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.

Court Decision: Peterson v. Jhamb, 2011 ME 35

The Maine Supreme Judicial Court, sitting at the Law Court, issued an opinion today, March 22, 2011, by Justice Jabar in Peterson v. Jhamb, 2011 ME 35. In this medical malpractice action for failure to diagnose recurrent breast cancer which had metastasized to the Plainitff's bones, the Court upheld the jury's verdict of more than $1.1M. The action was brought against Plaintiff's, Donna Seabury-Peterson, primary care doctor Kristin Jhamb, M.D. and Mid Coast Medical Group. Mr. Peterson also brought a claim for loss of consortium (companionship) of his wife.

Plaintiff, who had a prior history of breast cancer, started seeing Dr. Jhamb in December, 2004. Over the next three years, she reported pain in her hip, neck, chest, back, and sternum. Dr. Jhamb's records were often incomplete and did not document follow-up from prior visits. She never ordered further testing.

In November, 2007, Plaintiff's employer's health care provider ordered an MRI which revealed stage four cancer of all the areas where Plaintiff had been experiencing pain.

The jury's verdict, which was reduced by the Superior Court judge for an excessive award for medical expenses, was upheld by the Law Court. Justice Jabar rejected the Defendants' arguments for a new trial, finding that the verdict was supported by the evidence and the Plaintiffs' comments at trial that no one would want to trade places with Donna were not so prejudicial as to require a mistrial.

Peterson v. Jhamb, 2011 ME 35 Judgment: v jhamb.pdf

Court Decision: Lyman v. Huber

In Lyman v. Huber, 2010 ME 139, the Maine Supreme Judicial Court sitting as the Law Court vacated a judgment issued by the Superior Court (Cumberland County, Delahanty, J.) in favor of the plaintiff, awarding her $106,000 for intentional infliction of emotional distress (IIED) and loss of business opportunity. The unanimous Law Court opinion, written by Justice Jon Levy, found that the elements of an IIED claim, which require proof of such severe emotional distress that no reasonable person could endure it, were not met by the plaintiff.

The plaintiff and the defendant had been romantically involved for a number of years and purchased property together where the plaintiff planned to operate a horse farm. The defendant became increasingly controlling and hurtful in his behavior towards the plaintiff which placed her under a great deal of stress. She filed an eight-count complaint against him, including seeking partition of the property, damages for IIED, and "ouster."

The Superior Court awarded the plaintiff $31,000 for ouster, treating the claim as economic loss under the IIED claim, since "ouster" is not recognized as a cause of action in Maine. The trial court also awarded the plaintiff $75,000 in her IIED claim. The defendant filed an appeal from these awards.

Justice Levy noted that the plaintiff did not show that she suffered sufficiently severe bodily harm to warrant an award for IIED. In most cases, such extreme harm must be proved through expert testimony by a doctor or psychologist to establish a recognized disorder such as post-traumatic stress.

Since the plaintiff did not show severe emotional distress and presented no expert testimony, her claim for IIED failed. Accordingly, her claim for economic loss stemming from the IIED claim also was also overturned.

Lyman v. Huber Judgment: v Huber.pdf