Sherman v. Lord

• Court: Superior Court of Maine
• Decided: December 15, 2005
• Docket: CUMcv-05-639
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION / -. r . 1- ,-J -. 3 3 Docket 7 NO. CV-05-639'\c-! - \a\ \ I 7'. --J2 . c..5 CHRISTINE SHERMAN, Individually and as Personal Representative of the Estate of Beatrice Rush,

Plaintiff,

ORDER

RICHARD LORD,

Defendant.

Before the court is plaintiff's motion for an attachment. On h s record, the

motion will be denied without prejudice for procedural reasons.

A motion for an attachment must be supported by one or more affidavits

meeting the requirements of Rule 4A(i). See Lindner v. Barrv, 2003 ME 91 ¶ 5, 828 A.2d

788, 790. In h s case plaintiff has submitted a three paragraph affidavit in w h c h she

states she has read the complaint, that she incorporates it in her affidavit, and that each

of the facts asserted is either true of her own personal knowledge or "so far as upon

information and belief, I have reason to believe and do believe it to be true."

The problem with h s is that the complaint contains 144 paragraphs, and many

of those paragraphs consist of legal or factual argument rather than evidentiary facts.

See, e.Q Complaint qjI¶ 95-100, 130-35, 137-40, 142-43. Even if the court were to limit its

scrutiny of the complaint solely to the assertions of fact contained therein, the complaint

and plaintiff's affidavit do not identify w h c h factual assertions are based on personal

knowledge and w h c h are based on information and belief. In the court's view, this does not comply with Rule 4A(i). If conclusory

statements such as those contained in plaintiff's affidavit were accepted, it would be a

triumph of form over substance. In reading an affidavit, the court should not be

required to guess w h c h portions are on personal knowledge, w h c h portions are on

information and belief, and which portions constitute argument by counsel.

Accordingly, the motion for attachment is denied without prejudice.

The court would add that plaintiff's reply memorandum seems to proceed under

the mistaken impression that plaintiff has made a sufficient showing for a hearing and

can remedy any defects at a hearing. Plaintiff's Reply filed December 5, 2005 at 2.

A hearing in the sense of oral argument is not required on a motion for attachment. See

Southern Maine Properties Co., Inc. v. Tohnson, 1999 M E 37 ¶ 8, 724 A.2d 1255, 1257;

Atlantic Heating Co., Inc. v. Lavin, 572 A.2d 478, 479 (Me. 1990). The undersigned

ordinarily does not set motions for oral argclme~ltbecause of the delays inherent in

waiting for motion days to be set up, although requests for oral argument are honored

to the extent possible. In any event, however, a hearing cannot be used to remedy

deficiencies in an affidavit. See Atlantic Heating, 572 A.2d at 479 and cases cited therein.

It may be that plaintiff is entitled to an attachment, and plaintiff's motion is

therefore denied without prejudice to renewal if properly supported by affidavit.

The entry shall be:

Plaintiff's motion for attachment is denied without prejudice. The clerk is

directed to incorporate h s order in the docket by reference pursuant to Rule 79(a).

Dated: , ,;<,, --L Thomas D. Warren Justice, Superior Court Geoffrey Smith, Esq .--------------------Plaintiff All 3rdParty Defendants

Philip Mancini, E~~.--------------------- Defendant