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Provenzano v. Deloge
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 149
Docket:	Pen-99-750
on briefs:	June 27, 2000
Decided:	July 27, 2000	




	[¶1]  	Herman J. Deloge appeals from a judgment entered in the
Superior Court (Penobscot County, Kravchuk, J.) in favor of Patrick
T. Provenzano in which the court, pursuant to a jury verdict, ordered that
Deloge pay Provenzano $21,842.73 in compensatory damages for assault.  On
appeal, Deloge argues (1) that the trial court erred in denying his motion for
a continuance; (2) that the trial court erred in determining that liability had
been conclusively established in a prior proceeding; and (3) that there was
insufficient evidence to support a finding that Deloge assaulted Provenzano. 
Finding no error, we affirm the judgment.
	[¶2]  	In May of 1996, the parties were involved in an altercation
outside of a bar in East Millinocket.  In August of 1996, Deloge was
convicted of assault (Class D) for his part in the altercation.  See
17-A M.R.S.A. § 207 (1983).  He was sentenced to 30 days in jail and
ordered to pay a $500 fine. 
	[¶3]  	In July of 1997, Provenzano filed a complaint against Deloge in
the Superior Court seeking compensatory and punitive damages resulting
from Deloge's alleged assault in 1996.  Deloge was initially represented in
that proceeding by an attorney.  In April of 1998, however, his attorney
petitioned the court for leave to withdraw.  In July of 1998, the court
(Studstrup, J.) granted the motion and gave Deloge 20 days to secure new
counsel.  By letter dated July 25, 1998, Deloge represented to the court that
he had obtained an attorney, but no attorney ever filed an appearance on his
	[¶4]  	The case was placed on the trial list for August of 1998 but was
not reached during that trial session.  The case was then placed on the
February 1999 trial list and, after a pretrial conference, the case was set for
trial on February 8, 1999.  On February 8, however, Provenzano notified the
court that Deloge had filed for bankruptcy protection in the United States
Bankruptcy Court, District of Maine and that the state court proceedings
were stayed pending a determination by that court that Provenzano's claim
against Deloge was not dischargeable in bankruptcy.
	[¶5]  	Provenzano filed a complaint in the Bankruptcy Court, pursuant
to 11 U.S.C.A. § 523(a)(6) (1993), seeking a determination that any debt
arising from Deloge's assault was not dischargeable in bankruptcy.{1} 
Provenzano subsequently filed a motion for summary judgment alleging that
Deloge "intentionally and knowingly assaulted" him by kicking him,
knocking him down, and stomping on his right ankle.  Provenzano also
alleged that Deloge had no justification for his actions and that he was not
acting in self-defense.  Finally Provenzano pointed out that, following a
bench trial, Deloge had been convicted in the District Court of criminal
assault for his actions.  In support of his motion, Provenzano included a copy
of the criminal complaint, a copy of the judgment and commitment from the
criminal trial, and his own affidavit.  Deloge failed to respond to the motion.
	[¶6]  	The Bankruptcy Court granted Provenzano's motion for a
summary judgment, holding that Provenzano's uncontroverted statement of
material facts established that Deloge had assaulted Provenzano and that the
assault was willful and malicious "within the meaning of 11 U.S.C.
§ 523(a)(6)."  Accordingly, the court held that the debt was not
dischargeable in bankruptcy.  Deloge did not appeal the decision.
	[¶7]  	After the Bankruptcy Court issued its ruling, the stay was no
longer in effect and the within action resumed.  The case was placed on the
trial list for November of 1999, and a pretrial conference was held on
October 15, 1999.  At the conference, Deloge suggested that he was in the
process of obtaining counsel.  Provenzano informed the court of his
intention to file a motion in limine to limit the issues at trial to those
regarding damages only, and the court (Kravchuk, J.) ordered that the
motion be filed by November 1 and gave Deloge 5 days to respond to the
	[¶8]  	Provenzano filed the motion in limine on October 19,
contending that the doctrine of res judicata barred Deloge from relitigating
the issue of liability.  Deloge did not respond to the motion within the time
prescribed by the court.  He did send the court a letter on November 1
purporting to explain his "side of the case," but that letter contained no
legal argument and merely recited the facts Deloge wished to prove at trial.
	[¶9]  	On the day of trial, Deloge requested a two month continuance,
so he could raise enough money to secure an attorney.  The court, noting
that Deloge had stated that he would secure the services of an attorney prior
to trial, denied the motion.
	[¶10]  The court also raised the issue of the motion in limine prior to
beginning the trial, announcing that it was granting the motion.  Deloge did
not object to the ruling.  Consequently, the issues at trial were limited to the
amount of compensatory damages owed to Provenzano and whether Deloge
was also liable for punitive damages.  The jury found that Provenzano was
entitled to $21,842.73 in compensatory damages but that he had failed to
prove by clear and convincing evidence that Deloge had acted with the
malice required to sustain an award for punitive damages.  Accordingly, the
court entered a judgment against Deloge in the amount of $21,842.73.  This
appeal followed.
	[¶11]  Deloge contends that the trial court erred in denying his
motion for a continuance.  We disagree.  "A party seeking a continuance has
the burden of showing sufficient grounds for granting the motion, and the
ruling of the presiding justice is reviewable only for abuse of discretion." 
Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 19, 711 A.2d 842, 848. 
"[T]he law has long required that the party requesting a continuance make
known to the presiding justice substantial reasons why the granting 
of the continuance would serve to further justice."  Farrell v. Theriault,
464 A.2d 188, 192 (Me. 1983); see also Champagne v. Mid-Maine Med. Ctr.,
1998 ME 87, ¶ 19, 711 A.2d at 848; Schneider v. Putnam, 1998 ME 26,
¶ 4, 705 A.2d 1117, 1118.
	[¶12]  The court acted well within its discretion in denying Deloge's
motion to continue the case for two months so he could secure funding to
retain an attorney.  At the time of trial, November 15, 1999, the case had
been pending for almost 2 1/2 years, and Deloge had been without an
attorney for almost 1 1/2 years.  In fact, when his original counsel withdrew
in July of 1998, Deloge informed the court that he had retained new counsel
but that he needed time to raise money to pay for his defense.  He had 1 1/2
years to raise the money to procure an attorney and failed to do so. 
Moreover, at trial he stated that he would only be able to afford an attorney
after his girlfriend received her income tax refund.  Because Deloge had
ample time to raise money for an attorney, the court was justified in finding
that Deloge had not presented substantial reasons why the continuance
would further the cause of justice.
	[¶13]  Deloge also contends that the trial court erred in granting
Provenzano's motion in limine and in determining that the issue of liability
for assault had been conclusively established by the decision of the
Bankruptcy Court.  We do not reach the merits of Deloge's contentions,
however, because he has failed to preserve this argument.  
	[¶14]  In the proceedings before the trial court, Deloge failed to
respond to Provenzano's motion in limine within the time prescribed by the
court.  Moreover, he also failed to offer any legal grounds on which the court
could base a denial of the motion.  Accordingly, because he did not raise this
issue before the trial court, our review is only for obvious error "that works a
substantial injustice." See Commissioner of Human Servs. v. Waldoboro Water
Co., 1999 ME 36, ¶ 11, 724 A.2d 622, 624; Reno v. Townsend,
1997 ME 198, ¶ 5, 704 A.2d 309, 311.
	[¶15]  "A finding of obvious error is a serious one that should be
utilized sparingly and must be limited only to extreme circumstances." 
Reno v. Townsend, 1997 ME 198, ¶ 5, 704 A.2d at 311.  We find no such
circumstances here.{3} 
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Richard D. Violette Jr., Esq. P O Box 908 Brewer, ME 04412-0908 Attorney for defendant: Joseph M. Baldacci, Esq. P O Box 1423 Bangor, ME 04402-1423
FOOTNOTES******************************** {1} . Title 11, section 523 provides: A discharge under section 727, 1141, 1228(a), or 1328(b) of this title does not discharge an individual debtor from any debt- . . . . (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C.A. § 523(a)(6) (1993). {2} . A party has 21 days to file its opposition to a motion "unless another time is set by the court." See M.R. Civ. P. 7(c). {3} . Because of our disposition of the case, we do not address Deloge's remaining argument with respect to the sufficiency of the evidence as to liability.