Estate of Steven Summers v. Gregory Nisbet

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 88
Docket: Cum-15-298
Argued: April 7, 2016
Decided: June 7, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
ESTATE OF STEVEN SUMMERS et al.
v.
GREGORY NISBET
GORMAN, J.
[¶1] The Estate of Steven Summers appeals from an order entered in the
Superior Court (Cumberland County, Mills, J.) dissolving the attachment that it
had received on an ex parte basis in connection with its complaint against
Gregory J. Nisbet in December of 2014 and granting a new attachment after a
hearing. The Estate of Summers contends that the court erred by concluding that
the Estates of Ashley E. Thomas, Nicole Lyn Finlay, David R. Bragdon, and
Christopher Conlee had standing to challenge its attachment order, and by
dissolving the December 2014 attachment order and issuing a new attachment
order. We affirm the court’s confirmation of the attachment held by the Estate of
Summers, but vacate the order to the extent that it dissolved the attachment issued
2
after ex parte process and declined to effectuate that attachment as of its original
date of entry.
I. BACKGROUND
[¶2] This consolidated matter stems from multiple complaints filed against
Nisbet, the owner of an apartment building where several people died in a fire on
November 1, 2014. Between November of 2014 and January of 2015, the estates
of five of the people who died in the fire filed complaints in the Superior Court:
(1) on November 21, 2014, Ashley Summers filed, individually and on behalf of
her children and the Estate of Steven Summers; (2) on January 6, 2015, Nikki J.
Thomas and Louis W. Thomas Jr. filed on behalf of the Estate of Ashley E.
Thomas; (3) on January 20, 2015, Lisa Leconte Mazziotti filed on behalf of the
Estate of Nicole Lyn Finlay; (4) on January 21, 2015, David R. Bragdon Sr. and
Pamela B. Rhodus filed on behalf of the Estate of David R. Bragdon; and (5) on
January 30, 2015, Kathleen Conlee filed on behalf of the Estate of Christopher
Conlee. All five complaints allege various causes of action for wrongful death and
pain and suffering based on similar facts—that the property was in a state of
general disrepair, there were no working smoke detectors on the property, a second
means of egress (a back staircase) was impassable, the building contained an
illegal third-floor apartment, the property violated various fire codes, and Nisbet
allowed the storage of combustible materials on the property.
3
[¶3] With its complaint, filed several weeks before any of the other
plaintiffs’, the Estate of Summers sought an order for attachment and trustee
process, alleging that this protection should be granted to it on an ex parte basis.
The court (Wheeler, J.) granted the requested attachment and trustee process
against Nisbet—on an ex parte basis—in the amount of $1.7 million on
December 3, 2014. After he received notice of the court’s order, Nisbet took no
action to challenge the attachment.
[¶4] In addition to their complaints, the Estates of Bragdon, Conlee, Finlay,
and Thomas (the four Estates) each moved for attachment and trustee process.
Nisbet did not oppose any of those attachment requests, but they had not yet been
granted when, in February of 2015, the four Estates also moved in the Summers
matter to dissolve or modify the Estate of Summers’s attachment order on grounds
that the Estate of Summers had not made the required showing to obtain the
attachment on an ex parte basis. The Estate of Summers opposed the motions, but
Nisbet did not.
[¶5] After a hearing, the court dissolved the attachment the Estate of
Summers had received in December, determining that it should not have been
issued on an ex parte basis, and simultaneously granted attachments in favor of the
Estates of Summers ($1.7 million), Thomas ($2 million), Finlay ($1.7 million),
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Bragdon ($4 million), and Conlee ($2 million).1 The court later denied the Estate
of Summers’s motion for reconsideration, as well as the request for relief pursuant
to M.R. Civ. P. 60(b) filed by the Estates of Bragdon, Finlay, and Conlee based on
the order of priority of the interests in Nisbet’s property. The Estate of Summers
timely appeals. 2
II. DISCUSSION
[¶6] Because the court’s orders resulted in a loss of priority status for its
attachment, the Estate of Summers challenges the court’s decision dissolving the
order of attachment and trustee process that had been issued in December of 2014
on an ex parte basis.3 The attachment statute, 14 M.R.S. §§ 4101-4613 (2015),
generally sets out what types of real and personal property may be attached on
mesne process and “held as security to satisfy the judgment for damages and costs
which the plaintiff may recover.” 14 M.R.S. § 4151 (as to personal property); see
14 M.R.S. § 4451 (as to real property). Maine Rule of Civil Procedure 4A(c)
1
Over the Estate of Summers’s objection, the court consolidated the five cases on May 15, 2015.
2
The Estate of Thomas has filed an appellee’s brief in this appeal, joined by the Estate of Bragdon.
Nisbet, the Estate of Finlay, and the Estate of Conlee are not participating in the appeal.
3
Attachment orders are immediately appealable pursuant to the collateral order exception to the final
judgment rule. See Centrix Bank & Trust v. Kehl, 2012 ME 52, ¶ 13, 40 A.3d 942; cf. Mitchell v.
Lavigne, 2001 ME 67, ¶ 6, 770 A.2d 109 (requiring a party to seek dissolution or modification of an
attachment before instituting an appeal).
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dictates the standard and procedure by which an attachment may ordinarily be
obtained:4
No property may be attached unless such attachment for a
specified amount is approved by order of the court. Except as
provided in subdivision (g) of this rule, the order of approval may
be entered only after notice to the defendant and hearing and upon
a finding by the court that it is more likely than not that the
plaintiff will recover judgment, including interest and costs, in an
amount equal to or greater than the aggregate sum of the
attachment and any liability insurance, bond, or other security, and
any property or credits attached by other writ of attachment or by
trustee process shown by the defendant to be available to satisfy the
judgment.
An attachment of property shall be sought by filing with the
complaint a motion for approval of the attachment. . . .
Thus, whether a party will receive an attachment depends on the party’s proof, by a
preponderance of the evidence, of both the likelihood of success in the underlying
suit and the likelihood of recovering in that amount or greater. Boisvert v.
Boisvert, 672 A.2d 96, 98 n.3 (Me. 1996).
[¶7] None of the parties, including Nisbet, now challenges—or has ever
challenged—any of the five Estates’ entitlements to attachment orders pursuant to
the two-part standard set out in Rule 4A(c); that is, there is no dispute that all five
Estates have established their likelihoods of success against Nisbet in certain
4
In almost identical terms, trustee process is governed by 14 M.R.S. §§ 2601-3105 (2015) and
M.R. Civ. P. 4B. Because the standards applicable to attachment and trustee process are the same, our
discussion of attachment applies equally to trustee process. See 2 Harvey & Merritt, Maine Civil Practice
§ 4B:1 at 288 n.1 (3d, 2014-2015 ed.) (noting that “trustee process is considered a form of attachment”
(alteration omitted) (quotation marks omitted)).
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amounts. Rather, before the trial court, the four Estates purported to challenge the
Estate of Summers’s entitlement to obtain priority through the attachment order
entered on an ex parte basis.
[¶8] When a plaintiff seeks to obtain an attachment order on an ex parte
basis, Rule 4A(g) requires the plaintiff to establish the same likelihood of success
as with an attachment pursuant to Rule 4A(c), but also requires the plaintiff to
establish that “there is a clear danger that the defendant if notified in advance of
attachment of the property will remove it from the state or will conceal it or will
otherwise make it unavailable to satisfy a judgment” or that “there is immediate
danger that the defendant will damage or destroy the property to be attached.”
M.R. Civ. P. 4A(g); see Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (stating that due
process requires notice and a hearing before depriving a person of a property
interest, “except for extraordinary situations where some valid governmental
interest is at stake that justifies postponing the hearing until after the event”
(quotation marks omitted)). It is this third requirement that allows a plaintiff
seeking an attachment to obtain relief with an “extraordinary” process that permits
the bypass of what otherwise is required, i.e., notice to the other party or parties.
[¶9] Rule 4A also provides the mechanism for challenging an attachment
order that has been issued on an ex parte basis; it allows that “any person having an
interest in the property that has been attached” may, “without thereby submitting to
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the personal jurisdiction of the court, . . . move the dissolution or modification of
the attachment.”5 M.R. Civ. P. 4A(h). In such instances, Rule 4A(h) requires the
court to provide notice and a hearing at which it is the plaintiff’s burden to
“justify[] any finding in the ex parte order that the moving party has challenged by
affidavit.” M.R. Civ. P. 4A(h).
[¶10] We have already evaluated the scope of the inquiry the trial court
must make when an attachment issued on an ex parte basis is challenged, and have
concluded that once such an attachment is challenged (and notice and an
opportunity to be heard are provided), the ex parte portion of the analysis becomes
moot: “A motion to dissolve an ex parte attachment is treated as the equivalent of a
contested motion for attachment after notice” in which the attaching plaintiff has
the burden to establish, by a preponderance of the evidence, “its entitlement to
recovery of an amount equal to or greater than the amount of the attachment.”
Foley v. Jacques, 627 A.2d 1008, 1009-10 (Me. 1993) (alterations omitted)
(quotation marks omitted); see Plourde v. Plourde, 678 A.2d 1032, 1035
(Me. 1996) (characterizing a hearing on a motion to dissolve an ex parte
attachment as a “rehearing of [the] original motion for attachment,” and stating
that, given that hearing, the issue regarding the defendant’s likelihood of removing,
5
Another portion of M.R. Civ. P. 4A(h) provides that only a defendant may seek modification or
dissolution of an attachment order based on the availability of specific property or funds to satisfy a
judgment.
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concealing, or destroying property was moot); Herrick v. Theberge, 474 A.2d 870,
876 (Me. 1984) (“[T]he ‘ex parte need’ question did not remain a viable issue once
the dissolution motion justice determined, after full notice and hearing, with the
burden of proof resting on plaintiffs, that they were entitled to [an attachment].”
(footnote omitted)). Indeed, we have noted that “no conceivable purpose is served
by returning to the situation prevailing [on the date the attachment was entered on
an ex parte basis] for the dissolution motion 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. Thus, on a challenge to an
attachment issued on an ex parte basis, the court is tasked with considering—this
time with notice to the defendant and an opportunity to be heard—whether the
plaintiff has made the requisite showing to obtain an attachment, that is, the
likelihood of success in a certain amount.
[¶11] Although the court acknowledged this line of cases, it nonetheless
distinguished the motions here based on the parties who filed the motions. To the
extent the court’s analysis was based on our less than clear language, we clarify
here that the court’s only role should have been to determine whether the Estate of
Summers established the elements to obtain an attachment, that is, the likelihood of
success in a certain amount. Because none of the four Estates challenged the
Estate of Summers’s entitlement to an attachment, however, there was nothing for
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the court to consider on the motions to dissolve the Estate of Summers’s
attachment. It was therefore error to dissolve the attachment the Estate of
Summers received on an ex parte basis in December and issue a new attachment,
and we vacate the judgment doing so.6
[¶12] Finally, we disagree with the argument that we cannot reinstate the
date of the December attachment order as the Estate of Summers’s date of priority,
and that the appeal is therefore moot. On multiple occasions, we have ordered the
reinstatement of an attachment that had been improperly dissolved. See Plumbago
Mining Corp. v. Sweatt, 444 A.2d 361, 368 (Me. 1982); Cranston v. Commercial
Chem. Corp., 324 A.2d 301, 305 (Me. 1974); cf. Citizens Bank N.H. v. Acadia
Group, Inc., 2001 ME 41, ¶ 13 & n.3, 766 A.2d 1021. By vacating the judgment
dissolving the December attachment, we effectively reinstate the Estate of
Summers’s attachment dating back to December 3, 2014.
The entry is:
Judgment dissolving the December 3, 2014,
attachment and entering a later attachment in favor
of the Estate of Summers is vacated. Attachment
in favor of the Estate of Summers dated
December 3, 2014, is reinstated.
6
Given this conclusion, we need not address the Estate of Summers’s additional contention—that the
other Estates lacked standing to challenge the attachment pursuant to Rule 4A—because it makes no
difference to the outcome of this matter.
10
On the briefs:
John S. Campbell, Esq., Campbell & Associates, P.A., Portland,
and Thomas F. Hallett, Esq., The Hallett Law Firm, Portland,
for appellant Estate of Steven Summers
Michael K. Martin, Esq., and Ryan C. Almy, Esq., Petruccelli,
Martin & Haddow, LLP, Portland, for appellee Estate of Ashley
E. Thomas
Robert H. Furbish, Esq., Berman & Simmons, P.A., Lewiston,
for appellee Estate of David R. Bragdon
Gregory Nisbet, the Estate of Nicole Lyn Finlay, and the Estate
of Christopher Conlee did not file a brief
At oral argument:
Thomas F. Hallett, Esq., for appellant Estate of Steven
Summers
Michael K. Martin, Esq., for appellee Estate of Ashley E.
Thomas
Cumberland County Superior Court docket number CV-2014-487
FOR CLERK REFERENCE ONLY