Law Court

Tricky Issues of Appellate Procedure: Timeliness and Cross-Appeals Edition

Yesterday the Law Court, in an opinion written by Justice Connors, Concord General Mutual Ins. Co. v. Estate of Collette J. Boure, touched on two important appellate issues – one of which has been addressed often on this blog.  The issues involve timeliness of an appeal and the need for cross-appeals.

The case involved claims for insurance coverage in a motor vehicle accident.  One insurance company, Concord General Mutual Insurance Co., filed a declaratory judgment action against the decedent’s estate.  The Estate counterclaimed and brought a separate action against another insurer, 21st Century Centennial Insurance Co. After consolidating the cases, the Superior Court granted summary judgment in the insurers’ favor.  Judgment entered in favor of Concord on March 4, 2020, and in favor of 21st Century on February 24, 2021.  The Estate then appealed on March 10, 2021, identifying both judgments, and Concord filed a cross-appeal to argue for affirmance based on alternative grounds.

First,

It’s Time to Clarify When Cross-Appeals Are Necessary

Much has been said on this blog about when one should cross-appeal, given the Law Court’s jurisprudence on the topic.  I most recently addressed the issue here.  As I noted then, there is some tension between the text of the Maine Rules of Appellate Procedure, which provides that “[i]f the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue,” M.R. App. P. 2C(a)(1), and the Court’s most recent rulings (in Jones v. Secretary of State and Reed v. Secretary of State) regarding the necessity of cross-appealing to preserve an alternative argument for affirmance.  Because of the importance of this issue, my colleague Nolan Reichl and I recently published an article in the Maine Bar Journal (at page 10) addressing the topic.

As we wrote there,

Recent decisions by the Law Court have raised questions concerning

A New Experiment In Oral Arguments

Practice area:

For Supreme Court watchers and appellate practitioners, last week brought an interesting development – the Court is changing how it conducts oral argument.  Arguments will now feature both unstructured questioning by all justices and then uninterrupted questioning by individual justices. It will be fascinating to watch how this new approach affects oral arguments in the Supreme Court, and whether it will trickle down to other federal and state appellate courts.

As highlighted at SCOTUSblog (here) and the Appellate Advocacy Blog (here and here), the new format first gives counsel two minutes of uninterrupted time, and then allows for free-for-all questioning by the justices for the remainder of counsel’s 30 minutes of argument.  That is familiar practice; in a new twist, however, each justice in order of seniority then has the opportunity – after the 30 minutes of time has expired – to question counsel individually.  No strict time limit applies to this new segment

Ballot Question Challenges – To Expedite or Not to Expedite? That Is the Question.

The Law Court recently issued a decision in Caiazzo v. Secretary of State that was interesting on several levels.  (Full disclosure: this blogger represented the petitioner in the appeal).  One procedural aspect of the decision is particularly interesting, as it will affect the timing of future challenges to the Secretary of State’s determination regarding the wording of ballot questions for direct initiatives.

Caiazzo involved a voter’s challenge to the Secretary’s decision regarding the ballot question for a direct initiative.  The Superior Court handled the challenge on an expedited basis, under 21-A M.R.S. § 905.

Section 905 provides that voters (specifically, “any voter named in the [initiative] application . . ., or any person who has validly signed the petitions, if these petitions are determined to be invalid, or any other voter, if these petitions are determined to be valid”) may challenge the Secretary’s decision whether to validate petition signatures for a direct initiative.  Section 905 also provides a

Administrative Appeals: The Remedy When the Fact Finder Doesn’t Make Factual Findings

What is the remedy in an administrative appeal when the fact-finder doesn’t do its job by making findings of fact to explain its decision? As the Law Court recently reaffirmed in Fair Elections Portland, Inc. v. City of Portland, the proper remedy is generally a remand for further proceedings.

Fair Elections Portland involved a Rule 80B challenge relating to a citizen-initiated change to a municipal charter.  Under Maine law, charter “amendments” and charter “revisions” are treated differently.  The former must be submitted directly to the voters, while the latter can only be submitted to voters upon recommendation of a charter commission.  If a charter revision is proposed and is accompanied by statutorily-mandated language, it must be put to the voters as a proposal to form a charter commission.   In Fair Elections Portland, voters sought to modify Portland’s charter, and characterized it as an amendment; however, the statutory form language regarding a charter commission was not included. 

Aiding and Abetting, Conspiracy, and The Picture of Dorian Gray

It isn’t every day that the Law Court addresses claims of civil conspiracy or aiding and abetting breaches of fiduciary duty, but that is exactly what the court did in Meridian Medical Systems, LLC v. Epix Therapeutics, Inc. – with a bit of literary allusion thrown in.

In Meridian, the Court clearly stated for the first time that

civil liability can attach for aiding and abetting another’s tortious conduct.

Meridian involved a business relationship gone bad.  Ken Carr, in his capacity as assignee of the claims of Meridian, sued corporate defendants which had a relationship with Meridian as a result of a licensing agreement.  The complaint asserted that the value of Meridian’s technology was not maximized due to the conduct of Ken Carr’s co-managers at Meridian, which allegedly was encouraged by the defendants.  The complaint included counts for “conspiracy” and “aiding and abetting breaches of fiduciary duty.”

Reviewing the

Interlocutory Appeals and Judicial Efficiency

In a recent blog post, I explored the application of the final judgment rule to appeals from preliminary injunction orders in state court.  As I noted, the Law Court has recently applied the “death knell” exception to that rule to hear an interlocutory appeal regarding a preliminary injunction.  In two other recent cases, the Law Court has taken up and considered the “judicial economy” exception to the final judgment rule.  These cases help delineate the scope of that exception.

The first case is Cutting v. Down East Orthopedic Associates, P.A.  In that case, a plaintiff brought separate cases in federal court asserting a discrimination claim and a medical malpractice claim against a physician.  The district court granted summary judgment against the plaintiff in the discrimination case, and dismissed the second case for lack of subject matter jurisdiction.  The plaintiff then filed a malpractice claim in state court, which the defendant moved to dismiss on claim preclusion grounds.  The Superior

All Cleaned Up

Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable.  So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets?  One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case.  But there is another option – and it was just endorsed by Justice Thomas last month.

A little bit of background:  As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).”  The proposal has its supporters, including no less than Bryan Garner, but also its critics.  The approach would improve readability, but might become a crutch that encourages appellate lawyers

Appealing from a Preliminary Injunction Order in Maine? Maybe You Can, Maybe You Can’t.

As recently noted on this blog, parties can appeal a preliminary injunction order in federal court under 28 U.S.C. § 1292 – but, typically, the same right of appeal is not available under Maine law.   As stated in Sanborn v. Sanborn, “an order granting or denying a motion for a preliminary injunction is not a final judgment and generally is not an action from which we will entertain an appeal.”

As the Law Court reaffirmed just a few weeks ago, in Cutting v. Down East Orthopedic Associates, P.A.,

[t]he final judgment rule is a judicially-created doctrine that promotes judicial economy and curtails interruption, delay, duplication and harassment.

Because it is a judicially-created rule, the final judgment rule has various exceptions which might permit the Law Court to address an appeal from a preliminary injunction order.  Indeed, the Law Court has, on occasion, reached the merits of

Immediate Appeals of Temporary Restraining Orders? Not So Fast.

Interlocutory appeals, including those relating to injunctive relief, often present traps for the unwary.  In state court in Maine, parties typically cannot appeal an order granting or denying a motion for preliminary injunction.  The Law Court has so held in numerous cases, including Sanborn v. Sanborn.  In federal court, by contrast, it is possible to appeal an order granting or denying a motion for preliminary injunction under 28 U.S.C. § 1292.  But is it possible to appeal an order denying a motion for a temporary restraining order in federal court?  This was the issue recently tackled by the First Circuit in Calvary Chapel v. Mills.  The answer, in short, is “usually, no.”

Calvary Chapel is but one of the many cases that have spun out of the COVID-19 pandemic.  In it, a church challenged an early executive order issued by Governor Mills limiting “non-essential” activities and gatherings.  The plaintiff