MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 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	contract 1 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	 dismiss al	 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	equi ty 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 A ccording	to	the complaint,	t he	parties also agreed	to	sh are	“the	expenses,	maintenance,	and co ntributions	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 ] Th e	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	 the ir personal	 property ; (3) Keep’s	 partition	 action concerning the ir jointly	owned	home ; and (4) Indorf’s	contract	action	regarding
the alleged	agreement	the	parties made when they purchas ed the ir 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	 pr operty	 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	the4 affirmative	defense	of	res	judicat a	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	responsibilit ies action ,	Indorf	filed a	second motion to	consolidate the parties’ remaining contract	and	partition actions

. The c ourt denied	Indorf’s	motion s to	consolidate. [¶ 7 ] O n 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 di s miss ing Indorf’s contract	action ,	the court	applied a narrow	exception	to	the	Rule 12(c)	standard	of	review

— that allow s 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	t he 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	th at hearing.		The hearing	on	the parties’	parental	rights	and	responsibilities action was	held	on February	24	and	25,	2021, and	th at action was	resolved	by	final	order	on	June	30,	2021.5 T he 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	w as no	final	judgment in	either action , 4 t he	court concluded	 that	 it	 faced	 an	 “inevitable	 issue	 of	 res	 judicata, also known	 as abatement,”	and	 that dismiss al	of Indorf’s	complaint	would	not	substantially harm	his	rights. Finally, the court found that,	because	Indorf	had acknowledged that	his	claim s 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.		D ISCUSSION
A. Motion	to	Consolidate [¶ 9 ] Indorf	first	argues	that the	court	abused	its	discretion	by	denying his	motion	 to	 consolidate	 the	 contract	and	 partition action s . 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

. [¶1 0 ] Rule 42(a) “complement s 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	con ducted	a full res	judicata	analysis.6 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 part y’s motions	 to consolidate	several	cases	regarding	the	proper	allocation	of	attorney	fees	in	a large	jury	verdict. 2015	ME	36,	¶¶	16

- 1 7 ,	114 A.3d	201. W e explained	 that although our “standard	of	 review is	deferential,	it	does	not	give	a	 trial	court
unfet tered	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	t he trial court’s	failure	to consolidate was	an	abuse	of	discretion	because “ severa l	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. [¶1 1 ] 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. T here	are legal	and	factual	questions as	to whether	a	contract	exists	and,	if	so,	whether	its7
t erms 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 .	 	 T herefore, dismissing Indorf’s	 complaint may substantially	 harm his asserted right	 to	 recover	 his	 contribution toward	 the down	payment on the real property.
B. Abatement [¶1 2 ] The court applied the	 doctrine	 of	 abatement in	its dismiss al	 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	allege d the	elements	of	a cause	of	action	or	facts	entitling him to	relief	on	some	legal	theory. See id

.

5 Th e	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 r es	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).8 [¶1 3 ] A lthough	 there	 is “one narrow	 exception ” to	 the	 rule	 barring

mov ants 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	ple a d ed by	a	party , s ee,	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 ple a d ed abatement , the	 court ’s	 application	 of	 the remedy sua	 sponte was inappropriate

. 6

6 Because	we	conclude	that	the	remedy	of	abatement was	i nappropriate ,	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	R ules’ allowance	for liberal	merger	of	claims and	defenses, which	increase	the	efficiency	of	proceedings	in	most	instances , were better	suited	than9 [¶1 4 ] We	therefore vacate	the	court’s	order	dismissing	Indorf’s contract
action

. T he	 parties	indicated	 at	 oral	 argument that the	 partition action ha d 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

. 7
C
. Attorney	Fees [¶1 5 ] Indorf	 also	 contends	 that the court	 erred by awarding	 Keep attorney	fees	because	the	circumstances	do	not	fit	within	the	exceptions	to	the
American r ule

. “[ 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	count erclaiming	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 Th is	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). [¶1 6 ] 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	 findin g	 regarding	 Indorf’s acknowledgment	 seems	 to	 suggest	 that	 the	 court,	 to	 some	 degree,	 accepted Keep’s	argument	that	Indorf	fi led 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

.11 [¶1 7 ] 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,
76 5 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,	 w e	 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 whe re there	is	no abuse	of	the	litigation	process , the	court	lacks the	inherent	authority	to	sanction	partie s . See	i d. ¶	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	c ourt

.	.	. ,	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 part ies 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	part ies ]	refused to	obey a	court	order”).12 [¶1 8 ] In	this	case, the court	erred	when	it	awarded	Keep	attorney	fees.
Under	 the	American r ule,	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	atto rney	fees	in	this case ,	nor is	there	any	agreement	between	the	parties	that	entitle d 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

. W e,	therefore, vacate the awar d	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 F OR C LERK R EFERENCE O NLY