Donahue v. Chambnerlain

• Court: Superior Court of Maine
• Decided: July 19, 2021
• Docket: CUMcv-21-187
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-21-187

PATRICK DONAHUE, ) ) Plaintiff, ) ) v. ) ORDER ) JUSTIN CHAMBNERLAIN, ) ) Defendant )

Before the court is Plaintiff's Motion for Ex Parte Attachment on Trustee Process.

For the following reasons, Plaintiff's motion is denied.

I. Factual Background

This case arises out of an alleged partnership between Plaintiff, Patrick Donahue,

and Defendant, Justin Chamberlain. Plaintiff alleges that he and Defendant entered into

an oral contract to carry out a marijuana cultivation venture. The Plaintiff agreed to

provide land for the marijuana grow and cover the start-up and maintenance of costs of

the overall operation. The Defendant maintained that he had experience in marijuana

cultivation and agreed to grow, harvest, and otherwise prepare the marijuana crop for

sale.

The operation cultivated 90 marijuana plants at the Plaintiff's personal residence.

60 of these plants were grown outdoors and 30 were grown indoors under specifically

controlled conditions. The operation cultivated an additional 30 indoor marijuana plants

at the Defendant's separate residence. The projected harvest across all 120 plants was

approximately 244 pounds of marijuana. The Plaintiff alleges that under the terms of the

partnership agreement and certain projected marijuana prices, the Plaintiff's anticipated

profit from the sale of the 244 pounds of marijuana should total $189,534.48.

Page I of 5 The Plaintiff alleges that the Defendant absconded with all 244 pounds of

marijuana, as well as various farm and cultivation tools. The Plaintiff alleges that he has

not received any profits from any marijuana sales. The Plaintiff filed this action alleging:

wrongful conversion; breach of fiduciary duty; and fraudulent inducement. The Plaintiff

also filed this Motion for Ex Parte Attachment on Trustee Process in the amount of

$218,914.19. The attachment sought represents: Plaintiffs' share of the projected

marijuana profit; $4,850 for stolen tools; $4,110.76 for one half of the cost of a stolen

"trimmer machine;" and $20,418.95 for the costs that Plaintiff alleges he was required to

spend to hire staff to complete certain tasks left incomplete by the Defendant.

II. Legal Standard

The court shall grant an order approving attachment and trustee process only

upon a finding that "it is more likely than not" that the plaintiff will recover judgment

equal to the aggregate sum of the attachment and trustee process. M.R. Civ. P. 4A(c);

4B(c). The plaintiff must prove by a preponderance of the evidence that he will succeed

on the merits of his claim, as well as recover an amount equal to or greater than the

amount of the attachment sought. See Trans Coastal Corp. v. Curtis, 622 A.2d 1186, 1188

(Me. 1993). The motion for attachment and trustee process must be supported by

affidavits setting forth "specific facts sufficient to warrant the required findings." M.R.

Civ. P. 4A(c), (i); 4B(c).

Attachment may be entered ex parte if: "there is a clear danger that the defendant

if notified in advance of attachment of the property will remove it from the state or will

conceal it or will otherwise make it unavailable to satisfy a judgment, or there is

immediate danger that the defendant will damage or destroy the property to be

attached." M.R. Civ. P. 4A(g).

III. Discussion Page 2 of5 The Plaintiff has failed to show by a preponderance of the evidence that he is

likely to recover a sum equal to or greater than the $218,914.19 amount sought. The

Plaintiff and Defendant held individual marijuana caregiver licenses. Based on the

record presented, the partnership between the Plaintiff and Defendant appears to violate

a number of marijuana caregiver regulations and the sale of the projected marijuana

would be in excess of what is allowed under a marijuana caregiver license. It is an

"elementary common law rule that courts will not enforce illegal contracts, or contracts

which are contrary to public policy, or which are in contravention of the positive

legislation of the state. Bureau of Maine State Police v. Pratt, 568 A.2d 501, 505 (Me. 1989).

Accordingly, the court cannot approve attachment on the amount sought because it

reflects a sale of marijuana that would contravene Maine's marijuana caregiver legislation

and its attendant regulations.

For one, individual caregivers "are prohibited from participating in a collective as

defined in 22 M.R.S. § 2422(1-A)." 18-691 C.M.R. Ch. 2 § 6(K). A collective is defined as

"an association, cooperative, affiliation or group of caregivers who physically assist each

other in the act of cultivation, processing, or distribution of marijuana for medical use[.]"

22 M.R.S. § 2422(1-A). Moreover, a caregiver "may not assist another caregiver in acts of

cultivation or processing, which includes growing, harvesting, drying, manufacturing,

storage, and dispensing; or in those duties designated to the caregiver and related to the

administration of marijuana for medical use." 18-691 C.M.R. Ch. 2 § 6(K)(a).

Here, the very partnership upon which Plaintiff's theory of recovery is based

appears to be the sort of"collective" that is expressly prohibited under Maine's marijuana

cultivation regulations. The record indicates that the Plaintiff assisted in a number of

marijuana cultivation activities, particularly with regard to the 90 marijuana plants

housed at Plaintiff's personal residence. Accordingly, based on the record presented, the

Page 3 of 5 Plaintiff cannot prove that he will more likely than not recover the projected profits from

the marijuana cultivation partnership because that venture itself appears to have been

unlawful from its inception.

Additionally, caregivers are only permitted to cultivate 30 mature marijuana

plants at one time, and are prohibited from transferring more than 75% of the caregiver' s

total yearly harvest through wholesale transaction. See 22 M.R.S. §§ 2423-A(2)(B), (K-1).

Here, considering arguendo that the Plaintiff and Defendant could combine their 30-plant

allotment into a joint 60-plant venture, the operation harvested a total of 120 mature

marijuana plants in less than two months. Indeed, 60 of the mature outdoor marijuana

plants were harvested at one time off Plaintiff's own property. Moreover, the Plaintiff

seeks attachment and trustee in the amount he would have received if 100% of the crop

had been impermissibly sold through wholesale transaction.

Combined, these, and other regulations left unmentioned, prohibit the Plaintiff

from obtaining attachment and trustee under the circumstances because the marijuana

cultivation partnership with the Defendant was conducted in violation of Maine's

marijuana cultivation laws. The court cannot enforce the partnership as evidenced in the

record because doing so would contravene the positive marijuana caregiver legislation

and regulations of the state of Maine. Accordingly, because the Plaintiff has established

that he and Defendant likely carried out an unlawful marijuana operation, he cannot

establish that he is entitled to enforce that unlawful agreement.

IV. Conclusion

The Plaintiff has not proven by a preponderance of the evidence that he is likely

to recover a sum greater than or equal to the $218,914.19 amount sought for attachment

because he cannot establish that his marijuana cultivation venture was indeed lawful.

The entry is: Page 4 of5 Plaintiff's Motion for Attachment and Trustee is D

Dated: y Kennedy, Justi e Superior Court

Page 5 of5