Burns v. Smith

495 A.2d 777, 1985 Me. LEXIS 761

• Court: Supreme Judicial Court of Maine
• Decided: July 11, 1985
• Status: Published

Opinions

ROBERTS, Justice.

Plaintiffs (Burns) are seeking compensation from defendant, Christopher Smith, M.D., for damages arising from the birth of the infant plaintiff, Russell A. Burns, III. Burns obtained an ex parte attachment from the Superior Court, Somerset County. Smith’s motion to dissolve the plaintiffs’ attachment was denied after a hearing. Smith appeals from that judgment. We affirm.

I.

Smith contends that the jurat of an affidavit signed by Joanne and Russell Burns violates M.R.Civ.P. 4A(h)¹ because it lacks the statement that the affiants believe to be true that information as to which they do not have personal knowledge. Smith failed to raise this issue in his motion to dissolve the ex parte attachment, however, and made no effort to raise it at the hearing on that motion. We decline to entertain Smith’s challenge to the jurat at this point in the proceedings. See Beesley v. LandMark Realty, Inc., 464 A.2d 936, 937-38 (Me.1983); Bowman v. Dussault, 425 A.2d 1325, 1329 n. 2 (Me.1981).

II.

Smith contends that the affidavits filed in support of Burns’s motion for approval of the attachment are so conclusory and so lacking in specific allegations that they are insufficient to support the attachment.² He first asserts that the affidavit of Paul Dumas, Burns’s attorney, states no specific facts which would give rise to a finding that the plaintiffs were reasonably likely to recover in this case. That affidavit alleges facts demonstrating that Smith has considerable real estate holdings in the area of Strong, Franklin County, revealed through Dumas’s search of the Registry of Deeds. Furthermore, it alleges the fact that Smith is attempting to sell his real estate holdings, and that he intends to move to Belfast, Maine, to practice medicine. Smith also challenges the specificity of the allegations of the affidavit of attorney Daniel Lilley. That affidavit states that it is Lilley’s professional opinion that there is a likelihood of success in the case. Our review of the record, however, satisfies us that the plaintiffs provided enough information apart from any consideration of the affidavits of Dumas and Lilley to establish a reasonable likelihood of success.

III.

With respect to the Burns’s affidavit, Smith urges that although it contains some specific information with regard to the injuñes suffered by the infant plaintiff, none of the facts demonstrate a reasonable likelihood of a success on the question of Smith’s professional negligence. Smith also contends that the affidavits are insufficient because they do not contain an expert opinion as to Smith’s breach of any standard of care. We disagree. The complaint provides a factual basis for the claim because the attached statutory notice of claim, itself an affidavit, accomplishes the same purpose, as well as alleging medical malpractice, negligence, and breach of an implied and explicit contract for medical services. Because the dissolution judge may consider other matters submitted under oath, Herrick v. Theberge, 474 A.2d 870, 873 (Me.1984), the trial judge had ample evidence upon which to conclude that there was a reasonable likelihood of recovery. Acknowledging our standard of review in this matter, it certainly cannot be said that the record “shows the plaintiffs to have had virtually no chance of recovery on their claim.” Herrick, 474 A.2d at 874.

Finally, we have never held that expert testimony is required to establish a reasonable likelihood of success for purposes of attachment proceedings. The costs and difficulties of obtaining such testimony would contravene the intended simplicity of Rule 4A proceedings.

The entry is:

Judgment affirmed.

McKUSICK, C.J., NICHOLS, WATHEN, and GLASSMAN, JJ., concur.

1 . M.R.Civ.P. 4A(h) provides as follows:

(h) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant’s own knowledge, information or belief; and, so far as upon information and belief, shall state that he believes this information to be true.

2 . M.R.Civ.P. 4A(c) & (f) require "a reasonable likelihood that the plaintiff will recover judgment" in order to grant an attachment. We have articulated this standard as follows:

To satisfy the reasonable likelihood requirement, plaintiffs need only have had a “mere probability of success or a favorable chance of success." The attachment may be approved so long as plaintiffs’ claim is not of "such insubstantial character that its invalidity so clearly appears as to foreclose a reasonable possibility of recovery.” The limited showing required of plaintiffs, combined with the "clear abuse of discretion” standard of review, necessitates reversal of a Superior Court order granting an attachment only in the relatively rare cases where the record before the Superior Court shows the plaintiffs to have had virtually no chance of recovery on their claim.

Herrick v. Theberge, 474 A.2d 870, 874 (Me.1984) (citations omitted).