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Christensen-Towne v. Dorey
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MAINE SUPREME JUDICIAL COURT				                               Reporter of Decisions
Decision:	 2002 ME 121
Docket:	    Cum-02-73
  on Briefs:	June 27, 2002
Decided:	July 31, 2002

                 LEVY, JJ.

                                        KATHLEEN CHRISTENSEN-TOWNE


                                                      PETER DOREY


	[¶1]  Peter Dorey appeals from the entry of a protection from harassment
order against him in the District Court (Bridgton, Eggert, J.) contending that,
because he received notice only fifty-five minutes before the hearing, the court:
lacked personal jurisdiction over him, abused its discretion in denying his
telephonic request for a continuance, and violated his due process rights. Dorey
also contends that the court erred in issuing the final order.  Although we
conclude that the District Court did have jurisdiction over Dorey, because the
court exceeded the bounds of its discretion in denying his request that the case be
continued, we vacate and remand for a new hearing.

                                                  I. BACKGROUND

	[¶2]  Christensen-Towne filed a complaint for protection from harassment
on December 19, 2001.  The court (Goranites, J.) entered a temporary protection
order on the day the complaint was filed and set a final hearing for "January 3,
2001 @ 9:00 AM."{1}  Dorey did not receive service of the summons and
protection order until 8:05 on the morning of the hearing.  According to Dorey,
when he learned of the hearing, he contacted the clerk at the courthouse by
telephone to request a continuance because he had just received the notice and was
relatively immobile with a broken leg.  Dorey did not appear, and the court
entered an order for protection from harassment.  It treated Dorey's telephonic
request as a motion to continue as evidenced by its written order on the first page
of its protection order that "[Dorey's] request to continue was denied."  On
January 21, 2002, the police officer's return of service was filed along with a
"protection order data collection sheet" containing personal information about
Dorey, including a corrected address.

                                                       II. DISCUSSION

A. Personal Jurisdiction

	[¶3]  Dorey contends that the court lacked personal jurisdiction over him
because it failed to obtain his presence through sufficient process.

	[¶4]  The protection from harassment statute makes special provision for the
commencement of a proceeding by filing an ex parte petition alleging harassment. 
5 M.R.S.A. § 4653 (2002).{2}  The statute requires personal service of the
temporary order, the petition, and the summons.  Id.§ 4654(5) (2002).{3}  The
statute does not require service within a prescribed time period, but requires a full
hearing "[w]ithin 21 days of the filing of a petition." Id.  § 4654(1) (2002).{4}  The
Rules of Civil Procedure provide for the return of service:

Return of Service. The person serving the process shall make
proof of service thereof on the original process or a paper attached
thereto for that purpose, and shall forthwith return it to the plaintiff's
attorney. The plaintiff's attorney shall, within the time during which
the person served must respond to the process, file the proof of
service with the court.

M.R. Civ. P. 4(h).  Nonetheless, "[i]t is the service of the summons, and not the
proof of service, that gives jurisdiction."  1 Field, McKusick & Wroth, Maine
Civil Practice § 4.15 (2d ed. 1970).

	[¶5]  Although not provided with proof of service by the day of the
hearing, the court was aware from Dorey's telephone call that he had received
service.  The proof of service filed with the court after the hearing confirms that
Dorey was served before the hearing took place.  The court had personal
jurisdiction of Dorey.

B. Request for a Continuance

	[¶6]  Dorey contends that the court exceeded the bounds of its discretion in
denying his request for a continuance.  He contends that he presented sufficient
grounds for the court to grant his motion and that the court's exercise of
discretion was prejudicial.
	[¶7]  The Rules of Civil Procedure apply to protection from harassment
claims unless they are inconsistent with the statute.  5 M.R.S.A. § 4658(1) (2002). 
The Rules provide:

A motion for continuance of an action shall be made not less than 4
days before the date set for commencement of trial in the action; but
if the cause or ground of the motion is not then known, the motion
may be made as soon as practicable after the cause or ground
becomes known.

M.R. Civ. P. 40(b).  "An application to the court for an order shall be by motion
which, unless made during a hearing or trial or under Rule 26(g) ["Discovery
Motions"], shall be made in writing . . . ."  M.R. Civ. P. 7(b)(1).

	[¶8]  "A party seeking a continuance has the burden of showing sufficient
grounds for granting the motion, and the ruling of the presiding justice is
reviewable only for abuse of discretion."  Provenzano v. Deloge, 2000 ME 149,
¶ 11, 755 A.2d 549, 551 (internal quotation marks omitted).  The party requesting
the continuance must establish a substantial reason why granting the continuance
would further justice.  Id.  Even in the absence of a formal motion for a
continuance, "the same discretionary principles should apply to a refusal to delay a
proceeding."  State v. Greenwald, 454 A.2d 827, 829 (Me. 1982) (trial court
refused to delay proceedings so defendant could locate a witness).

	[¶9]  We recognize that a telephone call to the clerk's office is not effective
to file a motion for a continuance pursuant to the Maine Rules of Civil Procedure. 
See M.R. Civ. P. 7(b)(1).  Nonetheless, in the specific circumstances of the
present case, the court exceeded the bounds of its discretion in denying Dorey's
request that the hearing be continued because, having been served only fifty-five
minutes before the hearing, Dorey did not receive notice of the petition, the
temporary order, and the date of the full hearing in time to develop any defense,
or even in time to file a proper motion for a continuance.  Cf. Concord Gen. Mut.
Ins. Co. v. Labbe, 401 A.2d 1005, 1007 (Me. 1979) (holding court abused its
discretion in denying continuance when letter announcing hearing was ambiguous
and failed to "give notice of the true nature of the scheduled hearing").  We do
not reach Dorey's other contentions.

	The entry is:

			Judgment vacated and remanded for a new hearing.

For the plaintiff:

Kathleen Christensen-Towne, pro se
Grist Mill Rd. 
Bridgton, Maine 04009

Attorney for the defendant:

Robert M. Neault, Esq.
P.O. Box 1575
Naples, Maine 04055

FOOTNOTES******************************** {1} . Dorey does not suggest that the error in the year stated in the order was prejudicial. {2} . The statute provides, in pertinent part: § 4653. Commencement of proceedings 1. Filing. Any person who has been a victim of harassment . . . may seek relief by filing a sworn petition in an appropriate court alleging that harassment. 5 M.R.S.A. § 4653(1). {3} . The statute provides, in relevant part: "5. Service of order. If the court issues a temporary order . . . the court shall order a law enforcement agency . . . to serve the defendant personally with the order, the petition and the summons." 5 M.R.S.A. § 4654(5). {4} . The statute provides: "1. Full hearing. Within 21 days of the filing of a petition, a hearing shall be held at which the plaintiff shall prove the allegation of harassment by a preponderance of the evidence." 5 M.R.S.A. § 4654(1).