828 A.2d 788 2003 ME 91

2003 ME 91

Robyn LINDNER v. Jeffrey A. BARRY et al.

Supreme Judicial Court of Maine.

Submitted on Briefs: June 26, 2003.

Decided: July 18, 2003.

Joseph W. Corrigan, Preti Flaherty Be-liveau Pachios & Haley, LLC, Portland, for plaintiff.

*789Mary Platt Cooper, Harmon, Jones, Sanford & Elliott, LLP, Camden, for defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

RUDMAN, J.

[¶ 1] Jeffrey A. Barry and Destra Risk Management, Ltd. appeal from an order entered in the Superior Court (Knox County, Warren, J.) granting Robyn Lind-ner’s request to increase her attachment and to continue trustee process against the Gresham Group, Inc. as trustee. Barry and Destra assert that Lindner failed to support her motion to increase the attachment amount with an affidavit, as required by M.R. Civ. P. 4A(c) and 4A(i), and the Superior Court erred and exceeded the bounds of its discretion by granting her request without a supporting affidavit. We agree and vacate the Superior Court’s order.

[¶ 2] Lindner filed a motion to increase a previously ordered attachment and trustee process pursuant to M.R. Civ. P. 4A and 4B.1 Her motion was supported by copies of Nevada state court decisions in litigation involving Lindner and Barry, which, she argued, supported a finding that Barry had fraudulently transferred assets to avoid his spousal and child support obligations. Lindner further contended that these Nevada decisions supported seeking double damages on the Nevada court’s spousal and child support arrearage judgments pursuant to 14 M.R.S.A. § 3578(1)(C)(3) (2003),2 of the Uniform Fraudulent Transfer Act, id. §§ 3571-3582 (2003). She did not support her request with an affidavit.

[¶ 3] Orders for attachment or trustee process are reviewed for an abuse of discretion or clear error. Plourde v. Plourde, 678 A.2d 1032, 1034 (Me.1996). Although prejudgment orders for attachment are interlocutory, we may entertain an appeal from an order granting or denying an attachment or a trustee process pursuant to the collateral order exception. Vogt v. Churchill, 679 A.2d 522, 524 (Me.1996).

*790[¶ 4] The Uniform Fraudulent Transfer Act expressly authorizes prejudgment attachment, but makes this remedy contingent upon compliance with the Maine Rules of Civil Procedure. See 14 M.R.S.A. § 3578(1)(B) (2003); FDIC v. Proia, 663 A.2d 1252, 1253 (Me.1995). The Civil Rules, in turn, require that a motion for attachment “shall be supported by affidavit or affidavits’ meeting the requirements set forth in subdivision (i) of this rule.” M.R. Civ. P. 4A(c); see M.R. Civ. P. 4B(c). “Because prejudgment attachment may operate harshly upon the party against whom it is sought, there must be strict compliance with the procedures prescribed by legislation and implemented by court rules.” Wilson v. DelPapa, 634 A.2d 1252, 1254 (Me.1993); see also Vogt, 679 A.2d at 523 (“A plaintiff is required to submit affidavits in support of a motion for the approval of an attachment.”).

[¶5] Lindner’s motion to increase the attachment amount was deficient because she failed to file a supporting affidavit. See M.R. Civ. P. 4A(c), 4B(c). The Superior Court, therefore, exceeded the bounds of its discretion when it granted Lindner’s motion without requiring her to provide a supporting affidavit, as required by Rules 4A(c) and 4B(e). See Wilson, 634 A.2d at 1254 (stating that motions for attachment must be supported by affidavit evidence).

The entry is:

Order of attachment vacated.

Lindner v. Barry
828 A.2d 788 2003 ME 91

Case Details

Name
Lindner v. Barry
Decision Date
Jul 18, 2003
Citations

828 A.2d 788

2003 ME 91

Jurisdiction
Maine

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!