The opinion
STATE OF MAINE SUPERIOR COURT
YORK, ss. CIVIL ACTION
AMY 73. MCGARRY, et al.,
Plaintiffs,
v. ORDER
ROBERT M.A. NADEAU, et al.,
Defendants.
L
Before the court is the issue of w:liether the plaintiffs are entitled to supplemental
relief to enforce the declaratory judgment entered by the court on November 1, 2005 in
the above-captioned case. This issue was previously addressed in the course of a prior
order filed January 24, 2006, and a hearing was held on this issue on February 6, 2006.'
At the February 6 hearing plaintiffs were given until February 21, 2006 to make a
further submission with respect to the status of various district court cases. However, -
no submission was filed by February 21, 2006. On March 13, 2006, almost tlirec weeks
later, plaintiffs filed a supplemental memorandum along with a motion for leave to
accept late filing. Defendants oppose the I ~ t filing.
e
The court will deny plaintiffs' inotion for late filing and will disregard their
supplemental memorandum. T11e co~irt does not doubt that plaintiffs' counsel
experienced significant computer problems around the filing deadline which would
have justified some extension. However, it cannot justify plain tiffs' three-week silence.
Where the court was expecting a filing, some mell~odcould and should have been
found during the week of February 21 to comnlunicate wit11 the court in order to
explain the problem and ask for an exten5ioil.
1 .
I'he Iiearing tvas held at Ct~mherlandCounty ( ' o i ~ r t l i o ~ ~ s e .
The court will therefore rule oii the pending issue based on the February 6
hearing, the parties' submissions up to that time, and defendants' February 9 post-
hearing letter.
At the February 6, 2006 hearing the parties made oral presentations and the
defendants submitted cerinin docurnel!!c5, vvhicl~were lnarhed as Defendants' 6r;hibits
1, 1A, IB, lC, and ID and admitted in evidence at the hearing. Both parties waived the
right to offer further evidence.
Based on defendants' October 31, 2005 communications to several former clients,
defendants' November 8, 2005 and February 3, 2006 letters to the Biddeford, York, and
Springvale District Courts, the timing of those letters, the presentations of the parties,
and the prior evidence admitted at h a l l the court concludes as set forth on the record
on February 6, 2006 that defendants have interfered with plaintiffs' ability to collect
certain client accounts. According to the court's October 28, 2005 oral findings and the
, ,judgment dated October 31, 2005 and filed November 1, 2005, those
court's declaratorv L,
client accounts were owed to plaintiffs. The potential amount affected as shown on
defendants' Exhibit 1D is $16,288.95.
The October 31, 2005 communications to former clients, which are contained in
defendants' Exhibit ID, are misleading in that they state that the client balances in
question had been "written off by our f i l m " at a time when the court had just ruled that
clients did not have any balance due to dcfendants' firm. That balances originally owed
to Nadeau & McGarry were now being "~vrittenoff" by Nadeau & Associates was likely
to mislead the former clients into believing their debt had been entirely discharged. As
of the dates defendants sent the C)ci(jl?er 31 and November 8 letters, Nadeau &
Associates had no right to the balances in question and was not entitled to communicate
with either the former clients or the district court in a manner that purported to dispose
of those rights.
Indeed, plaintiffs argued at the February 6 hearing that the defendants'
November 8 letters to various district c(!urt clerks may not only have interfered wikh
plaintiffs' right to collect the client acccv.rnts in question but may have terniinated any
right to collect those accounts. The letters in question advised the court that the
judgments in question had been "satisfied." Although this was incorrect and
unauthorized, the legal effect of thosc letters is unclear. Specifically, it is not clear
whether - given the unauthorized and illegibmate nature of those letters - they should
have the legal effect of irrevocably discharging the underlying obligations. In this
connection, defendants have belatedly sent subsequent letters to the court clerks in
question stating that their Novernber 8, 2005 letters should be disregarded.' Moreover,
according to defendants' February 9 letter, none of the district courts have taken action
based on the defendants' November 8 letter and the cases in question remain pending.
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At this point, whether the plaintiffs can seek to collect from the clients in
question is unknown and whether those clients might seek to raise the November 8
letters as a defense to any collection efforts and whether they ~vouldbe successful if
they did so is also unknown. Ultimately, the effect of defendants' November 8 letters is
a matter that may have to be resolved bv the courts i n wliicl~those cases are pending. If
plaintiffs decide to pursue these accounts, i t is highly likely that resolution of this issue
will require plaintiffs to expend effort and expense that wot11d have been unnecessary
but for defendants' actions. It is also j~oss~ble
that defendants' actions have made
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I h ~ s subsequent
7 -
e letters were not sent until thl-cc days prior to the February 6 liear~ng,after defendants
I-iad been rnadr aware by the court's January 23 oriler that t h c ~ rpost-ji~dgmentconduct was going to be
the subject of that hearing.
collection from some or all of these clielli-sprohibitively exyel~siveor impossible, and it
may be that under tlie circumstances pl~intiffswill choose not to pursue these accounts.
At a minimum, therefore, the l\~ovember8 letters to the district court clerks
represented furtlier action by defendants, after their October 31 letters purporting to
write off the balances in question, to frustrate and impede piaintiifs' ability to collect
client accounts that were awarded to them in tlie November 1, 2005 declaratory
judgment. Following the February 6 hearing and based on defendants' October 31 and
November 8 letters, the court concluded that injuiictive relief was warranted pursuant
to 14 M.R.S.A. 5 5960, and it issued a11 order dated February 14, 2006 prohibiting
defendants from interfering directly or indirectly with plaintiffs' ability or efforts to
collect any amounts due to them under the November 1,2005 declaratory judgmei~t.~
Given the bitterness of this litigation, the resentment displayed by defendants
toward plaintiffs, the timing and ~vording of the October 31 and November 8
commun~cations,and the fact that copies of those communications were not sent to
counsel for plaintiffs, the court cannot accept defendants' contentions that their actions
were inadvertent and concludes that defendants' conduct was in fact intended to
impede or frustrate plaintiffs' ability to collect amounts which, under the court's
judgment, were owed to plaintiffs by the clients listed in Exhibit ID.
The remaining question is what zciditional relief, if any, may be awarded to the
plaintiffs. As it expressed at the February 6, 2006 hearing, the court does not believe
that it can award monetary relief, impose a monetary sanction, or award attorneys fees
in the absence of a finding of contempt, even though it has concluded that defendants
took action to subvert the court's declar8torj~
judgment.
According to the docket sheet, this order was d ; ~ t c dFebruary 14,2006 and was filed February 16,2006
but was not docketed until February 22,2006.
Although IvI.R.Civ.P.66 provide:: ihat contempt includcs "failing to comply with
a lawful judgment," it is doubtful that this language would allow a finding of contempt
for conduct that involves undermining the effect of a judgment rather than directly
failing to comply. See M.R.Civ.P. 66(dj(2)(D)(i)(finding of contempt requires that
refusal to perform an act required by co::rt order or performance of an act prohibiled by
court order). Moreover, there is authority suggesting that contempt is not available to
enforce a declaratory judgment. See S t e f f e l v 415 U.S. 452, 471 (1974),
quoting Perez401 U.S. 82, 125 (Brennan, J., concurring).
Although it is troubled, to say the least, by defendants' conduct, the court
concludes that under the circumstances, relief under 14 M.R.S.A. $, 5960 is limited to
injunctive relief enforcing the original declaratory judgment. In the event of any further
subversion or interference by defendants, contempt will be a ~ a i l a b l e This
. ~ order is
without prejudice to plaintiffs' right, if they should so choose, to seek relief for any
losses caused by defendants' October 31 and November 8 letters in a new lawsuit
-
alleging conversion, interference with advantageous relationship, or any similar theory.
The court expresses no view as to the ultimate merits of any such action.
In conclusion, the court hereby orders as follows
1. Defendants sl~allcontinue to be prol~ibitedfrom interfering directly or
indirectly with plaintiffs' abili? or effnrts to collect any amounts due froin plaintiffs'
clients or from any individuals whose obligations or debts were determined to be owed
to plaintiffs' in the court's order dated October 31,2005 and filed November 1, 2005.
2. Although the status of the district court judgments is in dispute,
defendants shall - if requested by plaintiffs - execute assignments of any judgments
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The court understands that wit11 respect to t h e s ~client accounts this may be the equivalent of locking
the barn door after the horse has been stolen but does not believe for the reasons stated that there exists
authority to award monetary relief.
against Joseph Brown, Diane Houde, Kathleen Lashua, Robert LeClerc, Charles Moors,
Christian Proulx, and Cindy Stacy to thc plaintiffs in any form requested by counsel for
plaintiffs.
3. Defendants shaii - if requested by plclintiffs - prepare and send notices to
Joseph Brown, Diane Houde, Kathleen T,;ishua, Robei-t Leclerc, Charles hloors, Christian
Proulx, and Cindy Stacy on the letterhead of Nadeau and Associates stating (I) that the
time Nadeau & Associates sent an October 31, 2005 notice to them stating that their
remaining balance had been written off by Nadeau & Associates, the Superior Court had
ruled that Nadeau & Associates did not have any right to collect those balances and that
the balances were instead owed to the firm of McGarry & Holmes LLC; (2) Nadeau and
Associates has released its claim to their outstanding balance but did not have authority
to release any obligation they had to hlcCarry & Holmes, and (3) their balance remains
owed to McGarry & Holmes and all inquiries should be directed to McGarry & H01mes.~
4. Except to the extent specifically- permitted under paragraph
A - - 3, defendants
shall continue to be prollibited from communicating with any of the individuals to
whom notices were sent after October 28, 2005 stating that their balances had been
written off.
The enkry shall be:
Plaintiffs' March 13, 2006 motion to accept late filing of supplemental
memorandum is denied. Injunctive relief is ordered pursuant to 14 h4.R.S.A 5 5960 as
set forth in numbered paragraphs 1 through 4 above. The clerk is directed to
incorporate this order in the docket by reference pursuant to Rule 79(a).
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At the February 6, 2006 hearing plaintiffs indic<~lcd that they were not inclined to request that such
notices be sent. If they change their mind, they sli~illhave 10 days from the date this order is filed to
notify defendants of that fact. Copies of any notices sent by defendants pursuant to this paragraph shall
be sent to counsel for plaintiffs.
, / . i -.".
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,,.J,. .I
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1 hol-uas D. Warren
Justic2, Supcrior C:~urt
JACK HUNT, ESQ. - PLS
Robert M. A. Nadeau, Esq. - DEFS