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	 Vallee 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,	the	parties	invited	and	consented	to	the	Superior	Court deviating	from	

the	practice	for	small	claims	appeals as	specified	in	our	rules.		See 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	Justice	may	participate	in	a	decision	even	though	not	

present	at	oral	argument.”).
2

[¶2]	 	The	 Vallees	now	 appeal to	 us 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	claim	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	running	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	costs.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.		Contrary	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.,	

2004 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	jury	 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.		See	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	their motion that	there	were	“NO	

issues	of	material	fact”	and	that	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.		On	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	disagreed,	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	reserve 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	

reviewed	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	novo
5

on	a	small	claims	appeal.		After	discussing	the	matter	in	a	chambers	conference,	

the	parties	agreed	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	 was	 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	 Superior	 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	

were	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	 they	 do	 not	 challenge	 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;	see

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	now	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

[¶10]	 	 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	exists	a dispute	of material	fact	pursuant	to	M.R.	Civ. P. 80L.		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,	 the	

District	Court	is	the	exclusive	forum	for	a	bench	trial	in	small	claims	matters.

[¶11]		Here,	the	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—was	
8

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	in	a	small	claims	

case,	this	unusual	approach	to	creating	a	District	Court	record	will	not	reoccur.

[¶12]		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.	 	 The	 Vallees	

(1) requested a	jury	trial	but then	claimed there	were	no	disputes	as	to	material	

facts;	(2)	waived the	jury	trial	available	in the	Superior	Court;	(3)filed a	motion	

for	summary	judgment, rather	than	brief	the	legal	issues	on	appeal;7 (4)	agreed,	

																																															 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’	 agreement	 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	also 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	a	
9

despite	the	Superior	Court’s	expressed	concerns,	to	proceed	with	a	bench	trial;	

and	(5)	agreed that	the	record	developed	before	the	Superior	Court	could	be	

used	as the	record	on	appeal	from	the	District	Court judgment.

[¶13]		Despite	these actions	that	the Vallees took	in	the	Superior	Court,

they	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.

[¶14]		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	the	“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	ed.	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	 appealing	 defendant	may	 seek	 review	 on	 questions	 of	law	 only.	 	 See

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

When	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 Portfolio Recovery	 Assocs.,	 LLC	 v.	 Bickford,	

2017 ME 140,	¶	9,	166	A.3d	986,	and	is	material	to	the	Vallees’	defense.
10

see	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”).

[¶15]	 	 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;	see	also

Me. Educ.	 Assoc.	 v.	 Me. Cmty.	 College	 Sys.	 Bd.	 of	 Trs., 2007 ME	 70,	 ¶¶	 16-18,	

923 A.2d 914.		

[¶16]	 	 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	of	
11

the	Vallees’	invited	or	consented-to	deviations	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

[¶17]		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	has 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	Theriault.		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	separate	motion	requesting	sanctions	was	filed	here.		

The	entry	is:

Judgment	of	the	Superior	Court	affirmed.

_____________________________

GORMAN,	J.,	with	whom	SAUFLEY,	C.J.,	joins,	dissenting.

[¶18]	 	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	affirmance	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.		See	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	shown	
13

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	any	“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	dispute	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	extent	
14

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	obligation	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	requirements	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	

parties	 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	pursuant	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	

the	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	 Superior	 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	reviewing	

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	Ferguson	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	transcript	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

FOR	CLERK	REFERENCE	ONLY