McClain v. Lee

• Court: Superior Court of Maine
• Decided: October 19, 2005
• Docket: CUMap-05-033
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CLTMBERLAND, ss. CIVIL ACTION DOCKET NO. AP-05-033

ROXANNE D. MCCLAIN, * Appellant * v. * ORDER -. ..- . . :7 .. .,: ; -. . ,

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* ..- ' -. . MARK LEE, % ..

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Appellee * A z

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BEFORE THE COURT

Before the Court is Roxanne D. McClainls appeal from the District Court's

May 5,2005 Judgment pursuant to M.R. Civ. P. 76D.

FACTUAL BACKGROUND

Roxanne D. McLain (McClain) is the owner of a rental unit at 143

Pennsylvania Avenue in South Portland. Mark Lee (Lee) was a tenant of said

address. In November 2004, when Lee failed to pay the rent, McClain sent him a

letter aslung for full payment of the rent or to vacate the premises. Lee paid

$200.00 of the $850.00 rent arrearage. McClain then sued Lee in Small Claims

Court to recover $1,075.00.

At the District Court proceeding on May 5,2005, the court granted

judgment in favor of McClain in the amount of $348.00 and costs of $75.00.

Roxanne D. McCIain v. Mark Lee, PORDC-SC-2004-0126, Notice of Judgment (Me.

Dist. Ct., Cum. Cty., May 5,2005) (Goranites, J.). On June 6, 2005, McClain filed a

notice of appeal disputing the amount of the award.'

This notice of appeal was filed 33 days after the entry of judgment. M.R. Civ. P. 76D provides that "the time within which an appeal may be taken shall be 30 days from -the entry of judgment." However, the timing of the appeal may be tolled by a timely motion DISCUSSION

Appeals taken from the Distnct 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, P13, 818 A.2d 1005,1009 (citation and internal quotation omitted).

In the present case, because the hearing was not recorded, McClain was

required to serve a statement in lieu of a transcript to Lee within 10 days of the

talung of the appeal, and then submit the statement to the Court for settlement

and approval. M.R. Civ. P. 7 6 F ( ~ )Although .~ McClain did file a statement on

June 27, 2005, it was filed more than 10 days after the appeal was taken.

Furthermore, there is no indication in the file that Lee was served. As such,

McClain did 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

for findings of fact. M.R. Civ. P 76D. In this case, Lee filed a motion to findings of fact on June 2,2005,29 days after the entry of judgment. M.R. Civ. P. 76F(c)states:

In any case in whch 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 w i h n 10 days after service upon the appellee. Thereupon the statement, with the objections or proposed amendment, shall be submitted to the court for settlement and approval and as settled and approved shall be included in the record on appeal filed with the Superior Court. evidence to support the District Court's factual findings.3 See Alley v. Alley, 2002

TvIE 162, P2, 809 A.2d 1262, 1262; see Faulkingha~nv. Seacoast Subaru, Inc., 619 A.2d

987,988 (Me. 1993) (an appeal taken with a n inadequate record must fail).

Finally, McClain failed to file a brief as required by M R .Civ. P. 76G(a).4

Based upon the foregoing, a n d 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 a n d the entry is

McClain's appeal should be DENIED.

The District Court's Decision should

DATE: /$! 2005

Ir, reviewing Lee's exhibits, it appears tlat the District Court judge engaged in a balancing of the equities when coming to the $348.00 award. Lee's exhibits indicate that he had many problems with the structure of the rental unit as well as with interactions with McClain. Lee complained of dog odor, bad carpets, a door painted shut, no fire alarms, a leak in the sink, and large amounts of PvlcClain's daughter's personal items in the house. Lee also complained that McClain entered the rental unit without 24-hour advanced notice, entered in an intoxicated state, was verbally abusive in front of Lee's step son, tried to break in, interrupted utilities, did not provide rent receipts, spoke about Lee disparagingly to others, and did not provide Lee with a 30-day eviction notice. 4 McClain's statement is more or less a recitation of the facts of the case. It is unlikely that it was intended to be a brief pursuant to M.R. Civ. P. 76G(a). ;OF COURTS terland County 0. Box 287 Maine 04112-0287

MARK L E E d 1 4 3 PENNSYLVANIA AVENUE SO PORTLAND ME 0 4 1 0 6

OF COURTS lerland County 3. Box 287 Maine 041 12-0287

ROXANNE MCLAIN 1 7 0 TOWN FARM ROAD BUXTON ME ) 4 0 9 3