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Town of Otis v. Derr
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Decision: 	2001 ME 151
Docket: 	Han-01-326
Argued:  	October 9, 2001
Decided:	October 31, 2001




	[¶1]  Jesse Derr appeals from the Superior Court's order, (Hancock
County, Mead, C.J.), vacating a District Court judgment, (Ellsworth, Murray,
J.), finding him not in violation of the Town of Otis Zoning Ordinance.  Derr
argues that we should hear this interlocutory appeal for reasons of judicial
economy.  We disagree and dismiss the appeal. 
	[¶2]  With few exceptions,{1} we decline to hear interlocutory appeals. 
Millett v. Atlantic Richfield Co., 2000 ME 178, ¶ 8, 760 A.2d 250, 253.
Furthermore, we have held that appeals from Superior Court remand orders
are interlocutory and "should not be entertained unless 'the remand
requires only that the [District Court]  . . .  address a procedural or ancillary
matter distinct from the issue upon which appeal to the [Law Court] is
sought.'" Watson-Maddocks v. Maddocks, 676 A.2d 937, 939 (Me. 1996)
(quoting Wheeler v. Maine Unemployment Ins. Comm'n, 477 A.2d 1141,
1145 (Me. 1984)).  This rule helps "curtail interruption, delay, duplication
and harassment." State v. Maine State Employees Ass'n, 482 A.2d 461, 464
(Me. 1984). 
	[¶3]  The judicial economy exception has two requirements: first, that
"review of a non-final order can establish a final, or practically final,
disposition of the entire litigation," Id. at 464; and second, that the
interests of justice require that immediate review be undertaken.  Munsey v.
Groves, 151 Me. 200, 202, 117 A.2d 64, 66 (1955).
	[¶4]  Derr advances five reasons why we should entertain this
interlocutory appeal: first, a decision in his favor will end the case; second,
our rules now permit direct appeals from the District Court; third, we
seldom hear appeals from zoning violation complaints initiated under Rule
80K;{2}  fourth, marketability of title is an issue; fifth, the Superior Court
erred when it ordered the District Court to consider matters not considered
by the Planning Board.
	[¶5]  Derr's arguments do not address the elements or purpose of our
final judgment rule and its exceptions.  Whether we have an opportunity to
offer guidance to local zoning boards or whether a case has an unusual
procedural posture and would now be heard on direct appeal is immaterial
to the application of the rule.  Musson v. Godley, 1999 ME 193, ¶ 5, 742
A.2d 479, 481 ("We have provided for a few narrow exceptions to the rule
but limited their application to extraordinary situations.").
	[¶6]  Derr's appeal does not concern an ancillary or procedural
matter, but rather the Superior Court's judgment that his shoreside house is
within the statutorily required setback.  Nor do the interests of justice or
the ability of this court to provide a final disposition of this case support
entertaining this appeal at this time.  Derr's appeal fails to meet the criteria
for the judicial economy exception set out in Munsey, because the interests
of justice do not require immediate review.  Musson, 1999 ME 193, ¶ 6,
742 A.2d at 481.  Irrespective of whether we could decide the legal issues
he raises and thereby end further litigation, Derr has not shown sufficient
urgency in this appeal. In contrast to our other cases where the parties
would be significantly affected by delay, Derr can demonstrate no such
injury.  See Williams v. Williams, 1998 ME 32, ¶ 7, 706 A.2d 1038, 1039
(The judicial economy exception applied when the sudden retirement of a
judge resulted in inordinate delay in a child custody matter.).
	[¶7]  During the course of this litigation, Derr has had the continuing
use of his house.  No penalties for violation of the Town's ordinance have
been assessed against him.  Although the delay of returning to the District
Court for factual findings may result in additional fines, Derr must bear
substantial responsibility for that delay for it was his decision to take this
interlocutory appeal.  "Judicial economy is not served by taking this appeal."
Millett, 2000 ME 178, ¶ 17, 760 A.2d at 256.
	The entry is:
			Appeal dismissed.

Attorney for plaintiff: David F. Szewczyk, Esq. (orally) Macdonald Chase & Szewczyk 700 Mt. Hope Avenue Bangor, ME 04401 Attorneys for defendant: Chadbourn H. Smith, Esq. (orally) James Collier, Esq. Fenton, Chapman Smith & Kane, P.A. P O Box B Bar Harbor, ME 04609-0020
FOOTNOTES******************************** {1} . Those exceptions are the judicial economy exception, the death knell exception, and the collateral order exception. {2} . Rule 80K of the Maine Rules of Civil Procedure provides an expedited procedure for adjudicating violations of land use laws and ordinances. M.R. Civ. P. 80K.