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Gammon v. Boggs

Supreme Court of Maine

November 15, 2018


          Argued: November 6, 2018

          Robert 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.


          PER CURIAM.

         [¶1] 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[1] 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for trial; (2) restricting a previously designated expert to providing rebuttal testimony when that expert had withdrawn and they had designated a different expert for trial; (3) finding that, in addition to having proved record ownership of the land in dispute, the Gammons had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. 52(b).

         [¶2] 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.

         [¶3] 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 the trial.

         [¶4] Commendably, the court had kept the case on track through considerable effort involving hearings, telephone conferences, and written orders.

         [¶5] 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."

         [¶6] 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.

         [¶7] 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[2]- 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.

         [¶8] 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 ...

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