MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision:
2019 ME 96
Docket: Yor-18-407
Argued: May 15, 2019
Decided: June 13, 2019
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
FIRST FINANCIAL, INC.
v.
PETER E. MORRISON et al.
PER CURIAM
[¶1] First Financial, Inc., appeals from a judgment of the District Court
(Biddeford, Cantara, J.) denying its motion for relief from judgment after the
court denied its motion to dismiss its foreclosure complaint without prejudice
and granted Peter E. and Judith B. Morrison’s motion for judgment on the
pleadings. First Financial argues, among other things, that it was an abuse of
discretion for the court to deny its motion for relief because the clerk’s office
failed to notify it of the entry of the earlier orders before the time to take an
appeal from those orders expired. For the reasons discussed below, we affirm
the judgment.
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I. CASE HISTORY
[¶2] In September 2017, First Financial filed a foreclosure complaint in
the District Court in Biddeford alleging that Peter and Judith Morrison had
defaulted on a note held by First Financial and secured by the Morrisons’ real
property in Biddeford. The Morrisons filed an answer on the court-approved
answer form in which they denied “at least some of [First Financial]’s
statements in the foreclosure complaint,” asserted all applicable affirmative
defenses, and requested mediation.
[¶3] The case was temporarily transferred to the District Court in
Springvale for the Foreclosure Diversion Program. The notification of the
temporary transfer—signed by a deputy clerk—stated: “All further filings shall
be sent to the SPRINGVALE DISTRICT COURT.” The parties subsequently
participated in two mediation sessions, but were unable to reach a resolution.
At the end of the second mediation session, the parties agreed that the
mediation report would become final and the case would be returned to the
foreclosure docket if neither party requested another mediation session by
April 2, 2018.
[¶4] Neither party requested further mediation, and, on April 9, 2018,
the Morrisons filed a motion for judgment on the pleadings in the District Court
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in Biddeford. See M.R. Civ. P. 12(c). In that motion, they asserted that First
Financial’s notice of default and the right to cure did not comply with the
requirements of 14 M.R.S. § 6111 (2018).
[¶5] On May 2, 2018, First Financial filed a motion to dismiss its
foreclosure complaint without prejudice, also in the District Court in Biddeford.
The court signed an order granting the Morrisons’ motion for judgment on
May 4, 2018, but despite a clerk-created “stamp” that indicated that the order
had been docketed and copies provided to counsel by mail on May 7, 2018, the
order was not docketed until May 18, 2018. In the meantime, First Financial
filed a response in opposition to the Morrisons’ motion for judgment on
May 8, 2018, in the District Court in Biddeford. In its response, First Financial
admitted the defect in its notice of the right to cure, but urged the court to grant
its motion for dismissal without prejudice.
[¶6] Although the docket record and date stamp suggest that First
Financial’s response was untimely, see M.R. Civ. P. 7(c)(2) (dictating that any
opposition to a motion must be filed no later than twenty-one days after the
filing of the motion), the record also contains an email from a clerk at the
District Court in Springvale informing the judge that the response and the
motion to dismiss “were filed prior to the expiration of the response period,
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however, the Springvale office did not know they were filed because they were
filed in Biddeford.”
[¶7] The Morrisons filed a response to First Financial’s motion to dismiss
on May 14, 2018, and asserted that there were no pending claims to dismiss
because the court’s order granting their motion for judgment—which still had
not been docketed at that point—disposed of First Financial’s complaint
entirely. The court summarily denied First Financial’s motion to dismiss. That
order, and the order granting the Morrisons’ motion for judgment were both
docketed on May 18, 2018.
[¶8] On July 11, 2018, First Financial filed in the District Court in
Biddeford a motion for relief from judgment pursuant to M.R. Civ. P. 60(a)
and (b) along with an accompanying affidavit. In its motion, First Financial
argued:
The affidavit in support of this motion submitted herewith sets
forth compelling facts for relief from the judgment if only to allow
for the judgment to be redocketed to allow for the resetting of the
[a]ppeal period.
As is clear from the sworn statement the orders were docketed
May 7 and May 17,[1] however, the Clerk’s Office did not mail the
Judgments issued by the Court until June 27 or June 28, received by
1 The docket record reflects that both orders were actually docketed on May 18, 2018. Part of
First Financial’s confusion likely stemmed from a stamp on the court’s order granting the Morrisons’
motion for judgment that erroneously indicated the order was docketed on May 7, 2018.
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Plaintiff’s Counsel on June 29, a full 52 days following docketing of
the order to Dismiss and 42 days following the order dismissing the
Motion to Dismiss.
In order to do substantial justice, the docket date should be revised.
Pursuant to Rule 60(a) to reset the docketing or the order
dismissing the action originally docketed May 7 [sic].
Assuming Arguendo that this is not a clerical error within the
meaning of Rule 60(a), the movement [sic] prays that the Court
take notice of the prejudice to the Movant which has lost its appeal
rights by excusable neglect by relying upon the Clerk’s usual good
practice and the documented efforts to communicate with the
Clerk’s Office which proved to be inadequate.
The Morrisons filed a timely response, in which they argued that First
Financial’s motion for relief was, in effect, a motion for an extension of time to
file an appeal and that such relief was not available pursuant to M.R. Civ. P. 60.
The court summarily denied First Financial’s motion for relief on
September 12, 2018.
[¶9] First Financial timely appealed from that judgment. See 14 M.R.S.
§ 1901(1) (2018); M.R. App. 2B(c)(1).
II. LEGAL ANALYSIS
[¶10] We begin our analysis by acknowledging that the management of
this case—including the failure to send First Financial copies of the orders from
which it now seeks relief until the very end of June 2018 despite the fact that
those orders were docketed on May 18, 2018—was less than ideal. This delay
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contravened M.R. Civ. P. 77(d), which mandates that “[i]mmediately upon the
entry of an order or judgment the clerk shall serve a notice of the entry in a
manner provided for in Rule 5.”
[¶11] Because the clerk’s office failed to notify First Financial of the entry
of the judgments before the twenty-one day appeal period expired, see
M.R. App. P. 2B(c)(1), the court should have treated First Financial’s motion for
relief pursuant to M.R. Civ. P. 60(a) and (b) as a motion for extension of time to
file a notice of appeal pursuant to M.R. App. P. 2B(d)(2) and allowed First
Financial the opportunity to appeal from the judgments.2 See M.R. App. P.
2(b)(5) advisory notes to 2004 amend., Jan. 2004, Maine Appellate Practice
56-58 (5th ed. 2018) (stating that the purpose of M.R. App. P. 2(b)(5)(B)—now
restyled as M.R. App. P. 2B(d)(2)—is to give courts “some flexibility to mitigate
the potentially harsh [e]ffects of a failure to notify parties of entry of a
judgment”); cf. Cushing v. Cushing, 2016 ME 112, ¶¶ 8-9,
144 A.3d 588.
2 M.R. App. P. 2B(d)(2) states in full:
An extension of the time to file the notice of appeal exceeding 21 days, but not
exceeding 140 days, from the expiration of the original time for filing an appeal
prescribed by Rule 2B(b) or 2B(c) may be granted by the trial court on a motion with
notice only upon a showing that (A) the trial court clerk, although required to do so,
failed to send notice of the entry of judgment to the moving party; and (B) the moving
party did not otherwise learn of the entry of judgment; and (C) any other party will
not be unfairly prejudiced by the extension of time to file the notice of appeal.
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[¶12] Nevertheless, in the particular circumstances of this case, the
court’s error in not extending the time for First Financial to appeal was
harmless because First Financial conceded that its notice of the right to cure did
not comply with the requirements of 14 M.R.S. § 6111. See Greaton v. Greaton,
2012 ME 17, ¶ 7,
36 A.3d 913 (“In appealing a judgment, it is not enough to
challenge procedural errors allegedly made by the trial court without also
showing actual error in the judgment.”); Shaw v. Packard,
2005 ME 122, ¶ 13,
886 A.2d 1287 (“Any alleged error of the trial court that does not affect the
substantial rights of a party is harmless and therefore must be disregarded.”).
[¶13] In its response to the Morrisons’ motion for judgment, First
Financial stated:
[First Financial] admits the technical defect in the notice and the
requirements of the law and has separately moved that the
Complaint be Dismissed Without Prejudice. [First Financial] prays
that such dismissal be granted. [The Morrisons] are seeking a
Dismissal With Prejudice which, under these circumstances, would
be disproportionate.
Contrary to First Financial’s contentions, we have repeatedly held that when a
notice of the right to cure is defective, the mortgagor is entitled to judgment on
the merits. See U.S. Bank Trust, N.A. v. Mackenzie, 2016 ME 149, ¶ 11 n.6,
149 A.3d 267; Wells Fargo Bank, N.A. v. Girouard,
2015 ME 116, ¶¶ 7-11,
123 A.3d 216; see also Bank of Am., N.A. v. Greenleaf,
2014 ME 89, ¶ 18,
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96 A.3d 700 (stating that “evidence of [a] properly served notice of default and
mortgagor’s right to cure in compliance with statutory requirements” is an
essential element to support a judgment of foreclosure). Thus, the court did not
err in granting the Morrisons’ motion for judgment and denying First
Financial’s motion for dismissal without prejudice.3
[¶14] Perhaps recognizing the difficulty of its position, First Financial
raises a number of arguments on appeal regarding the judgments that it did not
raise at the trial court level. It contends that its arguments are not waived
because it “could not bring these issues to the attention of the court prior to
taking this appeal.” That is not accurate; First Financial had notice of the
Morrisons’ motion for judgment on the pleadings and the opportunity to raise
these arguments in its response to that motion. See Guardianship of Jones,
2017 ME 125, ¶ 19,
164 A.3d 969 (“The essence of due process is notice and an
opportunity to be heard.”). Its failure to do so was not precipitated in any way
by actions of the court or the clerk’s office and thus the issues are waived. See
McMahon v. McMahon,
2019 ME 11, ¶ 16,
200 A.3d 789 (“It is a well settled
3We note that although the record is somewhat ambiguous regarding the timeliness of First
Financial’s response to the Morrisons’ motion for judgment, our decision is the same regardless
because “[a] party failing to file a timely memorandum in opposition to a motion shall be deemed to
have waived all objections to the motion.” M.R. Civ. P. 7(c)(3).
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universal rule of appellate procedure that a case will not be reviewed by an
appellate court on a theory different from that on which it was tried in the court
below.”); Teele v. West-Harper, 2017 ME 196, ¶ 11 n.4,
170 A.3d 803 (“[A] party
waives an issue on appeal by failing to raise it in the trial court, even where the
issue relates to a constitutional protection.”).
The entry is:
Judgment affirmed.
John F. Lambert, Jr., Esq. (orally), Lambert Coffin, Portland, for appellant First
Financial, Inc.
Bridget McMahon, Esq. (orally), Legal Services for the Elderly, Scarborough, for
appellees Peter and Judith Morrison
Biddeford District Court docket number RE-2017-67
FOR CLERK REFERENCE ONLY
