JAMES N. LEVIS
GUSTAV KONITZKY et al.
Argued: March 3, 2016
Dionne, Esq., and Juliana McKittrick, Esq., Isaacson &
Raymond, P.A., Lewiston, for appellant James N. Levis
B. Federle, Esq., Federle Law, LLC, Augusta, for appellee
Dionne, Esq., for appellant James N. Levis
B. Federle, Esq., for appellee Gustav Konitzky
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
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 and erred in granting summary judgment
to Konitzky. We conclude that none of the court's
rulings constitutes abuse of discretion or legal error.
Accordingly, we affirm the judgment.
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. 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.
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
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."
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.
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).
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."
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 ...