Farrell v. Theriault

• Decision Date: 15 August 1983
• Citation: 464 A.2d 188
• Parties: Frederick L. FARRELL v. Robert W. THERIAULT, et al.
• Court: Maine Supreme Court

Page 188

464 A.2d 188

Frederick L. FARRELL v. Robert W. THERIAULT, et al.

Supreme Judicial Court of Maine.

Argued June 6, 1983.

Decided Aug. 15, 1983.

Thompson, Willard & McNaboe by Nicholas Bull (orally), Portland, for plaintiff.

Grover G. Alexander (orally), Gray, for defendants.

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

DUFRESNE, Active Retired Justice.

A complaint for foreclosure of a real estate mortgage and sale of the subject property was filed by Frederick L. Farrell, the plaintiff, against the defendants, Robert W. and Joan E. Theriault, husband and wife, in Superior Court, Cumberland County, on June 4, 1982, pursuant to 14 M.R.S.A. §§ 6321, et seq. From the summary judgment in favor of the plaintiff, the defendants appeal to this Court. We affirm the Superior Court judgment.

The plaintiff's complaint, the motion for summary judgment, the accompanying affidavit and exhibits, establish the following facts. On November 20, 1980, the defendants executed and delivered a promissory note in the amount of $20,500.00 to the plaintiff and his wife, as well as a mortgage of real estate situated in the Town of Gray to secure the note. The mortgage provided, among other things, that the defendants-mortgagors shall not commit any breach of any covenant contained therein, and among the reference covenants they undertook to pay all taxes and assessments on the granted premises, to whomsoever laid or assessed. The promissory note contained the specific clause: if "the undersigned shall default ..... in the terms of a certain real estate mortgage given to secure this obligation, then the holder hereof may declare that the entire outstanding principal balance and all interest accrued thereon shall become immediately due and payable." The defendants had not paid the 1981 taxes to the Town of Gray in the amount of $364.72, and, by reason thereof, a tax lien claim against the mortgaged property had been recorded in the Cumberland County Registry of Deeds on May 14, 1982. By letter dated May 17, 1982, and served on May 21, 1982, on the respective defendants, the plaintiff, as the sole holder and owner of the defendants' note and mortgage by mesne assignments thereof, notified them that he was declaring the entire outstanding principal balance under the note and mortgage to be due and payable, payment to be made on or before 5:00 p.m. on May 27, 1982. The defendants' failure to comply with the request for payment of the note in full led to the plaintiff's present action on June 4, 1982.

The defendants in their answer filed on June 16, 1982, merely denied generally the allegations of the plaintiff's complaint pursuant to Rule 8(b), M.R.Civ.P. Farrell then filed his motion for summary judgment on August 9, 1982, with affidavit and exhibits supporting all the allegations of his complaint pursuant to Rule 56, M.R.Civ.P. The plaintiff's motion for summary judgment was originally scheduled to be heard on September 24, 1982, but was later rescheduled for Wednesday, at 9:00 a.m., November 3, 1982. The notice of rescheduling carried the following pertinent information:

... All counsel will be present and prepared to proceed with such matters at the stated times.

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Legal memoranda concerning such motions will be filed with the Clerk of Courts and exchanged with opposing counsel at least four days prior to hearing.

Motions for continuance ... will be filed in writing on or before November 1, 1982 with appropriate notice given to opposing counsel.

On November 3, 1982, an associate of defense counsel appeared before the presiding justice and presented to the trial court for the first time defense counsel's motion for continuance of the hearing on the motion for summary judgment. This motion was supported by affidavit that he, defense counsel, had commenced a jury trial in York County, that the case of Farrell v. Theriault is a substantial matter and that justice requires the hearing on the motion be continued to permit counsel for the defendant to be present. Counsel for the plaintiff objected to the continuance, pointing out that no opposing affidavit had been served on the plaintiff prior to the hearing date, nor had the defendants complied with the schedule notice requiring the filing of a legal memorandum at least four days prior to hearing; furthermore, trial counsel's motion for continuance was filed after November 1, 1982, the last date for making such a motion under the terms of the schedule notice. Associate counsel confirmed at the hearing that he was not prepared to proceed with the matter, which was contrary to the court directive given in the listing of the hearing schedule.

The record indicates that the civil jury trial list for York County for November 1 and November 3, 1982 was mailed to attorneys on October 12, 1982, and that 5 cases were scheduled for Monday, November 1st and 5 cases for Wednesday, November 3rd, trial counsel's York County case being listed for Wednesday, the 9th case of the 10 first cases on the list. The trial justice denied the motion for continuance and granted the motion for summary judgment. In this, there was no error.

Denial of Motion for Continuance

A motion for continuance should be filed promptly after the need for a continuance arises. ¹ See Harvey, McGuire and Wroth, Maine Civil Practice, § 40.3, p. 284. The party seeking a continuance has the burden of showing sufficient grounds for granting the motion and the ruling of the presiding justice denying the motion is reviewable only for abuse of discretion. See 1 Field, McKusick and Wroth, Maine Civil Practice, § 40.3, p. 566 (2d ed. 1970); State v. Curtis, 295 A.2d 252, 254 (Me.1972); State v. Simmonds, 313 A.2d 120, 122 (Me.1973).

In this case, defense counsel failed to include in the record on appeal a copy of his motion for a continuance and the supporting affidavit thereto. It is imperative that counsel for an appellant include in the record all matters upon which he intends to rely. See 2 Field, McKusick and Wroth, Maine Civil Practice, § 74.2, p. 198 (2d ed. 1970). Statements in the appellant's brief are not evidence of alleged facts, when such facts if part of the record below have not been incorporated in the contents of the record on appeal. As stated in State v. Curtis, supra, at 255, the law has long required that the party requesting a continuance make known to the presiding justice substantial reasons why the granting of the continuance would serve to further justice. The record does indicate that trial counsel's York County jury trial date and his hearing on the instant motion for summary judgment had been set for the same day, November 3, 1982, sufficiently in advance to permit counsel to take some action with the court to protect himself against the potential conflict. The presiding justice was presented with no facts, so far as this record is concerned, which excused the defendant from complying with the court's order that any motion for a continuance in the case be filed at the latest on November 1, 1982, nor was he given any substantial reason whereby justice would be advanced by the grant of the continuance.

Furthermore, no showing was made at the trial court level nor in this Court that the denial of the motion for continuance had any adverse prejudicial effect on the substantial rights of the appellant. Any alleged error or defect in any ruling or order by the trial court which does not affect the substantial rights of the parties must be disregarded. See Rule 61, M.R.Civ.P. See also Blue Rock Industries v. Raymond International, Inc., 325 A.2d 66, 79 (Me.1974).

Grant of Motion for Summary Judgment

The defendant cites Spickler v. Carzis, 349 A.2d 173 (Me.1975), in support of his claim that the presiding justice committed reversible error when he denied his motion for continuance and granted the plaintiff's motion for summary judgment. In Spickler, the parties, although present in court, were denied the opportunity to orally present their respective legal arguments to the court and to address the merits of the summary judgment motion. Here, the court did entertain the defendant's motion for continuance and gave the associate of the defendants' trial counsel the opportunity to address the merits of the summary judgment motion, an invitation which he declined. Thus, the case of Spickler is distinguishable; also, without further analysis, may we add that the case of Concord General Mutual Insurance Co. v. Labbe, 401 A.2d 1005 (Me.1979), the other citation relied upon by the defendant, presented a very different factual scenario from the facts of this case.

The plaintiff, as assignee-mortgagee seeking to foreclose the defendants' mortgage and proceed to a sale of the subject property to satisfy the mortgage indebtedness, could and did move for a summary judgment in his favor pursuant to Rule 56(a), M.R.Civ.P., and this he could do with or without supporting affidavit. Upon the filing and service of such a motion upon the adverse party, the rule provides (Rule 56(c)) that judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law, the rule expressly permitting the rendering of summary judgment on the moving party's motion against that party in favor of the adverse party when appropriate. Here, the plaintiff had attached to his complaint, so that his pleadings did disclose the same, copies of the note and mortgage on which the suit was based and which bore the defendants' purported signatures. Copies of the mesne assignments of the note and mortgage were also attached to the original complaint. In support of his motion for summary judgment, the plaintiff filed an affidavit in which, based on his personal knowledge and...