MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2023 ME	11

Docket: Yor-22-44

Argued: November	2,	2022

Decided: January	31,	2023

Panel: STANFILL,	C.J.,	and MEAD,	HORTON,	CONNORS,	and	LAWRENCE,	JJ.

CHRISTOPHER	INDORF

v.

HEATHER	KEEP

LAWRENCE,	J.

[¶1]	 Christopher	Indorf	appeals	 from	a	judgment	of	the	District	Court	

(Biddeford,	Tice, J.),	applying	the	doctrine	of	abatement	to	dismiss	his	action	for	

breach	of	contract1 and	awarding	Heather	Keep	attorney	fees.		Because	Indorf’s	

contract	action should	have	been	consolidated	with	Keep’s	partition	action,	we	

vacate	 the	 court’s	 dismissal	 of Indorf’s	 complaint and	 remand	 for	 further	

proceedings.		We	also	vacate	the	court’s	award	of	attorney	fees.

1	 	As	 indicated	 in	 the	 procedural	 history	 below,	 Indorf’s	 complaint	 contains	 two	 counts.	 	 For	

simplicity,	we	refer	to	both	counts	as	Indorf’s	contract	action.
2

I.		FACTUAL	BACKGROUND

[¶2]		The	following	facts	are	taken	from	Indorf’s	complaint,	viewing	it	in	

the	light	most	favorable	to	Indorf	and	assuming	that	the	factual	allegations	are	

true.		See Wawenock,	LLC v.	Dep’t	of	Transp.,	2018 ME 83,	¶ 4,	187 A.3d 609.

[¶3]		The	parties	formerly	lived	together	at	a	residence	in	Saco	and	are	

the	 parents	 of	 one	minor	 child.	 	 The	 parties	 closed	 on	 the	 Saco	 property	 on	

October	 31,	 2015,	 and	 entered	 a	 contract	 where,	 in	 exchange	 for	 Indorf	

assuming	sole	responsibility	 for	 the	down	payment	(approximately	$43,000)

on	 the	 real	 property,	Keep	agreed	 to	assume	a	greater	 share	 of	 the	monthly	

mortgage	payments, childcare	costs,	or	both.

2		Keep	also	promised	that if	the	

parties	later	separated,	Indorf	would	recover	the	down	payment	he	provided	

when	the	parties	calculated	their	relative	equity in	the	real	property.

[¶4]		In	May	2019,	Keep	moved	out	of	the	property	and	filed	a	partition	

action.		Keep,	through	her	counsel	and	in	sworn	discovery	responses,	denied	

the	existence	of	the	contract,	repudiated the	contract,	and	refused	to	honor	the	

contract.		As	such,	Keep	has	breached	or	repudiated	 the	parties’	contract	 for	

2		According	to	the complaint,	the	parties	also	agreed	to	share	“the	expenses,	maintenance,	and	

contributions	to	the	property.”
3

Indorf	to	recover	the	down	payment	he	provided	in	acquiring	the	real	property,	

which	has	caused	him	to	suffer	damages.

II.		PROCEDURAL	HISTORY

[¶5]		The	parties	in	this	case,	having	never	been	married, initiated four	

separate	 actions	 due	 to the	 dissolution	 of	 their	 relationship:	(1)	 a	 parental	

rights	and	responsibilities	action	regarding	their	minor	child;(2)	a	small	claims	

action regarding	 their personal	 property; (3)	 Keep’s	 partition	 action	

concerning their jointly	owned	home; and	(4)	Indorf’s	contract	action	regarding	

the alleged	agreement	the	parties	made when	they	purchased their home.		This	

appeal arises	 from the	 court’s	 dismissal	 of	 Indorf’s	 contract	 action	 and	 the

award	of	Keep’s	attorney	fees in	defense	of	that	action.

[¶6]		On November	4,	2020,	 Indorf	 filed	a	two-count	complaint	against	

Keep,	 alleging	 that	 Keep	 breached	 their	 contract (Count	 1) and	 seeking	 a	

declaratory	 judgment	 that	 establishes Keep’s	 equity	 in	 the	 property	 and	

declares	 that	 Indorf	 does	 not	 need	 to	 sell	 the	 property	 unless	 he	 lacks	 the	

financial	 capacity	 to	 retain	 it (Count	 2).	 	 On	 the	 same	 day,	 Indorf	 filed	 a	

M.R. Civ. P.	42(a) motion	to	consolidate the	parties’	small	claims,	partition,	and	

contract	 actions.

3	 	 In	 her	 answer	 to	 Indorf’s	 complaint,	 Keep	 raised	 the	

3 We	 take	 judicial	 notice	 of	 the	 dockets	 and	 other	 court	 records	 from	 the	 parties’	 separate	

proceedings.		See	Cabral	v.	L’Heureux,	2017	ME	50,	¶	10,	157	A.3d	795.		The	docket	record	from	the	
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affirmative	defense	of	res	judicata	and	alleged	that	Indorf	 filed	a “duplicative	

proceeding”	 with	 the	 intent	 to	 “increase	[her]	 legal	 fees	 and	 to	 cause	 [her]	

hardship and	 further	litigation.”	 	On	 July	8,	 2021,	 after	 the	 resolution	 of	 the	

parties’	parental	rights	and	responsibilities action,	Indorf	filed	a	second motion	

to	consolidate the	parties’	remaining	contract	and	partition	actions.		The	court	

denied	Indorf’s	motions to	consolidate.

[¶7]	 	On October	 18,	 2021,	 Keep	 filed a	 M.R. Civ. P. 12(c) motion	 for	

judgment	 on	 the	 pleadings	 in	 the	 contract	 action.	 	 The	 court	 entered its	

judgment,	granting	Keep’s	motion	to	dismiss	and	awarding	Keep	attorney	fees,	

on	January	31,	2022.		In	dismissing Indorf’s	contract	action,	the court	applied	a	

narrow	exception	to	the	Rule 12(c)	standard	of	review—that	allows the court	

to	 consider	 an	 affirmative	 defense	 if	 it	 is	 affirmatively	 demonstrated	 in	 the	

complaint—and	considered	Keep’s	affirmative	defense	of	res	judicata that	she	

raised	in	her	answer.		The	court	reasoned	that,	if	it	were	to	rule	in	Indorf’s	favor	

and	 grant him	 a	 declaratory	 judgment,	 the	 doctrine	 of	 res	 judicata would	

prevent	the	partitioning	court	from	rendering	a	judgment	on	the	same	claims.		

parental	rights	and	responsibilities	action	shows	that	the	partition	action	and	the	small	claims	action	

were	scheduled	to	be	heard	at the	same	time	as	the	hearing	on	the	parental	rights	and	responsibilities	

action;	however,	the	parties	both	agree	that	the	court	never	reached	the issues in	these	other	actions	

at	that hearing.		The	hearing	on	the	parties’	parental	rights	and	responsibilities	action was	held	on	

February	24	and	25,	2021, and	that action was	resolved	by	final	order	on	June	30,	2021.
5

The court	also reasoned,	in	the	alternative, that if	the	partitioning	court	were	

to	make	a	ruling before	the	court	did,	Indorf’s	contract	action would	be	barred.

[¶8]		Although	the	court	recognized	that	res	judicata	did	not	apply	in	this	

circumstance because	there	was no	final	judgment in	either	action,

4 the	court	

concluded	 that	 it	 faced	 an	 “inevitable	 issue	 of	 res	 judicata,	 also known	 as	

abatement,”	and	 that dismissal	of Indorf’s	complaint	would	not	substantially	

harm	his	rights.		Finally,	the	court	found that,	because	Indorf	had	acknowledged	

that	his	claims would	be	adjudicated	in	Keep’s	partition	action,	it	was	just	and	

proper	to	award	Keep	attorney	fees	for	her	defense	of	Indorf’s	contract	action.		

Indorf	timely	appealed.	 See M.R. App. P. 2B(c)(1).

III.		DISCUSSION

A. Motion	to	Consolidate

[¶9]		Indorf	first	argues	that	the	court	abused	its	discretion	by	denying	

his	motion	 to	 consolidate	 the	 contract	and	 partition	actions.	 	We review	 the	

court’s	procedural	decisions	regarding	consolidation	of	hearings	for	an	abuse	

of	discretion.		See	Tucker	v.	Lilley,	2015 ME	36,	¶	16,	114 A.3d	201.

[¶10]	 	 Rule 42(a)	 “complements the	 liberal	 provisions	 for	 joinder	 of	

claims	 and	 parties,”	 M.R.	 Civ.	 P.	 42	 Reporter’s	 Notes December	 1,	 1959, by	

4		The	court,	however, never	conducted	a	full res	judicata	analysis.
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allowing	 the	 court	 to	 consolidate	 issues	 or	 actions that	 involve	 “a	 common	

question	 of	 law	 or	 fact,”	 M.R.	 Civ.	 P.	 42(a).	 	 When	 deciding	 whether	 to	

consolidate,	“the court	shall give	due	regard	to	the	convenience	of	parties	and	

witnesses	and	the	interests	of	justice.”		M.R. Civ. P. 42(c).		In	Tucker,	we held	

that	 the	 trial	court	abused	its	discretion	when	it	denied	a party’s motions	 to	

consolidate	several	cases	regarding	the	proper	allocation	of	attorney	fees	in	a	

large	jury	verdict.	 2015	ME	36,	¶¶	16-17,	114 A.3d	201.		We	explained	 that	

although	our “standard	of	 review is	deferential,	it	does	not	give	a	 trial	court	

unfettered	discretion	to	separate	cases,	or	parts	of	cases,	when	closely-related	

claims,	counterclaims,	and	cross-claims	among	the	parties	directly	affect	what	

any	 particular	 party	 may	 eventually	 be	 awarded	 and	 which	 party	 will	 be	

required	to	pay	those	awards.”		Id.	¶	16.		We	held	that	the	trial	court’s	failure	to	

consolidate was	an	abuse	of	discretion	because “several	important	claims	and	

issues	 . . .	 remain[ed]	 unresolved”	 and	 nearly	 all	 of	 the	 disputes	 had	 to	 “be	

resolved	in	one	consolidated	action	before	a	single	fact-finder.”		Id.	¶	17.

[¶11]	 	In	 this	 case,	the	 court’s	 denial	 of	 Indorf’s	motion	 to	consolidate	

constituted	an	abuse	of	discretion,	for	two	reasons.		First,	the	contract	action

and	the	partition	action involve	common	questions	of	law	and	fact.		There	are	

legal	and	factual	questions	as	to whether	a	contract	exists	and,	if	so,	whether	its	
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terms	would	affect the	division	of	the	property	in	the	partition	action.

5		Second,	

as in	Tucker,	Indorf	and	Keep’s	closely	related	claims	directly	affect	the	other	

party’s	 requested	 relief.	 	 Therefore, dismissing Indorf’s	 complaint may	

substantially	 harm	his asserted	 right	 to	 recover	 his	 contribution	toward	 the	

down	payment	on	the	real	property.

B. Abatement

[¶12]	 	The court	 applied	the	 doctrine	 of	 abatement in	its dismissal	 of

Indorf’s	contract	action.		In	a	defendant’s	Rule 12(c)	motion	 for	judgment	on	

the	pleadings,	“only	the	legal	sufficiency	of	the	complaint	is	tested”	because	the	

motion	“is	nothing	more	than	a	motion	under	M.R.	Civ.	P. 12(b)(6)	to	dismiss	

the	 complaint	 for	 failure	 to	 state	 a	 claim	upon	which	 relief	 can	 be	 granted.”	

Cunningham	v. Haza,	538	A.2d	265,	267	(Me. 1988).		Thus,	in	ruling	on	Keep’s

Rule 12(c)	motion	 to	dismiss, the	court	was	required	 to	assume that	Indorf’s

factual	allegations	were true,	examine	the	complaint	in	the	light	most	favorable	

to	Indorf,	and	ascertain	whether	Indorf’s complaint	alleged the	elements	of	a	

cause	of	action	or	facts	entitling	him	to	relief	on	some	legal	theory.		See	id.

5		The	overlap of	 the legal	and	 factual	questions	in	 these	actions is further	underscored	by	 the	

court’s	own	determination that	 res	judicata	was	inevitable.		See	Doe	v.	 Forino,	2020	ME	135,	¶ 8,	

242 A.3d 1098 (explaining	that	one	of	the	requirements	of	res	judicata	is	that	“the	matters	presented	

for	decision	in	the	second	action	were,	or	might	have	been,	litigated	in	the	first	action.” (alteration	

and	quotation	marks	omitted));	M.R.	Civ.	P.	42(a).
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[¶13]	 	 Although	 there	 is “one	 narrow	 exception” to	 the	 rule	 barring	

movants from taking	 advantage	 of	 affirmative	 defenses	 in	 a	 motion	 for	

judgment	 on	 the	 pleadings,	the	 exception	 requires	 that	“the	 complaint	 itself	

affirmatively	 demonstrates	 the	 existence	 and	 the	 applicability	 of	 the	

affirmative	defense.”		Id. (emphasis	added).		Because Indorf’s	complaint	does	

not	affirmatively	 demonstrate	a	 res	judicata	affirmative	 defense,	 the	 narrow	

exception	does	not	apply	in	this	case.		Therefore,	under	the	Rule 12(c)	standard	

of	 review,	 the	 court	 should	 not	 have	 considered	 the	 res	 judicata	 affirmative	

defense	 raised	 in	 Keep’s	 answer.	 Moreover,	 even	 if	 the	 court	 could	 have	

considered	Keep’s	affirmative	 defense,	the	 remedy	 of	abatement	is	available	

only	if	properly	pleaded by	a	party,	see,	e.g.,	Fahy	v. Brannagan,	56	Me.	42,	43-44	

(1868);	1	Am.	Jur.	2d	Abatement,	Survival,	and	Revival § 6 (2005)	(explaining	

that	“[a]	party	bringing	a	motion	in	abatement	has	the	burden	of	proving	the	

facts	necessary	to	support	a	judgment	of	dismissal,	including	showing	that	he	

or	 she	 is	 within	 the	 reason	 for	 its	 enforcement”), and	 because	 Keep	 never	

pleaded abatement,	 the	 court’s	 application	 of	 the remedy	 sua	 sponte was	

inappropriate.

6

6		Because	we	conclude	that	the	remedy	of	abatement was	inappropriate,	we	do	not	need	to	reach	

the	issue	of	whether the	promulgation	of	the	Maine	Rules	of	Civil	Procedure	effectively	abrogated	the	

doctrine	of	abatement.		Nevertheless,	it	is	clear	that	the	Rules’	allowance	for	liberal	merger	of	claims	

and	defenses,	which	increase	the	efficiency	of	proceedings	in	most	instances,	were better	suited	than	
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[¶14]		We	therefore vacate	the	court’s	order	dismissing	Indorf’s	contract	

action.	 	The	 parties	indicated	 at	 oral	 argument that	the	 partition	 action had

already	gone	 to trial	and	was under	advisement	 by	 the	 court.	 	We	now take	

judicial	 notice	 of	 the	 court’s	 recent	 entry	 of	its	judgment	in	Keep’s	 partition	

action.		See	Cabral	v.	L’Heureux,	2017	ME	50,	¶	10,	157	A.3d	795.		We therefore	

leave	 the	 resolution	of Indorf’s	contract	action to the	 trial	court’s	discretion,	

with	the	direction	to	use all	appropriate	trial	management tools	and	practices

available	 to	 resolve	 any remaining	 issues that	 were	 not	 addressed	 in	 its	

judgment	entered	in	Keep’s	partition	action.

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C. Attorney	Fees

[¶15]	 	 Indorf	 also	 contends	 that	 the	 court	 erred	 by awarding	 Keep	

attorney	fees	because	the	circumstances	do	not	fit	within	the	exceptions	to	the	

American	 rule. “[W]e	 review a	 court’s	 authority	 to	 award	 attorney	 fees	

de novo.”		Fortney	&	Weygandt,	Inc.	v.	Lewiston	DMEP	IX,	LLC, 2022	ME	5,	¶	15,	

abatement	 to	address	 these	parties’	related	claims.		See,	e.g.,	M.R. Civ. P 12(g)	& Reporter’s	Notes

(enabling	parties	to	consolidate	motions	in	defense	of	an	action	to	prevent	parties	from	“delaying	an

action	by	making	successively	a	series	of	motions”);	M.R Civ. P. 18 & Reporter’s	Notes (“allow[ing]

unlimited	joinder	of	claims	by	a	plaintiff	or	a	counterclaiming	defendant,”	regardless	of	whether	the	

claims	are	based	in	law	or	equity); M.R.	Civ.	P.	42	&	Reporter’s	Notes (containing	provisions	 that	

allow for	the	consolidation	of	claims	to	“complement[]	the	liberal	provisions	for	joinder	of	claims”).

7		This	opinion	must	not	be	construed	to	limit	any	otherwise	available	relief	or	remedy	that	Indorf	

may	have	in	Keep’s	partition	action.		See,	e.g.,	M.R.	Civ.	P.	60	(permitting	relief	from	a	judgment	in	

certain	circumstances).
10

267 A.3d 1094 (emphasis	 omitted). “Maine	 follows	 the	 American	 rule	 that	

litigants	bear	 their	own	attorney	 fees . .	.	.”		Soley	v.	Karll,	2004	ME	89,	¶ 10,	

853 A.2d	755.		A	court	may,	however, award	attorney	fees	under	the	following

exceptions	to	the	American	rule: “(1) [a]	contractual	agreement	of	the	parties,	

(2)	clear	statutory	authority,	or	(3)	the	court’s	inherent	authority	to	sanction	

egregious	 conduct	 in	 a	 judicial	 proceeding.”	 	 Fortney,	 2022	 ME	 5,	 ¶ 12,	

267 A.3d 1094 (emphasis	added)	(quotation	marks	omitted).

[¶16]	 In	determining that	it	was	just	and	proper	to	award	Keep	attorney	

fees	for	her	defense	of	Indorf’s	contract	action,	the	court	relied	upon	its	finding	

that	 Indorf	 had	 acknowledged	 that	 his	 claim	 would	 be	 adjudicated	 in	

Keep’s partition	 action.	 	 The	 court’s	 limited	 finding	 regarding	 Indorf’s	

acknowledgment	 seems	 to	 suggest	 that	 the	 court,	 to	 some	 degree,	 accepted	

Keep’s	argument	that	Indorf	filed a “duplicative proceeding”	with	the	intent	“to	

increase	[Keep’s]	legal	fees	and	to	cause	[her]	hardship and	further	litigation.”		

Therefore,	 the	 court’s	 award of	 half	 of	 Keep’s	 attorney	 fees	 appears	 to	 have	

been	a	 sanction	 for	 Indorf’s	 conduct	in	 the	 parties’	litigation and thus	based	

upon	the	court’s	inherent	authority	to	sanction	egregious	conduct	in	a	judicial	

proceeding.
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[¶17]		We	have	held	 that,	given	 the American	rule,	“trial	courts	should	

exercise	their	inherent	authority	to	award	attorney	fees	as	a	sanction	only	in	

the	most	extraordinary	 circumstances.”	 	Baker	 v. Manter,	 2001	ME	 26,	¶	 14,	

765 A.2d	 583	 (quotation	 marks	 omitted).	 	 Moreover,	 “[t]he	 trial	 court’s	

authority	to	sanction	parties	and	attorneys	for	abuse	of	the	litigation	process	

should	be	sparingly	used	and	sanctions	imposed	only	when	the	abuse	of [the	

litigation]	process by	parties	or counsel	is	clear.”		Id.	(quotation	marks	omitted).		

In	 Baker,	 for	 example,	 we	 vacated	 the	 award	 of	 attorney	 fees,	 despite	 the	

defendant’s	 egregious	 actions	 toward	 the	 plaintiff,	 because	 the	 defendant’s	

conduct	was	not	abusive	of	 the	litigation	process.

8 Id. ¶ 16-17.	 In	Baker,	we	

reasoned	that	where there	is	no abuse	of	the	litigation	process, the	court	lacks	

the	inherent	authority	to	sanction	parties.	 See	id. ¶	16 (explaining	that	the	court	

has	other	available	remedies	when	a	“litigant	acts	outside	of	the	proceedings in	

contempt	of	the	court’s	order,	or	with	malice	towards	other	parties”).

8		In	contrast,	we	have	held	 that	the	court	did	not	err	in	awarding	attorney	 fees	where	a	party	

“repeatedly	refused	to	comply	with	a	final	order	of	the	court	.	.	.	[and]	filed	multiple	suits	in	several	

jurisdictions	.	.	.	[that] amounted	to	little	more	than	collateral	attacks	on	the	[court’s]	order.”		Linscott	

v. Foy,	1998 ME 206,	¶¶	16-19,	716	A.2d	1017 (emphasis	added)	(“[W]e	have	no	difficulty concluding	

that	these	actions	were	undertaken	in	bad	faith	and	were	abusive	of	the	court	.	.	.	,	thereby	providing	

the	court	with	authority	to	consider	imposition	of	attorney	fees”);	see	also Soley	v.	Karll,	2004	ME	89,	

¶¶ 14-15,	853 A.2d 755 (vacating	an	award	of	attorney	fees	because,	despite the parties causing	a	

delay	in	an	eviction	proceeding	by	filing	a	bankruptcy	petition,	“it	[was]	not	apparent	that	the	delay	

. .	.	was	an	extraordinary	circumstance”	and	there	was	“no	evidence	that	[the	parties]	refused to	obey	

a	court	order”).
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[¶18]		In	this	case,	the	court	erred	when	it	awarded	Keep	attorney	fees.		

Under	 the	American	rule,	Keep	and	 Indorf	were	responsible	 for	paying	 their	

own	 attorney	 fees,	 unless	 the	 action	 fell	 within	 one	 of	 the	 three	 exceptions.		

There	is	no	statutory	authority	for	the	award	of	attorney	fees	in	this	case,	nor	

is	there	any	agreement	between	the	parties	that	entitled Keep	to	receipt	of	her	

attorney	fees.	 Finally,	there	is	no	support	in	this	record for	any	contention	that	

Indorf	clearly	abused	the	litigation	process.		We,	therefore,	vacate	the award	of	

attorney	fees.

The	entry	is:

Judgment	 dismissing	 Indorf’s	 contract	 and	

declaratory	 judgment	 action	 and	 awarding	

attorney	fees	vacated.		Remanded	to	the	District	

Court	 for	 further	 proceedings	 consistent	 with	

this	opinion.

Keith	P.	Richard,	Esq. (orally),	Westbrook,	for	appellant	Christopher	Indorf

Pamela	Holmes,	 Esq. (orally),	 and	Mary-Ann	 Letourneau,	 Esq.,	Holmes	 Legal	

Group,	LLC,	Wells,	for	appellee	Heather	Keep

Biddeford	District	Court	docket	number	CV-2020-110

FOR	CLERK	REFERENCE	ONLY