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Dumont v. Fleet Bank
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 197
Docket:	And-00-38
on Briefs:	September 27, 2000
Decided:	November 7, 2000




	[¶1]  Clifford A. Dumont and Mary Ann Dumont appeal from the
Superior Court's (Androscoggin County, Alexander, J.) dismissal on res
judicata grounds of Count I of their amended complaint for breach of
contract against Fleet Bank of Maine, the Superior Court's grant of a
summary judgment (Delahanty, J.) of Count II for abuse of process against
Fleet and Michael S. Haenn, and the dismissal for failure to state a claim
(Delahanty, J.) in Count III of their complaint for a violation of the Maine
Civil Rights Act 5 M.R.S.A. § 4682 (Pamph. 1999) against Fleet and Haenn. 
We affirm.
	[¶2]  In 1987, the Dumonts obtained loans secured by a mortgage on
their residence.  After the Dumonts defaulted on the mortgage, Fleet,
through their attorney Haenn, instituted foreclosure proceedings.{1}  After the
District Court (Waterville, Mead, J.) issued a foreclosure judgment, Fleet
purchased the Dumonts' residence at the foreclosure auction and obtained a
deficiency judgment.
	[¶3]  In 1993, the Dumonts filed a motion to vacate the deficiency
judgment pursuant to M.R. Civ. P. 60(b)(6),{2} contending, inter alia, that Fleet
did not follow the requirements of 14 M.R.S.A. § 6324 (Supp. 1999){3} in
fixing the deficiency.  The District Court agreed and ordered that the
Dumonts be given an opportunity to challenge the amount of the deficiency.{4}
	[¶4]  After a hearing in which the District Court (Waterville, Anderson,
J.) determined the value of the Dumonts' residence at the time of the sale
and reduced the deficiency by $30,000, the Dumonts filed this action
against both Fleet and Haenn for their failure to follow the procedure
established in 14 M.R.S.A. § 6324.  After all three counts were disposed of in
the Superior Court, this appeal followed.
	[¶5]  The Dumonts contend that they did not have an opportunity to
fully litigate the breach of contract claim in the foreclosure action, and the
claim should not be barred by res judicata.  "Claim preclusion bars the
relitigation of a claim 'if:  (1) the same parties or their privies are involved in
both actions; (2) a valid final judgment was entered in the prior action; and
(3) the matters presented for decision in the second action were, or might
have been litigated in the first action.'"  Johnson v. Samson Constr. Corp.,
1997 ME 220, ¶ 6, 704 A.2d 866, 868 (citation omitted).
	[¶6]  The parties stipulated that elements one and two were met;
therefore, we need only determine whether the breach of contract claim
was or might have been litigated in the first action.  "To determine whether
the matters presented for decision in the instant action were or might have
been litigated in the prior action, we examine whether the same cause of
action was before the court in the prior case." Id. (citation and internal
quotations omitted).  We have adopted a transactional test to define the
cause of action:
the measure of a cause of action is the aggregate of connected
operative facts that can be handled together conveniently for
purposes of trial.  A prior judgment bars a later suit arising out
[of] the same aggregate of operative facts even though the second
suit relies on a legal theory not advanced in the first case, seeks
different relief than that sought in the first case, and involves
evidence different from the evidence relevant to the first case.
Id. (citation omitted).  "The effect of the prior decision upon the present
action is a question of law."  Currier v. Cyr, 570 A.2d 1205, 1207-08 (Me.
1990).  We review questions of law de novo.  H.E. Sargent, Inc. v. Town of
Wells, 676 A.2d 920, 923 (Me. 1996) (citation omitted).
	[¶7]  The breach of contract claim arises out of the same "aggregate of
connected operative facts" that were before the court in the rule 60(b)(6)
motion.  The Dumonts' rule 60(b)(6) motion alleges that Fleet "failed to
follow the requirements of 14 M.R.S.A. § 6324 in fixing the deficiency." 
The Dumonts' breach of contract claim states: "Defendant's failure to
observe the requirements of Maine law applicable to foreclosure by civil
action constitutes a breach of the mortgage contract between Plaintiffs and
the Defendant Bank, proximately resulting in substantial damages to
Plaintiffs."  Both claims allege and involve essentially the same facts.  The
major difference between the two claims is the reliance on different legal
theories, and this is not sufficient to establish that the contract claim was
not before the court in the prior case.  See  Beegan v. Schmidt, 451 A.2d
642, 647 (Me. 1982) (finding that res judicata barred the subsequent action
because the "only real difference between the two cases" was the reliance
on different legal theories and the additional factual allegations that were
necessary to show that the plaintiff had a right to rely on that legal theory);
Kradoska v. Kipp, 397 A.2d 562, 567 (Me. 1979) (finding that "[a] plaintiff
will not be permitted to split his cause of action and pursue each aspect of it
in separate lawsuits") (citations omitted).
	[¶8]  The same claim was before the court in the prior action;
therefore, the third requirement of claim preclusion was present.  The
Superior Court correctly barred the Dumonts from litigating the breach of
contract claim.
	[¶9]  Count II of the Dumonts' amended complaint contends that the
filing of the report of public sale by Fleet and Haenn was an abuse of process
because Fleet obtained an excessive deficiency judgment by failing to follow
the procedures in 14 M.R.S.A. § 6324.  The Dumonts contend that the
Superior Court failed to consider all of the facts they submitted, and if all of
the facts had been considered, the summary judgment would not have been
	[¶10]  To review a grant of a summary judgment, we examine "the
evidence in a light most favorable to the nonprevailing party to determine
whether the court committed an error of law."  Gorham Savings Bank v.
Baizley, 1998 ME 9, ¶ 6, 704 A.2d 398, 400 (citation omitted).  "A summary
judgment is proper when the party that bears the burden of proof on an
essential element at trial has presented evidence that, if she presented no
more, would entitle the opposing party to a judgment as a matter of law." 
June Roberts Agency, Inc. v. Venture Properties, Inc., 676 A.2d 46, 48 (Me.
1996) (citation omitted).  "[T]o avoid a judgment as a matter of law at a trial,
a plaintiff must establish a prima facie case for each element of his cause of
action."  Barnes v. Zappia, 658 A.2d 1086, 1089 (Me. 1995) (citation
	[¶11]  The elements necessary to establish an abuse of process are (1)
"the use of process in a manner improper in the regular conduct of the
proceeding" and (2) "the existence of an ulterior motive."  Potter, Prescott,
Jamieson & Nelson, P.A. v. Campbell, 1998 ME 70, ¶ 7, 708 A.2d 283, 286
(citation omitted).
	[¶12]  In opposing Fleet and Haenn's motion for a summary judgment,
the Dumonts did not file a separate statement of material facts or make
proper reference to a statement of material facts as required by M.R.
Civ. P. 7(d)(2).{6} Instead, the Dumonts filed a memorandum and
supplemental memorandum objecting to Fleet and Haenn's motion for a
summary judgment and attaching numerous documents, including: 
depositions, transcripts of hearings, exhibits, orders and interrogatories. 
	[¶13]  "In determining whether to grant or deny a motion for a
summary judgment, the trial court 'is to consider only the portions of the
record referred to, and the material facts set forth, in the Rule 7(d)
statements.'"  Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 8, 742
A.2d 933, 938 (citations omitted).  "The statement of material facts
requirement of Rule 7(d) is designed to force litigants to narrowly frame
their summary judgment contentions, enabling the court to decide a
summary judgment motion without engaging in an exhaustive review of the
record."  Id. (citations omitted).  The Dumonts did not follow the proper
procedure, and their status as pro se litigants does not afford them any
special consideration; therefore, it was appropriate for the Superior Court to
adopt the facts as presented by Fleet and Haenn to determine if there was a
genuine issue of material facts. New England Whitewater Center, Inc. v.
Dep't of Inland Fisheries and Wildlife, 550 A.2d 56, 60 (Me. 1988) (stating
that the Law Court does not afford special consideration to criminal or civil
pro se litigants).  Considering Fleet and Haenn's statement of material facts
in the light most favorable to the Dumonts, there is no genuine issue of
material facts as to whether there was an abuse of process in obtaining the
deficiency judgment.  The motion for summary judgment was properly
	[¶14]  The Dumonts' third count in their amended complaint alleges
that Fleet and Haenn's failure to follow the statutory procedures to obtain
the deficiency judgment constituted an intentional interference with the
Dumonts' rights to due process pursuant to the Maine Constitution, Article
I, Section 6-A,{7} in violation of the Maine Civil Rights Act.{8}  The Superior
Court dismissed the Maine Civil Rights claim pursuant to M.R. Civ.
P. 12(b)(6) for failure to establish a claim on which relief can be granted
because the Dumonts did not allege that Fleet and Haenn "intentionally
exerted or threatened physical force or violence . . . ."  While we find the
Superior Court's reason for dismissing unpersuasive, we agree that the third
count of the Dumonts' claim should be dismissed for failing to establish a
violation of 5 M.R.S.A § 4682.  We conclude as a matter of law that the defect
in the foreclosure action on the facts in this case did not constitute either
the actual or threatened "damage or destruction of property or trespass on
property."  5 M.R.S.A. § 4682.
	The entry is:
			Judgment affirmed.
For plaintiffs: Clifford A. Dumont RR 2 Box 1220 Albion, ME 04910 Attorneys for defendants: Rufus E. Brown, Esq. Brown & Burke P O Box 7530 Portland, ME 0411 (for Fleet Bank) Emily A. Bloch, Esq. Peter J. DeTroy, Esq. Norman, Hanson & DeTroy, LLC P O Box 4600 Portland, ME 04112-460 (for Haenn)
FOOTNOTES******************************** {1} . The Dumonts retained counsel after the foreclosure proceedings were commenced, but counsel withdrew after the Superior Court dismissed Count I. {2} . M.R. Civ. P. 60(b)(6) reads in pertinent part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment. {3} . § 6324. Proceeds of sale After first deducting the expenses incurred in making the sale, the mortgagee shall disburse the remaining proceeds in accordance with the provisions of the judgment. The mortgagee shall file a report of the sale and the disbursement of the proceeds therefrom with the court and shall mail a copy to the mortgagor at the mortgagor's last known address. This report need not be accepted or approved by the court, provided that the mortgagor or any other party in interest may contest the accounting by motion filed within 30 days of receipt of the report, but any such challenge may be for money only and does not affect the title to the real estate purchased by the highest bidder at the public sale. Any deficiency must be assessed against the mortgagor and an execution must be issued by the court therefor. In the event the mortgagee has been the purchaser at the public sale, any deficiency is limited to the difference between the fair market value of the premises at the time of the public sale, as established by an independent appraisal, and the sum due the mortgagee as established by the court with interest plus the expenses incurred in making the sale. 14 M.R.S.A. § 6324. {4} . The District Court found that the report filed by Fleet with the District Court did not indicate that Fleet was the purchaser of the property. In addition, the court found that no independent appraisal had been obtained by Fleet and that "Fleet's estimate of the value was effectively a penalty imposed on the [Dumonts] for refusing to vacate the premises . . . ." {5} . In their appeal from the entry of the summary judgment on the abuse of process claim, the Dumonts also discuss other legal theories, including: fraudulent conveyance; fraudulent misrepresentation; 18 U.S.C.A. § 1341 (mail fraud: Frauds and swindles); and violations of the National Banking Act and the Fair Debt Collection Practices Act. In addition, in the statement of facts, the Dumonts contend that Fleet and Haenn violated 33 M.R.S.A. § 53 (representation of another's credit). These claims were not alleged, nor are they the basis for any of the claims as stated in the Dumonts' amended complaint. We will not consider the merits of these contentions because an issue may not be asserted for the first time on appeal. See Rairdon v. Dwyer, 598 A.2d 444, 445 (Me. 1991). {6} . M.R. Civ. P. 7(d)(2) states: The party opposing a motion for summary judgment shall file with the material required to be filed by subdivision (c) of this rule a separate, short and concise statement of the material facts, supported by appropriate record references, as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party, if supported by appropriate record references, will be deemed to be admitted unless properly controverted by the statement required to be served by the opposing party. {7} . Article 1, § 6-A provides: § 6-A. Discrimination against person prohibited Section 6-A. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof. Me. Const. art. I, § 6-A. {8} . The Maine Civil Rights Act states in pertinent part: Whenever any person, whether or not acting under color of law, intentionally interferes or attempts to intentionally interfere by physical force or violence against a person, damage or destruction of property or trespass on property or by the threat of physical force or violence against a person, damage or destruction of property or trespass on property with the exercise or enjoyment by any other person of rights secured . . . by the Constitution of Maine or laws of the State . . . the person whose exercise or enjoyment of these rights has been interfered with, or attempted to be interfered with, may institute and prosecute in that person's own name and on that person's own behalf a civil action for legal or equitable relief. 5 M.R.S.A. § 4682.