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Jim Mitchell & Jed Davis, P.A. v. Lavigne
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 67
Docket:	Fra-00-620
Submitted
on Briefs:	April 24, 2001
Decided:	April 30, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.



								
JIM MITCHELL AND JED DAVIS, P.A. v. BEVERLY A. LAVIGNE


ALEXANDER, J.

	[¶1]  Beverly Lavigne appeals from an ex parte attachment order
entered by the Superior Court (Franklin County, Marden, J.), pursuant to
M.R. Civ. P. 4A.  The attachment, in the amount of $41,745.50, was entered
against Lavigne both individually and in her capacity as Trustee of the Roger
J. Lavigne Revocable Trust.  On appeal, Lavigne contends that the certificate
in support of the ex parte attachment was defective and that the
attachment, as to her, was excessive because a $15,000 mortgage was
available as security for the debt.  See M.R. Civ. P. 4A(c).  Because Lavigne did
not seek dissolution of the ex parte attachment, as was her right pursuant to
M.R. Civ. P. 4A(h), we dismiss the appeal as premature.
I. FACTS
	[¶2]  Lavigne had retained Jim Mitchell & Jed Davis, P.A. to
represent her in litigation involving her administration of the Roger J.
Lavigne Revocable Trust.  That litigation was resolved.  Lavigne disputed the
amount of the attorney fees claimed by Mitchell & Davis.  The matter was
presented to a Fee Arbitration Panel pursuant to M. Bar R. 9.  After an award
by the Fee Arbitration Panel, Mitchell & Davis filed an application to confirm
the award.  	
	[¶3]  Although Lavigne was represented by counsel during some of
the discussion regarding payment of fees, effecting service on Lavigne
proved difficult.  Ultimately, Mitchell & Davis filed a motion for service by
publication, M.R. Civ. P. 4(g), and a separate motion for ex parte attachment. 
M.R. Civ. P. 4A(g).  The motion for ex parte attachment was granted on
November 3, 2000, and separate attachments for $41,745.50 issued against
Lavigne and the Trust.  Five days later, Lavigne filed an objection to the
motion for ex parte attachment.  The record does not indicate that Lavigne
ever sought dissolution of the ex parte attachment pursuant to M.R. Civ. P.
4A(h).  Instead, Lavigne appealed the ex parte attachment order to this
Court.  
II. DISCUSSION
	[¶4]  While orders for attachment or trustee process are
immediately appealable to this Court as exceptions to the final judgment
rule, Liberty v. Liberty, 2001 ME 19, ¶ 10, --- A.2d ---, we have not
addressed appeal of ex parte orders for attachment in situations where a
party has not exercised their right to seek immediate relief from the ex
parte attachment by the trial court.  Pursuant to M.R. Civ. P. 4A(h), a party
objecting to an ex parte attachment has a right to a dissolution hearing
before the trial court on two days' notice, "or on such shorter notice as the
court may prescribe . . . ."  At this hearing, the burden is on the plaintiff to
justify the attachment in the same manner as a plaintiff would have to justify
an attachment sought through the regular notice and hearing process.   See
Plourde v. Plourde, 678 A.2d 1032, 1035 (Me. 1996).
	[¶5]  The dissolution hearing allows a party objecting to an
attachment the opportunity to bring any objections promptly to the
attention of the trial court and to have those objections, and the arguments
regarding the adequacy of the plaintiff's attachment request, addressed by
the trial court.   It would be inconsistent with the doctrines of deferential
review or judicial economy, and any of the exceptions to the final judgment
rule, to permit a direct appeal of an ex parte attachment order to proceed
without the objecting party first having utilized the available opportunity to
secure prompt consideration by the trial court of any objections they may
raise.
	[¶6]  Accordingly, before a party can file an appeal of an ex parte
attachment order, that party must first give the trial court the opportunity
to address the issue through the process afforded by M.R. Civ. P. 4A(h). 
Because Lavigne did not exercise her right to seek a prompt dissolution
hearing in this case, her appeal of the ex parte attachment order is an
interlocutory appeal which must be dismissed.{1}  
	The entry is:
			Appeal dismissed.


For plaintiff: James E. Mitchell, Esq. Jim Michell & Jed Davis, P.A. 86 Winthrop Street Augusta, ME O4330 For defendant: Beverly A. Lavigne P O Box 10 New Sharon, ME 04955
FOOTNOTES******************************** {1} . This case is distinguished from cases where an expedited hearing on an attachment request was held, where the objecting party had the opportunity to present objections to the trial court prior to taking an appeal of the attachment order. See Schneider v. Cooper, 687 A.2d 606, 607-08 (Me. 1996).