Brookes v. Design Dwellings, Inc.

• Court: Superior Court of Maine
• Decided: July 8, 2004
• Docket: CUMap-04-09
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss.

PAUL A. BROOKES

Appellant v. DESIGN DWELLINGS, INC. Appeliee

SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-04-09

par

ORDER ON PLAINTIFF’S : RULE 76D APPEAL

Before the court is the plaintiff's appeal from the District Court’s February 5,

2004 Judgment pursuant to M.R. Civ. P. 76D. Ce

urs Feb ome at BYE Te ce

AUG 15 2004

FACTUAL BACKGROUND

Design Dwellings, Inc. (DDI) is a Maine corporation engaged in the business of

constructing and selling new homes to the general public.. On November 7, 1999, the

appellant contracted with DDI to purchase a new “spec house” constructed by DDI.

After the appellant purchased his home, he sued DDI in Small Claims Court to recover

the sum of $3000,00 for costs allegedly incurred to replace the rear or back half of the

roof of his house.

At the District Court proceeding, the court determined that

the plaintiff has proven that it is likely that the def[endant] builder/seller did not construct the ridge vent and the bathroom vent correctly, likely contributing to ice problem. There is no proof that the roof needed replacement, in whole or in part. The approximate amount of proven damages from def[endant’s] breach of contract is $100.00. Ice problems in winter do not necessarily signify a wholesale roof problem. Judgment is

$100.00, plus costs of $81.00, totaling $181.00.

Brookes v. Design Dwellings, Inc. PORDC-SC-03-00924, Notice of Judgment (Me. Dist.

Ct., Cum. Cty., Feb. 5, 2004) (Powers, J.). DISCUSSION Appeals taken from the District Court under Rule 76D are reviewed for errors of law. M.R. Civ. P. 76D. The District Court's findings of fact shall not be set aside unless clearly erroneous. Id. “A court's finding is clearly erroneous only if there is no

competent evidence in the record to support it.” Wrenn v. Lewis, 2003 ME 29, qT 13, 818

A.2d 1005, 1009 (citation and internal quotation omitted).

In the case at bar, because the hearing was not recorded, the appellant was required to serve a statement in lieu of a transcript to the appellee and then submit the statement to the court for settlement and approval. See MLR. Civ. P. 76F(c).! Although the defendant filed an appeal with the court and served it on the appelee, his submission does not satisfy Rule 76F(c). Without a record of the proceedings or a settled and approved statement, the court must assume that there was sufficient

evidence to support the District Court’s factual findings. See Alley v. Alley, 2002 ME

162, J 2, 809 A.2d 1262, 1262.

DECISION Based upon the foregoing, and pursuant to M. R. Civ. P. 79(a), the Clerk is directed to enter this Order on the Civil Docket by a notation incorporating it by

reference and the entry is

Mr. Brooke’s appeal is DENIED;

" The Rule states: In any case in which electronic recording would be routine or has been timely

requested under Rule 76H(a) of these rules, if for reasons beyond the control of any party, no recording, or no transcript thereof, was made, or is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection, for use instead of a transcript. This statement shall be served on the appellee within 10 days after an appeal is taken to the Superior Court, and the appellee may serve objections or propose amendments thereto within 10 days after service upon the appellee. Thereupon the statement, with the objections or proposed amendment, shall be

submitted to the court tor settlement and approval and as settled and approved shall be included in the record on appeal filed with the Superior Court.

MR. Civ. P. 76F(c). ' COURTS, id County

xX 287

e 04112-0287

PAUL BROOKES 86 BROOKWOOD DRIVE GORHAM ME 04038

OURTS Sounty

87 4112-0287

MICHAEL TRAISTER ESQ PO BOX 9785 PORTLAND ME 04104