Lalumiere v. Yule

• Court: Superior Court of Maine
• Decided: September 10, 2003
• Docket: CUMcv-02-111
• Status: Unpublished

Opinion

STATEOF MAINE GATE OF E OF OR COURT

CLE (BERL A SACTION CUMBERLAND, ss. ET NO. CV 02-111 So iti SEP 10 BC oe WN\- qf fx 2/2 A OOS

SCOTT LALUMIERE & PIONEER CAPITAL CORPORATION, Plaintiffs DONALD L. GAP? 3RECHT LAW LIBRARY Vv. ORDER

OCF 1 2

LANCE YULE,

Defendant

Before this court is the Defendant's motion to set aside a default judgment pursuant to M. R. Civ. P. 60(b).

FACTS

On March 19, 2002, Attorney William Wilson, Defendant Lance Yule’s counsel, accepted service of the Plaintiffs, Scott Lalumiere and Pioneer Capital Corporation’s, complaint. On May 3, 2002, this court defaulted the Defendant pursuant to M. R. Civ. P. 55(a) for failing to file an answer to the Plaintiffs’ complaint. Based on these events, the Plaintiffs filed a motion for default judgment, which was granted and entered against the Defendant on June 4, 2002.

Consequently, the Defendant attempted to contact Attorney Wilson to retrieve his file. The Defendant left repeated phone messages and personally went to Attorney Wilson’s office, but to no avail. In August 2001, Defendant hired Attorney Michael Waxman to attempt to retrieve his file. Attorney Waxman was also unsuccessful in obtaining the Defendant's file until December 2002. After obtaining his file, on April:7, 2003, the Defendant requested this court to set aside the default judgment that had been

entered against him on June 4, 2002. DISCUSSION Pursuant to M. R. Civ. P. 60(b)(1), a court may relieve a party from a final judgment, order, or proceeding if the party shows mistake, inadvertence, surprise, or excusable neglect. In order to prevail on a motion for relief under Rule 60(b)(1), the moving party must “demonstrate a reasonable excuse or good cause for default and a

meritorious defense to the underlying action.” Mariello v. Giguere, 667 A.2d 588, 589

(Me. 1995) (citing Theriault v. Gauthier, 634 A.2d 1255, 1256 (Me. 1993)). Furthermore,

any party seeking relief under Rule 60(b)(1) must file its motion within a reasonable time but no more than one year after the judgment, order, or proceeding was entered or taken. See M. R. Civ. P. 60(b)(1).

The Defendant contends that Attorney Wilson’s neglect and failure to file an answer to the Plaintiff’s complaint, which resulted in the default judgment, was a result of his loss of license to practice law. The Law Court has repeatedly held that "an attorney's actions of commission as well as omission are to be regarded as the acts of the party represented and that any neglect of the attorney is equivalent to that of the party.”

Mockus v. Melanson, 615 A.2d 245, 247 (Me. 1992). If the neglect resulting in a

judgment of dismissal of a complaint is without excuse or justification, it is not error for the trial court to refuse to vacate the judgment. Id. According to the counsel for the Board of Overseers of the Bar, Attorney Wilson has not lost his license and was only suspended effective November 2, 2002, eight months after the answer to the Plaintiffs’ complaint was due. (Koziell Aff. 1] 6-9.) Hence, due to the prejudice the Plaintiffs will suffer’ and because the Defendant has failed to meet his burden, this court finds that

these omissions by Attorney Wilson are attributable to the Defendant and do not

" Plaintiffs have invested many hours and a significant amount of money into the Olman Toy Company. (See Lalumiere Aff. 5.) constitute excusable neglect. See Mockus 615 A.2d at 247. Moreover, this court notes

that the more appropriate and available remedy would be for the Defendant to file a

civil action for malpractice against Attorney Wilson. See Mockus v. Melason, CV-87-120

(Me. Super. Ct., Yor. Cty., May 7, 1992) (Fritzsche, J.). In addition, a party seeking relief under Rule 60(b) also has the burden of

demonstrating a sufficient and specific meritorious defense to the allegations contained

in the plaintiff’s complaint. Schmid Bros., Inc. v, Roberts, 538 A.2d 291, 293 (Me. 1988).

The Defendant has failed to present this court with detailed and specific meritorious defenses to the Plaintiffs’ cause of action. Although the Defendant did present the court with the answer that Attorney Wilson failed to file, this information was brought to the courts attention four months after the Defendant received his file from Attorney Wilson. The Defendant's failure to bring this information to the court’s attention immediately following the filing of his motion and receipt of his file constitutes unreasonable delay. Therefore, this court finds that the Defendant has failed to raise any valid meritorious

defenses to the Plaintiff’s cause of action.

WHEREFORE, this court shall DENY Defendant’s motion to set aside the default

judgment, pursuant to M. R. Civ. P. 60(b).

Dated: September _/0_, 2003

poland A. Cole ustice, Superior Court )F COURTS

land County Box 287 ine 04112-0287

MICHAEL WAXMAN ESO PO BOX 375 PORTLAND ME 04112

PAUL KOZIELL ESQ ONE MONUMENT WAY PORTLAND ME 04101