Allen v. Cole Realty, Inc.

• Decision Date: 09 September 1974
• Citation: 325 A.2d 19
• Parties: Alvin B. ALLEN v. COLE REALTY, INC.
• Court: Maine Supreme Court

Page 19

325 A.2d 19

Alvin B. ALLEN v. COLE REALTY, INC.

Supreme Judicial Court of Maine.

Sept. 9, 1974.

Rudman, Rudman & Carter, by Gene Carter and John Wallach, Bangor, for plaintiff.

Twitchell, Gray & Linscott, by Orman G. Twitchell, Frederick J. Badger, Jr., Eaton, Peabody, Bradford & Veague, by John E. McKay, Bangor, for defendant.

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

WERNICK, Justice.

On November 28, 1969 plaintiff, Alvin B. Allen initiated a civil action in the Superior Court (Penobscot County) against defendant, Cole Realty, Inc., seeking damages for breach of a contract concerning a real estate transaction.

Once the pleadings had been completed there were no further proceedings in the action until November 3, 1971 when the Court granted a motion of plaintiff for a continuance and ordered the case continued until the next term (in Penobscot County) of the Superior Court. Another motion for continuance was filed by plaintiff on December 24, 1971 in which plaintiff stated as his reason for seeking a further continuance

'that negotiations are in process which may result in settlement without trial prior to the next term.'

On January 12, 1972 this second motion for continuance was ordered set for hearing on February 8, 1972, but no hearing was held or ruling made.

On March 8, 1972, the action was dismissed for lack of prosecution pursuant to Rule 41(b)(1) M.R.C.P.

On October 9, 1972 plaintiff filed a motion under Rule 60(b)(1) M.R.C.P. seeking to set aside the dismissal of the action. After a hearing, and upon a finding of 'excusable neglect', the presiding Justice, on February 27, 1973, granted plaintiff's motion and ordered 'the dismissal . . . set aside' and the 'case . . . placed on the Docket' of the Superior Court.

From this ruling and order defendant, in conformity to Rule 73 M.R.C.P., filed notice of appeal to the Law Court on March 21, 1973.

It is this purported 'Rule 73 appeal' by defendant, as perfected, which is before us.

We dismiss the appeal because we find it to have been taken from a ruling interlocutory in nature thus to contravene the 'final judgment' doctrine generally governing 'appealability' under Rule 73 M.R.C.P.

In Fidelity and Casualty Co. v. Bodwell Granite Co., 102 Me. 148, 66 A. 314 (1906) the 'final judgment' doctrine of 'appealability' is stated as follows:

'The Law Court cannot be required and indeed has no jurisdiction to decide, prematurely, interlocutory questions which the subsequent proceedings in the case may show to be wholly immaterial, . . ..' (p. 152, 66 A. p. 316)

Also: Hand v. Nickerson, 148 Me. 465, 95 A.2d 813 (1953); Hazzard v. Westview Golf Club, Inc., Me., 217 A.2d 217 (1966); Bernat v. Handy Boat Service, Inc., Me., 239 A.2d 651 (1968).

A fundamental criterion to differentiate the 'interlocutoriness' which renders Court action 'non-appelable' from the 'finality' establishing its 'appealability' is found in: (1) a statement in Gilpatrick v. Glidden, 82 Me. 201, 19 A. 166 (1889) describing as 'final', and thus 'appealable', such Court action as

'fully decides and disposes of the whole cause leaving no further questions for the future consideration and judgment of the Court' (p. 203, 19 A. p. 167)

taken in combination with (2) the proposition enunciated in Fidelity and Casualty Co. v. Bodwell Granite Co., supra, that, generally, a Court's action is 'interlocutory', and 'non-appealable', if

'the subsequent proceedings in the case may show (it) to be wholly immaterial . . ..' (102 Me. p. 152, 66 A. p. 316)

Assessed by this basic measure of 'interlocutoriness' and 'finality', as determinative of 'non-appealiability' and 'appealability', the Court action from which the instant 'Rule 73 appeal' has been attempted is plainly interlocutory and should, therefore, be non-appealable. By the Court's ruling an action previously dismissed was restored to the docket to await subsequent trial on the merits. The trial might result in a final judgment for defendant in which event defendant's position would be the same as it had been prior to the ruling of the Superior Court, with the consequence that the Superior Court's ruling would be deprived of practical materiality. Moreover, should plaintiff appeal from the judgment entered upon such future verdict for the defendant, thereby to prevent it from becoming a final judgment, defendant would then have opportunity, by filing a cross-appeal, to raise the same issue it now seeks to have decided:-whether the Justice of the Superior Court acted correctly in vacating the original dismissal and restoring the case to the docket for further proceedings.

In sum, the ruling of the Superior Court now purportedly appealed precludes neither the potential that subsequent proceedings in the case will render unnecessary a decision of this Court of the issue now purportedly raised nor the right of defendant to achieve such a decision if, and when, it should become necessary. Precisely such consequences stamp the instant Superior Court ruling, under the criteria generally applicable, interlocutory and, therefore, by virtue of the 'final judgment' doctrine, non-appealable. ¹

The real issue, then, to which we must direct our attention is crystallized as follows: since the Superior Court ruling here involved is so plainly interlocutory, why should an exception be made in the present situation to the generally governing 'final judgment' doctrine of appealiability?

Defendant claims that such an exception has already been established in the law of Maine by the case of Willette v. Umhoeffer, Me., 245 A.2d 540 (1968).

It is true that in Willette v. Umhoeffer this Court entertained, and decided, an appeal from action of a Justice of the Superior Court granting a Rule 60(b) motion as a result of which the party seeking 60(b) remedy was relieved of a judgment entered against him by default and afforded opportunity for a trial on the merits. Thus, in Willette v. Umhoeffer, as here, the subsequent trial of the cause could eventuate in a result rendering immaterial the presiding Justice's decision on the Rule 60(b) motion. Defendant's contention is, therefore, correct that in Willette v. Umhoeffer this Court did in fact accept, and decide, an appeal from an interlocutory Superior Court ruling on a 60(b) motion.

Our remarks in Bernat v. Handy Boat Service, Inc., supra,-concerning Emery v. Frateschi, 161 Me. 281, 211 A.2d 578 (1965)-are cogently applicable here to Willette v. Umhoeffer:

'That case should not be taken as authority (as to appealability) . . .. The issue of appealability was not raised by any party and was not considered by the Court.' (239 A.2d p. 653)

Hence, notwithstanding Willette v. Umhoeffer, the appealability of the instant Rule 60(b) ruling of the Justice of the Superior Court, as an issue here expressly raised by the plaintiff, is open for initial decision by this Court, free of the constraints of stare decisis, according to principles the Court deems sound.

We proceed, then, to evaluate whether there is any special factor warranting an exception in the present situation to the prevailing 'final judgment' doctrine of 'appealability.'

The practice in Maine prior to the adoption of the Maine Rules of Civil Procedure, effective December 1, 1959, suggests a reason for an exception insofar as it is arguable that Rule 60(b) may retain conceptual residues of former practice.

Under the practice in civil cases antecedent to Rule 60(b) M.R.C.P. there was power in the Court to correct record entries made by error or mistake, including an entry of judgment, during the term at which the entry was made. Davis v. Cass, 127 Me. 167, 142 A. 377 (1928); Myers v. Levenseller, 117 Me. 80, 102 A. 776 (1918); Lothrup v. Page, 26 Me. 119 (1846). Once the term at which a valid judgment was entered had terminated, however, the parties were out of Court and the power of the Court over such valid judgment was ended. Bubar v. Sinclair, 146 Me. 155, 79 A.2d 165 (1951); Shepherd v. Rand, 48 Me. 244 (1860). ²

After expiration of the term at which a valid final judgment had been entered in a civil action, the practice prior to 1959 allowed a review of such judgment

'. . . under certain conditions by use of Writs of Error (R.S.1954, Chapter 129, Sections 1-10), Petitions for Review (R.S.1954, Chapter 123) and by the ancient common law actions of coram nobis, coram vobis and audita querela.' Willette v. Umhoeffer, supra, 245 A.2d at p. 541.

These statutory and other proceedings, however, were actions separate from and independent of the action in which the val- id and final judgment (from which relief was sought) had been entered. Cousins v. Hooper, Me., 224 A.2d 836 (1966); Richards Co. v. Libby, 140 Me. 38, 33 A.2d 537 (1943); Shepherd v. Rand, supra. Accordingly, any judgment operative with 'finality' in such separate and independent action was held 'appealable' notwithstanding its interlocutory impact upon the action which had produced the final judgment under attack.

With the adoption in 1959 of the current Maine Rules of Civil Procedure the statutes authorizing petitions for review and writs of error in civil cases were repealed. (P.L.1959, Chapter 317, Sections 268 and 280). Further, Rule 60(b) itself abolished the 'writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of bills of review' and prescribed, instead, that generally, if not exclusively, ³ relief from a valid final judgment shall be sought by a 60(b) motion filed in that same action which produced the judgment. (Reporter's Notes at p. 69 of 2 F McK W, Me.Civ.Pr.2d).

The approach and philosophy of Rule 60(b), and the statutes implementing it, thus reflect a fundamental abandonment, rather than retention, of the former practice which, once the term at which a judgment was entered had expired, authorized relief from such judgment only by an action separate from and independent...