MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2019	ME 156 Docket: Yor

- 18

- 463 Argued: September	24,	2019 Decided: October	31,	2019
Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN, * JABAR,	HJELM,	and	HUMPHREY,	JJ. Majority: ALEXANDER,	MEAD, JABAR,	HJELM,	and	HUMPHREY,	JJ. Dissent: GORMAN,	J. ,	and	SAUFLEY,	C.J.

MANON	COTE	et	al.

v. ROGER	VALLEE	et	al.

ALEXANDER,	J. [¶1] Roger and	 Melody	 Val l ee appealed to the	 Superior	 Court	 (York County, O’Neil,	J .) from	a	small	claims	judgment entered in the	District	Court (Biddeford, Foster,	J. ) in	 favor	 of	Manon	Cote	and	Sylvain	Theriault .		On	 that appeal,	t he	parties	invited	and	consented	to	the Superior	Court deviating	from the	practice for	small	claims	appeals as specified	in	our	rules. Se e M.R.S.C.P.	11;
M.R.	Civ. P. 76D,	76F,	80L. The	Superior	Court	affirmed	the	judgment	against the	Vallees	subject	 to	a	modest	reduction	in the	amount	of damages that	 the
District	Court	had awarded to	Cote	and	Theriault

.

* Although	not	available	at	oral	argument,	Justice	Gorman	participated	in	the	development	of	this opinion. See M.R.	App.	P.	12(a) (2) (“A	qualified J ustice	may	participate	in	a	decision	even	though	not present	at	oral argument.”).2 [¶ 2 ] The	 Vallees now appeal to	 u s from	 the	 Superior	 Court judgment
because	the process they specifically	requested in	that	court led	to	a	result	that
is not	to	their	liking.		Because parties to	a	proceeding may not,	as	a	matter	of strategy,	 invite	 changes	 in the process	 required	 by	 our	 rules	 and	 then,	 on appeal,	 claim that they	 were prejudiced	 by	 the	 process they requested, we affirm	the	judgment	of	the	Superior	Court.
I.		CASE	HISTORY [¶ 3 ]	 	 In	 December	 2015,	 Manon	 Cote	 and	 Sylvain	 Theriault	 filed	 a
statement	of	c laim	in	the	District	Court	seeking	a	small	claims	judgment	against Roger	and	Melody	Vallee	for	$6,000. Cote	and Theriault alleged	that	the	Vallees had	violated	the	terms	of	a	“license	agreement”	to	provide	Cote	and	Theriault’s adjacent property	with	runni ng	water	and	that,	as	a	result	of	this breach ,	Cote and	 Theriault were forced	 to	 install	 a	 new	 well.	 	 The	 District	 Court	 held	 a hearing	on	the	claim	in	May	2016,	after	which	it	entered	a	judgment	in	favor	of Cote	and	Theriault	for	$6,000	plus	$92.17	in	cos ts. 1

1 After	the	District	Court	entered	its	small	claims	judgment,	the	Vallees	filed	motions	for	additional findings	and	to	alter	or	amend	the	judgment	pursuant	to	M.R.	Civ.	P.	52	and	59.		The	District	Court summarily	denied	both	motions.		Contrar y	to	the	Vallees’	contention,	the	District	Court’s	denial	of their	motions	was	proper	because	“motions	made	pursuant	to	M.R.	Civ.	P.	52	and	M.R.	Civ.	P.	59 are not	 available	 to	 litigants	 in a small	 claims	 proceeding.” Thomas	 v.	 BFC	 Marine/Bath	 Fuel	 Co. , 2 004 ME 27,	¶	14,	843 A.2d	3 (emphasis	added).3 [¶ 4 ]		The	Vallees	filed	a timely notice	of	appeal with an	embedded request for	 a	 jury	 trial	 in	 the	 Superior	 Court. See 4	 M.R.S.	 §	 105(3)(B)(2) (2018);
M.R.S.C.P. 11;	 M.R.	 Civ.	 P.	 80L.	 	 In	 their	 request	 for	 a	 jury	 trial,	 the	 Vallees asserted	that	there	were	“genuine	issues	of	material	fact”	as	to	which they	had
the right	to	a	trial	by	jury. 2 The	Vallees	indicated	that	the	District	Court	hearing
had not been recorded. [¶ 5 ]		 After	holding	a	hearing	 on	 the	Vallees’	 request	 for	a	jur y	 trial	de novo,	 the	Superior	Court	entered	an	 order	granting	 the	 request	based	 on	its determination	that	there	were	“adequate	facts	in	dispute	to	justify	a	jury	trial.” In	 the	same	order, however, the	Superior	Court	authorized	 the	parties	 to	 file
motions for	 summary	 judgment. 3 The	 Vallees	 filed	 a	 motion	 for	 summary judgment	in	December	2016.		Contrary	to the	statement	they had made	in their

2 The	 Vallees’	 request	 for	 a	 jury	 trial did	 not	 comply with	 the	 Maine	 Rules	 of	 Small	 Claims Procedure.		When	a	defendant	seeks	a	jury	trial	de	novo	in	the	Superior	Court	in	a	small	claims	action, he	or	she must	submit	an	affidavit	that	complies	with	M.R.	Civ.	P.	56(e). See M.R.S.C.P. 11(d)(2).		Rule 56(e)	requires	that an affidavit	“shall	be	made	on	personal	knowledge,	shall	set	forth	such	facts	as would	be	admissible	in	evidence,	and	shall	show	affirmatively	that	the	affiant	is	competent	to	testify to	the	matters	stated	therein.”		In	this	case,	the	jurat	to	the	affidavit signed	by	Roger	Vallee,	filed	in support	of	 the	 request	 for	a	jury	 trial,	 recited	 that	 the	statements	contained	in	his	affidavit	were “based	upon	his	own	personal	knowledge,	information	and	belief	and	so	far	as upon information	and belief,	he	believes	the information is true.”		This	jurat and	the	substance	of	the	affidavit “fail [] to	show affirmatively	that	the	affiant	is	competent	to	testify	to	facts	that	may	be	set	forth	in	the	body	of	the affidavit	and	is	fatally	defective	for	noncompliance	with	M.R.	Civ .	P.	56(e).” Buffington	v.	Arnheiter , 576	A.2d	751,	752	(Me.	1990) .		Accordingly,	the	Superior	Court	could	have	denied	the	Vallees’	request for	a	jury	trial	on	that	basis	alone. S ee	id

.

3 The	Superior	Court	order	stated , “Because	 there	is	a	claim	 that many	of	these	issues	involve undisputed	factual	issues	and	rulings	with	respect	to	issues	of	law,	either	party	is	entitled	to	file	a motion	for	summary	judgment	by	December	30,	2016.”4 request	for	a	jury	trial, the	Vallees asserted	in	the ir motion that	there	were	“NO
issues	of	material	fact”	and	tha t	there	was	“simply	no	basis	to	have	a	trial.”		Cote and	Theriault	opposed	the	motion.		After	another	hearing,	the	Superior	Court denied	 the	summary	judgment	motion,	determining

— once	again

— that	 there were	genuine	issues	of	material	fact	to	be	tried. [¶ 6 ] A	jury	trial	was	eventually	scheduled	for	October	2018,	but,	on	the day	of	jury	selection,	the	Vallees	waived	their	jury	trial	request , and	the parties informed	the court that	they	were	instead	requesting	a	bench	trial ,	which	the
court	then	scheduled .		O n	the	day	of the bench trial,	the court realized	that	the case	 had	 originated	 as	 a	 small	 claims	 matter	 and	 told	 the	 parties,	 correctly, “[Y]ou	have	a	right	to	a	jury	trial	de	novo.		I	don’t	think	you	have	a	right	to	a
bench	trial	de	novo.” The	Vallees	dis agreed,	saying,	“[W]e	can	waive	the	jury because	there’s	no	law	or	rule	that	says	you	can’t	waive	it	.	.	.	I	think	you	can certainly	waive	it	as	we	did	here	in	this	case.”		The	Superior	Court disputed that

assessment ,	 but agreed to	 proceed	with	 the bench trial	 anyway	if all parties consented ,	although	allowing	them	to reserv e the	issue	for	appeal

. [¶ 7 ] The parties	indicated	that	they	wished	to	proceed with	the	bench
trial , which	 the	court	 then	conducted .		The	day	after	 the	 trial, having further
reviewe d	the	legal	question	of a	party’s right	to	a	bench	trial in	this	situation , the court concluded	that	it	lacked	the	authority	to	conduct	a	bench	trial	de	novo5 on	a	small	claims	appeal .		After	discussing	the	matter	in	a	chambers	conference, the	parties agree d	that	the	court	should	proceed	only	with	an	appellate	review
of	the District	Court judgment .		Additionally, because	no	record	had	been	made of	the	small	claims	hearing,	the	parties stipulated	that	the	evidence	admitted	at
the Superior	 Court bench	 trial	 wa s	 the	 same	 as	 the	 evidence that	 had	 been admitted	at	the	hearing	in	the	District	Court.		The	parties	also	agreed	to	rest	on the	 legal	 arguments	 stated	 in	 their	 previously

- filed	 memoranda	 regarding summary	judgment. [¶ 8 ]	 	 On	 October	 25,	 2018,	 the	 Superio r	 Court	 entered	 a	 judgment affirming in	part and	vacating in	part the	District	Court’s	small	claims	judgment. The	Superior	Court affirmed	the	District	Court’s	determination that	the	Vallees

we re	liable	to	Cote	and	Theriault,	but	found	“inadequate	evidence to	support	a judgment	in	 the	amount	of	$6,000.”		 It therefore remanded	 the	matter	 to	 the District	Court	for	the	entry	of	a	judgment	in	favor	of	Cote	and	Theriault	in	the reduced	amount	of	$5,196.84. 4 The	Vallees	then	timely	appealed	to	us. See 14
M.R.S. §	1851 (2018);	M.R.	App.	2B(c)(1).

4 At	 oral	 argument,	 counsel	 for	 Cote	 and	 Theriault	 indicated	 that	 th ey	 do	 not	 c hallenge	 the reduction	of	damages	as determined	by	the	Superior	Court.6

II. LEGAL ANALYSIS [¶ 9 ]		The	Superior	Court	has	specific but limited	appellate	authority	in
small	claims	matters. Taylor	v.	Walker ,	2017	ME	218,	¶¶	5

- 6,	173	A.3d	539 ; s ee 4	M.R.S.	§	105(3)(B)(2) ; 14	M.R.S.	§	7484

- A(1) (2018);	M.R.S.C.P.	11(d).		When, as	 here,	 “ a defendant	in	 a	 small claims	 proceeding	 appeals	 from	 a	judgment entered	in	the	District	Court,	there	are	three	possible	courses	of	action	that	may
follow ” in	 the	 Superior	 Court. Kingsbury	 v.	 Forbes ,	 1998 ME 168,	 ¶	 5,
714 A.2d 149

.

• If	the	defendant	has	not	demanded	a	jury	trial,	the	appeal	will	be on	questions	of	law	and	the	court	will	be	guided	by	Maine	Rules	of Civil	Procedure	76F, 76G ,	and 76H [(e)]

. [ 5 ] See M.R.S.C.P.	11(d)(1), (2),	(3),	(5);	M.R.S.C.P .	11(e).

• If	the	defendant	has	demanded	a	jury	trial	and	the	court	concludes that	there	is	a	genuine	issue	of	material	fact	for	trial,	then	the	action will	 be	 tried	 to	 a	 jury	 pursuant	 to	 M.R.	 Civ.	 P.	 80L. See M.R.S.C.P. 11(d)(2);	M.R.	Civ.	P.	80L(c)(2).

• If	the	defendant	has	demanded	a	jury	trial,	and	the	court	concludes that	the	defendant	has	not	shown	that	there	is	a	genuine	issue	of material	fact	for	trial,	the	appeal	must	be	dismissed	unless	either party	has	raised	an	independent	question	of	law for	the	court

. See M.R.	Civ.	P.	80L(c)(3). Kingsbury , 1998	ME	168,	¶	5,	714	A.2d	149 (footnote	omitted)

.

5 While	there	is	an outdated	reference to	former	M.R.	Civ.	P.	76H(d) in	M.R.S.C.P.	11(d)(5) ,	the ordering	and	 filing	of	 transcripts	on	appeal	 to	 the	Superior	Court	is	no w	governed	by	M.R.	Civ.	P. 76H(e)	rather	than	(d). Compare M.R.	Civ.	P.	76H	(the	current	rule) with M.R.	Civ.	P.	76H	(Tower 2014)	(the	former	version	of	the	rule).7 [¶1 0 ] Therefore, a	 defendant	 appealing	 to	 the	 Superior	 Court	 from	 a small	claims	judgment	has	only	two	options:	( 1 )	an	appeal	on	questions	of	law
based	 on the	 Superior	 Court’s review	 of	 the	 District	 Court	 record	 prepared pursuant	to	M.R.	Civ.	P.	76F,	or	( 2 )	a	jury	trial	de	novo after	demonstrating	that
there	exist s	a dispute of material	fact	pursuant	to	M.R.	Civ. P. 8 0L.		The	jury	trial option	preserves	a	defendant’s	constitutional	right	to	a	jury	trial ,	which	is	not
available	 in	 a District	 Court small	 claims	 setting

. See Ela	 v.	 Pelletier, 495 A.2d 1225 ,	1228

- 29 (Me. 1985)

. There	is	no	option for	a	second	bench trial. Ferguson	v.	Jackson ,	1997 ME	235,	¶	3,	704	A.2d	378 ; see	also M.R. Civ.	P.	80L Advisory	Committee’s	Notes	1986	 (stating	 that	 small	claims	defendants	 only have	 the	 right	 “to	a	 retrial	by	jury,	not	 to	a	 second	court	 trial”). Rather,	 t he
District	Cou rt	is	the	exclusive	forum	for	a	bench	trial	in	small	claims	matters. [¶1 1 ] Here,	t he	Superior	Court was	correct	in	its	ultimate	conclusion	that
it lacked	authority	to adjudicate the	case	de	novo in a	bench	trial

. However ,	the parties’ agreement for	the Superior	Court	to	conduct	an appellate review	of	the District	 Court	 decision	 based	 on	 the	 record	 created	 in	 the	 Superior	 Court

— which	they	stipulated	was	the	same	as	that	created	in	the	District	Court

— was8 not	explicitly	disallowed	by	 the	rules. 6 After	 the Vallees	withdrew	 their jury trial	request, all parties agreed ,	in	effect, that	 the	appeal	would be	limited	 to questions	of	law based	on	the	record	developed	in	the	Superior	Court .		Because we	now	clarify	that	a	Superior	Court	bench	trial	is not available	i n	a	small	claims case,	this	unusual	approach	to	creating	a	District	Court	record	will	not	reoccur. [¶1 2 ]		The	Vallees	acknowledge	 that	 they	agreed	 to	and	in	 fact	invited
several material deviations	from	process	required	by	the	rules	governing	small claims appeals	 from	 the	 District	 Court	 to	 the	 Superior	 Court. T he	 Vallees (1) request ed a	jury	trial but then	claim ed there	were	no	disputes	as	to	material facts;	(2)	waiv ed the	jury	trial available	in the	Superior	Court;	( 3 ) fil ed a	motion for	summary	judgment , rather	than	brief	the	legal	issues	on	appeal ; 7 ( 4)	agree d ,

6 This	 case	 presents	 a	 different	 question from the	 one	 we	 addressed	 in Tisdale	 v.	 Rawson , 2003 ME 68,	 822	 A.2d	 1136 .	 	 In	 that	 case,	 the	 Superior	 Court	 allowed	 an	 appealing	 small	 claims defendant	 to	 supplement	 the	 record	 created	in	 the	District	 Court	with new evidence	 pursuant	 to M.R. Civ.	P.	76F(b). Id .	¶¶	8

- 9,	13.		We	held	that	the	Superior Court	erred	because	“Rule	76F(b)	was not	 intended	 .	 .	 .	 to	 give	 litigants	 the	 opportunity	 to	 create	 a	 record	 on	 appeal	 by	 entering	 new evidence	to	aid	the	appellate	court’s	analysis	of	the	issues	before	it.		An	appellate	court	must	limit	its review	to	the record	developed	by	the	trial	court.” Id .	¶	14.		In	this	case,	the	parties	stipulated	that the	evidence	created	in	the	Superior	Court	was	the same as	was	admitted	in	the	District	Court. The rules	 of	 procedure	 do	 not	 compel	 us	 to	 disturb	 the	 parties’	 agr eement	 in	 the	 particular

— and peculiar

— circumstances	of	this	case , where	the erroneous	process	by	which	the	record	on	appeal was	created	was either	invited	or	agreed to	by	the	parties.

7 Motions	 for	summary	judgment	are	not	authorized	by	 the	procedural rules	governing	small claims	appeals	to	the	Superior	Court. See M.R.	Civ.	P.	80L;	M.R.S.C.P.	11.		Nonetheless,	as	with	a	motion for	summary	judgment, when examining a	jury	trial	request	in	a	small	claims	appeal,	the	Superior Court	must	make	the	threshold determination	as	to	the	existence	of	a	dispute of material	fact	because a	defendant	in	a	small	claims	matter	has	the	right	to	a	jury	trial only if	 there	is	a	genuine	issue	of material	fact. See H&H	Oil	Co.	v.	Dineen ,	557 A.2d	604,	605

- 06	(Me.	1989) ; see	a lso Darling’s	Auto	Mall v.	Gen.	Motors,	LLC ,	2016	ME	48,	¶	10,	135	A.3d	819 (“[A]	trial	court’s	decision	to	deny	or	grant	a9 despite	the	Superior	Court’s	expressed	concerns,	to proceed	with a bench trial; and	(5)	agree d that	the	record	developed	before	the	Superior	Court	could be
used	as the record	on	appeal	from	the Di strict	Court judgment

. [¶1 3 ] Despite the se actions that the Vallees took	in	the	Superior	Court,
the y now contend	that , “upon	reflection,” the	Superior	Court	should	not	have allowed	 them	 to	waive	 their	request	 for	a	jury	 trial	and	 that	 the	only	way	 to
correct	this	and	other alleged errors	“is	to	remand	the	case	back	to	the	Superior Court	and	allow	[them]	to	have	their	jury	trial.”		We	review such	questions	of
law	de	novo. See City	of	Biddeford	v.	Holland ,	2005 ME 121,	¶	6,	886 A.2d 1281

. [¶1 4 ] Our	review	for	errors	of	law	must	recognize	the choices made	by the	parties	leading	to	the	judgment	on	appeal.		The preeminent treatise	on	civil practice	cautions	that t he “ so - called	invited	error	rule	.	.	.	prescribes	that	a	party may	not	complain	on	appeal	of	errors	that	he	himself	invited. ” 9C	Charles	Alan Wright	&	Arthur	R.	Miller, Federal	Practice	and	Procedure §	2558	(3d	e d.	2008) ;

request	for	a	jury	trial	de	novo	is	very	similar	to	a	decision	to	grant	or	deny	a	motion	for	summary judgment.”). Otherwise,	 an	 app ealing	 defendant	may	 seek	 review	 on	 questions	 of	law	 only. See M.R. Civ.	P.	80L(c)(3).
W hen	the	Superior	Court	denies	a	party’s	request	for	a	jury	trial	(or	a	jury	trial	is	waived,	as occurred	here),	the	Superior	Court	must	either	proceed	with	the	appeal	on	questions	of	law	only or dismiss	the	appeal altogether

. See M .R.	Civ.	P.	80L(c)(3)

. The	Advisory	Notes	to	Rule	80L(c)(3)	clarify that	 the	 independent	 question	 of	 law	 must	 have	 “been	 presented	 in	 the	 grounds	 stated	 by	 the defendant	in	the	notice	of	appeal”	and	that	the	Superior	Court’s	review	is	“preliminary”	to	determine if	“the	issue	is a	material	one.”		M.R.	Civ.	P.	80L	Advisory	Committee’s	Notes	1986.		In	their	notice	of appeal,	the	Vallees	challenged	the	sufficiency	of	the	evidence	to	support	the District	Court’s judgment

. This	 challenge	 is	 cognizable	 as	 a	 question	 of	 law, see Portfol io Recovery	 Assocs.,	 LLC	 v.	 Bickford , 2017 ME 140,	¶	9,	166	A.3d	986 ,	and	is	material	to	the	Vallees’	defense.10

s ee P.R.	Hosp.	Supply,	Inc.	v.	Bos.	Sci.	Corp. ,	426	F.3d	503,	505	(1st	Cir.	2005) ( “ In general,	a	party	may	not	appeal	from	an	error	to	which	he	contributed,	either by	failing	to	object	or	by	affirmatively	presenting	to	the	court	the	wrong law. ” ) ; see	also United	States	v.	Melvin, 730	F.3d	29,	40	(1st	Cir.	2013) (stating	that a party who takes	a	different	position	on	appeal	than	he	or	she	did	at	trial	“should not	be	allowed	to	have	it	both	ways” ). [¶1 5 ] We also have cautioned	 that appellate	 review “ provides	 no invitation	to	change	trial	and	instruction	request	strategy	when	the	results	of the	original	strategy	turn	out	less	favorably	than	hoped	for.” State	v.	Cleaves, 2005	ME	67,	¶	13,	874	A.2d	872

. Thus, we will	not	undertake	an obvious	error review	when	a	litigant	affirmatively	approves	or	consents	to	a	court	action. See
State	v.	Scott ,	2019	ME	105,	¶¶	19

- 20,	211	A.3d	205 ; State	v.	Rega, 2005	ME	5, ¶	17,	863 A.2d 917 ; Sullivan	v.	Porter, 2004	ME	134,	¶	22,	861	A.2d	625 ; s ee	als o Me. Educ.	 Assoc.	 v.	 Me. Cmty.	 College	 Sys.	 Bd.	 of	 Trs., 2007 ME	 70,	 ¶¶	 16

- 18,
923 A.2d 914

. [¶1 6 ]	 	 The results	 of	 the Vallees’	 strategic	 choices	 and	 agreements	 to deviate	from	procedural	requirements	for	small	claims	appeals	cannot	now	be
undone on an appeal	 from	 the	 resulting	 judgment ,	 which they	 view unfavorably

. Cf.	Scott ,	2019	ME	105,	¶¶ 19

- 20,	211	A.3d	205	(no	basis	to	review court	actions	to	which	a	litigant	affirmatively	approves	or	consents).		In	light	of11
the	Vallees’	invited	or	consented

- to	de viations	from	the	established	process	for review	 of	 small	claims	judgments,	 our	 review	 of	 the	limited	available	 record
does	not provide	an	avenue	for	the	new jury trial	they	now	seek

. 8 III.		SANCTIONS	REQUEST [¶1 7 ]		In	their	brief,	Cote	and	Theriault	ask us	to	impose	sanctions	on	the
Vallees

— in	the	form	of	“treble	costs	and	reasonable	expenses”

— based	on	their
assertion that , by	 appealing	 the	 Superior	 Court’s	 decision,	 the	 Vallees have “totally	frustrate[d]”	the	purpose	of	the	Small	Claims	Act	to	provide	“a	simple, speedy	 and	 informal	 court	 procedure	 for	 the	 resolution	 of	 small	 claims.”
14 M.R.S.	 § 7481	 (2018). Because,	in	 the	 Superior	 Court, Cote	 and	 Theriault acquiesced	in	and sometimes	affirmatively	agreed	to	departures	from proper
process in	 a	way that	ha s delayed	and	 complicated this action ,	including	 the appeal,	there	is	an	insufficient	basis	to impose sanctions against	the	Vallees on this	 appeal. Additionally,	 although we may	 impose	 sanctions at	 a	 party’s request if	an	appeal	“is	frivolous,	contumacious,	or	instituted	primarily	for the purpose	of delay,”	M.R.	App.	P.	13(f), we	will	do	so only	if	the	moving	party	has filed	 “a	 separate	 motion	 requesting	 sanctions,” McGarvey	 v .	 McGarvey , 2019 ME 40,	 ¶	 6,	 204	 A.3d	 1276 (emphasis	 omitted)

. See Maine	 Appellate

8 The	 Vallees	 also	 assert	 that	 the	 Superior	 Court	 erred	 by	 affirming	 the	 District	 Court’s determination	that	they	are	liable	to	Cote	and	Theria ult.		We	are	not	persuaded	by	that	contention and	do	not	address	it	further.12
Practice §	13.6	at	196	(5th	ed.	2018)	(“A	request	for	sanctions	stated	only	in	a brief	 is	 not	 sufficient	 to	 trigger	 imposition	 of	 sanctions	 pursuant	 to	 Rule 13(f).”).		No	s eparate	motion	requesting	sanctions	was	filed	here. The	entry	is: Judgment	of	the	Superior	Court	affirmed.

_____________________________ GORMAN ,	J. , with	whom	SAUFLEY,	C.J.,	join s , dissenting. [¶1 8 ] I	 agree	with	 the	 Court	 that,	 at	 the	 parties’	 specific	 request,	 	 the Superior	Court	deviated	from	established	small	claims	procedure. See Court’s Opinion	¶ 12 .		Because	I	disagree	with	the	Court’s	conclusion	that	the	result	of
those	deviations	is	an	affirm ance	of	the	resulting	judgment,	I	must	respectfully
dissent. [¶19]		When	a	defendant	appeals	a	small	claims	judgment	entered	in	the District	Court,	 the	Superior	Court	has	authority	 to	do	 two	 things	pursuant	 to M.R.	Civ.	P.	80L	and	M.R.S.C.P.	11. S ee 14 M.R.S.	§	7484

- A(1)	(2018) (requiring that	the	Supreme	Judicial	Court	establish	the	small	claims	appellate	process	by rule); Taylor	v.	Walker ,	2017	ME	218,	¶¶	5

- 6,	173	A.3d	539 (“The	Superior	Court has	limited	and	 specific	authority	when	a	 small	claims	matter	is	appealed.”); Court’s	Opinion	 ¶¶ 9

- 10 ; see	 also 4	 M.R.S.	 §	 105(3)(B)(2)	 (2018) .	 	 First,	 the court	may	conduct	a	jury	trial	de	novo	if	it	finds	that	the	defendant	“has	sho wn13 in	light	of	the	affidavits	and	the	whole	record	that	there	is	a	genuine	issue	of material	fact	as	to	which	there	is	a	right	to	trial	by	jury.”		M.R.	Civ.	P.	80L(a),	(c);

see M.R.S.C.P.	11(d)(2); H	&	H	Oil	Co.	v.	Dineen ,	557 A.2d	604,	605

- 06	(Me.	1989)

. Second,	if	the	defendant	does	not	demand	a	jury	trial	or	withdraws	the	demand for	a	jury	trial,	or	if	the	Superior	Court	determines	that	the	defendant	has	not shown	the	existence	of	such	a	genuine	issue	of	material	fact,	the	Superior	Court may	consider	an y	“independent	question	of	law”	raised	in	the	notice	of	appeal that	 is	 “material	 to	 a	 legal	 claim	 or	 defense.”	 	 M.R.	 Civ.	 P.	 80L(c)(3)

- (4); see M.R.S.C.P.	11(d)(2); Kingsbury	v.	Forbes ,	1998	ME	168,	¶	5,	714	A.2d	149 ;	see also Taylor ,	 2017 ME	 218,	 ¶	 6,	 173 A.3d	 539	 (noting	 that,	 “in	 rare circumstances,	the	Superior	Court	may	review	the	District	Court’s	exercise	of discretion	in	making	a	determination	that	is	not	related	to	the	trial	of	facts	on the	merits	of	the	claim”). [¶20]		In	this	matter,	there	is	no	d ispute	that	the	Vallees	abandoned	their request	for	a	jury	trial.		The	Superior	Court’s	authority	was	therefore	limited	to a	review	of	any	independent	legal	issue	properly	raised	in	the	Vallees’	notice	of appeal	 from	 the	 District	 Court	 judgment. See M.R. Civ.	 P.	 80L(c)(3)

- (4); M.R.S.C.P.	11(d)(2); Kingsbury ,	1998	ME	168,	¶	5,	714	A.2d	149 .		To	the	extent14 that	the	Vallees	raised	any	independent	issues	of	law	in	their	notice	of	appeal, 9 I	would	conclude	that	the	Superior	Court	was	precluded	from	considering those legal	 issues	 based	 on	 the	 state	 of	 the	 record	 produced	 by	 the	 Vallees. See M.R.S.C.P.	11(d)(1)

- (3);	M.R.	Civ.	P.	76F(c),	(d). [¶21]		To	review	an	independent	question	of	law	in	a	small	claims	appeal, “the	 [Superior	 Court]	 shall	 review	 the	 record	 pertaining	 to	it”	in	 accordance with	M.R.	Civ.	P.	76F.		M.R.	Civ.	P.	80L(c)(3); see M.R.S.C.P.	11(d)(1)

- (3).		It	is	the appellant’s	obli gation	to	produce	that	record	by	one	of	three	means,	depending on	the	issues	raised	in	the	appeal.		M.R.	Civ.	P.	76F,	76H( e ),	80L(c)(3);	M.R.S.C.P. 11(d)(1)

- (3),	(5).		First,	the	appellant	may	provide	a	transcript	of	the	District Court	proceedings.		M.R.S. C.P.	11(d)(3),	 (5);	M.R.	Civ.	P.	76F(a),	76H( e ).		 In	a matter	 in	 which	 an	 electronic	 recording	 was	 requested	 or	 is	 routine	 but	 no recording	or	 transcript	of	 the	proceeding	is	available	 for	reasons	beyond	 the control	of	any	party,	the	appellant	may	submit	a “statement	of	the	evidence	or proceedings	 from	 the	 best	 available	 means,	 including	 the	 appellant’s recollection,	for	use	instead	of	a	transcript.”		M.R.	Civ.	P.	76F(c); see M.R.S.C.P. 11(d)(3).	 	 A	 third	 alternative	 for	 producing	 the	 District	 Court	 record is	 also

9 In	their	notice	of	appeal,	the	Vallees	primarily	argued	that	the	District	Court’s	factual	analysis	of the	matter	was	incorrect,	and	 they	challenged,	in	 the	most	cursory	 fashion ,	 “what	legal	or	 factual basis	the	court	had	to	order	the	[Vallees]	to	pay	for	[Cote	and	Theriault’s]	new	well.” See	also Court’s Opinion	¶ 4 n.2	(noting	that	the	Vallees’	affidavit	submitted	with	their	notice	of	appeal did not	comply with	the	requirement s	of	M.R.	Civ.	P.	56(e)	for	lack	of	a	proper	jurat).15 available	“[w]hen	the	questions	presented	by	an	appeal	to	the	Superior	Court can	be	determined	without	an	examination	of	all	of	the	pleadings,	evidence,	and proceedings	in	the	[District	Court].”		M.R.	Civ.	P.	76F(d).		In	such	instances,	“the partie s	 may	 prepare	 and	 sign	 a	 statement	 of	 the	 case	 showing	 how	 the questions	arose	and	were	decided	and	setting	forth	only	so	many	of	the	facts averred	and	proved	or	sought	to	be	proved	as	are	essential	to	a	decision	of	the questions	by	the	Superior	Court.” 10 M.R.	Civ.	P.	76F(d). [¶22]		The	Vallees	satisfied	none	of	these	three	options.		They	failed	to request	a	recording	of	the	District	Court	hearing,	and	therefore	no	transcript	of that	 hearing	 was	 available	 for	 the	 Superior	 Court’s	 review. See M.R.S.C.P. 11( d)(3),	(5);	M.R.	Civ.	P.	76F.		In	addition,	the	record	contains	no	suggestion that	the	unavailability	of	a	recording	or	transcript	occurred	for	reasons	beyond any	party’s	control,	and	the	Vallees	did	not	even	attempt	to	submit	a	statement of	the	evidence	p ursuant	to	M.R.	Civ.	P.	76F(c).		Finally,	to	the	extent	that	the Vallees’	legal	arguments	could	be	presented	without	examining	the	entirety	of the	proceedings	before	the	District	Court,	the	Vallees	did	not	file	a	statement	of

10 “The	statement	shall	include	a	copy	 of	 the	judgment	appealed	 from,	a	copy	 of	 the	notice	 of appeal	with	its	filing	date,	and	a	concise	statement	of	the	points	to	be	relied	on	by	the	appellant. If t he	statement	conforms	to	the	truth,	it,	together	with	such	additions	as	the	District	Court	judge	may consider	 necessary	 fully	 to	 present	 the	 questions	 raised	 by	 the	 appeal,	 shall	 be	 approved	 by	 the District	 Court	 judge	 and	 shall	 then	 be	 certified	 to	 the	 Su perior	 Court	 as	 the	 record	 on	 appeal.” M.R. Civ.	P.	76F(d).16 the	case	pursuant	to	Rule	76F( d).		By	producing	no	transcript,	statement	of	the evidence,	 or	 statement	 of	 the	case,	 the	 Vallees	 failed	 to	provide	 an	 adequate record	 on	which	 the	 Superior	 Court	 could	 conduct	its	 appellate	 review. See Manzo	v.	Reynolds ,	 477	A.2d	732,	734	 (Me.	1984) (“[W ]hen	 a	party	does	not furnish	 the	Superior	Court	with	any	 transcript	of	 the	evidence	in	 the	District Court,	or	any	statement	of	the	evidence	or	proceedings	as	would	.	.	.	be	usable on	appeal	in	lieu	of	a	transcript,	the	Superior	Court	has	no	basis	for	revi ewing the	judgment	of	the	District	Court.”). [¶23]		 In	 the	absence	 of	a	jury	 trial	 request	 or	 an	 adequate	 record	 for appellate	review	of	a	legal	issue,	the	Superior	Court	had	no	authority	to	act,	and it	 therefore	should	have	dismissed	 the	appeal. See Ferg uson	v.	Jackson ,	1997 ME	235,	¶	3,	704	A.2d	378 (holding	 that	 the	Superior	Court	was	 required	 to dismiss	 an	 appeal	 of	 a	 District	 Court	 small	 claims	 judgment	 upon	 the withdrawal	of	a	request	for	a	jury	trial	when	no	question	of	law	was	raised	and

no	transcr ipt	of	the	small	claims	hearing	was	filed).		I	would	vacate	the	Superior Court’s	decision	and	remand	the	matter	to	the	Superior	Court	with	instructions to	dismiss	the	Vallees’	appeal.17 Neal	L.	Weinstein,	Esq. (orally) ,	Old	Orchard	Beach,	for	appellants	Roger	Vallee and	Melody	Vallee Michael	 J.	O’Toole,	Esq. ( orally) ,	Woodman	Edmands	Danylik	Austin	Smith	& Jacques,	P.A.,	Biddeford,	for	appellees	Manon	Cote and Sylvain	Theriault

York	County Superior	Court	docket	number	AP

- 2016

- 24 F OR C LERK R EFERENCE O NLY