Gosselin v. Better Homes, Inc.

• Decision Date: 27 August 1969
• Citation: 256 A.2d 629
• Parties: Dorothy B. GOSSELIN and Dorothy B. Gosselin, Adm'x of the Estate of Harvey E. Gosselin, Deceased v. BETTER HOMES, INC.
• Court: Maine Supreme Court

Page 629

256 A.2d 629

Dorothy B. GOSSELIN and Dorothy B. Gosselin, Adm'x of the Estate of Harvey E. Gosselin, Deceased v. BETTER HOMES, INC.

Supreme Judicial Court of Maine.

Aug. 27, 1969.

William S. Silsby, Jr., Ellsworth, for plaintiff.

Errol K. Paine, Bangor, for defendant.

Before WILLIAMSON, C. J., and WEBBER, DUFRESNE, and WEATHERBEE, JJ.

DUFRESNE, Justice.

On appeal by the defendant, Better Homes, Inc., from the amended judgment of the court below rendered April 9, 1968 whereby the plaintiff (individually and as administratrix of the estate of her deceased husband) was permitted to redeem certain real estate from defendant's mortgage dated August 14, 1965, upon the following conditions:

'Upon payment by plaintiffs to the defendant of the amount of $14,738.61 determined to be due as of January 1, 1968, with interest at the contract rate of 8 1/2% a year from January 1, 1968 to the date of this Amended Decree in the amount of $228.63, a total of $14,967.24, together with interest on $10,860.00 at the rate of 8 1/2% a year from the date of this Amended Decree to the date of payment, and such payment on or before May 1, 1968, plaintiff is entitled to a discharge of the mortgage. So Ordered.'

Defendant raises at the threshold of its appeal jurisdictional objections, contending that the justice below lacked the judicial power to amend his previous decree, and that, if he did have the authority to do so, he committed error in extending as he did the period of redemption. The factual background giving rise to these points of appeal may be outlined by the following recital. The court below had originally ordered redemption under a judgment dated December 28, 1967 upon condition that the amount found due and required for redemption of the mortgage be paid by January 1, 1968. The judgment, although filed on December 29, 1967, did not come to the attention of plaintiff's attorney, who was away on vacation, until January 11, 1968. It is true, as found by the justice below, that a copy of the judgment may have been in counsel's post-office box before the January 1st deadline as it should in the ordinary course of mail delivery. It is also true that counsel's partner who had been advised to keep a lookout for the decision and had been empowered to act if necessary did receive actual notice thereof after the holiday weekend on January 2, 1968. Plaintiff's counsel sought an amendment of the original judgment by motion dated January 12, 1968 praying 'that the judgment be amended under Rule 52-B (meaning Rule 52(b)) ordering the Defendant to release all its right, title and interest in the mortgaged premises upon tender and payment on (sic) the amount of the judgment within a reasonable time.' The court below granted relief under Rule 60 and under 'its inherent power to prevent a great injustice,' entering the foregoing stated judgment from which the defendant has appealed to this Court.

The presiding justice in granting relief under Rule 60 instead of under Rule 52(b) as requested by the plaintiff explained the reasons why he believed that the plaintiff could not obtain redress under Rule 52(b). He stated that '(t)he controversy on the Motion involves the expiration of the 10 day period under Rule 59 as compared to the reference to 10 days 'after notice of findings' under Rule 52. The undersigned holds that Rule 59 governs the situation at hand, and the Motion accepted as a Motion to Alter the Judgment was not timely filed. The only way the Rule can mean anything is to compute the 10 days from the entry of judgment, not from the time that it comes to counsel's attention.' These rules in pertinent part provide as follows:

Rule 52(a) Effect. 'In all actions tried upon the facts without a jury or with an advisory jury, the court shall, upon the request of a party made as a motion within 5 days after notice of the decision, or may upon its own motion, find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; * * * If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.' (Emphasis supplied.)

Rule 52(b) Amendment. 'The court may, upon motion of a party made not later than 10 days after notice of findings made by the court, amend its findings or make additional findings and, if judgment has been entered, may amend the judgment accordingly.' (Emphasis added.)

Rule 59(e) Motion to Alter or Amend a Judgment. 'A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.' (Emphasis ours.)

In holding that Rule 59 governed the situation and that the plaintiff's motion even though brought as a Rule 52 motion was restricted as to timeliness to a period of 10 days from the entry of the judgment instead of 10 days from notice of the findings made by the court as specifically expressed in Rule 52(b), the presiding justice committed error. The manifest difference in the time allowance within which these motions may be made was not accidental, but purposefully intended. As Field and McKusick stated in Maine Civil Practice, Reporter's Notes:

'Rule 52(b) permits a motion for amendment of findings only if made within 10 days after notice of the findings. This departure from Federal Rule 52(b), which measures the time from entry of judgment, is necessary since under Rule 52(a) findings need be made only upon request.'

Even though its immediate purpose be to amend the findings of the court, Rule 52(b) operates also as a vehicle to amend the ultimate judgment when judgment has already been entered at the time of the filing of the motion. Although it was labeled a motion to amend judgment in accordance with rule 52-B, meaning 52(b), the plaintiff's obvious purpose was to obtain an amendment of the implied finding of fact made by the court that the period from December 28, 1967 to January 1, 1968 within which the plaintiff was being given the opportunity to exercise her right to redeem by paying the amount of $14,738.61 found due under the defendant's mortgage was a reasonable time for redemption. Rule 52(b) explicitly authorizes motions not later than 10 days after notice of findings made by the court to amend the court's findings or make additional findings and contemplates legal modification of rights already adjudicated in expressly providing for the alteration of judgments already entered as a necessary effect of revision of basic findings of fact and conclusions of the court upon reconsideration. See Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714. The instant motion was filed on the tenth day after plaintiff's counsel through the agency of his partner received actual notice of the court's findings. It was in fact and in law a timely motion under Rule 52(b). Plaintiff's request for relief under Rule 52(b) should have been honored.

The mere fact that, unknown to counsel, the court's findings may have been in the firm's post-office box prior to January 2, 1968 is immaterial. The court's definitive decree containing a memorandum of findings and decision was filed with the Clerk of Courts on December 29, 1967, and notation of the decree in the civil docket was entered at that time as provided for by Rule 58, M.R.C.P. Rule 77(d) M.R.C.P., however, provides:

'Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon every party who is not in default for failure to appear, and shall make a note in docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a).'

The docket entries show that the Clerk did not serve a notice of the entry of the judgment upon the plaintiff as required by Rule 77(d), but only that copies of the decree were forwarded to all attorneys of record by the presiding justice. The mailing of the findings and decree by the justice below to the plaintiff's attorney was not notice of the entry of judgment as provided by the rules. Under such circumstances nothing short of actual notice could start the running of the 10-day period within which the plaintiff could move for relief under Rule 52(b). The defendant has not been aggrieved procedurally and the court below had jurisdiction to amend its findings and resulting judgment.

The defendant argues that, notwithstanding Rule 52(b), where in the instant case the judgment had been entered and the time for redeeming from the mortgage as stated in the decree had passed, the period of redemption had expired and the case was finally disposed of by the court subject only to the plaintiff's right of appeal. He cites for this contention Parsons v. Stevens, 1910, 107 Me. 65, 78 A. 347. We disagree. In Parsons, we said:

'From the foregoing authorities, as well as from the nature of judicial proceedings, it must be held to be established as a general and necessary rule of equity procedure governing this court, that a decree once deliberately formulated, signed, entered, and filed, cannot afterward be summarily revoked or vacated on motion for alleged mistakes of a party or even of the court; but that relief from such mistakes must be sought for through the more deliberate procedure provided for review, * * *.'

The Parsons' holding is no more law since the adoption of our Maine Rules of Civil Procedure. Rules 52(b), 59(e), 60(a) and (b) dealing with varied relief from findings and judgments replace the former practice under former rules of court or...