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Levis v. Konitzky

Supreme Court of Maine

November 17, 2016


          Argued: March 3, 2016

         On the briefs:

          Jason Dionne, Esq., and Juliana McKittrick, Esq., Isaacson & Raymond, P.A., Lewiston, for appellant James N. Levis

          Thomas B. Federle, Esq., Federle Law, LLC, Augusta, for appellee Gustav Konitzky

         At oral argument:

          Jason Dionne, Esq., for appellant James N. Levis

          Thomas B. Federle, Esq., for appellee Gustav Konitzky


         Reporter of Decisions

          HUMPHREY, J.

         [¶1] James N. Levis appeals from a summary judgment entered in the District Court (Wiscasset, Billings, J.) in favor of Gustav Konitzky in this adverse possession and quiet title action. Levis asserts several errors and abuses of discretion by the trial court over the course of the six years that this litigation was pending, including, inter alia, that the court abused its discretion in vacating a default judgment entered against unknown defendants[1] and erred in granting summary judgment to Konitzky.[2] We conclude that none of the court's rulings constitutes abuse of discretion or legal error. Accordingly, we affirm the judgment.

         I. BACKGROUND

         [¶2] On April 27, 2009, James Levis filed a complaint for declaratory judgment and quiet title in the District Court (Wiscasset), claiming title to an approximately 125-foot by 100-foot section of mudflat on the southern side of McCaffrey's Brook in Bristol by adverse possession and by deed from his ex-wife.[3] Levis named "J. Henry Cartland, his heirs and assigns" (the Cartland heirs) as defendants and Gustav Konitzky, an abutting neighbor and boat-builder, as a party in interest.[4]

         [¶3] Cartland, who acquired title to the mudflat and an adjoining lot on January 1, 1890, was the last known owner of record. The Cartland heirs were served by publication, and, on October 16, 2009, Levis filed a motion for a default and default judgment as to the Cartland heirs because none had appeared in the case. The court [Worth, J.) entered a default judgment against the heirs on October 28, 2009. The order specifically stated that it did not affect Konitzky's rights.

         [¶4] For the next several years, Levis and Konitzky engaged in a procedural entanglement of dueling motions, with Levis attempting to establish that Konitzky had no cognizable interest in the mudflat and Konitzky attempting to defeat Levis's quiet title and adverse possession claims. Relevant to this appeal, in December 2010, Konitzky filed a motion to set aside the default judgment against the Cartland heirs, alleging that he had located a Cartland heir who had transferred her interest in the property to Konitzky. In February 2011, the court [Tucker, /.) held a hearing and denied the motion because it was not filed within the one-year deadline specified in M.R. Civ. P. 60(b)(2) and because Konitzky had "not presented evidence of reasons that Rule 60(b)(6) should apply."

         [¶5] Pursuant to M.R. Civ. P. 59(e), Konitzky filed a motion for reconsideration of the denial of his motion to set aside the default judgment, contending that he had not received notice of the hearing and that because the default judgment was not final-it had not settled the matter as to him-the court's application of M.R. Civ. P. 60(b) was in error.

         [¶6] The court granted Konitzky's motion and, in June 2011, held an evidentiary hearing at which Konitzky presented a 2010 release deed from Margaret Sue Tennant Jones, an alleged heir of Cartland, conveying any interest she had in the property to him. The court entered an order vacating the default judgment, opining that Konitzky's discovery of an heir and the subsequent assignment could make him an assignee, not just a party in interest. The court concluded that the default judgment was not a final judgment because the entire case had not been resolved, see M.R. Civ. P. 54(b)(1); thus, Rule 60(b)(2) and its one-year deadline for newly discovered evidence did not apply. See M.R. Civ. P. 55(c).

         [¶7] Citing the quiet title statute, 14 M.R.S. §§ 6651-6663 (2015), Levis filed a motion to modify the order vacating the default judgment. The court denied the motion but noted that none of the Cartland heirs had filed an answer or otherwise appeared in the action, and Konitzky had not entered an appearance pursuant to 14 M.R.S. § 6653 as an assignee of a named defendant, and it extended the time for formally answering the original complaint until September 2, 2011. See 14 M.R.S. §§ 6654, 6656. By a subsequent order dated August 31, 2011, the court extended the deadline "for a thirty-day period."

         [¶8] On September 29, 2011, Konitzky entered an appearance, pursuant to 14 M.R.S. § 6653, as a defendant to the original action based on the conveyance from Tennant as well as conveyances from additional alleged heirs. In November 2011, Levis filed several motions, including a motion for default against Konitzky as a party in interest and defendant, contending that Konitzky failed to comply with several rules ...

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