Genest Concrete Works, Inc. v. Mann

• Court: Superior Court of Maine
• Decided: January 30, 2001
• Docket: YORcv-00-209
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-00-209

PAF-YOR ~ 1/30/20 GENEST CONCRETE WORKS, INC.,

Plaintiff Vv. STEVEN T. MANN, ORDER AND Defendant DECISION Vv. MICHAEL GENEST, et als.,

Third-Party Defendants

The plaintiff sued its former controller alleging that the defendant embezzled over $100,000 from it. The plaintiff also obtained an ex parte attachment of the defendant’ s pension assets that it held for the defendant.

While both federal law, 29 U.S.C. §1056(d), and state law, 24-A M.R.S.A. 2432, prohibit the attachment of pension funds the plaintiff cited the case St. Paul Fire and Marine Insurance Co. v. Cox, 752 F.2d 550 (11th Cir. 1985) for the proposition that garnishment of a pension fund, or attachment in this case, undertaken to satisfy liability arising from criminal misconduct, or alleged misconduct here, constituted

a .

an . exception to the non-alienability provisions of ERISA.” See Cox at 752. However, in 1990 the Supreme Court of the United States noting that the Courts of Appeals had “. . . expressed divergent views concerning the availability of exceptions to ERISA’s anti-alienation provision, . . .”. See Guidry v. Sheet Metal Pension Fund,

493 U.S. 365, 371 (1990), held that Courts were not free to create exceptions and that

pension funds, such as those in this case, could not be seized. “ . -

~ wre : . ay

= The defendant moved to dissolve the attachment citing the statutes and some case law but not Guidry. Eventually, after the plaintiff submitted a brief memorandum of law in opposition to the motion to dissolve, the defendant cited Guidry. The attachment was then dissolved leaving as the only remaining issue the question of whether the defendant was entitled to his attorney’s fees for prosecuting the motion to dissolve.

While the request for the attachment and the granting of the attachment were both erroneous it does not necessarily follow that the defendant is entitled to attorney’s fees. Rule 11, M.R.Civ.P. allows the Court to impose sanctions, including a reasonable attorney’s fee, when a motion ”.. . is signed with intent to defeat the purpose of this rule...” Ido find that Rule 11 sanctions are warranted. The issue was an uncommon one with some case law, though no longer valid, supporting the plaintiff's view. To quote from one case cited for a different reason by the plaintiff, “The judge’s order permitting the government to satisfy the restitution order from Gaudet’s pension and thereby repay the pension funds he embezzled is certainly not counter intuitive. No judge or other legal scholar can be expected to have an intimate knowledge of every obscure rule of law.” United States v. Gaudet, 966 F.2d 959, 964 (5th Cir. 1992).

The entry is:

Defendant's request for an award of attorney's fees on ‘his motion

to dissolve attachment is denied.

Dated: January 30, 2001 ;

(Fé A futesete Paul A. Fritzsche? Justice, Superior Court

James J. Shirley, Esq. - PLS/TP DEFS. Daniel G. Lilley, Esq. - DEF. Steven Mann