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Perry v. Dean

Supreme Court of Maine

March 2, 2017

CLAIRE DEAN PERRY et al.
v.
WILLIAM T. DEAN JR. et al.

          Argued: September 14, 2016

          Janet T. Mills, Attorney General, and Christopher C. Taub, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellant Department of Health and Human Services

          David F. Jenny, Esq. (orally), Owls Head, for cross-appellant Pamela W. Vose

          Cynthia A. Dill, Esq. (orally), Troubh Heisler, Portland, for cross-appellant Claire Dean Perry

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶l] The Department of Health and Human Services appeals from an order entered in the Business and Consumer Docket [Horton, J.) denying its motions for summary judgment. The Department argues that the court erred in holding that the Maine Probate Code contains an express waiver of sovereign immunity from tort claims and thus the Department may be liable for a breach of fiduciary duty when acting as a public conservator. Because the Probate Code does not expressly waive sovereign immunity and the record reflects that the Department did not waive immunity by obtaining liability insurance, we conclude that the Department is immune from the breach of fiduciary duty claims and accordingly vacate the order and remand for the entry of a judgment in the Department's favor.

         I. BACKGROUND

         [¶2] The following facts are undisputed unless otherwise noted. See Deschenes v. City of Sanford, 2016 ME 56, ¶ 3, 137 A.3d 198.

         [¶3] In May 2012, William T. Dean Jr. was involuntarily hospitalized and later transferred to a psychiatric facility where he remained until June 2013. After a Department investigation discovered that Dean owned properties in Owls Head and Rockland that were facing tax foreclosure, the Department filed a petition for a temporary public conservatorship in the Probate Court (Penobscot County) on September 5, 2012. See 18-A M.R.S. § 5-408-A (2016). The court [Woodcock, /.) granted the petition on September 6, 2012, appointing the Department as Dean's temporary public conservator with the power to manage and control his assets for six months.

         [¶4] On May 10, 2013, after the Department sold the Owls Head property purportedly to pay the outstanding taxes, Dean's sister, Claire Dean Perry, filed a complaint in the Superior Court (Knox County) against Dean, the trustee of a family trust, [1] the Department, and individuals who acted on behalf of the Department.[2] Perry alleged that she was residing at the Owls Head property pursuant to an agreement with Dean and asserted several claims arising out of the Department's management of Dean's property during the public conservatorship. The case was thereafter transferred to the Business and Consumer Docket.

         [¶5] Pamela Vose, who is Dean's cousin, was appointed as his conservator on August 1, 2013, after the Department's temporary public conservatorship had expired. Vose, on behalf of Dean, answered Perry's complaint and asserted various cross-claims against the Department and the individual state defendants, including a claim against the Department for breach of fiduciary duty. Vose alleged that the Department sold the Owls Head property for forty percent of the tax-assessed value, damaged Dean's real and personal property by allowing the Rockland property's water pipes to burst, euthanized Dean's cat, sold Dean's Cadillac for less than market value, and generally mismanaged Dean's property.

         [¶6] Vose then filed a separate action against the purchaser of the Owls Head property and other parties, and later amended her complaint to join the Department as a defendant. She alleged that the Department abused its authority by selling the cottage for less than fair market value.

         [¶7] The Department answered and asserted the affirmative defense of sovereign immunity in both the action initiated by Perry and the separate action initiated by Vose. The court [Horton, J.) appropriately consolidated the two cases for the purposes of discovery.

         [¶8] On May 15, 2015, the Department and the individual state defendants moved for summary judgment on all claims asserted against them in the two cases. On December 3, 2015, the court entered a summary judgment in favor of the Department and the individual state defendants on all of Perry's claims against them and most of Vose's claims, but denied the Department's motions for summary judgment on Vose's claims for breach of fiduciary in both cases.[3] The court concluded that provisions in Article V of the Maine Probate Code, see, e.g., 18-A M.R.S. ยงยง 5-417, 5-429(b), 5-601, 5-607, 5-611 (2016), expressly waived sovereign immunity and that the Department was therefore subject to suit in tort when acting as a public conservator. The court ...


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