Serban v. Gordon

• Court: Superior Court of Maine
• Decided: August 1, 2013
• Docket: SAGap-13-005
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ' ·--' Sagadahoc, ss.

TOADERSERBAN

Plaintiff-Appellee

v. Docket No. BATSC-AP-lS-005

CHARLES GORDON and KELSEY RAE BLAKE

Defendants-Appellants

ORDER TERMINATING STAY OF WRIT OF POSSESSION

Pursuant to notice, this appeal of a forcible entry and detainer judgment came

before the court for hearing today on the limited issue of whether the stay of the writ of

possession ordered by the District Court should continue or be terminated. Plaintiff-

Appellee Toader Serban and his counsel were present, as were the Defendants and

Appellants, Charles Gordon and Kelsey Rae Blake, pro se. The hearing was recorded 1

electronically.

Plaintiff-Appellee Serban commenced this action by filing a forcible entry and

detainer complaint July 5, 201S, alleging that Defendants-Appellants Gordon and Blake

were three months behind on rent and that their tenancy had been properly terminated.

The case came before the West Bath District Court for hearing July 17, 201S. At the

hearing, both sides presented testimony. Mr. Gordon and Ms. Blake raised issues of

1 Gina Turcotte, who evidently holds a power of attorney from the Defendants-Appellees, attempted to

speak on behalfofthe Defendants-Appellees. Ms. Turcotte was advised that the power of attorney does not authorize her to represent anyone other than herself in court. She was also advised on the record that continued efforts to represent others in court without being licensed to practice in Maine as an attorney could subject her to criminal prosecution. After the hearing, she was provided with a copy of the Supreme Judicial Court of Maine decision in Haynes v. Jackson, 2000 ME 11, 744 A2d 1050, in which the court specifically held that the Maine power of attorney statute does not and cannot authorize the holder of a power of attorney to represent others in court.

1 code violations and retaliatory eviction. At the conclusion of the testimonial hearing,

the District Court (J.D. Kennedy, J.) granted judgment of eviction. 2 The Defendants-

Appellees flied multiple motions on July 22, 201S, along with a notice of appeal. Their

motion to reconsider and their motion for further findings were clearly addressed to the

District Court, but it is not clear which court they intended to have deal with their

motions to stay and set aside. However, the District Court in an Order on Motions

dated July 2S, 201S, denied the motions to set aside and for reconsideration, and denied

the motion for further findings in a notation on the motion itsel£ The District Court's

Order on Motions granted a stay of the writ of possession pending hearing in the

Superior Court. Notwithstanding the confusion associated with the Defendants-

Appellants' simultaneous filing of an appeal and motions requesting reconsideration,

this court treats the Defendants-Appellants as having flied a motion for stay of the writ

sufficient under to give the court the authority to continue the stay of the writ or not.

See M.R. Civ. P. 80DU)(4); see also 14 M.R.S. § 6008.

The Clerk scheduled the hearing on whether the stay should continue or not for

today and issued notice to that effect. Ms. Blake filed a letter before the hearing asking

for a postponement on the ground that a witness was needed, and the request was

denied. During the hearing, she again asked for a postponement, and that request was

also denied.

• This court notes sua sponte that neither of the "judgment is granted" boxes on the July 17, 2013 judgment form is checked. However, the handwritten notation on the form says that "the eviction is granted", plainly indicating the District Court's intent to grant judgment to Plaintiff-Appellee, an intent confirmed by the District Court's July 23, 2013 Order on Motions. The fact that the parties have not raised any issue about the boxes not being checked indicates they have the same understanding of the judgment. Given the title of the document and the clear evidence of the court's intention, this court concludes that the document signed and entered July 17, 2013 is a valid forcible entry and detainer judgment, notwithstanding what is clearly the mistaken failure to put a check mark in the "judgment is granted to the plaintiff' box on the form. Rule 60(a) of the Maine Rules of Civil Procedure permits errors in a judgment "arising from oversight or omission" to be corrected during the pendency of an appeal with leave of the Superior Court. The parties are notified of this court's intention to grant such leave, and any objection thereto shall be filed within 10 days, with the reason for the objection stated.

2 During the hearing today, this court noted the requirement of 14 M.R.S. §

6008(2): "When the defendant appeals, the defendant shall pay to the plaintiff or, if

there is a dispute about the rent, to the District Court, any unpaid portion of the current

month's ren~ or the rent arrearage, whichever is less." In this case, that provision

required the Defendants-Appellants, at the time of taking their appeal, to make payment

of any unpaid rent for July 2013, either to Plaintiff-Appellee or to the District Court.

The Defendants-Appellants acknowledged that they have not met that requirement and

in fact have not paid any rent since April2013. They claim that they are justified in not

paying rent due to code violations and to very high electric bills. However, the just-

quoted section does not appear to allow for exceptions.

The court asked the Defendants-Appellants if they were proposing to make any

rent payments, given that the statute permits the Superior Court to stay the writ on

condition that rent be made either to the landlord or into escrow. See 14 M.R.S. §

6008(2)(A). They responded by saying that they were not prepared to make any rent

payments, citing the same reasons. Under these circumstances, even assuming that the

Defendants-Appellants have validly perfected their appeal notwithstanding their failure

to pay July rent as required by section 6008(2), the court concludes that the stay of the

writ ofpossession should be terminated.

IT IS HEREBY ORDERED:

(1) The stay ofthe writ ofpossession granted in the District Court's order of

July 24, 2013 is hereby terminated, effective immediately.

(2) On request, the clerk will issue forthwith to Plaintiff-Appellee Toader

Serban a writ of possession for the premises described in the forcible entry and detainer

judgment of July 17, 2013.

3 (S) Because today's hearing addressed only whether the stay of the writ of

possession should continue, the court will issue a separate scheduling order governing

further proceedings in the appeal.

Pursuant to M.R. Civ. P. 79( a), the Clerk is hereby directed to incorporate this

order by reference in the docket.

Dated 1 August 2013

A.M. Horton Justice, Superior Court

4 Date Filed 07/25/13 Sagadahoc County Docket No. AP-13-05 Action: Appeal from District Court -FED

Toader Serban Kel~ey Rae Blake vs. Charles Gordon Plaintiff's Attorney Defend~nt's Attorney Pro-Se Pro-Se 785 High Street 12 Winter Street Court Bath, Maine 04530 Bath, Maine 04530

Date of Entry Received 07/25/13: Notice of Appeal on Forcible Entry and Detainer with attested copies of the docket entries and all filings from West Bath District Court SA-2013-270, filed.