Opinion
CV-22-72
02-08-2023
SUSAN SQUIRES, et al v. JOSEPH FENDERSON et al
Plaintiffs represented by Thomas Douglas, Esq. of Douglas McDaniel & Campo Defendant Joseph Fenderson represented by Thaddeus V. Day, Esq. of the Law Office of Thaddeus V. Day Defendant Samantha Fenderson represented by Thaddeus V. Day, Esq. of the Law Office of Thaddeus V. Day and Frederick Moore, Esq. and Jeanne C. Sund, Esq. of Robinson Kriger &McCallum.
Plaintiffs represented by Thomas Douglas, Esq. of Douglas McDaniel & Campo Defendant Joseph Fenderson represented by Thaddeus V. Day, Esq. of the Law Office of Thaddeus V. Day
Defendant Samantha Fenderson represented by Thaddeus V. Day, Esq. of the Law Office of Thaddeus V. Day and Frederick Moore, Esq. and Jeanne C. Sund, Esq. of Robinson Kriger &McCallum.
ORDER
Thomas R. McKeon Justice, Maine Superior Court
Before the court is the motion for reconsideration filed by Plaintiffs Susan and Kathy Squires asking the court to reconsider its order dissolving attachment. A motion for reconsideration must bring to the court's attention an error, omission or new material that could not have been presented. M.R.Civ.P. 7(b)(5). The court may deny the motion without a hearing and before an opposition is filed. Id.
First, the Plaintiffs fear fraud based on the Defendants' other legal problems. The Plaintiffs did raise that in their original Motion for Attachment. The court considered that information when choosing to grant the Plaintiffs motion for attachment ex parte. Ultimately, however, the Defendant has the right to be heard on the merits of the attachment. At that stage, the court is only concerned with whether the Plaintiffs have met their burden with respect to this case. His history in other matters is no longer relevant.
A court may approve attachment and attachment on trustee process upon a finding "that it is more likely than not that the plaintiff will recover judgment... in an aggregate sum equal to or greater than the amount" of the attachment or the trustee process. M.R. Civ. P. 4A(c); M.R. Civ. P. 4B(c); To determine whether it is more likely than not that a plaintiff will recover judgment in an aggregate sum at least in the amount sought for attachment, courts assess "the merits of the complaint and the weight and credibility of the supporting affidavits." Porrazzo v. Karofsky, 1998 ME 182, ¶ 7, 714 A.2d 826. The court need not address complex legal issues or rectify factual disputes in a summary attachment (proceeding)." Id.
The Plaintiffs ask the court to reject the credibility of Fenderson's affidavit. The court, however, carefully reviewed each allegation of financial misconduct and compared it to Fenderson's response. The court simply could not make a credibility determination on any of the categories of losses based on the record before the court. It demonstrated why complex factual disputes are ill suited for resolution in the context of an attachment motion.
The Plaintiffs' motion correctly pointed out an omission in the court's order. While insurance is available in the Pretorious claim, it is not available for the Squires claim. Although the court raised the issue in its order, the existence of insurance was not a basis for the court's decision.
Although Motions for Reconsideration are not favored, the court appreciates the reasons for the Plaintiffs' alarm and why they felt the motion was necessary. The court is open to requests from either party to have the case set for trial on an expedited basis.
The entry is:
Motion for Reconsideration is DENIED. This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).