ESTATE OF ABRAHAM SHAPIRO
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 25
Docket:	Pen-97-397
Argued:	October 9, 1998
Decided:	February 10, 1999

Panel:WATHEN, C.J., and SAUFLEY, ALEXANDER, and CALKINS, JJ.

ESTATE OF ABRAHAM SHAPIRO

SAUFLEY, J.

	[¶1]  Phillip D. Shapero appeals from a judgment entered in the
Penobscot County Probate Court (Woodcock J.) dismissing his claim against
the estate of Abraham Shapiro for failure to file necessary documents in a
timely manner.  Shapero assigns multiple errors to the decision of the
Probate Court, and the personal representative cross-appeals from certain
evidentiary rulings of the court.  Because we conclude that the claim was not
subject to the time constraints applied by the Probate Court, we vacate the
dismissal of Shapero's claim.

I.  Background

	[¶2]  Phillip Shapero is the brother of Abraham Shapiro, who died on
January 5, 1995.{1}  Phillip alleges that in the years prior to Abraham's death,
the brothers engaged in a series of real estate transactions and did so
primarily in the form of a partnership.
	[¶3]  Upon Abraham's death, his surviving spouse, Phyllis Shapiro,
initiated probate proceedings in Penobscot County Probate Court and was
appointed personal representative of the estate.  The first notice to potential
creditors of the estate was published on January 28, 1995.  On May 23,
1995, Phillip's attorney mailed a claim against the estate to the Probate
Court, the personal representative, and the attorney for the personal
representative.  The claim sought "recovery of any property in the estate
belonging to [Phillip] or his share of partnership property."  The personal
representative's attorney received the claim on May 25, 1995, and there is
evidence that the Probate Court received the claim on May 23, 1995.{2}  The
court, however, did not docket the claim, instead mailing it back to Phillip's
attorney because it was not accompanied by the filing fee.  Phillip's attorney
returned the claim with the filing fee, and it was then docketed on May 31,
1995.{3}  
	[¶4]  On August 3, 1995, the personal representative disallowed the
claim.{4}  Phillip's attorney mailed a "Petition to Resolve Disputed Claim" to
the court and to the personal representative's attorney on September 26,
1995.  Again, however, he failed to include the appropriate filing fee with
the petition.  The personal representative's attorney received that petition
on September 27, 1995.  In the absence of the filing fee, however, the
Register of Probate declined to docket the petition.  Thus, there is no
evidence of the date that the court received the petition.  Phillip's attorney
did not return the petition to the court with the filing fee until December 1,
1995. 
	[¶5]  No action was taken on the petition to resolve the disputed claim
until ten months later, when the personal representative filed a motion to
dismiss the petition, alleging that Phillip had failed to comply with the
Probate Code's time constraints.{5}  Specifically, she argued that the court
should dismiss Phillip's claim because both the claim and the petition were
filed late.  After hearing, the Probate Court granted the motion to dismiss,
articulating no basis for the decision.
	[¶6]  What followed was a series of motions filed by Phillip over the
next several months, each urging the court to vacate its dismissal of his
claim.{6}  In addition, Phillip requested findings of fact and conclusions of law
after the decision on each pending motion.  Ultimately, the court denied all
motions without articulating a basis for any denial.{7}  This appeal and cross-
appeal were filed following the entry of denial on the last of the motions.
	[¶7]  Appealing the denial of each of his motions to set aside the
dismissal, as well as the dismissal itself, Phillip presents this Court with
multiple reasons why the dismissal should be vacated.  He argues that:
(1) the Probate Court did not have jurisdiction over his claim; (2) if the
court had jurisdiction, the deadlines set out in sections 3-803(a) and
3-804(3) did not apply to the type of claim he filed; (3) if the deadlines did
apply, he met each of the deadlines; and (4) if the deadlines applied, and he
failed to meet them, his failure to do so was the result of excusable neglect
due to his attorney's alcoholism.{8}
	[¶8]  The personal representative urges this Court not to reach many
of those issues because of Phillip's failure to raise them in his response to
her motion to dismiss, or, at a minimum, in Phillip's first post-dismissal
motion.  Much time and expense could have been saved if Phillip had set out
each of those arguments in his response to the personal representative's
motion to dismiss.  Indeed, the court had the discretion to exercise its
authority and deny the successive motions because of Phillip's failure to
assert the issues in a timely fashion, thereby precluding Phillip's seriatim
filings.{9}  It did not do so.  Instead, the court considered and decided each
motion individually over a period of months, at one point even deferring the
filing of an additional motion until it had ruled on the motions then
pending.{10}  The personal representative does not argue that any of the
motions were filed outside of the time constraints established by Rules 59 or
60.  On this record, we will not set aside the court's decision to entertain
the series of motions on their merits.  See M.R. Civ. P. 1.
	[¶9]  We therefore address the merits of Phillip's arguments and
conclude that while the court correctly exercised its jurisdiction in this
matter, it erred when it treated Phillip's filings as if they presented
"claims" subject to the time constraints of 18-A M.R.S.A. §§ 3-803 and
3-804.  Accordingly, we vacate the dismissal and do not reach the other
issues raised by Phillip's appeal or the personal representative's cross-
appeal.

II.  Jurisdiction

	[¶10]  Because lack of subject matter jurisdiction would be fatal to any
of the Probate Court's holdings, and because such a claim may be raised at
any time during the proceedings, see Guardianship of Gabriel W., 666 A.2d
505, 507 (Me. 1996), we address Phillip's Rule 60(b)(4) motion first.  In
ruling on a Rule 60(b)(4) motion, the "court may relieve a party or the
party's legal representative from a final judgment, order, or proceeding . . .
[when] the judgment is void."  M.R. Civ. P. 60(b)(4).  "[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."  Land Use Regulation Comm'n
v. Tuck, 490 A.2d 649, 652 (Me. 1985).  A motion for relief pursuant to Rule
60(b)(4) is not subject to the discretion of the trial court, rather, the order
is either valid or void.  See Hamill v. Bay Bridge Assocs., 1998 ME 181, ¶ 4,
714 A.2d 829.
	[¶11]  Phillip asserts that because his action to resolve a dispute over
title to property was not a "claim" within the Probate Court's definition, the
court lacked jurisdiction over the claim, thereby rendering any action on the
claim null and void.  See Warren v. Waterville Urban Renewal Auth., 290 A.2d
362, 365 (Me. 1972) (judgments beyond the jurisdiction of the court are
void).  
	[¶12]  The term "claim" has a specific definition within the Probate
Code.  See 18-A M.R.S.A. § 1-201(4) (1998).  By definition a claim "does not
include estate or inheritance taxes, or demands or disputes regarding title
of a decedent or protected person to specific assets alleged to be included
in the estate."  18-A M.R.S.A. § 1-201(4) (emphasis added).  This distinction
is important for purposes of determining the procedures controlling
Phillip's action.  It has no effect, however, on the jurisdiction of the Probate
Court in this matter.  While the court has exclusive jurisdiction over
proceedings to determine how decedents' estates are to be administered,
expended, and distributed, see 18-A M.R.S.A. § 3-105, it also "has
concurrent jurisdiction of any other action or proceeding concerning a
succession or to which an estate . . . may be a party, including actions to
determine title to property alleged to belong to the estate. . . ."  18-A
M.R.S.A. § 3-105 (emphasis added).{11}  Accordingly, the Probate Court had
jurisdiction to entertain Phillip's action to determine title to the disputed
property.

III.  The Dismissal

	[¶13]  Phillip also contends that the court erred by dismissing his
claim for failure to comply with sections 3-803 and 3-804 because his action
was not a "claim" as defined within the Probate Code.  Believing that this
distinction robbed the court of its jurisdiction, Phillip addressed this error
in his Rule 60(b)(4) motion, asserting that the Probate Court lacked subject
matter jurisdiction over the action.  Because the court had subject matter
jurisdiction and the judgment was not void, the motion is more properly
termed a motion for relief from judgment pursuant to Rule 60(b)(1).{12} 
	[¶14]  We review a court's denial of a motion for relief from judgment
for an abuse of discretion.  See Rowland v. Kingman, 1997 ME 80, ¶ 9, 692
A.2d 939.  In order to exercise its discretion, the court must understand the
factors and the law material to its decision, and must weigh the factors
accordingly.  Ordinarily, we defer to the trial court's ability to give weight to
the appropriate factors and will find abuse only where the court makes a
"serious mistake" in weighing those factors.  See West Point-Pepperell, Inc.
v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211 (quoting Coon v.
Grenier, 867 F.2d 73, 78 (1st Cir. 1989) (citations omitted)).  When,
however, the court applies its discretion based on a serious mistake of facts
or law material to the issues before it, it cannot give proper weight to the
factors to be considered, and we will conclude that discretion to have been
abused. 
	[¶15]  The personal representative's motion to dismiss was based
entirely on her allegation that Phillip's claim was barred as untimely. 
Accordingly, whether the court dismissed Phillip's petition for failure to
comply with what it understood to be a mandatory filing deadline or as a
sanction for the late filings, the dismissal had to have been based on the
court's conclusion that Phillip's petition represented a "claim" under
sections 3-803 and 3-804, for purposes of determining the applicable filing
deadlines.  
	[¶16]  Phillip's action disputes the decedent's title to and ownership
of specific assets, an action specifically excluded from the definition of
claim.  Accordingly, because the claim seeks to recover "any property in the
estate belonging to [Phillip] or his share of partnership property," it is not a
"claim" within the definition of section 1-201(4),{13} and the filing
requirements for stating a "claim" are not applicable to Phillip's pleadings. 
	[¶17]  Therefore, the Probate Court erred when it applied 18-A
M.R.S.A. § 3-803(a) and 18-A M.R.S.A. § 3-804(3) to Phillip's action.  The
personal representative does not suggest any other time constraint for
matters related to disputes over title to property, nor did she allege any
prejudice or undue delay in Phillip's filings.  Indeed, the personal
representative did not act to seek dismissal of the filings until ten months
after the final docketing of Phillip's petition to resolve the disputed claim. 
Consequently, the court erred when it barred Phillip's action for failure to
comply with sections 3-803(a) and 3-804(3) and when it denied Phillip's
motion for relief from judgment addressing the court's misunderstanding of
the nature of Phillip's pleadings. 
	The entry is
Judgment of the Probate Court dismissing
Phillip Shapero's action vacated.  Remanded to
the Probate Court for further proceedings
consistent with this opinion.
Attorneys for appellant:

David A. Soley, Esq. (orally)
Todd S. Holbrook, Esq.
Bernstein, Shur, Sawyer & Nelson, P.A.
P O Box 9729
Portland, ME 04104-5029

Attorneys for appellees:

Sumner H. Lipman, Esq., (orally)
Keith R. Varner, Esq.
Lipman & Katz, P.A.
P O Box 1051
Augusata, ME 04332-1051

FOOTNOTES******************************** {1} . The brothers spelled their last names differently. To avoid confusion we refer to Abraham Shapiro as "Abraham" and Phillip Shapero as "Phillip." {2} . Handwritten notations, on the back of the claim mailed to the Probate Court, stated "filed as of 23 May" and "[personal representative] has been notified." {3} . Because the notice to creditors was first published on January 28, 1995, a timely claim must have been presented on or before May 28, 1995. 18-A M.R.S.A. § 3-803(a)(1) provides that: [a]ll claims against a decedent's estate which arose before the death of the decedent, including claims of the State and any subdivision of the State, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following: (1) The time provided by section 3-801, subsection (b) for creditors who are given actual notice, and the time provided in section 3-801, subsection (a) for all creditors barred by publication . . . . 18-A M.R.S.A. § 3-803(a)(1) (1998). Section 3-801(a) provides that "a personal representative upon appointment shall publish a notice to creditors once a week for 2 successive weeks in a newspaper of general circulation . . . notifying the creditors of the estate to present their claims within 4 months after the date of the first publication of the notice or be forever barred." 18-A M.R.S.A. § 3-801(a) (1998). {4} . After disallowance, a claim "is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than 60 days after the mailing of the notice of disallowance . . . ." 18-A M.R.S.A. § 3-806(a) (1998). Moreover, section 3-804(3) provides that "no proceeding thereon may be commenced more than 60 days after the personal representative has mailed a notice of disallowance . . . ." 18-A M.R.S.A. § 8-804(3) (1998). {5} . Sections 3-803 and 3-804, which bar "claims" that do not comply with their requirements, are sometimes referred to as "nonclaim" statutes. {6} . On January 27, 1997, Phillip filed a Rule 59 motion to alter or amend the judgment or, in the alternative, to reconsider the judgment. On the same day, he also filed a Rule 60(b) motion for relief from judgment, asserting that any failure to file was excusable as simply a clerical error or technical deficiency. On May 30, 1997, Phillip filed a Rule 60(a) motion for relief from judgment, asserting that a claim should be docketed when filed, not when the filing fee is paid. On July 11, 1997, Phillip filed a Rule 60(b)(1) and (6) motion for relief from judgment, alleging excusable neglect due to his attorney's alcoholism. Finally, on October 3, 1997, Phillip filed a Rule 60(b)(4) motion for relief from judgment, asserting that his claim was not a "claim" as defined by the Probate Code and therefore was not subject to the nonclaim statutes and that the court lacked jurisdiction to hear the claim. {7} . Phillip filed timely appeals from the original order dismissing his pleadings and the denials of each of his post-dismissal motions. The earlier appeals were stayed pending resolution of the remaining motions. All matters have been consolidated for review here. {8} . Phillip was represented, during the majority of post-dismissal filings and on appeal, by a different attorney. {9} . See Avaunt v. Town of Gray, 634 A.2d 1258, 1260 (Me. 1993) (court did not abuse its discretion when it denied a motion to alter or amend a judgment, based on the moving party's failure to raise issues in a timely fashion). {10} . The court never articulated a reason for denying any of the motions presented to it. We assume from that silence and from the court's continued consideration of the motions, as well as the deferral of at least one motion pending review of those motions not yet acted upon, that the court considered each motion on the merits. {11} . Phillip has filed a similar action in the Superior Court. That action has been stayed pending decision on this matter and a resolution of the applicability of res judicata principles to the Superior Court matter. {12} . A Rule 60(b)(1) motion for relief from judgment cannot be used as a substitute for a direct appeal of the court's decision. See Calaska Partners, L.P. v. Dahl, 676 A.2d 498, 501 (Me. 1996) ("Rule 60(b) is not intended as an alternative method of appeal"). See also Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir. 1997); United States v. 329.73 Acres of Land, 695 F.2d 922, 925-26 (5th Cir. 1983). The trial court should not entertain such a motion where it is simply a substitute for a direct appeal. Here, however, the motion brought to the probate court's attention a fundamental misunderstanding about the nature of Phillip's pleadings. Moreover, because Phillip appealed from the original dismissal of his pleadings, his Rule 60(b) motion did not substitute for that appeal. {13} . See also Estate of Chaney, 439 N.W.2d 764, 772 (Neb. 1989) (action to recover specific trust property is not a claim as defined in the Probate Code and need not be filed as a claim against the estate); Knott v. Vachal, 752 P.2d 39, 40 (Ariz. Ct. App. 1988) (if the claim is that the property held by the estate is not estate property, the statutory claim procedure does not apply); Bradshaw v. McBride, 649 P.2d 74, 77 (Utah 1982) (actions for specific performance are not covered by the nonclaim statute).