E. Walker, Justice Maine Superior Court
this Court's June 13, 2018 Judgment and Order, Defendants
filed this motion for amended/additional findings,
amended/additional conclusions of law, and amended judgment.
Plaintiff State of Maine has filed an opposition to this
February 12 and 13, 2018, this Court presided over a bench
trial in this matter. Thereafter the parties submitted
extensive proposed findings of facts and conclusions of law.
Following consideration of the evidence introduced at trial
and the parties' proposed findings, this Court entered a
Judgement and Order in the State's favor on June 13,
2018. Defendants timely filed this motion on June 19, 2018.
Standard of Review
to MR. Civ. P. 52(b), the "court may. .. amend its
findings or make additional findings and may amend the
judgment if appropriate." However, the court need not
grant every request. In re Jacob B., 2008 ME 168,
¶ 15, 959 A.2d 734. A motion made under M.R. Civ. P.
52(b) "must include the proposed findings of fact and
conclusions of law requested." A motion under M.R. Civ.
P. 59(e) need not be granted "unless it is
reasonably clear that prejudicial error has been committed or
that substantial justice has not been done." Cotes
v. Farrington, 423 A.2d 539, 541 (Me. 1980).
"[W]hen the trial is before a judge without a jury, such
motions must be based on a manifest error of law or mistake
of fact. The burden of showing harmful error rests on the
[moving] party." Id.
52(b) motion "should not be used to attempt to require
the court to explain its reasoning in reaching a particular
result or to reargue points that were contested at trial and
have been resolved by the court's decision."
Wandishin v. Wandishin, 2009 ME 73, ¶ 19, 976
A.2d 949. With this motion, Defendants are primarily
attempting to reargue issues that have already been decided
by the Court. Many of Defendants' proposed findings of
fact submitted after trial, which are again proposed within
this motion, were found to be irrelevant to the Court's
decision or unsupported by the evidence. Similarly,
Defendants request this Court to issue conclusions of law
that the Court has already considered and rejected.
do raise one issue that merits clarification: remedies.
Defendants' motion concludes: "If this Court still
determines that judgment should be entered for the Plaintiff,
that judgment must be limited to no more than $39, 792 and
can be satisfied by only one of the methods/remedies
delineated at § 3578 and § 3579 of Title 14."
(Defs.' Mot. 3.) The State concedes that clarification
would be appropriate in order to acknowledge that under 14
M.R.S.A. § 3579, "the amount of damages and
attorneys' fees recoverable from a transferee is
generally limited to the value of the property transferred or
the amount necessary to satisfy the State's claim,
whichever is less." (Pl's Opp'n 10.) Defendants
in turn seek an amended or additional finding that no
monetary damages should be assessed against Beatrix Tucci as
a transferee. (Defs.' Reply 1.) After considering the
parties' arguments, the Court will clarify its
conclusions of law as to remedies as follows.
outset, the Court rejects Defendants' contention that the
State must elect a single remedy under 14 M.R.S.A. §
3578. Although Defendants make no specific argument or cite
any authority supporting their position, the Court presumes
this theory arises from the presence of the word
"or" at the end of subsection 3578(1)(B). While
this use of the word "or" could indeed counsel in
favor of finding that a plaintiff must elect a single remedy,
the Court has located no authority mandating this
interpretation of the statute. Our rules of construction of
laws provide that "[t]he words 'and' and
'or' are convertible as the sense of a statute may
require." 1 M.R.S.A. § 71(2); see also
Office of the Revisor of Statutes, Maine Legislative
Drafting Manual, pt. III, ch. 2, §11 (A) at 110-11
(1st ed. Oct. 1990, rev. Oct. 2016) ("'And' is
conjunctive. If the legislative intent is that all
requirements be fulfilled, the drafter should use
'and.' 'Or' is disjunctive. If the
fulfillment of any one of several requirements is sufficient,
use 'or.'") (emphasis added). Further, the
statute's provision of "[a]ny other relief the
circumstances may require" seems to grant the courts
broad authority to fashion a remedy that suits the needs of
the case. See 14 M.R.S.A. § 3578(1)(C)(4).
the Law Court's holding in Samsara Mem'l
Trust that attorney's fees are available as damages
under section 3578(1)(C)(3), this Court finds no reason to
limit the State's remedy to avoidance as provided by
section 3578(1)(A), thereby denying attorney's fees
available under section 3578(1)(C)(3). See Samsara
Mem'l Trust v. Kelly, Remmel & Zimmerman, 2014
ME 107, ¶¶ 48-50, 102 A.3d 757. The Law Court's
reasoning for awarding attorney's fees in Samsara
Mem'l Trust is equally applicable to a
plaintiff seeking avoidance of a fraudulent transfer as to a
plaintiff seeking money damages. This Court also maintains
that, in addition to avoidance of the transfer, an injunction
preventing Defendants from further disposing of the property
as provided by section 3578(1)(C)(1) is necessary in light of
the fact that this property was at one point listed for sale.
the Court's June 13 Judgment makes no mention of any
remedy granted under section 3579, because both parties have
raised the issue in their post-judgment filings, the Court
will expressly clarify that no remedy is granted under
section 3579. Section 3579(2) "provides that a defrauded
creditor can recover a monetary judgment against the
transferee of the fraudulently conveyed property in lieu of
avoiding the transfer." 14 M.R.S.A. § 3579, Maine
Comment 2. Because the Court has awarded avoidance of the
transfer, an additional award of money damages against any
transferee (i.e., Beatrix Tucci or March 31, LLC)
would be improper.
Defendants argue that any judgment awarded to the State
should be limited in value to $39, 792. Section 3578 provides
that avoidance of the transfer is available "to the
extent necessary to satisfy the creditor's claim."
14 M.R.S.A. § 3578(1)(A). The State's underlying
claim is the amount of the 2013 UTPA judgment. That judgment
ordered Tucci to pay $236, 500.50 in restitution and $140,
000.00 in civil penalties. Because the value of Tucci's
interest in 104 Monument Street at the time of transfer ($81,
000.00) is less than the amount of the State's underlying
claim against Tucci, avoidance of the entire transfer is
argument, also raised in their proposed findings of fact and
conclusions of law, is that the value of the judgment should
be reduced because the transfer was not made with intent to
defraud the Ashley and Flaherty families, who were granted a
total of $196, 708.50 in restitution in the UTPA judgment.
Even if this allegation is accepted as fact, the Court finds
it is irrelevant. Following the reasoning of the U.S.
District Court for the District of Massachusetts, the UFTA
permits creditors to seek avoidance of a transfer that was
made with the intent to defraud, regardless of "whether
the creditor's claim arose before or after the transfer
was made" so long as the transfer was made to
"defraud any creditor." Id.,
§ 3575(1)(A); Norwood Coop. Bank v. Gibbs, No.
10-11647-JCB, 2012 U.S. Dist. LEXIS 131404, at *22-23 (D.
Mass. Sept. 13, 2012) (emphasis added). Because this Court
finds the transfer of 104 Monument Street was made with