Green Tree Financial Corp. v. Patten

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 42
Docket:	And-99-26
Argued:	October 4, 1999
Decided:	March 3, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.
Concurring:DANA, and SAUFLEY, JJ.

GREEN TREE FINANCIAL CORP.

v.

JEANNINE L. PATTEN et al.

CLIFFORD, J

	[¶1]  Green Tree Financial Corporation appeals from a judgment
entered in the District Court (Lewiston, Beliveau, J.) on a foreclosure action
brought by Green Tree against Jeannine and Arthur Patten.  The District
Court's judgment estopped Green Tree from proceeding with the
foreclosure against the Pattens based on their failure to make mortgage
payments.  It also estopped Green Tree from requiring that the Pattens
make monthly mortgage payments owed to Green Tree that have or will
become due after Jeannine became physically disabled in 1995.  Finally, the
court concluded that Green Tree violated the provisions of the Maine
Consumer Credit Code-Truth-in-Lending Act, entitling the Pattens to a
$4000 setoff against any future payments that become due and payable to
Green Tree.  Green Tree contends that the trial court made several
substantive evidentiary and procedural errors in its decision.  We do not
reach those contentions, however, because Green Tree failed to perfect its
appeal in a timely manner pursuant to M.R. Civ. P. 73(a).  Accordingly, we
dismiss the appeal.
	[¶2]  In 1994, the Pattens purchased land and a mobile home in
Sabattus, Maine.  To finance the purchase, they executed a mortgage, a
promissory note, and a security agreement in favor of Green Tree.  The
disclosure statement provided at the closing indicated that credit life and
credit disability insurance were not required and would not be provided
unless the Pattens indicated in writing that they desired the coverage and
that they agreed to pay the additional cost.  Neither Patten signed to
indicate that they desired insurance.  The Pattens, however, did sign a
separate document entitled "Election for Voluntary Lifeline Protection"
indicating that they wanted joint credit life insurance.{1}  Jeannine later
received documentation indicating that she was in fact covered by credit life
insurance, but she canceled the life insurance policy because it did not
provide coverage for Arthur.  She did not receive any documentation
indicating that she was covered by credit disability insurance.
	[¶3]  The Pattens made regular monthly payments on their obligation. 
On January 10, 1995, Jeannine was seriously injured in a car accident.  She
could not return to work and now collects social security payments as a
result of her disability.  Jeannine notified Green Tree of her disability, but
Green Tree informed her that she was not covered by disability insurance
and was liable for each monthly payment.
	[¶4]  The Pattens continued to make monthly mortgage payments
through March of 1996.  After the Pattens failed to make their April
payment, Green Tree sent them a notice of default and right to cure letter. 
When the Pattens failed to make reinstatement payments on the mortgage,
Green Tree filed a complaint for foreclosure in the District Court.  In their
answer, the Pattens raised the affirmative defenses of promissory and
equitable estoppel.  In addition, on the day of trial, the trial court granted
the Pattens' motion to add a third affirmative defense.  By that defense, the
Pattens alleged that Green Tree had violated the Consumer Credit Code by
failing to disclose the cost of the credit life insurance in the agreement.  See
9-A M.R.S.A. § 8-208 (1997).  The Pattens contended that Green Tree's
violation of the Consumer Credit Code entitled them to a setoff against any
monetary amount that Green Tree might recover from them.
	[¶5]  At trial, Jeannine testified that she was led to believe that credit
disability insurance was included in the agreement, that she believed she
had purchased such insurance at the September 1994 closing, and that she
believed the monthly payments for the insurance were included in the
mortgage payment.
	[¶6]  The trial court issued its decision, styled as "Findings,
Conclusions, and Orders," on December 5, 1997.  It found that "the
testimony of Jeannine Patten [was] credible," and that Jeannine "was led to
believe that during the signing of all of the documents she was covered by
disability insurance."  The trial court concluded that the Pattens had
"sustained their burden of proof by a preponderance of the evidence
concerning both promissory and equitable estoppel," and that Green Tree
was estopped from enforcing the Pattens monthly mortgage payment
obligations as long as Jeannine remains disabled.{2}  The trial court also held
that Green Tree had violated the Consumer Credit Code, and the court
awarded $2000 to each of the Pattens "as the setoff" against any award later
obtained by Green Tree.  Pursuant to provisions of the Consumer Credit
Code, the court also directed that the Pattens attorney submit an affidavit of
attorney fees.{3}  See 9-A M.R.S.A. § 8-208(1)(C) (1997).
	[¶7]  On December 17, 1997, Green Tree filed a notice of appeal, but
that notice specified that the Superior Court was the court to which the
appeal was taken.  Pursuant to the notice of appeal, the case was forwarded
to the Superior Court.  
	[¶8]  On March 16, 1998, Green Tree made a motion in the Superior
Court that the case be remanded to the District Court.  On April 2, 1998, the
Superior Court (Androscoggin County, Delahanty, J.) remanded the case "to
the District Court for entry of final judgment or further proceedings as may
be appropriate."  Because 14 M.R.S.A. § 1901(2)(A) (Supp. 1999) requires
that appeals from judgments in foreclosure actions be taken directly to the
Law Court, the Superior Court has no jurisdiction over such appeals.{4}  See id.
	[¶9]  On April 9, 1998, the trial judge ordered the clerk of the District
Court to enter a final judgment in the case, and the docket reflects the entry
of a final judgment.  On June 17, 1998, Green Tree requested a hearing on
its motion for clarification and amendment of judgment that had been filed
in the District Court on March 19, 1998.  On June 30, the trial court denied
the request because it had already entered a final judgment in the case. 
Green Tree claims that it was only on June 30 that it learned of the April 9,
1998 docket entry.  On August 12, 1998, Green Tree filed a notice of appeal
to the Law Court and a motion for an enlargement of time in which to file an
appeal to the Law Court.
	[¶10]  On December 14, 1998, the trial court granted Green Tree's
motion for an enlargement of time to file an appeal to the Law Court.{5}  Eight
days later, Green Tree filed its final notice of appeal.
	[¶11]  In a foreclosure action, "[a] party must appeal from a District
Court judgment . . . directly to the Supreme Judicial Court within 30 days of
the judgment."  See 14 M.R.S.A. § 1901(2)(A) (Supp. 1999).  "Any such
appeal shall proceed in accordance with the provisions of Rule 73 through
76A of [the Maine Rules of Civil Procedure]."  M.R. Civ. P. 76I.  Rule 73(b)
describes how a party may appeal from a judgment:

Any party may appeal from a judgment by filing a notice of appeal
with the clerk.  The notice of appeal shall specify the parties
taking the appeal and shall designate the judgment or part
thereof appealed from.

M.R. Civ. P. 73(b).  Strict time limits are placed on the parties seeking
appeal:

The time within which an appeal may be taken shall be 30 days
from the entry of the judgment appealed from unless a shorter
time is provided by law, except that:  (1) upon a showing of
excusable neglect the court in any action may extend the time
for filing the notice of appeal not exceeding 30 days from the
expiration of the original time herein prescribed.

M.R. Civ. P.  73(a).
	[¶12]  Green Tree argues that its notice of appeal filed on December
17, 1997, twelve days after the entry of judgment, was effective even though
it directed the appeal to the Superior Court and not to the Law Court.  Green
Tree contends that it filed the notice of appeal within 30 days and that Rule
73(b) does not require Green Tree to state the court to which it is
appealing.
	[¶13]  Statutory construction is an issue of law which this court
reviews de novo.  See Estate of Jacobs, 1998 ME 233, ¶ 4, 719 A.2d 523,
524.  The same is true for construction of the Maine Rules of Civil
Procedure.  See generally McNamara v. Elbthal, 515 A.2d 747, 748 (Me.
1986).
	[¶14]  Rule 73(b) does not explicitly provide that the name of the
court to which an appeal is taken be included in the notice of appeal.  When
the notice of appeal contains the name of the wrong court, however,
resulting in the appeal being forwarded to the wrong court, the appeal
period is not tolled.  The purpose of Rule 73 is to cause judgments to
become final and to allow execution and other enforcement of those
judgments "within a brief, fixed time period after their entry."  See Town of
S. Berwick Planning Bd. v. Maineland, Inc., 409 A.2d 688, 690 (Me. 1980). 
This is especially true in foreclosure proceedings where the legislature
sought to avoid delay by "providing for a direct appeal to the Law Court." 
See McNamara, 515 A.2d at 749.
	[¶15]  The District Court entered its judgment on December 5, 1997. 
On March 19, 1998, Green Tree filed a motion for clarification and
amendment of judgment in the District Court.  In its motion, Green Tree
contended that the court's ruling failed to determine whether Green Tree
was "entitled to foreclosure on the property itself while still being
precluded from asserting any claims for repayment of the underlying
obligation."  Green Tree argues that because foreclosure could have been
ordered for failure to make tax and insurance payments, the December 5,
1997 order did not dispose of all possible grounds for foreclosure and
cannot be a final judgment.  Neither the complaint nor the motion for
clarification and amendment, however, raised the issue of nonpayment of
taxes and insurance as grounds for foreclosure.  Furthermore, the focus of
the trial was on the failure to make the mortgage payments, and  Green Tree
presented no evidence of the Pattens' failure to make tax and insurance
payments.  Accordingly, the December 5, 1997 order was the final judgment
in this case.{6}  
	[¶16]  After filing a notice of appeal to the Superior Court on
December 17, 1997, Green Tree did not file an effective notice of appeal
until August 12, 1998.  That notice of appeal was untimely as it was filed
well beyond the 30 day time limit established in 14 M.R.S.A. § 1901(2)(A)
(Supp. 1999).{7}  Nor did the trial court have the authority to grant Green
Tree's motion for enlargement of time to file an appeal to the Law Court that
was also filed on August 12, 1998.  Rule 73(a) provides that "upon a showing
of excusable neglect, the court . . . may extend the time for filing the notice
of appeal not exceeding 30 days from the expiration of the original time
herein prescribed."  M.R. Civ. P.  73(a) (emphasis added).  We have held that
Rule 73(a) provides the exclusive mechanism for enlarging the time to file a
notice of appeal, thereby prohibiting further extensions pursuant to M.R. Civ.
P. 6(b).  See Lussier v. Oxford Dev. Assocs., 1997 ME 117, ¶ 5, 695 A.2d
1188, 1189-90.  Because the motion for enlargement was filed more than
60 days after the entry of final judgment, the District Court erred in
granting the extension.  See M.R. Civ. P. 73(a).{8}  
	[¶17]  To allow Green Tree's appeal to this Court, the notice of which
was filed eight months following the entry of judgment, and four months
following the additional entry of judgment made at the court's direction,
would frustrate the legislative intent of avoiding delay in reviewing
foreclosure judgments.  See 14 M.R.S.A. § 1901(2)(A) (Supp. 1999). 
Accordingly, the appeal of Green Tree must be dismissed.
	The entry is:
			Appeal dismissed.
SAUFLEY, J., with whom Dana J., joins, concurring.

	[¶18]  I concur in the judgment of the Court, but disagree with the
Court's conclusion that the failure to recite the correct court to which the
appeal is taken renders a notice of appeal a nullity.  Thus, I write separately.
	[¶19]  After considerable procedural confusion, and after remand from
the Superior Court, the District Court directed entry on the docket that
judgment was "final" on April 9, 1998.  Therefore, regardless of the nature
of the previous actions of the court, the appeal period again began to run
from the date of that entry of judgment, and Greentree was obliged to file its
appeal within thirty days of the entry of final judgment in order to comply
with M.R. Civ. P. 73(a).  Because it failed to do so, Greentree's appeal must
be dismissed.  Thus, I agree with the Court's result.
	[¶20]  The Court, however, has addressed itself to the notice of appeal
filed December 17, 1997, appealing the December 5, 1997, judgment, and
has determined that the December appeal was ineffective because it
incorrectly identified the Superior Court as the court of appeal.  I would
conclude that the filing of a notice of appeal, even when the notice
references the wrong forum to which the appeal will be taken, is sufficient
to meet the requirements of Rule 73(b).{9}  See M.R. Civ. P. 73(b).  Rule 73 is
quite specific in its requirements, and nothing in those requirements
includes the necessity of specifying the court of appeal.  The rule requires
that the appealing party "shall specify the parties taking the appeal and shall
designate the judgment or part thereof appealed from."  Id.  We have never
required that the court of appeal be expressly designated, nor is designation
required by any rule or law that is applicable here.  Thus, a party who omits
the designation of the court of appeal violates no rule or law.  Similarly, an
incorrect designation does not constitute a failure to comply with any rule or
law.  Nonetheless, the Court has concluded that a notice of appeal that does
not contain a designation of the appellate court is sufficient, but a notice of
appeal identifying the wrong court is a nullity.
	[¶21]  I do not disagree with the Court's conclusion that the rules
governing the taking of appeals are designed to allow judgments to become
final and to allow enforcement within "a brief, fixed time period."  See
Town of S. Berwick Planning Bd. v. Maineland, Inc., 409 A.2d 688, 690 (Me.
1980).  Nor do I dispute the need for clarity and finality in the process.  I
would conclude, however, that when a party files a notice of appeal in the
correct court of judgment, and the notice contains the information required
by the rule, that party has put all other parties and the court on notice that
an appeal will be pursued.  The error in designation of the appellate court
does not negate the notice that the party intends to pursue the appeal. 
Moreover, the error can be corrected with little delay by the clerk's office
or by the receiving court.{10}
	[¶22]  It bears repeating that the rules are intended "to secure the
just, speedy and inexpensive determination of every action."  M.R. Civ. P. 1. 
The Rules of Civil Procedure should be firmly and consistently applied in
pursuit of orderly, predictable litigation.  They should not, however, include
traps for the unwary by which justice can be summarily truncated.  Unless
and until the rules or law are amended, after consideration of all of the
interests involved, I would hold that an appellant's failure to designate the
correct appellate court does not deprive the appellant of the right to have
its appeal heard on the merits.
                                               
Attorneys for plaintiff:

Robert M. Neault, Esq., (orally)
Todd H. Crawford Jr., Esq.
Robert M. Neault & Assoc., P.A.
P O Box 1575
Naples, ME 04055

Attorney for defendants:

Paul C. Fournier, Esq., (orally)
P O Box 1703
Lewiston, ME 04241-1703

FOOTNOTES******************************** {1} . The cost of the premiums for the credit life insurance was not included on the disclosure statement. {2} . Green Tree contends, inter alia, that the testimony of Jeannine, on which the court based its finding of estoppel, should have been excluded pursuant to the parol evidence rule because it contradicted the integrated contract and security agreement. See Handy Boat Serv., Inc. v. Professional Servs., Inc., 1998 ME 134, ¶¶ 10-11, 711 A.2d 1306, 1308-09. Furthermore, Green Tree contends that the court erred by failing to apply a clear and convincing evidence standard of proof to the Pattens estoppel claims. See Littlefield v. Adler, 676 A.2d 940, 942 (Me. 1996). {3} . On January 16, 1998, the trial court further ordered Green Tree to pay $2100 toward the Pattens' attorney fees. {4} . Title 14 M.R.S.A. § 1901(2)(A) (Supp. 1999) provides: "A party must appeal from a District Court judgment in an action of foreclosure and sale directly to the Supreme Judicial Court within 30 days of the judgment." See id. {5} . The trial court also denied Green Tree's motion for clarification and amendment of judgment. {6} . The trial court awarded attorney fees to the Pattens in a January 16, 1998 order. That order does not affect the finality of the December 5, 1997. See M.R. Civ. P. 54(b)(2) (stating that claim for attorney fees does not affect the finality of a judgment unless the court makes an express finding otherwise). {7} . Green Tree's March 16, 1998 motion for clarification and amendment did not toll the appeal period pursuant to Rule 59. Though a timely motion for amendment of judgment pursuant to M.R. Civ. P. 59 will terminate the running of the time for appeal, see M.R. Civ. P. 73(a), Green Tree's motion was not timely as it was filed more than 90 days after final judgment was entered, see M.R. Civ. P. 59(b) ("A motion for a new trial shall be served not later than 10 days after the entry of the judgment."). {8} . Green Tree also argues that final judgment was not entered in the case until April 9, 1998. Even if that were the case, the August 12, 1998, notice of appeal and motion for enlargement of time were not timely because they were filed more than 60 days after April 9, 1998. See Lussier v. Oxford Dev. Assocs., 1997 ME 117, ¶ 5, 695 A.2d 1188, 1189-90; see also Harris Baking Co. v. Mazzeo, 294 A.2d 445, 451 (Me. 1972). {9} . Rule 76D, relating to appeals from the District to the Superior Court similarly contains no requirement that the court of appeal be designated. "The appeal shall be taken by filing a notice of appeal with the clerk of the District Court." M.R. Civ. P. 76D. {10} . Recent changes in certain areas of law have resulted in changes in the designated court of appeal for specific types of judgments. See, e.g., 22 M.R.S.A. § 4006 (Supp. 1999) (governing appeals in child protective proceedings). Particularly in areas of family law, these changes may continue. See Draft Report of the Court Unification Task Force 17-22 (Sept. 1999) (discussing Recommendation II, which suggests the substantial elimination of appeals to the Superior Court in favor of direct review by the Law Court). The confusion resulting from such changes will inevitably lead to errors in the designation of the correct court of appeal.