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Tingley v. Frapier
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Decision:1998 ME 13
on Briefs:December 12, 1997
Decided:January 15, 1998




	[¶1] Defendant Rosemarie Frapier appeals from a judgment of the
Superior Court (Penobscot, Marden, J.) affirming an order of the District
Court (Newport, Russell, J.) dismissing her appeal from a judgment of
foreclosure for want of prosecution pursuant to M.R. Civ. P. 76F(a).  Finding
no abuse of discretion, we affirm the judgment.
	[¶2] The present appeal results from a foreclosure action brought
against defendant in June of 1995 with regard to real estate in Dixmont that
she mortgaged to plaintiff Stanwood Tingley.  After a series of delays and
improper filings by defendant, in May of 1996, the District Court granted
plaintiff's motion for summary judgment and entered an order of
foreclosure.  Defendant filed a notice of appeal and ordered a transcript
pursuant to M.R. Civ. P. 76F.{1}  When, after notice, defendant failed to make
payment on her transcript order, and, therefore, failed to produce the
transcript within the time required by M.R. Civ. P. 76F, plaintiff moved to
dismiss for want of prosecution.  The District Court dismissed the appeal,
and the Superior Court affirmed the order of dismissal.
	[¶3] Pursuant to M.R. Civ. P. 76H(d)(2)(B), a party is permitted to
include a transcript of the trial court proceedings as part of the record on
appeal to the Superior Court.  Once defendant requested the transcript, her
failure to produce the transcript within the specified time limits became
grounds for dismissing her appeal for want of prosecution.{2}  Although the
power of dismissal is discretionary, on the record before us the District
Court acted well within its discretion in dismissing defendant's initial
appeal for want of prosecution.
	[¶4] It is also abundantly clear from the record that defendant's
present appeal is frivolous and requires the imposition of sanctions.  There
is no basis, and defendant offers none, for challenging the District Court's
order of dismissal.  In the brief filed with us, defendant focuses her entire
argument on the analysis of the Superior Court, ignoring the fact that we
directly review the trial court's finding when the Superior Court acts as an
intermediate court of appeal.  See Estate of Saliba v. Dunning, 682 A.2d 224
(1996).  Due to defendant's pattern of noncompliance with the Rules of Civil
Procedure, and the frivolous nature of this appeal, we impose treble costs
and attorney fees in the amount of $300 pursuant to M.R. Civ. P. 76(f).  See
First Citizens Bank v. M.R. Doody, Inc., 669 A.2d 743 (Me. 1995); Lynn v.
Lynn, 644 A.2d 1060, 1062 (Me. 1994).
	The entry is:
Judgment affirmed.  Treble costs and
attorney fees in the amount of $300 shall
be paid by defendant Rosemarie Frapier,
or her attorney, to plaintiff Stanwood

Attorney for Plaintiff: Edward C. Russell, Esq. RUSSELL, LINGLEY & SILVER, P.A. 145 Exchange Street Bangor, Maine 0440l-6505 Attorney for Defendant: Schuyler G. Steele, Esq. P. O. Drawer F Newport, Maine 04953
FOOTNOTES******************************** {1} M.R. Civ. P. 76F provides in relevant part: "The original papers and exhibits filed in the District Court and a certified copy of the docket entries prepared by the clerk of the District Court, together with any transcript made pursuant to Rule 76H of these rules, shall constitute the record on appeal in all cases." {2} M.R. Civ. P. 76F provides in relevant part: "If the appellant fails to comply with the requirements of this rule, the District Court may on motion of any party or on its own initiative, dismiss the appeal for want of prosecution."