The widow of one of six people killed in a Portland apartment building fire in 2014 won her appeal on Tuesday restoring her to the front of the line of the families of victims who are suing the landlord for keeping an unsafe building.

The Maine Supreme Judicial Court ruled in favor of Ashley Summers, who was first to file her $1.7 million claim against landlord Gregory Nisbet, but was subsequently put to the back of the line by a lower court order after the families of the other victims sued too.

Maine has a first-come, first-served law in lawsuits such as the ones against Nisbet, but the legal standing was muddied in this case because the lawsuits were filed in different ways. Summers’ lawyers initially sought an ex-parte attachment against Nisbet’s assets – that is, one that wouldn’t alert Nisbet in advance that the legal action was coming. Then, the families of four other victims sought straight attachments that notified Nisbet up front.

Summers’ husband, Steven Summers, died from injuries he suffered in the fire at 20 Noyes St. on Nov. 1, 2014, Maine’s deadliest in 40 years. Her lawsuit claims Nisbet kept an unsafe building, which she contends led to the fire and her husband’s death, leaving their two young children without a father.

Although one Superior Court judge granted Summers’ ex-parte attachment on Dec. 3, 2014, another judge lifted it to grant all of the parties straight attachments against Nisbet’s assets. The straight attachments were then granted priority under Maine law in the order in which they were filed, putting Summers’ claim behind all of the others.

Summers’ attorney, Thomas Hallett, appealed the ruling of the second judge, Justice Nancy Mills, arguing that she should have placed Summers’ claim first because it was the first to be filed on an ex-parte basis.

The Maine Supreme Judicial Court mostly agreed in its unanimous 6-0 decision written by Justice Ellen Gorman. It dissolved Summers’ ex-parte attachment, as Mills had ruled. But it overruled Mills to allow Summers to retain her priorty standing at the front of the line, substituting a straight attachment in place of the ex-parte attachment without adjusting the timeline.

“We clarify here that the court’s only role should have been to determine whther the Estate of Summers established the elements to obtain and attachment, that is the likelihood of success in a certain amount,” Gorman wrote in the 10-page decision. “Because none of the four Estates challenged the Estate of Summers’s entitlement to an attachment, however, there was nothing for the court to consider on the motions to dissolve the Estate of Summers’s attachment. It was therefore error to dissolve the attachment the Estate of Summers received on an ex parte basis in December and issue a new attachment.”

Hallett said during oral argument in the appeal in April that he acted quickly to file the ex-parte attachment because he believed the evidence would show that Nisbet had not been paying his mortgages on multiple rental properties that he owned and that Nisbet could have sought to shield his money from claimants if Hallett hadn’t filed the ex-parte motion.

Hallett said Tuesday that he was pleased that the court agreed, but it doesn’t change the fact that Nisbet appears to have few assets to satisfy his client’s claim in the lawsuit.

“The impact is to be seen,” Hallett said. “But it is certainly helpful for our client. I’m glad they clarified.”

Nisbet has also been charged criminally in connection with the fire on six manslaughter charges. The criminal case is scheduled for jury selection on Sept. 30 with the trial to follow.

Nisbet, 50, of Portland, has pleaded not guilty. If he is convicted, it would be the first successful prosecution of a landlord in Maine for manslaughter in the death of a tenant because of negligent operation of a building. Manslaughter is punishable by up to 30 years in prison.

The fire killed Summers, 29, of Rockland, Maelisha Jackson, 23, of Topsham, and Chris Conlee, 25, of Portland, who were visiting the house; and David Bragdon Jr., 27, Ashley Thomas, 29, and Nicole Finlay, 26, who lived there.

 


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