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Gumaer v. Gumaer

Superior Court of Maine, Cumberland

August 14, 2017

EUGENE O. GUMAER, as personal representative of the Estate of Eugene A. Gumaer Plaintiff
v.
ERIK GUMAER and ANGELA GUMAER and G. CHARLES SHUMWAY, II Defendants

          ORDER ON PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT

          A. M. HORTON, JUSTICE.

         This 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.

         Based on the entire record, the court grants Plaintiffs Motion to Enforce Settlement Agreement as set forth below.

         I. Background

         Evelyn 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.)

         This 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).

         The two 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.

         A. The Mutual Release and Settlement Agreement

         On 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"].[1]

         The Agreement provides, in pertinent part, that the parties agree as follows:

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 identified below.
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 days.

(Ex. A to Mot. to Enforce Settlement Agreement, Settlement Agreement p. 1.)

         The 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 § 3(c).)

         The 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.)

         B. Developments Following Entry of the Settlement Agreement

         In 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.

         Attorney 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.)

         Attorney 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.)

         On 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.)

         On 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 ...


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