ST ATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss CIVIL ACTION DOCKET NO. CV-2I-34
SLIPPERY ROCK TRAILS, LLC,
Plaintiff ORDER AND DECISION V.
CHRISTOPHER TARDIF, III,
Defendants
Before the Court is Defendant Christopher Tardifs (Tardiff) Motion to Lift Entry of
Default and for Leave to File Answer filed June 14, 2021. Plaintiff Slippery Rock Trails, LLC
(SRT) filed its objection to the motion on August 16, 2021, and Tardif filed its reply on
September 7, 2021. 1 Tardifs motion is supported by his affidavit dated June 10, 2021 ("Tardif
Aff. ,r_")
1. Facts
In it's complaint against Tardif, SRT has asserted claims of negligence, trespass, breach:
of contract, and also seeks a preliminary injunction, for damages arising out of a shared private
sewer line. The complaint was served on Tardif on March: 25, 2021, and filed with the court on
April 5, 2021. Upon being served with the complaint, Tardif tender the claim to both his title
insurance company and liability carrier. (Tardif Aff. ,r 9). Tardif avers "Because I did not have
experience with the court system or understand the obligations of insurance caniers to provide
defense and/or indemnification of this matter, I did not understand that I was obligated to file an
1 On July 12, 2021, there being no response to the motion to lift the default on file with the court, the court granted
Tardiffs motion. SRT's counsel, however, did not receive the motion to lift the default. Hence,various consented motions to extend deadlines were filed by the parties, and the order lifting the default was vacated .
I answer." (Tardiff Aff. '\l 11 ). When Tardif was served with the complaint, in response to his
inquiry as to how he should proceed, the sheriff told Tardif, "no court date has been set". (Tardif
Aff. 'I! 8). Tardifretained counsel to represent him in this matter when his title insurance carrier
denied coverage. (Tardif Aff. '\l 12).
The answer to the complaint was due by April 14, 2021. No answer being filed by that
date, on April 20, 2021, SRT filed with the court a request for a default and default judgment. A
default was entered on April 29, 2021, but the request for a default judgment was denied as not a
sum certain. On June 14, 2021, Tardif filed with the court the pending motion to lift the entry of
default, two months to the day later than the date the answer was due.
In it's complaint, SRT alleges Tardifs use of the shared sewer line is causing damage to
STR' s property, and that Tardif refuses to remove himself from the line or help repair it.
(Complaint, '\l'\!16-18). Tardif avers in his affidavit that owners of the property prior to SRT had
broken a portion of the shared sewer line, that SRT's prope1iy had been clogging and leaking
since around 2000 because of a broken sewer trap in the basemen, and that SRT was made aware
of the clogging and leaking at the time of purchase. (Tardif Aff. '\l'\!4-6).
2. Standard of Review
Per M. R Civ. P. 55(c), for good cause shown the court may set aside an entry of default
and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule
60(b). Thomas v. Thompson, 653 A.2d 417,419 (Me. 1995). The proponent of a motion
pursuant to M.R. Civ. P. 55(c) must show both a good excuse for untimeliness irr pleading and
2 also the existence of a meritorious defense. Id. Although the rule does not define good cause, the
Law Court has provided some guidance that that while establishing good cause to set aside a
default judgment requires a reasonable excuse for the default, establishing good cause to set
aside an entry of default is less stringent. Zigna v. Sullivan, 2005 Me. Super.LEXIS 119, citing
Theriault v. Gauthier, 634 A.2d 1255, 1256-57 (Me. 1993) There is strong preference for
deciding cases on the merits, and consistent with this preference, motions to set aside a default
have been granted in cases when no gross neglect was involved in the late filing, the non
defaulting party will not be substantially prejudiced by reopening the case, and a meritorious
defense exists. Thomas v. Thompson, 653 A.2d at 420.
The law is well established that the party seeking to set aside a default entered pursuant to
Rule 55(c) has the burden of establishing both a good excuse for his untimeliness in pleading to
or defending an action against him and the existence of a meritorious defense to the action. Hart
v. TerryL. Hopkins, Inc., 588 A.2d 1187, 1190 (Me. 1991). A motion pursuant to Rule 55(c)
takes into consideration two distinct components-justification for relief and a meritorious
defense, and each component is framed and resolved differently. Id. The justification for relief
component is litigated on the merits at the motion hearing, and the moving party must allege and
prove good cause for failure to file a timely response. Id. The meritorious defense component is
handled differently, in that it is not litigated at the motion hearing, but rather the moving party's
version of the facts and circumstances supporting the defense are deemed to be true. Id.
3 3. Discussion
a. Good Cause
Upon being served, Tardif innnediately forwarded the complaint to both his title
insmance company and liability carrier. This strikes the court as a good faith effort to "do
something" with the claim, even if he did not innnediately take steps to file an answer. (See
Thomas v. Thompson, 653 A.2d at 420-the conscientiousness ofthe insured in seeking a timely
response can mitigate the impact ofthis principle in a default situation.) When the title insurance
company denied the claim, Tardif then promptly acted and retained counsel. Given Tardif's
assertions he was unfamiliar with the court system and obligations of insurance carriers, the
court finds Tardif has shown a good excuse for his tardiness. In further support of this finding is
that Tardi:f's motion to set aside the default was filed on June 14, 2021, just two months after the
date an answer was due. (See Zigna v. Sullivan, 2005 Me. Super.LEXIS 119, where defendant's
response was eight weeks tardy, and his excuse that he was "in and out of the State at that time"
and he could not believe that Plaintiff could bring a suit against him was found by the court to be
reasonable even if not the most persuasive.)
In addition, SRT's assertion of prejudice is not sufficiently persuasive. In essence, it's
claim is it would not have sold the property at the price it did had had there not been an entry of
default. SRT sold the subject property on June 21, 2021, unaware that Tardiff had moved the
court to set aside the default. (SRT's Opposition to Mot. to Set Aside Entry of Default, p. 3).
SRT asserts the sale price of the property reflected the entry of default, and that injunctive relief
would benefit the purchaser, but the right to damages were retained by SRT. (Id.). The court does
not find this reasoning persuasive. At the time of sale, a hearing on damages or on the
preliminary injunction had not been requested or scheduled. Accordingly, tremendous
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ST ATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss CIVIL ACTION DOCKET NO. CV-2I-34
SLIPPERY ROCK TRAILS, LLC,
Plaintiff ORDER AND DECISION V.
CHRISTOPHER TARDIF, III,
Defendants
Before the Court is Defendant Christopher Tardifs (Tardiff) Motion to Lift Entry of
Default and for Leave to File Answer filed June 14, 2021. Plaintiff Slippery Rock Trails, LLC
(SRT) filed its objection to the motion on August 16, 2021, and Tardif filed its reply on
September 7, 2021. 1 Tardifs motion is supported by his affidavit dated June 10, 2021 ("Tardif
Aff. ,r_")
1. Facts
In it's complaint against Tardif, SRT has asserted claims of negligence, trespass, breach:
of contract, and also seeks a preliminary injunction, for damages arising out of a shared private
sewer line. The complaint was served on Tardif on March: 25, 2021, and filed with the court on
April 5, 2021. Upon being served with the complaint, Tardif tender the claim to both his title
insurance company and liability carrier. (Tardif Aff. ,r 9). Tardif avers "Because I did not have
experience with the court system or understand the obligations of insurance caniers to provide
defense and/or indemnification of this matter, I did not understand that I was obligated to file an
1 On July 12, 2021, there being no response to the motion to lift the default on file with the court, the court granted
Tardiffs motion. SRT's counsel, however, did not receive the motion to lift the default. Hence,various consented motions to extend deadlines were filed by the parties, and the order lifting the default was vacated .
I answer." (Tardiff Aff. '\l 11 ). When Tardif was served with the complaint, in response to his
inquiry as to how he should proceed, the sheriff told Tardif, "no court date has been set". (Tardif
Aff. 'I! 8). Tardifretained counsel to represent him in this matter when his title insurance carrier
denied coverage. (Tardif Aff. '\l 12).
The answer to the complaint was due by April 14, 2021. No answer being filed by that
date, on April 20, 2021, SRT filed with the court a request for a default and default judgment. A
default was entered on April 29, 2021, but the request for a default judgment was denied as not a
sum certain. On June 14, 2021, Tardif filed with the court the pending motion to lift the entry of
default, two months to the day later than the date the answer was due.
In it's complaint, SRT alleges Tardifs use of the shared sewer line is causing damage to
STR' s property, and that Tardif refuses to remove himself from the line or help repair it.
(Complaint, '\l'\!16-18). Tardif avers in his affidavit that owners of the property prior to SRT had
broken a portion of the shared sewer line, that SRT's prope1iy had been clogging and leaking
since around 2000 because of a broken sewer trap in the basemen, and that SRT was made aware
of the clogging and leaking at the time of purchase. (Tardif Aff. '\l'\!4-6).
2. Standard of Review
Per M. R Civ. P. 55(c), for good cause shown the court may set aside an entry of default
and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule
60(b). Thomas v. Thompson, 653 A.2d 417,419 (Me. 1995). The proponent of a motion
pursuant to M.R. Civ. P. 55(c) must show both a good excuse for untimeliness irr pleading and
2 also the existence of a meritorious defense. Id. Although the rule does not define good cause, the
Law Court has provided some guidance that that while establishing good cause to set aside a
default judgment requires a reasonable excuse for the default, establishing good cause to set
aside an entry of default is less stringent. Zigna v. Sullivan, 2005 Me. Super.LEXIS 119, citing
Theriault v. Gauthier, 634 A.2d 1255, 1256-57 (Me. 1993) There is strong preference for
deciding cases on the merits, and consistent with this preference, motions to set aside a default
have been granted in cases when no gross neglect was involved in the late filing, the non
defaulting party will not be substantially prejudiced by reopening the case, and a meritorious
defense exists. Thomas v. Thompson, 653 A.2d at 420.
The law is well established that the party seeking to set aside a default entered pursuant to
Rule 55(c) has the burden of establishing both a good excuse for his untimeliness in pleading to
or defending an action against him and the existence of a meritorious defense to the action. Hart
v. TerryL. Hopkins, Inc., 588 A.2d 1187, 1190 (Me. 1991). A motion pursuant to Rule 55(c)
takes into consideration two distinct components-justification for relief and a meritorious
defense, and each component is framed and resolved differently. Id. The justification for relief
component is litigated on the merits at the motion hearing, and the moving party must allege and
prove good cause for failure to file a timely response. Id. The meritorious defense component is
handled differently, in that it is not litigated at the motion hearing, but rather the moving party's
version of the facts and circumstances supporting the defense are deemed to be true. Id.
3 3. Discussion
a. Good Cause
Upon being served, Tardif innnediately forwarded the complaint to both his title
insmance company and liability carrier. This strikes the court as a good faith effort to "do
something" with the claim, even if he did not innnediately take steps to file an answer. (See
Thomas v. Thompson, 653 A.2d at 420-the conscientiousness ofthe insured in seeking a timely
response can mitigate the impact ofthis principle in a default situation.) When the title insurance
company denied the claim, Tardif then promptly acted and retained counsel. Given Tardif's
assertions he was unfamiliar with the court system and obligations of insurance carriers, the
court finds Tardif has shown a good excuse for his tardiness. In further support of this finding is
that Tardi:f's motion to set aside the default was filed on June 14, 2021, just two months after the
date an answer was due. (See Zigna v. Sullivan, 2005 Me. Super.LEXIS 119, where defendant's
response was eight weeks tardy, and his excuse that he was "in and out of the State at that time"
and he could not believe that Plaintiff could bring a suit against him was found by the court to be
reasonable even if not the most persuasive.)
In addition, SRT's assertion of prejudice is not sufficiently persuasive. In essence, it's
claim is it would not have sold the property at the price it did had had there not been an entry of
default. SRT sold the subject property on June 21, 2021, unaware that Tardiff had moved the
court to set aside the default. (SRT's Opposition to Mot. to Set Aside Entry of Default, p. 3).
SRT asserts the sale price of the property reflected the entry of default, and that injunctive relief
would benefit the purchaser, but the right to damages were retained by SRT. (Id.). The court does
not find this reasoning persuasive. At the time of sale, a hearing on damages or on the
preliminary injunction had not been requested or scheduled. Accordingly, tremendous
4 uncertainty remained as to the final outcome ofthis litigation, including amount and
collectability. No injunctive relief had yet been ordered. Any sale while the litigation was in its
present status seems to leave both SRT and the purchaser of the property with great uncertainty
as to the final outcome of this dispute over the shared sewer line. It's difficult to quantify how
setting aside the entry of default adds to that uncertainty.
As previously discussed, the courts have a strong preference for deciding cases on the
merits. There being no evidence of gross neglect, and the court not finding substantial prejudice
to SRT if the default is set aside, Tardif has met his burden of showing a good excuse for not
timely filing a response.
b. Meritorious Defense
For the purpose of this motion, the court accepts the averments made by Tardif in
his affidavit. The meritorious defense component is handled differently, in that it is not litigated
at the motion hearing, but rather the moving party's version of the facts and circumstances
supporting the defense are deemed to be true. Hart v. Terry L. Hopkins, Inc., 588 A.2d 1187,
1190 (Me. 1991). Accepting Tardif s averments as true, the history of the leaking and clogging
of the shared sewer line, SRT' s prior knowledge of the existence of the problem, and each
property owner's respective contribution to the problems remain questions of fact to be sorted
out before liability can be found. Although the evidence may indeed parse out differently
through discovery and at trial, based on the information presented Tardif has met his burden of
showing the existence of a meritorious defense.
The entry shall be:
I .Defendant Christopher Tardif, III' s Motion to Lift Entry of Default and for Leave to File Answer is granted; the default is vacated and set aside, and Defendant is to file an answer within 20 days.
5 2. The clerk is to issue a Standard Scheduling Order per M.R.Civ.P. 16(a) upon filing of the answer.
3. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
?t Dated: September ;? 7 2021 amid L. Stewmi, II Justice, Superior Court
6 SLIPPERY ROCK TRAILS LLC - PLAINTIFF SUPERIOR COURT ANDROSCOGGIN, ss. Attorney for: SLIPPERY ROCK TRAILS LLC Docket No AUBSC-CV-2021-00034 THEODORE SMALL RETAINED SKELTON TAINTOR & ABBOTT 500 CANAL STREET DOCKET RECORD LEWISTON ME 04240
vs CHRISTOPHER TARDIF - DEFENDANT
Attorney for: CHRISTOPHER TARDIF TREVOR SAVAGE - RETAINED 06/14/2021 NORMAN HANSON & DETROY LLC PO BOX 4600 TWO CANAL PLAZA PORTLAND ME 04112-4600
Filing Document: COMPLAINT Minor Case Type: CONTRACT Filing Date: 04/05/2021
Docket Events: 04/05/2021 FILING DOCUMENT - COMPLAINT FILED ON 04/05/2021
04/05/2021 Party{s); SLIPPERY ROCK TRAILS LLC ATTORNEY - RETAINED ENTERED ON 04/05/2021
04/05/2021 Party(s): SLIPPERY ROCK TRAILS LLC ATTORNEY - RETAINED ENTERED ON 04/05/2021
04/05/2021 Party{s): CHRISTOPHER TARDIF SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 03/25/2021
04/05/2021 Party{s): CHRISTOPHER TARDIF SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/05/2021
04/29/2021 Party{s); SLIPPERY ROCK TRAILS LLC MOTION - AFFID & REQUEST DEFAULT/JUDG FILED ON 04/20/2021
04/29/2021 Party(s): CHRISTOPHER TARDIF ORDER - DEFAULT ENTERED ON 04/29/2021 AMY CARMEN, ASSOCIATE CLERK ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL
06/17/2021 Party(s): CHRISTOPHER TARDIF MOTION - MOTION SET ASIDE/STRIKE DFAULT FILED ON 06/14/2021 AND FOR LEAVE TO ANSWER COMPLAINT WITH PROPOSED ORDER
07/14/2021 Party(s): CHRISTOPHER TARDIF MOTION - MOTION SET ASIDE/STRIKE DFAULT GRANTED ON 09/24/2021 HAROLD STEWART , JUSTICE COPIES TO PARTIES/COUNSEL
Page 1 of 2 Printed on: 09/28/2021