Erickson v. State

• Decision Date: 21 April 1982
• Citation: 444 A.2d 345
• Parties: Ralph L. ERICKSON v. STATE of Maine.
• Court: Maine Supreme Court

Page 345

444 A.2d 345

Ralph L. ERICKSON v. STATE of Maine.

Supreme Judicial Court of Maine.

Argued Jan. 20, 1982.

Decided April 21, 1982.

Nisbet, MacNichol & Ludwig, Francis M. Jackson, III (orally), South Portland, for plaintiff.

Michael Richards (orally), John S. Gleason, Asst. Attys. Gen., Augusta, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

CARTER, Justice.

The plaintiff, Ralph L. Erickson, appeals the dismissal of his complaint by the Superior Court, Cumberland County. The trial court dismissed the plaintiff's action against the State on the ground that Erickson failed to comply with 14 M.R.S.A. § 8107, the notice provision of the Maine Tort Claims Act (MTCA). We affirm the judgment of the Superior Court.

Erickson is a self-employed refrigerator mechanic. On or about May 30, 1978, he was hired by the State to perform maintenance on equipment located at Crescent Beach State Park. While he climbed down from working on the equipment, the plaintiff allegedly slipped on a wet floor and fell. As a result of this fall, Erickson sustained injuries for which he sought damages by his complaint filed on May 21, 1980.

The State sought dismissal of this complaint on the ground that the plaintiff failed to state a claim upon which relief can be granted and that the plaintiff had failed to notify the State within 180 days after accrual of the cause of action in contravention to § 8107(1). In support of this motion, the defendant submitted a memorandum of law and two affidavits. Both affidavits state that the first notice the State received with respect to Erickson's claim was in the form of a letter from the plaintiff's counsel dated December 19, 1979, and received on December 20, 1979. This letter, which accompanied one of the affidavits, admitted that notice was beyond the 180-day period prescribed by statute but noted that counsel had only recently received the physician's report linking the fall with the injury and that the State was not prejudiced by the delay in reporting. The plaintiff submitted a memorandum of law but did not submit any affidavits.

Following a hearing on the motion, the Superior Court dismissed the complaint in an order docketed on July 31, 1981. The plaintiff filed a notice of appeal from this order. This notice was docketed in the Superior Court on August 26, 1981, and the docket sheet was appropriately marked "LAW". The notice of appeal and Superior Court docket entries were filed with the Law Court on August 26, 1981 and docketed on August 28, 1981. On August 28, 1981, Erickson filed a document entitled "Withdrawal of Appeal" and a Motion for Reconsideration. These were docketed in the Superior Court on August 31, 1981.

The motion for reconsideration was accompanied by affidavits by the plaintiff and his counsel. Counsel's affidavit indicated that he was first contacted by the plaintiff on May 14, 1979, that he immediately contacted the treating physician, but that not until December 11, 1979 did counsel receive a report from the physician. Erickson's affidavit stated that he had orally informed the park supervisor about the accident within 180 days of its occurrence. Also submitted was a letter dated August 12, 1981 from the Attorney General's Office to plaintiff's counsel. This correspondence indicated that the park manager and his supervisor had a vague recollection of receiving a letter regarding an accident involving Erickson prior to the letter sent by plaintiff's counsel on December 19, 1979. Erickson's Motion for Reconsideration was denied by the Superior Court in an order entered on August 31, 1981. A second Notice of Appeal therefrom was filed by plaintiff.

I.

As a preliminary matter, we must consider what evidence generated in the proceedings below and what actions of the Superior Court are properly before the Law Court on this appeal. Erickson filed a notice of appeal from the dismissal order that was docketed in the Superior Court on August 26, 1981, and that resulted in the Superior Court docket sheet being marked "LAW". This notice of appeal and the Superior Court docket entries were filed with the Law Court on the same day and entered on the Law Court docket on August 28. On August 28, the plaintiff sought withdrawal of this appeal and reconsideration by the Superior Court of its dismissal order. M.R.Civ.P. 73(g), however, does not permit the unilateral withdrawal of an appeal, ¹ and M.R.Civ.P. 73(f) limits the power of the Superior Court to act in a case after its docket is marked "LAW". ² Thus, unless the Superior Court's action with respect to the Motion for Reconsideration is authorized by Rule 73(f), its denial of the motion is a nullity and the evidence presented to support this motion is therefore beyond appellate cognizance. See 4 M.R.S.A. § 57; M.R.Civ.P. 73(f); Bancroft & Martin, Inc. v. Local No. 340, Truck Drivers, Warehouseman & Helpers Union, Me., 412 A.2d 1216- 17 (1980); Wescott v. Allstate Insurance, Me., 397 A.2d 156, 162 (1979) (Superior Court not the Law Court had jurisdiction over asserted error since it occurred prior to transmittal of record and marking of docket "LAW", prerequisites to the Law Court jurisdiction under former Rule 74(p)); Isely v. Wilkins, Me., 253 A.2d 51, 52-53 (1969); White v. Schofield, 153 Me. 79, 85-86, 134 A.2d 755, 759 (1957) (marking of "LAW" on Superior Court docket effectively terminates authority of Superior Court); Powers v. Rosenbloom, 143 Me. 408, 409, 59 A.2d 844, 845 (1948) (after case entered in Law Court, Superior Court cannot amend bill of exceptions to incorporate pleadings and evidence); Page v. Bourgon, 138 Me. 113, 115-16, 22 A.2d 577, 578 (1941); Field, McKusick & Wroth, Maine Civil Practice § 73.11a (Supp.1981).

Although the Motion for Reconsideration does not indicate the procedural authority upon which it was based, the plaintiff contends on appeal that the motion was brought pursuant to M.R.Civ.P. 60(b)(6). ³ This rule, however, is not among those enumerated in Rule 73(f). ⁴ Indeed, the Supreme Judicial Court's Note of September 1, 1980, to Rule 73 provides:

4. This new Rule 73(f) directly parallels M.R.Crim.P. 37(d) providing that the appeal is docketed in the Law Court immediately following the filing of the notice of appeal and that the Superior Court takes no further action thereafter, with only certain specified exceptions generally relating to the prosecution of the appeal.

The Superior Court has continuing authority to dispose of any postjudgment motions (such as motions for new trial) that would under Rule 73(a) terminate the running of the time for appeal--even if a notice of appeal has been previously filed. The Superior Court has no authority to act upon a Rule 60(b) motion after the appeal is docketed in the Law Court, but in the rare set of circumstances where it would be appropriate for such a motion to be heard in the Superior Court before conclusion of the Law Court proceedings, the Law Court on motion may suspend the operation of Rule 73(f), see Rule 76A(c), and order the Law Court proceedings stayed pending Superior Court disposition of the 60(b) motion.

(Emphasis added.) Field, McKusick & Wroth, Maine Civil Practice, 431 (1981 Supp.). Thus, it is clear that the Superior Court was without the power to act on the motion brought pursuant to Rule 60(b) while the appeal commenced by the filing of the first notice of appeal was pending before this Court. Accordingly, we review only the trial court's initial dismissal order in light of the evidence presented to the Superior Court before the filing of the first notice of appeal. We express no opinion on either the merits of the plaintiff's 60(b) motion or the court's dismissal of that motion. ⁵

II.

With respect to the merits of the appeal, two issues are raised regarding the court's disposition of the case on summary judgment. ⁶ These are: (1) whether the Superior Court correctly interpreted the meaning of the good cause and the substantial compliance exceptions to § 8107 AND (2)⁷ whether the existence of material issues of fact relating to the operation of these exceptions precluded the disposition of the case by summary judgment.

Under § 8107(1), a party must file with the State a notice containing specified information regarding the claim against the State within 180 days after a cause of action accrues unless "a claimant shows good cause why notice could not have reasonably been filed within the 180 day limit." (Emphasis added.) Subsection 4 of § 8107 provides that "no claim ... shall be commenced against a governmental entity unless the foregoing notice provisions are substantially complied with." (Emphasis added.) The Superior Court implicitly noted that the plaintiff did not file notice within 180 days and dismissed the case on the ground that the substantial compliance exception did not apply when notice was not filed within this time period.

The plaintiff urges that this ruling is in error because he asserts that the substantial compliance exception is available so long as notice is within the two year statute of limitations prescribed by § 8110 and the State is not prejudiced by this delay. We disagree. In light of the distinct nature of the good cause and substantial compliance exceptions, we conclude that the substantial compliance exception is applicable only when the 180-day requirement of § 8107(1) is satisfied.

The general purposes of a notice requirement are to save needless expense and litigation by providing an opportunity for amicable resolution of disputes, and to allow the defendant to fully investigate claims and defenses. See Dougherty v. Oliviero, Me., 427 A.2d 487, 489 (1981) (notice provision of Maine Health Security Act); Dunton v. Eastern Fine Paper Co., Me., 423 A.2d 512, 518 (1980) (notice provision of Workers' Compensation Act); Marcotte v. City of Lewiston, 94 Me. 233, 235, 47 A. 137, 138 (1900) (notice provision of 23 M.R.S.A. § 3655; suits...