Murray, Justice Maine Superior Court
matter came before the court for trial on, June 4, 5, and 6,
2019. Plaintiff appeared with his attorney, Scott Lynch.
Defendant appeared with her attorney, Ezra Willey.
Plaintiff filed his 4-count complaint on October 18, 2017.
Defendant filed her 11-count counterclaim on November 14,
2017, and an amended counterclaim on January 11, 2018.
parties became involved in a romantic relationship shortly
after they met in South Carolina, They then decided to move
to Maine together, the place where the Plaintiff grew up and
where his children were located. Defendant owned a home in
South Carolina, and before moving to Maine, the parties
readied that home to be rented.
the parties move to Maine in early 2010, they lived with the
Plaintiffs twin brother and his fiancee for a few months.
Thereafter, together they moved into 738 N. Main Street in
Brewer, Maine under what they believed was a rent-to-own
situation. While the arrangement did not turn out to be a
rent-to-own situation, the parties purchased 738 N. Main
Street in Brewer, Maine in June of 2011. They are joint
tenants on the deed.
parties continued to co-habit at 738 N. Main Street in
Brewer, Maine until April of 2015. Both parties worked hard
and shared household expenses. Defendant handled the finances
for the couple. Defendant was careful with money and the
bills were paid on time. Defendant had an excellent credit
score, In 2011 -2012, Plaintiff went through bankruptcy.
purchase of the home, the parties made many improvements to
it. Most importantly, the roof was completely replaced.
Additionally, new windows were installed, the interior walls
were refinished, new hardwood floors were installed, and new
tile was installed. The parties also removed the asbestos
siding and replaced it with boards. These boards were painted
with a product which was designed to delay the need to put
permanent exterior materials (siding) on the house. Plaintiff
did a great deal of the work himself, Defendant contributed
to some of the work, and the parties hired others to help
with the work. The materials for the improvements were paid
in a general way through the earnings of both parties. While
some of the work may need to be redone, these improvements
was a floor installer by trade and Defendant was a waitress.
They both had success in their jobs. In fact, Plaintiff was
so successful in his work that after working for another
company, he struck out on his own and did business as
"Kelley Flooring." After a couple of years, his
work had increased to such a degree that he needed help with
the administrative aspects of the business. Defendant stepped
into this role, and demonstrated skill with the
"Kelley Flooring" did not keep traditional books,
such as a ledger of income and expenses (Accounts/Payable and
Accounts/Receivable). This failure to keep traditional books
has made it more difficult for the parties to recreate their
history and makes it more difficult for the Court to be as
precise as it might like. The Court cannot emphasize enough
the difficulties this case presents with the commingling of
the monies earned by each party, the personal expenses paid
from a variety of accounts, the business expenses paid from a
variety of accounts, and the general lack of an organized
bookkeeping system. It appears that neither party drew a
paycheck or wages from "Kelley Flooring," nor were
there identified distributions from the business. Finally,
the ownership of "Kelley Flooring" changing over
the period of time in question further complicates the
parties wished to develop the "Kelley Flooring"
business. In particular, they hoped to open a
"storefront" which would be a show room for floor
coverings. In connection with this effort, on September 19,
2013, Plaintiff sold "Kelley Flooring" to the
Defendant for $1.00. Kelley Flooring rented a building at 46
Center Street in Brewer, Maine, and began to make leasehold
improvements. The first floor, which was intended to be used
for the Kelley Flooring store, was gutted. Before December
31, 2013, $8, 000 to $10, 000 was spent to improve the
building on Center Street to create the "Kelley
point, the parties learned the Center Street building was in
foreclosure, and plans were made to purchase the building.
While purchasing the building was, at least in part, an
attempt not to lose the value of the leasehold improvements,
because of his poor credit, Mr. Kelley could not take
advantage of this opportunity. On December 31, 2013,
Defendant became the record owner of the Center Street real
estate. In connection with the purchase, Plaintiff became a
"guarantor" of the loan and he provided his
interest in the N. Main Street home as surety for the loan.
first floor of the Center Street building was never finished
and "Kelley Flooring" never created the show room,
It does not appear that any substantial money was spent in
renovating or upkeeping the Center Street property between
December 31, 2013 and April 2015.
are three apartments at the Center Street location, two on
the 2nd floor and one on the third floor. It appeal's
that at least the two apartments on the 2nd floor have
generally been rented. In 2015, the rents were sufficient to
cover the payment of the mortgage, insurance, and taxes.
However, in 2014, 2016, and 2017 the rents have not been
sufficient to cover the mortgage, insurance, and taxes.
April 14, 2014, the parties signed a Partnership Agreement.
The Agreement was drafted by the Defendant, after finding an
example on-line. The Partnership Agreement was to be known as
"Kelley Flooring". There appears to have been no
change in the operation of Kelley Flooring from when
Defendant began keeping the books through the time the
Plaintiff left the relationship in April of 2015. Thus,
before the business was sold by the Plaintiff to the
Defendant on September 19, 2013, between September 19, 2013
and April 14, 2014 when the Partnership Agreement was signed,
and between April 14, 2014 and April of 2015, things remained
the same: Plaintiff continued to do installation work along
with his crews and Defendant continued to perform the
March, 2015, Plaintiff was admitted to a short-term substance
abuse rehabilitation program. In early April, 2015, the
romantic relationship ended when Plaintiff left the N. Main
Street home. Between April, 2015 and June, 2015, "Kelley
Flooring" operated in a confusing manner. Plaintiff did
some installations and Defendant did some administrative
work, but it was not coordinated, "Kelley Flooring"
effectively ended on June 25, 2015.
March 16, 2016, Mr. Kelley filed a Complaint for Recovery of
Personal Property. On April 14, 2016, Ms, Richardson filed a
Complaint from Protection from Abuse. Ultimately these cases
were resolved through the issuance of a Protection from Abuse
Order by agreement and without findings, but with an order
that certain personal property of Mr. Kelley be given to him
and that other personal property of Mr. Kelley would remain
with Ms. Richardson "for the time being." The
Complaint for Return of Personal Property was dismissed in
connection with the Amended PFA Order.
Clifford and Timothy Kelley picked up some of Plaintiff s
personal property from the Defendant, but they did not
retrieve the larger items, In April, 2016, Defendant filed a
document with the Court stating that she had made Mr.
Kelley's personal property available for pick-up, but
that Mr. Kelley's agents only retrieved a few personal
Court will analyze each claim in turn.
Count I - Partition
A. 738 N. Main Street - this property is owned by the parties
jointly, and the parties agree the property should be sold.
Therefore, it is ordered that the property be sold in a
commercially reasonable manner. The parties, through their
attorneys, shall agree upon a broker to list the property. If
the parties cannot agree, Mike Rair, Esq., if he is willing,
shall select a broker. The parties shall follow the advice of
that broker as to listing price, any price reductions, and
the selling price.
The parties do not agree about the distribution of the
proceeds. The main disputes relate to: (i) the down payment,
(ii) each party's contributions to the house, and (iii)
payment of the mortgage, taxes, insurance, and utilities for
the home after Plaintiffs departure in April of 2015.
(i) One party's funds used for the down payment for the
home is not a proper item to be considered in this partition.
See Libby v. Lorraine, 430 A.2d 37 (Me. 1981);
Boulette v. Boulette, 627 A.2d 1017, 1018 (Me. 1993)
("Contributions of the parties to the property prior to
the joint tenancy, however, are not equities growing out of
the joint tenancy relationship. To allow the consideration of
contributions preceding the joint tenancy would defeat joint
(ii) The Court finds that Plaintiff contributed more of the
labor than did the Defendant in the improvements made to the
home. In particular, Plaintiff replaced the roof, fixed
interior walls, installed windows, installed flooring, and
worked on the exterior walls. Defendant contributed to some
of this work, but her labor was far less than the Plaintiffs;
(iii) During the relationship, both parties contributed to
the expenses related to 738 N. Main Street on a basis that
satisfied them both at the time; and
(iv) The Court finds that the Defendant has kept the
mortgage, taxes, insurance, and utilities paid for the home
since Plaintiffs departure and has spent some minor amount of
money on improvements. On the other hand, Defendant has had
exclusive use and possession of the home since that time.
Additionally, Defendant has shared the residence with a
third-party for close to the last two years, and this
third-party has contributed to the household expenses.
After considering the factors above and balancing all the
equities, the Court orders that upon sale of 738 N. Main
Street, after payment of the mortgage and costs of the sale,
the proceeds will be divided equally by the parties,
Between now and the sale, Defendant shall continue to have
exclusive possession of the home and shall keep the regular
mortgage payments, insurance, taxes and utilities paid.
Center Street property presents the most difficult issue in
Plaintiff claims that he has an ownership interest in the
Center Street property, and Defendant claims that she is the
sole owner of the Center Street property. Plaintiff claims he
made substantial improvements to the property, and that the
April 14, 2014 Partnership Agreement was an attempt to
memorialize the partnership's acquisition of the
Plaintiff has suggested, among other things, that his being a
"guarantor" and putting his ½ interest in
the N. Main Street home at risk to secure the mortgage on the
Center Street property, that his contribution of labor to
renovations, that his agreement that Defendant's son
should be re-paid for the down payment he loaned for the
purchase of the building, and Defendant's taking a
photograph of Plaintiff putting a key in the door of the
building are all factors the Court should consider in
determining that he has an ownership interest in the
The Court finds that the purpose of looking into the Center
Street property was to find a showroom for "Kelley
Flooring." All of the above considerations suggested by
the Plaintiff are consistent with Plaintiff wishing to do
what he could, particularly given his poor credit, to make
the showroom a reality. Even the photograph is consistent
with Plaintiff being proud to be advancing the "Kelley
Flooring" business, a business that still contained his
name (even though he no longer owned it).
On December 31, 2013 when the building was purchased, title
to the property was taken by Kathryn Richardson, and remains
in that form. Importantly, title is not in the name of
"Kelley Flooring", or even Kathryn Richardson,
d/b/a "Kelley Flooring."
On April 14, 2014, the date of the Partnership Agreement,
"Kelley Flooring" did not have a store at the
Center Street property and the storefront was far from
complete. The Partnership Agreement itself listed the
"Kelley Flooring" business address as 738 N. Main
Street in Brewer, Maine.
Finally, during his testimony when asked about his concern
that the Center Street property was not in his name, Mr.
Kelley stated, among other things that "I wanted it
back." This suggests Mr. Kelley wanted back
what he owned in September of 2013 when he sold Kelley
Flooring to Ms. Richardson. When Mr. Kelley sold his interest
in "Kelley Flooring" in September of 2013, the
Center Street building was not owned by "Kelley
Flooring" or Mr. Kelley (or Ms. Richardson).
On the other hand, a careful review of Ms. Richardson's
tax returns reflects that the "Kelley Flooring"
business was reported on her Schedule C for years 2013
through 2015. The Center Street property was reported on
Schedule E, beginning in 2014. The 2014 and 2015 Schedule
C's for "Kelley Flooring" show that ½ of
the mortgage, ½ of the taxes, ½ of the
insurance and perhaps some utility payments for the Center
Street property were listed as expenses for "Kelley
Flooring." The Court has carefully considered
whether this tax return information accurately evidences
ownership by "Kelley Flooring" of the Center Street
real estate, and has concluded that it does not. Simply by
reporting something on a tax return does not make it so.
The Court does not find that Mr, Kelley made substantial
improvements to the Center Street property in reliance on a
promise that the property would be conveyed to him: the
substantial improvements were made before the Defendant owned
the Center Street property and the court does not find that
Defendant promised to convey any interest in the Center
Street property to the Plaintiff or that Plaintiff performed
any work on the property in reliance on any such promise.
See Tozier v. Tozier, 437 A.2d 645 (Me. 1981)
(promisee made substantial improvements to land in reliance
on promise that the land would be conveyed to him). The Court
does not find that, by her actions, Ms. Richardson impliedly
promised to convey the Center Street property to Mr. Kelley.
And, despite other evidence, while the Court finds that the
April 14, 2014 Partnership Agreement conveyed 49% of the
interest of "Kelley Flooring" to the Plaintiff, the
Court is not satisfied that "Kelley Flooring" owned
the Center Street property or that the Partnership Agreement
conveyed or intended to convey the Center Street property to
the Partnership (or to Mr. Kelley).
Plaintiff has the burden to establish an ownership interest
in the Center Street property, and the Court finds that he
has not met his burden. Therefore, the Center Street ...