Rice v. Amerling

• Decision Date: 07 August 1981
• Parties: Margaret L. RICE v. W. John AMERLING, et al. 1
• Court: Maine Supreme Court

Page 388

433 A.2d 388

Margaret L. RICE v. W. John AMERLING, et al. ¹

Supreme Judicial Court of Maine.

Argued March 6, 1981.

Decided Aug. 7, 1981.

Pine Tree Legal Assistance, Inc., Martha E. Geores, Richard M. Goldman (orally), Kim M. Vandermeulen, Augusta, for plaintiff.

James E. Tierney, Atty. Gen., Andre G. Janelle, Asst. Atty. Gen. (orally), Augusta, Perkins, Thompson, Hinckley & Keddy, Douglas S. Carr (orally), Philip C. Hunt, Portland, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, GLASSMAN ^* and CARTER, JJ.

CARTER, Justice.

The plaintiff, Margaret Rice, by this appeal seeks review of a judgment of the Superior Court, Kennebec County, affirming a decision by the State Board of Assessment Review holding that she is ineligible for a property tax abatement under 36 M.R.S.A. § 841(5) (repealed and replaced by P.L.1979 ch. 73; current revision at 36 M.R.S.A. § 841(2) (Supp. 1980-81)). The defendants, the Municipal Officers of the Town of Cape Elizabeth, appeal in the same proceeding from an order of the Superior Court enlarging Mrs. Rice's time for appeal to the the Law Court. Both appeals are before this Court under an order of consolidation. We dispose of the case without reaching the merits of Mrs. Rice's appeal due to our decision sustaining the appeal of the Municipal Officers.

The parties submitted a stipulated record to the Superior Court from which it appears that the substantive issue between Mrs. Rice and the defendants is her entitlement to a tax abatement under 36 M.R.S.A. § 841(5). Pursuing the appropriate procedures, she sought the abatement and was denied it by the Municipal Officers. After hearing on review, the State Board of Assessment Review sustained the denial of the abatement. The Board's decision was "final agency action" under 5 M.R.S.A. § 11001 and subject to judicial review.

Mrs. Rice filed a petition for such review in the Superior Court, Kennebec County, pursuant to the Administrative Procedure Act. In that review proceeding, the Court held that because Mrs. Rice failed to prove "that there is no way for her to use her equity in (her) house to raise the money to pay her taxes" the decision of the State Board of Assessment Review should be affirmed.

The Superior Court judgment affirming the Board's decision was entered on March 25, 1980. Mrs. Rice filed a notice of appeal to the Law Court on April 25, 1980, thirty-one days after the entry of judgment. None of the parties were aware of this untimely filing until it was called to their attention by the Clerk of the Law Court on November 6, 1980. The case was removed from the November, 1980 oral argument calendar because of the possibility of untimeliness in taking the appeal. A dispute developed between Mrs. Rice and the Municipal Officers with respect to which court had authority to grant subsequent relief to perfect the appeal.

In a motion dated November 12, 1980, Mrs. Rice moved in the Superior Court for a nunc pro tunc order extending by one day the time to file her notice of appeal, citing as grounds excusable neglect. On November 19, 1980, the Municipal Officers moved in the Law Court for an order dismissing Mrs. Rice's appeal as untimely, which the Law Court ordered to be argued with the merits of plaintiff's appeal.

On November 20, the Superior Court justice informed counsel for both parties that a hearing on the motion to extend had been scheduled for November 21, 1980. The Municipal Officers, on November 21, moved the Law Court to stay the Superior Court hearing. Acting for the Court, the Chief Justice dismissed the Municipal Officer's motion the same day, and the Superior Court hearing was held as scheduled. ² As a result of the hearing in the Superior Court, an order was entered finding excusable neglect in the perfection of the appeal and retroactively enlarging the time for filing Mrs. Rice's notice of appeal. The Municipal Officers have timely sought review by this Court of the Superior Court's order of enlargement of time. By an order of the Law Court dated December 9, 1980, the two appeals were consolidated for joint argument and decision.

I.

The plaintiff sought an enlargement of time for the taking of an appeal under Rule 73(a) in the Superior Court. That request was made after both the original thirty-day period for filing the appeal and the additional thirty-day period provided by the Rule for potential enlargement of the appeal period on the basis of excusable neglect had expired. The issue presented is whether the Superior Court had the power to act on a motion filed after the sixty days from the date of entry of the judgment appealed from had elapsed. ³

We answer the question in the negative on the basis of our prior clear holdings that compliance with Rule 73(a) is mandatory and jurisdictional for purposes of appeal. Town of South Berwick Planning Board v. Maineland, Inc., Me., 409 A.2d 688, 689 (1980); Wood v. Wood, Me., 407 A.2d 282, 283 n.1 (1979); Harris Baking Co. v. Mazzeo, Me., 294 A.2d 445, 453 (1972); Kittery Electric Light Co. v. Assessors of Town of Kittery, Me., 219 A.2d 744, 747 (1966); accord, Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3rd Cir. 1962); Wagoner v. Fairview Consolidated School Dist. # 5, 289 F.2d 480 (10th Cir. 1961). The appellate jurisdiction of the Law Court and its power to review cases "are entirely and exclusively those plainly conferred by statute." Papapetrou v. Edgar, Me., 290 A.2d 202, 204 (1972). The right of appeal is not a constitutional one; nor does it arise under the common law; it is purely statutory. Harrington v. Harrington, Me., 269 A.2d 310, 314 (1970). The Legislature, in granting a right to appeal in certain cases, may restrict, limit or otherwise condition its availability as it sees fit. All statutory requirements for perfecting an appeal are jurisdictional and require strict compliance. Harris Baking Co., 294 A.2d at 451; Harrington, 269 A.2d at 314. The action of the State Board of Assessment Review "shall be deemed final agency action by that board under the Maine Administrative Procedure Act." 36 M.R.S.A. § 843(2). The right to appeal from a Superior Court review of "final agency action" to the Law Court is conferred by 5 M.R.S.A. § 11008 which provides:

1. Appeal. Any party to the review proceeding in the Superior Court under this subchapter may obtain review by appeal to the Supreme Judicial Court sitting as the law court. The appeal shall be taken as in other civil cases.

2. Supreme Judicial Court. The Supreme Judicial Court shall have the power to make and amend rules of pleading, practice and procedure, for the purposes of securing a simple, speedy and effective judicial review under this subchapter.

The procedure to be followed in appealing from judgments in civil cases is dictated by M.R.Civ.P. 72-76A. Those rules "govern the procedure in the Supreme Judicial Court when sitting as a Law Court." M.R.Civ.P. 1. Rule 73(a) deals "specifically with the procedural facets involved in the initiation of an appeal to the Law Court." Harris Baking Co., 294 A.2d at 451. The rule creates a maximum allowable time period of sixty days within which an appeal may be commenced. Id.

It is manifest that it was the intention of Rule 73(a) that there be no exceptions to this time requirement in the perfection of an appeal. The principle which underlies the requirement that an appeal must be taken in a timely manner is that of the finality of judgments. As we have recently stated,

(b)oth the successful party before the trial court in the particular case and the public in general have an interest in seeing an end come to litigation. Any relaxation in the enforcement of the post-judgment time requirements would run counter to those well-founded interests.

Town of South Berwick Planning Board, 409 A.2d at 690.

So carefully have the rules preserved the inviolability of the time period prescribed by Rule 73(a) that Rule 6(b), which confers the general authority of the Superior Court to enlarge time periods under the Rules, states specifically that the court may not extend the time for taking an appeal under Rule 73(a) "except to the extent and under the conditions stated in (that Rule)." M.R.Civ.P. 6(b). In addition, the authority to enlarge the initial thirty-day time period is even specifically denied to the Law Court under its power to suspend the rules as provided for in M.R.Civ.P. 76A(c). ⁴ It is also significant to note that the authority to enlarge the time period for the performance of any act under Rules 50(b), 52(b), 59(b), (d) and (e) is also denied to the Superior Court acting under Rule 6(b). The reason for this is obviously that the taking of action under those rules is specifically provided by Rule 73(a) to toll the running of the time for taking an appeal. That rule further provides that after the action is taken under those Rules by the court the full time for appeal provided for by Rule 73(a) commences to run and is to be computed from the entry of the action taken under the other rule. Thus, the enlargement of the period of time prescribed by those rules for taking the actions authorized by them would indirectly operate to enlarge the appeal period by delaying the commencement of the running of the appeal period.

The exclusion of the time periods provided in Rule 73(a) and the other enumerated rules from the general power of the Superior Court acting under Rule 6(b) to enlarge time periods is part and parcel of a consistent design running throughout the rules to preclude any opportunity for the obtaining of an enlargement of the time prescribed in Rule 73(a) for the taking of an appeal except by the Superior Court and, even then, only in accordance with the specific terms of Rule 73(a). It is on the basis of this consistent design that we have said:

The full import of the Maine Rules of Civil Procedure is, therefore, that Rule 73(a) provides the exclusively self-contained and absolutely...