MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2013 ME 84
Docket:   Han-12-470
Argued:   September 12, 2013
Decided:  October 10, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
             JABAR, JJ.


                              HEATHER C. WICKS

                                         v.

                              PADRAIC H. CONROY



LEVY, J.

         [¶1] Padraic H. Conroy appeals from a judgment of the Superior Court

(Hancock County, Cuddy, J.) partitioning real property he owned as a tenant in

common with Heather C. Wicks. Finding no error, we affirm the judgment.

                                I. BACKGROUND

         [¶2] Conroy and Wicks are brother and sister. In the early 1970s, their

mother began living in a two-story oceanfront cottage she owned in Surry, Maine.

The cottage sits on a wooded lot on the bay, with views of the mountains on Mount

Desert Island. In 1991, the mother (who lived on the first floor) rented the upstairs

apartment to Conroy and Wicks’s father, from whom she was separated. In 1992,

the mother conveyed the property to Wicks and Conroy as joint tenants, retaining a

life estate for herself.
2      	  
	  
	  
              [¶3] Shortly after moving into the upstairs apartment, the father fell and

suffered a head injury. At the time, both Conroy and Wicks were living away from

Maine. Conroy informed Wicks that he intended to leave his job in Nevada and

move into their father’s apartment to care for him, which he did. The father died

soon thereafter and Conroy moved out of the apartment, but he remained in the

area, became employed, and married. Over the next several years, Conroy assisted

the mother with the maintenance of the property and performed tasks such as

mowing the lawn and clearing snow. Wicks also assisted with maintenance during

her visits from Ohio. In 2005, with their mother’s health deteriorating, Wicks

proposed moving to Maine to care for her in exchange for $2000 per month, paid

by a home equity loan against the house. Conroy rejected the proposal.

              [¶4] That same year, Wicks and Conroy executed a release deed to become

tenants in common with regard to the property. Their mother died about a year

later. After her death, Wicks and Conroy had a discussion about the property, and

Wicks drafted a summary of what they had discussed, which she asked Conroy to

initial. Conroy refused because the document provided that he could not move into

the house until he and Wicks reached further agreement. Conroy testified to his

belief that they had agreed years earlier that he could live in the house rent-free in

exchange for moving to Maine to care for their parents.




	  
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              [¶5] In July 2006, Wicks wrote Conroy a letter addressing her perceived

need “to clarify and come to a workable agreement about how we’re going to deal

with the house.” The letter contained a list of seven items Wicks wanted to “have

a say in.” In item two, Wicks asserted that her contribution to the house’s taxes

and insurance should take into account Conroy and his wife’s rent-free occupancy

of the house:

              When the upstairs apartment is rented I need to receive one half of the
              rental receipts from which I will pay for a prorated portion of the
              taxes and insurance. (That portion can be worked out later, in
              consideration for your having the advantage of living in the house
              rent-free as well as for all your hard work, skill and your
              responsibility for maintaining it.)

Item five expressed Wicks’s desire to use the house: “Until we agree on a future

course, I will need access to one apartment for my private use for one month of the

year, during the summer season.” Wicks also stated that her “ultimate relationship

to the house . . . is still completely undecided,” and that the present dealing

between Wicks and Conroy would “determine how well we negotiate whatever

agreement we come to in the future.”

              [¶6] In 2008, Conroy and his wife told Wicks that they were moving into

the downstairs apartment.               Wicks responded that she “needed financial

compensation for [Conroy’s] exclusive use of [her] half of the [downstairs




	  
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apartment].”          Conroy and his wife nonetheless moved into the apartment in

October 2008.

              [¶7] By August 2009 the upstairs apartment, which Wicks and Conroy

rented out, had fallen into disrepair because of water damage. Wicks and Conroy

agreed that they would make the necessary repairs to have the apartment ready to

rent by the summer of 2010. Conroy asked Wicks to fix the floor, which she did.

The upstairs apartment went unrented for about a year, however, while Conroy

undertook other renovations to the property.

              [¶8] In May 2010, Wicks filed a complaint in the Superior Court seeking an

equitable partition and sale of the house, with the profits to be split equally

between her and Conroy.             Conroy agreed that partition was appropriate, but

contended that he was entitled to a larger share of the proceeds from the partition

sale, and he expressed his desire to purchase Wicks’s interest in the house. Conroy

also asserted counterclaims of breach of contract, unjust enrichment, and

promissory and equitable estoppel.

              [¶9] Following a jury-waived trial, the court entered a judgment in June

2012.           The court granted Wicks’s petition for partition, denied Conroy’s

counterclaims, and ordered the sale of the house. The court ordered the profits

from the sale to be split equally between the parties, subject to a $9350 credit due

to Wicks. The court arrived at this figure by finding that Wicks was entitled to


	  
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$13,650 as credit for Conroy’s rent-free occupancy of the downstairs apartment

from 2009 to 2012, and $3750 for the share of rental income Wicks would have

received had the upstairs apartment been rented during the year Conroy took to

renovate it, less $8050 credited to Conroy for his improvements to the house.1 The

court also denied Conroy’s request that he be allowed to purchase Wicks’s interest

because Conroy failed to present evidence of his financial ability to do so.

                                                                                                                                                                                                                                   II. DISCUSSION

                                                      [¶10] Conroy contends that the court erred in (A) finding that there was no

contract in which the parties agreed that Conroy would live in the house rent-free

in exchange for his care of their parents; (B) crediting Wicks for one-half the fair

rental value of the downstairs apartment during the period that Conroy and his wife

lived there; and (C) denying Conroy the opportunity to buy out Wicks’s interest in

the property.2 We consider each argument in turn.

A.                                                    The Existence of a Contract

                                                      [¶11] We review the court’s finding that no contract existed for clear error,

and will affirm the finding if competent evidence in the record supports it. See

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                     1
      After the judgment, Conroy filed a motion for findings of fact and conclusions of law pursuant to
M.R. Civ. P. 52(a), which the court denied. Conroy then filed a motion to alter or amend the judgment
pursuant to M.R. Civ. P. 59(a), which the court granted. The amended judgment credited Conroy an
additional $300 for his improvements to the property. Thus, the total credit to Wicks was amended to
$9050. The amendment is not at issue in this appeal.
                           2
       Conroy also challenges (1) the court’s determination of the credit due to him for his maintenance,
improvement, and management of the property, and (2) the court’s determination of the fair market value
of the property. We are not persuaded by Conroy’s arguments and do not address them further.


	  
6      	  
	  
	  
Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903. A contract requires that the

parties mutually assent to be bound by its terms. Barr v. Dyke, 2012 ME 108, ¶ 13,

49 A.3d 1280. Here, the court concluded that Wicks never assented to a contract

under which Conroy would live in the house without paying rent. The record

supports this finding. Wicks testified that she did not agree to Conroy’s proposal

that he would live rent-free in the house in exchange for his care for their parents.

Although Conroy offered contradictory testimony, the court, as the fact-finder, was

entitled to accept Wicks’s testimony as more credible. See Dostanko v. Dostanko,

2013 ME 47, ¶ 15, 65 A.3d 1271 (noting the fact-finder’s superior position to

assess the credibility of the parties).

              [¶12] Despite Conroy’s assertion to the contrary, Wicks’s 2006 letter to

Conroy does not lead us to conclude that the trial court’s finding was clearly

erroneous. Item two of the letter states that Wicks “will pay for a prorated portion

of the taxes and insurance . . . in consideration for [Conroy] having the advantage

of living in the house rent-free.” Although Wicks’s letter mentions Conroy living

in the house rent-free, the court found the context of the letter to be prospective,

rather than a memorialization of a past agreement. This interpretation is consistent

with a plain reading of the letter, which suggests that Wicks believed that she was

due consideration for allowing Conroy to live in the house, not that Conroy had

already performed his side of an agreement between them. Further, the letter states


	  
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that there had been no agreement as to the “future course” of the house and that

Wicks and Conroy were to “negotiate whatever agreement we come to in the

future.” It also expressed Wicks’s belief that her “ultimate relationship to the

house . . . is still completely undecided.”3

                                                      [¶13] Accordingly, competent evidence supported the court’s finding that

Wicks and Conroy did not agree that Conroy would live rent-free in the downstairs

apartment. See Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903. As such, the court

properly found that there was no contract to that effect. See Barr, 2012 ME 108,

¶ 13, 49 A.3d 1280.

B.                                                    Credit for the Fair Rental Value of Property Occupied by a Co-Tenant

                                                      [¶14] Conroy contends that the court erred in crediting Wicks with one-half

the fair rental value of the first-floor apartment for the time Conroy and his wife

lived there because Wicks presented no evidence (1) of the fair rental value of the

apartment or (2) that Conroy ousted Wicks from the premises.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                           3
      For these reasons, the court also properly rejected Conroy’s counterclaims of unjust enrichment and
promissory and equitable estoppel. With respect to unjust enrichment, Conroy failed to prove that Wicks
accepted or retained any benefit from him under such circumstances that it would be inequitable for
Wicks to retain the benefit without paying its value. See A.F.A.B., Inc. v. Town of Old Orchard Beach,
610 A.2d 747, 749 (Me. 1992). The court also properly found that Conroy had failed to prove either
promissory or equitable estoppel. See Chapman v. Bomann, 381 A.2d 1123, 1127 (Me. 1978) (stating
that promissory estoppel requires a promise reasonably expected to induce action); Milliken v. Buswell,
313 A.2d 111, 119 (Me. 1973) (cautioning that equitable estoppel should be “sparingly applied” in only
those cases where there is “clear and satisfactory proof” of fraud or fault on the part of the person to be
estopped).


	  
8      	  
	  
	  
              1.    Evidence of Fair Rental Value

              [¶15] The determination of an asset’s value is an issue of fact, which we

review for clear error and will affirm if supported by the record. See Laqualia v.

Laqualia, 2011 ME 114, ¶ 10, 30 A.3d 838. Here, Wicks testified that the fair

rental value of the downstairs apartment was $650 per month. “Property owners,

by reason of their ownership alone, may state their opinion as to the fair market

value of their property.”             Hutz v. Alden, 2011 ME 27, ¶ 15, 12 A.3d 1174

(quotation marks omitted). The court’s determination of the fair rental value based

on Wicks’s testimony was therefore proper. See Laqualia, 2011 ME 114, ¶ 10, 30

A.3d 838.

              2.    Proof of Ouster

              [¶16] Conroy also contends that the court erred as a matter of law in

crediting Wicks with half of the fair rental value of the first floor apartment for the

time that Conroy occupied it because there was no evidence that Conroy had

ousted Wicks from the property. An ouster occurs when a tenant in common

“denie[s] [the co-tenant’s] right to the possession, or [does] some notorious act,

indicative of a holding adversely to [him].” Colburn v. Mason, 25 Me. 434, 435

(1845). Conroy cites to our decision in Palanza v. Lufkin, 2002 ME 143, 804 A.2d

1141, in support of his position.




	  
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                          [¶17] Palanza was a partition action in which the trial court refused to credit

a co-tenant for the rental value of the property during the period in which the other

co-tenant possessed and made repairs to the property. Id. at ¶ 13. We affirmed,

noting that the court properly found that the co-tenant in possession (Palanza)

derived no net economic benefit from occupying or renting the property during the

renovations. Id. ¶ 15. We also observed that “without evidence of the rental value

of the property before the improvements, and without evidence that Palanza ousted

Lufkin, the court could not find that Palanza owed Lufkin any quantifiable

amount.” Id. Our opinion cited to a Missouri Court of Appeals decision, Christen

v. Christen, 38 S.W.3d 488, 492 (Mo. Ct. App. 2001), in support of this

proposition.

                          [¶18]                           Christen does stand for the well-established proposition that an

out-of-possession tenant must prove the reasonable rental value of the property to

successfully claim compensation for a co-tenant’s occupancy. Id. But it does not

require the out-of-possession tenant to prove that the other tenant ousted her.

Indeed, Christen states the opposite: “Ouster by the tenant in exclusive possession

is not required.”4 Id. In keeping with this, we see no sound reason to require proof

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                           4
                                 	  	  The Missouri Court of Appeals explained in an earlier decision:

                          In this state it is settled that a cotenant, who has enjoyed the occupancy of the premises,
                          who seeks and is to be granted an allowance for improvements made thereon[,] subjects
                          himself to the crediting of his out-of-possession cotenant with the reasonable value of the
                          premises he occupied, and, in partition equity may set off that rental value against the


	  
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of ouster if the circumstances otherwise support a court’s conclusion that the rental

value of a co-tenant’s possession must be taken into account to achieve an

equitable partition of the parties’ co-tenancy.

                                                      [¶19] Accordingly, we clarify that in a proceeding for equitable partition the

court may consider the reasonable rental value of the property during the period

when one co-tenant was in exclusive possession of the property, without requiring

proof of ouster. The court therefore did not err in setting off the reasonable rental

value of the property against the value of Conroy’s improvements without

specifically finding that Conroy ousted Wicks from the property.

C.                                                    Conroy’s Right to “Buy Out” Wicks’s Interest in the Property

                                                      [¶20] We review for an abuse of discretion a court’s decision to allow one

co-tenant to purchase the interest of another co-tenant.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               See Ackerman v.

Hojnowski, 2002 ME 147, ¶¶ 18-19, 804 A.2d 412. “In exercising its discretion,

the court must consider all relevant factors,” which include, but are not limited to,

the purchasing co-tenant’s duration of residence, his improvements to the property,

and his financial capacity to pay for the other co-tenant’s interest in the property.

Id. ¶ 20.


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                                                      improvements, taxes and other charges paid by the tenant in exclusive possession
                                                      although he has not ousted his cotenant.

Grunden v. Nelson, 793 S.W.2d 569, 576 (Mo. Ct. App. 1990) (quoting Allen v. Allen, 687 S.W.2d 660,
662 (Mo. Ct. App. 1985)).


	  
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              [¶21]   Here, the court denied Conroy the unconditional opportunity to

purchase Wicks’s interest in the property because Conroy presented no evidence

that he could afford to do so. The court cited no other factors it considered.

Because the court denied Conroy’s motion for further findings on the issue, we

will not infer that the court considered any other factors. See Thumith v. Thumith,

2013 ME 67, ¶ 11, 70 A.3d 1232. Thus, the question is whether the absence of

proof that a co-tenant has the financial ability to buy out another co-tenant’s

interest, standing alone, justifies a court’s denial of that opportunity. The facts of

this case lead to an affirmative answer.

              [¶22] Here, granting Conroy the right to purchase his sister’s interest could

prolong the final resolution of what has already been a lengthy and contentious

dispute. Absent a showing that Conroy has the means to acquire Wicks’s interest,

it would not square with principles of equity for the court to afford him that

opportunity. See Libby v. Lorrain, 430 A.2d 37, 40 (Me. 1981) (“Without Mrs.

Lorrain’s being able to carry out her side of a ‘partition by buy-out,’ the court

could not equitably honor her request.”). The court acted well within the bounds

of its equitable authority in denying Conroy the right to buy out Wicks’s interest in

the property.




	  
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          The entry is:

                           Judgment affirmed.

____________________________________


On the briefs and at oral argument:

          Catherine L. Haynes, Esq., Ellsworth, for appellant Padraic Conroy

          Eugene C. Coughlin, Esq., Vafiades, Brountas & Kominsky, LLP,
          Bangor, for appellee Heather Wicks



Hancock County Superior Court docket number RE-2010-29
FOR CLERK REFERENCE ONLY




	  
