Opinion
Civil Action RE-15-105
03-26-2019
NATHANIEL WARREN-WHITE, et al., Plaintiffs v. MARTINA SULLIVAN, Defendant
Thomas D. Warren Justice, Superior Court.
The prior history of this case is that after a two day trial in February 2017 the court (Walker, J.) found that plaintiffs Nathanial and Elizabeth Warren-White had established ownership by adverse possession to a disputed area (generally referred to as the Abandoned Road area) that was also claimed by defendant Martina Sullivan. The court also awarded the Warren-Whites $2,000 against Sullivan on their claim of trespass. See Findings and Decision dated August 17, 2017 and filed August 18, 2017. Judgment was entered on September 8, 2017.
Sullivan appealed from that judgment, which was affirmed by the Law Court on May 3, 2018. Decision No. Mem. 18-38, Docket No. Cum-17-420.
On August 13, 2018 Sullivan, now representing herself, filed a motion pursuant to M.R.Civ.P. 60(b)(3) and 60(b)(6) for relief from the judgment. She filed an amended motion on August 15, 2018. In the meantime, however, she had filed an appeal from an order entered on plaintiffs' post-trial bill of costs. Pursuant to M.R.App.P. 3(c)(2) the Superior Court did not have authority to act on Sullivan's Rule 60(b) motion while the appeal was pending, and the file was in the Law Court.
Sullivan had been previously represented by counsel.
On March 22, 2019 this court received the file in the above-captioned case back from the Law Court after the mandate issued affirming Justice Walker's order on the post-trial bill of costs. The court has now reviewed the papers filed on Sullivan's Rule 60(b) motion.
Rule 60(b)(3) allows the court to set aside a prior judgment upon a showing of fraud, misrepresentation, or other misconduct of an adverse party. The party seeking relief from judgment pursuant to Rule 60(b) bears the burden of proving that the judgment should be set aside. Keybank N.A. v. Sargent, 2000 ME 153 ¶ 13, 758 A.2d 528.
While Sullivan's motion also refers to Rule 60(b)(6), the Law Court has stated that relief under Rule 60(b)(6) is an extraordinary remedy that may be granted only when the more particularized circumstances set out in the other subsections of Rule 60(b) do not apply. Ezell v. Lawless, 2008 ME 139 ¶ 28, 955 A.2d 202. As a result, if Sullivan is not entitled to relief under Rule 60(b)(3), the court cannot consider the same alleged fraud or misconduct to determine whether relief is available under Rule 60(b)(6).
In this case Sullivan has provided a list of alleged instances that she apparently contends constitute fraud, misrepresentation, or misconduct by the Warren-Whites. However, she has not provided any affidavits or made any factual showing to justify relief under Rule 60(b)(3).
Specifically, Sullivan argues that the Warren-Whites and their surveyor and attorneys "misrepresented" the location of the boundary line that was in dispute at the trial in February 2017. This is simply an attempt to relitigate the issues that were decided at the trial. Sullivan has offered no evidence of any misrepresentation that would justify an evidentiary hearing. See In re David K, 2009 ME 131 ¶ 34, 985 A.2d 490. Instead she has merely rephrased the argument that the Warren-Whites should not have prevailed at trial as a contention that they and their surveyor and attorneys "misrepresented" the boundary line.
Sullivan cites certain meetings and communications that are listed in an attorney's fee affidavit submitted by an attorney for the Warren-Whites. However, she has offered no evidence to support her bare assertion that those meetings and communications somehow constituted collusion or misconduct. While she also suggests that there are certain inconsistencies with the testimony offered by the Warren-Whites and their witnesses at trial, those inconsistencies are trivial at best.
Finally, she argues - without any specifics - that her insurance company somehow limited her defense and that she and her surveyor were not given an opportunity by her attorneys to review the boundary line set forth in the September 8, 2017 judgment. If so, those are issues between Sullivan and her insurer and former attorneys. They are not a basis for relief from the judgment under Rule 60(b).
Sullivan has commenced a second action (RE-18-228) contending that the boundary line established by the September8, 2017 judgment has not been correctly marked on the face of the earth, and that action remains pending.
The entry shall be:
Defendant's Rule 60(b) motion for relief from the judgment entered on September 8, 2017 is denied. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).