Argued: April 10, 2019
Gene R. Libby, Esq., and Tyler J. Smith,
Esq. (orally), Libby O'Brien Kingsley & Champion,
LLC, Kennebunk, for appellant Annemarie Germain
Thimi R. Mina, Esq., and Alfred C. Frawley
IV, Esq. (orally), McCloskey, Mina, Cunniff & Frawley,
LLC, Portland, for appellee The Portland Museum of Art
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Annemarie Germain appeals from an order denying her motion to
dissolve the ex parte attachment entered by the Superior
Court (Cumberland County, L. Walker,
J.). She argues that the court applied an
incorrect standard of proof. We agree and vacate only the
order denying her motion to dissolve the ex parte attachment.
On August 2, 2017, the Portland Museum of Art (PMA) filed a
complaint against Germain alleging tortious interference with
expected inheritance and undue influence, and requested an
accounting. On September 7, 2018, the PMA filed an ex parte
motion for attachment and trustee process, which the court
granted on September 26, 2018. See M.R. Civ. P.
On October 3, 2018, Germain filed a motion to dissolve the
attachment and trustee process. M.R. Civ. P. 4A(h), 4B(i).
After a hearing, the court denied her motion to dissolve. In
its order, the court rejected Germain's argument that the
PMA had not established that it was more likely than not that
the PMA would prevail in the underlying action and held that
"there is a reasonable likelihood that the
plaintiff will recover judgment." (Emphasis added.)
Germain timely filed a notice of appeal.
We consider the denial of a motion to dissolve an ex parte
attachment for an abuse of discretion. See Libby
O'Brien Kingsley & Champion, LLC v. Blanchard,
2015 ME 101, ¶ 5, 121 A.3d 109; Trans Coastal Corp.
v. Curtis, 622 A.2d 1186, 1188 (Me. 1993). Because the
court clearly applied the incorrect standard of proof in its
written order denying Germain's motion to dissolve, a
lengthy discussion of the issue is unnecessary.
A motion to dissolve an ex parte attachment is treated as the
equivalent of a contested motion for attachment; thus, when
confronted with a motion to dissolve, a party seeking an
attachment bears the burden of proving by a preponderance of
the evidence that it is likely to recover a judgment in an
amount equal to or greater than the amount of the attachment.
See Estate of Summers v. Nisbet, 2016 ME 88, ¶
10, 141 A.3d 1109; Trans Coastal Corp., 622 A.2d at
1188; M.R. Civ. P. 4A(g), 4B(i). In this case, although the
court correctly applied the preponderance standard in the ex
parte order and discussed it with the parties numerous times
at the dissolution hearing, the court unambiguously
articulated the incorrect standard of proof in its order on
the motion to dissolve. Despite the strength of the evidence
supporting the attachment, we cannot conclude that the
misstatement of the standard is harmless in this case.
Therefore, we must vacate the court's order denying
Germain's motion to dissolve the ex parte attachment and
remand for the court to reconsider her motion to the dissolve
ex parte attachment and apply the correct standard of proof.
The ex parte attachment order remains in full force and
effect until the Superior Court issues a new order, applying
the proper standard, on Germain's motion to dissolve.
Order denying motion to dissolve attachment is vacated.
Remanded for further proceedings consistent ...