Rule 80C. Review of Final Agency Action

(a) Mode of Review. A review of final agency action or the failure or refusal of an agency to act brought in the Superior Court pursuant to 5 M.R.S.A. § 11001 et seq., Maine Administrative Procedure Act, or in the District Court to review disciplinary decisions of occupational licensing boards and commissions under 4 M.R.S.A. § 152 (10) and 10 M.R.S.A. § 8003, shall be governed by these Rules of Civil Procedure as modified by this rule, except to the extent inconsistent with the provisions of a statute. Proceedings for judicial review of final agency action or the failure or refusal of an agency to act shall be commenced by filing a petition as provided by 5 M.R.S.A. § 11002(1) and the contents of the petition shall be as provided by 5 M.R.S.A. § 11002(2). A petition for review shall be served as provided by 5 M.R.S.A. § 11003. No responsive pleading need be filed except as provided by 5 M.R.S.A. § 11005. Leave to amend pleadings shall be freely given when necessary to permit a proceeding erroneously commenced under this rule to be carried on as an ordinary civil action.

(b) Time Limits; Stay. The time within which a review of final agency action or the failure or refusal of an agency to act may be sought shall be as provided by 5 M.R.S.A. § 11002(3). An application for a stay of final agency action shall be as provided by 5 M.R.S.A. § 11004.

(c) Manner and Scope of Review. The manner and scope of review of final agency action or the failure or refusal of an agency to act shall be as provided by 5 M.R.S.A. § 11007(2) through § 11007(4).

(d) Power of Court to Correct or Modify Record. Judicial review shall be confined to the record upon which the agency decision was based, except as provided by 5 M.R.S.A. § 11006(1). The reviewing court may require or permit subsequent corrections to the record as provided by 5 M.R.S.A. § 11006(2).

(e) Additional Evidence. A party who intends to request that the reviewing court take additional evidence or order the taking of additional evidence before an agency as provided by 5 M.R.S.A. § 11006(1) shall file a motion to that effect within 10 days after the record of the proceedings is filed under subdivision (f), but not before the record of proceedings is filed. The failure of a party to file such a motion shall constitute a waiver of any right to the taking of additional evidence. Upon the filing of a motion for the taking of additional evidence, the time limits contained in this rule shall cease to run pending the issuance of an appropriate order of court specifying the future course of proceedings with that motion. The moving party shall also file with the motion a detailed statement, in the nature of an offer of proof, of the evidence intended to be taken, except as provided below. That statement shall be sufficient to permit the court to make a proper determination as to whether the taking of additional evidence as presented in the motion and offer of proof is appropriate under this rule and if so to what extent. After hearing, the court shall issue an appropriate order specifying the future course of proceedings.

(f) Record. The agency shall file the complete record of the proceedings under review as provided by 5 M.R.S. § 11005. If the petitioner believes that the record filed by the agency either is incomplete or over-inclusive, the petitioner shall serve notice upon the agency within 10 days after the record is filed. This notice shall include specific proposals by the petitioner regarding additions to or deletions from the record filed by the agency. The parties shall attempt to agree on the contents of the record. If the parties cannot agree, the petitioner may request that the court modify the contents of the record. A copy of the agency's decision on appeal, whether written or transcribed, shall be included in the record. If the agency decision was based on or referenced a municipal ordinance, a state or local regulation, or a private and special law, a copy of the relevant section or sections from that ordinance, regulation, or private and special law, shall be included in the record. Copies of sections of the Maine Revised Statutes shall not be included in the record.

(g) Filing of Briefs. Unless otherwise ordered by the court, all parties to a review of governmental action shall file briefs. The petitioner shall file the petitioner's brief within 40 days after the date when the administrative agency files the record of the proceedings with the court. Any other party shall file that party's brief within 30 days after the service of the petitioner's brief, and the petitioner may file a reply brief 14 days after last service of the brief of any other party. However, no brief shall be filed less than 6 calendar days before the date set for oral argument. On a showing of good cause the court may increase or decrease the time limits prescribed in this subdivision.

(h) Consequence of Failure to File. If the petitioner fails to comply with subdivision (g) of this rule, the court may dismiss the action for want of prosecution. If any other party fails to comply, that party will not be heard at oral argument except by permission of the court.

(i) Joinder With Independent Action. If a claim for review of governmental action under this rule is joined with a claim alleging an independent basis for relief from governmental action, the petition shall contain a separate count for each claim for relief asserted, setting forth the facts relied upon, the legal basis of the claim, and the relief requested. A party in a proceeding governed by this rule asserting such an independent basis for relief shall file a motion no later than 10 days after the petition is filed, requesting the court to specify the future course of proceedings. Upon the filing of such a motion, the time limits contained in this rule shall cease to run pending the issuance of an appropriate order of court. After hearing, the court shall issue an order; provided that such a motion need not be filed in cases where the parties to the proceedings have filed with the court a stipulation as to the future course of proceedings.

(j) Discovery. In a proceeding governed by this rule, discovery shall be allowed as in other civil actions when such discovery is relevant either to the subject matter involved in an evidentiary hearing to which the discovering party may be entitled or to that involved in an independent claim joined with a claim for review of governmental action as provided in subdivision (i) of this rule. No other discovery shall be allowed in proceedings governed by this rule except upon order of court for good cause shown.

(k) Pretrial Procedure. In the absence of a court order, the pretrial procedure of Rule 16 shall not be applicable to a proceeding governed by this Rule.

(l) Scheduling of Oral Argument. Unless the court determines that oral argument is unnecessary or otherwise directs, all appeals shall be in order for oral argument 20 days after the date on which the responding party's brief is due or is filed, whichever is earlier. The parties may, by agreement, waive hearing and submit the matter for decision on the record and the briefs. The clerk of the court shall schedule oral argument for the first appropriate date after an appeal is in order for hearing, and shall notify each counsel of record or unrepresented party of the time and place at which oral argument will be heard.

(m) Appeal to the Law Court. If the court remands the case for further proceedings, all issues raised on the court's review of the agency action shall be preserved in a subsequent appeal taken from a final judgment entered on review of such agency action. Appeal to the Law Court of a review proceeding in the court shall be as provided by 5 M.R.S.A. § 11008. RULE 80D. FORCIBLE ENTRY AND DETAINER

(a) Applicability to Forcible Entry and Detainer. These rules, so far as applicable, shall govern the procedure in forcible entry and detainer actions in the District Court and on appeal to the Superior Court and the Law Court, except as otherwise provided in this rule or by statute.

(b) Summons. The summons in forcible entry and detainer actions shall

(1) bear the signature or facsimile signature of the judge or the clerk;

(2) contain the name and address of the court and the names of the parties;

(3) be directed to the defendant;

(4) state the day when the action is returnable, which shall be not fewer than 14 days from the date of service of the summons; and

(5) notify the defendant that in case of defendant's failure to appear and state a defense on the return day, judgment by default will be rendered against the defendant for possession of the premises.

(c) Judicial Branch Information Sheet and Mediation. In residential forcible entry and detainer actions, the plaintiff must serve the Judicial Branch information sheet and request for mediation form with both the notice of termination of the tenancy, if any, and the forcible entry and detainer summons and complaint. Either party may request mediation, using the form or otherwise.

(d) Complaint. The complaint for forcible entry and detainer shall be filed no later than 3 days before the date of the hearing. For good cause shown, the court may hear a case filed after the deadline. When the complaint pertains to a residential tenancy, the following materials must be included with the complaint filed pursuant to this rule:

(1) A copy of any written lease or written rental agreement between the parties; and

(2) A copy of any notice of termination of tenancy delivered to the defendant (and any attachments thereto). Any failure to provide the required attachments at the time of filing of the initial complaint may be grounds for a continuance but not for dismissal.

(e) Defendant's Pleading. If the defendant claims title in defendant's name or in the name of another person under whom the defendant claims the premises, the defendant shall assert such claim by answer filed on or before the return day, and further proceedings in the actions shall be as provided by law. Otherwise the defendant may appear and defend without filing a responsive pleading.

(f) Hearing.

(1) Legal Assistance. If the court has been advised that an attorney is available to assist unrepresented tenants in forcible entry and detainer actions on the day of hearings, the presiding judge shall announce the availability of the attorney(s) at the call of the docket. Failure of the court to do so is not, however, grounds for dismissal of the action or to set aside or appeal any judgment entered against the tenant.

(2) Hearing Date. All forcible entry and detainer actions shall be in order for trial on the return day.

(3) Mediation. At the time set for hearing, the court may refer the parties to mediation pursuant to the process established by Rule 92(f) of these rules. Every settlement resulting from mediation shall be presented to the court in writing for approval as a court order, and the court shall approve reasonable settlements. An approved settlement shall have the force and effect of a judgment and may not be appealed. If no mediator is available, or if mediation efforts fail or mediation proves inappropriate, the court shall hear the matter without undue delay.

(g) Appeal.

(1) Appeal on Questions of Law. Either party may appeal to the Superior Court and the Law Court on questions of law as in other civil actions.

(2) Appeal by Jury Trial De Novo.

(A) Notice of Appeal and Demand for Jury Trial. Either party may appeal to the Superior Court by jury trial de novo on any issue so triable of right by filing a notice of appeal as provided in Rule 76D. A party who seeks a jury trial de novo shall include in the notice of appeal a written demand for jury trial and shall file with the notice an affidavit or affidavits meeting the requirements of Rule 56(e) and setting forth specific facts showing that there is a genuine issue of material fact as to which there is a right to trial by jury. Failure to make demand for jury trial with accompanying affidavit or affidavits constitutes a waiver of the right to jury trial, and the appeal shall be on questions of law only, as provided in paragraph (1) of this subdivision.

(B) Preparation and Transmission of the Record. The record on appeal shall be prepared in accordance with Rule 76F. The clerk of the division shall transmit the record to the Superior Court within five days of the filing of the notice of appeal, without waiting for a transcript. The clerk of the Superior Court shall docket the appeal on receipt of the record thus transmitted. If a transcript is subsequently received by the clerk of the District Court, it shall be transmitted to the Superior Court immediately and shall be incorporated in the record on appeal by the clerk of the Superior Court.

(3) Same: Determination on Affidavits. The appellee may, within ten days after the mailing of the clerk's notice of the docketing of the appeal in the Superior Court, file a counter affidavit or affidavits meeting the requirements of Rule 56(e), together with a brief statement of the grounds of any cross appeal for which notice was timely filed. The court may upon its own motion, or the motion of either party, order that the transcript or relevant portions thereof be incorporated in the record on appeal prior to the court's review of the affidavits and record under this paragraph. The court shall review the affidavits of both parties and the record on appeal, including any transcript or portions thereof ordered to be incorporated as provided in this paragraph, and shall determine whether the appellant's affidavits are adequate and, if so, whether there is a genuine issue of material fact as to which there is a right to trial by jury.

(4) Same: Genuine Issue of Fact: Further Pretrial Proceedings; Assignment for Trial. If the court finds that the appellant has shown in light of the affidavits and the whole record, including any transcript or portions thereof ordered to be incorporated as provided in paragraph (3) of this subdivision, that there is a genuine issue of material fact as to which there is a right to trial by jury, it shall either direct the clerk immediately to place the action upon a jury trial list maintained in accordance with Rule 40 or shall order the parties to file pretrial memoranda containing specified information or to appear for a conference or to file memoranda and appear for a conference. After review of the pretrial memoranda or at the conclusion of the conference, the court shall direct the clerk to place the action upon a jury trial list. Scheduling of actions for trial shall be at the direction of the court, as provided in Rule 40. If either party intends to offer witnesses or exhibits not offered at the trial in the District Court, that party shall file a list of the names and addresses of such witnesses and a brief description of such exhibits within 10 days after notification that the action has been placed upon a jury trial list or, if pretrial memoranda or a pretrial conference have been ordered, at the time set by the court for such memoranda or conference. The opposing party may file a similar list and description in reply within 10 days, or as ordered by the court. No witness or exhibit may be offered in the Superior Court unless it was offered in the District Court or appears on a list filed in accordance with this paragraph.

(5) Same: No Genuine Issue of Fact: Disposition. If the court finds that the appellant has not shown in light of all 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, it shall enter judgment dismissing the appeal; provided that, if either party has raised an independent question of law in the notice of appeal, the court shall review the record pertaining to it. If the court finds that a properly raised question of law is material to a legal claim or defense, the appeal shall proceed as provided for appeals on questions of law in paragraph

(1) of this subdivision.

(6) Same: Jury Trial. An action placed upon a jury trial list shall be tried by jury. If the appellant withdraws the demand for jury trial in a writing filed with the clerk before the date on which the jury is to be empanelled, or if the court upon its own initiative at any time finds that no right to trial by jury of any issue exists under the Constitution or statutes of the State of Maine, the appeal shall be dismissed or proceed on a material question of law, as provided in paragraph (5) of this subdivision.

(7) Same: Rules Inapplicable. Rules 16, 26-37, 39, 42 and 56 do not apply to jury trials de novo in the Superior Court under this rule.

(h) No Joinder of Other Actions. Forcible entry and detainer actions shall not be joined with any other action, nor shall a defendant in such action file any counterclaim.

(i) Venue. An action for forcible entry and detainer shall be brought in the division in which the property is located.

(j) Removal. There shall be no removal of forcible entry and detainer actions, except as provided by statute.

(k) Issue of Writ of Possession; Stay. A writ of possession shall issue, upon request and payment of the applicable fee, within the time provided by statute after entry of judgment therefore, provided that

(1) If defendant within the time provided by statute makes a timely motion pursuant to any of the rules enumerated in Rule 76D as terminating the running of the time for appeal, the issuance of the writ shall be stayed until five days after entry of an order disposing of the motion;

(2) On motion of defendant filed in the Superior Court within the time provided by statute, or any extension thereof under paragraph (1) of this subdivision, the Superior Court may grant a stay for the full time for appeal, or any extension thereof, allowed under Rule 76D, if the Superior Court finds that defendant's grounds of appeal present a genuine issue of material fact or law;

(3) If defendant files a timely notice of appeal under Rule 76D, issuance of the writ shall be stayed until a stay pending appeal is granted or denied in the Superior Court as provided in paragraph (4) of this subdivision;

(4) When the appeal is docketed in the Superior Court, that court may stay the issuance of the writ pending disposition of the appeal on conditions as provided in 14 M.R.S.A. § 6008. A copy of a writ of possession issued pursuant to this subdivision (k) shall be retained by the clerk for examination by any interested person.

(l) Stays Upon Appeal to the Law Court. If an aggrieved party appeals from a judgment of the Superior Court in accordance with Rule 76D, an order of the Superior Court staying the writ of possession, together with any conditions imposed pursuant to 14 M.R.S.A. § 6008, shall remain in effect until final disposition of the appeal in the Law Court. Either party may move in the Superior Court during the pendency of the appeal for modification or amendment of the order as provided in 14 M.R.S.A. § 6008. Nothing in this rule limits the power of the Law Court during the pendency of the appeal to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.