Summers v. Nisbet

Maine Superior

Summers v. Nisbet

DecidedMay 26, 2015

DocketCUMcv-14-487

StatusUnpublished

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Bluebook

Summers v. Nisbet, (Me. Super. Ct. 2015).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-14-487 ../ CV-15-011 CV-15-027 CV-15-029 CV-15-040

ASHLEY SUMMERS, as the Surviving Spouse of STEVEN SUMMERS and the Personal Representative of the ESTATE MAY 2 9 2015 OF STEVEN SUMMERS and as Parent, Guardian, and Next Friend of the Minor Children, RECEIVED AUDRYN SUMMERS and MALIYAH SUMMERS,

NIKKIJ. THOMAS and ORDER ON MOTIONS TO LEWIS THOMAS, JR., as RECONSIDER AND FOR Co-Personal Representatives RULE 60(b) RELIEF of the ESTATE OF ASHLEY E. THOMAS,

LISA LECONTE MAZZIOTTI, as Personal Representative of the ESTATE OF NICOLE LYN FINLAY,

DAVID R. BRAGDON, SR. and PAMELA RHODUS as Co- Personal Representatives of the ESTATE OF DAVID R. BRAGDON,

and

KATHLEEN CONLEE as Personal Representative of the ESTATE OF CHRISTOPHER CONLEE

Plaintiffs

v.

GREGORY NISBET

Defendant Pending before the court are (1) plaintiff Summers's motion for

reconsideration under M.R. Civ. P. 59(e) and for additional findings of fact under

M.R. Civ. P. 52(b); and (2) plaintiffs Mazziotti, Bragdon, and Conlee's motion for

relief from an order pursuant to M.R. Civ. P. 60(b ). For the following reason, the

motions are denied.

BACKGROUND

These cases involve wrongful death claims that resulted from a fatal fire at

the defendant's Noyes Street apartment building in Portland on November 1,

2014. Plaintiffs are the personal representatives of the estates of five individuals

who died in the fire.

On February 26, 2015, the court granted plaintiffs Mazziotti, Bragdon,

Thomas, and Conlee's motions to dissolve the ex parte attachment that had been

approved by the court on December 2, 2014. Also on February 26, the court

granted attachment orders to each of the plaintiffs.

DISCUSSION

1. Plaintiff Summers's Motion for Reconsideration

Plaintiff Summers argues that the court erred when it dissolved

Summers's ex parte attachment. Under M.R. Civ. P. 59(e), "[a] motion for

reconsideration of the judgment will be treated as a motion to alter or amend the 1 judgment."

1 Plaintiff Summers also requests findings of fact. First, rather than an interrogation of the court, Rule 52 contemplates the party moving for findings will provide proposed findings. See Bell v. Bell, 1997 ME 154, <][ 6, 697 A.2d 835 ("it is incumbent on the party to set forth specifically any further finding of fact or conclusions of law the party is by motion, pursuant to Rule 52, requesting of the court.")); (see also Pl.'s Mem. 18.) Second, plaintiff Summers's motion addresses an order on a motion to dissolve an ex parte attachment, not an action "tried upon the facts without a jury or with an advisory jury." M.R. Civ. P. 52(a).

2 The court has reviewed the extensive case law cited in plaintiff Summers's

motion for reconsideration addressing the issue of the "interest in property"

requirement of Rule 4A(h), the focus of the motion for reconsideration. See,~ 2

United States v. Sec. Trust & Sav. Bank, 340 U.S. 47, 50 (1950) ("attaching creditor

obtains only a potential right or a contingent lien"); Pa. Co. for Ins. v. United R.

of H. & R. Warehouses Ltd., 26 F. Supp. 379, 389 (D. Me. 1939) ("In Maine a

creditor does not get a property right by attachment."); Fletcher v. Tuttle, 97 Me.

491, 496 (Me. 1903) (purpose of an attachment is to acquire a lien).

The court concludes again plaintiffs Mazziotti, Bragdon, and Thomas had

a sufficient interest in property to move for dissolution of the ex parte

attachment. M.R. Civ. P. 4A(h) & 4B(j). The text of the rule shows that no motion

to intervene is required. Id.

The court agrees it noted at the hearing the inequity of the circumstances

of these cases. See Maine Nat'l Bank v. Anderschat, 462 A.2d 482, 484 (Me. 1983)

(rejecting argument that court had equitable powers in deciding a motion for

dissolution of ex parte attachment). That inequity is highlighted by the facts that

although defense counsel has been involved since the very beginning, plaintiff

Summers sought an ex parte attachment, which the court concluded was not

supported by the affidavit or exhibits. Plaintiff Summers does not address this

finding.

2 In plaintiff Summers's opposition to the motion to dissolve the ex parte attachment, she cited two cases on this issue, which address the requirement that the owner of property must be given an opportunity to object and to be heard in opposition to an attachment. See Gunter v. Merchants Warren Nat'l Bank, 360 F. Supp. 1085, 1088-89 (D. Me. 1973); Perkins v. McGonagle, 342 A.2d 287, 290-91 (Me. 1975); (Pl. Summers's Opp. Mot. Dissolve 8.) Plaintiff Summers's argument in her eighteen page motion for reconsideration could have been presented in her opposition to the motion to dissolve. See M.R. Civ. P. 7(b)(5); see also M.R. Civ. P. 7(f).

3 Finally, as the other plaintiffs point out, generally an attachment order

cannot be retroactively reinstated. See Citizens Bank of N.H. v. Acadia Group,

2001 ME 41, ~ 13 n.3, 766 A.2d 1021; Horton & McGehee Maine Civil Remedies,

§ 22-18 at 426 (4th ed. 2004). Equity in this case does not appear to dictate the

reinstatement of the attachment. Id.

2. Plaintiffs Mazziotti, Bragdon, and Conlee's Motion for Relief

Plaintiffs Mazziotti, Bragdon, and Conlee (Mazziotti plaintiffs) have

moved the court for relief under M.R. Civ. P. 60(b). M.R. Civ. P. 60(b) allows a

party to file a motion for relief from an order for:

(1) mistake, inadvertence, surprise, or excusable neglect;

(6) any other reason justifying relief from the operation of the judgment.

M.R. Civ. P. 60(b). The Mazziotti plaintiffs argue that the court's order dissolving

plaintiff Summers's attachment and issuing new attachment orders "has not

remedied the unfairness which the moving Plaintiffs believe the Court was

trying to remedy." 3 (Pis. Mazziotti, et al. Mem. at 5.)

Plaintiff Thomas, who joined in the motion to dissolve the Summers ex

parte attachment, now opposes this Rule 60(b) motion because plaintiff Thomas

now enjoys the priority position plaintiff Summers previously enjoyed. Based on

the circumstances of this case, however, the requirements for applying judicial

estoppel are not present. See HL 1, LLC v. Riverwalk, LLC, 2011 ME 29, ~ 31, 15

3 The Mazziotti plaintiffs argue that "the Court chose not to use the draft order provided by counsel for Mazziotti granting each of the Estates an attachment in a single order .... " (Mot. for Rule 60(b) Relief 4.) No proposed order on the motion to dissolve was provided by counsel for plaintiff Mazziotti. Counsel for plaintiff Bragdon provided a proposed order, which stated, "After careful review and consideration, the Court hereby GRANTS/DENIES Plaintiffs DAVID R. BRAGDON and PAMELA B. RHODUS, as Co- Personal Representatives of the Estate of DAVID R. BRAGDON'S Motion to Dissolve."

4 A.3d 725; Me. Educ. Ass'n v. Me. Cmty. Coll. Sys. Bd. of Trs., 2007 ME 70, <][<][ 17-

18, 923 A.2d 914.

The Mazziotti plaintiffs do not cite to any authority that would allow the

court to issue a single attachment order that extends to plaintiffs in different

cases and over two parties' objections.

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