Opinion
CV-22-72
02-02-2023
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
Before the court is Defendants' to dissolve the attachment on the claim brought by Plaintiff Susan Squires. On March 4, 2022, the court ordered an ex parte attachment in the amount of $96,524. On October 10, the Defendant filed a motion to recall the attachment. He filed a second motion on October 22 seeking the same relief amongst other relief. After the first hearing was continued a hearing was held in December. The Defendant anticipated a testimonial hearing, but it was not noticed for a testimonial hearing and the court did not have time for what would become a sort of trial. Instead, the court permitted each of the parties to provide supplemental information with respect to the request to dissolve the attachment.
BACKGROUND
Plaintiffs Susan and Kathy Squires and Defendant A &H Improvements, Inc. ("Company") entered into a written contract for a residential home renovation for a lump sum of $191,928. The contract contained a very specific payment plan. There were no written change orders altering the lump sum or the payment method as required by the contract and by the Home Construction Contract Act. The reality was somewhat different as the facts reveal a welter of payment demands and expectations that the court has a difficult time following.
When the court granted the ex parte attachment, after concluding it was mote likely than not that the Plaintiffs would recover, the court determined the amount of damages based a list of damages from a letter incorporated in the Plaintiffs' affidavit. With one exception, the categories of damages consisted of work or materials that were paid for but not received. One of the categories, involving the foundation, appeared to involve construction decisions out of the knowledge of a layperson and the court was not persuaded with respect to that claim at that stage. In his supplementary response, the Defendant has squarely challenged each and every one of the categories of damages. The Plaintiff has responded.
The court also found ample evidence that the Defendant may make assets unavailable if notified of the proceeding. M.R.Civ.P. 4A(g).
On a motion to dissolve attachment, it remains the Plaintiff s burden to show the need for the attachment. M.R.Civ.P. 4A(h). 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. Courts can consider any clearly applicable affirmative defense raised by the defendant in its determination of whether the requirements of Rules 4A(c) and 4B(c) are met. Id. The court need not address complex legal issues or rectify factual disputes in a summary attachment (proceeding)." Id.
The court cannot say, based on this record, that the Plaintiffs have sustained their burden to maintain the attachment. The disagreement is sharp and the court is unable to assess the accuracy of each party's allegations. That is not to say that the Plaintiffs will not ultimately prevail, but at this stage the court cannot say which issues it might be more likely than not that the Plaintiffs will prevail.
The court also notes that insurance defense counsel just entered an appearance. While the court recognizes their may be a reservation of rights, the court cannot discern from the record the amount that the Plaintiff may recover over and above the amount of available liability insurance. M.R.Civ.P. 4A(c).
Therefore, the Motion to Vacate the Attachment is GRANTED. The March 4, 2022 Order on Ex-parte Motion for Approval of Attachment and Attachment on Trustee Process is DISSOLVED.
This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).