Opinion

Pennell v. Kelley

Court
Superior Court of Maine
Filed
May 29, 2018
Status
Unpublished
On the bench
Daniel I. Billings
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERJOR COURT

SAGADAHOC, ss. Civil Action

Docket No. RE-2017-8

MARJAH PENNELL, Individually and )

on behalf of the Estate of Harold Howard )

Owen, Sr., )

)

Plaintiffs )

) ORDER AND DECISION

v. ) ON DEFENDANTS'

) MOTION TO DISMISS

MARGARET L. KELLEY )

) (Title to Real Estate Involved)

and )

)

INHABITANTS OF THE TOWN OF )

TOPSHAM, )

)

Defendants. )

This matter is before the Court on Defendant Margaret L. Kelley's Motion to

Dismiss, joined by Defendant Town of Topsham ("the Town").

BACKGROUND

In 1970, Gilbert B. Stanbridge granted the property at 223 Ward Road,

Topsham, Maine to "Harold Howard Owen, Jr." (Def. 's Mot. Ex. 5). This deed was

recorded in the Sagadahoc County Registry ofDeeds at Book 3 72, Page 115. (Def.' s

Mot. Ex. 5).

Harold Howard Owen, Sr., was domiciled at 223 Ward Road at the time of

his death on May 7, 2009. (Def.' s Mot. Ex. 1). Plaintiff, Mariah Pennell, is Harold

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Howard Owen, Sr. 's daughter, sole devisee, and personal representative of his estate.

(Def. 's Mot. Ex. 1 & 2). On the application for informal probate, completed by

Plaintiff and signed on June 3, 2009, the probate estate is listed as containing real

estate in the Town. (Def.'s Mot. Ex. 1).

On July 20, 2009, the Town sent a Tax Collector's Notice, Lien Claim and

Demand 30 Day Notice to Harold Howard Owen, Jr., the owner of record for 223

Ward Road. (Def. 's Mot. Ex. 3). On August 26, 2009, the Town sent a Tax Lien

Certificate to Harold Howard Owen, Jr., the owner of record for 223 Ward Road.

(Def.'s Mot. Ex. 4).

On January 25, 2011, the Town sent a Notice of Impending Automatic

Foreclosure 1 to Harold Howard Owen, Jr., which was returned as "not deliverable

as addressed, unable to forward." (Pl. 's Opp. Ex. 2). The returned envelope had the

message "PO Box 292, ?, leave it alone per Ruth" written on the front. (Pl. 's Opp.

Ex. 2).

The Town's "vision card," as printed on April 9, 2010, reflects Harold

Howard Owen Jr., as the owner of record of 223 Ward Street. (Pl. 's Opp. Ex. 3).

1 Plaintiff claims that only one Notice of Impending Automatic Foreclosure was sent, on January

25, 2011 and that the notice was incorrectly dated January 25, 2010. (See Pl. Opp. para. 3). The

Town admits that the notice sent on January 25, 2011 was incorrectly dated but asserts that it sent

the notice on both January 25, 2010 and January 25, 2011, and that only the January 25, 2011

Notice was returned. (Def.'s Reply. para. 3; Defs Mot. Ex. 6). Since the facts must be viewed in

the light most favorable to Plaintiff on a motion to dismiss, this Motion considers that only one

notice was sent, on January 25, 2011.

2

Someone added a note by hand to the vision card that reads: "Probate Howard SR?,

c/o Mariah L. Pennell." (Pl. 's Opp. Ex. 3 (emphasis in original)). Despite this note,

Plaintiff did not receive notice from the Town of the impending foreclosure.

(Compl. ,r 13). The foreclosure redemption period expired on February 26, 2011.

(Def. Mot. Ex. 6).

The May 26, 2011 Town Board of Selectmen's meeting minutes reflect the

following under the heading "Consideration and Any Appropriate Action on the

Tax-Acquired Property Formerly Owned by Harold Owen, Jr.":

Following an explanation by the Town Manager that the Owen

family has submitted a $3,100 check to cover all back-taxes, lien

charges and interest which happened because they never received

the lien notice because of a Jr./Sr. mix up ... it was unanimously

VOTED to authorize the Town Manager to accept the $3,100 for

back taxes and to authorize a Quit Claim Deed.

(Pl. 's Opp. Ex. 4). Plaintiff contends that the Owen family did not know of the mix

up. (Pl. 's Opp. p. 3). Plaintiff claims this by asserting that Defendant Kelley is not

a part of the Owen family, despite Defendant Kelley's denial and assertion that she

married a biological member of the Owen family. (Compl. ,r 16; Pl. 's Opp. ,-f 8;

Answer ,-f 16; Def.'s Reply i18).

The Town executed a Quit Claim Deed and a Corrective Deed on June 15,

2011 and July 22, 2011, respectively, to Defendant Kelley for the property at 223

Ward Road, recorded at Book 3301, Page 35 and Book 3306, Page 249, respectively.

(Def. 's Mot. Ex. 7).

3

Plaintiff commenced this action on May 22, 201 7, seeking Quiet Title in

Count I and alleging Conversion in Count II. Defendants Answered and Defendant

Kelley filed this Motion to Dismiss, joined by the Town through its Memorandum

iri Support of the Motion to Dismiss.

STANDARD OF REVIEW

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal

sufficiency ofthe allegations in the complaint." 2 Barnes v. McGough, 623 A.2d 144,

145 (Me. 1993) (internal citations omitted). The court shall "consider the facts in

the complaint as if they were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME

46, ~ 16, 17 A. 3d 123, 127. The complaint is viewed "in the light most favorable to

2 Although captioned as a motion to dismiss, such a motion may properly be considered as a motion

for summary judgment if the parties ask the court to consider evidence outside of the complaint.

See Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ,r 8, 843 A.2d 43. A narrow exception

allows the court to consider extraneous documents on a motion to dismiss that are public

documents, documents that are central to the plaintiffs claim, or documents referred to in the

complaint. Id. at ,r,r 9-11. In this case, the documents comprising the exhibits to the Motion to

Dismiss and responsive motions include:

the application for informal probate completed by Mariah Pennell (a public document

and referred to at Compl. ,r,r 5-6);

letters of authority for Mariah Pennell (a public document);

tax foreclosure and lien notices and tax lien certificates (referred to at Compl. ,r,r 8-9);

deed to Harold Howard Owen Jr. (a public document);

release deed and corrective deed to Margaret Kelley (public documents and referred to

at Compl. ,r,r 19-20);

returned envelope (referred to at Compl. ,r,r 9-10);

vision card for 223 Ward Road (a public document and referred to at Compl. ,r 12);

minutes of the May 26, 2011 Town Board of Selectmen meeting (public document and

referred to at Compl. ,r,r 14-15)

Since all the exhibits presented by the parties in connection with this Motion to Dismiss are

public documents and/or referred to in the Complaint, notwithstanding the extent to which such

documents are central to Plaintiffs claim, the Motion to Dismiss is properly considered as a motion

to dismiss.

4

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." Id.

(quoting Saunders v. Tisher, 2006 ME 94, ,r 8, 902 A.2d 830). "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." Id.

DISCUSSION

Under Maine law, property ownership is generally established through deeds

recorded in the registry of deeds within the county where the property lies. 33

M.R.S. § 201. Other methods of establishing ownership of property exist, such as

adverse possession, but none are alleged in the Complaint. The 1970 deed recorded

in the Sagadahoc County Registry of Deeds for 223 Ward Road, Topsham, reflects

Harold Howard Owen, Jr., as the owner. Since there are no other deeds alleged or

presented for 223 Ward Road, Harold Howard Owen, Jr., is considered the legal

owner of the property. The Town believed this to be the case, recognizing Harold

Howard Owen, Jr., as the owner of record on its vision card and issuing the

municipal tax lien notices and certificates in his name.

The two instances asserted in the Complaint where Harold Howard Owen, Sr.,

is listed as the property owner are (1) in the Application for Informal Probate,

completed by Plaintiff, and (2) in a handwritten note on the Town's vision card. The

probate application states that Harold Howard Owen, Sr., was domiciled at 223

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Ward Road and that the probate estate contained real estate in the Town of Topsham.

It does not specifically claim that Harold Howard Owen, Sr.' s estate contains 223

Ward Road. Even if it did, the probate applicant only swears that, as far as the

p~rsonal representative knows, the facts contained therein are accurate. It does not

establish the existence of these facts. It especially does not establish ownership over

a validly recorded deed in the registry. Perhaps Plaintiff truly believed that Harold

Howard Owen, Sr., owned the property and therefore truthfully completed the

probate application, but that does not establish that Harold Howard Owen, Sr.

actually owned the property.

The version ofthe vision card presented to the Court was printed in 2010, after

probate was opened and at which time the Town, through the registry, should have

had notice that Harold Howard Owen, Sr. 's estate claimed to own 223 Ward Road. 3

The note says "Probate Howard SR?, c/o Mariah L. Pennell" from which the Court

infers that the employee was confused because the printed vision card listed the

owner as Harold Howard Owen, Jr., while the probate application claims Harold

Howard Owen, Sr., owned it. However, this note also does not establish property

interest over a validly recorded deed in the registry.

3 In Maine, when an application for probate claims that there is real estate in the estate, common

practice dictates that an abstract of the application for probate is recorded in the registry of deeds

for the county within which the property lies. This effects to give constructive notice of the

ownership status of the property.

6

Plaintiff looks to the minutes ofthe May 26, 2011 Board of Selectmen meeting

and argues that the Owen family, and Harold Howard Owen, Sr.' s estate, did not

have notice of the liens, and since the Owen family did not have notice of the lien,

it could not have paid the $3,100 to discharge the liens. However, Defendant Kelley

is a member of the Owen family by marriage, despite Plaintiff's continued assertions

to the contrary. The Town was thus not mistaken in its minutes, as Plaintiff tries to

claim. Regardless, there was no error in the Town's not contacting Ms. Pennell,

even though she is the personal representative of Harold Howard Owen, Sr.' s estate.

Harold Howard Owen, Jr., is the owner of record and it was his name listed on the

liens, so there was no reason to contact Plaintiff as Personal Representative of the

estate. The "Jr./Sr. mix up" to which the meeting minutes refer appears, again, to be

a direct consequence of Plaintiff's completed probate application, which likely

resulted in the note on the vision card.

The significance ofthe returned certified mail envelope with the message "PO

Box 292, ?, leave it per Ruth" is unclear to the Court. "Ruth" may refer to Ruth

Lyons, the Town Treasurer. (See Def. Mot. Ex. 6). However, Plaintiff does not

provide an owner of the P.O. Box and does not explain how this establishes Harold

Howard Owen, Sr. 's ownership of the property.

Lastly, Plaintiff makes an argument the "Harold Howard Owen, Jr." named

as the grantee on the 1970 deed is the same person whose estate she probated as

7

"Harold Howard Owen, Sr." This argument is nonsensical. Plaintiff may be correct

that for Social Security and Homeland Security purposes, a legal name does not

include a suffix. However, that does not affect this matter, which relates to nether

of those offices. Plaintiffs claims that, for example, when John Smith, Sr., dies,

John Smith, Jr., suddenly drops the suffix "Jr."; and that if the man formerly known

as John Smith, Jr. has a son, he then becomes John Smith, Sr., and his son becomes

John Smith Jr. Plaintiff claims that "the only person who is supposed to be called

'Junior' is the son of someone with the exact same name. Once his father dies, he is

no longer a 'Junior."' When a person's parent dies, he is still the son of that parent.

This is not how these suffixes are understood to operate by the general population

and in common usage and the Court declines to understand them as such now.

For the foregoing reasons, Plaintiff cannot sustain a claim to disprove that

Harold Howard Owen, Jr., is the owner of the property at 223 Ward Street. Nothing

has been claimed in the Complaint on which a court could find that Harold Howard

Owen, Sr., owned the property instead and is therefore entitled to any relief in this

matter.

CONCLUSION

Since Plaintiff has not presented a claim of quiet title or conversion upon

which relief can be granted, Defendant's Motion to Dismiss is GRANTED.

8

The clerk is directed to incorporate this Order by reference in the docket in

accordance with M.R. Civ. P. 79(a).

\ .

Date: May 29, 2018

/~t?J_;;h~'_, :/ }

~ l I. Billings~

Justice, Maine Superior Court

9

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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