 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
CALVERT v. CORTHELL11/8/1991
Shannon Calvert, and her parents, Charles and Margaret Calvert, appeal from the order entered by the Superior Court (Cumberland County, Alexander, J.) denying their motion for approval of attachment and trustee process under M.R.Civ.P. 4A and 4B. Because we agree with the Calverts that the court applied the wrong legal standard to their motion, we vacate and remand with direction to approve the attachment and trustee process.
I.
The Calverts' complaint against defendants Susan Corthell and Patricia Remington alleges both defamation and intentional infliction of emotional distress. The complaint
The accusation of sexual abuse has devastated Shannon Calvert. She has dropped out of the University of Southern Maine, has been forced to reevaluate the possibility of becoming an elementary school teacher, and has been seeing a psychiatrist on a regular basis. Margaret Calvert and Charles Calvert have been emotionally overcome by the false accusations made against their daughter. An attorney for the Calverts filed an uncontested affidavit stating that the defendants have no liability insurance or security that would cover an award in this case.
Susan Corthell's affidavit in opposition to the attachment motion asserts that her daughter was sexually molested and that her daughter had identified Shannon Calvert as the perpetrator. Susan Corthell attaches a report from Dr. Lawrence Ricci confirming the allegations. Susan Corthell also states that the Calverts were the only ones who have "spent any significant period of unsupervised time" with her daughter.
II.
We entertain appeals from an order denying or granting attachment under the collateral order exception to the final judgment rule. 2 Field, McKusick & Wroth, Maine Civil Practice § 73.2 at 435 (2d ed. Supp. 1981); See, e.g. Bates Fabrics, Inc. v. LeVeen, 590 A.2d 528 (Me. 1991); Northeast Investment Co. v. Leisure Living Communities, Inc., 351 A.2d 845 (Me. 1976). M.R.Civ.P. 4A and 4B allow for attachment and trustee process of property if "such attachment for a specified amount" and if there is "a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment . . . in an amount equal to or greater than the amount of the attachment." Attachment is available on real estate , goods and chattels and other property to satisfy any judgment recovered by the plaintiff. M.R.Civ.P. 4A. Trustee process is considered a form of attachment which places a lien on the defendant's property in the hands of a trustee. 1 Field, McKusick & Wroth, Maine Civil Practice § 4B.1 at 134-35 (1970); Smith v. Davis, 131 Me. 9, 12, 158 A. 359, 361 (1932). We review a decision to grant or deny attachment under the clearly-erroneous and abuse-of-discretion standards. Bowman v. Dussault, 425 A.2d 1325, 1328 (Me. 1981).
We have previously stated that the rules governing pre-judgment attachment are "quite liberal" and that the "reasonable likelihood of success standard" presents a "relatively low hurdle." Bates Fabrics, 590 A.2d at 530; Ingalls v. Brown, 460 A.2d 1379, 1381 (Me. 1983). The trial court is not required to decide whether "it is more likely than not that [a party] will prevail," but only "whether the underlying claim is substantial enough that there appears to be a reasonable possibility of recovery." Bowman, 425 A.2d at 1328; Northeast Investment Co., 351 A.2d at 852.
In the instant case, the Calverts' affidavits tend to show that they could recover damages from the defendants on their claims of defamation and intentional infliction of emotional distress. The court, in denying the motion for attachment, did not explicitly apply the "reasonable like
Page 1 2 Maine Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|