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Portland Stage Co. v. Bad Habits Live
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2001 ME 110
Docket: Cum-01-95
Submitted
on Briefs: June 25, 2001
Decided: July 18, 2001
Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
PORTLAND STAGE COMPANY
v.
BAD HABITS LIVE
PER CURIAM
[¶1] Bad Habits Live, d/b/a Zootz, appeals from a judgment entered in
the Superior Court (Cumberland County, Warren, J.) dismissing its appeal of
a forcible entry and detainer judgment entered in the District Court
(Portland, Bradley, J.). We affirm the dismissal and impose sanctions for the
filing of a frivolous appeal.
[¶2] Following a hearing, a judgment of forcible entry and detainer
was entered in the District Court granting to Portland Stage Company the
possession of premises occupied by Bad Habits on Forest Avenue in Portland.
The judgment contained a notice that the writ of possession "shall issue
seven calendar days after the judgment is entered." Pursuant to 14 M.R.S.A.
§ 6008(1) (Supp. 2000), any appeal from the judgment was required to be
filed within thirty days after entry of the judgment or before the issuance of
the writ, whichever occurred earlier. The writ issued on December 11,
2000.
[¶3] Bad Habits did not file its appeal prior to the entry of the writ.
One day after issuance of the writ, it filed a notice of appeal and a motion to
enlarge time for filing the appeal. In its motion, Bad Habits alleged that the
client, rather than the attorney, received a copy of the judgment and that
excusable neglect existed. Portland Stage Company filed an opposition to
the motion to enlarge, arguing that the appeal was untimely and that no
excusable neglect existed.
[¶4] The District Court did not act on the motion to enlarge, but the
file was administratively transferred to the Superior Court.{1} Portland Stage
Company immediately filed a motion to dismiss the appeal as untimely. In
its motion, Portland Stage Company also argued that Bad Habits had failed to
comply with the requirements of 14 M.R.S.A. § 6008(2) (Supp. 2000),
requiring the payment of rent in order to proceed with the appeal. The
motion included the required notice that failure to respond "will be deemed
a waiver of all objections to the [m]otion." See M.R. Civ. P. 7(b)(1), (c)(3).
Bad Habits did not respond to the motion, as required by M.R. Civ. P. 7(c),
nor did it remedy or otherwise respond to the allegation that it had failed to
pay the rent required by 14 M.R.S.A. § 6008(2). The Superior Court granted
the unopposed motion to dismiss.
[¶5] Notwithstanding its complete failure to comply with the
applicable law and rules of court, Bad Habits has appealed the dismissal to
us. Its argument on appeal is that it was not required to respond to the
motion to dismiss because its position was stated in its earlier motion to
enlarge time for filing the appeal, filed in the District Court. Its one page
argument is silent on the issue of compliance with 14 M.R.S.A. § 6008(2)
and cites no authority for its position that it was not required to respond to
the motion to dismiss, nor could it.
[¶6] Bad Habits's argument on appeal is so lacking in merit that we
can only assume it is interposed for delay.{2} The Maine Rules of Civil
Procedure could not be clearer: a party who fails to respond to a motion
waives "all objections to the motion." M.R. Civ. P. 7(c)(3) (emphasis added).
Bad Habits's decision to file and pursue an appeal in circumstances where it
has failed to comply with both the statute and the rules renders its appeal
wholly frivolous.
[¶7] Accordingly, we impose sanctions against Bad Habits and their
attorneys, including treble costs and the payment of $500 toward Portland
Stage Company's attorney fees for the defense of this appeal.
The entry is:
Judgment affirmed. Bad Habits or its attorneys
shall pay treble costs and $500 toward
attorney fees to Portland Stage Company.
Attorney for plaintiff:
Jerrol A. Crouter, Esq.
Deirdre M. Smith, Esq.
Drummond Woodsum & MacMahon
P O Box 9781
Portland, ME 04104-5081
Attorney for defendant:
Patrick H. Gordon, Esq.
P O Box 11583
Portland, ME 04104
FOOTNOTES******************************** {1} . The District Court should
have acted on the motion to enlarge time before the file was transferred
to the Superior Court. See M.R. Civ. P. 76D. It appears, however, that no
judge was made aware of the motion. Any ambiguity in the court's actions
could have been addressed had Bad Habits properly responded to Portland
Stage Company's motion to dismiss the appeal once the matter was docketed
in the Superior Court. {2} . The notice of appeal was filed on the twenty-ninth
day following entry of dismissal.
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