Law Court reinstates ex parte attachment/priority for estate of Noyes Street fire victim

 On Tuesday, June 7, 2016, the Law Court (Gorman, J.), in Estate of Summers et al. v. Nisbet, 2016 ME 88, reversed the decision of the Cumberland County Superior Court (Mills, J.) to dissolve the attachment that the Estate of Steven Summers had received on an ex parte basis in connection with its complaint against Gregory Nisbet (hereinafter “the Defendant”) in December 2014 and, upon issuing a new attachment, its decision not to effectuate that attachment as of its original date of entry.

 

On November 1, 2014, Steven Summers perished in an apartment fire on the premises of a building located on Noyes Street in Portland, Maine, and owned by the Defendant. In addition to Summers, Ashley Thomas, Nicole Finlay, David Bragdon, Jr., and Christopher Conlee (represented by parties hereinafter labeled as “the other estates”) also perished in the blaze. On November 21, 2014, the Estate of Summers filed a complaint in the Superior Court alleging various causes of action for wrongful death and pain and suffering, alleging that the apartment building was in a state of disrepair, lacked working smoke detector and a passable secondary means of egress, contained an illegal third-floor apartment, violated various fire codes, and that the Defendant allowed storage of combustible materials on the property. Between the dates of January 6 and January 30, 2015, the other estates filed similar causes of action based on similar facts.

 

In its complaint, the Estate of Summers sought an order for attachment and trustee process on an ex parte basis. The trial court granted the request, on an ex parte basis, in the amount of $1.7 million on December 3, 2014. The Defendant did not challenge the attachment.

 

Subsequently the other estates each moved for attachment and trustee process, which the Defendant again did not challenge. Prior to the trial court’s review of these motions, the other estates also moved to dissolve and modify the Estate of Summers’s attachment order on the grounds that the Estate of Summers had failed to meet the requirements for attachment on anex parte basis. Following a hearing on these motions, the trial court dissolved the Estate of Summers’s ex parte attachment of December 3, 2014, and simultaneously granted attachments in favor of the Estate of Summers and the other estates. The trial court’s order resulted in a loss of priority status for the Estate of Summers, which timely appealed.

 

On appeal, the Estate of Summers argued that the trial court erred by concluding that the other estates had standing to challenge its December 2014 attachment order. Reviewing the standard for attachment on an ex parte basis, the Court held that a plaintiff is required to “establish the same likelihood of success [as required under the rules for seeking standard attachment—a likelihood of success in the underlying suit and of recovering in that amount of greater] but also requires the plaintiff to establish that there is a clear danger that the defendant if notified in advance of the attachment of the property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy a judgment or that there is immediate danger that the defendant will damage of destroy the property to be attached.”

 

Upon reviewing the scope of the above inquiry that Maine courts must make in assessing motions for ex parte attachment, the Law Court concluded that once an attachment is challenged, the ex parte portion of the analysis becomes moot, and a motion to dissolve an ex parte  attachment is treated as the equivalent of a contested motion for attachment after notice in which the attaching plaintiff has the burden to establish, by a preponderance of the evidence its entitlement to recovery of an amount equal to or greater than the amount of the attachment. In articulating this rule, the Law Court noted the thrust of the inquiry upon review of a grant of ex parte attachment is whether the plaintiff has made the requisite showing to obtain the attachment in the first place.

 

The Court finally concluded that where, as here, none of the other estates had challenged the Estate of Summers’s entitlement to an attachment there was no inquiry for the trial court to make into whether the Estate of Summers had in fact met the requisite elements for the granted ex parte attachment, and therefore its dissolution of the ex parte attachment was error for straying outside the boundaries of this narrow inquiry.

 

Following its decision to reinstate the ex parte attachment order, the Law Court also held that it reinstated the date of the December 3, 2014, as the date of the Estate of Summers’s priority.

 

Order for dissolution by the trial court vacated. Original ex parte order and priority date reinstated.