STATE OF MAINE SUPERIOR COURT
BUSINESS AND CONSUMER

CUMBERLAND, ss DOCKET NO. 

 

EMILE CLAVET,

Plaintiff
OPPOSITION TO
KEVIN MOTION FOR
ATTACHMENT, ATTACHMENT
ON TRUSTEE PROCESS AND
PRELIMINARY INJUNCTIVE
RELIEF

KEVIN DEAN and CECILE DEAN,
Defendants.

 

 

Kevin Dean?s motion for attachment and attachment on trustee process

should be denied because he has not shown a LIKELIHOOD of success on the

merits in any amount at all, much less in the $1,215,000 amount he seeks. To

the extent his motion purports to seek a preliminary injunction it should be

denied on both procedural and substantive grounds. Procedurally, the motion
fails to suf?ciently bring forward any argument in favor of such relief: there is

no authority set forth for the legal standard that governs the award of such

relief and no argument applying any facts to the relevant legal standard to

warrant the award of relief. That is enough to deny the request. But the

request would also fail substantively on the facts set forth in the record here.

A. Attachment should be denied because Kevin Dean has not shown
any likelihood of success on the merits of his claims and because he
has not shown a likelihood of establishing any damage amount at

all.

The parties agree on the legal standards governing attachment. Mr. Dean

bears the burden of showing he is likely to prevail on the merits of some claim

and that he is likely to prevail in the amount that he claims. (Mot. at 5-6).

Filed Eli-m 





Mr. Dean seeks attachment in the amount of $1,215,000, consisting of 

$650,000, representing half the profit on the sale of two mobile home parks,

one in Unity and one in ?Corinna? (in fact, it is located in Corinth); and 
$565,000, representing half the revenue from the sale of 6 house lots in the
Charity Shores subdivision owned by Quahog Bay LLC. Mr. Dean is not likely

to prove these claims at all, much less in the amounts he alleges.

1. Mr. Fernald was not involved in the mobile-home park deals, and Kevin
Dean has not offered any evidence to the contrary.

Mr. Dean thinks he is entitled to a share of the mobile home park pro?ts
because ?On information and belief,? (Dean Aff. at 1[ 50), he claims Stephen
Fernald brought those deals to an unspeci?ed entity that Kevin and Mr. Clavet
co-own, and Mr. Clavet took that opportunity for himself. (Mot. at 4-5). Neither
Mr. Dean?s Af?davit nor his Memorandum in support of his motion indicates
any information to support his belief. It appears to be simply a ?gment of his
imagination.

As Mr. Clavet explains, he saw the mobile home parks listed for public
auction, and set about to purchase them on behalf of his wife, Jane. (Af?davit
of Emile Clavet, submitted herewith, (?Clavet Alf?) at 1] 22). Mr. Fernald did not
broker that sale or present the opportunity to Mrs. Clavet or Mr. Clavet, much
less to any entity Mr. Dean and Mr. Clavet co-own; Mr. Fernald was not
involved in the transaction in any way. Mr. Fernald did work for the
former owner of those parks as a property manager, (see perhaps that is
the fact that set Mr. Dean?s fancy to ?ight. Who knows. But his claim is a mere

?ight of fancy. No more.

 

2. The Charity Shores subdivision has nothing to do with any jointly

owned businesses, and Mr. Dean?s unsupported claim of sales revenue
Is not proof of damage.

The Charity Shores subdivision is a family project involving land that Mrs.
Clavet?s relatives - the Tondreau family -- have owned for over a century on
Tondreau?s Point in Harpswell. (Id. at 111] 43-45). Mr. Dean and his wife helped
her parents buy out the other Tondreau descendants? interests in the land, and
provided personal funds for subdivision development. Mrs. Clavet?s father, a
long?time landscape architect, did the subdivision planning and contracting.
Emile and Jane Clavet put over $350,000 of personal funds into the project 
to buy out the relatives who wanted to sell, and to ?nance road construction
and site development costs; Jane?s parents contributed the land they owned,
and her father contributed ?sweat equity? by handling all of the subdivision
design and contracting. (Id. at 11 1} 46-50). The plan was the result of a family
meeting involving Emile and Jane, Jane?s parents, and the Tondreau relatives
who sold their interests. (Id. at 46?48). This was a family project on long-time
family-owned land; it never was a business opportunity offered to any entity
Kevin Dean owned or to anyone else outside the family. (Id. at 1] 52).

Kevin and Cecile Dean?s claims have the hallmarks of a post hoc
fabrication. For example, they take something they have heard namely,
something to do with title issues and invent from it a conversation in 2014 in
which Mr. Clavet discusses with them a need to clear title title as part of the
alleged overall planning to do the Charity Shores subdivision together. (Kevin
Dean Aff. at 1 51; Cecile Dean Afffabrication. In fact, in
2014, there were no title issues that needed to be cleared in this transfer
among relatives of property that had been in the Tondreau family for so long,

but in the long-ago history of the family property there is an interesting story

 

about title that Mr. Clavet tells a lot and told to Kevin Dean at some point in
time (Clavet Aff. at 1] 51).

In short, the Charity Shores subdivision is not a project that Kevin Dean
has any rights in; it is not an opportunity that ever was expressly offered to any
entity Kevin Dean co-owns; and it was not developed using any property or
proprietary information belonging to any such entity. (Id. at 1] 52). As for any
misrepresentation?based claims, Kevin Dean has offered no evidence of how he
relied to his detriment in any way on any belief that Mr. Clavet was doing the
Charity Shores subdivision using any such entity, nor how any such reliance
could have been justi?able, given the fact the subdivision land had been in
Mrs. Clavet?s family for over a century, and there never was any opportunity for
Kevin Dean or any jointly-owned entity to participate in the family project in
any way.

Moroever, Kevin Dean has not offered any proof of $565,000 as the measure
of damages even for his unsupported theory of liability. First, he claims six lots
were sold for $1.3 million, but the support he offers is a non-existent ?Exhibit
to his Af?davit. (Kevin Dean Aff. at 1] 52). Second, his damages on the theory
he is putting forth would not be the sale price of the lots, it would be half of
whatever share of the pro?ts any entity he and Mr. Clavet co-owned would
have been entitled to. Mr. Clavet owns only 25% of Quahog Bay LLC. (Clavet
Aff. at 1] 43). Mr. Dean?s claim for $565,000 assumes his entity gets 100% of
the bene?t of the sale of lots and that the bene?t is measured by the revenue
from the sale of subdivision lots, without having to pay any of the acquisition,

development or carrying costs. No law or logic supports either assumption, and

the claim for attachment in any amount fails.


3. Preliminary injunctive relief should be denied because Mr. Dean has
not sufficiently raised the issue for this Court?s consideration.

A party making a motion for relief must ?state with particularity the grounds
therefor? by setting forth the legal authority governing the relief sought and
meritorious argument about why that law entitles the movant to the relief
requested. MR. Civ. P. 85 (3). Here, Mr. Dean does no more than set
forth a bare assertion that he is entitled to injunctive relief; he has not moved
for such relief in accordance with the rules, and the request should be denied
on that basis alone.

In his motion, Mr. Dean does not anywhere even set forth the legal
standards that govern an award of preliminary injunctive relief, and his entire
statement of grounds for relief is a single paragraph of perfunctory statements
that are no more than recitations that various elements of the test for
preliminary injunctive relief are met. (Mot. at 9). For example, the entire
?argument? for ?nding the ?irreparable harm? prong met is as follows: ?Without
injunctive relief, Plaintiff?s wrongful actions will cause irreparable harm to Mr
Dean?s reputation and business interests." Mr. Dean?s burden of proof on
a motion for preliminary injunction indeed on virtually any motion - demands
far more than such perfunctory assertion. His argument is no more detailed
and no stronger than if he had simply offered the Court a single sentence: ?Mr.
Dean is entitled to preliminary injunctive relief.? It was incumbent on him to
offer reasons, and he did not do so.

Both fundamental fairness and wise judicial administration support such a
result here. The Court is entitled to a full adversarial presentation of the issues
raised by any motion. That requires the movant to come forward with

thoroughly developed argument as to why relief is warranted under the law and

 

the facts, so that concrete opposition can be put before the Court, creating a

full record on which the Court can decide. Here, Mr. Dean has chosen tactically .
to keep his powder dry until his reply brief, so that the arguments he should

have presented in his opening brief can be presented to the Court without

response from Mr.Clavet. That is fair neither to the Court nor to Mr. Clavet.

The request for preliminary injunctive relief should be denied on that basis

alone.

C. Preliminary injunctive relief should be denied because Mr. Dean has
not made a showing satisfying any of the four required factors 
much less the clear showing he is required to make on every one of
the four factors.

For the foregoing reasons, the Court should deny the request for preliminary
injunctive relief without reaching the substantive grounds, which were not
briefed or argued in Mr. Dean?s opening memorandum. Mr. Clavet is put in the
highly unfair position of choosing between not offering the Court the
substantial grounds that exist for denying the request on the merits, or
presenting those grounds to the Court, which Mr. Dean will use as an
opportunity to make his opening arguments in reply, with no opportunity for
Mr. Clavet to address them. The Court should strike any reply that addresses

itself to the substantive grounds for preliminary injunctive relief, for failure to

 

argue those grounds in the opening motion. The argument that follows is
made reserving and not waiving Plaintiff?s right to have any such reply
argument struck.

Mr. Dean asks the Court to enjoin Mr. Clavet from (1) continuing to act as
the Stalking Horse bidder in the Getchell Agency bankruptcy; (2) selling any
more lots in the Charity Shores subdivision; and (3) attempting to sell his

interest in Provider Labs to a third party. (Mot. at 9). None of these requests is

warranted.

1. Legal standard for granting a preliminary injunction.

The Law Court has noted that M.R. Civ. P. 65 and Fed. R. Civ. P. 65 are
?functionally identical" when it comes to preliminary injunctions and
temporary restraining orders, and it is therefore appropriate to consider federal
Caselaw and authorities in analyzing requests for such relief. Clark v.
Goodridge, 632 A.2d 125, 127 n.2 (Me. 1993). A preliminary injunction is an
?extraordinary? and ?drastic? remedy that should be "used sparingly and only
in a clear and plain case." LL. Bean, Inc. v. Bank of Am., 630 F. Supp. 2d 83,
86 (D. Me. 2009). To obtain such relief, the movant must carry the burden of
persuasion by a ?clear showing.? Dobson v. Dunlap, 576 F. Supp. 2d. 181, 188
(D. Me. 2008).

For preliminary injunctive relief to be granted, Mr. Dean must
demonstrate that (1) he will suffer irreparable harm without an injunction, (2)
any harm to Mr. Clavet if an injunction is granted is outweighed by the harm to
Mr. Dean if an injunction is not granted, (3) Mr. Dean is likely to succeed on
the merits of the claims supporting his request for injunctive relief, and (4)
the public interest will not be adversely affected by such relief. Ingraham v.
Univ. of Me., 441 A.2d 691, 693 (Me. 1982). The court will not grant an
injunction if the movant cannot make a clear showing on all four
criteria. Bangor Historic Track, Inc. v. Dep't of Agric, Food Rural Res, 2003
ME 140, 1) 10, 837 A.2d 129.

The irreparable harm requirement is satis?ed only where a party does
not have an adequate remedy at law; economic injury standing alone typically
does not constitute irreparable harm and damages typically constitutes an
adequate remedy at law. See, Bangor Baptist Church 1). Dept. of Educ. 85
Cultural Svcs., 576 F. Supp. 1299, 1324 (D. Me. 1983). To be enjoined, conduct

must pose an imminent risk of irreparable harm. Remote or Speculative risks

are not proper grounds for injunctive relief. See, People v. Actavis PLC, 787
F.3d 638, 660 (2d Cir. 2015) (?Irreparable harm is injury that is neither remote
nor Speculative, but actual and imminent? (internal quotation marks omitted);
Pinson v. Pacheco, 397 Fed. Appdx. 488, 492 (10th Cir. 2010) (injury must be
imminent if ?the possibility of future harm is speculative,? irreparable harm is
not established); Scotts Co. v. United Indus. Corp, 315 F.3d 264, 283 (4th Cir.
2002) (?the required irreparable harm must be neither remote nor speculative,
but actual and imminent?).

No preliminary injunction can issue without the moving party giving
security in an amount determined by the Court for payment of costs and
damages to any party ultimately found to have been wrongly enjoined. The
Court can waive posting of security only for good cause shown and reasons
recited in the Court?s order. M. R. Civ. P. 65(0).

2. The request to enjoin the Stalking Horse bid should be denied.

Mr. Dean has not clearly shown a likelihood of proving that the Stalking
Horse bid is a wrong done to him. The Stalking Horse bid was made well after
Mr. Dean and Mr. Clavet had decided to wind up all their joint affairs and
cease doing business with one another; being a Stalking Horse bidder is not an
opportunity they could undertake together. Moreover, Af?liate Funding, in
exchange for full payment of the debt the Getchell Agency owed it, had
committed not to submit any competing plan for the Debtor?s assets; but this is
the entity that allegedly had previously considered an acquisition of the

Getchell Agency, which is the very basis for Mr. Dean?s complaint about the

 

Stalking Horse bid. (Clavet Aff. at 30-31).
The Stalking Horse bid for certain assets of the Getchell Agency is
materially different from any pre-bankruptcy consideration Mr. Clavet and Mr.

Dean ever gave to acquiring the entity itself in its entirety, and Mr. Clavet has

explained many of the material differences in risk in the two different types of
transaction. (Id. at 1 41). Indeed, Mr. Dean?s states only ?[u)pon information
and belief? his core allegation that the Stalking Horse bid is the same plan as
Af?liate Funding?s previous look at acquiring the Getchell Agency (not just
certain of its assets); he does not identify any information on which that claim
is based or why it should be believed. (Kevin Dean Aff. at 1) 43). By contrast,
Mr. Clavet explains in detail why the Stalking Horse bid is materially different,
as well as how it was based on publicly available information, does not make
use of an jointly-owned entity?s property or proprietary information, was not
expressly offered to any jointly-owned entity, and was not an opportunity for
any such entity because the opportunity arose well after Mr. Dean and Mr.
Clavet had decided not to continue to do business together. (Clavet Aff. at

11 4 1?42).

Moreover, Mr. Dean cannot make a clear showing of irreparable injury. If
he were somehow wrongly deprived of sharing some pro?t from the Stalking
Horse bid, that would be the kind of injury quintessentially remediable with
damages. Nor is the injury imminent. At this point it is unknown whether the
Stalking Horse bid will even be the successful bid. (Id. at 11 38).

Finally, to enjoin the Stalking Horse bid is contrary to the public interest.
It intrudes on the orderly disposition of assets in a bankruptcy proceeding
within the exclusive power of the Federal Government. See US. CONST. ArtMoreover the harm to Mr. Dean occurs only if no other
bidder participates in the auction for the Getchhell Agency assets. If the
Stalking Horse bid is not the winning bid, then Mr. Dean has not been harmed
by not being able to bid at the Stalking Horse price. If a higher bid is going to
win, Mr. Dean can be the higher bidder, if he can qualify. Hence, in the only

situation in which Mr. Dean might argue the inunction is needed, the

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Bankruptcy Trustee is most in need of the Stalking Horse bid, as there is no
Other bidder to pay for the Gethchell Agency assets and pay back creditors.

T0 the extent Mr. Dean is claiming irreparable harm to his business
reputation because the Bankruptcy Trustee thinks Mr. Dean is participating in

the Stalking Horse bid (Mot. at 9), the claim based solely on Mr. Dean?s

unfounded ?belief," (Kevin Dean Aff. at 1 43), but even if it were true, it would

be completely within Mr. Dean?s power to avoid that harm by alerting the

Bankruptcy Trustee to the fact that he is not participating. An injunction
would not be necessary to avoid the harm. Indeed, Mr. Dean has ?led a Limited
Objection in the Bankruptcy Court to make his position clear. (Clavet Aff. at 1
39).

3. The request to enjoin the sale of Charity Shores lots should be denied.

For the reasons set forth above, Kevin Dean has not made a clear
showing he is likely to succeed on the merits of his claim that he has any right
to participate in the Tondreau family?s development of the land it has owned for
over a century. Moreover, he cannot show any irreparable harm from the sale
of house lots. If he had a right to any share of the pro?t on the sale of such
lots, he would have an adequate remedy at law by way of damages. Finally, the
injunction he seeks is not possible for Emile Clavet to comply with. Emile
Clavet does not own the lots; Quahog Bay LLC does. Emile Clavet owns only
25% of Quahog Bay if the majority of owners wants to sell a house lot,
Emile Clavet has no voting power to stop them; yet that is what Mr. Dean
would have the Court order Mr. Clavet to do by injunction.

4. The request to enjoin any efforts to ?nd a buyer for Provider Labs
should be denied.

Emile Clavet is not seeking to sell his membership interest in Provider

Labs and does not need to be enjoined from doing so. (Clavet Aff. at 1 28). He

10

has sought an appropriate buyer for Kevin Dean?s interest, because Kevin Dean
expressed interest in selling his membership interest, and Mr. Clavet and Mr.
Varguson (the other owners) were amenable to his selling to an appropriate
buyer. They were not willing to buy those interests from Mr. Dean themselves;
hence the search for a buyer that might be interested. If Kevin Dean is not
interested in selling, he does not have to; and if he is not interested in even
testing the market for interest in his membership interests, he need not even
talk to any potentially interested buyer.

Even if Mr. Clavet were seeking a buyer for his own interest, there would
be no basis for enjoining that search, which is what Mr. Dean asks this Court
to do. It is no breach of the Provider Labs Operating Agreement to seek a buyer
for one?s membership interests. Kevin Dean admits, and the Operating
Agreement he submitted as an Exhibit shows, that the owners of Provider Labs
are free to sell their membership interests, with the consent of the others.
(Dean Ail, Exh. at Art. 1). The fact that Kevin Dean might Wish to
withhold his consent to some hypothetical purchase transaction in the future
would be no reason to enjoin any member from exploring whether there was
any interest in the market for that member?s interest. That is the only way to

?nd out whether there is anything the other owners wish to consent to.

D. Kevin Dean?s entire motion is based on a premise both false and
hypocritical: that Emile Clavet can have no investments
independent of Kevin Dean.

Mr. Clavet is an active and successful entrepreneur and investor. Resentful
of his success, Kevin Dean now tries to paint Mr. Clavet?s investment activity
as something the Court should frown on. Kevin Dean?s memorandum and
accompanying af?davit go on at length about various business activities of Mr.

Clavet?s, many of which are well outside the statute of limitations, (see, 

 

11

Clavet Aff. at 11 18-21, 23?24), and all of which he mentions in an attempt to

I -
Uggest there is something wrong With Mr. Clavet engaging in investment
aCtIVIty independent of Kevin Dean, if it is anything like investment activity he

and Kevin Dean also have engaged in. Hence his claim that Mr. Clavet cannot

help his family develop their century~old land holdings, because such work is

?Within the scope? of jointly-held companies, i.e. it is residential real estate

development. (Kevin Dean Aff. at 1] 52). This premise that Mr. Clavet cannot be

active and successful independent of Mr. Dean is both false and hypocritical.
The parties? LLC Operating Agreements expressly allow them to compete

directly with the LLCs: Member shall be entitled to enter into transactions

that may be considered to be competitive with, or constitute a business
opportunity that may be bene?cial to, the Company, it being expressly
understood that some of the Members may enter into transaction that are
similar to the transactions into which the Company may enter.? (Kevin Dean
Aft, Exh. B, at Art. IV, 

The parties have consistently operated that way. Kevin Dean has engaged in
commercial real estate development independent of Mr. Clavet. (Clavet Aff. at
11 11~17). Kevin Dean has developed residential real estate independent of Mr.
Clavet. (Id. at 1 16). Kevin Dean has invested in Texas oil wells independent of
Mr. Clavet, even though their jointly owned entity, Provider Oil 85 Gas, had
invested in nearby wells, and even though it was Provider Oil 85 Gas?s broker
that brought Mr. Dean the deals he made independently. (Id. at 11 15]. All of
this is not only perfectly allowable for Mr. Dean just as it is for Mr. Clavet, it is
how they have operated for a long time. Mr. Dean?s suggestion otherwise is a
cynical ploy to try to establish a false equivalence between that kind of activity

- both of their having their own investment activity independent of one

another, even if related to their joint work - and the fraud he perpetrated on

12

MF- Clavet with the Marina Companies. That was not engaging in innocent
independent investment activity; it was fraudulent withholding material
information about an opportunity being actively pursued by their jointly-owned 
Marina Companies, at the same time Mr. Dean was negotiating to buy out Mr.
Clavet?s interests in those Companies. That is cheating your partner in the I
bueinss you are currently engaged in together, not engaging in allowable,
independent investment in a related sector.

One decision Mr. Dean made to invest independently of Mr. Clavet has
proved fateful and explains why he perpetrated the fraud with respect to the
Marina Companiesl. Mr. Dean decided to become a marijuana traf?cker with
Brian Billodeau. (Id. at 17). That is relevant to the pending cross-motions in
two ways.

First, Mr. Dean?s need for cash to fund his marijuana activities appears

to have been the motive for him to cheat Mr. Clavet in the Marina Companies
deal, after so many decades of their having worked together. (Id. at Til 2-9).
That background, and the falsity and shifting nature of Mr. Dean?s
explanations for his conduct in connection with that sale are detailed in Mr.
Clavet?s Af?davit accompanying this opposition, as well as in his Af?davit in
support of his own motion for attachment. (Id. at 1111 2-9). Kevin Dean does not
deny - at least not now that he has been caught red-handed - that the Marina
Companies had a purchase and sale agreement in hand for $7 .9 million while
he was negotiating with Mr. Clavet to purchase Mr. Clavet?s interests in those
Companies based on a proposed valuation of the Companies at $2.5 million;
instead, he says now he did not disclose the existence of that agreement
because it was not material he had simply and inexplicably decided to waste
his own time negotiating a sale that would never occur, (Kevin Dean Aff. at 

32) and because, he now claims, he had told Mr. Clavet he had an inquiry

13

from a broker, (id, at 1) 35), but not that he had an actual offer and a draft
Purchase and sale agreement. Later, he hid from Mr. Clavet the additional fact
that the Buyer had sued not only Mr. Dean but also Mr. Clavet, based on

complaints that Mr. Dean pocketed funds he was supposed to transfer to the

buyer (Clavet Aff. at 11?? clearly, he did no because he did not want Mr.

Clavet to ?nd out the details of the purchase. He disclosed that lawsuit to Mr.
Clavet only when he was forced to, because Mr. Clavet?s deposition was
scheduled within days in Texas. And when Mr. Clavet became angry, Mr. Dean
first refused to discuss the details of the sale he had negotiated, then lied

about the purchase price. (Id. at 1) 5). The one thing he never did is make the
incredible claim he is making now in this lawsuit: namely, told you about the
broker inquiry on that deal before I bought your interests.? Quite the contrary.
What Mr. Dean said was: ?All aspects of the sale happened after I bought the
asset from you,? and agreed to all this because I wanted to develop the
property and also continue to employ my sister and brother. After we agreed to
the transaction and closed I began to pursue exactly that.? (Clavet Aff. at 1] 7 81.
Exh. B).

Second, Mr. Dean?s decision to engage in the marijuana business with Brian
Bilodeau appears to have attracted the attention of law enforcement. Federal
agents have raided twenty locations involved in what they describe as an
extensive illegal marijuana traf?cking operation, and have arrested Mr.
Bilodeau and one other individual. (See Aff. of US. DEA Special Agent Michael
Gagnon, submitted contemporaneously herewith). So far.

Mr. Dean and Mr. Bilodeau own and operate together marijuana growing
facilities. It seems likely the federal law enforcement net is closing in on Mr.
Dean and facilities he has ownership and operational participation in. Mr.

Clavet is now even more concerned that Mr. Dean has motives beyond just Mr.

14

 

Cl - . .
avet 8 claims against him, to try to hide or dispose of assets that ultimately
are proceeds of the Marina Companies fraud Mr. Dean perpetrated on him.
(Clavet Aff. at 11] 56-63).
CONCLUSION

Not only should Mr. Dean?s cross motion for attachment and his motion for

preliminary injunction (such as it is) be denied; Mr. Clavet?s motion for
attachment should be granted.

DATED: March 9, 2018

?le



 

Clifford H. Ruprecht, Bar No. 8714

ROACH HEWITT RUPRECHT
SANCHEZ 85 BISCHOFF, RC.
66 Pearl Street, Suite 200
Portland, ME 04101

(207) 747?4870

cruprecht(u 

Attorneys for Emile Clavet

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