Lerman v. Inhabitants of City of Portland
| Decision Date | 17 October 1979 |
| Citation | 406 A.2d 903 |
| Parties | Russell E. LERMAN v. INHABITANTS OF the CITY OF PORTLAND. |
| Court | Maine Supreme Court |
Russell E. Lerman, pro se.
Charles A. Lane, William J. O'Brien, Jr., Portland, for defendant.
Before POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.
Acting pursuant to 17 M.R.S.A. § 2851, 1 the defendant ordered the demolition of a certain building in Portland of which the plaintiff was a part owner. This order prompted the plaintiff to file the complaint and summons authorized by Rule 80B, M.R.Civ.P., thus in effect appealing the action of the defendant governmental agency to the Superior Court. The Superior Court ordered the action dismissed, from which order the plaintiff appealed.
We deny the appeal.
17 M.R.S.A. § 2852 provides:
Any person aggrieved by such order may, within 30 days after said order is made and recorded, file an appeal therefrom to any Justice of the Supreme Judicial or Superior Court who shall, after notice and hearing, Affirm, annul or alter such order and may render such judgment as to costs as justice requires. (emphasis supplied)
On the docket of the Superior Court the case became a civil action focusing on the validity of the demolition order issued by the defendant. The case thus became subject to the Maine Rules of Civil Procedure, including Rule 16, containing provisions that a pre-trial order may issue after a pre-trial conference. Rule 16(c)(4), M.R.Civ.P. An analysis of the docket indicates that such a conference was scheduled and held on January 31, 1978, at which time the plaintiff, who appeared pro se following withdrawal of his attorney, was not present although notice thereof had been previously given to him. That the plaintiff was seasonably notified is evident by his personally signed motion asking for a continuance of the pre-trial conference, which was denied because "not timely filed." As a part of the pre-trial order that issued, the plaintiff was "ordered to produce record on appeal Within 20 days." (emphasis supplied). On May 30, 1978, a Superior Court Justice, acting on the defendant's motion for sanctions against the plaintiff for failure to comply with the pre-trial order, denied the motion for sanctions but ordered the plaintiff to comply with the order within thirty days, adding this handwritten caveat: "In the event the pre-trial not complied w/ the complaint is dismissed."
The plaintiff then made an abortive effort to remove the case to the United States District Court, which ordered the case restored to the docket of the Superior Court. On December 22, 1978, once again acting on defendant's motion to dismiss for failure to comply with a pre-trial order, a justice of the Superior Court ordered the complaint dismissed. It is this order which generates the instant appeal.
One of the issues isolated in the pre-trial order was the "propriety of the order of Mun. Officers of City of Portland." Therefore, the record made at the hearing held by the Portland City Council would have been critical to have before the Superior Court in order that it might determine whether it should "affirm, annul or alter" the demolition order. The rather adamant refusal of the plaintiff to furnish this information has not been justified. As we have noted, Mr. Lerman was ordered to obtain this information on January 31, 1978, but it was not until December 22, 1978, that the sanctions were imposed, even though his default had been in existence since February 20th.
Rule 16(d), M.R.Civ.P., authorizes the court, in the event of a failure to comply with the mandate of a pre-trial order, to "impose upon the party or his attorney or both such penalties and sanctions as the circumstances warrant, which may include the dismissal of the action . . .." It is basic that the Law Court may reverse such a decision only if the presiding justice has abused the discretion vested in him under this rule. We note the commentary in Field, McKusick and Wroth, Maine Civil Practice, that Rule 16(d) "recognizes the inherent power of the court to enforce the provisions of the rule aimed at making pre-trial procedure effective," and also that "the court has wide discretion to take other measures as...
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