Northeast Inv. Co., Inc. v. Leisure Living Communities, Inc.

• Decision Date: 27 January 1976
• Citation: 351 A.2d 845
• Court: Maine Supreme Court
• Parties: NORTHEAST INVESTMENT CO., INC. v. LEISURE LIVING COMMUNITIES, INC.

Page 845

351 A.2d 845

NORTHEAST INVESTMENT CO., INC. v. LEISURE LIVING COMMUNITIES, INC.

Supreme Judicial Court of Maine.

Jan. 27, 1976.

Bernstein, Shur, Sawyer & Nelson by William W. Willard, Portland, for plaintiff.

Murray, Plumb & Murray by Peter L. Murray, Portland, for defendant.

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

DUFRESNE, Chief Justice.

The plaintiff-appellee, Northeast Investment Co., Inc. (Northeast), by complaint dated August 31, 1973, is seeking from the defendant-appellant, Leisure Living Communities, munities, Inc. (Leisure Living), damages for breach of contract in the amount of $91,666.70 and specific performance of that aspect of the contract under which Northeast claims an option to purchase twenty thousand (20,000) shares of Leisure Living stock. Northeast filed a motion under Rule 4A, M.R.Civ.P. to attach the real estate of Leisure Living in the amount of $100,000.00. ¹ On October 30, 1973 a Justice of the Superior Court, after hearing on the motion upon affidavits submitted by both parties, found 'that there is a reasonable likelihood that the Plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than $100,000.00,' and ordered that 'an attachment of the real property may be made against the Defendant's property in the amount of $100,000.00.' Following an unsuccessful attempt to have the interlocutory ruling reported to the Law Court, Leisure Living seasonably appealed. We deny the appeal.

I

Appealability of the interlocutory order approving the attachment

The parties agree that the order granting Northeast the right to attach the estate of Leisure Living in the amount of $100,000.00 is interlocutory in nature, and not a final judgment, order or decree. Indeed, an order permitting or denying an attachment does not conclude either party to the controversy upon any question of law or fact involved in the issues to be tried in the main action and the result of the trial may entirely eliminate the interlocutory matter from the case. A judgment, order or decree is interlocutory and not final which does not fully decide and dispose of the whole cause but leaves some questions for the future consideration and adjudication of the court. See Fidelity & Casualty Company v. Bodwell Granite Company, 1906, 102 Me. 148, 66 A. 314.

The present statute ² governing the jurisdiction of the Law Court does not specifically provide immediate reviewability on appeal of Superior Court rulings granting or denying attachments as some statutes in other jurisdictions expressly authorize. See Fredericksen v. Harney, 1962, 199 Cal.App.2d 189, 18 Cal.Rptr. 562; State v. District Court of the Tenth Judicial District, 1954, 128 Mont. 526, 278 P.2d 1000; First Trust & Savings Bank v. Randall, 1936, 57 Idaho 126, 63 P.2d 157. Nor does our statute talk in terms of appealability from final judgments. Rule 73, M.R.Civ.P. similarly does not address itself specifically to final judgments, since it provides generally:

'Whenever a judgment of the Superior Court or of a single justice of the Supreme Judicial Court is by law reviewable by the Law Court, such review shall be by appeal in accordance with these rules.'

Our Court has, however, as a matter of sound judicial policy, adopted the general rule that cases are not ripe for appellate review before the Law Court unless the appeal is from a 'final' judgment, except when otherwise specifically authorized. See Burt Company v. The Burrowes Corporation, 1962, 158 Me. 237, 182 A.2d 481; Hazzard v. Westview Golf Club, Inc., 1966, Me., 217 A.2d 217, 222; Allen v. Cole Realty, Inc., 1974, Me., 325 A.2d 19.

True, the statute expressly allows reviewability of interlocutory orders or rulings by reporting the same to the Law Court when they present, in the opinion of the presiding justice, questions of law of such importance as to require review before any further proceedings are taken in the action. This expansion of the statute was made at the time of the adoption of the new rules of civil procedure in 1959. See Public Laws, 1959, c. 317, s. 69. But, we do not view this statutory accommodation to Rule 72(c), M.R.Civ.P. as a legislative design to provide an exclusive method whereby interlocutory orders or rulings may be reviewed by the Law Court. Rather, the new procedure was intended to be additional to the numerous exceptions to the final judgment rule, which our Court has long recognized in those instances in which the peculiar character of the question involved hardly admits of postponement, if any benefit is to be derived from it by the aggrieved party. See Stevens v. Shaw, 1885, 77 Me. 566, 1 A. 743 (compelling the indorsement of the name and residence of the assignee on the writ); Munsey, Executor v. Groves, 1955, 151 Me. 200, 117 A.2d 64 (whether a special appearance through counsel conferred jurisdiction of the person); Socec v. Maine Turnpike Authority, 1957, 152 Me. 326, 129 A.2d 212 (interlocutory issue-whether the proceeding was in equity or at law with the right to jury trial involved); Northland Industries Inc. v. Kennebec Mills Corporation, 1965, 161 Me. 455, 214 A.2d 100 (ruling that assignee was not a party in interest because of purportedly invalid assignment); Loyal Erectors, Inc. v. Hamilton & Son, Inc., 1973, Me., 312 A.2d 748 (discharge of trustee); Cranston v. Commercial Chemical Corp., 1974, Me., 324 A.2d 301 (dissolution of attachment of real estate).

In Foisy v. Bishop, 1967, 232 A.2d 797, we reaffirmed the exception to the final judgment rule. There, we held that an appeal from an interlocutory order vacating an attachment of real estate was an exception to the 'final judgment' rule and was immediately reviewable on appeal since 'great and irreparable loss' might otherwise result.

Thus, this Court has consistently followed the doctrine espoused by the Supreme Court of the United States in Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and known as the collateral order exception to the final judgment rule. It involves decisions

'which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.' Id. 337 U.S. at 546, 69 S.Ct. at 1225, 1226.

In Cohen, the interlocutory order at issue was the ruling of the District Court denying the corporate defendant's motion to require the plaintiff to post security in the amount of $125,000. The Court said that, if the issue had to await the final disposition of the merits of the main case, it will then be too late effectively to review the reference order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably.

In Foisy, this Court cited Swift & Co. Packers v. Compania Colombiana Del Caribe, 1950, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206, which involved an order vacating a foreign attachment of a vessel. We note that, by way of dictum, the Swift Court volunteered:

'The situation is quite different where an attachment is upheld pending determination of the principal claim.

'In such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds.'

Although our Court has ruled that an order denying or dissolving an attachment of real estate is immediately reviewable on appeal notwithstanding its interlocutory characteristic, this is the first time we are faced with the issue of immediate appealability of an order allowing such an attachment.

In West v. Zurhorst, 1970, 2 Cir., 425 F.2d 919, the Second Circuit followed the holding in Cushing v. Laird, 1882, 107 U.S. 69, 2 S.Ct. 196, 27 L.Ed. 391 and the dictum in Swift & Co. Packers v. Compania Colombiana Del Caribe, supra, in dismissing for want of jurisdiction an appeal from the denial of defendants' motion to vacate an ex parte order of attachment against their land, on the ground that '(w)hile the grievance created by an improper attachment pendente lite is 'important,' (Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 1226, 93 L.Ed. 1528) it is not important enough to make the decision 'final. " (Emphasis in original) The Court viewed the increase in the appellate caseload as sufficient reason against an 'expansive reading' of Cohen.

In Chabot v. National Securities and Research Corporation, 1961, 2 Cir., 290 F.2d 657, the same Court had previously stated that an '(a)ttempt at distinction based on the circumstance that in Cohen the order of the District Court had denied security whereas here the order required it, files in the face of reason.' The Chabot Court concluded that, 'since the clause as to security is not a provision the allege breach of which constitutes plaintiffs' claim, the case is still like Cohen in that the orders made 'a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. " See also Phelps v. Burnham, 1964, 2 Cir., 327 F.2d 812.

But, in Pasquarella v. Santos, 1969, 1 Cir., 416 F.2d 436, the First Circuit ruled that an order to post a removal bond was interlocutory and appealable within the Cohen rule.

In McInnes v. McKay, 1928, 127 Me. 110, 141 A. 699, affirmed by McKay v. McInnes, 1929, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975, this Court recognized that

'(p)roperty in legal conception is the total of the rights and powers incident to a thing rather than the thing itself. The legal right to use and derive a profit from land or other things is property. * * *. And the power of disposition at the will of the owner is property. Deprivation does not require actual physical taking of the property or the thing itself. It takes place when the free use and enjoyment of the thing or the...