Opinion
SUPERIOR COURT CIVIL ACTION Docket No. CV-14-487 SUPERIOR COURT CIVIL ACTION Docket No. CV-15-011 SUPERIOR COURT CIVIL ACTION Docket No. CV-15-027 SUPERIOR COURT CIVIL ACTION Docket No. CV-15-029 SUPERIOR COURT CIVIL ACTION Docket No. CV-15-040
05-26-2015
ASHLEY SUMMERS, as the Surviving Spouse of STEVEN SUMMERS and the Personal Representative of the ESTATE OF STEVEN SUMMERS and as Parent, Guardian, and Next Friend of the Minor Children, AUDRYN SUMMERS and MALIYAH SUMMERS, NIKKI J. THOMAS and LEWIS THOMAS, JR., as Co-Personal Representatives of the ESTATE OF ASHLEY E. THOMAS, LISA LECONTE MAZZIOTTI, as Personal Representative of the ESTATE OF NICOLE LYN FINLAY, DAVID R. BRAGDON, SR. and PAMELA RHODUS as Co-Personal Representatives of the ESTATE OF DAVID R. BRAGDON, and KATHLEEN CONLEE as Personal Representative of the ESTATE OF CHRISTOPHER CONLEE Plaintiffs v. GREGORY NISBET Defendant
STATE OF MAINE
CUMBERLAND, ss
ORDER ON MOTIONS TO RECONSIDER AND FOR RULE 60(b) RELIEF
Pending before the court are (1) plaintiff Summers's motion for reconsideration under M.R. Civ. P. 59(e) and for additional findings of fact under M.R. Civ. P. 52(b); and (2) plaintiffs Mazziotti, Bragdon, and Conlee's motion for relief from an order pursuant to M.R. Civ. P. 60(b). For the following reason, the motions are denied.
BACKGROUND
These cases involve wrongful death claims that resulted from a fatal fire at the defendant's Noyes Street apartment building in Portland on November 1, 2014. Plaintiffs are the personal representatives of the estates of five individuals who died in the fire.
On February 26, 2015, the court granted plaintiffs Mazziotti, Bragdon, Thomas, and Conlee's motions to dissolve the ex parte attachment that had been approved by the court on December 2, 2014. Also on February 26, the court granted attachment orders to each of the plaintiffs.
DISCUSSION
1. Plaintiff Summers's Motion for Reconsideration
Plaintiff Summers argues that the court erred when it dissolved Summers's ex parte attachment. Under M.R. Civ. P. 59(e), "[a] motion for reconsideration of the judgment will be treated as a motion to alter or amend the judgment."
Plaintiff Summers also requests findings of fact. First, rather than an interrogation of the court, Rule 52 contemplates the party moving for findings will provide proposed findings. See Bell v. Bell, 1997 ME 154, ¶ 6, 697 A.2d 835 ("it is incumbent on the party to set forth specifically any further finding of fact or conclusions of law the party is by motion, pursuant to Rule 52, requesting of the court.")); (see also Pl.'s Mem. 18.) Second, plaintiff Summers's motion addresses an order on a motion to dissolve an ex parte attachment, not an action "tried upon the facts without a jury or with an advisory jury." M.R. Civ. P. 52(a).
The court has reviewed the extensive case law cited in plaintiff Summers's motion for reconsideration addressing the issue of the "interest in property" requirement of Rule 4A(h), the focus of the motion for reconsideration. See, e.g., United States v. Sec. Trust & Sav. Bank, 340 U.S. 47, 50 (1950) ("attaching creditor obtains only a potential right or a contingent lien"); Pa. Co. for Ins. v. United R. of H. & R. Warehouses Ltd., 26 F. Supp. 379, 389 (D. Me. 1939) ("In Maine a creditor does not get a property right by attachment."); Fletcher v. Turtle, 97 Me. 491, 496 (Me. 1903) (purpose of an attachment is to acquire a lien).
In plaintiff Summers's opposition to the motion to dissolve the ex parte attachment, she cited two cases on this issue, which address the requirement that the owner of property must be given an opportunity to object and to be heard in opposition to an attachment. See Gunter v. Merchants Warren Nat'l Bank, 360 F. Supp. 1085, 1088-89 (D. Me. 1973); Perkins v. McGonagle, 342 A.2d 287, 290-91 (Me. 1975); (PL Summers's Opp. Mot. Dissolve 8.) Plaintiff Summers's argument in her eighteen page motion for reconsideration could have been presented in her opposition to the motion to dissolve. See M.R. Civ. P. 7(b)(5); see also M.R. Civ. P. 7(f).
The court concludes again plaintiffs Mazziotti, Bragdon, and Thomas had a sufficient interest in property to move for dissolution of the ex parte attachment. M.R. Civ. P. 4A(h) & 4B(j). The text of the rule shows that no motion to intervene is required. Id.
The court agrees it noted at the hearing the inequity of the circumstances of these cases. See Maine Nat'l Bank v. Anderschat, 462 A.2d 482, 484 (Me. 1983) (rejecting argument that court had equitable powers in deciding a motion for dissolution of ex parte attachment). That inequity is highlighted by the facts that although defense counsel has been involved since the very beginning, plaintiff Summers sought an ex parte attachment, which the court concluded was not supported by the affidavit or exhibits. Plaintiff Summers does not address this finding.
Finally, as the other plaintiffs point out, generally an attachment order cannot be retroactively reinstated. See Citizens Bank of N.H. v. Acadia Group, 2001 ME 41, ¶ 13 n.3, 766 A.2d 1021; Horton & McGehee Maine Civil Remedies, § 22-18 at 426 (4th ed. 2004). Equity in this case does not appear to dictate the reinstatement of the attachment. Id.
2. Plaintiffs Mazziotti, Bragdon, and Conlee's Motion for Relief
Plaintiffs Mazziotti, Bragdon, and Conlee (Mazziotti plaintiffs) have moved the court for relief under M.R. Civ. P. 60(b). M.R. Civ. P. 60(b) allows a party to file a motion for relief from an order for:
(1) mistake, inadvertence, surprise, or excusable neglect;M.R. Civ. P. 60(b). The Mazziotti plaintiffs argue that the court's order dissolving plaintiff Summers's attachment and issuing new attachment orders "has not remedied the unfairness which the moving Plaintiffs believe the Court was trying to remedy." (Pls. Mazziotti, et al. Mem. at 5.)
. . .
(6) any other reason justifying relief from the operation of the judgment.
The Mazziotti plaintiffs argue that "the Court chose not to use the draft order provided by counsel for Mazziotti granting each of the Estates an attachment in a single order (Mot. for Rule 60(b) Relief 4.) No proposed order on the motion to dissolve was provided by counsel for plaintiff Mazziotti. Counsel for plaintiff Bragdon provided a proposed order, which stated, "After careful review and consideration, the Court hereby GRANTS/DENIES Plaintiffs DAVID R. BRAGDON and PAMELA B. RHODUS, as Co-Personal Representatives of the Estate of DAVID R. BRAGDON'S Motion to Dissolve."
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Plaintiff Thomas, who joined in the motion to dissolve the Summers ex parte attachment, now opposes this Rule 60(b) motion because plaintiff Thomas now enjoys the priority position plaintiff Summers previously enjoyed. Based on the circumstances of this case, however, the requirements for applying judicial estoppel are not present. See HL 1, LLC v. Riverwalk, LLC, 2011 ME 29, ¶ 31, 15 A.3d 725; Me. Educ. Ass'n v. Me. Cmty. Coll. Sys. Bd. of Trs., 2007 ME 70, ¶¶ 17-18, 923 A.2d 914.
The Mazziotti plaintiffs do not cite to any authority that would allow the court to issue a single attachment order that extends to plaintiffs in different cases and over two parties' objections. Plaintiff Summers argues correctly that no equitable considerations are vested in a judge addressing a motion for attachment or a motion to dissolve an ex parte motion for attachment. See Maine Nat'l Bank, 462 A.2d at 484.
The entry is
Plaintiff Summers's Motion for Reconsideration is DENIED.Date: May 26, 2015
The Mazziotti Plaintiffs' Motion for Relief is DENIED.
/s/_________
Nancy Mills
Justice, Superior Court
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