Libby O'Brien Kingsley & Champion, LLC v. Sharon E. Blanchard

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 101Docket: Cum-14-506
Submitted
On Briefs: July 1, 2015
Decided: August 4, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HJELM, JJ.
LIBBY O’BRIEN KINGSLEY & CHAMPION, LLC
v.
SHARON E. BLANCHARD
PER CURIAM
[¶1] Sharon E. Blanchard appeals from an order of the District Court
(Portland, Eggert, J.) approving attachment, including attachment on trustee
process, against her real and personal property based on a complaint for breach of
contract filed by Libby O’Brien Kingsley & Champion, LLC (LOKC). Blanchard
appears to challenge the court’s findings in support of attachment and trustee
process.1 Because the court’s findings are supported by competent evidence in the
motion record, we affirm.
1
Although appeals from prejudgment orders of attachment are considered interlocutory, we have held
that orders granting or denying attachment and trustee process “are immediately appealable pursuant to
the collateral order exception to the final judgment rule.” Centrix Bank & Trust v. Kehl, 2012 ME 52,
¶ 13, 40 A.3d 942. Accordingly, we denied LOKC’s motion to dismiss this appeal, which mistakenly
referred to the order of attachment as being an ex parte order. See Mitchell v. Lavigne, 2001 ME 67,
¶¶ 4-6, 770 A.2d 109 (holding that a party must move to dissolve or modify an ex parte order of
attachment pursuant to M.R. Civ. P. 4A(h) before the party can appeal the ex parte order).
2
[¶2] LOKC filed its initial complaint for breach of contract against
Blanchard in October 2014, seeking $39,945.222 in unpaid attorney fees, costs, and
late fees.3 LOKC simultaneously filed a motion for approval of attachment and
trustee process against Blanchard’s property pursuant to M.R. Civ. P. 4A and 4B,
accompanied by a supporting affidavit of the attorney with whom Blanchard had
allegedly contracted for legal services. See M.R. Civ. P. 4A(c), 4B(c).
[¶3] The supporting affidavit complied fully with M.R. Civ. P. 4A and 4B.
It set forth specific facts regarding the parties’ contract, the extent of services
provided, and the amount of unpaid fees. The affiant averred, based on his own
knowledge, information, or belief, that (1) it was more likely than not that LOKC
would recover judgment in an amount equal to or greater than the requested sum of
attachment; (2) no liability insurance would cover Blanchard’s breach of contract;
(3) no other property attached by another writ of attachment was available to
satisfy the judgment; (4) LOKC notified Blanchard of her right to arbitration
2
LOKC’s motion for attachment and trustee process includes a minor typographical error in which it
states that Blanchard owes LOKC $39,945.52, but sought attachment to be made in the amount of
$39,945.22. The court approved attachment of the latter amount.
3
In addition to the $39,945.22 in unpaid fees sought, the record suggests that Blanchard had paid
LOKC a retainer of $5,000 to begin representation in a divorce proceeding. LOKC’s representation of
Blanchard in the divorce appears to have lasted for about ten months before being terminated for
nonpayment of fees prior to completion of the divorce action. Rule 1.5(g) of the Maine Rules of
Professional Conduct requires that lawyers, upon request of the client, submit any fee dispute to fee
arbitration pursuant to former Maine Bar Rule 9 (Tower 2014). The record indicates that LOKC advised
Blanchard of her right to fee arbitration prior to commencing this action. The Maine Bar Rules were
repealed and replaced effective July 1, 2015. Fee arbitration is now addressed by Maine Bar Rule 7
(effective July 1, 2015).
3
pursuant to the Maine Bar Rules; and (5) so far as the affidavit was based upon
information and belief, the affiant believed this information to be true. See M.R.
Civ. P. 4A(c) (listing the requisite findings to support an order of attachment);
M.R. Civ. P. 4A(i) (establishing requirements for the contents of Rule 4A
affidavits); M.R. Civ. P. 4B(c) (requiring the same of Rule 4B affidavits).
[¶4] Blanchard filed a very brief letter objecting to LOKC’s motion and the
allegations contained therein. She did not include with her letter a memorandum,
supporting affidavit, or any other supporting documentation as required by M.R.
Civ. P. 7(c)(1). The court could properly determine that Blanchard had waived her
objection to the motion, and accordingly, it considered the merits of the attachment
motion without a hearing. See M.R. Civ. P. 4A(c), 4B(c); S. Me. Props. Co. v.
Johnson, 1999 ME 37, ¶ 8, 724 A.2d 1255 (stating that a formal hearing with oral
argument is not required for a court to rule on an attachment motion); see also
Clearwater Artesian Well Co. v. LaGrandeur, 2007 ME 11, ¶ 8, 912 A.2d 1252(reiterating our approach that “self-represented litigants are afforded no special
consideration in procedural matters”); cf. First Citizens Bank v. M.R. Doody, Inc.,
669 A.2d 743, 744 & n.2 (Me. 1995). In November 2014, the court ordered
attachment and trustee process against Blanchard’s real and personal property.
4
[¶5] We review orders for attachment and trustee process for an abuse of
discretion or clear error. Lindner v. Barry, 2003 ME 91, ¶ 3, 828 A.2d 788. To
order either attachment or trustee process, the court must find
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.
M.R. Civ. P. 4A(c); see also M.R. Civ. P. 4B(c). “We will not disturb the trial
court’s findings based on the affidavits unless the affidavits contain no competent
evidence to support the finding as to the plaintiffs’ likelihood of success.” Wilson
v. DelPapa, 634 A.2d 1252, 1254 (Me. 1993).
[¶6] We discern no error in the court’s findings that it is more likely than
not that LOKC will recover judgment in an amount equal to or greater than the
aggregate sum of attachment and that there is no insurance coverage available to
satisfy the judgment. These findings are supported by LOKC’s affidavit, which
complied with all applicable procedural rules and established facts sufficient to
warrant attachment and trustee process. See M.R. Civ. P. 4A(c), (i); M.R.
5
Civ. P. 4B(c). Accordingly, the court did not err or abuse its discretion by ordering
such attachment against Blanchard’s property.4
The entry is:
Judgment affirmed.
On the briefs:
Sharon E. Blanchard, pro se appellant
Gene R. Libby, Esq., Libby O’Brien Kingsley & Champion, LLC,
Kennebunk, for appellee Libby O’Brien Kingsley & Champion, LLC
Portland District Court docket number CV-2014-501
FOR CLERK REFERENCE ONLY
4
LOKC argues that we should exercise our discretion to dismiss Blanchard’s appeal for Blanchard’s
failure to file an appendix that complies with the Maine Rules of Appellate Procedure. See M.R.
App. P. 8(c)(2), (d), (f), (g). We decline to dismiss the appeal.