Rockingham Elec. Supply Co., Inc. v. Floridino

• Court: Superior Court of Maine
• Decided: July 30, 2012
• Docket: CUMcv-12-153
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss.

ROCKINGHAM ELECTRICAL SUPPLY CO., INC.,

Plaintiff v. ORDER

BARBARA FLORIDINO d/b/a FLORIDINO ; ·~ ., '· ELECTRIC CO.,

Defendant

Before the court is plaintiff's renewed motion for an attachment. Plaintiff

originally sought an attachment at the time it filed its complaint in the District Court.

Although plaintiff did not seek an ex parte attachment, an attachment was ordered in

error before defendant had notice of the motion for attachment. The attachment order

was thereafter vacated by agreement and the case has been removed to Superior Court..

Plaintiff now renews its motion for an attachment based on its original motion

papers, which included a verified complaint. Defendant has incorporated her earlier

opposition papers, which - in addition to her objection that an attachment had been

ordered without adequate notice- contended that an attachment could not be ordered

without a hearing and that the jurat of the verified complaint did not comply with

M.R.Civ.P. 4A(i).

On the issue is whether a hearing is required, due process and the applicable

rules are satisfied if the party opposing attachment has had the opportunity to be heard

in opposition by submitting opposition papers. Neither oral argument nor an evidentiary hearing is required. See Southern Maine Properties Co. Inc. v. Johnson, 1999

ME 37

However, the court agrees that under existing Law Court precedent, the jurat on

the verified complaint is insufficient as the basis for an attachment under M.R.Civ.P

4A(i). The court has some difficulty drawing any meaningful distinction between a jurat

which states that the facts asserted "are true to the best of [the affiant's] knowledge and

belief" and one which follows the wording of Rule 4A(i) and states that "so far as [facts

are asserted] on information and belief, [the affidavit] shall state that the affiant believes

this information to be true." For better or worse, however, the Law Court has drawn

such a distinction and has found jurats referring to "the best of" an affiant's knowledge

and belief to be insufficient. See Ingalls v. Brown, 460 A.2d 1379, 1380-81 (Me. 1983);

Englebrecht v. Development Corp. for Evergreen Valley, 361 A.2d 908, 911 (Me. 1976). 1

The court would add that plaintiff was aware from defendant's opposition

papers that the jurat had been challenged and had an ample opportunity to remedy the

problem before renewing its motion.

The entry shall be: Plaintiff's motion for an attachment is denied without prejudice to the submission of a new motion based on an affidavit with a jurat that complies with M.R.Civ.P. 4A(i). The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: July 3 0 2012 J~ Thomas D. Warren Justice, Superior Court

1 In contrast to the situation in Ingalls v. Brown and in Herrick v. Theberge, 474 A.2d 870, 874 (Me. 1984), there is no language elsewhere in the verification or in the complaint that can save the defective jurat.

2 ROCKINGHAM ELECTRICAL SUPPLY COMPANY INC VS BARBARA FLORIDINO DBA FLORIDINO ELEC UTN:AOCSsr -2012-0011470 CASE #:PORSC-CV-2012-00153

01 0000002485 KEARNS MARK A 482 CONGRESS STREET STE 304 PO BOX 17915 PORTLAND ME 04112 F BARBARA FLORIDINO DEF RTND 03/26/2012

02 0000008182 MULLIGAN, CHRISTOPHER P 96 CHESTNUT STREET PORTSMOUTH NH 03801 F ROCKINGHAM ELECTRICAL SUPPLY COMPANY INC PL RTND 02/06/2012

03 0000003683 RANDALL MARK L 482 CONGRESS STREEET STE 304 PO BOX 17915 PORTLAND ME 04112 F BARBARA FLORIDINO DEF RTND 03/26/2012