The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
"'.;' 'DodET NO: RE-08-179
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SUSANNE RICHTER
Plaintiff
ORDER
v.
WALTER ERCOLINI, and
JAYNE ERCOLINI
Defendants
This case comes before the Court on Defendants' Motion to Vacate Entry
of Default pursuant to M.R. Civ. P. 55(c).
BACKGROUND
Plaintiff Susanne Richter owns a parcel of land located in Gray, Maine,
which abuts property owned by Defendants Walter and Jayne Ercolini. Ms.
Richter alleges that the Ercolini's have maintained and extended a rock wall that
encroaches on her property by approximately seven (7) feet. She alleges that this
encroachment is a result of a faulty land survey, conducted by Cullenberg Land
Surveying, which incorrectly identifies the boundary between the properties.]
Ms. Richter also alleges that the Defendants wrongfully moved a boundary
marker one foot closer to her property.
1 Ms. Richter alleges that the Cullenberg survey is inaccurate because it fails to
take into account a IO-foot right-of-way located on another portion of her
property. Further, Ms. Richter hired Northeast Civil Consultants to survey her
land, and she argues that the map prepared by Northeast accurately reflects the
boundary between the two properties.
Ms. Richter filed a complaint on August 11, 2008 asking the court to issue
a declaratory judgment declaring: (1) the CUllenberg survey void based on its
failure to acknowledge the alleged right-of-way; (2) the true common boundary
between the two properties; and finally, (3) the rock wall and garden to be
encroaching on her property. Ms. Richter also alleges injury to land2 and trespass
as causes of action.
The Defendants were served with the summons and complaint at their
home in Amesbury, Massachusetts on August 29, 2008 by an Essex County
sheriff's deputy. The Ercolini's answer, while dated September 15,2008, was not
filed with the court until September 24, 2008. Pursuant to M.R. Civ. P. 55(a), the
clerk entered an entry of default on September 25,2008. On September 30,2008,
the Ercolini's filed the present motion to vacate the entry of default, simply
stating that they "live out-of-state and mailed [their] Answer to the Court and
Plaintiff's attorney in what [they] believed to be a timely manner." On October 8,
2008, Ms. Richter filed an application for default judgment.
DISCUSSION
Under Me.R. Civ. P. 55(c), a court may set aside an entry of default "for
good cause." In order to establish good cause, "a party must show a good excuse
for his or her untimeliness and a meritorious defense." Truman v. Browne, 2001
ME 182, CJI 9, 788 A.2d 168, 170. The Law Court has held that " [t]here is a strong
preference in our law for deciding cases on the merits. Thomas v. Thompson, 653
A.2d 417,420 (Me. 1995). Consistent with this preference, motions to set aside a
2 Pursuant to 14 M.R.S.A. §7552. Under this statute, without permission of a property
owner, a person may not "disturb, remove or destroy any lawfully established transit
point, reference point, stake ... or any such monument marking the bounds of public or
private property." 14 M.R.S.A. §7552(2)(C).
2
default have been granted in cases when no gross neglect was involved in the
late filing, the nondefaulting party will not be substantially prejudiced by
reopening the case, and a meritorious defense exists." [d.
According to the Law Court, the foundation of a good excuse for a party's
untimeliness is a reasonable explanation for that untimeliness. Levine v. KeyBank
Nat'[ Ass'n, 2004 ME 131, <IT 7, 861 A.2d 678, 684. Here, the only explanation
offered by the Ercolini's is that they filed their answer "in what they believed to
be a timely manner." This is not a reasonable excuse for their untimeliness.
Moreover, the Defendants' motion fails to raise any meritorious defense they
may have against Ms. Richter's alleged causes of action.
As they have not provided a good excuse for their untimeliness and failed
to raise any meritorious defenses, Defendants' motion to set aside entry of
default should be denied.
Therefore, the entry is:
Defendants Walter and Jayne Ercolini's Motion to Set Aside Entry of Default is
DENIED.
The clerk shall incorporate this Order into the docket by reteYe~rf27
pursuant to M.R. Civ. P. 79(a).
DATED: ~ a
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3
JF COURTS
-land County
Box 287
aine 04112-0287
GENE LIBBY ESQ
62 PORTLAND ROAD SUITE 17
KENENBUNK ME 04043
pl
OF COURTS
lrland County
I. Box 287
1aine 04112-0287
WALTER AND JAYNE ERCOLONI
21 WHITTIER ROAD
AMESBURY MA 01913