Ingham v. Tzikas
| Decision Date | 04 June 1974 |
| Citation | 320 A.2d 665 |
| Court | Maine Supreme Court |
| Parties | Dwight M. INGHAM et al. v. Evangelos TZIKAS. |
Sanborn, Moreshead, Schade & Dawson by Richard B. Sanborn, Augusta, for plaintiffs.
Harold J. Shapiro, Jeffrey A. Smith, Gardiner, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.
The complaint in this action sought a declaratory judgment that the appellant herein had violated a restriction on the land which he owned by construction of an addition to a building.
The appellees were the original owners of a development and were the appellant's grantor.
The complaint recites that the premises of the defendant, and all other lot owners in the development, are subject to the following restrictions and conditions:
'No building shall be erected or placed upon these granted premises which costs erected less than Seventy-five Hundred ($7,500.00) dollars except a garage and/or out house appurtenant to the dwelling house thereon, or shall such building be used for other than dwelling house purposes, and in case of such garage or outhouse, such are to be used for garage or other reasonable purposes in connection with said dwelling house; and no part of these granted premises or any structures erected thereon, shall be used for commercial purposes.
'No building shall ever be erected or placed on said granted premises within thirty-five (35) feet of the east and northeast lines of Forest Avenue, but this restriction does not prevent the erection of proper and legal fence on said premises.'
The complaint then alleged the violation by appellant consisted of commencing to construct a garage with an apartment over it which apartment was to be rented.
Answer to the complaint was seasonably filed. Thereafter the parties entered into an agreement of reference pursuant to Rule 53, M.R.Civ.P.
The Order of Reference contained a provision that 'the report of the Referee shall be final and conclusive.' The same provision was in the agreement of reference.
After hearing, the Referee made findings adverse to the appellant. An exchange of letters between the attorneys followed:
The attorney for the appellees wrote:
This brought the following response from appellant's attorney
'As attorneys for the Tzikas' we have no objection to your motion for acceptance of referee's report, provided that our right to appeal any decision of the Superior Court is not infringed.'
The report was thereafter presented to a Justice of the Superior Court for acceptance. It was accepted and an injunction was issued. Almost immediately thereafter the appellant filed notice of appeal. Nothing was done by either party for the record until some five months thereafter when the appellees filed a motion to dismiss the appeal, alleging as the basis of such motion, that no right to object to the acceptance of the Referee's report was reserved, and, therefore, the Order accepting the Referee's report was not appealable.
Shortly thereafter the appellant filed a reply to the motion to dismiss the appeal together with a motion under Rule 60(b), M.R.Civ.P., seeking to be relieved of the effect of the agreement of reference and the Order thereon so as to make the acceptance of the report and the judgment that an injunction should issue appealable.
The Superior Court Justice granted the appellees' motion to dismiss the appeal 1 and denied relief under Rule 60(b).
This appeal resulted.
We dismiss the appeal.
The motion which the appellant filed under the provisions of Rule 60(b), M.R.Civ.P., was addressed to the sound discretion of the presiding Justice and is reviewable by this Court only for an abuse of discretion. Willette v. Umhoeffer, Me., 245 A.2d 540 (1968); Northland Industries, Inc. v. Kennebec Mills Corporation, 161 Me. 455, 214 A.2d 100 (1965).
In the motion under Rule 60(b), the appellant referred to his
'inadvertance, excusable neglect, mistake, and surprise in misinterpreting the effect of his agreement to reference and the finality and conclusiveness of the referee's report, . . ..'
At no time did he describe any claimed facts to support these conclusionary words.
We are unable to find any basis for the claim that the presiding Justice abused his discretion in denying the relief sought under Rule 60(b).
We are left then only with appellant's claim that the statement found in Jordan v. Hilbert, 131 Me. 56, 58, 158 A. 853, 854 (1932),
is no longer operative under the Maine Rules of Civil Procedure which were adopted effective December 1, 1959, many years after Jordan v. Hilbert was decided.
We do not agree.
Rule 53(e)(2) specifically provides in part:
'In an action where there has been a...
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Frank v. Assessors of Skowhegan
...controls. Any case may be referred by agreement under Rule 53(b)(1) unless a statute expressly prohibits reference. (See Ingham v. Tzikas, Me., 320 A.2d 665, 668 (1974)). Before any order of reference without agreement may issue, showing must be made some exceptional condition warrants refe......
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...the Superior Court. Its denial of the motion for such relief is reviewable by this Court only for abuse of discretion. Ingham v. Tzikas, Me., 320 A.2d 665, 667 (1974); Warren v. Waterville Urban Renewal Authority, Me., 290 A.2d 362, 365 (1972). A party seeking such relief from judgment had ......
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