MAINE SUPREME JUDICIAL COURT                                    Reporter of Decisions
Decision:    2020 ME 104
Docket:      Cum-19-489
Submitted
  On Briefs: July 21, 2020
Decided:     August 13, 2020

Panel:       MEAD, GORMAN, and JABAR, JJ., and HJELM, A.R.J.



                                 U.S. BANK TRUST, N.A.

                                              v.

                                     JAMES D. KEEFE


JABAR, J.

         [¶1] U.S. Bank Trust, N.A., as Trustee for the LSF9 Master Participation

Trust (U.S. Bank), appeals from a judgment entered by the Superior Court

(Cumberland County, Mills, J.) denying its motion to extend the time to file a

notice of appeal as to its foreclosure complaint against James D. Keefe. See M.R.

App. P. 2B(d)(1). U.S. Bank contends that the trial court erred by denying the

motion to extend the time to file as untimely. We affirm the judgment.

                                     I. BACKGROUND

         [¶2] During the bench trial held on U.S. Bank’s complaint, U.S. Bank was

unable to produce admissible evidence sufficient to establish that it had

standing to foreclose, and it moved for a dismissal of its complaint without

prejudice. Keefe, in turn, moved for a judgment as a matter of law, see M.R.
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Civ. P. 50(d), or, alternatively, a dismissal with prejudice. The trial court

entered judgment on July 9, 2019, denying U.S. Bank’s motion to dismiss

without prejudice and granting Keefe’s motion for a judgment as a matter of

law. See M.R. Civ. P. 50(d).

      [¶3] On July 29, 2019, within the time limit for filing a notice of appeal

set forth in M.R. App. P. 2B(c)(1), U.S. Bank filed a notice of appeal with the

Superior Court. However, relying on an erroneous fee figure published in

Maine Judicial Branch materials, U.S. Bank remitted an insufficient filing fee

with its notice of appeal. The clerk returned the notice to U.S. Bank, along with

a letter stating that the notice was not accepted and that any applicable filing

deadlines had not changed.        U.S. Bank remitted the correct filing fee on

August 5, 2019, including with the fee a letter explaining the reason for its

mistake. Although the August 5 notice of appeal was filed outside of the

twenty-one-day window for filing, see M.R. App. P. 2B(c)(1), U.S. Bank did not

also file a motion with the trial court seeking an extension of the time to file, see

M.R. App. P. 2B(d)(1).

      [¶4] The Superior Court transmitted the case to the Supreme Judicial

Court, sitting as the Law Court, on August 7, 2019. On August 12, 2019, we

entered an order dismissing the appeal as untimely. See M.R. App. P. 2B(c)(1).
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U.S. Bank filed a “Motion for Reconsideration and Motion to Extend Time for

Filing” in this Court on August 16, 2019. We treated the motion as a motion to

extend time for filing only1 and denied the motion, concluding that jurisdiction

had reverted to the trial court on August 12.

       [¶5] U.S. Bank filed a motion in the Superior Court seeking an extension

of time to file its notice of appeal, see M.R. App. P. 2B(d)(1), on August 28, 2019.

In an order entered October 30, 2019, the trial court denied U.S. Bank’s motion.

The trial court determined that U.S. Bank had shown “good cause for the trial

court to grant [U.S. Bank’s] motion to extend because [U.S. Bank] was misled by

the court’s guide, which provided incorrect information.”2 However, the court

also concluded that its authority to grant an extension of time, conferred by

Rule 2B(d)(1), had expired prior to the filing of U.S. Bank’s August 28 motion

and that the motion was therefore untimely. U.S. Bank timely appealed the

judgment. See 14 M.R.S. § 1851 (2020); M.R. App. P. 2B(c)(1).




   1 Our August 27 order stated, “U.S. Bank Trust’s arguments do not challenge this Court’s reasoning
or the propriety of the dismissal. Instead, they seek an enlargement of time to file the appeal.”
   2 The online fee schedule published by the Judicial Branch has since been corrected and accurately
reflects court fees as set forth in our recent administrative order. Revised Court Fees Schedule and
Document Management Procedures, Me. Admin. Order JB-05-26 (as amended by A. 7-20.2) (effective
July 27, 2020).
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                                II. DISCUSSION

      [¶6] “We review a trial court’s interpretation of procedural rules de

novo,” State v. St. Onge, 2011 ME 73, ¶ 17, 21 A.3d 1028, “and look to the plain

language of the rules to determine their meaning,” Kline v. Burdin, 2017 ME 194,

¶ 7, 170 A.3d 282 (quotation marks omitted).

      [¶7] Maine Rule of Appellate Procedure 2B(c)(1) provides, “The time

within which an appeal may be taken in a civil case shall be 21 days after entry

into the docket of the judgment or order appealed from, unless a shorter time

is provided by law.” Rule 2B(d)(1) then provides for an extension of this filing

deadline:

      Upon a showing of good cause, the trial court may, before or after
      the time has expired, with or without motion and notice, extend the
      time for filing the notice of appeal otherwise allowed for a period
      not to exceed 21 days from the expiration of the original time for
      filing an appeal prescribed by Rule 2B(b) or 2B(c).

M.R. App. P. 2B(d)(1)(emphasis added).

      [¶8] Contrary to U.S. Bank’s contentions, the trial court did not err in

concluding that U.S. Bank’s motion was untimely and that therefore the court

did not have the authority under the Maine Rules of Appellate Procedure to

grant the motion. See M.R. App. P. 2B(c)(1), (d)(1). The time period during

which the trial court possessed authority to extend the time to file a notice of
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appeal was not extended or enlarged by U.S. Bank’s intervening motion to the

Law Court. See Remick v. Erin, Inc., 414 A.2d 896, 897 (Me. 1980) (holding that

an untimely notice of appeal precludes our review).

      [¶9] The trial court’s finding of good cause for U.S. Bank’s original late

filing does not demand vacatur of the trial court’s order, as U.S. Bank argues.

U.S. Bank failed to timely file a motion to extend time in the appropriate court,

even after it had been notified that its appeal had been dismissed and the

matter remained in the Superior Court. Our order denying U.S. Bank’s motion

for reconsideration pointed out that our order did “not prevent” U.S. Bank from

filing such a motion in the trial court, and it noted that U.S. Bank should have

moved for an enlargement at the time it first filed its late notice of appeal. U.S.

Bank failed to timely move for an extension of time in the appropriate court.

When, on August 28, U.S. Bank filed a motion in the correct court to enlarge the

appeal period, the greatest period of enlargement that, by rule, the court could

allow had already expired.      See Rice v. Amerling, 433 A.2d 388, 392-93

(Me. 1981) (“[T]he application for the enlargement must be filed [within the

time period prescribed by the Rules]. If that is not done, any subsequent

determination of excusable neglect . . . is insufficient” to allow our review “as a

result of the filing of the notice of appeal.” (emphasis omitted)).
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        [¶10] The trial court did not err in its interpretation of the relevant Rules

of Appellate Procedure or in denying U.S. Bank’s untimely motion for an

extension of time.

        The entry is:

                           Judgment affirmed.



John A. Doonan, Esq., and Reneau J. Longoria, Esq., Doonan, Graves & Longoria,
LLC, Beverly, Massachusetts, for appellant U.S. Bank Trust, N.A.

Jason J. Theobald, Esq., and Richard P. Olson, Esq., Curtis Thaxter LLC, Portland,
for appellee James D. Keefe

Cumberland County Superior Court docket number RE-2017-104
FOR CLERK REFERENCE ONLY
