Opinion
Civil Action CV-14-487 CV-15-011 CV-15-027 CV-15-029 CV-15-040
02-26-2015
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 MALTY AH 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
ORDER ON PLAINTIFFS MAZZIOTTL BRAGDON, THOMAS, AND CONLEE'S MOTIONS TO MODIFY AND/OR DISSOLVE THE ORDER GRANTING THE EX PARTE ATTACHMENT TO PLAINTIFF SUMMERS
Nancy Mills, Justice, Superior Court
Before the court are plaintiff Mazziotti's motion to dissolve or modify the attachment order granted on plaintiff Summers's ex parte motion for attachment (the Summers attachment) and plaintiff Bragdon's motion to dissolve the Summers attachment. Plaintiffs Thomas and Conlee join in these motions.
Plaintiff Mazziotti's motion is styled as a motion to dissolve or modify the Summers order but plaintiff argues that the order should be modified to increase the amount of the attachment and to include the other four plaintiffs. (Mazziotti Mot. 2 and Proposed Order.)
Plaintiff Mazziotti asks the court to increase the amount of the attachment ordered and to include plaintiffs Mazziotti, Bragdon, Thomas, and Conlee as plaintiffs in the Summers attachment. Rule 4A(h) provides that an order of attachment may be modified "to limit the attachment to specific property or to order cash or bond to be held by the court as security for the judgment, and to dissolve the prior attachment as to all other property of the defendant." M.R. Civ. P. 4A(h); see Centrix Bank & Trust v. Kehl, 2012 ME 52, ¶ 9 n.2, 40 A.3d 942 (party may seek modification of an attachment order "but only for the purpose of showing that 'specific property or sufficient cash is available to satisfy a judgment so that the attachment order can be modified to limit or dissolve the attachment accordingly"). Plaintiff Bragdon asks the court to dissolve the Summers attachment. The court treats these motions as motions to dissolve the Summers attachment.
Hearing was held on February 25, 2015. All parties were represented by counsel.
The Summers complaint and motion for ex parte attachment were filed on November 21, 2014. The ex parte motion for attachment was granted by order filed December 3, 2014. An amended complaint was filed on December 16, 2014.
Defendant's attorney accepted service on December 31, 2014. After receiving an extension of time to file an answer by order filed February 10, 2015, defendant filed an answer to the amended complaint on February 17, 2015.
The Thomas complaint and motion for attachment were filed on January 6, 2015. Defendant's attorney accepted service on January 13, 2015. After receiving an extension of time to file an answer by order filed February 5, 2015, defendant filed an answer on February 17, 2015. Defendant filed no opposition to the motion for attachment.
The Mazziotti complaint and motion for attachment were filed on January 20, 2015. Defendant's attorney accepted service on January 21, 2015. After receiving an extension of time to file an answer by order filed February 19, 2015, defendant filed an answer on February 17, 2015. Defendant filed no opposition to the motion for attachment.
The Bragdon complaint and motion for attachment were filed on January 21, 2015. An amended complaint was filed on January 26, 2015. Defendant's attorney accepted service on January 26, 2015. Defendant filed an answer to the amended complaint on February 17, 2015. Defendant filed no opposition to the motion for attachment.
The Conlee complaint was filed on January 30, 2015. Defendant's attorney accepted service on January 30, 2015. Defendant filed an answer on February 17, 2015. Although counsel for plaintiff Conlee moved orally for an attachment at the February 25, 2015 hearing and defendant did not object, the court had no affidavits supporting the motion, as required by Rule 4A(c). Since the hearing, plaintiff Conlee filed a written motion for attachment and attachment on trustee process with supporting affidavit.
Counsel for plaintiff Conlee also moved orally to consolidate these cases pursuant to Rule 42. M.R. Civ. P. 42. Plaintiff Summers objected but the other parties did not respond. The court defers ruling until after consideration of any written motion to consolidate and any responses to that motion.
Counsel for defendant has been involved in this matter from the very beginning. He accepted service on behalf of defendant and filed answers in these five cases.
The circumstances of these cases are unique and unlikely to be repeated. These cases arise from a fire in Portland, Maine on November 1, 2014. Six people died, including Steven Summers, Ashley E. Thomas, Nicole Lyn Finlay, David R. Bragdon, and Christopher Conlee. Potential damages are substantial. Although defendant is defending the lawsuits, he has not opposed plaintiffs Mazziotti, Bragdon, Thomas, and Conlee's motions for attachment of which he had notice.
Based on statements of counsel at the hearing, it appears that defendant has retained a bankruptcy attorney, although no filing has been made. Pursuant to the Bankruptcy Code, the trustee "may avoid any transfer of an interest of the debtor in property . . . made ... on or within 90 days before the date of filing the petition." 11 U.S.C. §547(b)(4)(A) (2012).
Standing
The court is satisfied plaintiffs Mazziotti, Bragdon, and Thomas, at the time of the hearing, had standing based on their unopposed motions for attachment and attachment on trustee process. M.R. Civ. P. 4A(h) & 4B(j).
Dissolution
Plaintiffs Mazziotti, Bragdon, and Thomas challenge the Summers attachment on the grounds that there was insufficient evidence to support the ex parte grant of the Summers attachment. These plaintiffs have challenged by affidavit the finding of "clear danger" and "immediate danger" in the Summers attachment. See Beesley v. Landmark Realty, Inc., 464 A.2d 936, 937 (Me. 1983).
Generally, "a court order may not be collaterally attacked unless the jurisdiction of the court to make the order is challenged; mere questions of irregularity may not be collaterally attacked." Matson Nav. Co. v. F.D.I.C., 916 P.2d 680, 686 (Haw. 1996); see Carlson v. Rice, 817 F.Supp. 193, 195 (D. Me. 1993). Rule 4A(g) requires that the motion for ex parte attachment "shall be supported by affidavit or affidavits." M.R. Civ. P. 4A(g); see M.R. Civ. P. 4A(i).
In his affidavit in support of the Summers attachment, Attorney Weyrens addresses the required showing for an ex parte order. Attorney Weyrens states defendant has an ownership interest in properties located at 20-24 Noyes Street and 186-192 Dartmouth Street in Portland, defendant was receiving rental payments from the 20 Noyes Street apartment but had not made mortgage payments since 2011, a judgment of foreclosure and sale was entered against defendant on the 20-24 Noyes Street property on July 7, 2014, and defendant has an ownership interest in Downeast Realty Partners, LLC. (Weyrens Aff. ¶¶ 12-15.)
The Noyes Street numbers in the Weyrens affidavit appear to be incorrect. (Weyrens Aff. ¶ 13.)
This judgment was not appealed. (Weyrens Aff. Ex. 10.)
The only argument made by plaintiff Summers in support of the ex parte motion for attachment that is supported by the affidavits, as required by the rule, was that defendant was not paying his mortgage on the Noyes Street property. (Weyrens Aff. ¶ 14.) The status of the Dartmouth property, except for ownership, is not discussed. Based on this record, a valid and final order of foreclosure and sale with regard to the Noyes Street property precludes any danger of defendant's disposing in any way of that property because he no longer has any interest in that property.
Accordingly, plaintiff's argument for an ex parte order is not supported by the affidavit or exhibits. The court concludes this challenge to the order is not merely an irregularity. See Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752, 755 (Me. 1981) (requirements in attachment rule "must be strictly complied with since the prejudgment attachment process is in derogation of the common law"); see also Lindner v. Barry, 2003 ME 91, ¶ 4, 828 A.2d 788.
The Law Court has determined, as between a plaintiff and a defendant, that once "the dissolution justice determined, after full notice and hearing, with the burden on the plaintiffs, that they were entitled to a real estate attachment, " the "'ex parte need' question did not remain a viable issue." Herrick v. Theberge, 474 A.2d 870, 876 (Me. 1984). The Herrick Court stated further:
While an intervening lienor might be moved into first place by dissolution of the earlier attachment and substitution of a new and later attachment, such hypothetical third party interest in absence of its assertion is no reason for the court to waste scarce judicial resources in adjudicating a proposition that is moot as between the parties.Herrick, 474 A.2d at 876. In this case, there are real third parties who assert an interest. Further, in Herrick, the court stated
In the circumstances of this case, no conceivable purpose is served by returning to the situation prevailing [at the time the ex parte motion was granted] for the dissolution justice to determine anew, and for the Law Court to review, whether a satisfactory reason then existed for the first justice to proceed ex parte.Herrick, 474 A.2d at 876. In this case, there is a purpose to be served based on the circumstances of the other plaintiffs.
The Law Court has determined:
[a] motion to dissolve the ex parte attachment is treated as the equivalent of a contested motion for attachment after notice, with [plaintiff] as the party seeking the attachment having the burden of establishing by a preponderance of the evidence its entitlement to recovery of an amount equal to or greater than the amount of the attachment.Trans Coastal Corp. v. Curtis, 622 A.2d 1186, 1188 (Me. 1993). Plaintiffs Mazziotti, Bragdon, Thomas, and Conlee do not dispute plaintiff Summers has shown it is more likely than not she will recover judgment in an amount equal to or greater than the aggregate sum of the attachment and defendant's liability insurance limits, Based on these circumstances, the court dissolves the order of attachment in favor of plaintiff Summers filed December 3, 2014 and grants, on February 26, 2015, an attachment in favor of plaintiff Summers, including attachment on trustee process, against defendant in the amount of $1, 700, 000.00.
The clerk is directed to incorporate this order into the docket by reference.