SILVER, J.
[¶ 1] Bayview Loan Servicing, LLC,
[¶ 2] On November 23, 2009, Bayview filed a complaint in the District Court seeking a judgment of foreclosure against the Bartletts, alleging that the Bartletts had defaulted on a note in the amount of $136,500 secured by a mortgage on their home. An informational session was held on April 16, 2010, and the court ordered that the parties attend a mediation session on June 9, 2010. Neither party objected to this order. The order stated that "[t]he Court may sanction parties and/or counsel who fail to attend and participate in mediation." The court granted Bayview's request to appear telephonically.
[¶ 3] Bayview failed to both appear at the mediation and timely file the required forms. The Bartletts filed a motion to dismiss based on Bayview's failure to appear. By orders entered on June 23, 2010, the court (Cantara, J.) dismissed the case without prejudice and ordered Bayview to pay $500 to the Foreclosure Diversion Program. Bayview moved for relief from the dismissal order on the basis that it had not had an opportunity to file an opposition to the Bartletts' motion to dismiss, and that the court's order appeared to have been entered inadvertently and prematurely. The court granted Bayview's motion and vacated its dismissal order on August 12, 2010, to permit Bayview to file an opposition. After Bayview filed an opposition,
[¶ 4] On July 5, 2011, Bayview filed a motion for summary judgment. On July 20, 2011, however, with Bayview's consent, the Bartletts filed a motion to enlarge the time to respond to the motion for summary judgment until mediation had taken place or, alternatively, until September 1, 2011. The court granted the motion, and a second mediation session was scheduled.
[¶ 5] At the second mediation session on January 30, 2012, Bayview informed the Bartletts that they had been tentatively approved for a trial loan modification, with formal approval expected within three to four weeks. The Bartletts' monthly payment was estimated at $1041.24. On or around March 8, 2012, the Bartletts received a letter dated March 1, 2012, indicating that they had been approved for a trial modification. The letter stated, however, that their monthly payment would be $1233.07 — $191.83 higher than originally estimated — with the first payment due by March 1, 2012 — several days before the Bartletts received the letter. The Bartletts were also notified that their loan had been transferred to another creditor and servicer. When the Bartletts' counsel was unable to contact Bayview's counsel to discuss the terms of the modification, the Bartletts requested a third mediation.
[¶ 6] A third mediation session was scheduled for April 9, 2012. Bayview again failed to appear. Bayview's counsel called and represented that she had a flat tire and would arrive late. No representative of Bayview appeared, and counsel was unable to contact anyone with authority to modify the loan.
[¶ 7] After a hearing, the court (Douglas, J.) entered an order on October 4, 2012, concluding that the ultimate sanction of dismissal with prejudice was not warranted "yet." The court warned Bayview, however, that it had "come very close to that point," and that "if there is a future breach by [Bayview] there is a risk that the court could, upon motion and after proper process, dismiss this case with prejudice." The court ordered that the parties attend a fourth mediation session and sanctioned Bayview, ordering (1) that all interest and fees be tolled from the date of the first mediation until the date of any loan modification, or, if none, the date of the order; (2) that Bayview pay the Bartletts' reasonable expenses, "including lost income and transportation costs for (i) the second and third mediation sessions, (ii) any and all court events they have attended related to this motion, and (iii) lost income and transportation expenses, if any, incurred in connection with a fourth mediation session"; (3) that Bayview pay the Bartletts' reasonable attorney fees in connection with the Bartletts' motion; and (4) that Bayview pay a $1000 fine to the Foreclosure Diversion Program.
[¶ 8] The fourth mediation session was scheduled for February 11, 2013. Counsel for Bayview appeared but was unable to get a representative from Bayview on the phone. The Bayview representative called the court an hour after the scheduled time, by which point the other participants had left. As a result, the mediator reported that Bayview had failed to attend mediation. The Bartletts again moved for dismissal with prejudice and other sanctions.
[¶ 10] We review the imposition of sanctions for an abuse of discretion. See Estate of Hoch v. Stifel, 2011 ME 24, ¶ 32, 16 A.3d 137 (reviewing imposition of sanctions for discovery violations); Unifund CCR Partners v. Demers, 2009 ME 19, ¶ 8, 966 A.2d 400 (reviewing imposition of sanctions pursuant to M.R. Civ. P. 16A(d)). Our review for an abuse of discretion involves three questions: (1) whether the court's factual findings are supported by the record according to the clear error standard, (2) whether the court understood the law applicable to the exercise of its discretion, and (3) whether the court's "weighing of the applicable facts and choices [was] within the bounds of reasonableness." Bradbury v. City of Eastport, 2013 ME 72, ¶ 12, 72 A.3d 512 (quotation marks omitted); see also Smith v. Rideout, 2010 ME 69, ¶ 13, 1 A.3d 441 (outlining circumstances in which we have determined that a trial court abused its discretion).
[¶ 11] "[D]ue to the severity of a dismissal or default, and the constitutional implications of such an action, we have observed that the trial court's discretion in imposing either ultimate sanction is narrow indeed and will be given close scrutiny on appeal." Unifund CCR Partners, 2009 ME 19, ¶ 13, 966 A.2d 400 (quotation marks omitted); see also Estate of Hoch, 2011 ME 24, ¶ 32, 16 A.3d 137 ("[W]e more closely scrutinize sanctions such as dismissal or default." (quotation marks omitted)). Even so, "we do not lightly overrule the trial court's decision." Estate of Hoch, 2011 ME 24, ¶ 32, 16 A.3d 137 (quotation marks omitted); see also Orlandella v. O'Brien, 637 A.2d 105, 106 (Me.1994) ("The Constitution mandates only that a plaintiff be afforded a meaningful opportunity to assert her claim."). "When the court has determined the facts without error and has understood the factors and law material to the decision at hand, we will defer to the trial court and will find an abuse of discretion only where the court makes a serious mistake in weighing the applicable factors." Estate of Hoch, 2011 ME 24, ¶ 34, 16 A.3d 137 (quotation marks omitted).
[¶ 12] Title 14 M.R.S. § 6321-A(12) (2013) and Maine Rule of Civil Procedure 93(j) permit a trial court to impose sanctions, including dismissal with prejudice, on a party that fails to appear at
[¶ 13] The court "need not find willfulness, bad faith, or fault" in order to impose sanctions. Estate of Hoch, 2011 ME 24, ¶ 33, 16 A.3d 137 (quotation marks omitted); Unifund CCR Partners, 2009 ME 19, ¶ 12, 966 A.2d 400 (quotation marks omitted). Rather, "the trial court should evaluate the effect pretrial violations have on the adverse party and also consider the purpose the sanctions are to serve in exercising its discretion." Unifund CCR Partners, 2009 ME 19, ¶ 12, 966 A.2d 400 (quotation marks omitted).
[¶ 14] Parties are not entitled to a warning that the trial court may dismiss a case based on noncompliance with pretrial procedures. See Douglas v. Martel, 2003 ME 132, ¶ 10, 835 A.2d 1099 (stating that the plaintiff was "not entitled to a warning that [his] blatant violations of the discovery rules could result in the dismissal of [his] action" (alterations in original) (quotation marks omitted)); St. Paul Ins. Co. v. Hayes, 2001 ME 71, ¶ 14, 770 A.2d 611 ("We have never said that the trial court must `warn' a party before sanctioning that party with dismissal or default."). We have, however, considered the presence of a warning as a factor supporting dismissal with prejudice. See, e.g., Douglas, 2003 ME 132, ¶ 10, 835 A.2d 1099 (noting, in affirming the dismissal of the plaintiff's complaint with prejudice as a discovery sanction, that the plaintiff had been "given two specific warnings that failure to comply would result in dismissal with prejudice"); Hatch v. Me. Tank Co., 666 A.2d 90, 93-94 (Me.1995) (affirming the dismissal of the plaintiff's claim with prejudice for failure to comply with a discovery order where the order "provided a clear warning that dismissal would be the sanction for continued noncompliance").
[¶ 15] Bayview argues that the District Court erred or abused its discretion in dismissing Bayview's action with prejudice, contending that (1) mediation was not required in this case, (2) the court misunderstood the legal ramifications of a dismissal with prejudice, (3) the court's order was based on the Bartletts' improperly
[¶ 16] Bayview argues that the court dismissed its complaint based on a mistaken view of the law, in that mediation was not required in this case. This argument fails because Bayview failed to preserve this issue by raising it in the trial court. See Dobson v. Dep't of the Sec'y of State, 2008 ME 137, ¶ 3, 955 A.2d 266 (declining to reach a constitutional challenge raised for the first time on appeal); MP Assocs. v. Liberty, 2001 ME 22, ¶ 18, 771 A.2d 1040 (holding that an issue raised for the first time on appeal was not properly preserved). Bayview acquiesced in the court's mediation order, and raised no objection to mediation. Indeed, Bayview joined the Bartletts' motion to enlarge the time to respond to Bayview's motion for summary judgment so that the parties could engage in mediation.
[¶ 17] Bayview next argues that the court did not fully appreciate the legal ramifications of a dismissal with prejudice. Bayview contends that the trial court "failed to analyze the potential effect its order of dismissal may have on [Bayview]," in that "a dismissal with prejudice in a foreclosure action may forever bar a lender from obtaining a judgment of foreclosure and sale against a debtor." See Johnson v. Samson Constr. Corp., 1997 ME 220, ¶ 8, 704 A.2d 866 (holding that dismissal with prejudice of a foreclosure action on an accelerated debt barred a later action to recover on the debt).
[¶ 18] Contrary to Bayview's contentions, there is nothing to suggest that the court did not understand the effect of its order of dismissal.
[¶ 19] Bayview further argues that the court abused its discretion in relying on the Bartletts' motions to dismiss, which Bayview contends were improperly filed, citing 14 M.R.S. § 6321-A(9) (2013) and M.R. Civ. P. 93(d)(1). Section 6321-A(9) provides that "[f]or any foreclosure complaint filed after January 1, 2010[,] that is scheduled for mediation in accordance with this section, a final judgment may not issue until a mediator's report has been completed pursuant to subsection 13." Rule 93(d)(1) provides that
See also M.R. Civ. P. 93 Advisory Notes January 2010 (indicating that Rule 93(d)(1) "is designed to allow the parties to focus on the mediation process").
[¶ 20] Here, section 6321-A(9) does not apply because the complaint was filed on November 23, 2009. In any event, section 6321-A(9) would not prohibit the entry of final judgment because multiple interim mediator's reports were completed.
[¶ 21] Bayview also suggests that "factual inaccuracies" in the Bartletts' motions "effectively tainted the trial court's view" of the case. Specifically, Bayview contends that the Bartletts misrepresented that Cheryl Bartlett was present at the April 9, 2012, mediation session and that the Bartletts would have been incapable of accepting the proposed loan modification because they received it after the date the first modified payment was due. Even assuming that the Bartletts' motions contained factual inaccuracies, there is no indication that the court relied on the factual representations in the Bartletts' motions. Bayview does not argue that the court's factual findings were clearly erroneous. See Bradbury, 2013 ME 72, ¶ 12, 72 A.3d 512.
[¶ 22] Bayview next contends that the court abused its discretion by failing to appropriately balance the prejudice to Bayview and the "windfall" to the Bartletts stemming from its order of dismissal. Specifically, Bayview argues (1) that the court ignored that Bayview attended the January 30, 2012, mediation session and offered the Bartletts a loan modification; (2) that Bayview's failure to appear at the April 9, 2012, and February 11, 2013, mediation sessions were "unfortunate and unintentional accidents"; and (3) that the court "grossly overestimated the purported `harm' suffered" by the Bartletts because they had received a "windfall" in the form of "three years of free rent."
[¶ 24] Finally, Bayview argues that the Court inappropriately "delegated" its fact-finding role to the mediators and suggests that the court should have held a testimonial hearing. Because Bayview raised this issue for the first time in its reply brief, Bayview has failed to preserve this argument. See Baillargeon v. Estate of Daigle, 2010 ME 127, ¶ 14 n. 2, 8 A.3d 709.
[¶ 25] To the extent that a testimonial hearing would have permitted Bayview to show that its third failure to appear was the result of an inadvertent error of counsel, the court concluded that such an error was not excusable in light of Bayview's previous failures to appear at mediation. Moreover, Bayview does not contest any of the material facts found by the court. The court did not err or abuse its discretion.
The entry is:
Judgment affirmed.
