First National Bank of Damariscotta v. Staab

Supreme Judicial Court of Maine

First National Bank of Damariscotta v. Staab

505 A.2d 490, 1986 Me. LEXIS 701

CourtSupreme Judicial Court of Maine

DecidedFebruary 27, 1986

StatusPublished

Cited by5 cases

This text of 505 A.2d 490 (First National Bank of Damariscotta v. Staab) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First National Bank of Damariscotta v. Staab, 505 A.2d 490, 1986 Me. LEXIS 701 (Me. 1986).

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Opinion

GLASSMAN, Justice.

George Staab 1 appealed from an order entered by the Superior Court (Lincoln County) granting an attachment of his property in the amount of $154,075.18. The plaintiff, First National Bank of Da-mariscotta (the Bank), had filed a motion for attachment supported by an affidavit signed by a vice president of the Bank. Because it is apparent on its face that the affidavit does not justify an attachment in that amount, we vacate the order approving the attachment.

*491 Under the rule governing prejudgment attachments, M.R.Civ.P. 4A, the movant must show that there is a reasonable likelihood that judgment will be recovered in an amount equal to or greater than that of the attachment. Bowman v. Dussault, 425 A.2d 1325 (Me.1981). Because prejudgment attachment may operate harshly upon the party against whom it is sought, there must be strict compliance with the procedures prescribed by legislation and implemented by court rules. Id. at 1328; see also Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752, 755 (Me.1981). We review the Superior Court’s determination by application of the “clearly erroneous” and “abuse of discretion” standards. Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d at 754.

The affidavit of the Bank vice president reflects that in 1979 Staab executed and delivered to the Bank a personal guarantee of the corporate indebtedness of Blake’s Marine, Inc., a corporation of which he was a director. By a letter dated April 4, 1984, Staab notified the Bank he was terminating his personal guarantee. On that date the corporation’s obligation to the Bank did not include any obligation on account of corporate checking account overdrafts. On December 7, 1984, the date of the Bank’s complaint against Staab, the specified amount of $154,075.18 claimed to have been owed by Staab as a guarantor included $22,438.64 advanced by the Bank sometime after April 4,1984, to cover overdrafts in the corporate cheeking account. Despite the fact that an officer of the Bank testified that Staab was not responsible for the overdrafts, the $22,438.64 the Bank paid to cover them was included in the amount of the attachment. Thus, on this record as presented to the Superior Court and to this court on appeal, it was clearly error to find a reasonable likelihood that the judgment recovered from the defendant would at least equal the amount of the attachment. We accordingly vacate the order approving the attachment.

The entry is:

Order vacated. Remanded to the Superi- or Court for entry of order vacating the attachment.

All concurring.

1

. Staab died pending appeal of the order granting attachment of his property.

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GLASSMAN, Justice.

George Staab 1 appealed from an order entered by the Superior Court (Lincoln County) granting an attachment of his property in the amount of $154,075.18. The plaintiff, First National Bank of Da-mariscotta (the Bank), had filed a motion for attachment supported by an affidavit signed by a vice president of the Bank. Because it is apparent on its face that the affidavit does not justify an attachment in that amount, we vacate the order approving the attachment.

*491 Under the rule governing prejudgment attachments, M.R.Civ.P. 4A, the movant must show that there is a reasonable likelihood that judgment will be recovered in an amount equal to or greater than that of the attachment. Bowman v. Dussault, 425 A.2d 1325 (Me.1981). Because prejudgment attachment may operate harshly upon the party against whom it is sought, there must be strict compliance with the procedures prescribed by legislation and implemented by court rules. Id. at 1328; see also Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752, 755 (Me.1981). We review the Superior Court’s determination by application of the “clearly erroneous” and “abuse of discretion” standards. Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d at 754.

The affidavit of the Bank vice president reflects that in 1979 Staab executed and delivered to the Bank a personal guarantee of the corporate indebtedness of Blake’s Marine, Inc., a corporation of which he was a director. By a letter dated April 4, 1984, Staab notified the Bank he was terminating his personal guarantee. On that date the corporation’s obligation to the Bank did not include any obligation on account of corporate checking account overdrafts. On December 7, 1984, the date of the Bank’s complaint against Staab, the specified amount of $154,075.18 claimed to have been owed by Staab as a guarantor included $22,438.64 advanced by the Bank sometime after April 4,1984, to cover overdrafts in the corporate cheeking account. Despite the fact that an officer of the Bank testified that Staab was not responsible for the overdrafts, the $22,438.64 the Bank paid to cover them was included in the amount of the attachment. Thus, on this record as presented to the Superior Court and to this court on appeal, it was clearly error to find a reasonable likelihood that the judgment recovered from the defendant would at least equal the amount of the attachment. We accordingly vacate the order approving the attachment.

The entry is:

Order vacated. Remanded to the Superi- or Court for entry of order vacating the attachment.

All concurring.

1

. Staab died pending appeal of the order granting attachment of his property.

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505 A.2d 490, 1986 Me. LEXIS 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-damariscotta-v-staab-me-1986.

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