Boucher v. Nason
| Decision Date | 13 June 2018 |
| Docket Number | SUPERIOR COURT Civil Action Docket No. RE-16-0131 |
| Parties | DAVID A. BOUCHER, Plaintiff, v. MARY K. NASON and JAMES C. NASON, Defendants. |
| Court | Maine Superior Court |
STATE OK MAINE
YORK, ss.
Defendants Mary Nason and James Nason have moved for summary judgment. For the reasons set out below, the motion is granted in part and denied in part.
David Boucher and Mary Nason are siblings. Their mother, Irene Boucher, owned and resided in a duplex located at 54 State Street in Biddeford, Maine (the "Property") before she passed away on January 19, 2009, (D.S.M.F. ¶ 1.) In her will, Irene devised the Property to David and Mary in equal shares; and if either Mary or David had predeceased Irene, Mary's son, James Nason, would receive a one-quarter interest in the property under the will. (D.S.M.F. ¶ 2-3.) Mary was designated as personal representative of Irene's estate. (D.S.M.F. ¶ 2.)
According to Mary, before Irene died she told Mary that she wanted James to be added to the deed of the Property. (D.S.M.F. ¶ 5.) The will, however, was not amended. Irene passed away four days later.2 (D.S.M.F. ¶ 6.)
The estate was opened in York County Probate Court and Mary was formally appointed as personal representative of the estate. (D.S.M.F. ¶ 8.) Because Mary was going through divorce and David was in bankruptcy at the time, they agreed that all of the assets of the estate would be distributed except the Property, which would be deferred until a later time. (D.S.M.F. ¶ 10.) In early 2011, with their respective, individual issues resolved, the Property was distributed. (D.S.M.F. ¶ 12.)
Mary states that she told David about their mother's desire to add James to the Property's deed; and David agreed. (D.S.M.F. ¶¶ 18-19.) David disputes this. He contends that Mary never discussed adding James to the deed with him and he never agreed to James's addition. (P.A.S.M.F. ¶ 60.)
Mary consulted with her divorce attorney, Neil Jamieson, about how to proceed in order to add James to the deed. (D.S.M.F. ¶ 21.) Attorney Jamieson told her that two deeds must be drafted in order to effectuate the transfer: (1) a deed of distribution conveying the Property from Mary as personal representative of Irene's estate to Mary and David; and (2) a quitclaim deed from Mary and David to Mary, David, and James as joint tenants. (D.S.M.F. ¶ 22.) Mary confirmed with Attorney Jamieson that David could call him with questions concerning the transfer. (D.S.M.F. ¶ 23.)
Attorney Jamieson prepared the deeds and contacted Mary, informing her that she and David needed to come to his office to sign the paperwork. (D.S.M.F. ¶ 24.) Mary claims she then told David that he needed to go to Jamieson's office to sign some papers that would complete the transfer and that after it was finished, he would receive a copy of the deeds. (D.S.M.F. ¶¶ 25; 53.) David says that Mary told him that he need to go to Attorney Jamieson's office to "finalize everything," which he understood to mean thetransfer of the Property according to the terms of the will. (P.O.S.M.F. ¶¶ 26, 50-51; Boucher Dep. 21.) During their conversations, Mary did not make any specific representations to David about, the contents of Irene's will or the quitclaim deed. (D.S.M.F. ¶¶ 27-28; 32.)
James Nason was living out of state and was not involved in the process of probating Irene's estate or the signing of the deeds in 2011. (D.S.M.F. ¶ 14.) James never spoke to David about Irene's will or the deeds. (D.S.M.F. ¶¶ 15-17.) He did not know about the deeds until Mary sent him a copy after they had been signed. (D.S.M.F. ¶ 14.)
Mary and David went to Jamieson's office separately on different days. (D.S.M.F. ¶ 33.) Mary signed the deed of distribution and the quitclaim deed on April 18, 2011; David signed the quitclaim deed two days later, on April 20, 2011. (D.S.M.F. ¶¶ 34-35.) Doth executed the deed before Attorney Jamieson and his staff, including a notary. (D.S.M.F. ¶ 33.)
When David went in on April 20th to sign the papers, Attorney Jamieson placed the deed in front of him, saying that it was what their mother wanted. (D.S.M.F. ¶ 36.) David signed the document. (D.S.M.F. ¶ 36.) Consistent with his policy and practice, Attorney Jamieson inquired whether David was signing the instrument of his own free will and volition, free of duress as his free act and deed; and David confirmed that he was. (D.S.M.F. ¶ 45.) After he had signed the deed and while his signature was being notarized, David saw James's name on the deed. (P.O.S.M.F. ¶¶ 29-30, 40, 56.) The deed was notarized by a staff member in Jamieson's office, Tamika Yee. (D.S.M.F. ¶ 37.) The deed was recorded on April 25, 2011 in the York County Registry of Deeds at Dook 16085, pages 651-652. (D.S.M.F. ¶ 58.)
David claims he did not actually learn about James's interest in the Property until July of 2015, four years later. (P.A.S.M.F. ¶ 89.) He further claims that subsequent to signing the deed he asked Mary why James's name appeared on the deed and was told that James would only receive her share upon her death. (P.O.S.M.F. ¶ 29, Pl. Dep. 31:19-22.) Mary offered to provide David with a copy of the deed, but he declined. (D.S.M.F. ¶¶ 54, 56.) David testified at deposition that he felt rushed by Attorney Jamieson during the process, partly because he arrived at Jamieson's office five minutes before it closed. (D.S.M.F. ¶ 47; Boucher Dep. 23.)
In October of 2016, David filed the instant complaint, alleging fraud (count I) and breach of fiduciary duty (count II); and seeking imposition of a constructive trust (count III) and equitable partition of the Property (count IV). Following the close of discovery, defendants filed the instant motion for summary judgment, arguing that plaintiff had not sufficiently shown the elements of fraud and breach of fiduciary duty and that equitable partition is moot because the Property has already been sold.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821, When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id.
In order to withstand a motion for summary judgment, a plaintiff must set forth a prima facie case of each element of the cause of action. Bonin v. Crepeau, 2005 ME 59, ¶ 8, 873 A.2d 346. See also Richards v. Town of Eliot, 2001 MR 136, ¶ 11, 780 A.2d281, 287; Smith v. Cannell, 1999 ME 19, ¶ 6, 723 A.2d 876, 878-79 () With regard to a fraud claim in particular, "plaintiffs must demonstrate specific facts that create a dispute as to whether defendants made a misrepresentation of material fact, with knowledge of its falsity or in reckless disregard of whether it was true or false and as to whether they reasonably relied on the misrepresentations to their detriment." Barnes v. Zappia, 658 A.2d 1086, 1089 (Me. 1995). Because an elevated clear and convincing evidence standard applies, a plaintiff must adduce sufficient evidence to allow a finding that it was "highly probable," not merely likely, that the fraud occurred. Id., citing Taylor v. Commissioner, 481 A.2d 139, 153 (Me. 1984).
Defendants object to some of plaintiff's statements of material facts, portions of his affidavit, and other materials as unsupported by proper record citations; resting on conclusory, speculative or other improper assertions; or as being in conflict with plaintiff's prior sworn testimony. See Defendants' Objections to Plaintiffs' Responses to Defendant's Statement of Material Facts and Reply to Plaintiff's Additional Statement of Material Facts. The court addresses objections that are material to the disposition of the instant motion.
Defendants challenge some of plaintiff's statements of material facts that rely on portions of his supporting affidavit because they conflict with his prior sworn testimony. In particular, they challenge a number of responses (including, for example, responses to paragraphs 26, 28, 29, 30, 31), all of which go to elements of the fraud claim, namelyfalse representation and reasonable reliance. The relevant portions of the affidavit at issue are paragraphs 14 to 18.3
A party "will not be permitted to create an issue of material fact in order to defeat a summary judgment motion simply by submitting an affidavit disputing his own prior sworn testimony;" and "cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory but does not give a satisfactory explanation of why the testimony is changed." Zip Lube v. Coastal Sav. Bank, 1998 ME 81, ¶ 10, 709 A.2d 733 citing Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).
As to the issue of misrepresentation, Plaintiff's deposition testimony is not fully consistent with his denial of Defendants' Statement of Material Fact #26, which asserted that David "was not relying on any representations from Mary because she never made any representations to him about what was in the deed or what was not in the deed." (D.S.M.F. ¶ 26.) Plaintiff explains his denial: "David relied on Mary's false representation that he needed to sign papers including a deed at Neil Jamieson's office to implement the 50/50 division of real estate pursuant to my mother's...
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