Osborn v. Sullivan

SUPERIOR COURT

STATE OF MAINE STATE OF Maus

Cumberland, SS SUMBERL AND Se Civil Action \y

VLERNCS OFFISE Docket No. RE-05-00

AIS HAY -5 D2 39 bet pe fh ae

ERNEST OSBORN d/b/a

YANKEF DEVELOPMENT CORP.,

Plaintiff and Counterclaim

Defendant

DECISION AND ORDER ON

Vv. MOTION FOR ATTACHMENT

. Sey

PHILIP SULLIVAN and CHERYL f

SULLIVAN,

Defendants and Counterclaim

Plaintiffs JUL 25

I, STATUS OF CASE cm

This case is before the court on a Motion for Attachment by Paul and Cheryl

Sullivan on their counterclaim against plaintiff? The court has reviewed the pleadings

and submissions and heard counsel at oral argument.

Ir, BACKGROUND

Ernest Osborn, entered into a contract during the spring of 2003 with Philip and

Cheryl Sullivan to build a cottage for the defendants on Frye Island. Plaintiff claims

that he performed 98% of the work and furnished all the necessary materials on or

before September 15, 2004, and that the defendants still owe him $30, 927.62.

The Sullivans barred plaintiff from the construction site by a letter dated

September 29, 2004 because the house was not finished.

The defendants filed a counterclaim against Osborn alleging: (I) breach of

contract; (II) breach of the Maine Flome Construction Contracts Act, 10 M.R.S.A. § 1486,

et seq.; (ILL) fraud; and (IV) negligence. According to the defendants the cottage was not

’ The Sullivans also filed a Motion to Dismiss the complaint that has been withdrawn by counsel in light

of the amended complaint filed by Osborn.

Ae

done by the contractually specified deadlines, they had to hire another contractor, and

they had to pay the sub-contractors that Osborn did not; in effect paying twice for some

The Sullivans claim that fixing all the things Osborne did not do will result in an

additional cost of $39,781. Additionally, the Sullivans claim lost rental income in the

amount of $15,000. The defendants filed a motion for attachment in the amount of

$57,000.

The parties disagree as to how much money will be required to complete the

contract. The Sullivans claim it will be more than $39,000 and have found a contractor

who will do it for approximately $46,000.

Osborne claims that the remaining work can done for approximately $6,000 ° and

that he also completed work that was not included in the contract. He also alleges that

it was the Sullivans who first breached the contract in the fall of 2003 when only one-

third of the contractually scheduled payment was paid to Osborn. Osborn also claims

that if the Sullivans did not breach the contract in 2003, then the contract was definitely

breached when the Sullivans kicked him off the worksite in September 2004, well after

the agreed-to date of completion. Osborn also disputes the claim for lost rental income

as he was told this was only going to be a family vacation home * and that loss of rental

income is not a foreseeable damage item.

Ili. DISCUSSION

A party seeking an attachment must demonstrate that it will "more likely than not ,

* See affidavit of Anthony Torra dated April 19, 2005.

° Affidavit of Ernest C. Osborn dated April 4, 2005, exhibit A attached.

* Affidavit of Ernest C. Osborn dated April 4, 2005, ¢ 8.

'

. . recover judgment, including interest and costs, in an amount equal to or greater than

the aggregate sum of the attachment and any liability i insurance” available. M.R.Civ.P.

-4A(0). Under this standard, the “moving party must show a a ‘greater than 50% chance of

prevailing." MR.CivP. 4A, Advisory Committee's Note, Feb. 15, 1992, amendment.

The court must find that the moving party will succeed by a preponderance of the

evidence. Jacques v. Brown, 609 A.2d 290, 292, n.3 (Me 1992), see also Wilson v. DelPapa,

634 A.2d 1252, 1254 (Me. 1993) (trial court assigns weight to evidence in affidavits to

determine plaintiff's likelihood of success). M.R.Civ.P. 4A(c) requires that parties

seeking an attachment show not only that they are reasonably likely to recover a

judgment from the defendant, but also that they are reasonably likely to recover a

judgment in an amount at least equaling the amount of the requested attachment.

Jacques, 609 A.2d at 292, n.3. See Atlantic Heating Co., Inc. v. Lavin, 572 A.2d 478, 479

(Me. 1990) (affidavits lacking specific facts are inadequate to support attachment).

The court has examined the record and affidavits and finds, at best, that the

evidence is in balance. Itis not clear that the defendants / counterclaim plaintiffs are

more likely than not to succeed on the merits.

IV. ORDER

The clerk will make the following entry as the Decision and Order of the court:

1. Defendants’ Motion to Dismiss is withdrawn, no Order is required.

2. Counterclaim plaintiffs’ Motion for Attachrnent is denied.

SO ORDERED.

Dated: May 5, 2005 ee

ERNEST CSBORNE D/B/A YANKEE DEVELOPMENT CORP - PLAINTIFF SUPERICR COURT

CUMBERLAND, ss.

Attorney for: ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT Docket No PORSC-RE-2005-00004

CORPENCE SAWYER - RETAINED 01/11/2005

SAWYER SAWYER & MINOTT PA

PO BOX 1177 DOCKET RECORD

WINDHAM ME 04062

VS

PHILIP G SULLIVAN - DEFENDANT

Attorney for: PHILIP G SULLIVAN

DEBORAH MANN - RETAINED 02/09/2005

JENSEN BAIRD ET AL

10 FREE STREET

PO BOX 4510

PORTLAND ME 04112

Attorney for: PHILIP G SULLIVAN

MARCIA G CORRADINI - RETAINED 02/09/2005

JENSEN BAIRD ET AL

10 FREE STREET

PO BOX 4510

PORTLAND ME 04112

CHERYL A SULLIVAN - DEFENDANT

Attorney for: CHERYL A SULLIVAN

DEBORAH MANN - RETAINED 02/09/2005

JENSEN BAIRD ET AL

10 FREE STREET

PO BOX 4510

PORTLAND ME 04112

Attorney for: CHERYL A SULLIVAN

MARCIA G CORRADINI - RETAINED 02/09/2005

JENSEN BAIRD ET AL

10 FREE STREET

PO BOX 45190

PORTLAND ME 04112

Filing Document: COMPLAINT

Filing Date: 01/11/2005

Minor Case Type: MECHANICS LIENS

Docket Events:

01/11/2005 FILING DOCUMENT - COMPLAINT FILED ON 01/11/2005

SUMMARY SHEET FILED ON MARCH 11, 2005. AD

01/11/2005 Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

ATTORNEY - RETAINED ENTERED ON 01/11/2005

Plaintiff's Attorney: LAWRENCE SAWYER

01/12/2005 CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 01/12/2005

COPY FILED

Page 1 of 4

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PORSC-RE-2005-00004

DOCKET RECORD

02/07/2005 Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS/SERVICE - PROOF OF SERVICE FILED ON 02/07/2005

02/07/2005 Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS/SERVICE - PROOF OF SERVICE SERVED ON 01/25/2005

UPON CHERYL A, SULLIVAN BY DELIVERING TO PHILIP SULLIVAN, HUSBAND AT 200 RED CEDAR STE 203

BLUFFTON SC 29910. (LJ)

02/07/2005 Party(s): ERNEST CSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS/SERVICE - PROOF OF SERVICE FILED ON 02/07/2005

02/07/2005 Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS /SERVICE ~ PROOF OF SERVICE SERVED ON 01/25/2005

UPON PHILIP G SULLIVAN AT 200 RED CEDAR STE 203 BLUFFTON SC 29910. (LJ)

02/09/2005 Party(s): PHILIP G SULLIVAN,CHERYL A SULLIVAN

MOTION - MOTION TO DISMISS FILED ON 02/09/2005

OF DEFENDANT'S WITH PROPOSED ORDER . GM

02/09/2005 Party(s): PHILIP G SULLIVAN

ATTORNEY - RETAINED ENTERED ON 02/09/2005

Defendant's Attorney: DEBORAH MANN

Party(s}: CHERYL A SULLIVAN

ATTORNEY -~ RETAINED ENTERED ON 02/09/2005

Defendant's Attorney: DEBORAH MANN

02/09/2005 Party(s): PHILIP G SULLIVAN

ATTORNEY - RETAINED ENTERED ON 02/09/2005

Defendant's Attorney: MARCIA G CORRADINI

Party(s): CHERYL A SULLIVAN

ATTORNEY - RETAINED ENTERED ON 02/09/2005

Defendant's Attorney: MARCIA G CORRADINI

02/11/2005 Party{s}: ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON 02/11/2005

OF PLAINTIFF (JBG) .

02/16/2005 Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

MOTION - MOTION TO AMEND PLEADING FILED ON 02/16/2005

WITH MEMORANDUM OF LAW, DRAFT ORDER (GM)

02/16/2005 Party(s}): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUPPLEMENTAL FILING - AMENDED COMPLAINT FILED ON 02/16/2005

WITH EXHIBIT A (GM)

02/18/2005 Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

MOTION - MOTION TO AMEND PLEADING GRANTED ON 02/17/2005

THOMAS E DELAHANTY II, JUSTICE

ANSWER TO BE FILED WITHIN 21 DAYS. 2-18-05 COPY MAILED TO LAWRENCE SAWYER ESQ AND MARCIA

CORRADINI ESOS

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03/02/2005

03/09/2005

03/09/2005

03/09/2005

03/09/2005

03/10/2005

03/11/2005

03/11/2005

03/14/2005

03/17/2005

04/07/2005

04/07/2005

PORSC-RE- 2005-90004

DOCKET RECORD

Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

OTHER FILING - OPPOSING MEMORANDUM FILED ON 02/18/2005

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS (GM)

ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 03/02/2005

THOMAS E DELAHANTY II, JUSTICE

Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS /SERVICE - CIVIL SUMMONS FILED ON 03/09/2005

Party({s}): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 03/01/2005

UPON DEFENDANT CHERYL A. SULLIVAN. (Ld)

Party(s): ERNEST OSBORNE D/5/A YANKEE DEVELOPMENT CORP

SUMMONS/SERVICE - PROOF OF SERVICE FILED ON 03/09/2005

Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

SUMMONS /SERVICE - PROOF OF SERVICE SERVED ON 03/01/2005

UPON DEFENDANT PHILIP G SULLIVAN. (LJ)

Party(s): PHILIP G SULLIVAN, CHERYL A SULLIVAN

RESPONSIVE PLEADING - ANSWER TO AMENDED PLEADING FILED ON 03/10/2005

OF DEFENDANTS WITH COUNTERCLAIM (JBG}.

SHEET FOR COUNTERCLAIM FILED.

3/11/05 SUMMARY

ORDER - SCHEDULING ORDER ENTERED ON 03/11/2005

THOMAS E DELAHANTY II, JUSTICE

DISCOVERY DEADLINE IS NOVEMBER 11,

CORRADINI, LAWRENCE SAWYER, ESOS.

2005. ON 03-11-05 COPIES MAILED TO DEBORAH MANN, MARCIA

DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 11/11/2905

Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

RESPONSIVE PLEADING - REPLY/ANSWER TO COUNTERCLAIM FILED ON 03/14/2005

OF PLAINTIFF ERNEST OSBORN. (LJ}

Party(s}: PHILIP G SULLIVAN, CHERYL A SULLIVAN

MOTION - MODIFY ATTACH/TRUSTEE PROCESS FILED ON 03/17/2005

COUNTERCLAIM PLAINTIFFS, PHILIP G. SULLIVAN AND CHERYL A. SULLIVAN MOTION FOR ATTACHMENT

INCLUDING TRUSTEE PROCESS AND MEMORANDUM OF LAW IN SUPPORT; AFFIDAVIT OF PHILIP SULLIVAN

WITH EXHIBITS A AND 3; REQUEST FOR HEARING ON MOTION; ATTORNEY'S CERTIFICATE OF MARCIA

CORRADINI. AD

Party(s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

OTHER FILING - OPPOSING MEMORANDUM FILED ON 04/07/2005

PLAINTIFF'S MEMORANDUM IN OPPOSITION TC MOTION FOR ATTACHMENT AND TRUSTEE PROCESS. (LH)

Party{s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP

OTHER FILING - AFFIDAVIT FILED ON 04/07/2005

AFFIDAVIT OF ERNEST C OSBORN WITH EXHIBIT A AND B. (LH)

Page 3 of 4 Printed on: 05/05/2005

04/25/2005

04/25/2005

05/05/2005

05/05/2005

A TRUE COP

ATTEST:

PORSC-RE-2005-00004

DOCKET RECORD

Party{s): ERNEST OSBORNE D/B/A YANKEE DEVELOPMENT CORP, PHILIP G SULLIVAN, CHERYL A SULLIVAN

ADR - NOTICE OF ADR PROCESS/NEUTRAL FILED ON 04/25/2005

ADR CONFERENCE SCHEDULED FOR THURSDAY JULY 7, 2005 @ 10:90 AM. (LH)

Party(s): PHILIP G SULLIVAN,CHERYL A SULLIVAN

OTHER FILING - AFFIDAVIT FILED ON 04/25/2005

OF ANTHONY TORRA WITH EXHIBIT A. AD

Party(s): PHILIP G SULLIVAN, CHERYL A SULLIVAN

MOTION - MOTION TO DISMISS WITHDRAWN ON 05/05/2005

THOMAS E DELAHANTY II, JUSTICE

MOTION WITHDRAWN BY COUNSEL IN LIGHT OF AMENDED COMPLAINT. ON 05-05-05 COPIES MAILED TO

RONALD SCHNEIDER, JOHN PATERSON AND PETER THOMPSON, ESQS. AD

Party(s): PHILIP G SULLIVAN, CHERYL A SULLIVAN

MOTION - MODIFY ATTACH/TRUSTEE PROCESS DENIED ON 05/05/2005

THOMAS E DELAHANTY II, JUSTICE

THE CLERK WILL MAKE THE FOLLOWING ENTRY AS THE DECISION AND ORDER OF THE COURT. 1.

DEFENDANTS! MOTION TO DISMISS IS WITHDRAWN, NO ORDER IS REQUIRED. 2.

COUNTERCLAIM

PLAINTIFFS' MOTION FOR ATTACHMENT IS DENIED, ON 05-05-05 COPIES MAILED TO RONALD

SCHNEIDER, JOHN PATERSON AND PETER THOMPSON, ESQS. AD MS. DEBORAH FIRESTONE, GOSS

MIMEOGRAPH, THE DONALD GARBRECHT LAW LIBRARY AND LOISLAW.COM, INC. AD

Clerk

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