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Baizley v. Baizley
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 115
Docket:	Cum-98-331	
Submitted
on Briefs:	May 17, 1999
Decided:	July 22, 1999	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

MICHAEL BAIZLEY et al.

v.

ROBERT BAIZLEY

DANA, J.

	[¶1]  Robert Baizley appeals from judgments entered in the Superior
Court (Cumberland County, Calkins, J.) imposing a constructive trust on land
conveyed to him by his grandmother, Arlene Seavey, and partitioning that
land between Robert and his siblings, Michael and Nicole Baizley.  Robert
argues the court erred by concluding that he committed a constructive fraud
so as to give rise to a constructive trust.  We disagree and affirm the
judgments.

I.

	[¶2]  This case involves a family dispute over a parcel of land.  Robert
Baizley, age 35, Michael Baizley, age 30, and Nicole Baizley, age 23, are
siblings.  In 1968, their parents, Sharon and Kenneth Baizley, owned a
30-acre parcel in Scarborough.  From this 30-acre parcel Sharon and
Kenneth carved out a lot on which they built a house.  Sharon and Kenneth
deeded the remainder of the land to Kenneth's mother, Arlene Seavey, to
protect the land from Kenneth's creditors.
	[¶3]  In 1986, Robert told Seavey that he could use the land in his
landscaping business.  Seavey no longer wanted the land in her name
because she was seventy years old and was tired of paying the property taxes. 
Seavey told Robert that she wanted Kenneth to have the land, but Kenneth
refused her offer of a deed.  Seavey thereafter conveyed the property to
Robert.
	[¶4]  Although the deed to Robert made no reference to either
Michael or Nicole, Seavey testified that it was her intent that Robert would
share the land equally with his brother and sister, as Nicole was twelve years
old and Michael was eighteen and too "unsettled" to be given the land at
that time.  On cross examination by Robert, Seavey testified that at the time
of the conveyance she told him to share the property with his brother and
sister.  According to Seavey, Robert agreed to share the land with his
siblings.  Seavey further testified that "there was no question at all in my
mind" that Robert understood that she expected him to share the property
equally with his siblings.  After the closing, Robert acknowledged to
Kenneth and Michael that he was obligated to share the land equally.{1}
	[¶5]  Michael and Nicole sued Robert in October 1996 for tortious
interference with their expectancies, breach of a fiduciary duty, and unjust
enrichment.  After a bench trial, the court found that Robert committed
constructive fraud on Seavey and imposed a constructive trust to prevent
Robert's unjust enrichment.  The court appointed a special master to
partition the land so that Michael and Nicole were provided equitable
shares.  The court considered the report and ordered the partition.  Robert
appeals.

II.

	[¶6]  "[A] constructive trust may be imposed to do equity and to
prevent unjust enrichment when title to property is acquired by fraud,
duress, or undue influence, or is acquired or retained in violation of a
fiduciary duty."  Estate of Campbell, 1997 ME 212, ¶ 5, 704 A.2d 329, 330-
31 (quoting Gaulin v. Jones, 481 A.2d 166, 168 (Me. 1984)).  A constructive
trust "is appropriate 'where a person holding title to property is subject to
an equitable duty to convey it to another on the ground that he would be
unjustly enriched if he were permitted to retain it.'"  Gaulin, 481 A.2d at
168 (quoting Restatement of Restitution § 160 (1937)).
	[¶7]  A constructive trust may be imposed on the basis of constructive
fraud.  See id. at 169.  Constructive fraud occurs when the grantor transfers
property to the grantee, who promises or agrees to hold the property for
the benefit of the grantor or a third party, and the grantor is induced to act
"through reliance on a relationship of trust which may be founded on moral,
social, or personal, as well as legal duties."  See id.; see also Androscoggin
County Sav. Bank v. Tracy, 115 Me. 433, 439, 99 A. 257, 259 (1916)
(constructive trust imposed when grantor conveyed title to property to
sister "upon the faith of her promise" to convey property to the grantor's
heirs "and it would be a fraud on her part to refuse to perform it.");
Gilpatrick v. Glidden, 81 Me. 137, 151, 16 A. 464, 466 (1888) (constructive
trust imposed when husband changed will to devise property to wife on
wife's assurances that she would use it during her lifetime and leave
remainder to his heirs, and she instead left remainder to her heirs).  "In
such situations, the grantee abuses the resulting fiduciary relationship if he
fails to perform, and he will then be treated by the court as a constructive
trustee for the beneficiary."  Gaulin, 481 A.2d at 169.
	[¶8]  A constructive trust may be imposed on the basis of constructive
fraud where there is clear and convincing evidence of an agreement
between the grantor and the grantee to benefit another party.  See id. 
"Where factual findings must be made on the basis of clear and convincing
evidence, the standard of review is 'whether the factfinder could reasonably
have been persuaded that the required factual finding was or was not proved
to be highly probable.'" Fitzgerald v. Gamester, 658 A.2d 1065, 1069-70
(Me. 1995) (quoting In re Debra B., 495 A.2d 781, 783 (Me. 1985)).
	[¶9]  Competent evidence supports the court's finding to a high
degree of probability that a relationship of trust existed between
grandmother and grandson and that the parties agreed that Robert would 
share the property with his siblings.  See Gaulin, 481 A.2d at 169;
Androscoggin County Sav. Bank, 115 Me. at 439, 99 A. at 259; Gilpatrick, 81
Me. at 150-51, 16 A. at 466.  A relationship of trust existed between Seavey
and Robert by virtue of their familial relationship, and Seavey relied on this
relationship of trust.  See Androscoggin County Sav. Bank, 115 Me. at 439,
99 A. at 259; Gilpatrick, 81 Me. at 150-51, 16 A. at 466.  Seavey testified
that when she conveyed the property to Robert, she expressed her intention
that he share the land equally with Michael and Nicole.  See Gaulin, 481
A.2d at 169; Androscoggin County Sav. Bank, 115 Me. at 439, 99 A. at 259;
Gilpatrick, 81 Me. at 150, 16 A. at 466.  Seavey testified that Robert agreed
to share the land with his siblings.  See Gaulin, 481 A.2d at 169;
Androscoggin County Sav. Bank, 115 Me. at 439, 99 A. at 259; Gilpatrick, 81
Me. at 150, 16 A. at 466.  As evidence of the agreement, Robert told others
after the conveyance that he had an "obligation" to share the land equally. 
In these circumstances, Robert would be unjustly enriched if he were
allowed to retain the land.  See Gaulin, 481 A.2d at 168.  Because clear and
convincing evidence existed of a constructive fraud, the court did not err
when it imposed a constructive trust on the property.

III.

	[¶10]  Robert argues that the statute of frauds applies to the oral
agreement with Seavey, and, therefore, the court cannot enforce it.  Title 33
M.R.S.A. § 851 (1999) provides that "[t]here can be no trust concerning
lands, except trusts arising or resulting by implication of law, unless created
or declared by some writing signed by the party or his attorney."  (Emphasis
added.)  A constructive trust is a "trust[] arising or resulting by implication
of law," therefore, the exception to section 851 applies.  See 33 M.R.S.A.
§ 851; see also Sacre v. Sacre, 143 Me. 80, 94, 55 A.2d 592, 600 (1947);
Wood v. White, 123 Me. 139, 141, 122 A. 177, 178 (1923); Gilpatrick, 81
Me. at 150, 16 A. at 466.  The court, therefore, did not err in both imposing
and enforcing a constructive trust.
	The entry is:
			Judgments affirmed.
                                                          
Attorney for plaintiffs:

Toby H. Hollander, Esq.
P O Box 536
Lewiston, ME 04243-0536

For defendant:

Robert M. Baizley
55 Morning Street
Portland, ME 04101