Rowland S. Whittet v. Daniel C. Whittet

2017 ME 156, 167 A.3d 1258, 2017 WL 2979956, 2017 Me. LEXIS 165

• Court: Supreme Judicial Court of Maine
• Decided: July 13, 2017
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 156 Docket: Kno-17-9 Submitted On Briefs: June 29, 2017 Decided: July 13, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

ROWLAND S. WHITTET

v.

DANIEL C. WHITTET

PER CURIAM

[¶1] Rowland S. Whittet appeals from a judgment of the Superior Court

(Knox County, Stokes, J.) granting a permanent injunction and authorizing,

pursuant to M.R. Civ. P. 66, a special master to proceed with the sale of a

parcel of real estate located in Rockport. Our review in this appeal is limited

to the court’s orders of December 15 and 22, 2016, and Daniel C. Whittet’s

motion, filed in this appeal, for sanctions.1

[¶2] Because Rowland (1) has failed to provide transcripts of the

relevant proceedings or a substitute to allow for adequate appellate review,

(2) mounts untimely challenges to earlier decisions of the trial court not at

1 On June 1, 2017, Daniel moved for sanctions against Rowland, submitting an affidavit detailing

attorney fees expended in this appeal. See M.R. App. P. 13(f). We ordered that the motion for sanctions would be considered with the merits of the appeal. 2

issue in this appeal, and (3) has made no argument as to why the court erred

in issuing the December 2016 orders, we affirm the judgment. See Springer v.

Springer, 2009 ME 118, ¶¶ 7-8, 984 A.2d 828 (stating that where there is an

inadequate record to review, we are “bound to accept the court’s factual

findings and to assume that they are supported by sufficient competent

evidence in the record”); Holland v. Sebunya, 2000 ME 160, ¶ 9 n.6,

759 A.2d 205 (“The failure to mention an issue in the brief or at argument is

construed as either an abandonment or a failure to preserve that issue.”).

[¶3] Pursuant to M.R. App. P. 13(f), we may award costs, expenses, or

attorney fees as a sanction for appeals that are “frivolous, contumacious, or

instituted primarily for the purpose of delay.” “Sanctions are appropriate in

egregious cases,” namely when a party seeks relief “with no reasonable

likelihood of prevailing,” thereby increasing litigation costs and wasting time

and resources. Estate of Dineen, 2006 ME 108, ¶ 8, 904 A.2d 417 (quotation

marks omitted). “To support a finding of frivolousness, some degree of fault is

required, but the fault need not be a wicked or subjectively reckless state of

mind; rather, an individual must, at the very least, be culpably careless to

commit a violation.” Lincoln v. Burbank, 2016 ME 138, ¶ 46, 147 A.3d 1165

(quotation marks omitted). 3

[¶4] Rowland’s opposition to the motion for sanctions, filed one day

late, contains arguments and unsupported allegations with little apparent

relevance to either the motion for sanctions or the merits of the appeal. In a

2013 judgment, the trial court proposed several contingent dispositions of the

real estate to sensibly resolve this protracted dispute between the parties.

Despite a number of court decisions to the contrary, including a 2016 finding

of contempt,2 Rowland continues to maintain that he has complied with the

2013 judgment and is entitled to full, unencumbered ownership of the

disputed property. His subjective belief is belied by the numerous decisions

that have rejected the same meritless claims and arguments that he continues

to make in this appeal3—claims and arguments that have effectively delayed

enforcement of the 2013 judgment and wasted time and resources. See

Lincoln, 2016 ME 138, ¶ 46 & n.8, 147 A.3d 1165; Harriman v. Border Tr. Co.,

2004 ME 28, ¶¶ 6-7, 842 A.2d 1266 (sanctioning party for pursuing

duplicative and vexatious litigation for the purposes of harassment and delay).

We accordingly impose a sanction of attorney fees and treble costs. See M.R.

2 None of those decisions was timely appealed and therefore none is properly before us.

3 This is Rowland’s fourth appeal involving this property; two of those appeals were dismissed

in part for his failure to comply with the rules, to provide an adequate record for appellate review, or to properly present cognizable legal arguments. See Whittet v. Whittet, Mem-14-113 (August 5, 2014); Ribeck v. Whittet, Mem-14-48 (March 11, 2014) (dismissing the appeal on the ground that Rowland did “not even marginally comply with the requirements of M.R. App. P. 8”). 4

App. P. 13(f). Daniel C. Whittet will be awarded attorney fees in the amount of

$4,517.00 and treble costs in the amount of $216.24 for a total award of

$4,733.24.

The entry is:

Judgment affirmed. Daniel C. Whittet’s motion for sanctions is granted. He is hereby awarded attorney fees and treble costs in the amount of $4,733.24.

Rowland S. Whittet, appellant pro se

Jamie F. Levenseler, Esq., and Edward M. Collins, Esq., Hanscom, Collins & Hall, P.A., Rockland, for appellee Daniel C. Whittet

Knox County Superior Court docket numbers RE-2011-26 and -27 FOR CLERK REFERENCE ONLY