Skip Maine state header navigation

Agencies | Online Services | Help
Estate of McCormick, continued.

B.  Lukas's Motion For Fees

	[¶26]  Lukas contends that the court abused its discretion in denying
his motion for attorney fees incurred during the will contest.  In denying the
motion, the court stated that Lukas's actions in offering the holographic will
for formal probate were "dilatory and calculated to protect himself, rather
than to benefit the estate."  In Estate of Voignier, 609 A.2d 704 (Me. 1992),
we clarified the section 1-601 phrase "as justice requires" by concluding that
an award of fees is warranted when the litigation in question "benefitted the
estate."  Id. at 708.  The policy rationale for allowing recovery of fees and
costs pursuant to this standard is to discourage speculative claims or
nuisance actions.  See Estate of Wright, 637 A.2d at 110.
	[¶27]  In this case, Lukas was aware that when the holographic will
was drafted, McCormick's testamentary capacity was highly questionable. 
Nevertheless, he allowed McCormick to draft the will, petitioned for formal
probate of the will, and then voluntarily abandoned that petition when he
realized its validity would not withstand scrutiny.  Because Lukas was aware
that the validity of the will was speculative, the court did not abuse its
discretion in denying Lukas's request for fees.  See id. at 109-10.{11}
	[¶28]  We review for an abuse of discretion a trial court's imposition of
sanctions for discovery violations.  See Harris v. Soley, 2000 ME 150, ¶ 9,
756 A.2d 499, 504; Pelletier v. Pathiraja, 519 A.2d 187, 190 (Me. 1986)
(stating that pursuant to this standard, we "shall not lightly overrule the trial
court's choice of sanctions").{12}  In Pelletier, we recognized that "Rule 37 is
a flexible rule for the trial courts and its only literal limitation is that the
exercise of discretion must be just."  Id. at 190 (internal quotation
omitted).{13}  In determining the scope of a sanction for discovery violations,
the trial court should consider "the effect pretrial violations have on the
adverse party and also evaluate the purpose the sanctions are to serve." 
Longley v. Knapp, 1998 ME 142, ¶ 7, 713 A.2d 939, 942 (quoting Employee
Staffing of Am. v. Travelers Ins. Co., 674 A.2d 506, 508 (Me. 1996)).  See
Soley, 2000 ME 150, ¶ 10, 756 A.2d at 505 (stating that sanctions may
serve to remedy the effects of noncompliance, to deter similar conduct by
the offending party, or to penalize the noncompliant party).  In this case, the
court imposed sanctions because Lukas refused to allow the deposition of
Attorney Young to proceed without an agreement that his testimony would
not constitute a wholesale waiver of the attorney-client privilege.
	[¶29]  At Lukas's first deposition, Attorney Mitchell asked Lukas: 
"Why did you then not file [the holographic will] after [McCormick's] death
until you chose to do so?"  Lukas's counsel objected on the ground of
attorney-client privilege and Lukas refused to answer the question.  At
Lukas's second deposition, Attorney Mitchell asked a similar question and
Lukas's counsel stated that "[b]efore he answers that . . . at the end of the
last deposition you had come to this point and I told you I needed to think
about what to do about his interactions with Jay Young . . . and I'm prepared
to waive the privilege as far as that's concerned."  Later in that deposition,
Lukas stated that he relied on the advice of Attorney Young in making his
decision to probate the will.
	[¶30]  At the deposition of Attorney Young, Lukas's counsel refused to
allow Young to answer Attorney Mitchell's questions.  The Young deposition
lasted only ten minutes, and Attorney Mitchell asked only two substantive
questions.  Attorney Mitchell first asked:  "Can you tell me what Steve
Hodsdon told you when you first talked to him about this case, that is, the
case of the Estate of Pearl McCormick?"  Lukas's counsel objected on the
basis of both the attorney-client privilege and the work product rule. 
Mitchell then asked:  "Mr. Young, did you advise Mark Lukas to file a
petition to probate an alleged holographic will in 1997 or 1998 in the York
County Probate Court?"  Lukas's counsel objected on the ground of
attorney-client privilege, Young refused to answer, and the deposition was
	[¶31]  When the court imposed sanctions, it determined that Lukas
had waived "any right he had to assert the attorney/client privilege
regarding evidence concerning why Lukas waited until he did before filing
an alleged holographic will of the decedent for probate."  No evidence
suggests, and the court did not determine, that Lukas had fully waived the
privilege with respect to communications he had with Young concerning
issues not related to the filing of the will.
	[¶32]  On appeal, Lukas contends that his objections at Young's
deposition were substantially justified as a matter of law because Young was
bound by the attorney-client privilege.  As such, Lukas claims, Young was
permitted to answer questions regarding only the probating of the will. 
Bowdoin, however, refused to recognize the limited waiver and contended
that Lukas had fully waived the privilege by virtue of his reliance on the
advice of counsel defense.
	[¶33]  M.R. Evid. 510 provides that "[a] person upon whom these rules
confer a privilege against disclosure waives the privilege if the person . . .
voluntarily discloses . . . any significant part of the privileged matter."  Lukas
voluntarily disclosed that he relied on the advice of counsel in deciding to
file the holographic will for probate.  It would have been unjust for the court
to allow Lukas to waive the privilege by claiming a reliance on advice of
counsel, but preclude Bowdoin from discovering the substance of that advice
during Young's deposition.  See Field & Murray, Maine Evidence § 510.1 at
232 (2000 ed.) (stating that a client "should not be allowed to state the
client's reliance on his or her lawyer's advice and then assert the client's
privilege not to let the lawyer testify about the advice actually given").
	[¶34]  Applying these evidentiary principles to the present matter, we
conclude that the court did not abuse its discretion in imposing sanctions. 
We see no basis for Lukas's assertion of the privilege with regard to the first
question Mitchell asked.  That question specifically asked what information
Hodsdon, decedent's former counsel, provided to Young concerning the
estate case.  The question in no way implicated the Lukas-Young
attorney-client relationship, and thus Lukas's assertion of the privilege was
misplaced.  Moreover, the second question specifically addressed the issue
on which Lukas had previously waived his right to assert the privilege. 
Whether the waiver itself was partial or full is immaterial because the
question was explicitly directed to Lukas's decision to probate the will. 
Young should have answered both questions posed by Mitchell because no
privilege existed with respect to the answer to the first question and Lukas
had no justification for asserting the privilege with respect to the answer to
the second question.  Accordingly, the court did not abuse its discretion by
imposing sanctions against Lukas for his refusal to allow the deposition of
Young to proceed.{14}
	[¶35]  Lukas contends that the court abused its discretion in denying
his motion to vacate the judgment disallowing the holographic will.  A party
seeking relief pursuant to M.R. Civ. P. 60(b) bears the "burden of proving
that the judgment should be set aside."  Keybank Nat'l Ass'n v. Sargent,
2000 ME 153, ¶ 13, 758 A.2d 528, 533 (citing Beck v. Beck, 1999 ME 110,
¶ 6, 733 A.2d 981, 983).{15}  A probate court's denial of a motion for relief
from judgment is reviewed for an abuse of discretion.  See Estate of Shapiro,
1999 ME 25, ¶ 14, 723 A.2d 886, 889.  We will defer to the trial court's
findings of fact unless such findings are clearly erroneous.  See Estate of
Plummer, 666 A.2d at 118.
	[¶36]  During the fees trial on October 27, 1999, the following
colloquy occurred between Attorney Mitchell and Bowdoin with regard to
the holographic will:
Mitchell:  What was your reaction to the will itself and the
likelihood that it was accurate?

Bowdoin:  I did not feel it was accurate.

Mitchell:  And why not?

Bowdoin:  Because she said she couldn't make a will for number

Mitchell:  She had told you that herself?

Bowdoin:  Yes, she had told me that, and number two, my own
thoughts at that time of $40,000 to Ruby McCormick, and she
probably didn't know if she had anything left and just wanted
him to pay the bills, and if there was some dollars left, then that
would be left to he and his wife.

Several months prior to this exchange, Bowdoin testified at her deposition
that she had met with McCormick in June 1989, and that McCormick
discussed making a will.  Lukas contends that analyzing these pieces of
evidence collectively establishes that: (1) Bowdoin had knowledge of
McCormick's testamentary intent in June 1989; (2) Bowdoin's knowledge of
the intent was newly discovered by Lukas in October 1999; (3) Lukas had no
way of discovering the new evidence prior to trial; and (4) Bowdoin's failure
to disclose the information constituted misconduct.  Moreover, Lukas
contends that had he been aware of this evidence prior to
December 14, 1998, he would not have consented to the court's dismissal of
the holographic will petition.  After a hearing on the issue, the court
disagreed with Lukas's interpretation of the testimony and denied his
motion to vacate.
	[¶37]  Lukas first contends that Bowdoin engaged in misconduct by
concealing the fact that she knew McCormick's testamentary intent in June
1989.  Thus, Lukas takes the position that the phrase "at that time" refers
to June 1989.  Bowdoin, however, contends that the phrase refers to her
1999 opinion regarding McCormick's intent when McCormick drafted the
holographic will in October 1989.  If Lukas is correct that Bowdoin knew
McCormick's testamentary intent in June 1989, Bowdoin arguably had a
duty to disclose that intent on her appointment as personal representative. 
See 18-A M.R.S.A. §§ 3-701-703 (1998).  If, however, the phrase merely
refers to Bowdoin's October 1999 opinion regarding McCormick's 1989
intent, it cannot be established that Bowdoin knew McCormick's
testamentary intent in 1989.  Whether the testimony related to Bowdoin's
June 1989 meeting with McCormick or Bowdoin's October 1999 opinion
regarding McCormick's 1989 intent is a question of fact.  We will not
overturn the court's factual finding absent clear error.  See Estate of
Plummer, 666 A.2d at 118.  We find none here.
	[¶38]  Lukas alternatively contends that he is entitled to relief from
judgment because the October 1999 testimony constituted newly discovered
evidence.  In order for relief to be granted, Lukas must establish that the
evidence is newly discovered and that the evidence could not have been
discovered by due diligence in time to move for a new trial pursuant to M.R.
Civ. P. 59(b).  See M.R. Civ. P. 60(b)(2).  Lukas fails on both fronts.
	[¶39]  First, based on the court's factual determination as to the
meaning of the testimony, Lukas cannot establish that the evidence was
newly discovered.  To the contrary, all Lukas can suggest is that his
interpretation of the testimony conflicted with the court's interpretation of
the testimony.  Second, even if the evidence was newly discovered, Lukas
could have elicited the testimony through due diligence.  Indeed, Lukas
needed only to ask Bowdoin, either in an interrogatory or during her
deposition, if she knew McCormick's testamentary intent in June 1989. 
That question was never asked.{16}  The court noted that Lukas had an
opportunity to ask the question on re-cross examination in October 1999
but elected not to do so.  Accordingly, we conclude that the court did not
abuse its discretion in denying Lukas's motion to vacate.
	[¶40]  In March 1999, the court entered an order granting successive
inventory and accounting trials.{17}  A trial court's decision to order separate
trials is discretionary.  See Almy v. U.S. Suzuki Motor Corp., 600 A.2d 400,
402 (Me. 1991) (citing Maietta v. Int'l Harvester Co., 496 A.2d 286, 290
(Me. 1985)).  We have instructed trial courts that the following factors
militate against separation: "1) substantial identity of the parties, and the
witnesses, 2) overlapping evidence, 3) relatively simple issues, 4) relative
times required for litigating different issues, and 5) the absence of
discernable prejudice to the parties."  Maietta, 496 A.2d at 290 (citing
Thornton v. Estate of Cressey, 413 A.2d 540, 545 (Me. 1980)).
	[¶41]  Lukas contends that the court abused its discretion by ordering
separate trials because separation prejudiced Lukas and inconvenienced the
parties and witnesses.  The record establishes, however, and Lukas provides
no argument to the contrary, that the court's order granting separate trials
did not serve to protract the litigation, inconvenience the parties or
witnesses, or prejudice Lukas.  Rather, the Probate Court's admission of
evidence outside the scope of the issues involved in the fees trial caused the
burdensome extension of the proceedings.  If the court had followed its own
separation order and the evidence at the fees trial had been limited to
Lukas's conduct in filing the will and offering the will for probate, then the
parties and witnesses would not have endured the inconveniences they
faced.  Thus, the problem lies with the conduct of the trial and the broad
admission of irrelevant evidence, not in the initial decision to separate
distinct issues and claims.  Accordingly, we cannot conclude that the
Probate Court clearly abused its discretion in ordering separate trials.
	The entry is:

The judgment ordering Lukas to pay Bowdoin's
attorney and personal representative fees is
vacated. The remaining judgments are
affirmed. The matter is remanded to the
Probate Court for further proceedings
consistent with this opinion.

Attorney for appellant: Robert Edmond Mittel, Esq., (orally) Mittel, Asen, Hunter & Cary, LLC P O Box 427 Portland, ME 04112-0427 James E. Mitchell, Esq., (orally) Jim Mitchell and Jed David, P.A. 86 Winthrop Street Augusta, ME 04330
FOOTNOTES******************************** {1} . McCormick was eventually adjudicated to be incapacitated. The testimony and letters of three different doctors support this adjudication. {2} . M.R. Civ. P. 53(b)(2), incorporated by reference into M.R. Prob. P. 53, provides that "[i]n absence of agreement of the parties, a reference shall be the exception and not the rule. [I]n an action to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it." {3} . Lukas also relies on Edwards v. Hall, 141 Me. 239, 42 A.2d 340 (1945), which suggests that a reference is proper to resolve complex issues involving a voluminous record. The opinion does not disclose, however, whether the parties agreed to the reference. {4} . See Commission To Study The Future Of Maine's Courts, Report To The 116th Legislature 72 (Feb. 28, 1993) (recommending the appointment of four full-time probate judges and stating that the "Probate Court system in Maine has been challenged for the appearance of impropriety conveyed by the presence of part-time judges who are not restricted from practicing law in the communities in which they serve"); Commission To Study Family Matters In Court, Final Report To The 112th Legislature 10-11 (March 1986) (noting the "serious potential conflict of interest existing when part-time probate judges are also part-time practicing attorneys"); Committee On Judicial Responsibility And Disability, Annual Report To The Supreme Judicial Court Of The State Of Maine 21 (1984) (noting that the "practice of law by part-time probate judges . . . continues to create an appearance of impropriety in many people's minds"); Maine Probate Law Revision Commission, Report To The 109th Legislature 8-10 (Feb. 21, 1980) (describing the system as "ethically uncomfortable and undesirable," and recommending that the situation be resolved by transferring probate jurisdiction to the Superior Court). One committee even recommended an outright prohibition of the practice: This is a situation which, in the committee's view, should no longer be allowed to continue. Just as Maine has worked toward the elimination of similar kinds of unhealthy conflicts of interest in the past by eliminating the part-time municipal judge positions and the part-time nature of the former county attorney positions, so should this conflict of interest situation be eliminated in the case of our part-time probate judges. Committee For The Study On Court Structure In Relation To Probate And Family Law Matters, Report To The Judicial Council 4 (Jan. 18, 1985). {5} . Section 307 provides, in pertinent part, that "[a] judge is considered to be interested in an estate or other probate proceeding . . . if the judge . . . represents a party in the proceeding. When such representation begins, the judge shall transfer the matter as provided in this section, after which transfer the judge . . . may continue such representation." {6} . To realize its intended effect, Lukas's motion for reference needed to be filed well in advance of when it was filed. Attorney Mitchell began representing Bowdoin in September 1997. In November 1997, Lukas filed a petition to probate the holographic will. In December 1998, the court entered a judgment dismissing with prejudice Lukas's petition. In April 1999, Lukas filed the motion for reference. Therefore, Lukas's motion for reference postdated Mitchell's appearance by more than a year and a half, and postdated the dismissal of the holographic will by more than four months. Thus, if Lukas sought a reference to ameliorate his due process concerns, as he alleges, the motion should have been filed when those due process concerns arose, not after a substantial portion of the litigation had been completed. {7} . Because Bowdoin's claims for attorney and personal representative fees are premised on the same theory, we review the claims simultaneously. {8} . Section 5-249(d) permits questions of liability between the estate and the conservator to be determined in a proceeding for surcharge. {9} . Although the Northeast Harbor Court concluded that the corporation's president usurped a corporate opportunity by purchasing the real estate, it nevertheless recognized that the president, in her individual capacity, could have engaged in such a commercial transaction if she had provided full disclosure to the corporation. See id. ¶¶ 12 & 13, 725 A.2d at 1022. {10} . As an additional theory on which to base the fee award, Bowdoin relies on M.R. Prob. P. 54(d), which authorizes an award of attorney fees and costs in the event of a "frivolous or malicious claim or objection." Lukas erroneously asserts that this Court lacks the authority to enforce such a rule. See Anderson v. Elliott, 555 A.2d 1042, 1047 (Me. 1989) (stating that the "Supreme Judicial Court in its rulemaking capacity binds not only the bar and all other courts; these rules also have the full force of law in our deliberations as the Law Court"). This Court has the authority to promulgate rules aimed at controlling pleading practice and procedure. See State v. Kelly, 376 A.2d 840, 844 (Me. 1977). M.R. Prob. P. 54(d)(1) controls pleading practice by awarding costs to a prevailing party on a frivolous claim. However, because the Probate Court did not find that Lukas's claim was frivolous or malicious, Bowdoin may not recover pursuant to rule 54(d) in the circumstances of this case. {11} . Bowdoin also requests that we remand this matter and order a surcharge for fees and costs of defending this appeal. Because we cannot conclude that Lukas's appeal lacked any "reasonable likelihood of success," indeed he was successful in part, Bowdoin's request is denied. Heikkinen v. Cote, 2000 ME 1, ¶ 3, 742 A.2d 942, 943. {12} . We generally apply a higher level of scrutiny only in those instances where the sanction imposed resulted in dismissal of a claim or cause of action. See Soley, 2000 ME 150, ¶ 9, 756 A.2d at 504; Saucier v. State Tax Assessor, 1998 ME 61, ¶ 6, 708 A.2d 281, 283. {13} . Rule 37 provides, in pertinent part: (a)(2) Motion. If a deponent fails to answer a question propounded . . . the discovering party may move for an order compelling an answer . . . in accordance with the request. . . . . (a)(4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. {14} . Lukas alternatively contends that the amount of the sanction was excessive. See Battryn v. Indian Oil Co., 472 A.2d 937, 941-42 (Me. 1984) (affirming sanction in the amount of $500 where noncompliant party ignored court orders to answer interrogatories on three different occasions over an eight month period). Bowdoin initially requested sanctions in excess of $6,000, but the court awarded only $3,690.02. The court carefully scrutinized Bowdoin's bill, including and excluding certain portions thereof, and set forth an amount for each category including attorney fees, paralegal fees, expenses, and reduced personal representative fees. Based on this record, we cannot conclude that the court abused its discretion in determining the amount of the sanction. {15} . Rule 60(b) provides, in pertinent part: On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . . {16} . Lukas contends that he did ask that question in an interrogatory, to which Bowdoin provided a three page answer, and at the deposition, but that Bowdoin's responses were incomplete and evasive. However, review of that evidence does not support Lukas's contention, but merely suggests that he did not receive the precise answer he was seeking. {17} . The order for separate trials presumably was issued in accordance with M.R. Civ. P. 42(b). The rule provides, in pertinent part, that a trial court, "in furtherance of convenience or to avoid prejudice may order a separate trial . . . of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross- claims, counterclaims, third-party claims, or issues."

Back to the beginning of the long opinion.

Back to the Opinions page.