EARL GAMMON et al.
ROBIN E. BOGGS et al.
Argued: November 6, 2018
W. Kline, Esq. (orally), Kline Law Offices LLC, Portland, for
appellants Robin E. Boggs and Leland E. Boggs II.
Patrick J. Mellor, Esq. (orally), Strout & Payson, P.A.,
Rockland, for appellees Earl Gammon and Mary Gammon.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
In this dispute over the location of the boundary between the
land of Earl and Mary Gammon and the land of Leland E. Boggs
II, Leland and Robin E. Boggs appeal from a judgment entered by
the Superior Court (Knox County, Stokes, J.)
declaring the location of that boundary line. The Boggses
contend that the court erred by (1) denying their motion to
continue when they were unprepared for trial; (2) restricting
a previously designated expert to providing rebuttal
testimony when that expert had withdrawn and they had
designated a different expert for trial; (3) finding that, in
addition to having proved record ownership of the land in
dispute, the Gammons had alternatively proved title by
adverse possession; and (4) denying the Boggses' motion
for additional findings of fact pursuant to M.R. Civ. P.
The points on appeal generally address discretionary
decisions made by the trial court in its management of the
proceeding. Review of the record, the docket entries, the
several decisions of the trial court, and the briefs of the
parties on appeal demonstrates that the litigation was highly
contentious. Because of lack of cooperation between the
parties, delays by the parties in preparing and providing
discovery material, and a change of counsel by the Boggses,
the trial court, on several occasions, appropriately
exercised its discretion to grant requests to continue
previously set trial dates and discovery deadlines.
The court set a final trial date of December 19, 2016. Trial
was held over six days, December 19-21, 2016, and February
1-3, 2017. Reflecting its experience over the course of the
litigation, the court, in its opinion, observed:
It was obvious to the court during the trial of this matter
that the Gammons' and Boggs' families held strong
feelings of antipathy towards each other. The court was
dismayed by the fact that the attorneys for the parties
appeared to have assumed that antipathy towards each other.
Indeed, the court felt compelled on more than one occasion to
remind counsel of their professional responsibility to
conduct themselves in a civil and appropriate manner during
Commendably, the court had kept the case on track through
considerable effort involving hearings, telephone
conferences, and written orders.
In his brief on appeal, after acknowledging the trial
court's accommodation of some of the points argued in the
Boggses' post-judgment motions, the Boggses' counsel
argues that "[t]his still leaves Boggs disadvantaged by,
after a noisy withdrawal by his original attorney just before
trial, having to proceed without an expert surveyor witness
and with replacement counsel unprepared to try this boundary
dispute." Later in the brief, counsel asserts that
"Boggs was forced to proceed unprepared through no fault
of Boggs" and that, after his previous expert withdrew,
counsel was compelled "to scramble to find a replacement
expert, ... who ... never had time to prepare."
Such claims about a trial court's case management
practices, taken on their face and out of context-as such
claims are sometimes asserted-can make a trial court's
case management efforts seem callous and in disregard of the
trial court's obligation to try to achieve justice
through due process of law. Adding context may-as
here-demonstrate a very different series of events.
The docket entries reflect that the complaint in this matter
was filed on February 26, 2015. The Boggses' latest trial
counsel, who continues as counsel on appeal, first entered
his appearance in the case on May 2, 2016- seven and
one-half months before the actual first day of trial,
certainly not "just before trial," as counsel
asserts in his brief to us. In fact, because prior counsel
had withdrawn, the court had removed the case from the May
trial list and continued the trial, ultimately setting the
December trial date.
The record further reflects that by June 17, 2016, six months
before the first day of trial, at the Boggses' request
and over objection from the Gammons, the Boggses' counsel
had identified the replacement expert- although counsel's
brief to us indicates that counsel had some concern as to
whether the expert chosen would or could adequately prepare
for trial in the ensuing six months. It is not at all clear
why six months would not be enough time to retain and prepare
an expert to testify in a ...