Biggs v. Boulton

• Court: Superior Court of Maine
• Decided: September 13, 2013
• Docket: CUMap-13-40
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION ~cfetNo. APi\t4o1 · r't C»Jr7 ~ ~I J:b/ ;;_ o '37 "-!-/ • .. AARON BIGGS, et al,

Plaintiffs-Appellees

v. ORDER

MELODY BOULTON,

Defendant-Appellant

On September 12, 2013 the court received from the clerk's office a motion by

plaintiffs-appellees Aaron and Jill Biggs to dismiss this appeal, which is brought by

defendant-appellant Melody Boulton from a small claims judgment entered by the

District Court (Powers, J.) on June 13, 2013. The small claims judgment awarded the

Biggses $4,055 plus costs and attorneys fees.

Boulton has filed an affidavit seeking a jury trial. However, the June 13, 2013

judgment was entered by default based on Boulton's failure to appear. The Law Court

has ruled that a defendant who defaults in a small claims action may not invoke the

procedure for seeking a jury trial on appeal. H & H Oil Co., Inc. v. Dineen, 557 A.2d 604,

605 (Me. 1989). Boulton contends that H & H Oil Co. was wrongly decided but her

arguments are not convincing, and this court is bound by applicable Law Court

precedent in any event.

Boulton also argues that, although the file contains a notice of the June 13 hearing

indicating that it was sent to her counsel at his correct address, neither she not her

counsel actually received notice of the hearing. This is not an issue that can be raised on

appeal. Where the file reflects that notice was given, any request for relief from the judgment based on an alleged failure to receive notice must be addressed to the District

Court under M.R. Small Claims P. 9 and M.R.Civ.P. 60(b).

The entry shall be:

The motion by plaintiffs-appellees to dismiss this appeal is granted. The Clerk is

directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: September /3 , 2013 Thomas D. Warren Justice, Superior Court

2 Date Filed _ __:_7..!../-=1-=-6/!.-1:..:..:3=------- CUMBERLAND Docket No. AP-13-40 County

Action DISTRICT COURT APPEAL (SMALL CLAIMS)

AARON BRIGGS MELODY BOULTON JILL BRIGGS

VS.

Plaintiff's Attorney Defendant's Attorney

MICHAEL MCALLISTER ESQ JOHN BRANSON, ESQ. PORT CITY LEGAL LLC LAW OFFICE OF JOHN BRANSON PA 477 CONGRESS STREET 482 CONGRESS STREET STE 304 PORTLAND MAINE 04101 PO BOX 7526 PORTLAND MAINE 04112

Date of Entry