Adams v. Alley

• Decision Date: 11 June 1975
• Parties: Arthur S. ADAMS and Gertrude H. Adams v. Ronald E. ALLEY and Erna E. Alley.
• Court: Maine Supreme Court

Page 201

340 A.2d 201

Arthur S. ADAMS and Gertrude H. Adams v. Ronald E. ALLEY and Erna E. Alley.

Supreme Judicial Court of Maine.

June 11, 1975.

Blaisdell & Blaisdell by Malcolm S. Stevenson, Ellsworth, for plaintiffs.

Libhart & Ferris by Wayne P. Libhart, Brewer, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

Defendants appeal from a judgment of the Superior Court (Hancock County), which awarded plaintiffs equitable relief as recommended in a referee's report previously accepted by the Superior Court. We find defendants' appeal devoid of merit and deny it.

The factual and legal background of this case has already once received full amplification by this Court. Adams v. Alley, Me., 308 A.2d 568 (1973). Plaintiffs' action was in law for monetary damages allegedly caused by defendant Ronald E. Alley's breach of trust. The matter was referred to a referee by the Superior Court, the order of reference reserving to the parties the right to object to acceptance of the report pursuant to M.R.Civ.P. 53(e)(2) (i). The referee found, concluded, and reported that defendant Ronald Alley had breached fiduciary duties owed to plaintiff Arthur S. Adams, and that land acquired by defendants Alley and his wife in their own names should be impressed with a trust for the benefit of plaintiffs Adams and his wife. To this end the referee reported that 'the plaintiffs should have judgment that the defendants convey whatever legal interest they have acquired in the Dunphy lot . . . to the plaintiffs on payment of $1,500.00 by the plaintiffs within thirty (30) days of judgment.' Since the plaintiffs' complaint encompassed only remedies in law, while the report recommended a trust remedy sounding in equity, the referee recognized that 'amendments to the pleadings may be required to permit the judgment if approved.'

The referee filed his report on August 26, 1971. The docket shows that copies of the report were 'given' to the attorneys of record. On September 29, 1971, the Superior Court accepted the report. The docket, as properly construed by the first Adams case, shows that copies of the notice of acceptance were sent to the attorneys of record on September 30, 1971. 308 A.2d at 570. At this point the Superior Court erred by proceeding to enforce the referee's report without first entering an enforceable final judgment on the records of the Superior Court. Id. at 571. The Law Court dismissed as premature defendants' appeal from the Superior Court proceedings and remanded the case to the Superior Court 'for determination of what, if any, judgment (with or without amendment of pleadings) should be entered and for further action consistent with this opinion.' Id. at 572.

On remand, defendants filed motions under Rule 53(e)(2)(iii) to object to the report of the referee. Four months passed. The Superior Court then ordered and decreed: (1) that defendants' motions for objections were untimely and are therefore denied; (2) that '(t)he motion to amend Plaintiff's (sic) complaint is now allowed and (the) complaint is amended accordingly'; and (3) judgment is entered on the trust remedy recommended by the referee, with defendants to convey the property to plaintiffs upon the tender of $1500 by the plaintiffs.

Defendants' present appeal assigns the following errors to the Superior Court: (1) that the court improperly denied defendants' motions to object to the report of the referee; (2) that the court erred in accepting plaintiffs' amendment to their complaint because the amendment was undocketed, and therefore the court's judgment is unfounded since the prerequisite amendment does not appear in the record; and (3) that the court erred in adopting the equitable remedy recommended by the referee, because equitable matters are not subject to reference.

Rule 53(e)(2)(iii) provides: 'Except where the references is by agreement without reservation of the right to object, any party may within 10 days after being served with notice of the filing of the report, serve written objection thereto upon the other parties.' Defendants reserved the right to object to the report of the referee. The report was filed on August 26, 1971. As of that date, the docket states that '(c)opies of report (were) given to attorneys of record.' If the delivery of the copies of the report to the attorneys of record was by manucaption, the clerk of courts may have diverged from the practice under Rule 53(e)(1), which states that '(t)he clerk shall forthwith mail to all parties notice of the filing.' But any divergence from the strict letter of the Rule in the case before us would not toll the running of the 10 day period for filing objections to the report of the referee. Actual delivery of a copy of the referee's report would almost always serve as constructive notice of the filing of the report. Here, the docket recites that the report was 'given' to the attorneys of record as of the date the report was filed. No reason appears not to charge defendants with constructive notice through their authorized attorney. Therefore it would seem that defendants did not file objections within 10 days 'after being served with notice of the filing of the report,' as required by Rule 53(e)(2)(iii). We reached a similar conclusion in the first Adams case. See 308 A.2d at 571.

Defendants argue somewhat vaguely that confusion incident to a change of counsel may have prevented them from receiving actual notice of the filing of the report of the referee on August 26, 1971. Defendants gravely assert that it is sufficient 'to say present counsel did not have notice of the filing of the Referee's Report.' But the lack of notice to present counsel will not suffice to resuscitate a right which had expired two years previously. 'Service upon an attorney who has ceased to represent a party is a sufficient compliance . . . until written notice of change of attorneys has been served upon the other parties.' M.R.Civ.P. 5(b). Even if defendants' original counsel had withdrawn from their service as of August 26, 1971, said counsel was still the attorney of record, properly subject to service and notice, until written notice of change of attorneys had been served upon the other parties. There is no basis in the record that would vitiate the constructive notice charged to defendants by the docket recital that the referee's report was 'given' to their original record counsel. Any omissions by the original counsel that may have affected defendants' right to file objections are a matter between the defendants and their original counsel. Present counsel may not redeem his cause by touting the alleged deficiencies of his predecessors, whose actions entailed binding legal effects. The Superior Court properly denied defendants' tardy motion of August 7, 1973 to file objections to the referee's report. See 308 A.2d at 571.

In entering judgment for the plaintiffs, the Superior Court allowed a motion to amend plaintiffs' complaint and deemed the complaint amended accordingly. Unfortunately, this is the sole record entry relating to the amendment proffered by plaintiffs to enlarge their complaint so as to encompass the equitable remedy recommended by the referee and adopted by the Superior Court. The text of the amendment does not appear in the record, and there is no specific docket entry corresponding to the submission of the amendment. Defendants urge that the Superior Court's allowance of the amendment and the court's explicit ruling on the amendment's sufficiency cannot overcome the absence of a docket entry for the amendment and the absence of the text of the amendment from the record. Defendants reason that if the amendment was improperly allowed, the judgment based on the amendment was intrinsically defective. Thus defendants argue that the judgment below should be vacated and the cause remanded to the Superior Court for further trial proceedings relating to plaintiffs' motion to amend.

We cannot agree that defendants were so substantially prejudiced by the allowance of the plaintiffs' undocketed amendment as to warrant vacating the judgment and reinstituting regular proceedings on the motion to amend. Defendants have no absolute right to a full-blown hearing on plaintiffs' motion. At most it would appear that defendants have a right under M.R.Civ.P. 15(a) to file a responsive pleading to the motion to amend. This right has been denied to defendants only if we assume that they never in fact received plaintiffs' motion to amend in time to plead responsively. But defendants do not claim not to have received the motion in due time to answer it. Similarly, defendants might have moved for a continuance before the Superior Court, and if the court in its discretion credited defendants' claim that they were likely to be prejudiced by the allowance of the motion to amend, a continuance could have been granted. Defendants made no showing of prejudice. Moreover, the record does not show, and defendants do not assert, that they made any effort to appeal to the discretion of the Superior Court for a continuance. See Field, McKusick & Worth, Maine Civil Practice § 15.4 (2d ed. 1970). Instead defendants assert that they are to have orders vacated, cases remanded, and full-blown hearings as matters of right. We think defendants waived their right to object to the undocketed motion to amend. We would be much more impressed with their argument if they had demonstrated, or even claimed, that the proffered amendment was legally inadequate to reconcile plaintiffs' complaint with the remedy recommended by the referee and adopted by the Superior Court. In short, there is no ground presented...