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Peoples Heritage v. White
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1997 ME 204
Docket: Cum-97-13
Submitted
on Briefs: September 19, 1997
Decided: October 20, 1997
Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
PEOPLES HERITAGE SAVINGS BANK
v.
PAMELA A. WHITE
ROBERTS, J.
[¶1] Pamela A. White appeals from the judgment of the Superior
Court (Cumberland County, Mills, J.) denying her motion pursuant to M.R.
Civ. P. 60(b) for relief from the default judgment in favor of Peoples Heritage
Savings Bank on its complaint for foreclosure of the mortgage executed by
White and her husband, Philip. White contends that the default judgment is
void for a lack of personal jurisdiction because she was not properly served
with the Bank's complaint. We affirm the judgment.
[¶2] In November 1994 the Bank filed its complaint seeking to
foreclose the mortgage and recover the debt owed by the Whites. Neither of
the Whites responded to the complaint, and the court entered a default
judgment against them. After unsuccessful negotiations concerning the
details of the foreclosure sale and the repayment of the debt, the mortgaged
premises were sold in August 1995. In September 1996 Pamela White filed
a motion for relief from the judgment, accompanied by affidavits by her
husband and a deputy sheriff to show that her copy of the complaint and
summons were handed to her husband at their place of business and he did
not give them to her. White contended that the judgment was void for lack
of personal jurisdiction and that she was entitled to relief pursuant to M.R.
Civ. P. 60(b)(4).
[¶3] The court acknowledged that "the service [of process] was
insufficient based on a technical noncompliance with [M.R. Civ. P. 4(b)(1)]."
The court stated, however, that technical noncompliance does not render
the judgment void "[w]ithout a sufficient showing by [White] that she lacked
notice of the action or that she did not participate in the action." We need
not decide whether White had the burden of proving that she did not have
actual notice of the action because the court also found that she had waived
the insufficiency in the service of process by participating in the action.
[¶4] Moreover, the court's finding is not clearly erroneous. In
opposition to White's Rule 60(b) motion, the Bank submitted an affidavit of
its attorney. The affidavit recites that White's first attorney engaged in out-
of-court settlement negotiations with the Bank that ultimately were
unsuccessful. Thereafter, White's second attorney appeared at an in-
chambers conference with the court concerning the Bank's emergency
motion for the appointment of a receiver. During the conference, the court
encouraged the attorneys to draft an agreed order, and the order entered by
the court recited that it was based on "the consent of the parties." We
express no opinion as to the effect of out-of-court negotiations, but we
conclude White failed to preserve her claim of lack of personal jurisdiction
by appearing at a conference with the court without raising any issues
concerning the initial service of process. See Key Bank of Maine v. Walton,
673 A.2d 701, 703 (Me. 1996). White's argument in her reply brief that the
Bank's affidavit included inadmissible hearsay is raised too late to be
considered on appeal. See Machias Sav. Bank v. Longfellow, 662 A.2d 235,
238 n.5 (Me. 1995).
The entry is:
Judgment affirmed.
Attorneys for plaintiff:
Edward S. MacColl, Esq.
F. Jay Meyer, Esq.
Thompson, McNaboe, Ashley & Bull, LLC, P.A.
P O Box 447
Portland, ME 04112-0447
Attorney for defendant:
Daniel L. Cummings, Esq.
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600
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