Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Forty East Plaza Inc. v. Bodyworks Management Co.

Superior Court of Maine, Androscoggin

August 16, 2017

FORTY EAST PLAZA, INC., and ZI QIAN ZHANG Plaintiffs,
v.
BODYWORKS MANAGEMENT COMPANY, PATRICK M. WELCH, and LINDA MONMANEY Defendants.

          FORTY EAST PLAZA INC - PLAINTIFF Attorney for: FORTY EAST PLAZA INC ROY PIERCE - RETAINED JENSEN BAIRD GARDNER HENRY

          ZI QIAN ZHANG - PLAINTIFF Attorney for: ZI QIAN ZHANG ROY PIERCE - RETAINED JENSEN BAIRD GARDNER HENRY

          BODYWORKS MANAGEMENT COMPANY - DEFENDANT Attorney for: BODYWORKS MANAGEMENT COMPANY

          PATRICK M WELCH - DEFENDANT Attorney for: PATRICK M WELCH

          LINDA MONMANEY - DEFENDANT Attorney for: LINDA MONMANEY

          ORDER

          MaryGray Kennedy Justice Superior Court.

         Before the court is Plaintiffs' motion for attachment and attachment on trustee process. A hearing on this motion was held on August 15, 2017.

         I. Background

         On May 19, 2017, Forty East Plaza, Inc. and Zi Qian Zhang filed a complaint against Bodyworks, Patrick Welch, and Linda Monmaney, related to a contract. On the same day, Plaintiffs filed a motion for attachment and attachment on trustee process. M.R. Civ. P. 4A, 4B. On July 12, 2017, Defendants answered the complaint, and filed their opposition to the motion. On July 14, 2017 Plaintiffs filed a reply in support.

         II. Discussion

         To issue an order of approval for attachment, the court must find that it is more likely than not that the plaintiff will recover judgment in an amount equal to or greater than the aggregate sum of the attachment. M.R. Civ. P. 4A(c), 4B(c). A moving party must show a greater than 50% chance of prevailing on both liability and damage issues, where the required showing is to be made through affidavits. Official Post Confirmation Comm. of Creditors Holding Unsecured Claims v. Markheim, 2005 ME 81, ¶ 18, 877 A.2d 155; Official Post-Confirmation Committee v. Markheim, No. CV-04-040, 2005 Me. Super. LEXIS 78, at *9, (Oct. 7, 2005) (the court cannot consider evidence not in the affidavits or in documents authenticated by and incorporated by reference in them); M.R. Civ. P. 4A advisory committee's notes to 1992 amend., 1992, Me. Judicial Branch website/Rules & Administrative Orders/Rules (last visited August 16, 2017). Specificity is required in the showing for the amount of the attachment. M.R. Civ. P. 4A advisory committee's notes to 1992 amend., 1992, Me. Judicial Branch website / Rules & Administrative Orders/Rules (last visited August 16, 2017).

         Defendants do not dispute that Plaintiffs will obtain a judgment against Defendants, but argue that Plaintiffs have not properly supported the amount. (Def.'s Opp'n 2-3.) Prior to the filing of this lawsuit, the parties attempted "settlement negotiations, " after which Defendants provided an undated check to Plaintiffs for $115, 000. (Welch Aff. ¶¶ 8, 9.) Defendants argue that, in deciding whether to order an attachment, the court can only consider evidence otherwise admissible in support of a claim. (Def.'s Opp'n 1-2.) Defendants argue that to support the amount of recovery Plaintiffs are relying primarily, if not solely, upon that undated check which Defendants claim is inadmissible because it was part of a compromise negotiation. (Def.'s Opp. 2); (Compl. Ex. 2); M.R. Evid. 408; (Welch Aff. ¶ 8.) However, the Maine Rules of Civil Procedure for attachment do not require that facts in support would be admissible in evidence. Precision Commons, Inc. v. Rodrigue, 451 A.2d 300, 302 n.3 (Me. 1982) ("The requirement of Rule 4A(h) must be distinguished from the M.RCiv.P. 56(e) requirement that, to support a summary judgment, affidavits set forth facts that would be admissible in evidence"); Jay v. Emery Lee & Sons, No. CV-04-89, 2004 Me. Super. LEXIS 162, at *6 (July 14, 2004) ("a motion for attachment and trustee process is not a trial. Further, standards of evidence are inapplicable here, as is shown in the rule's allowance for information or even beliefs that an affiant thinks are true.") Therefore, the check is not prohibited pursuant to the Maine Rules of Evidence as support for Plaintiffs' motion.

         Plaintiffs argue that the check establishes the unpaid rent obligation of Defendants as of December 2014. (Pl 's Mot. 3.) Defendants allege that the issuance of the check was "merely a proforma act" that was never intended as payment for any agreed upon rental arrearage. (Welch Aff. ¶ 9.)

         It is reasonable to infer that whether or not Defendants expected Plaintiffs to attempt to cash the undated check, the Defendants' provision of the check represented their acknowledgement of amounts owed to Plaintiffs. Official Post Confirmation Comm. of Creditors Holding Unsecured Claims,2005 ME 81, ¶ 17, 877 A.2d 155. Furthermore, the amount of attachment and attachment on trustee process requested by Plaintiff exactly matches the amount promised by Defendants to Plaintiffs in the check. Cf. Id. (where the amount of attachment potentially supported by the evidence was significantly less ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.