MAINE SUPREME JUDICIAL COURT                                                          Reporter of Decisions
Decision: 2016 ME 64
Docket:   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.
                                                                                   5

“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.”).
6

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.
