Twin Island Development Corp. v. Ross

522 A.2d 901, 1987 Me. LEXIS 683
CourtSupreme Judicial Court of Maine
DecidedMarch 18, 1987
StatusPublished
Cited by3 cases

This text of 522 A.2d 901 (Twin Island Development Corp. v. Ross) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Twin Island Development Corp. v. Ross, 522 A.2d 901, 1987 Me. LEXIS 683 (Me. 1987).

Opinion

PER CURIAM.

This is a patently frivolous appeal, demanding that we impose a substantial sanction upon the lawyer who brought it solely to advance his own personal interests.

This mechanics lien case was before us last year on the joint appeal of defendant Catherine Winchester, the owner of the Kennebunkport farm against which the Superior Court had entered a lien judgment for work done by Twin Island Development Corporation, and intervening defendant David A. Ross, who had purchased all of Winchester’s interest in the farm at a time after Twin Island had done the lienable work. In Twin Island Dev. Corp. v. Winchester, 512 A.2d 319 (Me.1986), we affirmed the Superior Court’s judgment of a mechanics lien, in the amount of $27,355.90 plus interest and costs, against the Winchester/Ross property. On that prior appeal Ross, who is a practicing lawyer in Washington, D.C., was granted the privilege of appearing pro hac vice to represent his co-appellant Winchester as well as himself.1 After we affirmed the lien judgment against the property now owned by Ross, he (expressly on behalf of both Winchester and himself) filed a timely motion for reconsideration. After full consideration, we denied Ross’s motion on July 29, 1986, and forthwith issued the mandate to the Superi- or Court.

Back in the Superior Court on remand, Ross reacted to Twin Island’s motion for an order of sale of the liened property, by filing a motion under M.R.Civ.P. 60(b)(4) [902]*902seeking to set aside the lien judgment on a ground already specifically raised by him before the Law Court on his first appeal. On October 23, 1986, the Superior Court entered an order establishing the procedure and timetable for the sale of enough of the Kennebunkport property to satisfy the lien. Then, on October 31, 1986, the Superior Court denied Ross’s Rule 60(b)(4) motion. Finally, on November 18, 1986, the court denied Ross’s motion for reconsideration of the October 23 order of sale. Ross then filed this present appeal.

On his second appeal, Ross’s principal contention is that our decision on his first appeal was wrong and that in any event he is not bound by it because our opinion does not mention him as an appellant therein along with Winchester. The latter argument is too absurd to deserve comment. As for his contention that his first appeal was wrongly decided, elementary principles of res judicata, familiar to first year law students, foreclose Ross from rearguing matters that he argued or could have argued on that first appeal from the lien judgment imposed by the Superior Court on the Kennebunkport farm. Any lawyer should immediately have recognized that another appeal by him on the validity of the lien judgment was absolutely barred as a matter of law. Furthermore, even when we look at Ross’s present arguments on the merits, we find them no more convincing in 1987 than in 1986. Any objective observer free of the astigmatism of self-interest would conclude that Ross’s principal ground for his second appeal is utterly frivolous.

On this appeal Ross also complains about the time schedule set by the Superior Court justice for Ross to segregate a 50-acre parcel for a separate, private sale to satisfy the lien. As an accommodation to Ross and with the agreement of the Maine attorney then representing him, the presiding justice, rather than ordering an immediate public sale of the whole farm to satisfy the lien, has allowed Ross 30 days to segregate a 50-acre parcel and another 60 days to arrange a private sale. Only if Ross is unable to get a contract for the sale of the 50-acre parcel within that total period of 90 days will a public auction take place on that parcel within another 45 days thereafter. Even after the public sale Ross has another 14 days within which to redeem. Ross cannot complain about the special dispensation that the Superior Court at his request gave him for a private sale in place of an immediate public sale, and we find nothing in any way unreasonable in the court’s allowance of 90 days for Ross to find a private purchaser before the court-designated auctioneer proceeds with the public sale. Any independent legal counsel would have advised Ross that the lien statute, 10 M.R.S.A. § 3259 (Supp.1986), committed the scheduling of the lien sale entirely to the sound discretion of the Superior Court justice, and further that no appellate court would declare that the justice who set the schedule for the lien sale in this case had exceeded the bounds of his permissible discretion. Ross’s second ground for appeal is no less frivolous than the first.

Appellee Twin Island urges that this second appeal by Ross is intended for delay, thereby meriting the imposition of sanctions under M.R.Civ.P. 76(f). We agree. The futility of this appeal is so certain, so complete, and so obvious as to require the conclusion that the appellant willfully filed and prosecuted it solely for the purpose of buying time at the expense of the lien judgment creditor, as well as of this court and the public it serves.

The only task remaining is for us to fix an appropriate sanction. Relevant to that task is the fact that Ross, like the appellants in both Boothbay Register, Inc. v. Murphy, 415 A.2d 1079 (Me.1980) (treble costs imposed under 14 M.R.S.A. § 1802 (1980)), and Estate of Bonin, 457 A.2d 1123 (Me.1983) (treble costs and up to $1,000 attorney’s fees imposed under Rule 76(f)), is a lawyer who has used the appellate processes solely to advance his own self-interest. As a lawyer Ross was charged with recognizing the frivolousness of a second appeal and with acting accordingly. Instead, relieved of the practical inhibition that the cost of employing appellate counsel imposes upon nonlawyers, Ross has [903]*903used his knowledge of the appellate system to delay further, without any legal justification whatever, the enforcement of the Superior Court’s lien judgment. Wherever admitted to practice, a lawyer takes on ethical obligations to the legal system. In this litigation, both in the Superior Court and here, Ross has been extended the courtesy of admission to the privileges of the Maine bar pro hoc vice to represent Catherine Winchester, whose property he has bought subject to the mechanics lien. At the same time Ross took on the reciprocal obligations of a member of our bar.

Any lawyer who signs a motion, such as Ross’s Rule 60(b)(4) motion in the Superior Court, or signs a notice of appeal or other pleading2 certifies, subject to “an appropriate sanction,” that “to the best of his knowledge, information and belief, there is a good ground to support it; and that it is not interposed for delay.” M.R.Civ.P. 11. By the Maine Code of Professional Responsibility, a “lawyer shall not ... assert a position ... or take other action on behalf of his client when he knows, or should know, that such action would merely serve to harass or maliciously injure another.” M.Bar R. 3.7(a) (emphasis added). This precept is a universal rule of ethics for lawyers. See ABA Model Code of Professional Responsibility, DR7-102(A)(1) (1980)3; ABA Model Rules of Professional Conduct, Rule 3.1 (1983).

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Cite This Page — Counsel Stack

Bluebook (online)
522 A.2d 901, 1987 Me. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twin-island-development-corp-v-ross-me-1987.