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Hamill v. Bay Bridge Assoc.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 181
Docket:	Cum-97-545
Argued:	April 8, 1998
Decided:	July 22, 1998

Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.




WILLIAM D. HAMILL v. BAY BRIDGE ASSOCIATES et al.

ROBERTS, J.

	[¶1]  Bay Bridge Associates appeals from the judgment entered in the
Superior Court (Cumberland County, Mills, J.) denying its motion pursuant
to M.R. Civ. P. 60 for relief from the judgment entered in favor of William D.
Hamill.  On appeal, Bay Bridge contends that it did not stipulate to a
judgment in Hamill's favor and that the stipulation for and confession of
judgment offered by Hamill and adopted by the court should have been
rejected.  We agree and vacate the judgment.  
I.
	[¶2]  Between 1991 and 1995, the various defendants in this action{1}
executed nine different promissory notes in favor of Hamill.  Bay Bridge
signed the note at issue in this case in December 1995.  The note obligated
Bay Bridge to pay Hamill $614,000 in monthly installments commencing
January 15, 1996.  Michael Liberty signed the note as Bay Bridge's
president.  Bay Bridge asserts that Liberty was not its president at the time
and was not authorized to sign on its behalf.  In May 1996 Bay Bridge and
Hamill entered into an agreement, which was not annexed to the original
note and which the parties mistakenly referred to as an allonge, see 11
M.R.S.A. § 3-1204 comment (1995), that modified the terms of the note. 
The agreement was signed by Christopher Collins, Bay Bridge's current
president.  In a memorandum dated December 24, 1996, the obligors,
including Bay Bridge, acknowledged that they had defaulted on their
respective obligations.  The obligors also agreed to execute a stipulated
judgment in Hamill's favor.  Liberty signed both the memorandum and the
stipulated judgment as Bay Bridge's agent.  Hamill's attorney acknowledged
that before Liberty signed both documents, the attorney had been informed
that Liberty was not an agent of Bay Bridge.  He contends that he
subsequently contacted Liberty and his attorney and inquired whether
Liberty was authorized to sign the stipulation for Bay Bridge.  When Liberty's
attorney failed to respond to his inquiry, he assumed that Liberty was
authorized to sign the stipulation.  
	[¶3]  On May 6, 1997, Hamill filed a complaint in the Superior Court
alleging that Bay Bridge and the other defendants had defaulted on their
loan obligations.  An unsigned copy of the stipulated judgment was attached
to the complaint.  Hamill did not, however, refer to the stipulation in the
complaint itself.  On June 2, 1997, Bay Bridge and the other defendants
filed a joint answer.  The defendants did not refer to the stipulated
judgment or provide any defenses to it in their answer.  They did, however,
assert that Liberty was not authorized to sign the original note.   Three days
later Hamill offered the stipulated judgment and the court adopted it.  On
June 16, 1997, the defendants collectively filed a motion to amend the
judgment pursuant to M.R. Civ. P. 59(a), contending that because the
stipulation had been entered into in December 1996 and provided that
credit be given for amounts paid by the obligors, Hamill was required to
provide evidence of the amounts still owed.  The defendants also
acknowledged that they had executed the stipulated judgment.  On June 27,
1997, Bay Bridge separately filed a motion to vacate the judgment pursuant
to M.R. Civ. P. 60(b)(1), (3), (4), and (6), asserting that Liberty was not
authorized to enter into the stipulation as Bay Bridge's agent.  The court
thereafter denied both motions and this appeal followed.  
II.
	[¶4]  Bay Bridge contends that the court erred by denying its motion
for relief from judgment pursuant to Rule 60(b)(4), which provides that a
court at any time may relieve a party from a judgment when that judgment is
void.  Land Use Regulation Comm'n v. Tuck, 490 A.2d 649, 652 (Me. 1985).
[A] 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.  
Id.  Unlike a motion brought pursuant to the other subsections of Rule 60(b),
a motion for relief pursuant to Rule 60(b)(4) is not subject to the sound
discretion of the trial court.  Id. at 653.  "The challenged judgment is either
valid or void.  If valid, the judgment stands; if void, it must be set aside."  Id. 
	[¶5]  Bay Bridge asserts that the court, by adopting the unauthorized
stipulation as its judgment without providing Bay Bridge with an opportunity
to challenge the validity of the stipulation, violated its right to procedural
due process.  We agree.  "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). 
"Although specific requirements of due process may vary according to
circumstances, at a minimum, notice must be afforded at a meaningful time
in the proceedings."  Michaud v. Mutual Fire, Marine & Inland Ins. Co., 505
A.2d 786, 789-90 (Me. 1986) (citations omitted).  
	[¶6]  Hamill does not disagree that Liberty was not authorized to
confess to a judgment against Bay Bridge.  Nor does he dispute that the
court adopted the stipulated judgment without providing Bay Bridge with
notice or an opportunity to be heard.  Rather, he asserts that Bay Bridge
waived its procedural due process rights.  We disagree.  Bay Bridge did not
know of the existence of the stipulation and therefore did not voluntarily
waive its right to notice and a hearing.  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.  
	[¶7]  Hamill also contends that Bay Bridge's failure to question the
validity of the stipulated judgment in its answer and in its Rule 59 motion
precludes relief from judgment pursuant to Rule 60(b).  Although Rule 60(b)
"presupposes that a party has performed his duty to take legal steps to
protect his own interests in the original litigation," Reville v. Reville, 370
A.2d 249, 254 (Me. 1977), we conclude that contrary to Hamill's assertions,
Bay Bridge took the steps necessary to protect its interests.  Although an
unsigned copy of the stipulated judgment was attached to Hamill's
complaint, he did not allege in the complaint itself that the stipulation had
been executed by the parties.  Bay Bridge's failure to assert in its answer that
Liberty was not authorized to sign the stipulation is therefore
understandable.  Moreover, the collective defendants' Rule 59 motion and
Bay Bridge's Rule 60 motion were filed within days of each other and the
court considered both motions at the same time.  The court was aware that
Bay Bridge contested the validity of the stipulated judgment.  
	[¶8]  Hamill's assertions that Bay Bridge's counsel admitted in the
Rule 59 motion that Bay Bridge had executed the stipulation is also
unconvincing.  Although the defendants in their Rule 59 motion collectively
acknowledged that they had executed the stipulation, it is clear, in light of
its subsequent assertion that Liberty did not act as its agent, that Bay Bridge
did not intend to admit that the stipulation was valid.  See Levinsky's v. Wal-
Mart Stores, Inc., 127 F.3d 122, 134 (1st Cir. 1997) ("To qualify as an
admission ... counsel's statement, when taken in context, must be clear and
unambiguous.").  
	The entry is:  
				Judgment vacated.  Remanded for further
				proceedings consistent with this opinion.

Attorney for plaintiff: F. Bruce Sleeper, Esq., (orally) Jensen, Baird, Gardner & Henry P O Box 4510 Portland, ME 04112 Attorneys for defendants: Timothy H. Norton, Esq., (orally) Richard W. Mulhern, Esq. U. Charles Remmel, II, Esq. Kelly, Remmel & Zimmerman P O Box 597 Portland, ME 04112-0597
FOOTNOTES******************************** {1}. The other defendants in this action are Michael A. Liberty, Liberty Group, Inc., East Machias Limited Partnership, and Mainland Development Company. Only Bay Bridge Associates appeals the trial court's judgment.