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Summers v. Nisbet

Superior Court of Maine, Cumberland

February 26, 2015

ASHLEY SUMMERS, as the Surviving Spouse of STEVEN SUMMERS and the Personal Representative of the ESTATE OF STEVEN SUMMERS and as Parent, Guardian, and Next Friend of the Minor Children, AUDRYN SUMMERS and MALTY AH SUMMERS, NIKKI J. THOMAS and LEWIS THOMAS, JR., as Co-Personal Representatives 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

ORDER ON PLAINTIFFS MAZZIOTTL BRAGDON, THOMAS, AND CONLEE'S MOTIONS TO MODIFY AND/OR DISSOLVE THE ORDER GRANTING THE EX PARTE ATTACHMENT TO PLAINTIFF SUMMERS

Nancy Mills, Justice, Superior Court

Before the court are plaintiff Mazziotti's motion to dissolve or modify[1] the attachment order granted on plaintiff Summers's ex parte motion for attachment (the Summers attachment) and plaintiff Bragdon's motion to dissolve the Summers attachment. Plaintiffs Thomas and Conlee join in these motions.

Plaintiff Mazziotti asks the court to increase the amount of the attachment ordered and to include plaintiffs Mazziotti, Bragdon, Thomas, and Conlee as plaintiffs in the Summers attachment. Rule 4A(h) provides that an order of attachment may be modified "to limit the attachment to specific property or to order cash or bond to be held by the court as security for the judgment, and to dissolve the prior attachment as to all other property of the defendant." M.R. Civ. P. 4A(h); see Centrix Bank & Trust v. Kehl, 2012 ME 52, ¶ 9 n.2, 40 A.3d 942 (party may seek modification of an attachment order "but only for the purpose of showing that 'specific property or sufficient cash is available to satisfy a judgment so that the attachment order can be modified to limit or dissolve the attachment accordingly"). Plaintiff Bragdon asks the court to dissolve the Summers attachment. The court treats these motions as motions to dissolve the Summers attachment.

Hearing was held on February 25, 2015. All parties were represented by counsel.

The Summers complaint and motion for ex parte attachment were filed on November 21, 2014. The ex parte motion for attachment was granted by order filed December 3, 2014. An amended complaint was filed on December 16, 2014.

Defendant's attorney accepted service on December 31, 2014. After receiving an extension of time to file an answer by order filed February 10, 2015, defendant filed an answer to the amended complaint on February 17, 2015.

The Thomas complaint and motion for attachment were filed on January 6, 2015. Defendant's attorney accepted service on January 13, 2015. After receiving an extension of time to file an answer by order filed February 5, 2015, defendant filed an answer on February 17, 2015. Defendant filed no opposition to the motion for attachment.

The Mazziotti complaint and motion for attachment were filed on January 20, 2015. Defendant's attorney accepted service on January 21, 2015. After receiving an extension of time to file an answer by order filed February 19, 2015, defendant filed an answer on February 17, 2015. Defendant filed no opposition to the motion for attachment.

The Bragdon complaint and motion for attachment were filed on January 21, 2015. An amended complaint was filed on January 26, 2015. Defendant's attorney accepted service on January 26, 2015. Defendant filed an answer to the amended complaint on February 17, 2015. Defendant filed no opposition to the motion for attachment.

The Conlee complaint was filed on January 30, 2015. Defendant's attorney accepted service on January 30, 2015. Defendant filed an answer on February 17, 2015. Although counsel for plaintiff Conlee moved orally for an attachment at the February 25, 2015 hearing and defendant did not object, the court had no affidavits supporting the motion, as required by Rule 4A(c). Since the hearing, [2] plaintiff Conlee filed a written motion for attachment and attachment on trustee process with supporting affidavit.

Counsel for defendant has been involved in this matter from the very beginning. He accepted service on behalf of defendant and filed answers in these five cases.

The circumstances of these cases are unique and unlikely to be repeated. These cases arise from a fire in Portland, Maine on November 1, 2014. Six people died, including Steven Summers, Ashley E. Thomas, Nicole Lyn Finlay, David R. Bragdon, and Christopher Conlee. Potential damages are substantial. Although defendant is defending the lawsuits, he has not opposed plaintiffs Mazziotti, Bragdon, Thomas, and Conlee's motions for attachment of which he had notice.

Based on statements of counsel at the hearing, it appears that defendant has retained a bankruptcy attorney, although no filing has been made. Pursuant to the Bankruptcy Code, the trustee "may avoid any transfer of an interest of the debtor in property . . . made ... on or within 90 days ...


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