New England Inspection, Inc. v. Casco Bay Steel Structures, Inc.

• Court: Superior Court of Maine
• Decided: September 11, 2020
• Docket: CUMcv-20-41
• Status: Unpublished

Opinion

(

STATE OF MAINE SUPERlOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-20-41

NEW ENGLAND INSPECTION INC.,

Plaintiff V. ORDER

CASCO BAY STEEL STRUCTURES INC.,

Defendant

Before the court is plaintiff New England Inspection Inc.' s motion for attachment and

trustee process totaling$ 570,000 against defendant Casco Bay Steel Structures Inc. New England

Inspection's claim arises out of lengthy and rather complicated dealings between the two parties,

who did business together without a written contract, on various projects.

Attachment and trustee process of property may be made if "it is more likely than not that

the plaintiff will recover judgement, including interest and costs, in an amount equal to or greater

than the aggregate sum of attachment ...." M.R. Civ. P. 4A(c); M.R. Civ. P. 4B(c); Libby O'Brien

Kingsley & Champion, LLC v Blanchard, 2015 ME 101,, 5, 121 A.3d 109. Accordingly, the

movant must show a greater than 50 percent chance of successfully recovering a judgment.

Richardson v. McConologue, 672 A.2d 599, 600 (Me. 1996). "Motions for attachment must be

supported by affidavit evidence." Lindner v. Barry, 2003 ME 91,, 5,828 A.2d 788 (citing Wilson

v. De/Papa, 634 A.2d 1252, 1254 (Me. 1993)). "In making [its] determination, the court assesses

the merits of the complaint and the weight and credibility of the supporting affidavits." Porrazzo

v. Karo/sky, 1998 ME 182,, 7, 714 A.2d 826.

PA=Adam Shub, Esq. DA=Andrew Sparks, Esq. The attachment motion turns on whether New England Inspection is owed $ 570,000 for

redoing work caused by a paint failure on a project involving reconstruction of Interstate 95 over

the West River in New Haven. New England Inspection contends that it also has not been paid for

other work. However, as Casco Bay Steel points out, the payments by Casco Bay Steel that are

referred to in ~~ 22-28 of the Payeur affidavit exactly equal the amounts that New England

Inspection contends are owed for other invoices that New England contends remain unpaid.

With respect to the New Haven project, there is a dispute between the Payeur affidavit and

the Tait affidavit as to whether Casco Bay Steel ever agreed to pay anything more than $350,000.

Exhibits Band I to the Payeur affidavit support Casco Bay's position on that issue.

Whether Casco Bay Steel owes $350,000 depends whether, as Casco Bay Steel contends,

New England Inspection should look to Carboline Co., not Casco Bay Steel, for payment. See

Payeur Ex. J. Carboline is the company that supplied the paint that allegedly failed.

The documentation on that issue indicates that Carbo line offered a settlement of$ I 00,000

to Casco Bay Steel plus additional credits to Casco Bay Steel amounting to approximately

$280,000. Tait Ex. A. Although there is also documentation that New England Inspection expected

to be paid its $350,000 out of Carboline's $380,000 settlement with Casco Bay Steel, Payeur Ex.

B, Carboline's proposal to pay Casco Bay Steel supports the conclusion that New England

Inspection is not required to look to Carboline for payment.

On this record the court ultimately concludes that it is more likely than not that $350,000

of New England Inspection's claim remains unpaid, that Casco Bay Steel owes that amount to

New England Inspection, and that New England Inspection will recover judgment for that amount.

The court also finds that there is no insurance, bond, or other security available to satisfy an

attachment.

2 Casco Bay Steel has asserted a counterclaim as an offset against any attachment. However,

for purposes of a motion for attachment, the court is obliged to disregard the counterclaim asserted

by Casco Bay Steel. See Casco Northern Bank v. New England Sales Inc., 573 A.2d 795, 797 (Me.

1990).

The entry shall be:

Plaintiff is entitled to an attachment and attachment on trustee process against defendant Casco Bay Steel in the amount of$350,000. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: September_Jl_, 2020

Thomas D. Warren Justice, Superior Court

Entered on the Docket: 01/1'-I)LP Jt,tc/ -~-­