MAINE	SUPREME	JUDICIAL	COURT	                                                    Reporter	of	Decisions	
Decision:	 2017	ME	154	
Docket:	   Wal-16-525	
Argued:	   June	14,	2017	 	
Decided:	  July	13,	2017	
                                                                                                       	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   DAWN	H.	HASKELL	et	al.	
                                             	
                                            v.	
                                             	
                                    GROVER	B.	BRAGG	JR.	
	
	
ALEXANDER,	J.	

          [¶1]	 	 Grover	 B.	 Bragg	 Jr.	 appeals	 and	 Dawn	 H.	 Haskell	 and	

Martin	W.	Witham	 cross-appeal	 from	 a	 judgment	 for	 damages	 entered	 in	 the	

Superior	 Court	 (Waldo	 County,	 R.	 Murray,	 J.)	 in	 favor	 of	 Haskell	 and	 Witham	

after	entry	of	a	default	against	Bragg.		Haskell	and	Witham’s	claims	arose	from	

an	 invasion	 of	 Haskell	 and	 Witham’s	 home	 in	 the	 early	 morning	 hours	 of	

March	27,	2013.	 	 Bragg	 argues	 that	 the	 court	 erred	 by	 precluding	 him	 from	

contesting	 causation	 at	 the	 damages	 hearing	 and	 by	 concluding	 that	 Haskell	

and	Witham	were	not	comparatively	negligent.1		Haskell	and	Witham	contend	




    1		The	pleadings	here	and	case	law	sometimes	refer	to	“comparative	negligence”	as	“comparative	

fault.”		For	consistency,	this	opinion	will	use	the	term	“comparative	negligence.”		See	14	M.R.S.	§	156	
(2016).	
2	

that	 the	 court	 erred	 by	 allowing	 Bragg	 to	 assert	 an	 affirmative	 defense	 of	

comparative	negligence.		We	affirm	the	judgment.	

                                          I.		CASE	HISTORY	

         [¶2]	 	 In	 March	 2014,	 Dawn	 H.	 Haskell	 and	 Martin	 W.	 Witham	 filed	 a	

six-count	complaint	against	Grover	B.	Bragg	Jr.	and	Donald	R.	York	Jr.2		Haskell	

and	 Witham	 asserted	 a	 claim	 for	 negligence	 against	 both	 Bragg	 and	 York	

(Count	1)	and	claims	for	assault	and	battery,	intentional	trespass,	intentional	

infliction	of	emotional	distress,	negligent	infliction	of	emotional	distress,	and	

punitive	damages	against	York	(Counts	2-6).	

         [¶3]	 	 Bragg	 was	 served	 in	 hand	 with	 the	 summons	 and	 complaint	 on	

April	 24,	 2014.	 	 Bragg	 did	 not	 file	 an	 answer	 within	 twenty	 days	 after	 being	

served	and	did	not	otherwise	appear	in	or	defend	the	matter.		See	M.R.	Civ.	P.	

12(a).		Haskell	and	Witham	filed	a	motion	for	default	against	Bragg,	which	the	

clerk	entered	on	June	17,	2014.		See	M.R.	Civ.	P.	55(a).3	




   2		The	complaint	also	named	several	of	Donald	R.	York	Jr.’s	family	members	as	defendants,	but	

they	 were	 dismissed	 prior	 to	 trial.	 	 York	 does	 not	 appeal	 from	 the	 judgment	 that	 was	 entered	
against	him.	

     3		“When	a	party	against	whom	a	judgment	for	affirmative	relief	is	sought	has	failed	to	plead	or	

otherwise	defend	as	provided	by	[the	Maine	Rules	of	Civil	Procedure]	.	.	.	the	clerk	shall	enter	the	
party’s	default.”		M.R.	Civ.	P.	55(a).	
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A.	    Factual	History	

       [¶4]		Upon	the	entry	of	a	default	for	failure	to	timely	appear	or	respond	

in	 an	 action,	 the	 facts	 alleged	 in	 the	 complaint	 are	 deemed	 to	 have	 been	

proved	 and	 affirmative	 defenses	 are	 deemed	 to	 have	 been	 waived.	 	 See	

M.R.	Civ.	 P.	 8(b)-(d);	 McAlister	 v.	 Slosberg,	 658	A.2d	 658,	 660	 (Me.	 1995)	

(“When	a	default	is	entered	.	.	.	the	allegations	in	the	plaintiff’s	complaint	are	

deemed	to	be	true	and	become	findings	of	fact.”).	

       [¶5]		Haskell	and	Witham	alleged	the	following	facts	in	their	complaint.		

On	or	about	March	27,	2013,	York	became	highly	intoxicated	due	to	his	use	of	

some	combination	of	crack	cocaine,	cocaine,	heroin,	oxycodone,	bath	salts,	and	

marijuana.		York	used	one	or	more	of	the	intoxicants	while	in	the	company	of	

Bragg,	 who	 was	 aware	 of	 and	 assisted	 York	 in	 reaching	 that	 level	 of	

intoxication.	 	 Despite	 Bragg’s	 awareness	 of	 the	 danger	 York	 presented	 to	

others	 in	 his	 state	 of	 intoxication,	 Bragg	 transported	 York	 to	 the	

Haskell-Witham	 residence	 because	 he	 did	 not	 want	 York—who	 was	 acting	

“really	crazy”—in	his	own	home.	

       [¶6]	 	 Haskell	 and	 Witham,	 who	 had	 never	 met	 Bragg	 or	 York	 before	

March	 27,	 2013,4	 were	 awakened	 by	 the	 sound	 of	 windows	 being	 broken.		


  4		Although	not	stated	in	the	complaint,	evidence	presented	at	the	damages	hearing	established	

that	Haskell	and	Witham	had	never	met	Bragg	or	York	before	the	morning	of	the	home	invasion.	
4	

Witham	exited	his	home	and	found	Bragg	and	York	outside.		Bragg	and	York	

returned	 to	 a	 pickup	 truck	 that	 was	 parked	 nearby.	 	 After	 some	 time,	 York	

exited	the	truck,	ran	into	Haskell	and	Witham’s	home	without	permission	and	

damaged	 property	 inside,	 including	 a	 flat	 screen	 television,	 several	 pieces	 of	

furniture,	five	windows,	lamps,	and	various	other	items.		York	threw	a	bench	

through	 a	 window,	 punched	 holes	 in	 the	 walls,	 damaged	 various	 portions	 of	

the	bed	and	floor,	and	tracked	blood	throughout	the	house.		He	also	damaged	

Haskell	and	Witham’s	vehicle.		York	then	attacked	Witham	causing	substantial	

physical	injuries	to	Witham.		Witham	believed	that	York	was	going	to	kill	him.		

After	 injuring	 Witham,	 York	 reentered	 the	 residence	 and	 continued	 to	 cause	

damage.	 	 Haskell	 locked	 herself	 in	 the	 garage	 while	 York	 damaged	 property	

and	assaulted	Witham.		Haskell	feared	for	her	life	and	for	Witham’s	life.	

      [¶7]	 	 Haskell	 and	 Witham	 further	 alleged	 in	 their	 complaint	 that	 they	

exercised	 due	 care	 at	 all	 pertinent	 times,	 and	 that	 Bragg	 and	 York	 were	

negligent	 and	 through	 their	 negligence	 caused	 Haskell	 and	 Witham	 to	 suffer	

pain	 and	 property	 damage.	 	 Based	 on	 these	 claims,	 Haskell	 and	 Witham	

requested	relief	“for	such	sums	as	are	just	.	.	.	[and]	for	attorney’s	fees,	interest	

and	costs,	and	punitive	damages.”	
                                                                                          5	

B.	    Procedural	History	

       [¶8]		Nearly	two	years	after	being	served	the	summons,	Bragg	filed	an	

answer.		In	his	answer,	Bragg	admitted	that	an	incident	occurred,	but	denied	

most	 of	 the	 allegations	 in	 the	 complaint,	 including	 that	 Haskell	 and	 Witham	

had	 exercised	 due	 care.	 	 He	 also	 asserted	 nine	 “affirmative	 defenses,”	

including	comparative	negligence	and	failure	to	mitigate	damages.		Bragg	did	

not	 move	 to	 set	 aside	 the	 entry	 of	 default	 or	 for	 an	 enlargement	 of	 time	 in	

which	to	file	his	answer.		See	M.R.	Civ.	P.	55(c).	

       [¶9]	 	 On	 June	 17,	 2016,	 the	 court	 held	 a	 bench	 trial	 on	 liability	 and	

damages	 as	 to	 York,	 and	 a	 damages	 hearing	 as	 to	 Bragg.	 	 At	 the	 start	 of	 the	

trial,	 Bragg	 argued	 that,	 despite	 his	 default,	 he	 should	 be	 allowed	 to	 present	

evidence	 regarding	 causation	 and	 comparative	 negligence.	 	 Haskell	 and	

Witham	 argued	 that	 the	 entry	 of	 default	 established	 Bragg’s	 negligence	 and	

waived	 any	 affirmative	 defenses.	 	 The	 court	 admitted	 evidence	 of	 causation	

and	comparative	negligence	de	bene	and	allowed	the	parties	to	submit	written	

arguments	after	the	trial.	

       [¶10]	 	 The	 evidence	 included	 testimony	 of	 Haskell,	 Witham,	 Bragg,	

York’s	 father,	 and	 a	 sheriff’s	 deputy,	 as	 well	 as	 exhibits	 including	 numerous	

photographs,	 a	 9-1-1	 recording,	 medical	 bills	 and	 records,	 invoices,	 receipts,	
6	

and	 the	 deposition	 transcripts	 of	 Haskell	 and	 Witham’s	 medical	 treatment	

providers.	

      [¶11]	 	 On	 October	 28,	 2016,	 the	 court	 entered	 a	 judgment	 in	 favor	 of	

Haskell	 and	 Witham.	 	 The	 court	 concluded	 that	 Bragg	 was	 not	 entitled	 to	

litigate	 causation	 because	 the	 entry	 of	 default	 established	 that	 Bragg	 was	

negligent	 and	 that	 his	 negligence	 was	 the	 cause	 of	 Haskell	 and	 Witham’s	

damages.	 	 The	 court	 further	 concluded	 that	 because	 the	 default	 established	

only	 Bragg’s	 liability,	 it	 would	 consider	 evidence	 of	 comparative	 negligence	

“but	 only	 for	 the	 purpose	 of	 possibly	 reducing	 the	 total	 damages.”	 	 For	 two	

separate	and	distinct	reasons,	the	court	found	that	Haskell	and	Witham	were	

not	 negligent.	 	 First,	 the	 evidence	 presented	 at	 the	 damages	 hearing	 did	 not	

support	 a	 finding	 of	 negligence.	 	 Second,	 Haskell	 and	 Witham’s	 complaint	

stated	 that	 they	 exercised	 due	 care	 at	 all	 pertinent	 times,	 and	 that	 fact	 was	

therefore	deemed	true	as	a	result	of	Bragg’s	default.	

      [¶12]		The	trial	court	found	Bragg	and	York	jointly	and	severally	liable	

for	damages	to	Haskell	and	Witham	in	the	amount	of	$428,071.64.		No	motion	

for	further	findings	of	fact	or	conclusions	of	law	was	filed.		See	M.R.	Civ.	P.	52.		

Bragg	 appealed,	 and	 Haskell	 and	 Witham	 cross-appealed.	 	 See	 14	 M.R.S.	

§	1851	(2016);	M.R.	App.	P.	2.	
                                                                                           7	

                                  II.		LEGAL	ANALYSIS	

A.	    Causation	

	      [¶13]		Bragg	argues	that	the	court	erred	when	it	concluded	that	he	could	

contest	the	amount	of—but	not	the	cause	of—Haskell	and	Witham’s	damages	

at	 the	 hearing	 after	 the	 entry	 of	 default.	 	 Bragg	 contends	 that	 damages	

“must	.	.	.	 be	 tethered	 to	 the	 negligent	 conduct	 of	 the	 defaulted	 party,”	 and	

“[o]nly	on	such	a	finding	of	causation	may	the	fact	finder	determine	the	value	

of	the	causally	related	injuries	and	damages.”		He	asserts	that,	based	on	what	

he	 claims	 is	 undisputed	 evidence,	 he	 is	 not	 liable	 for	 Haskell	 and	 Witham’s	

personal	 injuries	 or	 property	 damage	 because	 he	 “never	 touched”	 them	 or	

their	 property.	 	 The	 facts	 established	 from	 the	 complaint	 state	 that	 Bragg,	

knowing	 that	 York	 was	 acting	 dangerously,	 brought	 York	 to	 Haskell	 and	

Witham’s	 home	 and	 that	 Bragg	 and	 York	 were	 found	 together	 outside	 the	

home	after	the	initial	damage	and	glass	breaking.	

       [¶14]		The	entry	of	default	establishes	the	defaulting	party’s	liability	as	

set	forth	in	the	complaint	and	precludes	that	party	from	litigating	any	of	the	

elements	of	liability	related	to	the	claim.		Graham	v.	Brown,	2011	ME	93,	¶	11,	

26	 A.3d	 823.	 	 Because	 the	 default	 establishes	 liability	 only,	 the	 extent	 of	 the	

damages	 remains	 for	 the	 court’s	 determination.	 	 Colony	Cadillac	 &	
8	

Oldsmobile,	Inc.	 v.	 Yerdon,	 558	A.2d	364,	 367	 (Me.	1989);	 Oliver	 v.	 Martin,	

460	A.2d	594,	595	 (Me.	 1983);	 see	 also	 Foss	v.	 Ingeneri,	 561	 A.2d	 498,	 499	

(Me.	1989).	

      [¶15]		The	trial	court	may	conduct	a	hearing	to	determine	the	amount	of	

damages	 or	 otherwise	 take	 evidence	 as	 it	 deems	 necessary.	 	 M.R.	Civ.	 P.	

55(b)(2);	 Gauthier	 v.	 Gerrish,	 2015	 ME	 60,	 ¶¶	 14-15,	 116	 A.3d	 461;	 see	 also	

Firth	v.	City	of	Rockland,	580	A.2d	694,	698	(Me.	1990)	(reaffirming	that	there	

is	 no	 required	 procedure	 for	 conducting	 a	 damages	 hearing	 but	 that	 the	

defaulting	party’s	participation	should	be	sufficient	to	prevent	fraud	upon	the	

court	and	to	minimize	errors	in	fact-finding).	

      [¶16]		The	court	permitted	Bragg	to	fully	participate	in	the	hearing	by	

conducting	 discovery	 prior	 to	 the	 hearing,	 presenting	 evidence,	

cross-examining	 Haskell	 and	 Witham’s	 witnesses,	 and	 submitting	 a	 written	

closing	 argument.	 	 Bragg’s	 full	 participation	 in	 the	 hearing	 minimized	 the	

possibility	that	a	fraud	was	perpetrated	on	the	court	and	that	the	court	erred	

in	its	fact-finding.		See	Firth,	580	A.2d	at	698;	Oliver,	460	A.2d	at	595-96.	

      [¶17]	 	 The	 facts	 alleged	 in	 Haskell	 and	 Witham’s	 complaint	 were	

conclusively	 established	 by	 Bragg’s	 default.	 	 Those	 factual	 findings	 explicitly	

included	that	Bragg	was	negligent	and	that	his	negligence	caused	Haskell	and	
                                                                                       9	

Witham	pain	and	suffering	and	damage	to	their	personal	property.		Thus,	the	

court	 properly	 concluded	 that	 the	 allegations	 in	 the	 complaint	 regarding	

causation	were	deemed	true	when	the	default	was	entered	and	that	Bragg	was	

not	 entitled	 to	 challenge	 those	 established	 findings	 of	 fact.	 	 See	 McAlister,	

658	A.2d	at	660;	Oliver,	460	A.2d	at	595.	

      [¶18]	 	 The	 court	 awarded	 compensatory	 damages	 based	 on	 the	

allegations	 in	 the	 complaint,	 which	 were	 deemed	 true,	 and	 based	 on	

competent	 evidence	 in	 the	 record	 that	 Haskell	 and	 Witham	 suffered	

“extensive	 property	 damage,	 physical	 and	 emotional	 injuries,	 and	

considerable	 pain	 and	 suffering	 .	 .	 .	 stemming	 from	 the	 events	 of	

March	27,	2013.”	 	 No	 error	 or	 abuse	 of	 discretion	 has	 been	 demonstrated	 in	

the	court’s	findings	and	conclusions	awarding	damages.	

B.	   Comparative	Negligence	

	     [¶19]		Bragg	argues	that	the	court	erred	when	it	concluded	that	(1)	the	

allegation	in	the	complaint	that	Haskell	and	Witham	exercised	due	care	at	all	

pertinent	 times	 prevented	 him	 from	 being	 able	 to	 establish	 comparative	

negligence,	 and	 (2)	 the	 evidence	 at	 the	 damages	 hearing—that	 Witham	

prevented	Bragg	and	York	from	leaving	after	the	initial	window	breaking	but	

before	 York	 assaulted	 Witham	 and	 damaged	 most	 of	 the	 property—did	 not	
10	

establish	Haskell	and	Witham’s	negligence.		In	their	cross-appeal,	Haskell	and	

Witham	argue	that—although	the	court’s	ultimate	conclusion	that	they	were	

not	 negligent	 was	 correct—the	 court	 erred	 by	 considering	 comparative	

negligence	 because	 Bragg	 waived	 any	 affirmative	 defenses	 by	 not	 filing	 a	

timely	answer.	

       [¶20]	 	 “[W]e	 review	 any	 factual	 findings	 for	 clear	 error	 and	 review	 de	

novo	 whether	 the	 facts	 are	 sufficient	 to	 constitute	 waiver.”	 	 Dunwoody	 v.	

Dunwoody,	2017	ME	21,	¶	11,	155	A.3d	422.		Generally,	in	an	action	asserting	

a	 claim	 for	 relief,	 “[a]	 defendant	 shall	 serve	 that	 defendant’s	 answer	 within	

20	days	after	the	service	of	the	summons	and	complaint	upon	that	defendant.”		

M.R.	 Civ.	 P.	 12(a).	 	 In	 the	 responsive	 pleading,	 “a	 party	 shall	 set	 forth	

affirmatively	.	.	.	comparative	fault	.	.	.	and	any	other	matter	constituting	an	.	.	.	

affirmative	 defense.”	 	 M.R.	 Civ.	 P.	 8(c);	 accord	 M.R.	 Civ.	 P.	 12(b).	 	 Failing	 to	

timely	 plead	 an	 affirmative	 defense	 generally	 results	 in	 the	 waiver	 of	 that	

defense.	 	 Town	 of	 Wiscasset	 v.	 Mason	 Station,	 LLC,	 2015	 ME	 59,	 ¶	 11,	

116	A.3d	458;	 R.C.	 Moore,	 Inc.	 v.	 Les-Care	 Kitchens,	 Inc.,	 2007	 ME	 138,	 ¶	 24,	

931	A.2d	1081.	

       [¶21]	 	 Here,	 Bragg	 did	 not	 file	 an	 answer	 to	 Haskell	 and	 Witham’s	

complaint	 until	 nearly	 two	 years	 after	 he	 was	 served	 the	 summons	 and	
                                                                                        11	

complaint.	 	 Bragg	 waived	 any	 affirmative	 defenses,	 including	 comparative	

negligence,	 when	 he	 failed	 to	 timely	 respond	 to	 Haskell	 and	 Witham’s	

complaint.	 	 M.R.	 Civ.	 P.	 8(b)-(d),	 12;	 see	 Mason	 Station,	 2015	 ME	 59,	 ¶	 11,	

116	A.3d	458;	Givertz	v.	Me.	Med.	Ctr.,	459	A.2d	548,	555	(Me.	1983).		Although	

the	trial	court	erred	when	it	considered	evidence	of	comparative	negligence,	

the	 error	 was	 harmless	 because	 the	 court	 found	 that	 Haskell	 and	 Witham	

were	 not	 negligent.	 	 See	 M.R.	 Civ.	 P.	 61;	 In	 re	 Caleb	 M.,	 2017	 ME	 66,	 ¶	26,	

159	A.3d	345.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	       	     	    	         	      	
	
J.	 William	 Druary,	 Jr.,	 Esq.,	 and	 Gregory	 M.	 Patient,	 Esq.	 (orally),	 Marden,	
Dubord,	Bernier	&	Stevens,	PA	LLC,	Waterville,	for	appellant	Grover	B.	Bragg	
	
James	E.	Belleau,	Esq,	and	Adam	R.	Lee,	Esq.	(orally),	Trafton,	Matzen,	Belleau	
&	 Frenette,	 LLP,	 Auburn,	 for	 cross-appellants	 Dawn	 H.	 Haskell	 and	
Martin	W.	Witham	
	
	
Waldo	County	Superior	Court	docket	number	CV-2014-12	
FOR	CLERK	REFERENCE	ONLY	
