Opinion
SUPERIOR COURT CIVIL ACTION Docket No. AP-13-63
05-29-2014
NICHOLAS GLADU, Plaintiff-Appellant v. SHERRY GLADU, et al, Defendants-Appellees
NICHOLAS GLADU #21853 MAINE STATE PRISON 807 GUSHING ROAD HARSEN ME 04864 SHERRY GLADU 14 DUTTON HILL ROAE WINDHAM ME 04062 KRISHNA M GLADU 181 BRIDGE STREET WESTBROOK ME 04092
STATE OF MAINE
CUMBERLAND, ss.
ORDER
Before the court is an appeal by plaintiff-appellant Nicholas Gladu from a September 26, 2013 small claims judgment in favor of defendants-appellees Sherry and Kris tin a Gladu. This appeal was received by the undersigned from the Clerk's office on May 28, 2014, although the appeal has apparently been pending for some time.
Gladu filed his brief on appeal on December 16, 2013. No opposing brief was filed by defendants-appellees. Under MR. Small Claims P. 11(e) and M.R.Civ.P. 76G(b), defendants-appellees would therefore be precluded from being heard at oral argument, Because Gladu in incarcerated, the court is deciding this appeal on the basis of the court file and Gladu's brief.
The reason stated by the District Court (J.D. Kennedy, J) for the entry of judgment for defendants with prejudice was that "plaintiff refused transport from MCC Windham," Gladu previously took an appeal from a small claims judgment entered on the same date in favor of Progressive Specialty Insurance Agency (Docket SC-13-506), and this court affirmed the judgment of the District Court in that case. See Gladu v. Progressive Specialty Insurance Agency Inc., A P-13-64 (order dated February 21, 2014).
The facts in this case are the same as those in AP-13-64. Cladu is an inmate at MCC Windham. Gladu's claim against the Progressive Agency and his claim against Sherry and Krishna Gladu were originally scheduled for August 29, 2013, but Gladu was not transported from Windham and thy case was therefore continued to September 26, 2013. See August 29, 2013 District Court Order (Mulhern, J.).
In a letter he wrote to the Clerk's office relating to both his small claims cases Gladu stated that he had declined to be transported on August 29 because the deputy was unwilling to bring his medications. In that letter Gladu requested that he be transported directly to and from the hearing and not to the Cumberland County Jail. Thereafter Gladu also wrote the clerk's office to request a continuance, stating that he needed to subpoena a witness.
In his brief on appeal Gladu offers some further details, contending that the medications were not ready, that the deputy was not able to wait for the medications, and that the deputy also stated that the jail would not administer the medications.
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On September 26 Gladu again declined to be transported, leading to Judge Kennedy's order.
In his brief Gladu acknowledges that he refused transport to the September 26 hearing, arguing that he was entitled to do so because he had not heard back on his request to be transported directly to the hearing or on his request for a continuance and because the sheriff's office stated, when he inquired, that it was not willing to transport him directly.
On this record/ the court cannot find that the District Court abused its discretion in dismissing the claim based on Gladu's refusal to be transported. First, unless a continuance has actually been granted, a party is not entitled to assume that he does not need to appear. Gladu would have been free to pursue his request for a continuance if he had appeared at the hearing.
Second, Gladu was not entitled to specify how and when he would be transported and to decline to appear unless his preferred arrangement was made. Gladu had notice and an opportunity to appear, which is all that due process requires.
Finally, the court notes that Gladu's notice of appeal states that a statement in lieu of transcript would be prepared. However, no statement was prepared pursuant to M.R. Small Claims F. 11(d)(1) and 11(d)(3) and M.R.Civ.P. 76F(c). While the court can affirm based on the correspondence in the file and Gladu's recitation in his brief as to his failure to appear on September 26, 2013, an alternative basis for affirmance is that there is no record on which the court could conclude that the District Court abused its discretion. The entry shall be:
The judgment of the District Court is affirmed. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a), Dated: May 29, 2014
/s/_________
Thomas D. Warren
Justice, Superior Court
CLERK COURTS
Cumberland County
205 Newbury Street, Ground Floor
Portland, ME 04101
NICHOLAS GLADU #21853
MAINE STATE PRISON
807 GUSHING ROAD
HARSEN ME 04864
SHERRY GLADU
14 DUTTON HILL ROAE
WINDHAM ME 04062
KRISHNA M GLADU
181 BRIDGE STREET
WESTBROOK ME 04092