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CALVERT v. CORTHELL11/8/1991
lihood of success" standard, nor did it use language that would suggest that the Calverts had failed to meet this low burden. Rather, the court gave an analysis consistent
III.
The defendants also contend that trustee process is inappropriate when the claim of intentional infliction of emotional distress is based solely upon slanderous statements. We disagree. Trustee process, unknown at common law, was created by statute. Davis v. United States Bobbin & Shuttle Co., 118 Me. 285, 286, 107 A. 865, 865 (Me. 1919). Both M.R.Civ.P. 4B(a) and 14 M.R.S.A. § 2601 allow the use of trustee process in any personal action, "except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander by writing or speaking, or for assault and battery." Maine commentators have concluded, therefore, that " rustee process can be used in any action where relief is sought other than of the excepted variety." 1 Field, McKusick & Wroth, Maine Civil Practice § 4B.2 at 136 (2d ed. 1970). Joining a defamation claim with a claim of intentional infliction of emotional distress does not prevent the use of trustee process on the nonexcepted claim. Id.; but see Buono v. Nardella, 344 Mass. 257, 258-59, 182 N.E.2d 142, 143-44 (1962). Moreover, trustee process is proper even though the emotional distress was caused by slanderous statements, because the two torts alleged in this case are separate and distinct. See Ames v. Adams, 128 Me. 174, 146 A. 257 (1929) (trustee process should have been granted on
Attachment requires specific facts to support a claim for recovery and "evidence `from which some informed projection be made' as to the amount of damages suffered by the party." Bates Fabrics, 590 A.2d at 531 (quoting Bowman, 425 A.2d at 1329). In the present case, the Calverts seek attachment against the defendants' property for $50,000 on the defamation claim. We recently found that a jury award of $50,000 as compensatory damages for false allegations of child abuse was not clearly excessive because such statements are "actionable per se" and no special damages need to be proved. Ramirez v. Rogers, 540 A.2d 475 (Me. 1988). The statements made in the present case impute the crime of physically and sexually abusing a child which, if found untrue, would not require the proof of special damages. In these circumstances, the likelihood of recovering $50,000 is reasonable. There is also a reasonable likelihood that the Calverts will recover $10,000 on the claim of intentional infliction of emotional distress. The Calvert affidavits point to continuing medical bills for psychiatric counselling in the amount of $1200 as of January 2, 1991, and $800 in lost tuition resulting from Shannon Calvert's dropping out of the University of Southern Maine because of this incident. We, therefore, vacate the judgment and remand for entry of an order approving attachment against defendants' property in amount of $50,000 and attachment on trustee process for $10,000.
The entry is:
Judgment vacated.
Remanded with direction to approve the attachment of $50,000 and trustee process of $10,000.
All concurring.
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