Johnson v. Johnson
| Decision Date | 10 February 2015 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-11-209 |
| Parties | JO ROSEN JOHNSON, Personal Representative of the Estate of William I. Johnson, Plaintiff, v. DANAE. JOHNSON, LINDA J. OUELLETTE, ESTATE OF EMERSON JOHNSON, ESTATE OF ETHEL IRVING, JOYCE STOBO, and SALEM ADVISORY GROUP, LLC, Defendants, H. BECK, INC., and JO ROSEN JOHNSON, Third-party Defendants, ELEANOR PHINNEY, Party-in-interest and Cross-claimant. |
| Court | Maine Superior Court |
STATE OF MAINE
YORK, SS.
Before the court are motions for summary judgment by Defendants Dana Johnson, Linda Ouellette, Joyce Stobo, Salem Advisory Group, LLC, and H. Beck, Inc. Joyce Stobo and H. Beck also filed motions to dismiss. Originally named to this action as a Party-in-interest, Eleanor Phinney ("Phinney") later filed a motion to amend her answer to assert various crossclaims, which was granted. The Cross-claim Defendants have also moved for summary judgment. Plaintiff William Johnson1 and Phinney oppose the motions for summary judgment. Despite the many parties and motions before the court, this entire controversy involves a pair of antique chairs and a securities account.
Specifically, Plaintiff William Johnson brings claims against Dana Johnson and Linda Oullette in four counts including (1) tortious interference with an expectancy or gift, (2) lack of capacity and unjust enrichment, (3) mistake of fact and misrepresentation, and (4) return of property. The second and third counts request the court to impose a constructive trust over the funds from the securities account at issue. Party-in-interest and Cross-claimant Eleanor Phinney asserts tortious interference with an expectancy or gift and unjust enrichment claims against Dana Johnson and Linda Oullette. Phinney also asserts cross-claims for tortious interference with an expectancy and breach of contract against Joyce Stobo, Salem Advisory Group, LLC, and H. Beck, Inc. William Johnson later amended his complaint to mirror several of Phinney's claims.
Plaintiff William Johnson and Defendant Dana Johnson are the sons of Emerson Johnson. Emerson Johnson died on August 12, 2010. (Def.'s S.M.F. ¶ 2.)2 In the wake of Emerson's death, a dispute arose over entitlement to a securities account and a pair of antique chairs. (Def.'s S.M.F. ¶ 1.)
Emerson Johnson and Eleanor Phinney began dating in 1983. (Def.'s S.M.F. ¶ 46.) They remained a couple and lived together until shortly before Emerson Johnson'sdeath in 2010. (Def.'s S.M.F. ¶ 50.) Towards the end of Emerson's life, he was confined to a wheelchair and Phinney helped take care of him. (Def.'s S.M.F. ¶¶ 55-56.) Although Phinney never acquired a power of attorney for Emerson, she sometimes signed his name for him. (Def.'s S.M.F. ¶¶ 57-58.)
On August 31, 2009, Phinney drove Emerson to a meeting with Joyce Stobo, a financial advisor employed by Salem Advisory Group. (Def.'s S.M.F. ¶ 62.) The purpose of the meeting was to transfer Emerson Johnson's stock portfolio from Ameriprise Financial to H. Beck, Inc. (Def. Joyce Stobo S.M.F. ¶ 23.) At the meeting, among other documents, Stobo prepared an Individual Transfer on Death Account Agreement form ("the TOD form") for a securities account with an account number of 47G-239248. (Def. Joyce Stobo S.M.F. ¶ 26.) Stobo prepared the TOD form in Emerson and Phinney's presence. (Def. Joyce Stobo S.M.F. ¶ 28.) The TOD form called for 65% to be distributed to Phinney and 25% to William Johnson upon Emerson Johnson's death. (Def.'s S.M.F. ¶ 65.) It is unclear whether Emerson Johnson signed the TOD form or Phinney signed the form for him. (Pl.'s Resp. Def.'s S.M.F. ¶¶ 66, 68.) Phinney does not remember; she believes she could have signed the TOD form, but is not sure. (Eleanor Phinney Opp. S.M.F. ¶ 30.)3 If Phinney did in fact sign the form, she maintains that she did so at Emerson's request. (Eleanor Phinney Opp. S.M.F. ¶ 33.) Joyce Stobo was not in the room when the TOD form was signed and did not review the papers after they were signed. (Def. Joyce Stobo S.M.F. ¶¶ 29-30.) The TOD form replaced a prior TOD formgoverning the securities account that called for half a million to be distributed to Phinney and the remainder to Dana Johnson. (Eleanor Phinney Opp. S.M.F. ¶ 22.)
After Emerson Johnson died, Dana Johnson met with Joyce Stobo and informed her that the signature on the TOD form was not Emerson's. (Def. Joyce Stobo S.M.F. ¶ 41.) Dana Johnson claimed that he had a handwriting expert confirm the signature was not Emerson's and showed Stobo signature samples for comparison, convincing Stobo that he was correct. (Def. Joyce Stobo S.M.F. ¶¶ 42-45.) Convinced the signature on the TOD form was forged and invalid, at Dana Johnson's request, Stobo transferred the balance of the account to the Estate of Emerson Johnson. (Def. Joyce Stobo S.M.F. ¶ 46; Eleanor Phinney Opp. S.M.F. ¶ 42.)
Emerson Johnson possessed two hand-carved antique chairs that dated to the 19th century. A former slave who lived on Strawberry Island off Kennebunk carved the chairs and later gave the chairs to Elsie Libby. (Def.'s S.M.F. ¶ 5.) Libby held the chairs until Emerson Johnson stole them from her in the summer of 1973. (Def.'s S.M.F. ¶¶ 17-18.)4 The Johnsons never acquired lawful title to the chairs from Libby. (Def.'s S.M.F. ¶ 22.) In the 1980s, the chairs were moved to a barn owned by William and Emerson's mother, Ethel Irving, where William alleges he last saw them together. (Def.'s S.M.F. ¶ 27.) By 2007, only one of the chairs remained in Ethel Irving's barn. (Def.'s S.M.F. ¶ 32.) On February 3, 2008, Emerson Johnson hand-wrote a note that purported to gift the chairs to William Johnson. (Def.'s S.M.F. ¶ 37.) William Johnson does not currently know wherethe chairs are. (Def.'s S.M.F. ¶ 42.) Dana Johnson does not know where the chairs are and denies that he removed them from Ethel Irving's barn. (Def.'s S.M.F. ¶ 45.)5
"Summary judgment is appropriate if the record reflects that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ¶ 12, 86 A.3d 52 (quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646). "A material fact is one that can affect the outcome of the case." McIlroy v. Gibson's Apple Orchard, 2012 ME 59, ¶ 7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89, ¶ 17, 26 A.3d 794). "Even when one party's version of the facts appears more credible and persuasive to the court, any genuine factual dispute must be resolved through fact-finding, regardless of the nonmoving party's likelihood of success." Lewis v. Concord Gen. Mut. Ins. Co., 2014ME 34, ¶ 10, 87 A.3d 732. If facts are undisputed but nevertheless capable of supporting conflicting, plausible inferences, "the choice between those inferences is not for the court on summary judgment." Id.
Count IV of the Plaintiff's complaint seeks a claim for "return of property" against the Defendants. (Compl. 9.) In their motion for summary judgment, the Defendants address this as a conversion claim, while Plaintiff's opposition appears to characterize the claim as one for replevin.
A claim for conversion requires the plaintiff demonstrate "a property interest in the goods" and "the right to their possession at the time of the alleged conversion." Bradford v. Dumond, 675 A.2d 957, 962 (Me. 1996) (quotation marks omitted). "The converter need not intend any conscious wrongdoing,' but need only act with 'an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff's rights.'" Mitchell v. Allstate Ins. Co., 2011 ME 133, ¶ 15, 36 A.3d 876.
Plaintiff William Johnson maintains that he acquired rights in the chairs when Emerson Johnson gave them as an inter vivos gift, evidenced by a hand-written instrument dated February 3, 2008. (Def.'s S.M.F. ¶ 37.) William Johnson, the donee, has the burden of proof to establish the gift's validity. Rose v. Osborne, 133 Me. 497, 180 A. 315, 317 (1935). There is no evidence, however, that Emerson Johnson held lawful title to make that gift, and in fact, William does not controvert the assertion that Emerson Johnson stole the chairs. (Def.'s S.M.F. ¶¶ 17-18.); Me. R. Civ. P. 56 ().
As a result, the Plaintiff's conversion claim fails because he cannot establish that he acquired lawful rights to the chairs such that he is entitled to assert a conversion claim here.6 See Ocean Nat. Bank of Kennebunk v. Diment, 462 A.2d 35, 39 (Me. 1983) (); see also James v. Wood, 82 Me. 173, 174, 19 A. 160, 161 (1889) (). Without establishing that Emerson had lawful right to the chairs, the Plaintiff could not acquire lawful rights and therefore has no basis for a claim. See Doughty, 661 A.2d at 1122; see also Landry v. Mandelstam, 109 Me. 376, 376, 84 A. 642, 642 (1912) ().
Furthermore, there is no evidence in the record that Defendants even possess the chairs. The Plaintiff emphasizes statements allegedly made by the Defendants during the course of mediation discussions to prove the Defendants currently possess them. (Pl.'s Resp. Def.'s S.M.F. ¶ 45.) Pursuant to the confidentiality agreement that parties entered...
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