Magno v. Town of Freeport
| Decision Date | 04 January 1985 |
| Citation | 486 A.2d 137 |
| Parties | Arvid MAGNO v. TOWN OF FREEPORT. |
| Court | Maine Supreme Court |
Palmer & Ames, James G. Palmer, Lucy Bettis (orally), Brunswick, for plaintiff.
Bernstein, Shur, Sawyer & Nelson, F. Paul Frinsko, Christopher L. Vaniotis (orally), Portland, for defendant.
Before NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ., and DUFRESNE, A.R.J.
Arvid Magno, the plaintiff-appellant, appeals from summary judgment rendered against him on motion made by the defendant-appellee, Town of Freeport. We affirm the judgment of the Superior Court.
The plaintiff's complaint sought relief against the town's foreclosure of certain tax liens filed against the plaintiff's real estate located in Freeport. These liens involve municipal taxes assessed against the property for the tax years 1977 to 1981, both inclusive. On November 16, 1982, the plaintiff through his attorney tendered the aggregate amount of $3550.00 in payment of all taxes then due the defendant town in his attempt to redeem from the town's liens. Payment was refused on the ground that the statutory period of redemption applicable to these tax liens had already expired and, as a consequence thereof, the plaintiff's title to the property had been forfeited to the town.
The instant complaint was brought on December 2, 1983; the plaintiff requested from the Superior Court (Cumberland County) an order compelling the Town of Freeport to accept payment of the pertinent property taxes as assessed and to release all liens on his property on an asserted equitable estoppel theory. The defendant town joined the issues raised by the plaintiff's complaint by answer received on January 9, 1984. On June 1, 1984, the town filed its motion for summary judgment pursuant to Rule 56(b), M.R.Civ.P., supported by proper affidavits of the pertinent town officials and accompanied by a memorandum of law as required by Rule 7(b)(3). Simultaneously, by consent of counsel for both parties, the motion was scheduled for hearing on June 25, 1984. The only other pleading prior to the hearing date of June 25th was the plaintiff's motion for continuance of that hearing filed on June 22, 1984. The motion for continuance was denied and hearing on the motion for summary judgment was heard as scheduled.
By order dated June 25, 1984, received in the office of the clerk on June 27, 1984, at 8:12 a.m., the presiding justice granted the town's motion for summary judgment as requested. The plaintiff, on the latter day, i.e. on June 27, 1984, but in the afternoon of that day, to wit, at 1:21 p.m., filed in the clerk's office, in alleged opposition to the defendant's motion for summary judgment, an affidavit of the former town manager of the Town of Freeport, together with a memorandum of law in support of the plaintiff's position, these documents being respectively dated June 26th and 27th. Magno appeals from the judgment in favor of the defendant town, briefing and arguing initially his claim of error on the part of the court in denying his motion for continuance of the hearing respecting the town's motion for summary judgment.
As may happen in busy law offices, conflicts may arise in the schedule of lawyers with state-wide or multiple-county practices. In the instant case, the lawyer representing the plaintiff was trying a criminal case in Kennebec County, which, according to the affidavit filed in support of the motion for continuance, would extend through the week of June 25, 1984. In late afternoon of Friday, June 22, 1984, an associate of the plaintiff's lawyer filed the motion for continuance, supported by the associate's affidavit. The existing conflict of the plaintiff's counsel made it impossible for him, so the affidavit stated, to be present in the Superior Court, Cumberland County, on Monday, June 25, 1984, the date set for hearing of the town's motion for summary judgment. The affidavit further alleged that, "due to the complexity of this case, it is not practical for another attorney from the law firm to prepare for and attend the said hearing." Notwithstanding such assertion, it would appear that the associate was present at the Monday session, argued for the continuance, and, when that was denied, proceeded to argue in opposition to the grant of summary judgment. We do not have the benefit of any transcript of these proceedings and the justice below did not state his reasons for denying the motion to continue the hearing.
The party seeking a continuance has the burden of showing sufficient grounds for granting the motion and the ruling of the presiding justice denying relief is reviewable only for abuse of discretion. See Farrell v. Theriault, 464 A.2d 188, 191 (Me.1983); Blue Rock Industries v. Raymond International, Inc., 325 A.2d 66, 79 (Me.1974); 1 Field, McKusick and Wroth, Maine Civil Practice, § 40.3, p. 566 (2d ed. 1970).
The fact that his attorney is professionally engaged elsewhere in the trial of a cause does not necessarily and automatically entitle a litigant to an absolute right to a continuance of his own pending cause, and the denial of the application for postponement of the matter for hearing or trial will ordinarily be sustained as an exercise of sound judicial discretion. Maistrosky v. Harvey, 133 So.2d 103 (Fla.App.1961). In this case, no showing was made that the denial of the motion for continuance had any adverse prejudicial effect on the substantial rights of the appellant in connection with the summary judgment question. Farrell v. Theriault, supra, at 192. Each case must depend largely upon its own facts and circumstances. Here, competent substitute attorney was present and apparently actively participated in the hearing; it is not intimated that there was a failure on the part of stand-in counsel to protect the plaintiff's rights at that stage of the proceedings fully and in effective lawyer-like manner. The court could take into consideration the fact that the issue before the court did not involve the trial of the cause itself, but only a procedural matter which a lawyer of ordinary skill and diligence should be able to deal with, as it had a right to take cognizance of the fact that plaintiff's regular counsel had not filed any memorandum of law in opposition to the town's motion for summary judgment within 10 days after service of the town's motion for summary judgment on June 1, 1984, as mandated by Rule 7(b)(3).
Upon review of this record, we are convinced that there was no showing made of any abuse of discretion on the part of the Superior Court justice in denying the plaintiff's motion for continuance.
As noted previously, the plaintiff's counter affidavit and memorandum of law in opposition to the town's motion for summary judgment were filed in the clerk's office after the court's decision on the motion had been rendered by the hearing justice and received by the clerk. Nothing in this record indicates that the trial justice was informed of the belated filing, and there is no docket entry showing that he on his own initiative took any action in relation thereto. True, the plaintiff, who had not moved for a summary judgment in his favor on a motion of his own, could possibly, pursuant to Rule 56(c), have served affidavits in opposition to the town's motion for summary judgment at any time between June 1, 1984 and June 25, 1984, the date set for hearing, but, as the rule says, prior to that date. On the other hand, Rule 7(b)(3) states that a party opposing a motion, such as the plaintiff in this case, shall file a memorandum of law in opposition to the motion within 10 days after service of the motion he opposes, unless another period of time is fixed by order of court. These procedural mandatory requirements of the rules may not be dispensed with informally as might be suggested by counsel's action in this case, if the objectives of our rules of civil procedure to secure the just, speedy and inexpensive determination of every action are to be met. The rules govern, and we decline to consider counsel's counter-affidavit and memorandum of law belatedly filed in this case.
The issue remains, however, whether it was proper for the trial court under the circumstances of the case to grant the town's motion...
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