The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION \
DOCKET NO: AP-02-49
TE b+ = LM of ek 53
HRA
FRANK BLANCHARD JR: Mersonal
Representative of The Estate of Frank
Blanchard Sr.,
hh MAR 3 AN ao: 3b i y
Plaintiff
v. DOMALPL, C2
INHABITANTS OF THE LA
TOWN OF FALMOUTH,
PHILOMENA RUSSO, . MAY 12 2004
TOWER SPECIALISTS, INC.,
PAUL STROUT and _
JACQUELINE C. SULLIVAN
DECISION AND ORDER ON.
Defendants. PLAINTIFF'S MOTION FOR
and PARTIAL SUMMARY JUDGMENT
AND RULE 80B APPEAL
PHILOMENA RUSSO,
Third Party Plaintiff
Vv.
ROBERT M. MALIA and JULIE A. MALIA,
Third Party Defendants.
This matter is before the court on the 80B appeal of the plaintiff
Estate of Frank Blanchard, Sr. from the decision of the Falmouth
Planning Board (“Board”), as set forth in Counts I and II of his amended
complaint, and on the plaintiffs motion for partial summary judgment on
those same counts.
The court dismisses the plaintiffs 80B appeal in Counts I and II for
failure to file the record of the subject proceedings before the Board, or
an acceptable substitute for the record, as required by M. R. Civ. P.
p>
80B(e). See M. R. Civ. P. 80B(h): Time Enough, Inc. v. Town of Standish,
670 A.2d 918, 920 (1996) (holding that in the absence of a record the
Superior Court may dismiss action); 2 Field, McKusick & Wroth, Maine
Civil Practice § 80B.4a at 574 (2d ed. Supp. 1981) (stating that failure of
the plaintiff to get the record before the court “will result in dismissal of
his 80B action for want of prosecution”).' The court concludes that such
a filing is necessary under the Rules even where the defendants have
filed answers admitting critical allegations in the amended complaint.
In view of the foregoing dismissal, the plaintiff's motion for partial:
summary judgment as to Counts J and IJ is moot and must be denied.
Even if that motion is still viable, it must be denied because the plaintiff
has not filed a statement of material facts as required by M. R. Civ. P.
56(h)(1), nor has it offered any affidavits, pleadings, depositions,
_ admissions, or answers to interrogatories showing that there is no
genuine issue as to any material fact as required by M. R. Civ. P. 56(c).
These procedural defects are fatal to the plaintiffs summary judgment
motion, and are not cured by the defendants’ admissions in their
answers to the amended complaint. See Levine v. R.B.K. Caly Corp.,
2001 ME 77, 19, 770 A.2d 653, 656 (holding that a party’s failure to file
a proper statement of material facts is fatal to it motion for summary
judgment); Dumont v. Fleet Bank of Maine, 2000 ME 197, f 13, 760 A.2d
’ The plaintiff did not request an enlargement of time to file the record or
stipulations as to the record. The court may extend Rule 80B time limits for
good cause pursuant to a motion for a time extension made prior to the filing
deadline. M.R. Civ. P. 80B(g). Such motions made after the deadlines are
governed instead by Rule 6(b)(2), which provides for enlargement of time periods
upon a showing of excusable neglect. Haskell v. Phinney, 460 A.2d 1354, 1359-
60 (Me. 1983).
1049, 1053-54 (holding courts are neither required to independently
search a record to find support for facts offered by a party).
DECISION
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this
Decision and Order on the Civil Docket by a notation incorporating it by
reference and the entry is
Plaintiffs appeal from the decision of the Falmouth
Planning Board is DISMISSED: and
Plaintiffs Motion For Partial Summary Judgment on
Counts I and II of Plaintiff's Complaint is moot and,
therefore, DENIED.
Dated: March 3, 2004
od
Date Filed
g-5~02 CUMBERLAND Docket No. APOQ2-49
County
80B APPEAL
Action
FRANK BLANCHARD, PERS. REP. OF THE ©
ESTATE OF FRANK BLANCHARD
INH. OF THE TOWN OF FALMOUTH
PHILOMENA RUSSO
ROBERT MALIA AND JULIE MALIA (3RD Party
TOWER SPECIALISTS. INC.
PAUL STROUT
VS. JACQUELINE C. SULLIVAN
Plaintiff's Attorney
games Mitchell, Esq.
86 Winthrop Street
Augusta ME 04330
Defendant’s Attorney
BONNIE MARTINOLICH, Esq (Ruso)
PO BOX 9546
PORTLAND, ME 04112
Def.'
s Attorney ---‘!*
Sally Daggett, Esq.
P.O. Box 4510
Portland, ME 04112-4510
WILLIAM PLOUFFE, ESQ (Falmouth)
PO BOX 9781
PORTLAND, ME 04104
(R. & J. Malia)
(3rd Party)
Date of oo on sop ee Esq. ower Sp! ROY PIERCE, ESQ 791-3000
Entry Portland ME 04112 rout) PO BOX 9546 PETER RODWAY, ESQ.
Portland, ME 04112. P.O. BOX 874 (Sulliva
PORTLAND, MAINE
2002 . ' 04104
Sept. 6 Received 9~5-02. 77-8449
Complaint Rule 80B and Rule 80A Quite Title with Exhibits 1-4 filed.
mn . Summary sheet filed.
uu On 9-6-02.
Briefing schedule mailed. Plaintiff's brief duel10-16-02.
Sept 25 Received 9-25-02:
Acceptance of Service of Summons and Complaint by William Plouffe, Esq,
on behalf. of the Town of Falmouth, filed.
won Acceptance of Service of Summons and Complaint by Bonnie Martinolich, Esq.,
on behalf of Philomena Russo, filed.
Oct. 1 Received 10-01-02.
Defendant, Town of Falmouth's, Answer filed.
Oct 9 Received 10-9-02:
Summary Sheet filed.
Answer, Affirmative Defenses, and Counterclaim of Defendant Philomena
IT. Russo, with Exhibit A thru E filed.
" " Defendant ThirdParty Plaintiff, Philomena T Russo, Complaint and Request
for Declaratory Relief, with Exhibits A thru E filed.
Summary Sheet. filed.
Oct. 17 Received 10-15-02: —_
Plaintiff's motion for Extension of Time to File a Brief filed.
Oct. 23 Received 10-23-02.
’ Plaintiff's Frank Blanchard's Answer to Philomena Russo's ‘Counterclaim
filed.
Oct 23 On 10-23-02:
As to Plaintiff's Motion for Extension of Time to File a Brief: For good
cause shown and without opposition, plaintiff is granted until December 6,
“2002 in which to file his 80B brief and a response to the pending counter-
claim.
continued to navt naao
FRANK BLANCHARD, personal representative of the Estate of Frank Blanchard,
late of Falmouth, Cumberland vs. The Town of Falmouth, et al
Date of
_ Entry Docket No. .. Ap-0?-49
~ 2002 —
Oct 23 continued from previous Page...-eeesseeseeees =
On 10-23-02 copies mailed to Roy Pierce, William Plouffe, Bonnie Martino-
lich, and James Mitchell, Esqs. : ,
Nov. 1 | Received 11-1-02.
Summons filed showing officer's return of service on 10-29-02 upon 3rd Party
| Defendant Julia Malia to Robert Malia, husband.
yom Summons filed showing officer's return of service on 10-29-02 upon 3rd Party
Defendant Robert Malia.
Nov. 15 Received 11-15-02:
Third-Party Defendant Robert M. Malia's Motion for An Enlargement of time
to File Answer filed.
Nov. 18 Received-I1=18-02:
‘| Plaintiff's Second Motion for Extension of Time to File A Brief (With
Incorporated Memorandum) file.d eg .
Nov. 18 Received 11-18-02: Third-Party Defendant Julie A. Malia's Motion for
Enlargement, of Time to File Answer filed. ,
Nov. 18
As to Plaintiff's Second Motion for Extension of Time To File A Brief:.
For good cause shown and without opposition, Plaintiff is granted until
12/27/02 by which to file his 80B brief and response to the pending.
counterclaim.
On 11-18-02 Copies mailed to Roy Pierce, William Plouffe, Bonnie Martino-.
lich and James Mitchell, Esqs. , :
Nov. 21 Received 11-19-02: oe
Order on Third-Party Defendant Robert M. Malia's Motion for An Enlarge~?¢
ment of Time to File Answer filed. (Humphrey, J.). Sone
The Court hereby GRANTS the motion. Third-Party Defendant's Answer to
the Third-Party Complaint shall be filed no later than November 25,°2002.
On 11-22-02 Copies mailed to Roy Pierce, William Plouffe, Bonnie Martino-
lich and James Mitchell, Esqs. , ~
Nov. 21 Received 11-21-02:
- Order on Third-Party Defendant Julie A. Malia's Motion for an Enlarge-
ment of Time to File Answer filed. (Humphrey, J.).
The Court hereby GRANTS the motion. Third-Party Defendant's Answer
to the Third-Party Complaint shall be filed no later than November 25,
2002.
On 11-22-02 Copies mailed to Bonnie Martinolich, William Plouffe, Roy
Pierce, Esqs. ,
Nov. 26 Received 11-25-02.
, Third-Party Defendants Robert M. Malia and Julie A. Malia's Answer and
Rule 14(a) Claims with attached exhibits 1-7a filed. oe
wo. Summary Sheet filed.
Dec. 13 Received 12-13-02. |
Plaintiff Frank Blanchard, Jr.'s Answer to Rule 14(a) Claims
of Third-Party Defendants Robert M. Malia and Julie A. Malis in
Plaintiff's Capacity as Personal Representative filed.
Dec. 17 || Received 12-13-02: _ , . i
Third-Party Plaintiff and Third-Party Defendants Motion for Enlargement
+-o£ Time filed. eee
s
FRANK BLANCHERD, JR., ET AL vs. PHILOMENA RUSSO, ET AL
Date of .
Entry Docket No. AP-02-49
2002
Dec. 17 On .12-17-02:
As to Third-Party Plaintiffs, Philomema T. Russo and Ronald P. Russo, Sr.
Motion for Enlargement of time: It is hereby ORDERED that Philomena T. Russo
and Ronald P. Russo, Sr‘'s Motion for Enlargement of Time is GRANTED. The
Russos shall file their response to the Malia's Rule 14(a) Claims on or be~
fore December 23, 2002. (Humphrey, J.).
On 12-17~02 Copies mailed to James Mitchell, Sally Daggett, Bonnie Martino-
lich, William Plouffe, Roy Pierce, Esqs.
Dec. 23 Received 12-23-02.
Third party plaintiffs, Philomena T. and Ronald P. Russo Sr's, Response
to Rule 14(a) Claims of Robert M. and Julie A. Malia filed.
Dec. 27 Received 12-27-02:
Plaintiff's Third Motion for Extension of Time to file'a brief with’
incorporated Memorandum filed.
Dec. 30 On 12-30-02 returned Plaintiff's Third Motion for Extension of Time to
file brief with incorporated Memorandum, (No signature on pleading).
Dec. 30 Received 12-27-02:
Letter from Roy Pierce, Esq. advising that Defendant, Philomema Russo has
no objection to Plaintiff's Third Motion for Extension of Time to File a
a Brief filed.
2003
Jan.3- Received 12-31-02: .
. Plaintiff's Third Motion for Extension of Time to File a Brief with
Incorporated Memorandum filed.
Jan 7 Received 1-7-03: /
Letter from Third Party Defendants stating no opposition to Plaintiffs
Third Motion for Extension of Time, filed.
Jan. 10 On 01-06-03:
As to Plaintiff's Third Motion for Extension of Time to File A brief:
For good cause shown, plaintiff is granted until January 31, 2003 in which
to file his 80B brief. (Humphrey, J.).
On 01-10-03 Copies mailed to James Mitchell, Sally Daggett, Bonnie Martino-—
lich, William Plouffe, and Roy Pierce, Esqs.
Jan. 31 Received 01-31-03: ,
Plaintiff's Fourth Motion for Extension of Time to File a Brief filed.
Feb. 3 On 01-31-03:
As to Plaintiff's Fourth Motion for Extension of Time to File a Brief:
For good cause shown, plaintiff is granted until March 28, 2003 in which
to file his 80B brief. (Humphrey, J.).
On 02-03-03 Copies mailed to James Mitchell, Sally Daggett, Bonnie Mar-~
tinolich, William Plouffe and Roy Pierce, Esqs. .
_ Feb. 3 Received 01-30-03: -
’ Acceptance of Service on behalf of Frank B. Blanchard, Jr. on January 2
2003 to. James Mitchell, Esq.
Feb. 10 Réceived 02-10-03: :
Original return of service served on Defendant, Donna E. Legary on 02-04-03
to Michael Legary, Husband.
FRANK BLANCHARD, JR. vs. THE TOWN OF FALMOUTH, ET AL
Date of
Entry Docket No, AP=-02-49
2003
Feb. 19 Received 02-18-03: @
Plaintiff, Frank Blanchard Jr., Personal Representative of The
Estate of Frank Blanchard Sr., Late of Falmouth, Cumberland Motion
to Amend Answer as Personal Representative with Incorporated Memoran~
dum filed:
" " Plaintiff, Frank Blanchard, Jr's Answer to Rule 14(a) Claims of “h:
Third-Party Defendants, Robert M. Malia and Julia A. Malia in his
individual Capacity, and Also Donna Legary's Answer filed.
Mar. 27 Received 03-27-03:
Plaintiff's Unopposed Fifth Motion for Extension of Time to File a
Brief (With Inc. Memorandum) filed.
Apr. 9 | On 04-08-03: .
As to Plaintiff's Unopposed Fifth Motion for Extension of Time to File
a Brief: For good Cause shown, plaintiff is granted until June 28, 2003
in which to file his 80B brief. (Humphrey, J.).
On 04-09-03 copies mailed to James Mitchell, Sally Daggett, Bonnie.
Martinolich, William Plouffe and Roy Pierce, Esqs.
Apr. 8 On 04-08-03:
As to Frank Blanchard, Ir's Motion to Amend Answer as Personal Re-
presentative with incorporated Memorandum: For good Cause shown, upon
motion of Frank B. Blanchard, Jr. and after hearing or opportunity
therefor, the answer of Frank B. Blanchard, Jr. as personal represen-
tative of the estate of Frank B. Blanchard is amended so that is now.: 2
DENIES the allegations in paragraph 45 of the Rule 14(a) pleading by
Robert and Julia Malia.(Humphrey, J.). So}
On 04-09-03 copies mailed to James Mitchell, Sally Daggett, Bonnie
Martinolich, William Plouffe and Roy Pierce, Esqs.
Jul. 1 Received 06-30-03:
Plaintiff's Sixth Motion for Extension of Time to File A Brief
filed.
July 30 On 07-29-03: (Humphrey, J.). :
Court Findings or Rulings: The entry will be: Atty. James Mitchell,
Esq. to prepare Order to following deadlines: (a) 45 days to file
a motions to add parties. (b) 45 days to file scheduling Order. (c)
60 days to file Plaintiff's 80B Brief.
On 07-30-03 Copies mailed to James Mitchell, Sally Daggett, Bonnie
Martinolich, Frank Frame and Roy Pierce, Esqs.
Received 07-31-03:
Aug. 4
Order filed. (Humphrey, J.).
The Court finds 1. That the parties believe there is a reasonable
chance that this matter will settle but that settlement rests upon
actions to be taken by one or more potential parties to the litigation.
who have not been joined as parties;2. That only a short further
extension is reasonable to allow these negotiations to be consummated;
and Orders that: 1. The motion to extend the time for plaintiff to file
80B brief is GRANTED and the time to file the brief is set for not
later than sixty days from the date of this order; 2. All motions to.
add additional parties shall be filed on or before the 45th day fol-
lowing the date of this order; 3. A scheduling order shall issue on OF
after the 46th day following the date of this order or on or after the
Gate on which any timely motion to add an additional party has been
granted, whichever comes later. SO ORDERED.