LAWRENCE W. PHILLIPS Plaintiff,
KATHLEEN PHILLIPS LABOMBARD, Defendant.
John O'Neil, Jr. Justice, Superior Court
A. Procedural Posture
Lawrence W. Phillips ("Phillips") brings this action against Kathleen Phillips LaBombard ("LaBombard") alleging tortious interference with an expected inheritance. (Compl. 1-2, 5.) Phillips has moved to attach $630, 000 pursuant to Maine Rule of Civil Procedure 4A and to attach $650, 000 by trustee process under Rule 4B.
Margaret Goldie Phillips ("Margaret") died November 27, 2013, at the age of 92 while residing in Washington, D.C. The Plaintiff is Margaret Phillips' nephew. Margaret's will, which is currently in probate in Washington, D.C, devised real and personal property to two nieces, two grandnieces, and the University of Maine. Margaret also had two Charles Schwab & Co., Inc. accounts ("the Schwab accounts") totaling over $1, 800, 000. Phillips' alleges LaBombard, through fraud, duress, undue influence, or forgery caused Margeret Phillips to remove him from the will and made herself the sole beneficiary under the Schwab accounts. Specifically, Phillips claims LaBombard told Margaret Phillips that he owed $400, 000 in back taxes to the Internal Revenue Service ("IRS"). (Lawrence W. Phillips Aff. 2-3.) While Phillips concedes the IRS had "at one time" filed liens totaling approximately $400, 000, after engaging an accountant, Phillips owed the IRS $7, 000. (Lawrence W. Phillips Aff. 3.)
As a threshold matter, LaBombard argues that this court lacks jurisdiction to hear this collateral attack, and Phillips should pursue his claims in the District of Columbia probate proceeding. The Law Court has expressly held that a plaintiff may elect to bring a tortious interference with an inheritance claim in a separate action for damages while a probate proceeding is pending. Plimpton v. Gerrard, 668 A.2d 882, 887 (Me. 1995). The court therefore has jurisdiction.
B. Attachment Under Rules 4A and 4B
Under Rule 4A, attachment is a method of securing property held by the defendant to satisfy a potential judgment. M.R. Civ. P. 4A(a). Trustee process under Rule 4B permits a plaintiff to freeze a defendant's assets that are in a third party hands, such as a bank account. Kelly McDonald, Attachment on Trustee Process: A Primer for the Practitioner, 27 Me. B.J. 36 (2012). A motion for attachment "shall be supported by affidavit" which must
... set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that the affiant believes this information to be true.
M.R. Civ. P. 4A(c), (i).
"Because prejudgment attachment may operate harshly upon the party against whom it is sought, there must be strict compliance with the procedures prescribed by legislation and implemented by court rules." Wilson v. DelPapa, 634 A.2d 1252, 1254 (Me. 1993) (citations omitted). A court may grant attachment under Rule 4A only where it is "more likely than not that the plaintiff will recover judgment in an amount equal or greater than the aggregate sum of the attachment." Trans Coastal Corp. v. Curtis, 622 A.2d 1186, 1188 (Me. 1993), citing M.K. Civ. P. 4A(c), (g). The same standard applies to Trustee Process under Rule 4B. See M.R. Civ. P. 4B(c). "More likely than not" is a preponderance standard. Jacques v. Brown, 609 A.2d 290, 292 n.3 (Me. 1992). Parties seeking ...