Plaintiff: Kurt Olafsen Esq., Olafsen & Butterfield LLC.
Defendant: Timothy Norton Esq., Kelly Remmel & Zimmerman.
D. WARREN JUSTICE.
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
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.
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
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.
Transfer of Title - Count I of Amended Complaint
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.
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.
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).
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).
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, ...