Theriault v. Burnham, 060309 MESUP, CV-08-025

Docket NºCivil Action CV-08-025
Opinion JudgeJoyce A. Wheeler, Justice.
Party NameCLEMENT THERIAULT, Plaintiff. v. KENNETH C. BURNHAM, Defendant.
Case DateJune 03, 2009
CourtSuperior Court of Maine




Civil Action No. CV-08-025

Superior Court of Maine, Cumberland

June 3, 2009

Joyce A. Wheeler, Justice.


Before the court is Defendant Kenneth Burnham's motion for summary judgment.1


On January 16, 2008, Plaintiff Clement Theriault (Theriault) filed a two-count complaint against Defendant Kenneth Burnham (Burnham). Count I alleges that Burnham tortiously interfered with an expectancy. Specifically, Theriault alleges that Burnham tortiously interfered with a property bequest that Theriault was to receive by the late Helen Dingley (Ms. Dingley), but who ultimately bequested the property to Burnham. Count II alleges intentional infliction of emotional distress, but Theriault is no longer pursuing this claim. Pl/s Opp'n to Def/s Mot. Summ. J. at 3, n. 1.


I. Undisputed Facts

Ms. Dingley was born on January 12, 1915. She died on September 17, 2007, at the age of 92. At all relevant times to this lawsuit, Ms. Dingley owned real property located at 1 Kent's Landing in Naples, Maine (Kent's Landing). Theriault and Ms. Dingley have known each other for decades, he was a friend of her long deceased son. Throughout the years, Theriault frequented the beach at Kent's Landing with his friends and family. At one point in time, in the 1980s, he even lived on the property and paid rent. In 2000, Theriault placed a camper of his own on Kent's Landing and used it until Ms. Dingley's death in 2007. Theriault had gatherings at his camper. At times Ms. Dingley was a part of these gatherings, but at other times Ms. Dingley disapproved of them because they had become problematic for the town of Naples. In the early 1990s, Ms. Dingley told Theriault that she had a will in place that left Kent's Landing to him. A later will, executed in 2001, left Kent's Landing to Theriault.

In 2000, Ms. Dingley and Burnham became acquaintances and eventually friends. Soon thereafter, Burnham moved into a trailer on Kent's Landing. Burnham never paid any rent to live there. Burnham and Ms. Dingley did, however, agree that Burnham could live on the property rent-free if he assisted her with taking care of the property and other matters. Burnham did, in fact, provide such assistance. Burnham's tasks increased over time. Initially, he did primarily property maintenance and other small tasks for Ms. Dingley. As Ms. Dingley's health deteriorated over the years, Burnham took on more responsibilities. Ultimately, Burnham was not only Ms. Dingley's property caretaker but also her primary care giver and chauffer. Indeed, Burnham drove Ms. Dingley anywhere she needed to go because she had lost her vision to such a degree that she could no longer operate a motor vehicle. Ms. Dingley even purchased a 2006 Lincoln for such purposes.2

Ms. Dingley's poor eyesight also inhibited her from independently overseeing and maintaining her personal finances. Ms. Dingley engaged the help of Burnham and an associate at her local bank to ensure accurate record keeping and timely bill paying. For the last year and half to two years of her life, Burnham wrote out virtually all of Ms. Dingley's checks, and then presented them to her for signature because she could not see well enough to write out the checks herself.

In the last several years of her life, in addition to her vision problems, Ms. Dingley suffered from severe cardiac difficulties, and other medical conditions, including hypertension. As indicated above, these conditions rendered her increasingly dependent on the assistance of others with respect to a variety of matters.

II. Disputed Facts

Theriault argues that Ms. Dingley's medical conditions, fragility, and age, made her more impressionable, vulnerable, and/or easily influenced than the average person, and she was particularly vulnerable to being influenced to take actions against her will by someone on whom she was dependent.3 PL's Add'l S. M. F. ¶¶ 45-47. The parties also dispute the reasonable inferences that can be drawn from Ms. Dingley's decision to terminate her relationship with her longtime attorney, C. Martin "Sonny" Berman, and instead retain attorney Robert Neault. PL's Add'l S. M. F. ¶¶ 73-82. Attorney Neault represented Burnham in various matters throughout the years. Id. The parties also dispute the inferences regarding Burnham taking Ms. Dingley to see Attorney Neault for her will revisions. Id.


I. Summary Judgment

Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99, ¶ 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99, 1 8, 694 A.2d 924, 926.

II. Standard of Proof

The parties disagree as to the appropriate standard of proof to be applied in this case. Burnham contends, incorrectly, that Theriault must prove his claim for fraud by clear and convincing evidence. Def.'s Mot. Summ. J. at 9. While Burnham is correct in his assertion that a claim of fraud often requires proof by clear and convincing evidence, see Arbour v. Hazelton, 534 A.2d 1303, 1305 (Me. 1987), 4 in an action for tortious interference with an expectancy, a plaintiff only must proof his or her case by a preponderance of the evidence. See, e.g., Petit v. Key Bank of Maine, 688 A.2d 427, 431 (Me. 1996) (rejecting the application of the clear and convincing standard in an action for wrongful interference with an advantageous existing valid contract or prospective economic advantage); Harmon v. Harmon, 404 A.2d 1020, 1026 (Me. 1979) (applying the preponderance of the evidence standard for claim of tortious interference by fraud and undue influence with plaintiff's expected legacy).5 If, however, a plaintiff alleging tortious interference seeks punitive damages, that portion of the claim must be proven by clear and convincing evidence. Petit, 688 A.2d at 433...

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