Estate of Steven L. Lake , 2016 Me. LEXIS 65 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 64Docket: Pen-15-258
Argued: March 3, 2016
Decided: April 28, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
ESTATE OF STEVEN L. LAKE
MEAD, J.
[¶1] George Lake was removed from the position of representative of the
Estate of Steven L. Lake (the Estate) as a result of his failure to obtain a suitable
bond. Following that removal, the Penobscot County Probate Court (R.
Bradford, J.) awarded attorney fees to Ralph Bagley on the basis of Bagley’s
motion for contempt, which was based on George’s alleged failure to comply with
a court order to obtain a bond. George does not challenge his removal as personal
representative, but contends that the court erred in proceeding on the motion for
contempt because the motion did not satisfy the requirements of M.R. Civ. P. 66.1
We agree and vacate the judgment.
I. BACKGROUND
[¶2] In 2011, Steven L. Lake murdered his wife, Amy Lake, and their two
minor children before taking his own life. Informal probate proceedings were
1
Pursuant to M.R. Civ. P. 66(a)(2)(F), Rule 66 is applicable to the Probate Court.
2
commenced in 2011 and George Lake, Steven’s father, was appointed as the
personal representative of the Estate. On September 22, 2011, Ralph Bagley, the
father of Amy Lake and a personal representative of the Estate of Amy Lake, filed
a creditors’ claim against the Estate, see 18-A M.R.S. §§ 3-801 to 3-818 (2015),
anticipating a wrongful death action on behalf of the Estate of Amy Lake against
the Estate.
[¶3] On May 29, 2012, Bagley filed a demand for bond,
see 18-A M.R.S. § 3-605 (2015), seeking a bond in the amount of $150,000 based
on the contentions that George misused assets and that the potential award from the
wrongful death action was likely to subsume the entire Estate. Well over a year
after Bagley’s demand, on February 28, 2014, George filed a petition to waive
bond, see 18-A M.R.S. § 3-604 (2015), citing his inability to obtain a commercial
bond as a result of “animosity between the two [e]states.”
[¶4] On March 18, 2014, Bagley filed a petition to remove George as the
personal representative, see 18-A M.R.S. § 3-611 (2015), alleging, inter alia, that
George should be removed because he failed to obtain a bond despite the earlier
petition, see 18-A M.R.S. § 3-605 (“Failure of the personal representative to meet a
requirement of bond by giving suitable bond within 30 days after receipt of notice
is cause for his removal and appointment of a successor personal representative.”).
On January 15, 2015, the court (1) denied George’s petition for waiver of bond,
3
requiring George to submit a personal surety bond in the amount of $75,000 within
thirty days, and (2) denied Bagley’s petition for removal.
[¶5] On February 20, 2015, pursuant to M.R. Civ. P. 66, Bagley filed a
motion for contempt against George alleging a failure to obtain a personal surety
bond within the thirty days following the January 15 order. The motion for
contempt, however, was neither verified nor had an attached affidavit. See
M.R. Civ. P. 66(d)(2)(A) (“The motion of a party shall be under oath and set forth
the facts that give rise to the motion or shall be accompanied by a supporting
affidavit setting forth the relevant facts.”).
[¶6] The court held a hearing on Bagley’s motion for contempt on
March 19, 2015. At the outset of the hearing, George challenged the sufficiency of
the motion for contempt on the basis that it was neither made under oath nor had a
supporting affidavit. In response, Bagley’s attorney argued that “any filing I make
before this [c]ourt is under oath as an officer of the law.” The court agreed with
Bagley’s attorney’s argument that the filing did not have to be under oath, saying,
Well I am going to rule that . . . even though it says under oath giving
rise and set forth the facts that give rise to the motion, while [the
motion] technically doesn’t say oh, I swear to this, I will accept
[Bagley’s attorney] saying that as an attorney and officer of the
[c]ourt, she has made a motion to represent and under [Maine Rule of
Civil Procedure 11] that provides I think is due diligence, the signing
of pleadings and motions is sufficient for the [c]ourt . . . to go forward
on that basis . . . .
4
[¶7] Having decided that the motion satisfied M.R. Civ. P. 66(d)(2)(A), the
court considered the merits of the case and concluded that it was “going to grant
the petition . . . to remove [George] from this point forward as the personal
representative and the [c]ourt will appoint [Bagley] as the personal representative
to go forward.” Bagley also sought $4,030.25 in attorney fees in connection with
the motion for contempt. The court granted the motion on April 23, 2015, initially
ordering George, in his individual capacity, to pay the attorney fees to the Estate,
but the court later amended the order on April 30, mandating that George pay the
attorney fees to Bagley’s attorney’s law firm instead. On May 1, 2015, George
filed a motion for reconsideration alleging that the attorney fees were excessive.
Before a decision was rendered on the motion, George appealed, contending, inter
alia, that (1) Bagley’s motion for contempt did not satisfy the requirements of M.R.
Civ. P. 66; (2) the court failed to find him in contempt; and (3) the court abused its
discretion in awarding attorney fees.2
II. DISCUSSION
[¶8] “We review a court’s interpretation of the Maine Rules of Civil
Procedure de novo and look to the plain language of the rules to determine their
meaning.” Gauthier v. Gerrish, 2015 ME 60, ¶ 9, 116 A.3d 461 (quotation marks
omitted). Maine Rule of Civil Procedure 66 provides that a motion for contempt
2
George does not challenge his removal as the personal representative.
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“shall be under oath and set forth the facts that give rise to the motion or shall be
accompanied by a supporting affidavit setting forth the relevant facts.”
M.R. Civ. P. 66(d)(2)(A). It is undisputed that Bagley’s motion for contempt was
neither verified nor submitted with an accompanying affidavit.
[¶9] The court found that the motion for contempt satisfied Rule 66 because
it was signed by an attorney pursuant to M.R. Civ. P. 11(a), apparently relying on
the following provision in Rule 11:
Except when otherwise specifically provided by rule or statute,
pleadings need not be verified or accompanied by affidavit. The
signature of an attorney or party constitutes a representation by the
signer that the signer has read the pleading or motion; that to the best
of the signer’s knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay.
An attorney’s signature pursuant to Rule 11, however, does not satisfy the
procedural requirements of Rule 66. Rule 11 states that “[e]xcept when otherwise
specifically provided by rule or statute, pleadings need not be verified or
accompanied by affidavit.” See M.R. Civ. P. 11(a) (emphasis added). As the plain
language makes clear, Rule 66 is an instance, as contemplated by Rule 11, where a
rule explicitly provides that a pleading must be verified or submitted with an
accompanying affidavit. See M.R. Civ. P. 66(d)(2)(A) (“The motion of a party
shall be under oath and set forth the facts that give rise to the motion or shall be
accompanied by a supporting affidavit setting forth the relevant facts.”).
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Compliance with Rule 11 does not, in and of itself, satisfy the requirements of
Rule 66. Because the motion for contempt here was neither verified nor submitted
with an accompanying affidavit, the court erred in proceeding on the patently
inadequate motion.3
The entry is:
Judgment vacated.
On the briefs:
Anthony P. Shusta II, Esq., Madison, for appellant George Lake
Jennifer L. Eastman, Esq., and Jonathan P. Hunter, Esq.,
Rudman Winchell, Bangor, for appellee Ralph Bagley
At oral argument:
Anthony P. Shusta II, Esq., for appellant George Lake
Jonathan P. Hunter, Esq., for appellee Ralph Bagley
Penobscot County Probate Court docket number 2012-400
FOR CLERK REFERENCE ONLY
3
Because we conclude that the court should not have proceeded on the motion for contempt, we do
not address any of George’s additional arguments regarding the imposition and amount of attorney fees or
the court’s alleged failure to make a contempt finding.