McClure v. Lowell

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-2019-232

PETER MCCLURE,
DOUGLAS MCCLURE and
ANN MCCLURE NOEL,
Plaintiffs
DECISION AND ORDER
V.

KATHLEEN M. LOWELL,
Defendant

Before the court is the Plaintiffs' Motion for Summary Judgment on their
complaint for equitable partition (Count I) and declaratory judgment (Count II). The
Defendant opposes the motion. Pursuant to M.R.Civ.P. 7(b)(7), the court will rule
on the motion without a hearing. Based upon the summary judgment record, the
following material facts are undisputed. 1
The three Plaintiffs and the Defendant are siblings who own property as
tenants-in-common located at 30 Robbins Lane in Rome, Maine. The property is
identified on Map 27, as Lot 45, and is described in a deed dated September 14, 2005
recorded in the Kennebec County Registry of Deeds at Book 8598, Page 0125. Each
sibling owns a 25% interest in the property. The parties were gifted the property by
their parents.
The Plaintiffs no longer wish to own the property with the Defendant because,
they contend, irreconci-lable differences have arisen between them in the

'Although the Defendant, in her submissions in opposition to the summary judgment motion,
purports to dispute certain facts, she has failed to comply with M.R.Civ.P. 56(h)(2). Accordingly,
the statement of facts in support of the summary judgment motion are deemed to be admitted.
M.R.Civ.P. 56(h)(4).
management, use and possession of the property. The Plaintiffs, however, do desire
to continue to own the property together without the Defendant. Physical division
of the property is impossible and impractical and would materially injure the rights
of the parties. The fair market value of the property, which consists of 2.98 acres of
land, a seasonal single-family residence and 3 seasonal one-bedroom cabins, is
$551,000.
A tenant-in-common has the right to seeks equitable partition of the property
pursuant to 14 M.R.S. § 6051 et seq. See Ackerman v. Hojnowski, 2002 ME 147, ~
19,804 A.2d 412; Libby v. Lorraine, 430 A.2d 37, 39-40 (Me. 1981). Moreover,
the court is authorized to permit a tenant-in-common to purchase the share of another
tenant-in-common. 14 M.R.S. § 6515.
In this case, three of the four tenants-in-common wish to purchase the
remaining 25% interest of the Defendant. Although the Defendant opposes this plan,
the court finds that it is the most fair and equitable alternative available.
Accordingly, it is hereby
ORDERED, that the property located at 30 Robbins Land in Rome, Maine,
being Lot 45 on Map 27, and more fully described in a deed dated September 14,
2005 recorded in the Kennebec Registry of Deeds at Book 4598, Page 0125, is
equitably partitioned, and it is further
ORDERED, that Defendant Kathleen M. Lowell shall convey her 25%
interest in the property to Plaintiffs Peter McClure, Douglas McClure and Ann
McClure Noel, and said Plaintiffs shall pay to Defendant Kathleen M. Lowell the
sum of $137,750 for her 25% interest in the property based upon its appraised value.
Counsel for the Plaintiffs shall prepare all necessary conveyance documents.

2
The entry is:
Plaintiffs' Motion for Summary Judgment is GRANTED. Final
judgment is entered in favor of Plaintiffs Peter McClure, Douglas McClure and Ann
McClure Noel against Defendant Kathleen M. Lowell on Count I (Equitable
Partition) and Count II (Declaratory Judgment) of their Complaint.
The Clerk is directed to incorporate this Decision and Order into the docket
of this case by notation reference in accordance with M.R.Civ.P. 79

Dated: December 7, 2020

Entered on the docket / :J ( ~ [jj.62J.D
I
Justice, Superior Court

3
PETER MCCLURE - PLAINTIFF SUPERIOR COURT
28 FEDERAL STREET KENNEBEC, ss.
NEWBURY MA 01950
Attorney for: PETER MCCLURE
~(~/Z\ Docket No AUGSC-CV-2019-00232

JACQUELINE RIDER - RETAINED
VERRIL DANA LLP DOCKET RECORD
ONE PORTLAND SQUARE
PO BOX 586
PORTLAND ME 04112-0586

Attorney for: PETER MCCLURE
KEITH E GLIDDEN - RETAINED
VERRILL DANA LLP
ONE FEDERAL STREET, 20TH FLOOR
BOSTON MA 02108-4407

DOUGLAS MCCLURE - PLAINTIFF
25 NORTH DUTCHER STREET
IRVINGTON NY 10533
Attorney for: DOUGLAS MCCLURE
JACQUELINE RIDER - RETAINED
VERRIL DANA LLP
ONE PORTLAND SQUARE
PO BOX 586
PORTLAND ME 04112-0586

Attorney for: DOUGLAS MCCLURE
KEITH E GLIDDEN - RETAINED
VERRILL DANA LLP
ONE FEDERAL STREET, 20TH FLOOR
BOSTON MA 02108-4407

ANN MCCLURE NOEL - PLAINTIFF
115 MILTON FALL COURT
MILTON VT 05468
Attorney for: ANN MCCLURE NOEL
JACQUELINE RIDER - RETAINED
VERRIL DANA LLP
ONE PORTLAND SQUARE
PO BOX 586
PORTLAND ME 04112-0586

Attorney for: ANN MCCLURE NOEL
KEITH E GLIDDEN - RETAINED
VERRILL DANA LLP
ONE FEDERAL STREET, 20TH FLOOR
BOSTON MA 02108-4407

vs
KATHLEEN M LOWELL - DEFENDANT
HCO BOX 99
BELGRADE LAKES ME 04918

Filing Document: COMPLAINT
Filing Date: 11/14/2019
Page 1 of 4 Printed on: 12/08/2020