Lemay v. CWS Construction LLC

Opinion

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STATE OF MAINE SUPERIOR COURT LOCATION: ALFRED YORK, ss DOCKET: AP-11-025

Jeanette Lemay et al ) ) Plaintiffs ) ) v. ) ORDER ON APPEAL ) ) CWS Construction LLC et al ) Defendants )

This was heard on this date on oral argument on a rule 76G appeal. The Plaintiff , Mr. Lemay appeared prose and the Defendants were represented by Attorney Marshall Tinkle.

The gist of the Defendants' ru:gument is that they were p resent for trial at the calling of the list but h ad been told by the clerk's office their case was not going to be reach ed due to the volume of cases and they could leave. Subsequently that morning the case was called for trial. Default judgment was then entered.

Without reaching the merits of whether this constituted excusable neglect ,it is clear that Maine law does not allow a direct appeal of a default judgment on these grounds. See e.g. Fleet Mortgage Cotporation v. Cobb 611 A. 2d 565 (Me. 1992). The appropriate remedy is n ot a direct appeal but rather a rule 60 (b) motion to vacate the judgment addressed to the trial court and, if necessary, an appeal from the denial of such motion.

Accordingly the appeal is dismissed.

The Clerk may incorporate by reference.

Dated: March 5, 2012

JUSTICE, MAINE SUPERIOR COURT PLAINTIFFS PRO-SE JEANETTE LEMAY o'A.J-£1! PHILIP LEMAY BERWICK ME 03901 ATTORNEY FOR DEFENDANTS CWS CONSTRUCTION, LLC, Reggie Moreau, Steve Klotz MARSHALL J TINKLE ESQ HIRSHON LAW GROUP PC PORTLAND ME 04101