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Lussier v. Oxford Development
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision:	1997 ME 117
Docket: 	CUM-96-531
Argued :	April 9, 1997
Decided :	May 28, 1997

Panel:	WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ.  

MELODY LUSSIER et al. v. OXFORD DEVELOPMENT ASSOCIATES et al.

GLASSMAN, J.
  
	[¶1]  Melody Lussier appeals from the summary judgment entered in
the Superior Court (Cumberland County, Saufley, J.) in favor of Oxford
Development Associates and Property Management Services, Inc. on her
complaint seeking damages for injuries sustained by her as a result of the
alleged negligence of the defendants and from the denial of her motion,
pursuant to M.R. Civ. P. 60(b), seeking relief from the judgment.  Because we
agree with the defendants that Lussier failed to file a notice of appeal within
the time period provided by M.R. Civ. P. 73(a) and that the court was without
authority to grant the relief sought by Lussier by her motion pursuant to M.R.
Civ. P. 60(b), we dismiss the appeal.  
	[¶2]  The record discloses the following undisputed facts: After a
hearing, a summary judgment was entered on July 5, 1996, in accordance
with the trial court's order, dated July 3, 1996, granting the defendants'
motion for a summary judgment in their favor, and further providing, "Also
ordered, by agreement of the parties, plaintiff shall have up to and including
August 16 to file an appeal in this matter."  On August 7, 1996, Lussier filed
a notice of appeal from the judgment.  A letter dated August 20, 1996, from
the Clerk of the Law Court directed to the parties stated:
 
	In light of the provision of Justice Saufley's Order that
states: "Also ORDERED, by agreement of the parties, Plaintiff
shall have up to and including August 16, 1996 to file an appeal
in this matter," the Court requests that the parties address in
their briefs the question of whether the trial court has the
authority (with or without the consent of all parties) to grant an
enlargement of time in which to file a notice of appeal for any
reason other than excusable neglect.  The following cases should
be helpful as in [sic] introduction to this topic: Rice v. Amerling,
433 A.2d 388 (Me. 1981), Eaton v. LaFlamme, 501 A.2d 428
(Me. 1985), Lane v. Williams, 521 A.2d 706 (Me. 1987), Warren
v. Baxter, 645 A.2d 13 (Me. 1994).  

	[¶3]  At no time did Lussier file a motion seeking an extension of time
within which to file a notice of appeal.  On October 29, 1996, Lussier filed a
motion, pursuant to M.R. Civ. P. 60(b)(1), (4), and (6){1} seeking relief from
the judgment.  By an order dated November 13, 1996, we granted Lussier's
motion to suspend the provisions of M.R. Civ. P. 73(f) to the extent
necessary to permit the trial court to entertain Lussier's motion.  After a
hearing, by its order dated December 3, 1996, the court denied Lussier's
motion.  
	[¶4] The time within which to file an appeal to this Court is governed
by the unambiguous and explicit language of M.R. Civ. P. 73(a) that provides
in pertinent part:
 
The time within which an appeal may be taken shall be 30 days
from the entry of the judgment appealed from unless a shorter
time is provided by law, except that: (1) upon a showing of
excusable neglect the court in any action may extend the time
for filing the notice of appeal not exceeding 30 days from
expiration of the original time herein prescribed . . . .{2}  

	[¶5] We have repeatedly stated that strict compliance with the time
limits set forth in Rule 73(a) is a prerequisite to the entertainment of an
appeal by this Court.  See, e.g., Warren v. Baxter, 645 A.2d 13 (Me. 1994);
Lane v. Williams, 521 A.2d 706 (Me. 1987); Eaton v. LaFlamme, 501 A.2d
428 (Me. 1985); Rice v. Amerling, 433 A.2d 388 (Me. 1981); Kittery
Electric Light Co. v. Assessors of the Town of Kittery, 219 A.2d 728 (Me.
1966).  The exclusivity of M.R. Civ. P. 73(a) as the controlling criteria for the
validity of time periods within which a notice of appeal to this Court must be
filed is also demonstrated by M.R. Civ. P. 6(b){3} that precludes its applicability
to any enlargement of time for filing a notice of appeal pursuant to Rule
73(a).  It confines such enlargements specifically "to the extent and under
the conditions stated" in Rule 73(a) itself.  
	[¶6] Nor is M.R. Civ. P. 60(b) an applicable source for judicial relief
from the expiration, in fact, of the time periods prescribed by Rule 73(a) as
maximally allowable.  Approximately a quarter of a century ago, we stated in
Harris Baking Co. v. Mazzeo,
 
	[A party] can derive no benefit from a resort to Rule 60(b)
to achieve a reinstatement of time within which an appeal to the
Law Court may validly be initiated by the filing of a notice of
appeal.  

	In the ultimate analysis . . . and no matter how [the party's]
motion for relief be legally evaluated, [it] must fail [if the] notice
of appeal . . . [is] too late to comply with the absolutely governing
requirements of Rule 73(a) M.R.C.P.  

294 A.2d 445, 452-53 (Me. 1972).  
	The entry is: 
				Appeal dismissed. 
               
Attorneys for plaintiffs: James J. MacAdam, Esq. (orally) Mary Gay Kennedy, Esq. McTeaugue, Higbee, MacAdam, Case, Watson & Cohen P O Box 5000 Topsham, ME 04086-5000 Attorney for defendants: David P. Very, Esq. (orally) Norman, Hanson & DeTroy P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} M.R. Civ. P. 60(b) provides that on filing a motion, and on such terms as are just, the court may relieve a party or a party's representative from a judgment, inter alia, for the following reasons: "(1) mistake, inadvertence, surprise, or excusable neglect; . . . (4) the judgment is void; . . . (6) any other reason justifying relief from the operation of the judgment." {2} The Rule's provision for the termination of the running of the time for appeal by a timely motion made pursuant to M.R. Civ. P. 52(a), 52(b) and 59 has no applicability to the present case. {3} M.R. Civ. P. 6(b) provides that the trial court generally has discretion for cause shown to enlarge the time within which certain acts are required.