CLAIRE DEAN PERRY et al.
WILLIAM T. DEAN JR. et al.
Argued: September 14, 2016
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
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
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
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.
The following facts are undisputed unless otherwise noted.
See Deschenes v. City of Sanford, 2016 ME 56, ¶
3, 137 A.3d 198.
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.
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,  the Department, and individuals who acted
on behalf of the Department. 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.
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
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.
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.
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. The court
concluded that provisions in Article V of the Maine Probate
Code, see, e.g., 18-A M.R.S. §§ 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 ...