EUGENE O. GUMAER, as personal representative of the Estate of Eugene A. Gumaer Plaintiff
ERIK GUMAER and ANGELA GUMAER and G. CHARLES SHUMWAY, II Defendants
ORDER ON PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT
case came before the court August 11, 2017, for oral argument
on Plaintiff's Motion to Enforce Settlement Agreement,
with counsel for Plaintiff and Defendants Erik and Angela
Gumaer participating. Also present but not participating in
oral argument was counsel for Defendant Charles Shumway.
on the entire record, the court grants Plaintiffs Motion to
Enforce Settlement Agreement as set forth below.
Gumaer Pike, Ellen Fogg, Eugene O. Gumaer, and Erik Gumaer
are siblings and the children of Eugene A. Gumaer (who will
also be referred to as the senior Mr. Gumaer to distinguish
him from his son, Eugene O. Gumaer). (See id.;
Compl. ¶ 5.) Angela Gumaer is Erik Gumaer's ex-wife.
(Compl. ¶ 4.) Erik and Angela continue to live and raise
their minor son together. (Id. ¶ 4.)
case was commenced by former-plaintiff Evelyn Gumaer Pike-in
her capacity as guardian and conservator for the senior Mr.
Gumaer prior to his death against Erik and Angela Gumaer and
attorney Charles Shumway. The complaint alleges, among other
things, that: 1) the Gumaer Defendants (as Erik and Angela
Gumaer will sometimes be referred to) persuaded the senior
Mr. Gumaer-who suffered from dementia and other ailments-to
sell his Westbrook home and to invest all of the proceeds
from that sale into two other properties owned in joint
tenancy with the Gumaer Defendants (Compl. ¶¶ 8,
18-21); and 2) Erik Gumaer improperly had himself named a
joint tenant on the senior Mr. Gumaer's bank account(s)
and-along with Angela Gumaer-proceeded to convert his funds
(Id. ¶ 24).
properties owned in joint tenancy among Erik Gumaer, Angela
Gumaer and the senior Mr. Gumaer prior to the latter's
death are on Batchelder Road in Windham and Cummings Road in
Gorham. They are referred to as the Gorham and Batchelder
properties. The Gumaer Defendants also own property on
Ebenezer Drive in Windham.
The Mutual Release and Settlement Agreement
September 14, 2016, in the course of a mediation facilitated
by attorney John Lambert as mediator, Evelyn Gumaer Pike in
both her individual capacity and her capacity as guardian of
the senior Mr. Gumaer, Eugene O. Gumaer, Ellen Fogg, Erik
Gumaer, and Angela Gumaer executed a Mutual Release and
Settlement Agreement ["the
Agreement provides, in pertinent part, that the parties agree
1. Erik Gumaer and Angela Gumaer agree to pay $150, 000 to
Eugene A. Gumaer.
2. The parties agree that for purposes of paying the $150,
000, Erik Gumaer and Angela Gumaer shall initially be able to
use the proceeds of the sale of the following properties for
payment but that if $150, 000 is not realized from the sale
of the following three properties and paid to Eugene A.
Gumaer, Erik Gumaer and Angela Gumaer shall remain liable for
the unpaid balance of the obligation to pay $150, 000,
payable immediately after the sale of the three properties
To the extent this Agreement relates to the sale of
properties, the Agreement must first be approved by Barbara
Carlin, Esq. and should she approve the terms of the
Agreement, the Agreement must be approved by the Cumberland
County Probate Judge (Approval).
Should either Ms. Carlin or the Judge not approve the
Agreement, the Parties agree to resume mediation within 30
(Ex. A to Mot. to Enforce Settlement Agreement, Settlement
Agreement p. 1.)
Agreement then sets out the three properties Erik and Angela
may sell to generate payment of the $150, 000, which are: 1)
the "Gorham property, " 2) the "Ebenezer Road
property, " and 3) the "Batchelder Road
Property" all of which are described as being
"presently owned by Erik Gumaer and Angela Gumaer."
(Id. at 1- 2.) In exchange, Evelyn Pike,
individually and as conservator for her father, Eugene A.
Gumaer, and Eugene O. Gumaer, and Ellen Fogg release Erik and
Angela Gumaer from any and all claims against them and Erik
and Angela Gumaer do the same. (Id. at 3
§§ 3(a), (b).) The release section of the Agreement
further provides that "[w]hen Erik Gumaer and Angela
Gumaer pay the full $150, 000, Eugene A Gumaer's [sic]
will deed his interest in the Gorham Property and the
Batchelder Property in any manner directed by Erik Gumaer and
or Angela Gumaer and discharge mortgages running to his
benefit secured by these properties." (Id. at
Agreement also provides, in a section titled
"Complaints, " that "[w]ith the exception of
MaineCare, the parties agree not to make any complaint to, or
make a report to, any other governmental agency concerning
the terms of this Mutual Release and Settlement Agreement or
the issues involved in this action." (Id. at 4
§ 13.) The Agreement further provides that "[a]ny
disputes about the language of this Mutual Release and
Settlement Agreement, or the interpretation or implementation
of this Agreement shall be submitted to arbitration before
John F. Lambert, Jr., Esq. The arbitrator shall award
attorneys' fees and costs to the substantially prevailing
party." (Id. at § 14.)
Developments Following Entry of the Settlement
support of their opposition, defendants submitted a number of
exhibits as well as the affidavit of Erik Gumaer. Plaintiffs
reply contains a number of supporting exhibits as well as
affidavits from Ellen Fogg and Evelyn Gumaer Pike, Eugene O.
Gumaer, Attorney Barbara Carlin, and Attorney David Turesky.
Barbara Carlin, whose approval is a condition of the
Settlement Agreement, asserts that she was contacted by
Evelyn Gumaer Pike and plaintiffs present attorney of record,
David Turesky, in 2015 to secure MaineCare benefits for Mr.
Gumaer. (Carlin Aff. ¶ 3.) Attorney Carlin asserts that
due to her efforts, Mr. Gumaer was placed at Portland's
Barron Center with a MaineCare subsidy. (Id. ¶
4.) She also asserts that she advised Evelyn that any suit
brought against Erik needed to be brought in Mr. Gumaer's
name and for his benefit. (Id. ¶ 5.)
Turesky asserts that following the signing of the Settlement
Agreement, he wrote to Ms. Carlin and DHHS seeking their
approval of the Agreement. (Turesky Aff. ¶ 3.) Attorney
Turesky goes on to provide a detailed description of his
efforts to obtain approval of the Settlement Agreement from
DHHS. (See id. ¶¶ 3-19.) He also details
his attempts to secure Erik Gumaer's consent through his
attorney, Stephen Whiting. Attorney Turesky asserts that
Attorney Whiting often failed to respond to his calls and
letters. (Id. ¶¶ 13, 15, 17-18, 20-22.)
December 23, 2016, Attorney Turesky mailed an unopposed order
of stay to the Superior Court and prepared a petition for
single transaction authority for filing with the Probate
Court, along with waivers and consents. (Id.
¶¶ 36-37.) The petition was filed on December 29,
2016, and Eugene O. Gumaer, Ellen Fogg, Attorney Rand, and
Assistant Attorney General Thomas Quinn-presumably
representing the interests of the Department of Health and
Human Services ("DHHS")-signed and returned waivers
of consent thereto. (Id. ¶¶ 38-39.)
According to attorney Turesky, attorney Whiting never signed
the waiver or consent. (Id. ¶¶ 39-40.) Mr.
Gumaer died on January 21, 2017. (Id. ¶ 42;
see also Erik Gumaer Aff. ¶ 6.)
February 3, 2017, Attorney Turesky informed the Probate Court
of Mr. Gumaer's death and again requested Attorney
Whiting execute the waiver and consent. (Turesky Aff
¶¶ 44-45.) On February 8, 2017, Attorney Carlin
opined to Attorney Turesky that they no longer needed Probate
court approval for the Settlement Agreement. (Id.
¶ 46; see also Carlin Aff. ¶¶ 6-7.)
Attorney Carlin asserted that prior to Mr. Gumaer's
passing, it was her professional opinion that for the
Agreement "to be properly binding and enforceable for
receipt of MaineCare benefits, Probate Court approval
was...required." (Cardin Aff. ¶ 6.) In light of Mr.
Gumaer's passing, however, Probate Court was no longer