Forty East Plaza, Inc. v. Bodyworks Management Company

• Court: Superior Court of Maine
• Decided: August 16, 2017
• Docket: ANDcv-17-068
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKET NO. CV-17-068

FORTY EAST PLAZA, INC., and ) ZI QIAN ZHANG ) AUG i 6 '17 pr~?''hl'! ) ANDRo SUPERIOR 'cciuR1 Plaintiffs, ) ORDER ) V. ) ) BODYWORKS MANAGEMENT ) COMPANY, PATRICK M. WELCH, ) and LINDA MONMANEY ) ) Defendants. )

Before the court is Plaintiffs' motion for attachment and attachment on trustee

process. A hearing on this motion was held on August 15, 2017.

I. Background

On May 19, 2017, Forty East Plaza, Inc. and Zi Qian Zhang filed a complaint

against Bodyworks, Patrick Welch, and Linda Monmaney, related to a contract. On the

same day, Plaintiffs filed a motion for attachment and attachment on trustee process.

M.R. Civ. P. 4A, 4B. On July 12, 2017, Defendants answered the complaint, and filed

their opposition to the motion. On July 14, 2017 Plaintiffs filed a reply in support.

II. Discussion

To issue an order of approval for attachment, the court must find that it is more

likely than not that the plaintiff will recover judgment in an amount equal to or greater

than the aggregate sum of the attachment. M.R. Civ. P. 4A(c), 4B(c). A moving party

must show a greater than 50% chance of prevailing on both liability and damage issues,

where the required showing is to be made through affidavits. Official Post Confirmation

Comm. of Creditors Holding Unsecured Claims v. Markheim, 2005 ME 81, <[ 18, 877 A.2d 155;

Official Post-Confirmation Committee v. Markheim, No. CV-04-040, 2005 Me. Super. LEXIS

1 of 3 78, at *9, (Oct. 7, 2005) (the court cannot consider evidence not in the affidavits or in

documents authenticated by and incorporated by reference in them); M.R. Civ. P. 4A

advisory committee's notes to 1992 amend., 1992, Me. Judicial Branch website/Rules &

Administrative Orders/Rules (last visited August 16, 2017). Specificity is required in

the showing for the amount of the attachment. M.R. Civ. P. 4A advisory committee's

notes to 1992 amend., 1992, Me. Judicial Branch website/Rules & Administrative

Orders/Rules (last visited August 16, 2017).

Defendants do not dispute that Plaintiffs will obtain a judgment against

Defendants, but argue that Plaintiffs have not properly supported the amount. (Def.'s

Opp'n 2-3.) Prior to the filing of this lawsuit, the parties attempted "settlement

negotiations," after which Defendants provided an undated check to Plaintiffs for

$115,000. (Welch Aff. ~~ 8, 9.) Defendants argue that, in deciding whether to order an

attachment, the court can only consider evidence otherwise admissible in support of a

claim. (Def.'s Opp'n 1-2.) Defendants argue that to support the amount of recovery

Plaintiffs are relying primarily, if not solely, upon that undated check which Defendants

claim is inadmissible because it was part of a compromise negotiation. (Def.'s Opp. 2);

(Compl. Ex. 2); M.R. Evid. 408; (Welch Aff. ~ 8.) However, the Maine Rules of Civil

Procedure for attachment do not require that facts in support would be admissible in

evidence. Precision Commc'ns, Inc. v. Rodrigue, 451 A.2d 300,302 n.3 (Me. 1982) ("The

requirement of Rule 4A(h) must be distinguished from the M.R.Civ.P. 56(e) requirement

that, to support a summary judgment, affidavits set forth facts that would be admissible

in evidence"); Jay v. Emery Lee & Sons, No. CV-04-89, 2004 Me. Super. LEXIS 162, at *6

(July 14, 2004) ("a motion for attachment and trustee process is not a trial. Further,

standards of evidence are inapplicable here, as is shown in the rule's allowance for

2 of 3 information or even beliefs that an affiant thinks are true.") Therefore, the check is not

prohibited pursuant to the Maine Rules of Evidence as support for Plaintiffs' motion.

Plaintiffs argue that the check establishes the unpaid rent obligation of

Defendants as of December 2014. (Pl's' Mot. 3.) Defendants allege that the issuance of

the check was "merely a proforma act" that was never intended as payment for any

agreed upon rental arrearage. (Welch Aff.

It is reasonable to infer that, whether or not Defendants expected Plaintiffs to

attempt to cash the undated check, the Defendants' provision of the check represented

their acknowledgement of amounts owed to Plaintiffs. Official Post Confirmation Comm.

ofCreditors Holding Unsecured Claims, 2005 ME 81,

amount of attachment and attachment on trustee process requested by Plaintiff exactly

matches the amount promised by Defendants to Plaintiffs in the check. Cf Id. (where

the amount of attachment potentially supported by the evidence was significantly less

than the amount in the attachment order); (Welch Aff.

Plaintiffs have sufficiently supported the sum of the attachment.

III. Conclusion

The Court GRANTS Plaintiffs' motion for attachment and attachment on trustee

process.

The Clerk is directed to enter this Order on the civil docket by reference pursuant

to Maine Rule of Civil Procedure 79(a).

Date: 8/¢?

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