# Osborn v. Sullivan > Superior Court of Maine · May 5, 2005 URL: https://www.frixlaw.com/law-library/cases/10808402 ## Case - **Court:** Superior Court of Maine - **Decided:** May 5, 2005 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Thomas E. Delahanty II - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808402 ## Opinion text 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to the defendants the cottage was not ’ The Sullivans also filed a Motion to Dismiss the complaint that has been withdrawn by counsel in light of the amended complaint filed by Osborn.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 Printed on: 05/05/2005 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 Page 2 of 4 Printed on: 05/05/2005 02/18/2005 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 Page 4 of 4 Printed on: 05/05/2005 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808402. Public record. Not legal advice.