possession of it may

1

Such a demand may not be required when the defendant has taken possession

wrongfully or demand would be futile. See, e.8.' B~~idford

iil. Dumond, 675 A.2d

957, 962 (Me. 1996); Ocean Nat? Bank of Kennebunk v. Diment, 462 A.2d 35, 339-40

(Me. 1983).

constitute conversion. Simmons, Zillman & Gregory, Maine Tort Law § 6.04 at 6-

8-6-10 (2004 ed.) The statute of limitations on claims of conversion is six years

from when the cause of action accrues. Townsend v. Appel, 446 A.2d 1132,1132

(Me. 1982)(son's suit for conversion against executrix of father's estate barred by

6-year statute of limitations under 14 M.R.S.A. 5 752).

Here, as in Count V, Jo-Anne's claim may include property formerly in

Donald's estate. However, in part, the claim is brought against Plaintiffs as

individuals who came into the possession and control of property formerly in Jo-

Anne's possession, following Plaintiffs' removal of Jo-Anne from the premises at

32 Pillsbury Road.

To the extent Jo-Anne's counterclaim for conversion in Count VI is not a

claim against Donald's estate or Donald, but a claim for damages against

individual Plaintiffs in control and possession of personal property, it is does not

meet the Probate Code's definition of "claims" barred by the 60-day statute of

limitations on estate claims pursuant to 18-A M.R.S.A.§ 3-806 of the Probate

Code. Plaintiffs' Motion for Summary Judgment on Count VI against Plaintiffs

as individuals on that basis is therefore, denied.

111. Plaintiffs' Motions to Strike.

Plaintiffs move to strike all 22 of Jo-Anne's Additional Statements of

Materiai Fact on the grounds that the statements include inadmissible evidence

of remarks of the decedent, are not material to the issues on summary judgment,

or are not supported by written documentation. Because none of the objected-to

statements form the basis for this decision regarding statutory definitions and

limitations, the Court does not reach Plaintiffs' hlotions to Stnke.

On Counts I, 11, I11 and, in part, Count VI. Summary judgment is hereby

GRANTED to Plaintiffs ~ I Counts

I I, 11, and 111 of Jo-Anne's counterclaims

against Plaintiffs in their capacity as personal representatives of Donald's estate

as time-barred pursuant to 18-A M.R.S.A. 5 3-806. Summary judgment is also

hereby GRANTED to Plaintiffs on the part of Count VI asserted against

Plaintiffs in their capacity as representatives of Donald's estate.

On Counts IV, V, and, i n part, Count VI. Because Jo-Anne's

counterclaim Counts IV, V, and, in part, VI, are raised against individual

Plaintiffs and not against Donald or his estate, they are not time barred by the 60-

day provision of 18-A M.R.S.A. 5 3-806, and Plaintiffs' Motion for Summary

Judgment on Counts IV, V, and VI (against individual Plaintiffs), is hereby

DENIED.

Date

V Justice, Superior Court

- COURTS

nd County

3x 287

le 041 12-0287

JAMES BEALLEAU ESQ

PO BOX 3 2 0 0

AUBURN ME 0 4 2 1 2

' COLIRTS

~d County

IX 287

e 041 12-0287

EDWARD MACCOLL ESQ

BRADFORD BOWMAN ESQ

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PORTLAND ME 0 4 1 1 2