Clifford v. Klein

• Decision Date: 26 July 1983
• Citation: 463 A.2d 709
• Parties: Charles L. CLIFFORD and Mildred L. Clifford v. Patricia J. KLEIN.
• Court: Maine Supreme Court

Page 709

463 A.2d 709

Charles L. CLIFFORD and Mildred L. Clifford v. Patricia J. KLEIN.

Supreme Judicial Court of Maine.

Argued May 11, 1983.

Decided July 26, 1983.

Murray, Plumb & Murray, Peter L. Murray (orally), Jane E. Barry, Portland, Thomas W. Tavenner, Boothbay Harbor, for plaintiffs.

Eaton, Glass, Marsano & Woodward, Francis C. Marsano (orally), Belfast, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, VIOLETTE and WATHEN, JJ.

WATHEN, Justice.

This action arises from a dispute over the location of the boundary separating parcels of real estate owned by the parties. Plaintiffs Charles and Mildred Clifford appeal from the determination of the location of the boundary line contained in a judgment of the Superior Court (Waldo County) entered on their complaint. Plaintiffs also appeal from the denial of their motion to modify an injunctive order entered on defendants' counterclaim, prohibiting the storage of manure within 1500 feet of the defendant's house. Plaintiffs argue on appeal that the judgment, which was prepared by defense counsel, was improperly adopted verbatim by the court and, in any event, is unsupported by the evidence and erroneous as a matter of law. Plaintiffs also contend that the court erred in denying the requested modification of the injunctive order. We vacate the judgment locating the boundary line and affirm the denial of the motion for modification of the injunctive order.

I.

Plaintiffs' complaint, seeking the location of the common boundary, was tried before the court sitting without a jury. The record reflects that several days after trial the presiding justice telephoned the office of counsel for the defendant and left a message requesting that counsel draft a judgment favorable to his client. Defense counsel responded to the request by preparing a lengthy judgment setting forth a summary of the testimony of the witnesses, together with findings of fact and conclusions of law. The draft judgment was mailed to the presiding justice together with a letter of transmittal and copies were mailed to counsel for the plaintiffs. In his letter, defense counsel confirmed his receipt of the justice's telephonic instructions and stated: "I am forwarding on to [plaintiffs' counsel] a copy of this judgment for whatever comments he may choose to make to you either in writing or in such other fashion as you in your discretion may deem appropriate." Counsel for the plaintiffs received no notice of the procedure employed in preparing the judgment other than through the copy of the opposing counsel's transmittal letter. No action was taken by the plaintiffs with respect to the proposed judgment until nearly thirty days later after it was executed by the court, without change. Plaintiffs thereafter moved for a new trial. The presiding justice denied that motion, stating: "the court signed the proposed decree without change because the court agrees with the findings and conclusions and has adopted them as the court's own findings and conclusions. The court sees no point to change for the sake of change."

Plaintiffs' argument on appeal is two-fold. First they urge this Court to vacate the judgment and remand so that the trial justice, rather than defense counsel, may determine the facts and applicable law. In the alternative, they urge the Court to subject the findings of the trial court to the strictest scrutiny and find the judgment to be erroneous as a matter of law or unsupported by the evidence.

In our recent decision in In re Sabrina M., 460 A.2d 1009 (Me.1983), we addressed the related problem of a court's verbatim adoption of findings of fact proposed by counsel. In that case we held that although such an adoption of findings does not automatically constitute error, "we must closely scrutinize such findings to determine whether the trial court has adequately performed its judicial function." 460 A.2d at 1013. After a review of the findings in that case, we concluded that the findings adopted by the court were sufficient to provide an understanding of the basis for the trial court's ultimate decision. 460 A.2d at 1013. More importantly, our review of the findings and of the procedure through which the court had reached those findings convinced us that the trial justice had adequately fulfilled his responsibility to personally find the facts and apply the law. 460 A.2d at 1013. It was significant to our conclusion in Sabrina M. that all parties had submitted proposed findings and the court had adopted verbatim the proposed findings of the prevailing party only after having reviewed and adopted in part the proposed findings of the losing party.

The case now before us presents a more difficult factual situation and leads to a different conclusion. In this instance, the trial justice made an ex parte request of defense counsel to prepare a judgment in favor of his clients. Although it is entirely possible that the court may have requested only a simple judgment form describing the boundary, it is clear that the court received, and eventually adopted, a decision which included not only the judgment but lengthy findings of fact and conclusions of law as well.

The facts in this case are similar to those in Roberts v. Ross, 344 F.2d 747, 753 (3rd Cir.1965), in which the Court of Appeals for the Third Circuit prohibited lower courts in that Circuit from entering an unexplained decision in favor of one party and then adopting findings and conclusions prepared by counsel for that party. In Roberts, the trial judge entered an order stating that he found for the defendant and directing counsel for the defendant to file proposed findings, conclusions, and judgment. At the same time, the court granted the opposing side the right to file objections. If anything, the facts of the present case are more egregious. Here, unlike Roberts, there was no initial order announcing the result reached by the court, but rather an ex parte communication with counsel for the winning side. The plaintiffs received no notice of the court's communication with defense counsel other than by receipt of a copy of defense counsel's letter of transmittal. ¹ The court did not at any time extend to the plaintiffs an opportunity to submit proposed findings and judgment nor an opportunity to object to the judgment submitted by the defendant. Most significantly the court failed to give counsel any indication of its reasoning or conclusions before soliciting the proposed judgment. While it could be argued that plaintiffs' counsel should have taken some action during the 30 days which passed prior to the court's signing of the judgment, given the extent of the procedural irregularity involved, counsel's failure to challenge the court is not a sufficient reason to compel the application of the doctrine of waiver.

Under the circumstances, we must scrutinize the findings and conclusions with great care and determine whether those findings demonstrate that the trial court adequately performed its judicial function. See In re Las Colinas, Inc., 426 F.2d 1005, 1010 (1st Cir.1970); Sabrina M., 460 A.2d at 1013. We would note that it is doubtful that the purposes of Rule 52 can be served in the majority of cases when the trial court makes its findings by adopting those proposed by one counsel without any input from opposing counsel. ² We also note the problems which arise by asking the winning advocate to prepare an impartial decision. Such concerns are borne out in this case. The findings prepared by defense counsel and adopted by the court are confusing and couched in partisan language which impedes appellate review and undermines the integrity of the appellate process. ³

The rule which we adopted in Sabrina M. stops short of flatly prohibiting the verbatim adoption of findings or judgments prepared by counsel. The functional test which we adopted, imposes upon this Court the obligation to view the record with care and to remand for new findings in those instances where this Court is uncertain whether the judicial function has been adequately performed. The rule is well stated in Ramey Construction Co. v. The Apache Tribe of the Mescalero Reservation, 616 F.2d 464, 467 (10th Cir.1980), which was cited by this Court in Sabrina M:

Even though we may not...