In re Estate of Fournier, Aro-08-195.
| Decision Date | 24 February 2009 |
| Docket Number | No. Aro-08-195.,Aro-08-195. |
| Citation | 966 A.2d 885,2009 ME 17 |
| Parties | ESTATE OF George L. FOURNIER. |
| Court | Maine Supreme Court |
Daniel E. Wathen, Esq., Catherine R. Connors, Esq. (orally), Hallie Flint Gilman, Esq., Pierce Atwood, LLP, Portland, ME, Richard D. Solman, Esq., Solman & Hunter, P.A., Caribou, ME, for Faustina Fogarty.
Robert G. Bellefleur, Esq. (orally), Madawaska, ME, for Juanita Flanigan.
Harold L. Stewart II, Esq. (orally), Stewart Law Office, P.A., Presque Isle, ME, for Reginald King.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.
[¶ 1] Faustina Fogarty appeals from a judgment of the Aroostook County Probate Court (Dunleavy, J.) following a new trial granted by the court on Juanita Flanigan's motion in connection with the probate of the Estate of George L. Fournier, the deceased brother of Fogarty and Flanigan. Fogarty contends that the court erred in granting a new trial, and that the evidence does not support the court's judgment following that new trial. We affirm the judgment.
[¶ 2] George L. Fournier died on February 7, 2005, in Fort Kent. He had two surviving sisters, Fogarty and Flanigan. In April of 2005, on Fogarty's application, the Probate Court admitted Fournier's will for informal probate and appointed Fogarty as personal representative. Soon after, in May of 2005, Flanigan petitioned the court for formal probate of the will and appointment of herself as personal representative.
[¶ 3] In July of 2005, Fogarty filed a petition for a declaratory judgment, seeking to establish the existence of an oral inter vivos trust in the amount of $400,000 set up by Fournier to benefit only Fogarty. Following a hearing, the court found that although Fournier had entrusted $400,000 to his friends, Josephat and Yvette Madore, with instructions to deliver the sum to Fogarty upon his death, Fournier intended that the money be administered along with his Estate according to his will, and ordered that it be delivered to Fogarty in her capacity as personal representative of his Estate rather than as an individual and the sole beneficiary. The court thus formally admitted the will to probate, removed Fogarty as personal representative, appointed a third party as personal representative, and ordered Fogarty to return the $400,000 to the Estate for distribution among all devisees. Fogarty filed an appeal to this Court.
[¶ 4] By decision dated July 26, 2006, we vacated the Probate Court's decision and remanded the matter for entry of a judgment in favor of Fogarty. Estate of Fournier (Fournier I), 2006 ME 89, ¶ 10, 902 A.2d 852, 855. We concluded that the overwhelming and uncontradicted evidence established that "Fournier intended Fogarty to take the money in her individual capacity." Id. ¶ 9, 902 A.2d at 854. On September 1, 2006, the Probate Court, in compliance with our mandate, entered a judgment awarding Fogarty the entire $400,000 as the sole beneficiary of the trust created by Fournier.
[¶ 5] Ten days later, on September 11, 2006, Flanigan moved for a new trial, and for relief from the court's judgment, based on the discovery of new evidence. See M.R. Civ. P. 59, 60(b)(2). The newly discovered evidence on which Flanigan relied is a memo written by Fournier and signed by Josephat Madore, which was found in Fournier's home in late August of 2006. The memo acknowledged receipt of the $400,000 from Fournier and providing for the money to be distributed to Flanigan, Fogarty, and Curtis Ryan King, Fournier's grandnephew.
[¶ 6] Following a hearing, the court made the following findings as to Flanigan's motion for a new trial, which are supported by competent record evidence. At the time of his death, Fournier owned a one-bedroom home in Fort Kent. The personal representative retained Louis P. Albert and Michael C. Albert, of St. John Valley Realty Co., LLC, to clean up the Fournier home and list it for sale. The Alberts examined all of the items in the house, decided what to keep and what to throw away, and otherwise prepared the house for sale.
[¶ 7] Fournier's house was "full," "very cluttered," and was covered "wall to wall" such that "there wasn't a square foot that wasn't covered with something." It took four people an entire month to go through all of Fournier's belongings, and resulted in a large truck-full of items to be taken to the dump.
[¶ 8] In cleaning up the house, on August 31, 2006, the Alberts discovered the memo among Fournier's papers and effects. Fournier's bureau was forty to forty-five inches wide, stood five to six inches off the floor, and had a mirror attached at the top. While moving Fournier's bureau away from the wall, the Alberts discovered a small metal cash box that had been tucked under the bureau and "set way back against the wall."
[¶ 9] The metal box contained, among other things, the memo, which was written with both pen and pencil, and stated as follows:
Nov. 10, 1999
Be it remembered and done that I, George L. Fournier transferred to Josephat Madore the sum of $400,000 four hundred thousand dollars for sole purpose of reimburse to Juanita Flanigan, & Faustina Fogarty, and Curtis R. King Jr.
Signed: Josephat Madore
Pay back obligation
The court found the memo to be a reliable and adequately authenticated document, and granted Flanigan's motion for a new trial on the issue of the $400,000 trust created by Fournier.
[¶ 10] The court conducted the new trial on October 23, 2007, at which it admitted and considered the memo as newly discovered evidence. The court found that the memo evinced Fournier's intent to create an oral inter vivos trust, with Josephat Madore as trustee, in the amount of $400,000 to be divided equally upon Fournier's death among three beneficiaries: Fogarty, Flanigan, and King. Fogarty filed this appeal.
[¶ 11] Fogarty first contends that the court erred in granting Flanigan's motion for a new trial. The disposition of a motion for a new trial is reviewed for clear error as to the underlying factual findings, and for an abuse of discretion as to the court's ultimate decision. State v. Sheldon, 2000 ME 193, ¶ 7, 760 A.2d 1083, 1085; see also Estate of McCormick, 2001 ME 24, ¶ 35, 765 A.2d 552, 564.
[¶ 12] Generally, in the interest of judicial economy and the finality of judgments, "[n]ew trials based on newly discovered evidence are disfavored and granted only upon convincing proof." Hess v. Hess, 2007 ME 82, ¶ 14, 927 A.2d 391, 395 (quotation marks omitted); Town of Eliot v. Burton, 392 A.2d 56, 58 (Me. 1978). It is the moving party's burden to provide such convincing proof. Wooldridge v. Wooldridge, 2008 ME 11, ¶ 6, 940 A.2d 1082, 1084. The trial court may grant a motion for a new trial "for any of the reasons for which new trials have heretofore been granted in actions at law or in suits in equity in the courts of this state."1 M.R. Civ. P. 59(a). One such reason is the ground of newly discovered evidence, which was the basis of Flanigan's motion in this case.2 In order to prevail on a motion for a new trial on the ground of newly discovered evidence, the moving party must establish five elements:
(a) that the new evidence is such that it will probably change the result upon a new trial, (b) that is has been discovered since the trial, (c) that it could not have been discovered before the trial by the exercise of due diligence, (d) that it is material to the issue, and (e) that it is not merely cumulative or impeaching.
2 Field, McKusick & Wroth, Maine Civil Practice § 59.2 at 60-61 (2d ed. 1970) (citing Harrison v. Wells, 151 Me. 75, 81, 116 A.2d 134, 137 (1955)).
[¶ 13] Fogarty contends that Flanigan failed to establish three of these elements, but apparently does not dispute that (b) and (d), regarding the time of discovery and the materiality of the discovery, have been adequately established. Fogarty primarily argues that Flanigan's "failure to search the home with sufficient vigor" is fatal to her motion for a new trial in that it indicates a lack of the requisite due diligence as a matter of law. Fogarty also contends that the evidentiary value of the memo is merely impeaching, and that it should not change the prior ruling that Fogarty was the sole intended beneficiary of the trust.
[¶ 14] In reviewing the court's factual findings with regard to Flanigan's request for a new trial, we note that the weight of evidence and credibility of witnesses are matters exclusively within the province of the fact-finder. See Estate of Siebert, 1999 ME 156, ¶ 10, 739 A.2d 365, 368. That there is contrary evidence that would support a different result is not, without more, a basis for vacating the trial court's factual findings. Preston v. Tracy, 2008 ME 34, ¶ 10, 942 A.2d 718, 720. Only if there is no competent evidence in the record to support the court's decision, or if the findings of the court are insufficient as a matter of law, will we disturb the Probate Court's grant of a new trial. Id. [¶ 15] We agree with Fogarty that the due diligence standard is a "stringent" one. See Burton, 392 A.2d at 59. We have often affirmed the trial court's determination that so-called "newly discovered evidence" could have been found prior to or during the first trial with the exercise of such diligence; nevertheless, in each of these decisions, including those cited by Fogarty, the moving party was already aware of the existence of the "new" evidence, but either had not been able to locate the evidence in time to present it at the first trial, or had made the tactical decision not to do so. State v. Cookson, 2003 ME 136, ¶¶ 30, 33, 837 A.2d 101, 110, 111 (...
To continue reading
Request your trial
- Gravison v. Fisher
- In re Child Erica H.
-
Ma v. Bryan
... ... Estate of Fournier, 2009 ME 17, ¶ 11, 966 A.2d 885, 888-89.997 A.2d 758 ... [¶ 5] In ... ...
- Randall v. Conley