MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	113	
Docket:	   Han-16-533	
Argued:	   May	11,	2017	
Decided:	  June	6,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              KERRY	A.	JOHNSON	et	al.	
                                          	
                                         v.	
                                          	
                                BARBARA	C.	CRANE	
	
	
JABAR,	J.	

      [¶1]	 	 Kerry	 A.	 Johnson	 and	 Kathleen	 A.	 Thommen	 appeal	 from	 a	

judgment	 of	 the	 Superior	 Court	 (Hancock	 County,	 R.	 Murray,	 J.)	 dismissing	

their	 complaint	 for	 tortious	 interference	 with	 an	 expectancy	 and	 breach	 of	

contract	 against	 Barbara	 C.	 Crane	following	 Crane’s	 motion	filed	pursuant	to	

M.R.	 Civ.	 P.	 12(b)(6).	 	 Because	 we	 conclude	 that	 the	 issues	 raised	 by	 the	

complaint	are	not	yet	ripe	for	judicial	review,	we	vacate	the	court’s	judgment	

and	remand	for	entry	of	a	dismissal	without	prejudice.	

                                   I.		BACKGROUND	

      [¶2]	 	 The	 following	 facts,	 taken	 in	 the	 light	 most	 favorable	 to	 the	

plaintiffs,	are	derived	from	the	allegations	in	the	complaint.		See	Moody	v.	State	

Liquor	&	Lottery	Comm’n,	2004	ME	20,	¶	7,	843	A.2d	43.	
2	

          [¶3]		Jean	Quayle	Johnson	was	the	mother	of	Kerry	A.	Johnson,	Kathleen	

A.	 Thommen,	 Kim	 A.	 Johnson,	 and	 Kasey	 A.	 Reid	 (collectively,	 the	 children),1	

and	 sister	 of	 Barbara	 C.	 Crane.	 	 Jean	 died	 testate	 on	 October	 31,	 2015.		

Consistent	with	the	terms	of	Jean’s	will,	Crane	filed	an	application	for	informal	

probate	of	the	will	and	was	appointed	personal	representative	of	the	estate	by	

the	Hancock	County	Probate	Court.			

          [¶4]		The	assets	of	the	estate	include	a	one-half	interest	in	JKJ	Property	

Group,	LLC,	a	Maine	limited	liability	company,	and	one	half	of	the	outstanding	

shares	of	stock	in	The	Colony	Cottages,	Inc.,	a	Maine	corporation	(collectively,	

the	 properties).	 	 JKJ	 Property	 Group	 owns	 commercial	 land	 and	 buildings	 in	

Bar	Harbor—subject	to	a	mortgage	and	assignment	of	rents—and	The	Colony	

Cottages	owns	and	operates	 seasonal	rental	cottages	on	the	property	owned	

by	JKJ	Property	Group.		Jean’s	will	devised	the	properties	to	Crane.			

          [¶5]	 	 On	 May	 25,	 2016,	 Kerry	 Johnson	 and	 Kathleen	 Thommen	 filed	 a	

complaint	against	Crane,	and	Kasey	Reid	and	Kim	Johnson	were	later	added	as	

interested	 parties.	 	 The	 complaint	 contains	 two	 counts.	 	 Count	 I,	 for	 tortious	

interference	 with	 an	 expected	 inheritance,	 alleges	 that	 Crane	 fraudulently	

induced	 Jean	 to	 bequeath	 the	 properties	 to	 Crane	 with	 the	 assurance	 that	


     1		Jean’s	other	child,	Kyle	A.	Johnson,	is	not	a	party	to	this	action.			
                                                                                                      3	

Crane	would	either	distribute	equal	shares	of	the	properties	to	the	children	or	

sell	the	properties	and	divide	the	net	proceeds	among	the	children.		Count	II,	

for	breach	of	contract,2	alleges	that	Crane	agreed	with	Jean,	as	a	condition	of	

Crane	 becoming	 Jean’s	 personal	 representative	 according	 to	 the	 will,	 to	

distribute	 among	 the	 children	 the	 properties	 or	 the	 net	 proceeds	 from	 any	

sale	of	the	properties,	and	that	Crane	breached	that	agreement.			

        [¶6]		The	Superior	Court	(Hancock	County,	R.	Murray,	J.)	granted	Crane’s	

motion	 to	 dismiss	 pursuant	 to	 M.R.	 Civ.	 P.	 12(b)(6),	 concluding	 that	 Count	 I	

did	not	satisfy	the	rule	articulated	in	Shine	v.	Dodge,	130	Me.	440,	443,	157	A.	

318	(1931),	that	a	promise	to	take	a	future	action	will	not	support	an	action	

for	fraud;	Count	I	did	not	state	the	nature,	content,	or	scope	of	the	children’s	

fraud	 allegations	 with	 particularity	 pursuant	 to	 M.R.	 Civ.	 P.	 9(b);	 and	 the	

contract	alleged	in	Count	II	did	not	satisfy	the	statute	of	frauds.		The	children	

timely	appeal.		See	M.R.	App.	P.	2(b)(3).	

                                         II.		DISCUSSION	

	       [¶7]	 	 The	 children	 contend	 that	 the	 court	 erred	 in	 each	 of	 its	

conclusions.	 	 Specifically,	 they	 assert	 that	 their	 complaint	 adequately	 pleads	


    2		Though	identified	in	the	complaint	as	a	second	claim	for	tortious	interference	with	expected	

inheritance,	in	subsequent	filings,	including	the	briefs	on	appeal,	Count	II	is	described	as	a	breach	of	
contract	claim.		We	will	therefore	address	Count	II	as	a	claim	for	breach	of	contract.	
4	

all	elements	of	tortious	interference	with	an	expectancy,	that	it	alleges	fraud	

with	particularity	and	therefore	satisfies	M.R.	Civ.	P.	9(b),	and	that	the	statute	

of	 frauds	 does	 not	 bar	 their	 breach	 of	 contract	 claim	 because	 Jean	 at	 least	

partly	performed	her	duties	under	the	alleged	contract.		Because	we	conclude	

that	their	claims	are	not	yet	ripe	for	judicial	review,	we	do	not	address	these	

contentions.	

	      [¶8]	 	 “We	 undertake	 appellate	 review	 only	 of	 cases	 that	 present	

justiciable	 controversies,	 and	 do	 not	 review	 matters	 that	 present	 merely	

theoretical	 disputes.”	 	 Jipson	 v.	 Liberty	 Mut.	 Fire	 Ins.	 Co,	 2007	 ME	 10,	 ¶	 5,	

912	A.2d	1250;	see	also	Lewiston	Daily	Sun	v.	Sch.	Admin.	Dist.	No.	43,	1999	ME	

143,	 ¶	 12,	 738	 A.2d	 1239	 (“Courts	 can	 only	 decide	 cases	 before	 them	 that	

involve	 justiciable	 controversies.”).	 	 We	 may	 raise	 issues	 of	 justiciability	 on	

our	own	motion.		See	Dubois	Livestock,	Inc.	v.	Town	of	Arundel,	2014	ME	122,	

¶	9,	103	A.3d	556;	Francis	v.	Dana-Cummings,	2007	ME	16,	¶	20,	915	A.2d	412.		

	      [¶9]		“Ripeness	is	a	question	of	law	that	we	review	de	novo.”		Johnson	v.	

City	of	Augusta,	2006	ME	92,	¶	7,	902	A.2d	855.		“To	determine	if	an	issue	is	

ripe	for	review,	[we]	focus[]	on	the	fitness	of	the	issue	for	judicial	decision	and	

the	hardship	to	the	parties	of	withholding	court	consideration.”		Me.	AFL-CIO	v.	
                                                                                           5	

Superintendent	 of	 Ins.,	 1998	 ME	 257,	 ¶	 8,	 721	 A.2d	 633	 (quotation	 marks	

omitted).	

	      [¶10]	 	 Without	 a	 “concrete,	 certain,	 or	 immediate	 legal	 problem,”	 a	

controversy	 is	 not	 fit	 for	 judicial	 consideration.	 	 Wagner	 v.	 Sec’y	 of	 State,	

663	A.2d	 564,	 567	 (Me.	 1995).	 	 For	 example,	 where	 a	 plaintiff	 alleged	 but	

failed	to	establish	an	ownership	interest	in	land	underlying	a	disputed	right	of	

way,	 and	 the	 defendants	 counterclaimed	 seeking	 declaratory	 judgment	 for	 a	

prescriptive	 easement,	 we	 concluded	 that	 the	 “prescriptive	 easement	 claim	

[was]	 not	 ripe	 for	 adjudication	 until	 an	 owner	 of	 the	 land	 in	 dispute	 [was]	

declared.”	 	 Lamson	 v.	 Cote,	 2001	 ME	 109,	 ¶¶	 7-9,	 20,	 775	 A.2d	 1134.	 	 In	 the	

absence	of	a	declaration	of	the	owner	of	the	land,	the	defendants’	claim	of	an	

interest	 in	 that	 land	 had	 “lost	 its	 vitality”	 and	 did	 not	 present	 a	 justiciable	

controversy.		Id.	¶	20.	

	      [¶11]	 	 The	 children’s	 claims	 here	 similarly	 lack	 a	 justiciable	

“controversial	vitality.”		Me.	Civil	Liberties	Union	v.	City	of	S.	Portland,	1999	ME	

121,	 ¶	 8,	 734	 A.2d	 191	 (quotation	 marks	 omitted).	 	 The	 complaint	 does	 not	

state	 and	 the	 record	 does	 not	 show	 that	 the	 estate	 has	 been	 closed.	 	 See	

18-A	M.R.S.	 §	 3-1003(a)	 (2016)	 (stating	 that	 all	 assets	 of	 an	 estate	 must	 be	

distributed	to	the	entitled	entities	before	a	personal	representative	may	close	
6	

an	 estate).	 	 Although	 Crane	 has	 been	 appointed	 personal	 representative	 by	

informal	probate,	the	children	acknowledged	during	oral	argument	that	Crane	

has	not	taken	possession	of	the	properties	or	submitted	a	final	account	for	the	

estate.		Additionally,	the	children	acknowledged	that	Crane	may	yet	assign	the	

properties	 or	 the	 proceeds	 from	 sale	 of	 the	 properties	 to	 the	 children.	 	 The	

complaint	merely	alleges	that,	thus	far,	she	has	refused	to	inform	the	plaintiffs	

about	her	intentions	concerning	the	properties	and	that	she	intends	to	retain	

ownership	of	the	properties	if	she	takes	possession.		Until	the	estate	has	been	

closed	 and	 Crane	 has	 in	 fact	 received	 and	 retained	 ownership	 of	 the	

properties,	the	children’s	claims	for	tortious	interference	with	an	expectancy	

and	 breach	 of	 contract	 will	 lack	 both	 the	 critical	 liability	 and	 damages	

components.		See	Morrill	v.	Morrill,	1998	ME	133,	¶	7,	712	A.2d	1039	(setting	

out	 the	 elements	 for	 a	 claim	 of	 tortious	 interference	 with	 an	 expectancy);	

Deering	 Ice	 Cream	 Corp.	 v.	 Colombo,	 Inc.,	 598	 A.2d	 454,	 456-57	 (Me.	 1991)	

(stating	that	“breach	of	contract	damages,	as	a	general	proposition,	should	be	

based	 on	 the	 injured	 party’s	 expectation	 interest,	 defined	 as	 its	 interest	 in	

having	the	benefit	of	its	bargain	by	being	put	in	as	good	a	position	as	it	would	

have	 been	 in	 had	 the	 contract	 been	 performed”	 (alterations	 omitted)	

(quotation	marks	omitted)).			
                                                                                       7	

         [¶12]		Further,	while	the	estate	continues	in	probate,	the	children	retain	

other	 avenues	 to	 seek	 to	 take	 possession	 of	 the	 properties,	 including	

petitioning	 the	 Probate	 Court	 to	 “compel	 or	 approve	 an	 accounting	 and	

distribution.”		18-A	M.R.S.	§	3-1002	(2016).		Because	any	remedy	imposed	by	

a	 court	 would,	 at	 this	 time,	 be	 premature,	 see	 Wagner,	 663	 A.2d	 at	 567-568,	

we	 hold	 that	 the	 children’s	 claims	 are	 not	 yet	 ripe	 for	 adjudication.	 	 We	

therefore	 remand	 for	 entry	 of	 a	 dismissal	 without	 prejudice.	 	 See	 Homeward	

Residential,	Inc.	v.	Gregor,	2015	ME	108,	¶	24,	122	A.3d	947.			

         The	entry	is:	

                            Judgment	 dismissing	 the	 plaintiffs’	 complaint	
                            vacated.	 	 Remanded	 for	 entry	 of	 dismissal	
                            without	prejudice.	
	
	     	      	       	      	       	
	
Barry	 K.	 Mills,	 Esq.	 (orally),	 Hale	 &	 Hamlin,	 LLC,	 Ellsworth,	 for	 appellants	
Kerry	A.	Johnson	and	Kathleen	A.	Thommen	
	
William	B.	Devoe,	Esq.	and	Kady	S.	Huff,	Esq.	(orally),	Eaton	Peabody,	Bangor,	
for	appellee	Barbara	C.	Crane	
	
	
Hancock	County	Superior	Court	CV-2016-27	
FOR	CLERK	REFERENCE	ONLY	
