Richter v. Ercolini

Annotate this Case

Download PDF

STATE OF MAINE CUMBERLAND, ss. "'.;' SUPERIOR COURT CIVIL ACTION 'DodET NO: RE-08-179 (, :',c. r,\~ «,~_(t SUSANNE RICHTER Plaintiff ORDER v. WALTER ERCOLINI, and JAYNE ERCOLINI Defendants This case comes before the Court on Defendants' Motion to Vacate Entry of Default pursuant to M.R. Civ. P. 55(c). BACKGROUND Plaintiff Susanne Richter owns a parcel of land located in Gray, Maine, which abuts property owned by Defendants Walter and Jayne Ercolini. Ms. Richter alleges that the Ercolini's have maintained and extended a rock wall that encroaches on her property by approximately seven (7) feet. She alleges that this encroachment is a result of a faulty land survey, conducted by Cullenberg Land Surveying, which incorrectly identifies the boundary between the properties.] Ms. Richter also alleges that the Defendants wrongfully moved a boundary marker one foot closer to her property. 1 Ms. Richter alleges that the Cullenberg survey is inaccurate because it fails to take into account a IO-foot right-of-way located on another portion of her property. Further, Ms. Richter hired Northeast Civil Consultants to survey her land, and she argues that the map prepared by Northeast accurately reflects the boundary between the two properties. Ms. Richter filed a complaint on August 11, 2008 asking the court to issue a declaratory judgment declaring: (1) the CUllenberg survey void based on its failure to acknowledge the alleged right-of-way; (2) the true common boundary between the two properties; and finally, (3) the rock wall and garden to be encroaching on her property. Ms. Richter also alleges injury to land2 and trespass as causes of action. The Defendants were served with the summons and complaint at their home in Amesbury, Massachusetts on August 29, 2008 by an Essex County sheriff's deputy. The Ercolini's answer, while dated September 15,2008, was not filed with the court until September 24, 2008. Pursuant to M.R. Civ. P. 55(a), the clerk entered an entry of default on September 25,2008. On September 30,2008, the Ercolini's filed the present motion to vacate the entry of default, simply stating that they "live out-of-state and mailed [their] Answer to the Court and Plaintiff's attorney in what [they] believed to be a timely manner." On October 8, 2008, Ms. Richter filed an application for default judgment. DISCUSSION Under Me.R. Civ. P. 55(c), a court may set aside an entry of default "for good cause." In order to establish good cause, "a party must show a good excuse for his or her untimeliness and a meritorious defense." Truman v. Browne, 2001 ME 182, CJI 9, 788 A.2d 168, 170. The Law Court has held that " [t]here is a strong preference in our law for deciding cases on the merits. Thomas v. Thompson, 653 A.2d 417,420 (Me. 1995). Consistent with this preference, motions to set aside a Pursuant to 14 M.R.S.A. §7552. Under this statute, without permission of a property owner, a person may not "disturb, remove or destroy any lawfully established transit point, reference point, stake ... or any such monument marking the bounds of public or private property." 14 M.R.S.A. §7552(2)(C). 2 2 default have been granted in cases when no gross neglect was involved in the late filing, the nondefaulting party will not be substantially prejudiced by reopening the case, and a meritorious defense exists." [d. According to the Law Court, the foundation of a good excuse for a party's untimeliness is a reasonable explanation for that untimeliness. Levine v. KeyBank Nat'[ Ass'n, 2004 ME 131, <IT 7, 861 A.2d 678, 684. Here, the only explanation offered by the Ercolini's is that they filed their answer "in what they believed to be a timely manner." This is not a reasonable excuse for their untimeliness. Moreover, the Defendants' motion fails to raise any meritorious defense they may have against Ms. Richter's alleged causes of action. As they have not provided a good excuse for their untimeliness and failed to raise any meritorious defenses, Defendants' motion to set aside entry of default should be denied. Therefore, the entry is: Defendants Walter and Jayne Ercolini's Motion to Set Aside Entry of Default is DENIED. The clerk shall incorporate this Order into the docket by reteYe~rf27 pursuant to M.R. Civ. P. 79(a). DATED: ~ U U " a 1..00-, 3 JF COURTS -land County Box 287 aine 04112-0287 GENE LIBBY ESQ 62 PORTLAND ROAD SUITE 17 KENENBUNK ME 04043 OF COURTS lrland County I. Box 287 1aine 04112-0287 WALTER AND JAYNE ERCOLONI 21 WHITTIER ROAD AMESBURY MA 01913 pl

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.