The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 44
Docket: Pen-13-374
Submitted
On Briefs: February 27, 2014
Decided: March 18, 2014
Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
SHARON CASSIDY
v.
CITY OF BANGOR et al.
MEAD, J.
[¶1] Sharon Cassidy appeals from the Superior Court’s (Penobscot,
Anderson, J.) order accepting findings issued by the Bangor Planning Board
nunc pro tunc and granting Cassidy forty days to consider the findings and file an
amended brief in support of her 80B appeal. We dismiss Cassidy’s appeal as
interlocutory.
I. BACKGROUND
[¶2] In 2012, Harvey Sprague submitted an application to the Board seeking
approval to open and operate a quarry on Union Street in Bangor’s Rural
Residence and Agricultural District. The Board considered Sprague’s application
during its March 6, 2012, meeting, at which several residents of Bangor, including
Cassidy, spoke in opposition to the proposed quarry. At the conclusion of the
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meeting, the Board approved Sprague’s application by a 7-0 vote and notified
Sprague of its decision by letter the next day.
[¶3] On April 3, Cassidy filed a complaint seeking judicial review of the
Board’s decision pursuant to M.R. Civ. P. 80B. In her complaint, she listed the
Board’s failure to make findings of fact as one of the grounds for her appeal. In
response, the Board approved and issued findings of fact and conclusions of law to
accompany its May 8 approval letter. On July 11, the court issued an order on
Cassidy’s complaint, accepting the findings of the Board retroactively and granting
Cassidy forty days to consider the findings and file an amended brief. Cassidy
filed this appeal.
II. DISCUSSION
[¶4] The final-judgment rule prevents us from considering an interlocutory
appeal unless the appeal falls within an exception. See Bruesewitz v. Grant, 2007
ME 13, ¶ 5, 912 A.2d 1255. There are three exceptions to the final judgment rule:
the judicial economy exception, the collateral order exception, and the death knell
exception. Id. ¶¶ 5-8. None, however, apply to the interlocutory appeal of the
procedural order in this case. See Bond v. Bond, 2011 ME 105, ¶ 6, 30 A.3d 816.
[¶5] The judicial economy exception allows appellate review of an
interlocutory order if resolution of the appeal would establish a final disposition of
the entire litigation and “the interests of justice require that an immediate review be
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undertaken.” Bruesewitz, 2007 ME 13, ¶ 6, 912 A.2d 1255. Here, addressing the
merits of Cassidy’s appeal would have the opposite effect—if we remand the case
to the Board, as Cassidy suggests, duplicate litigation will certainly result and a
final disposition will be delayed.
[¶6] The collateral order exception allows the appeal of an interlocutory
order “where (1) that order involves a claim separable from and collateral to the
gravamen of the lawsuit; (2) it presents a major and unsettled question of law; and
(3) there would be irreparable loss of the rights claimed in absence of immediate
review.” Id. ¶ 7 (quotation marks omitted). Only the second factor could arguably
apply here. The order does not involve a claim that is separable and collateral to
the gravamen of the lawsuit, and Cassidy will lose nothing by pursuing a final
judgment and litigating the merits of the accepted findings.
[¶7] Similarly, the death knell exception does not apply because Cassidy
has not demonstrated that a “substantial right” will be lost if review is delayed until
final judgment. Id. ¶ 8. To the contrary, if the relief Cassidy requests is granted, a
disposition on the merits of her case will be substantially delayed.
[¶8] Because Cassidy’s appeal does not fall within any of the exceptions to
the final judgment rule, it must be dismissed.
The entry is:
Appeal dismissed as interlocutory.
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On the briefs:
Roy T. Pierce, Esq., Preti, Flaherty, Beliveau & Pachios, LLP,
Portland, for appellant Sharon Cassidy
Paul S. Nicklas, Esq., Asst. City Solicitor, City of Bangor,
Bangor, for appellee City of Bangor
Hunter J. Tzovarras, Esq., Law Office of Hunter J. Tzovarras,
Bangor, for appellee Harvey Sprague
Penobscot County Superior Court docket number AP-2012-5
FOR CLERK REFERENCE ONLY