Magro, In re
| Decision Date | 01 March 1995 |
| Docket Number | No. 7157,Docket No. K,7157 |
| Citation | 655 A.2d 341 |
| Parties | In re Nancy Post MAGRO. DecisionLawno-94-514. |
| Court | Maine Supreme Court |
James H. Young, II, Bernstein, Shur, Sawyer & Nelson, Portland, Anita Volpe, Rockland, for appellant.
Ann M. Courtney, Murray, Plumb & Murray, Portland, James Elliott, Camden, for appellee.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
Victoria Pfeil, daughter of Nancy Post Magro, appeals from an order of the Probate Court (Knox County, Emery, J.) dismissing her petition for the appointment of a conservator for her mother. She contends that the court erroneously treated Magro's motion to dismiss as a motion for a summary judgment.
In 1973, while living in Cincinnati Ohio, Nancy Post Magro established a revocable inter vivos trust naming J. Tracy Coop, of Cincinnati, as trustee. After Magro moved to Maine, the Probate Court (Knox County, Emery, J.) appointed her son Benjamin Magro as her limited guardian to make "provisions for [her] care, comfort, and maintenance." In 1992, Magro amended the provisions of her trust agreement to name Rendle Jones, Esq. of Camden, as trustee. The assets of the trust include Markin Farm, the family home worth over one million dollars, and investments and securities worth over two million dollars. Pfeil, unhappy with certain decisions made by the trustee, and seeking to have herself appointed conservator for her mother, filed a petition with the court.
At a pretrial conference, Magro moved to dismiss the petition for failure to allege the statutory requirements. 1 After considering briefs submitted by the parties, and an affidavit submitted by Pfeil, the court dismissed the petition. Pfeil appeals.
Pfeil asserts that the court erred by improperly treating Magro's motion for dismissal as one for a summary judgment. The record demonstrates, however, that in addition to the pleadings, the court had before it Pfeil's affidavit and the record of the hearing to appoint Benjamin Magro as his mother's limited guardian. Although the court termed the disposition a dismissal, the label is not controlling. When the sufficiency of a complaint is challenged and the court considers appropriate materials outside the pleadings, the motion is treated as one for a summary judgment. M.R.Civ.P. 12(b); see also Vahlsing Christina Corp. v. Stanley, 487 A.2d 264, 266 (Me.1985). Such materials include affidavits, depositions and other sworn statements. Pfeil submitted an affidavit, the court properly considered it, and that converted the motion for dismissal into a motion for summary judgment.
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