Harris Baking Co. v. Mazzeo

• Decision Date: 01 September 1972
• Citation: 294 A.2d 445
• Parties: HARRIS BAKING COMPANY v. David MAZZEO.
• Court: Maine Supreme Court

Page 445

294 A.2d 445

HARRIS BAKING COMPANY v. David MAZZEO.

Supreme Judicial Court of Maine.

Sept. 1, 1972.

Morton A. Brody, Waterville, for plaintiff.

Domenic P. Cuccinello, Thomaston, for defendant.

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

WERNICK, Justice.

Plaintiff instituted a civil action against defendant in the District Court, District Seven, Division of Northern Kennebec. The complaint alleged a balance of $575.30 due for goods sold and delivered to defendant and sought judgment for that amount plus interest and costs. Defendant answered denying liability and filed a counterclaim asking damages of $500.00, interest and costs, on the theory that plaintiff had acted oppressively in bringing suit

'with knowledge that any amount due the plaintiff from . . . defendant had been paid as agreed.'

Plaintiff filed a reply to the counterclaim.

The District Court Judge, after hearing, entered judgment for the plaintiff of $575.30 and costs; and on the counterclaim judgment was awarded for the 'defendant-in-counterclaim' (the plaintiff in the action, Harris Baking Company).

The Judge supported his adjudication with an opinion in which, inter alia, he said:

'I find that a contractual relationship existed between the plaintiff and the defendant and that the defendant purchased the goods retailed by him directly from the plaintiff. I further find that there is a balance of $575.30 due the plaintiff from the defendant on the account between the parties.'

Subsequently, and by a timely motion under D.C.C.R. Rule 52(a), defendant requested

'the court to find the facts specially, and to include the testimony of Ronald B. Reynolds thereto, and to state separately its conclusions of law thereon.'

On this motion the Judge ruled:

'Findings of fact and conclusions of law appear in . . . (the prior) written decision . . . copy of which is attached hereto.'

He added that notice of the written decision had previously been given to the parties.

Defendant then filed a timely appeal to the Superior Court (D.C.C.R. 73). As an incident of the appeal, under authority of D.C.C.R. 75(c), defendant submitted a 'Statement of the Evidence . . . for use instead of a stenographic transcript.' In it defendant presented evidence tending to undermine the ultimate legal conclusions reached in the opinion of the Judge of the District Court.

After objections had been made by plaintiff to defendant's proposed Statement of the Evidence, the Judge of the District Court, purportedly in compliance with the procedure delineated by D.C.C.R. 75(c),-(that the District Court shall settle and approve the matters to be included in the record on appeal to be filed in the Superior Court)-ruled:

'The evidence in the above matter as settled and approved is stated in this Court's decision . . .'

as previously rendered.

After a disposition of defendant's appeal in the Superior Court (to be discussed more fully hereinafter), defendant purportedly appealed to this Court. As one of a plurality of issues defendant seeks to have decided whether the District Court Judge had correctly discharged his obligation under D.C.C.R. 75(c).

Notwithstanding the potential importance (in terms of general interest) of defendant's contentions concerning the appropriate discharge of the Court's function under D.C.C.R. 75(c), we must dismiss the present appeal for lack of jurisdiction in the Law Court.

I

While the case was pending in the Superior Court defendant assigned it for hearing on May 7, 1970. After the hearing a Justice of the Superior Court made a decision which is reflected in notation entered by the Superior Court Justice on a file folder (containing various documents in the case). This notation stated:

'July 10, 1970 Defendant's appeal dismissed.'

The Clerk's docket entries show:

'July 10, 1970 Defendant's appeal dismissed. . . .'

but nothing appears on the docket informing that copies had been mailed to the attorneys. There is a further docket entry, however, which states:

'August 16, 1971 Remand Order filed. Case remanded to Northern Kennebec District Court. . . . Copies mailed to attorneys.' (emphasis supplied)

Confronted with the predicament that the opportunity for appeal to the Law Court might have been lost because of the docket entry of July 10, 1970, of which counsel had been unaware, counsel for the defendant sought to salvage the rights of his client by electing to file a motion in the Superior Court, under date of August 26, 1971, which he entitled 'Motion for Stay of Execution.' In it counsel claimed that execution should be stayed

'by reason of the fact that notice of said decision or judgment by the court was sent to the . . . attorney on August 19, 1971, by sending the said attorney a photostatic copy of notation made by the Justice of said court on the file folder, which notation was dated July 10, 1970.'

The motion further averred:

'That the Justice of the Court has issued a remanding order dated August 18, (sic) 1971, and remanded the file and record to the District Court, District VII, Div. of Northern Kennebec for entry of judgment as determined and issuance of appropriate processes.'

For this reason, defendant maintained that

'the file and record should remain in the Superior Court and . . . stay of execution . . . should be made so that the defendant can file his appeal within 30 days . . ..' (emphasis supplied)

When he filed his motion for stay of execution defendant did not simultaneously, or shortly thereafter, file a notice of appeal to the Law Court. Rather, defendant chose to inform the Court in his motion that

'defendant intends to appeal from this judgment of the Superior Court' (emphasis supplied)

-thereby indicating to the Court that he would await a decision on his motion before he would file any notice of appeal.

It was not until October 29, 1971 that the Justice of the Superior Court ruled on defendant's motion. The Court granted the motion and stayed the issuance of any execution from the District Court, ordering the file and record to be returned to the Superior Court from the District Court.

On November 19, 1971 defendant filed his notice of appeal to the Llaw Court. ¹

II

Defendant's motion omits reference to any applicable Court rule. Since it identifies itself as a 'Motion for Stay of Execution', it seems plausible that we should treat it, at least initially, as filed pursuant to the authorization of Rule 62(a) M.R.C.P. which deals with the subject-matter of stays of execution. ²

Thus considered, the motion of defendant may be interpreted to assert the position, and to seek a declaratory adjudication (and relief), that execution must be stayed on the judgment because 'the expiration of 30 days after its entry . . .' had not yet occurred and the time for appeal was, therefore, still open as of, and after, the date of the filing of the motion, August 26, 1971. The theory would be that the docket entry of July 10, 1970, 'Defendant's appeal dismissed . . .' must be ignored because of the docket entry on August 16, 1971 which showed an order of remand by the Superior Court, thereby indicating that the Superior Court's jurisdiction had been continuing after July 10, 1970 and until, at least, August 16, 1971.

On this same rationale the decision of the Justice of the Superior Court, on October 29, 1971, granting the motion of defendant and staying execution on the judgment could be interpreted as an adjudication that the 30 days within which to file notice of appeal had commenced to run not on July 10, 1970 but rather on August 16, 1971.

Yet, even this interpretation of the Superior Court's stay of execution fails to astablish that defendant's appeal to this Court is timely. With August 16, 1971 taken as the date of the entry of the judgment from which notice of appeal was to be filed, both the original 30 days and the maximum additional 30 days allowable as a possible extension under Rule 73(a) had already expired when defendant filed his notice of appeal on November 19, 1971.

Defendant derives no assistance from the statement of the Superior Court Justice, 'Defendant's appeal having been timely, . . .' which was offered as the prelude to the Court's order granting the stay of execution.

If, by this language, the Superior Court Justice was purporting to hold that the defendant had already, prior to the date of the Court's decision on October 29, 1971, effected a timely appeal to the Law Court because the Justice, in the unique circumstances presently involved, had chosen to consider defendant's motion for a stay of execution as itself a notice of appeal, such approach is here untenable.

Defendant's motion plainly and explicitly acknowledged that defendant was seeking a Court adjudication (declaring that the time limits for filing notice of appeal were still open as of August 26, 1971 and thereafter) and that he would wait for such adjudication to be forthcoming before he would file his notice of appeal. In clear language the motion stated that judicial relief must first be afforded 'so that the defendant can file his appeal within 30 days'; and the motion further avowed that once such judicial declaration and relief were forthcoming, '. . . defendant intends to appeal.'

In such circumstances we consider it an impermissible stretching of fact and of legal concepts to transform a document clearly designed to function as other than a notice of appeal into that which it was not in fact and was not in fact intended to be.

That the Justice of the Superior Court had failed to rule on the motion of defendant before the maximum time periods allowable under Rule 73(a) M.R.C.P. had already expired cannot be held an extenuating circumstance to permit the filing of the motion for stay of execution to be treated as the equivalent of the filing of a notice of appeal.

One who seeks the adjudication of a Court declaring that the time period for filing notice of appeal to...