Lee v. Norton

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-05-009 - \! r / I - * \ -

MARCIA E. LEE,

v. ORDER

TERRY NORTON,

Defendant

Before the Court is Defendant Terry Norton's appeal from the District Court's

January 5,2005 Judgment pursuant to M.R. Civ. P. 76G.

FACTUAL BACKGROUND

Plaintiff Marcia E. Lee sued Defendant Terry Norton in small claims court for the

return of her dog. Ms. Lee claims that she left her dog with her mother on a temporary

basis. Subsequently, her mother experienced medical difficulties and sent the dog to

live with Mr. Norton. When Ms. Lee requested that the dog be returned home, Mr. Lee

refused claiming that the dog had been given to him as an outright gilt, w h c h the

mother had the authority to give.

During the trial, Mr. Norton's counsel asked that the trial judge recuse herself

based on a n allegation of bias and prejudice against h4r. Norton. After hearing, t l ~ e request was denied.' Mr. Norton then filed this appeal asserting that the trial judge

abused her discretion by denying the recusal request.

DISCUSSION

An appeal from a District Court decision shall be on questions of law only.

M.R.S.C.P. ll(d)(l), (2), (3), (5). The question of law that Mr. Norton raises is whether

the trial judge abused her discretion by denying the recusal request. Without a record of

the proceedings or a settled and approved statement, the Superior Court must assume

that there was sufficient evidence to support the District Court's fack~alfindings. See

Alley v.Alley, 2002 ME 162, P2, 809 A.2d 1262, 1262; see Fatllkinghnrn v. Seacoast Sttbaru,

Inc., 619 A.2d 987, 988 (Me. 1993) (an appeal taken with an inadequate record mr~stfail).

Small claims proceedings are different from other civil actions. Substantively, the

rules of evidence do not apply in small claims proceedings. M.R.S.C.P. 6(b).

Procedurally, the court may exclude unduly repetitious evidence and assist in

developing all relevant facts. Id. These differences are consistent with the goal of small

claims proceedings, which is "to secure the just, speedy, and inexpensive determination

of every action in a simple and informal way." M.R.S.C.P. 1. Notwithstanding, the trial

judge must provide the parties with a full opportunity to present their claims and

defenses. M.R.S.C.P.6(b).

Here, the proceeding was not recorded and Mr. ]\Tortondid not file a settled and

approved statement of the record pursuant to M.R. Civ. P. 76I;(c).' l

1 The trial judge wrotc a detailed stnteincnt of Llic cvznts cf thc trial in the Order on h4r. Norton's M o t ~ o nto Recuse. 2 M.R.Civ. P.76F(c) states: In any case in w h i c h electro~licrecording would be r o ~ ~ t i nore h a s been timely req~lested~ ~ n d e r Rule 76H(a) of these rules, if for reasons beyond the control of any p a r t y , no recording, cr no transcript thereof, was made, or is a v a i l a b l e , t h e a p p e l l a n t inay p r e p a r e a statement of t h e evidence or proceedings from t h e best a v a i l a b l e means, including t h e a p p e l l a n t ' s recollection, judge did explain in detail the events of the trial in the Order on Mr. Norton's Motion to

Recuse and Motion for a New Trial. This explanation serves as the record for purposes

of this appeal.

The trial judge explained that the attorneys initially agreed that the trial would

take approximately two hours. However, as the trial progressed, it became clear that

the attorneys underestimated the time. "ln an effort to complete the irial in the time

allotted, the Colrrt, in its discretion, suspended the cross-examination of Plaintiff by

Defendant's counsel so it could hear testimony from Plaintiff's mother and sister.

Although Defendant's counsel was able to cross-examine the former, time elapsed

before he could do so with the latter." In an attempt to ascertain if additional tiine

would be necessary for trial, the trial judge asked Mr. Norton's counsel for his theory of

the case. The trial judge admitted that she advised Mr. Norton's counsel that his client

faced possible sanctions if he pursued a frivolous defense. However, she never stated

that she would not provide an opportunity for further testimony and cross-examination

at a later date, w h c h in fact did happen.3

Here, the fact that the trial judge wanted to hear the crux of the case before

allowing cross-examination does not in itself render the trial judge biased or prejudiced,

especially when she rescheduled the trial for another day to allow for further

development of testimony and evidence. The rules of small claims proceedings allow

for flexibility in the process by proceeding in a simple and informal fashion. Under the

for use instead of a transcript. This statement s h a l l be served 61; thc appellce tvi tliir, 10 d a y s after a n appeal is taken to t h e Superior Court, and t h e appellee m a y serve objections or propose alnendmenls Lhereto w i t l ~ i 10~ i d a y s after service upon the appellee. I'hereupon t h e statement, w i t h t h e objections or proposed a m e n d ~ i ~ e nsth, a l l be submitted to t h e courl- for settlement and approval and as settled and approved s h a l l be included in t h e record on appeal filed w i t h [ h e Superior Court. 3 l'he trial judge repeatedly acknowledged that Mr. Norton's counsel had 1\01 yet had an opportunity to cross-exatnine Ms. Lee or to present his clienl. circumstances, it was reasonable for the trial judge to attempt to further the

developmei~tof all the relevant facts at the first trial in order to avoid a continuatioi~.It

was also reasonable and proper of her to schedule a continuation hearing when she

determined that more time was needed. Fi~~ally, the continuation hearing provided the

litigants with a full opportunity to present their claims and defenses.

The entry is:

The decision of the District Court judge is AFFIRMED.

Ilated: November 7,2005 I. Artb zr Rrennan' oustic6, Superior Court

APPELLEE: LAWRENCE B GOODGLASS ESQ ROBINSON KRIGER & MCCALLUM PO BOX 568 PORTLAND ME 04112-0568

APPELLANT : NEAL L WEINSTEIN ESQ PO BOX 660 OLD ORCHARD BEACH M 04064