Opinion
December 12, 1977.
Appeal from the Superior Court, Cumberland County.
Verrill Dana by Charles A. Harvey, Jr. (orally), Portland, for plaintiff.
Robert D. Spickler pro se.
Before POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.
In this appeal appellant Spickler claims:
1. The court erred in dismissing his counterclaim and
2. The damage filed against him were excessive.
It appears that a pre-trial conference was held by a justice other than the justice who presided at the trial. At the conclusion of the pre-trial conference the pre-trial justice entered an order. This order unfortunately was ambiguous. The justice who presided at the trial read the pre-trial order entered by the pre-trial justice and concluded it was determined by that order that appellant Spickler's counterclaim had been abandoned.
We have scrutinized carefully the pre-trial memoranda and the pre-trial order and are satisfied that the pre-trial order considered in the light of the memoranda should not be interpreted as a ruling that the appellant had abandoned the counterclaim. While the pre-trial order does recite that "plaintiff pre-trial [is] adopted," the supplemental pre-trial memorandum submitted by appellant on which the pre-trial order was based requests an admission and states that a bill for extra contracting items done by appellant will be introduced. Both the bill and the admission obviously relate to the counterclaim. The pre-trial order, moreover, states that the "Pre-Trial Memorandums are sufficient to govern the course of the Trial and are therefore adopted." The adoption of all memoranda by the order demonstrates that the counterclaim was not abandoned.
These documents which were interpreted by the trial justice are now before us. This court is therefore in an equally good position to find the facts and must do so uninfluenced by the findings of the court below. Matthews v. R.T. Allen Sons, Inc., Me., 266 A.2d 240, 244 (1970)
We find appellant's contention that the damages awarded to appellees were excessive to be without merit.
The judgment for the appellees is therefore affirmed.
The case is remanded for trial solely on the issue of appellant's counterclaim.
The entry must be:
Appeal sustained in part and denied in part.
Judgment for appellees affirmed.
Judgment for appellees on the counterclaim set aside.
Remanded to the Superior Court for further proceedings consistent with the opinion herein.
McKUSICK, C.J., and DELAHANTY, J., did not sit.
POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ., concurring.