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Powell v. Alfond

Superior Court of Maine, Cumberland

April 22, 2019

GREGORY POWELL, as Successor Trustee of the PETER G. ALFOND 2008 TRUST, Plaintiff
v.
REBEKAH ALFOND, et al., in their capacities as Trustees of the PETER G. ALFOND FOUNDATION; THEODORE ALFOND, et al, in their capacities as Trustees of the HAROLD ALFOND FOUNDATION; and MAINE ATTORNEY GENERAL, Defendants

          ORDER

          Thomas D. Warren, Justice.

         Before the court is a motion by defendants Rebekah Alfond, Sarah Benson, Deborah Alfond, and Kyle Alfond, sued in their capacities as trustees of the Peter G. Alfond Foundation, to dismiss or stay this action. This action was originally filed in the Probate Court but was removed to this court pursuant to 18-A M.R.S. § 1-306(b) on March 5, 2019.

         The motion to dismiss or stay was filed on October 16, 2018 and opposition papers were filed on November 6, 2018, but the motion has not been decided because, as set forth below, there has been a disagreement whether the disputes between the parties should be litigated in Maine or in Florida.

         Background and Prior Proceedings

         Peter G. Alfond, a son of Harold Alfond, died in Florida on July 10, 2017. Peter Alfond's will provided that, after certain specific bequests, the remainder of his estate would be left to the Peter G. Alfond 2008 Trust ("Peter Alfond Trust").

         This action involves a request for instructions by Gregory Powell, Trustee of the Peter Alfond Trust, with respect to the distribution of the residue of the Trust under Article Second (F) of the Trust. That Article provides that after making a number of specific distributions, the trustee shall pay over the balance of the trust property to the Peter G. Alfond Foundation and/or the Harold Alfond Foundation in such amounts and proportions as the trustee shall determine in his absolute discretion.

         Powell is seeking instructions because there appears to be a significant dispute between Powell, on one hand, and at least three of the children of Peter Alfond, on the other, as to the distribution of the trust residue between the Peter G. Alfond Foundation and the Harold Alfond Foundation. This dispute has led to the initiation of this suit in Maine and another action brought by three of the children of Peter Alfond in Florida.[1] The pending motion seeks to dismiss this action based on forum non conveniens or to stay this action in order to allow the Florida action to proceed.

         The Florida action and the Maine action were filed almost simultaneously. The Florida action, filed on September 12, 2018 by Rebekah Alfond, Sarah Benson, and Kyle Alfond, seeks removal of Powell as Trustee of the Peter Alfond Trust based on allegations that he has breached his fiduciary duty - largely because of his allegedly conflicting roles with respect to the Peter Alfond Trust, the Peter G. Alfond Foundation, and the Harold Alfond Foundation.[2] The Maine action was commenced on September 14, 2018, two days after the Florida action, although Powell has submitted a sworn declaration that he was not aware at that time that the children had commenced an action in Florida.

         The file reflects that prior to the commencement of the two lawsuits, both sides apparently took actions that could arguably affect the issue of whether Maine or Florida is the more appropriate forum. According to an exhibit attached to the papers filed by defendants, on April 10, 2018 Powell exercised authority under Article Thirteenth (B) of the trust instrument to change the law applicable to the Peter Alfond Trust from Florida to Maine.[3] On September 10, 2018, according to another exhibit attached to the papers filed by defendants, Rebekah Alfond, Sarah Benson, and Kyle Alfond exercised authority as a majority of the trustees of the Peter G. Alfond Foundation to change the law applicable to that Foundation from Maine to Florida - two days before the Florida action was filed.

         Rebekah Alfond, Sarah Benson, and Kyle Alfond are challenging Powell's decision to make Maine law applicable to the Peter Alfond Trust. It is not clear if Powell is challenging their decision to subject the Peter G. Alfond Foundation to Florida law. At this stage, the court cannot conclude or assume that there is any infirmity in either of the two transfers.

         After the two actions were filed, it appears that Powell and the other defendants in the Florida action moved to dismiss or stay the Florida action to allow the Maine action to proceed, and the children moved to dismiss or stay the Maine action to allow the Florida action to proceed. On February 25, 2019 the Maine Probate Court (Aranson, J.) issued an order stating that consideration of the motion to dismiss or stay the Maine action would await a ruling by the Florida court on the motion filed in Florida.

         On February 26, 2019 the Florida Circuit Court, Fifteenth Judicial Circuit, Probate Division issued an order staying the Florida action pending final adjudication of the Maine case. On April 15, 2019 the Florida court denied a motion for reconsideration filed by the Florida plaintiffs. Counsel for the children has advised the court that the three children who are plaintiffs in the Florida action have filed a petition for certiorari with the Fourth District Florida Court of Appeal seeking to overturn the Florida Probate court's decision.

         The court held a telephonic status conference on April 18, 2019 at which counsel for Powell urged the court to decide the pending motion. Counsel for the Alfond children urged the court to wait until there was decision on whether the Florida Court of Appeal will grant the petition for certiorari and hear the Florida appeal.

         At that time the court had not fully reviewed the file and advised counsel that it would do so as soon as its schedule permitted. As it turns out, this occurred sooner than anticipated. Moreover, in light of the delay that has already occurred, the decision of the Florida Probate court to allow the Maine action to proceed, the uncertainty and potential further delay in awaiting a Florida appeal that may or may not be accepted, and the ...


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