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Douglass v. Graffam

Superior Court of Maine, Cumberland

August 24, 2017

ELEANOR DOUGLASS, Plaintiff
v.
MARGARET GRAFFAM, Defendant

          Plaintiff: Kurt Olafsen Esq., Olafsen & Butterfield LLC.

          Defendant: Timothy Norton Esq., Kelly Remmel & Zimmerman.

          ORDER

          THOMAS D. WARREN JUSTICE.

         In this action plaintiff Eleanor Douglass seeks to set aside her conveyance of a residence in Parsonsficld to defendant Margaret Graffam. The amended complaint alleges four causes of action: (1) a statutory claim of undue influence under the Improvident Transfer of Title statute, 33 MRS, § 1021 et seq., (2) a claim for breach of fiduciary duty, (3) a claim of unjust enrichment, and (4) a non-statutory claim of undue influence.

         Before the court are four motions by Graffam: a motion for summary judgment, two related motions in limine, and a motion to strike Douglass's jury trial demand.

         Summary Judgment

         Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.

         In this case, as discussed below, whether there are genuine disputes of material fact for trial depends to some degree on whether Graffam is correct that certain evidence offered by Douglass should be excluded pursuant to the motions in limine that Graffam has filed.[1]

         Improvident Transfer of Title - Count I of Amended Complaint

         Eleanor's primary claim is based on the statute applicable to claims for improvident transfers of title, 33 M.R.S. § 1022(1), which provides in relevant part as follows:

In any transfer of real estate ... for less than full consideration . . . by an elderly person who is dependent on others to a person with whom the elderly dependent person has a confidential or fiduciary relationship, it is presumed that the transfer . . . was the result of undue influence, unless the elderly dependent person was represented in the transfer ... by independent counsel.

         That section goes on the provide that if the presumption of undue influence is successfully raised and the transferee fails to rebut the presumption, the elderly dependent person is entitled to avoid the transfer.

         Sections 1021 and 1022 of Title 33 provide definitions of the relevant statutory terms, including "dependent, " "confidential or fiduciary relationship, " and "independent counsel." 33 M.R.S. §§ 1021(1), 1021(3), 1022(2).

         In this case there is no dispute that Eleanor, who was 91 years old when she transferred the Parsonsfield property to Margaret, was elderly. 33 M.R.S. § 1021(2). There is also no dispute that Eleanor transferred the Parsonsfield property for less than full consideration. 33 M.R.S. § 1021(4). The remaining issues with respect to count I are whether Eleanor was "dependent on others" within the meaning of §§ 1021(1), whether Margaret was someone with whom Eleanor had a confidential or fiduciary relationship within the meaning of §1022(2), and whether Eleanor was represented by independent counsel within the meaning of § 1021(3).

         The court has reviewed the summary judgment record and concludes that there is a factual dispute for trial as to whether Eleanor qualifies as a "dependent" person under 33 M.R.S. § 1021(1). That provision defines "dependent" in pertinent part as

Wholly or partially dependent upon one or more other persons for care or support, either emotional or physical, ...

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