Opinion
PORSC-CV-12-427
07-20-2016
FAITH TEMPLE f/k/a First United Pentecostal Church Plaintiff and Counterclaim Defendant v. STEVEN DIPIETRO a/k/a Stephen DiPietro Defendant and Counterclaim Plaintiff v. PHILLIP STEARNS Counterclaim Defendant
ORDER ON ATTACHMENT
A. M. Horton, Justice.
Before the court are Plaintiffs Motion for Amended Order of Attachment and Trustee Process and Defendant's Motion to Dissolve Attachment. The court initially indicated that it would schedule oral argument on the motions, but counsel for the parties have agreed to waive argument.
The Plaintiffs Motion was erroneously granted in a May 4, 2016 Order, which was vacated by virtue of the June 7, 2016 Scheduling Order in this case.
This extensively litigated case was filed in 2012 in the Bridgton District Court as an action upon a judgment in which Plaintiff Faith Temple seeks a judgment against Defendant Steven DiPietro based on a 1985 U.S. Bankruptcy Court judgment in favor of Plaintiff and against Defendant, in the amount of $11,000. Defendant removed the District Court case to this court, and has counterclaimed and impleaded the pastor of Faith Temple, Phillip Stearns, as a counterclaim Defendant.
Before the case was removed, the District Court granted an ex parte attachment to Plaintiff in the amount of $125,000, based on the face amount of the 1985 judgment plus twenty seven years of compounded post-judgment interest. In 2014, this court increased the total amount of the attachment in favor of the Plaintiff to $163,091.48, granted judgment on the pleadings to Plaintiff and Counterclaim Defendant Stearns on Plaintiffs complaint and Defendant's counterclaims, and directed that a writ of execution issue against Defendant DiPietro. Defendant appealed, and the Supreme Judicial Court of Maine, sitting as the Law Court, upheld the appeal at least to the extent of vacating the judgment and the writ of execution, and remanding for further proceedings. See Faith Temple v. DiPietro, 2015 ME 166, 130 A.3d 368. The Law Court decision let stand the attachment and attachment upon trustee process against Defendant's property but directed that the amount of the attachment be reduced by $11,000.
The Plaintiffs Motion for Amended Order of Attachment seeks an attachment in the amount of $198,000, based on a total of 33 years of compounded post-judgment interest. The court initially granted the Motion after 21 days had passed from filing, overlooking the fact that the Defendant had been granted additional time to respond. In response, the Defendant filed a Motion to Reconsider, consisting of two pages, and a separate Memorandum of Law. The motion to reconsider was granted in the court's June 7, 2016 order.
The Memorandum of Law filed with the Defendant's Motion to Reconsider contained within it a further motion, a Motion to Dissolve Attachment. The Defendant's Motion to Reconsider contained the 21-day notice required by M.R. Civ. P. 7(b)(1)(A), but the Memorandum that included the Motion to Dissolve Attachment did not contain that reference.
Understandably, given the rather confusing manner in which the Motion to Dissolve was included in the memorandum of law filed in support of the Motion to Reconsider, Plaintiff did not respond to the Motion to Dissolve within 21 days, and Defendant contends that Plaintiff has thereby waived objection. However, because the Memorandum in which the Motion to Dissolve was made lacked the 2l-day notice reference, the Plaintiff retained the right to be heard. SeeM.R. Civ. P. 7(b)(1)(A). Even had the 21-day notice been included in the Memoranda, Plaintiff would have had a good argument for an extension of the deadline for filing an opposition.
Accordingly, the court addresses both the Motion for Amended Order of Attachment and the Motion to Dissolve Attachment on their merits. On the merits of the respective motions, the court is not in agreement with either party's position.
The court disagrees with Plaintiff for two reasons. First, because the Defendant's appeal was successful in large part, the Plaintiff is not necessarily entitled, in the court's view, to post-judgment interest during the pendency of the appeal. Also, the Law Court, in remanding the case, has plainly reinstated the Defendant's defenses and counterclaims, which may operate to reduce any judgment in favor of Plaintiff.
The court disagrees with Defendant because the Defendant has already had an opportunity to contest the attachment, both in this court and in the Law Court. The Law Court has already, in effect, determined that the attachment should remain, albeit reduced in amount. In compliance with the Law Court's mandate, this court will therefore reduce the last attachment granted by $11,000.
It is hereby ORDERED:
Plaintiffs Motion for Amended Order of Attachment and Trustee Process is granted in part, to the extent of this Order, and otherwise is denied. Defendant's Motion to Dissolve Attachment is denied. The previously granted attachment is reduced by $ 11, 000, to $152,091.48.
The Clerk, or, if Plaintiff so chooses, Plaintiffs attorney, is authorized to issue an amended writ of attachment and attachment upon trustee process, in the amount of $155,091.48.
The Scheduling Order issued June 7, 2016 remains in full force and effect.
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to incorporate this order by reference in the docket.