Phillips v. Johnson

• Decision Date: 31 October 2003
• Citation: 834 A.2d 938,2003 ME 127
• Parties: Larry PHILLIPS et al. v. Blaine JOHNSON et al.
• Court: Maine Supreme Court

834 A.2d 938

2003 ME 127

Larry PHILLIPS et al. v. Blaine JOHNSON et al.

Supreme Judicial Court of Maine.

Submitted on Briefs: March 24, 2003.

Decided: October 31, 2003.

Richard C. Cleary, Cleary Law Office, P.A., Houlton, for plaintiffs.

Samuel W. Lanham Jr., Cuddy & Lanham, Bangor, for defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

SAUFLEY, C.J.

[¶ 1] In this action regarding the ownership of an island located on Wytopitlock Lake, in Aroostook County, defendants Blaine Johnson, Cheryl Cropley, and Karen Gallant appeal from an order of the District Court (Houlton, Griffiths, J.) denying their motion for relief from summary judgment and to file a late answer, affirmative defenses, answer, counterclaim, and opposition to summary judgment. The defendants also appeal from an order of the court denying their motion to extend time for filing notice of appeal pursuant to M.R.App. P. 2(b)(5). Plaintiffs Larry, Gary, and Addison Phillips have moved for dismissal of the appeal as untimely pursuant to M.R.App. P. 4(c).

[¶ 2] We deny the plaintiffs' motion to dismiss the defendants' appeal and vacate the court's denial of the motion to extend time for filing notice of appeal. Addressing the appeal on the merits, we vacate the denial of the defendants' motion for relief from the summary judgment, and to file late pleadings, and remand for further proceedings.

I. BACKGROUND

[¶ 3] The parties are engaged in a dispute regarding the ownership of an island located on the southern end of Wytopitlock Lake in Glenwood Plantation, Aroostook County. In 1923, Isaiah Pierce first settled the island by building a small camp on it. Pierce and his spouse, Mabel, had six children, including son Donald and daughter Audrey. In the present action, the Donald Pierce branch of the family (Larry, Gary, and Addison Phillips) has commenced an action against the Audrey Pierce Emerson branch (Blaine Johnson, Cheryl Cropley, and Karen Gallant), and other branches, to quiet and establish title to the island first settled by Isaiah Pierce.

[¶ 4] On November 2, 2001, the Phillipses filed an action to quiet and establish title, pursuant to 14 M.R.S.A. §§ 6651-6658 (2003),¹ against multiple family members, including "Blaine Johnson, Cheryl Lawrence [now Cropley], and Karen Gallent."² At the same time, the plaintiffs also submitted a motion for service by publication pursuant to M.R. Civ. P. 4(g),³ accompanied by the supporting affidavit of their attorney.

[¶ 5] On November 5, 2001, the court granted the plaintiffs' motion to serve by publication, requiring the filing of a written answer to the complaint within twenty days after the first publication. On January 2, 2002, the plaintiffs filed an affidavit of publication stating that the order was published in the Houlton Pioneer Times on November 14, 21, and 28, 2001. The defendants failed to appear or file responsive pleadings before the time period designated by the court expired.

[¶ 6] Sometime in late November or early December 2001, Johnson, Cropley, and Gallant learned that the complaint had been published in the paper and Johnson contacted their attorney. Johnson later averred: "since the inception of this action... [the defendants' attorney] and [the plaintiffs' attorney] were working together to resolve this matter on an amicable basis.... [The plaintiffs' attorney] has known since late in 2001 that my sisters and I have vigorously contested any attempt" to wrest the property away. The defendants did not, however, file any response to the action, apparently believing that they would be served in another way if the negotiations failed.

[¶ 7] After notifying the defendants' attorney by letter dated January 15 that they would seek a default judgment within twenty days, the plaintiffs moved for summary judgment on March 29, 2002. The plaintiffs' motion and accompanying statement of material facts included a supporting affidavit from Larry Phillips, and a copy of a release deed by which Phyllis Phillips, daughter of Donald Pierce and spouse of Addison Phillips, purported to convey an interest in the family island to herself, her husband, and her children, Larry and Gary Phillips. The plaintiffs asserted that their submissions established that they owned the property and that the defendants failed to dispute their claim to it.

[¶ 8] On April 25, 2002, the court granted the plaintiffs' motion for summary judgment, vesting title to the property in the plaintiffs, barring all claims in the property by all defendants, and awarding costs against any defendants who asserted claims adverse to the plaintiffs.

[¶ 9] On May 3, 2002, the defendants moved to file late responsive pleadings, including an answer, affirmative defenses, a counterclaim, and material in opposition to summary judgment. The responsive pleading failed to provide a proper opposing statement of material facts as required by M.R. Civ. P. 56(h)(2).⁴ The motion to file late pleadings asserted that the defendants had not been personally served with process and that service by publication was inadequate. The affidavits of Johnson, Gallant, and Cropley averred that none of the three had ever been personally served with a complaint and summons, but conceded that their mother had informed them soon after the publication that the Houlton Pioneer Times had published a notice of the complaint. Johnson's affidavit identified this time period as either November or December 2001, and he indicated that he called his attorney as soon as he learned that the suit had been filed against him.

[¶ 10] In support of their motion, the defendants asserted that the plaintiffs' affidavit of diligent search was inadequate to support service by publication and that the plaintiffs had misrepresented the facts known about the defendants' whereabouts. The defendants also submitted a copy of a quitclaim deed, dated April 30, 1982, by which Audrey Pierce Emerson purported to convey her interest in the island property to her children, Lawrence (now Cropley), Gallant, and Johnson.

[¶ 11] On August 2, 2002, the defendants filed an amendment to their motion to file late responsive pleadings. The amendment requested relief pursuant to M.R. Civ. P. 55(c)⁵ to set aside any default judgment, and M.R. Civ. P. 60(b)⁶ to obtain relief from the summary judgment. The defendants included the affidavits of Johnson, Gallant, and Cropley in their amended motion. The affidavit of Cropley stated that, with the possible exception of one year, she has paid all of the local property taxes for the Wytopitlock Lake island and that the town manager has her correct address.

[¶ 12] The plaintiffs responded to the defendants' motions by asserting that the defendants had received actual notice and had nonetheless failed to file a response of any kind. In addition to the service by publication, which resulted in actual notice, the plaintiffs' attorney mailed a copy of the complaint to one of Blaine Johnson's addresses, provided the defendants' attorney a copy of the complaint, notified the defendants' attorney that he would be seeking a default judgment unless a response was forthcoming, and made the defendants' attorney aware of the impending motion for summary judgment. The plaintiffs also disputed the defendants' allegations of misrepresentations regarding the plaintiffs' diligence preceding their motion for service by publication.⁷ [¶ 13] On August 15, 2002, the court held a hearing regarding the defendants' motions. Following the hearing, the court denied the defendants' motions in an order entered on August 29, 2002. The court found that service by publication was achieved through "a Clerk's Certificate which was published in the Houlton Pioneer Times on November 14, 2001, November 21, 2001, and November 28, 2001," and that the plaintiffs' attorney "provided [the defendants' attorney] with a copy of the Summons, Complaint of Action to Quiet Title, Motion for Service by Publication, and Acknowledgment of Receipt of Summons and Complaint with a request that [the defendants' attorney] sign the acknowledgment form and return it at his earliest convenience." The court made no findings on the defendants' allegations of insufficient diligence or misrepresentation. Ultimately, the court concluded that, despite having actual notice of the complaint and summons through notice by publication in November 2001, and copies thereof having been provided to their attorney, the defendants failed to file a responsive pleading until May 3, 2002. Accordingly, the court declined to grant relief from the summary judgment.

[¶ 14] On September 19, 2002, the defendants filed a notice purporting to appeal from the court's order of August 29 denying their motions.⁸ The defendants' notice, however, erroneously directed the appeal to the Superior Court pursuant to M.R. Civ. P. 76D,⁹ rather than to the Law Court pursuant to M.R.App. P. 2(a)(1). On September 26, 2002, the defendants filed an amendment to their notice of appeal, requesting that the court "delete `appeal to the Superior Court' and substitute in its place `appeal to the Law Court.'"

[¶ 15] On October 8, 2002, the defendants moved, in the District Court, to extend the time for filing a notice of appeal pursuant to M.R.App. P. 2(b)(5),¹⁰ citing excusable neglect. The defendants noted that their amendment to their notice of appeal was filed after the expiration of the original time limit of September 19, 2002, but within the twenty-one-day extension period for excusable neglect pursuant to M.R.App. P. 2(b)(5). On October 10, 2002, the District Court denied the defendants' motion to extend time for filing notice of appeal pursuant to M.R.App. P. 2(b)(5), and deemed the amended notice of appeal untimely filed.

[¶ 16] The plaintiffs then moved to dismiss the defendants' appeal as untimely pursuant to M.R.App. P. 4(c). On October 22, 2002, the defendants filed a timely notice of appeal to the Law Court fr...