Adams v. Alley

• Decision Date: 31 July 1973
• Citation: 308 A.2d 568
• Parties: Arthur S. ADAMS and Gertrude H. Adams v. Ronald E. ALLEY and Erna E. Alley.
• Court: Maine Supreme Court

Page 568

308 A.2d 568

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

Supreme Judicial Court of Maine.

July 31, 1973.

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

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

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

WEATHERBEE, Justice.

This appeal concerns an attempted conversion of the findings and recommendations of a Referee into an enforceable judgment and presents several procedural issues not heretofore directly encountered since the adoption of our Maine Rules of Civil Procedure.

Plaintiffs, husband and wife, brought this action concerning title to real property in the Town of Lamoine (the Dunphy lot) against the Defendants, husband and wife. The substance of Plaintiffs' claims is:

Count 1. Plaintiffs asserted that they had a record title to the property superior to that of Defendants' predecessor in title, one Dunphy, and asked that the Court determine that title is vested in them, the Plaintiffs, and allow them damages. ¹

Count 2. Plaintiffs allege that upon learning of the conflict in title to their property revealed by the delayed recording of Dunphy's deed, Mr. Adams sought through Mr. Alley to purchase for the Plaintiffs whatever title Dunphy had but that Mr. Alley violated his agreement and trust by taking from Dunphy a deed of the property to himself and Mrs. Alley. Plaintiffs asked for damages of $5,000.00 but no equitable type of relief.

By agreement, the matter was ordered heard by a Referee. M.R.C.P., Rule 53. The Referee heard the matter and filed his report. He found as to Count 1 that Plaintiffs had not acquired title to the Dunphy lot by the 1960 deed from Smith. As to Count 2, however, he found that Plaintiffs had established the existence of a trust for their benefit in the property which the Defendants had acquired by deed from Dunphy. He found that:

'. . . the plaintiffs should have judgment that the defendants convey whatever legal interest they have acquired in the Dunphy lot with convenants against claims arising by, through or under them to the plaintiffs on payment of $1,500.00 by the plaintiffs within thirty (30) days of judgment.'

He added:

'I recognize that amendments to the pleadings may be required to permit the judgment if approved.'

The Report of the Referee was filed in the office of the Clerk of Courts August 26, 1971 and the Clerk so notified counsel that day. No objection to the acceptance of the Report of the Referee was filed and on September 29, 1971, without further notice to the parties, the Report was accepted.

Although the docket entries do not show any judgment by the Court they do contain an entry: 'Sept. 30, 1971: Notice of judgment sent attorneys of record'. We are confident that the 'judgment' was really the acceptance of the Report of the Referee which had been filed the previous day.

No appeal was taken by the Defendants ² and on February 8, 1972 the Plaintiffs brought a 'Complaint to Enforce Judgment'. M.R.C.P., Rule 70. The complaint alleges the finding of the Referee quoted above and that the Report of the Referee was accepted. It is significant that this complaint does not recite any judgment of the Court but, rather, alleges the language of the recommendations of the Referee.

New counsel then appeared for the Defendants and filed an answer and affirmative defenses but they have not been included in the record on appeal.

Another Justice of the Superior Court acted upon this 'Complaint to Enforce a Judgment' and found that certain disputed conduct of Mr. Adams constituted a tender. He ordered an execution and delivery of the deed on substantially the same terms recommended by the Referee. The Justice's 'Decision on Complaint to Enforce Judgment' also recites the Referee's language but is silent as to the issuance of any previous judgment. We assume that there was no such previous judgment.

The Defendants appealed from this order and now raise several issues, only three of which will be necessary for us to discuss.

The Defendants' attacks on Plaintiffs' 'judgment'

First, the Defendants urge us that the Court erred in 'adopting' the Report of the Referee because it was contrary to the facts and law. We understand this point to relate to the 'acceptance' of the Report by the Justice in the Superior Court on September 29, 1971. In their brief Defendants urge us with more specificity that the existence of a fiduciary relationship between Mr. Adams and Mr. Alley was not proved.

The Justice in the Superior Court was required to accept the findings of fact of the Referee unless they were clearly erroneous. M.R.C.P., Rule 53(e)(2)(i). ³ As the transcript of the hearing before the Referee was not made part of the record on appeal we would not be able to evaluate the merit of this issue, even if it was properly before us, which it is not.

Secondly, the Defendants argue to us that as the parties had agreed to reserve their rights to object to the Report of the Referee, the Defendants were by rule entitled to notice and hearing on Plaintiffs' motion to accept it. Although this area of disagreement is not reserved in Defendants' Statement of Points on Appeal we believe some benefit may result from a brief discussion of it.

Even when the right to object to the Report has been reserved, Rule 53(e)(2) (iii) places upon the party who wishes to object the duty, within 10 days after being served with notice of the filing of the Report, to serve written objections upon the other party. If no such written objections have been served the party desiring the acceptance is entitled to have the Report presented to the Court for acceptance without notice to the other parties.

As no such written objections to the acceptance of the Report of the Referee had been served by the Defendants, Defendants were not entitled to notice or hearing on the acceptance of the Report.

The Defendants' third point on appeal, as restated more specifically in the Defendants' brief, asserts that there was no judgment by the Court imposing the order which the Referee suggested. We agree with the Defendants' position as to this issue. The Referee's conclusion that 'the Plaintiffs should have judgment that the Defendants convey whatever interest they acquired . . .' was only the Referee's recommendation. It could have no mandatory force against the Defendants, even after the acceptance of the Report, until it had been adopted by the Court-if the Court saw fit to choose that method of palliating the wrong the Referee found was done to the Defendant-and incorporated into a judgment. This has never been done. While the Justice who acted upon Plaintiffs' Complaint to Enforce Judgment made an order in substantially the same language used in the Referee's recommendation, he purported only to act on a judgment supposedly already made by another Justice.

The crucial step-that is, the issuance of a judgment culminating Plaintiffs' original action, the Referee's findings of fact and law and his recommendations-has never been made.

The procedure authorized by M.R.C.P., Rule 70

While it is already apparent that the judgment in the Plaintiffs' favor cannot be sustained, the precise disposition to be applied to the Defendants' successful appeal depends upon the true nature of the process used by the Plaintiffs to obtain the enforcement of what they had supposed was a valid judgment. If the procedure authorized under M.R.C.P., Rule 70 is a new and separate action, then the Plaintiffs are not entitled to the relief sought under it and Defendants' appeal must be sustained. If it is only...