Opinion
Civil Action CV-23-212
02-27-2024
THE BOULOS COMPANY, INC., Plaintiff, v. LINDA BEAN, Defendant.
Plaintiff-Andrew Sparks, Esq. Defendant-Kenneth Pierce, Esq.
Plaintiff-Andrew Sparks, Esq.
Defendant-Kenneth Pierce, Esq.
ORDER ON MOTION FOR ATTACHMENT AND ATTACHMENT ON TRUSTEE PROCESS
Deborah P. Cashman, Justice Maine Superior Court
Before the Court is Plaintiff The Boulos Company, Inc.'s ("Boulos") M, R. Civ. P. 4A and 4B Motion for Attachment and Attachment on Trustee Process. Boulos seeks attachment and attachment on trustee process in the amount of $228,000.00 against the real and personal property of Defendant Linda Bean ("Bean") on its two-count complaint.
Motions for attachment and trustee process must be supported by affidavit evidence that sets forth "specific facts sufficient to warrant the required findings." M.R. Civ. P. 4A(c), (i); M.R. Civ. P. 4B(c). The moving party must establish that it is more likely than not that they will recover judgment in an amount that equals or exceeds the aggregate sum of the attachment and other available security. M.R. Civ. P. 4A(c); Wilson v. DelPapa, 634 A.2d 1252, 1254-1255 (Me. 1993); Jacques v. Brown, 609 A.2d 290, 292 (Me. 1992). "Because prejudgment attachment may operate harshly upon the party against whom it is sought, there must be strict compliance with the procedures prescribed by legislation and implemented by court rules," Lindner v. Barry, 2003 ME 91, ¶ 4, 828 A.2d 788 (quoting Wilson, 634 A.2d at 1254).
Other available security includes "any liability insurance, bond, or other security, and any property or credits attached by other write of attachment or by trustee process shown by the defendant to be available to satisfy the judgment." M.R. Civ. P. 4A(c),
Affidavits submitted in support of or opposition to a motion for attachment or trustee process "shall be upon the affiant's own knowledge, information or belief." M.R. Civ. P. 4A(i); see M.R. Civ. P. 4B(c) ("The motion shall be supported by affidavit or affidavits meeting the requirements set forth in Rule 4A(i)."). Although Rule 4A refers only to affidavits the Court will also consider depositions and exhibits appropriately attached to affidavits that conform to Rule 4A(i). See Off. Post Confirmation Comm, of Creditors Holding Unsecure Claims v. Markheim, 2005 ME 81, ¶ 18, 877 A.2d 155 (stating that Rule 4A does not permit the Court to consider evidence not contained in proper affidavits); Boisvert v. Boisvert, 672 A.2d 96, 98 (Me. 1996) (considering evidence in documentary exhibits and deposition transcripts); Wilson, 634 A.2d at 1254 (considering writings attached to affidavits). However, "[t]he arguments of counsel cannot substitute for the required sworn statements of relevant facts." Wilson, 634 A.2d at 1254.
Boulos's motion is supported by the affidavit of Gregory W. Boulos and the attached Exhibit A, a copy of a contract between the parties. Gregory Boulos's affidavit, in substance, states that he entered into the representation agreement to serve as Bean's buyer's agent for purchasing 35 &39 Main Street in Freeport, Maine. The agreement is dated February 25, 2019. The contract provides Boulos with a commission equal to four percent of the sale price if the property is sold to Bean or a related entity. The contract states it was to remain in effect for twelve months from the date of signing and then month to month thereafter unless terminated by written notice from either party to the other. Gregory Boulos states that he worked extensively with and for Bean in her pursuit of purchasing the property, that the property was sold to an entity owned and controlled by Bean for $5.7 million, and that Bean has refused to pay the commission due under the contract.
Bean's opposing affidavit states that Boulos was unable to put together a deal for the purchase of the property and on July 1, 2021, the sellers notified Boulos and Bean that the property was being taken off the market. Boulos tried to interest Bean in another property in Freeport, but Bean told Boulos that she was not interested in that property and was moving own. Boulos did not make any effort to reengage negotiations for the property over the following year. Bean was then approached by another broker who was ultimately able to secure a deal for purchase of the property. Bean believed the relationship under the February 25, 2019 contract was terminated through their course of dealing and by her statement to Boulos that she was moving on.
Having considered the affidavits presented on this motion for attachment, the Court does not find that Boulos has established it is more likely than not it will recover judgment on its claims against Bean because Bean has presented evidence that the contract was terminated.
The entry is:
Plaintiff The Boulos Company, Inc.'s Motion for Attachment and Attachment on Trustee Process is DENIED. The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).