Hazzard v. Westview Golf Club, Inc.

• Citation: 217 A.2d 217
• Parties: Charles D. HAZZARD et al. v. WESTVIEW GOLF CLUB, INC., et al.
• Decision Date: 18 February 1966
• Court: Supreme Judicial Court of Maine (US)

Page 217

217 A.2d 217

Charles D. HAZZARD et al. v. WESTVIEW GOLF CLUB, INC., et al.

Supreme Judicial Court of Maine.

Feb. 18, 1966.

William M. Finn, Joseph B. Campbell, Augusta, for plaintiffs.

Arthur A. Hebert, Frederick P. O'Connell, Frank E. Southard, Jr., Augusta, for defendants.

Before WEBBER, TAPLEY, MARDEN, RUDMAN, and DUFRESNE, JJ.

DUFRESNE, Justice.

In the course of the liquidation of the defendant corporation, Westview Golf Club, Inc., the receiver petitioned the Superior Court for authority to sell the corporate real estate, part of which consisted of a nine hole golf course, a miniature golf course, a driving range, a putting green and a club house; his request included the right simultaneously to dispose of the dining room and kitchen equipment and miscellaneous other gold merchandise and equipment. By decree of March 11, 1965, the receiver's petition to sell the real and personal property of the corporate defendant 'at either public or private sale at auction or otherwise' was approved. The receiver sought bids from some 9 or 10 'golf interests' in the state, and the mortgagees also made efforts at finding purchasers. In response thereto, Louis F. Bourque and G. Leo Bourque, to be hereinafter referred to as the Bourques, submitted a bid of $76,000.00 along with earnest money as required by the bid invitation. On April 16, 1965, the receiver sought confirmation of the sale of the property to the Bourques at that price.

On April 17, 1965, opposition arose to the confirmation of the sale to the Bourques from a lien creditor who objected on the grounds that no public notice for bids had been given and no notice of the proposed sale to the Bourques had been sent to the creditors. The hearing was continued to April 19, 1965, at which time the Wheeler group, so-called, through counsel, manifested an interest in purchasing the property at a price to exceed $76,000.00, but wished further time to obtain information and to arrange for financing. The hearing was further postponed to April 24, 1965, and public notice given for others interested in purchasing at a price in excess of $76,000.00, to be prepared to make a firm offer of purchase and deposit 20% of the purchase price offer.

On April 24, 1965 the hearing was finally continued to the following day, April 25, 1965, and the situation at that time was as follows: The Bourques were standing on their previous bid of $76,000.00; the Wheeler group asked for recognition; the court expressly reserved to the Bourques their legal position in relation to their bid, but explored the prospects of a higher bid. When a dispute arose as to the manner of procedure in such exploration, the court decided to proceed by auction, at which time the Wheeler group submitted a bid of $80,000.00 and turned over the required earnest money to the receiver. The court reserved its decision until the next day, April 26, 1965, when by written memorandum, it decided:

'Hence, the remaining problem is a balancing of the equities between the Bourques and the Wheeler Group, taking also into consideration the position of the second mortgagee. It is inconceivable that the Wheeler Group were unaware of the insolvency of 'Westfield' (sic) Golf Club, Inc., during the last three months. This Group had adequate opportunity to contact the Receiver at any time in the effort to negotiate the purchase of the property. It apparently showed no such active interest. The Receiver asked all of the persons he had contacted and who showed an active interest to submit written bids along with earnest money by a certain date. The only bid received was that of the Bourques for $76,000.00. One must conclude that when it became known that the property was sold, subject to Court confirmation, for that amount, the Wheeler Group decided that they could afford to offer a larger sum. Under these circumstances this Court does not feel that equity and justice require it to refuse to confirm the sale to the Bourques at least at some price.

Therefore, the Order of this Court is that a sale to the Bourques will be confirmed at a price of $80,000.00, plus agreement to pay 1965 City taxes. If the Bourques are unwilling to pay the $80,000.00, then the Wheeler Group may have the property at said $80,000.00 provided, however:

A. The Bourques may be heard once more should they refuse to pay the $80,000.00 on the question of the Court's right to refuse to confirm for $76,000.

B. The second mortgagee may be heard, if he choses, at the same time and on the same issue as is presented in paragraph A above.

If the Bourques decide to pay $80,000, plus the 1965 City taxes, the matter is concluded in their favor. If they do not so decide, and wish to be further heard on their right to purchase for $76,000, the Court will set the matter for hearing Friday, April 30th, at a time of day to be later agreed upon.'

On April 28, 1965, the Wheeler group moved the court to reopen the hearing on petition for approval of the sale, on the ground that they were ready and willing to improve upon their $80,000.00 bid. The Bourques did consent to advance their bid to $80,000.00 and by decree of April 29, 1965, the justice of the Superior Court ordered that 'said sale of said property of Westview Golf Club, Inc. to said Louis F. Bourque and G. Leo Bourque be confirmed; and that said Receiver be authorized and directed to execute and deliver to said Louis F. Bourque and G. Leo Bourque all deeds, bills of sale, and other instruments necessary and proper to convey to them the property of said Westview Golf Club, Inc.'

The receiver's bond was approved on May 5, 1965, and his interim report with copies of deed and bill of sale evidencing the sale was filed.

The Wheeler group on May 17, 1965, appealed from the order of confirmation of the sale to the Bourques, and in order to protect its status as a party appellant, it formally sought leave to intervene as plaintiffs and the court granted intervention on May 27, 1965, at which time the Wheeler group as plaintiff-intervenors, formally renewed their appeal from the confirmatory order of sale. The Bourques similarly applied for and received formal status as defendant-intervenors, and cross-appealed from the court's grant of intervention to the Wheeler group.

Initially, let us say that all parties concede that no fraud is involved in this case and that all participants acted in good faith.

M.R.C.P. Rule 62(a) as amended, reads as follows:

'Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 30 days after its entry or until the time for appeal from the judgment as extended by Rule 73(a) has expired. Unless otherwise ordered by the court, on interlocutory or permanent injunction or a judgment in a receivership action or, in an action for divorce, an order relating to the care, custody and support of minor children or to the separate support or personal liberty of the wife shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. (Emphasis supplied) The provisions of subdivision (d) of this rule govern the suspending, modifying, restoring or granting of an injunction during the pendency of an appeal.'

Was the decree involved in the Wheeler appeal, to wit, the order confirming the sale to the Bourques, a judgment in a receivership action within the meaning of Rule 62(a)?

We take notice that F.R.Civ.P., Rule 62(a), in its pertinent part, is worded somewhat differently from the Maine rule.

'Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action * * * shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal.' (Emphasis added).

The federal rule specifically applies to interlocutory or final judgments both in an action for an injunction or in a receivership action, while the Maine rule applies to injunctions, interlocutory (restraining order and preliminary injunction) or permanent, and to judgments in a receivership action. Whether an interlocutory judgment in a receivership action, is within the term 'judgment' in M.R.C.P. Rule 62(a), we need not determine at this time.

M.R.C.P. Rule 54(a): "Judgment' as used in these rules includes a decree and any order from which an appeal lies. * * *'

Generally, an appeal lies only from and after a final judgment, decree or order. Fidelity & Casualty Co. v. Bodwell Granite Co., 102 Me. 148, 152, 66 A. 314, 316:

'All interlocutory motions and other interlocutory matters should be disposed of at nisi prius, saving to the parties their rights of exception or appeal, if any. They should not be sent to the law court, even upon report at the request of the parties, except at such stage of the case, or upon such stipulation, that a decision of the question may, in one alternative at least, dispose of the case itself. The Legislature in constituting the law court and defining its jurisdiction (Rev.St. c. 79, § 46) did not intend it to be used as a substitute for presiding justices nor to relieve judges in the trial courts from the duty of deciding, as they arise, mere interlocutory questions incident to the progress of the trial or the case.'

Andreau and Dostie v. Wellman, 142 Me. 271, 50 A.2d 193.

Exceptions to the general rule are provided under M.R.C.P. Rule 54(b), Rule 72(c), and possibly may exist in cases of injunctions. See Field and McKusick, Comments under Rule 73. See also, Burt Company v. Burrowes Corporation, 158 Me. 237, 240, 182 A.2d 481, 483.

A final appealable judgment, decree or order, may exist in a number of different situations.

Where the judgment fully decides and disposes of the whole cause leaving no further questions for the future consideration and judgment of the Court, the finality thereof is obvious. Gilpatrick v. Glidden, 82 Me. 201, 203, ...