EAST PLAZA INC - PLAINTIFF Attorney for: FORTY EAST PLAZA INC
ROY PIERCE - RETAINED JENSEN BAIRD GARDNER HENRY
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
MONMANEY - DEFENDANT Attorney for: LINDA MONMANEY
MaryGray Kennedy Justice Superior Court.
the court is Plaintiffs' motion for attachment and
attachment on trustee process. A hearing on this motion was
held on August 15, 2017.
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.
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).
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.
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.
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 ...