ORDER ON DEFEND ANTS MOTION FOR RELIEF FROM
Motion for Relief From Judgment Pursuant to M.R. Civ. P.
60(b) ia before the court, along with Plaintiffs opposition
and Defendant's reply. The court elects to decide the
motion without oral argument See M.R. Civ. P.
Robert McConaghy commenced this action to collect on a
personal guarantee that he claims Defendant Richard Harris
executed and delivered. Plaintiffs Complaint says that he
purchased a $100, 000 bond issued by Batcomb Plantation LLC,
an entity controlled by Defendant and/or members of his
family. Plaintiff says Defendant guaranteed performance and
payment on the bond, and that Plaintiff is due more than $16,
000 in past due interest payments. The alleged guarantee,
titled Personal Guaranty, is attached as Exhibit A-l to the
Complaint, and includes the following provision:
And furthermore, the Guarantor does hereby authorize and
empower any attorney of any court of record of the State of
Maine or elsewhere to appear for and enter judgment against
me, in favor of Robert McConaghy for any sums due under the
Agreement plus interest with costs of suit, release of
errors, without stay of execution, and the Guarantor hereby
waives and releases all benefit and relief from any and all
appraisement, stay or exemption laws of any state now in
force or hereafter to be passed.
Guaranty, Exhibit A-l to Complaint.
did not commence this action by filing a complaint or serving
a summons and complaint, as required by M.R. Civ. P. 3.
Instead, he commenced it by filing a document titled Ex Parte
Motion for Judgment to Enforce Personal Guaranty of Richard
Harris. The first page of the document bears a docket stamp
for May 1, 2017, but the clerk declined to enter the document
on the docket on that date without a complaint and returned
5, 2017, Plaintiff filed a complaint and again filed the Ex
Parte Motion for Judgment, which was stamped and docketed on
that date. The Motion was granted ex parte and the proposed
Judgment was signed by a judge on May 11, 2017. The court
file contains a writ of execution dated May 16, 2017, and
Plaintiff has scheduled a disclosure hearing.
first learned of this action when he was served with a
Motion for Relief from Judgment asserts that the judgment is
void because he was never served with the Complaint or the Ex
Parte Motion for Judgment. Rule 60(b)(4) of the Maine Rules
of Civil Procedure permits a party to move to set aside a
judgment on the ground that the judgment is void.
party may move to set aside a judgment for voidness under
Rule 60(b)(4) if the court which rendered it lacks
jurisdiction of the parties or the subject matter,
adjudicates issues beyond the scope of those submitted for
decision, or acts in a manner inconsistent with due
process." Land Use Regulation Comm'n v.
Tuck, 490 A.2d 649, 652 (Me. 1985).
Personal Guaranty in this case authorized Plaintiff, through
an attorney, to obtain judgment for the amount due, but it
did not authorize Plaintiff to obtain judgment without
affording the Defendant the right to be heard on the amount
due and, if challenged, the validity of the Personal
Guaranty. "It is essential to a party's right to
procedural due process that he be given notice of and an
opportunity to be heard at any proceeding in which such
property rights are at stake." Senty v. Board of
Osteopathic Examination & Registration, 594 A.2d
1068, 1072 (Me. 1991).
right to procedural due process includes the right to contest
Plaintiffs claim. See Hamill v. Bay Bridge
Associates, 1998 ME 181, ¶¶4-5, 714 A.2d 829
("Because Bay Bridge was not given the opportunity to
challenge the validity of the stipulation before it was
adopted by the court, its right to procedural due process was
denied and the resulting judgment is void"). Indeed, the
Defendant's Motion for Relief asserts that the obligation
secured by the Personal Guaranty has been satisfied, meaning
nothing is due under the Personal Guaranty.
is no authority in the Maine Rules of Civil Procedure and
applicable statutes for a motions for entry of judgment to be
filed ex parte, and indeed ...