Skip Maine state header navigation

Agencies | Online Services | Help
Strout, Payson v. Barker
Download as PDF
Back to the Opinions page

MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 28 
Docket:	Kno-00-418
on Briefs:	January 18, 2001	
Decided:	February 6, 2001




	[¶1]  Edward J. Barker appeals from a judgment entered in the
Superior Court (Knox County, Mead, C.J.) dismissing his appeal of the
District Court's (Rockland, Anderson, J.) judgment granting Strout, Payson,
Pellicani, Hokkanen, Strong & Levine's (Strout & Payson) motion to renew
execution.  Barker contends that the District Court lacked subject matter
jurisdiction to renew the execution and that the Superior Court abused its
discretion in dismissing his appeal on the ground that he failed to provide
an adequate record for appellate review.  Because the available record
demonstrates unequivocally a failure to comply with the statutory
prerequisites for renewal of an execution, we vacate the judgment.
	[¶2]  In March 1989, Strout & Payson obtained a default judgment
against Barker, and the District Court issued a writ of execution on the
judgment in the amount of $1,732.64.  At some undetermined point
following the issuance of the original writ of execution, Barker was disclosed
pursuant to 14 M.R.S.A. § 3122 (1980 & Supp. 2000).{1}  In April 1989,
pursuant to an order following the disclosure hearing, Barker turned over to
Strout & Payson a 1971 MGB GT automobile to be sold pursuant to 14
M.R.S.A. § 3131 (Supp. 2000).{2}   In June 1989, Strout & Payson apparently
sold the MGB for $100 to Island Road Auto.  The record includes neither
the affidavit and report of sale required to be filed by section 3131 nor the
original writ returned to the court.  See 14 M.R.S.A. § 4653 (1980).{3}
	[¶3]  Nearly a decade after the original writ of execution issued,
Strout & Payson filed a motion to renew execution pursuant to section 4653
on the ground that the execution amounts set forth in the 1989 writ
remained unsatisfied.{4}   The District Court (French, J.) granted the motion
to renew on March 22, 1999.  That same day, Barker filed opposition to
renewal of the writ, arguing that the original amount subject to execution
was satisfied in full by Barker's turnover of the MGB.  Because the motion for
renewal was granted prior to the court's receipt of Barker's opposition
motion, the court set the matter for hearing.
	[¶4]  The District Court conducted a hearing on the issue in April
1999.  The hearing was not electronically recorded.  In its order to renew
the writ, the court (Anderson, J.) determined that:
Although it is not clear what amount should be credited
against the sale of the M.G., it is clear that its sale did not
completely satisfy the judgment.  If the issue arises at a
subsequent disclosure, the parties should be better prepared
to prove what the fair value of the automobile was.  This
problem is at least in part caused by the failure of [Strout &
Payson] to follow procedures of 14 M.R.S.A. § 3131.
A renewal writ of execution was then issued to Strout & Payson.
	[¶5]  Barker appealed to the Superior Court the District Court's
order granting renewal.  Because the hearing in the District Court was not
recorded, Barker submitted to the District Court, pursuant to M.R. Civ. P.
76F(c), a statement of the evidence and proceedings.{5}  Strout & Payson filed
objections to Barker's statement.  The District Court refused to approve
Barker's statement or to settle Strout & Payson's amended objections.  In
the Superior Court, Strout & Payson then moved to dismiss Barker's appeal. 
The Superior Court granted the motion, concluding that "[a]s the defendant
has not provided a transcript or record on appeal other than the docket
entries - and the docket entries provide no basis for an appeal - his appeal is
dismissed and the matter remanded to the District Court."  This appeal
	[¶6] "'When a Superior Court acts in an appellate capacity, we
directly review the record of the District Court.'"  Harding v. Wal-Mart
Stores, Inc., 2001 ME 13, ¶ 9, -- A.2d -- (quoting Clum v. Graves, 1999 ME
77, ¶ 9, 729 A.2d 900, 904).  "Subject matter jurisdiction refers to the
'power of a particular court to hear the type of case that is then before it.'" 
Hawley v. Murphy, 1999 ME 127, ¶ 8, 736 A.2d 268, 271 (quoting Wright v.
Dep't of Defense & Veterans Servs., 623 A.2d 1283, 1284 (Me. 1993)).  A
judgment issued by a court lacking subject matter jurisdiction is void.  See
	[¶7]  Pursuant to M.R. Civ. P. 12(h)(3), a party may challenge a
court's subject matter jurisdiction at any time during the proceedings.{6}  See
Hawley, 1999 ME 127, ¶ 8, 736 A.2d at 271 (noting that "an initial failure
to challenge the subject matter jurisdiction of the court that issued the
order does not preclude a party from raising the issue at a later time");
Pederson v. Cole, 501 A.2d 23, 25 n.2 (Me. 1985) (stating that the "defense
of lack of subject-matter jurisdiction may be raised at any time, even sua
sponte by an appellate court").
	[¶8]  Strout & Payson filed its motion for renewal pursuant to
section 4653.  The statute provides that an "alias . . . execution may be
issued within 10 years after the day of the return of the preceding execution
and not afterwards."{7}  Id. (emphasis added.)  There is nothing in the record
establishing Strout & Payson's return of the original writ.  Neither the
presence of the document nor a docket entry indicate its return. 
	[¶9]  The language of section 4653 is clear and unambiguous; a court
may issue an alias execution only after the preceding execution has been
returned.  See also Skolfield v. Skolfield, 90 Me. 571, 572, 38 A. 530, 531
(1897) (stating that "[a]lias executions and writs of possession issue at any
time after former ones have been returned . . .") (emphasis added).{8} 
Accordingly, the return of the original execution is a condition precedent to
the court's issuance of the alias execution.  Although a sheriff executes the
formal return of the writ, Strout & Payson had the burden in the District
Court to establish, prior to renewal, that the original writ had been returned. 
See, e.g., Hilltop Cmty. Sports Ctr., Inc. v. Hoffman, 2000 ME 130, ¶ 15,
755 A.2d 1058, 1061-62 (stating that the plaintiff bears the burden of
establishing proper notification as a condition precedent for obtaining a
deficiency judgment). 
	[¶10]  Renewal of the writ of execution is in the nature of a summary
proceeding.{9}  A "statute authorizing summary proceedings must be strictly
construed, and it is essential to the regularity of the proceeding that there
be complete conformity to that statute in the exercise of the jurisdiction it
confers."  Brennan v. Johnson, 391 A.2d 337, 339 n.1 (Me. 1978) (citing
Karahalies v. Dukais, 108 Me. 527, 530, 81 A. 1011, 1012 (1911)).  See also
Cent. Maine Charter Corp. v. Wright, 412 A.2d 69, 70 (Me. 1980) (noting in
dicta that strict conformity to the statutory language results in a finding that
the District Court lacks the authority to issue a writ of execution before the
expiration of the 24-hour waiting period after a judgment has become final). 
Because Strout & Payson has failed to satisfy the condition precedent to
issuance of the alias execution, the District Court lacked the authority to
issue the renewal writ of execution.     
	The entry is:
Judgment of the Superior Court vacated. 
Remanded to the Superior Court to
remand to the District Court to recall
and void the renewal writ of execution.

Attorney for plaintiff: Robert J. Levine, Esq. Strout & Payson, P.A. P O Box 248 Rockland, ME 04841-0248 Attorney for defendant: David Glasser, Esq. P O Box 1212 Camden, ME 04843
FOOTNOTES******************************** {1} . Section 3122(1) provides, in pertinent part, that a "judgment creditor, for the purpose of determining the ability of the judgment debtor to satisfy the judgment, may subpoena the judgment debtor by disclosure subpoena to appear before a judge of the District Court." {2} . In 1989, section 3131 provided, in pertinent part, that: Where it is shown at a disclosure hearing that the judgment debtor owns personal or real property which is not exempt from attachment and execution, the court shall determine the value of such property and the extent to which such property is exempt from attachment and execution. Upon request of the judgment creditor, the court shall order the judgment debtor to turn over to the judgment creditor in partial or full satisfaction of the judgment and costs such items of nonexempt property, the value of which as so determined is less than or equal to the judgment and costs . . . . The judgment creditor shall sell the property in a commercially reasonable manner within 30 days after the date of said order. The judgment creditor shall remit to the judgment debtor any excess of the proceeds of said sale over the amount of the judgment and costs plus the expenses of the sale and shall file with the court, and mail or deliver to the judgment debtor, an affidavit setting forth the date, place, manner, expenses and proceeds of the sale and reciting that a copy of the affidavit has been mailed or delivered to the judgment debtor. {3} . The file contains a copy of the writ, but with no return or execution indicated. {4} . Section 4653 provides that an "alias or pluries execution may be issued within 10 years after the day of the return of the preceding execution and not afterwards." {5} . Rule 76F(c) provides in relevant part that: In any case in which electronic recording would be routine or has been timely requested under Rule 76H(a) of these rules, if for reasons beyond the control of any party, no recording, or no transcript thereof, was made, or is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection, for use instead of a transcript. This statement shall be served on the appellee within 10 days after an appeal is taken to the Superior Court, and the appellee may serve objections or propose amendments thereto within 10 days after service upon the appellee. Thereupon the statement, with the objections or proposed amendment, shall be submitted to the court for settlement and approval and as settled and approved shall be included in the record on appeal filed with the Superior Court. (Emphasis added.) {6} . The rule provides that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." {7} . See Black's Law Dictionary 71 (6th ed. 1990) (defining an alias execution as "a second writ of execution issued to enforce a judgment that was not fully satisfied by the sheriff acting under the first or original writ"). {8} . Several states have adopted the view that an original writ of execution must be returned prior to the issuance of an alias writ. See, e.g., Vitale v. Hotel California, Inc., 446 A.2d 880, 885 (N.J. Super.), aff'd, 455 A.2d 508 (1982); Richardson v. Rusk, 245 N.W. 770, 772-73 (Iowa 1932); Tedder v. Morrow, 131 So. 387, 389 (Fla. 1930); People of the State of Illinois, For Use, Etc. v. Brayton, 37 Ill. App. 319, 320 (Ill. Ct. App. 1890); Bishop v. Spruance, 4 Del. 114, 115 (1844). See also 33 C.J.S. Executions § 97(b) (1998) (noting that unless a statute otherwise provides, "before an alias . . . writ can be issued, the writ previously issued, with an appropriate return indorsed thereon, must have been returned, the presumption of law being that the judgment was satisfied on the first execution, until the contrary appears by the return of the officer"). {9} . A summary proceeding is: Any proceeding by which a controversy is settled, case disposed of, or trial conducted, in a prompt and simple manner, without the aid of a jury, without presentment or indictment, or in other respects out of the regular course of the common law. In procedure, proceedings are said to be summary when they are short and simple in comparison with regular proceedings, e.g., conciliation or small claims court proceedings as contrasted with usual civil trial. Black's Law Dictionary 1204 (6th ed. 1990).