D. Warren, Justice
the court are plaintiff Tyll LLC's motion for summary
judgment and its motion for an attachment on its claim for
unpaid rent under a lease for certain premises in Portsmouth
two motions were filed simultaneously and depend on the same
moving affidavit. However, the differences between the two
motions are demonstrated by the discussion below.
judgment should be granted if there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law. In considering a motion for summary
judgment, the court is required to consider only the portions
of the record referred to and the material facts set forth in
the parties' Rule 56(h) statements. E.g., Johnson v.
McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts
must be considered in the light most favorable to the
non-moving party. Id. Thus, for purposes of summary
judgment, any factual disputes must be resolved against the
movant. Nevertheless, when the facts offered by a party in
opposition to summary judgment would not, if offered at
trial, be sufficient to withstand a motion for judgment as a
matter of law, summary judgment should be granted.
Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d
motion for summary judgment, the issue of whether a factual
dispute for trial exists must essentially be based on the
material facts set forth in the moving party's Rule
56(h)(1) statement of material facts and on the opposing
party's Rule 56(h)(2) response and statement of
additional facts that the opposing party contends raised a
disputed issue for trial. While Rule 56(h0(3) contemplates a
reply statement of facts by the moving party supported by
record citations, that is generally intended to allow the
movant to place opposing factual assertions in context and is
not an opportunity to argue for summary judgment based on new
facts to which the opponent has not had an opportunity to
case, defendants Sara Sullivan LLC and Sara
Sullivan have submitted evidence that there was an
oral agreement to terminate the lease in contemplation of a
new tenant being obtained and that, in reliance on that
agreement, Sullivan vacated the premises during a time of the
year when her business would have made enough money to cover
the lease payments. That evidence creates disputed issues of
fact for trial. Tyll argues that this evidence is
foreclosed because there was a provision in the contract that
required modifications to be in writing. However, under
applicable New Hampshire law, such provisions do not
necessarily preclude an oral agreement to terminate a
contract. See Prime Financial Group Inc. v. Masters,
141 N.H. 33, 37, 676 A.2d 528, 531 (N.H. 1996).
Sullivan's evidence has been cast into doubt by
additional evidence offered in a supplemental affidavit and
exhibits thereto submitted by Michael Michalski. However,
there remain disputed issues of fact, and in any event the
court is not prepared to grant summary judgment based on
materials submitted by a movant in reply papers just because
those materials suggest that the movant has a stronger case.
entitled to an attachment, Tyll must show that it is more
likely than not that it will recover judgment in an amount
equal to or greater than the amount of the attachment.
M.R.Civ.P. 4A(c). Testimonial hearings are not contemplated
or required on attachment motions, but the court is entitled
to make credibility determinations based on the affidavits
and any documentary exhibits if it is able to do so. See
Porazzo v. Karofsky, 1998 ME 182 ¶ 7, 714 A.2d 826.
Tyll is seeking an attachment on real property owned by Sara
Sullivan in Maine.
motion for attachment, as opposed to a motion for summary
judgment, the court is entitled to weigh the strength of the
evidence. On the evidence presented, including the emails and
other documents attached to Michalski's supplemental
affidavit, the court concludes that Tyll has shown that it is
more likely than not that it will recover a judgment against
Sara Sullivan in the amount of $ 44, 400 and will order an
attachment against Sullivan's property in that
amount. Sullivan has not demonstrated that there
is any insurance, bond or other security available to satisfy
entry shall be:
motion for summary judgment is denied.
Plaintiffs motion for an attachment against defendant Sara
Sullivan is granted. An attachment in the amount of $44, 400
is ordered in favor of Tyll LLC against any real ...