The families of six young people who died in a Portland apartment building fire in 2014 are jockeying for legal position to determine who will be first in line to receive money if their lawsuits against the landlord succeed.
The Maine Supreme Judicial Court heard oral arguments Thursday on an appeal by Ashley Summers, the widow of one victim, who was the first to file her claim against landlord Gregory Nisbet, less than three weeks after the deadly fire at 20 Noyes St. on Nov. 1, 2014.
Summers’ attorney, Thomas Hallett, argued in the appeal that Maine has a first-come, first-served law and that Summers’ claim should be given legal priority over the families of the other victims.
Summers’ husband, Steven Summers, died in the fire, 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.
The state’s criminal case against Nisbet on six manslaughter charges is scheduled for jury selection on Sept. 30.
Nisbet, 50, of Portland, has pleaded not guilty. If he is convicted, it would be the first time in Maine that a landlord was successfully prosecuted for manslaughter in the death of a tenant because of negligent operation of the building. Manslaughter is punishable by up to 30 years in prison.
The fire killed Steven 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.
Hallett filed the lawsuit on Summers’ behalf on Nov. 21, 2014, including what is called an ex-parte motion for attachment of Nisbet’s property, asking the court to freeze Nisbet’s assets without giving him advance notice. In a straight motion for attachment, Nisbet would have been notified first.
In December 2014, Superior Court Justice Joyce Wheeler granted Hallett’s motion for ex-parte attachment and froze Nisbet’s assets. But the families of the other victims filed a straight motion for attachment, which was heard by a different Superior Court judge.
The second judge, Justice Nancy Mills, revoked Hallett’s ex-parte attachment and instead granted the families of all the victims straight attachments to Nisbet’s property in February 2015 in the priority that they filed their claims. That reversal gave Thomas’ claim priority over the others, with Summers’ claim behind the others.
Hallett argued in the appeal heard Thursday that Mills should have placed Summers’ claim first because it was the first to be filed as an ex-parte basis.
“Immediately upon retention, we hired a private investigator and we sought to interview witnesses. We did a huge amount of work in the next seven to 10 days,” Hallett said. “We understood the importance, naturally, of getting into court as quickly as we could so we could secure for my client – a widow and her two young children – as much property as we could.”
Hallett said he acted quickly 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.
As Hallett spoke Thursday, Chief Justice Leigh Saufley interjected to say that Summers’ appeal was narrowly focused on the issue of ex-parte motions for attachment versus straight motions. The civil lawsuits all remain pending.
“We’re not here on the merits of the challenge to Mr. Nisbet’s actions. We’re here, as I understand it, entirely as a result of disputes regarding priority over whatever property will be awarded if there is a verdict in their favor,” Saufley said.
Other justices asked Hallett if granting Summers an advantage because she filed first is fair to the families of the other victims.
“It’s the first party that gets to the court,” Hallett said under questioning. “It’s not fair. It doesn’t take into account the equity of the situation.”
Justice Joseph Jabar questioned Hallett in reply: “If you say it’s not fair, why should we condone it?”
“It’s the law, and it’s been the law for a very long time,” Hallett said.
Attorney Michael Martin, who represents Thomas’ estate, argued that Mills got it right when she denied Summers’ ex-parte attachment granted all the attachments in the order they were requested.
The court adjourned Thursday without ruling on Summers’ appeal, and it set no timeline on when it might rule.
This story was updated at 9:30 a.m. on Friday, April 8 to clarify which estates had priority over others as their cases move through the courts.
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