McKeen & Associates v. Department of Transportation

1997 ME 73, 692 A.2d 924, 1997 Me. LEXIS 82

• Court: Supreme Judicial Court of Maine
• Decided: April 10, 1997
• Status: Published

Opinions

CLIFFORD, Justice.

[¶ 1] McKeen and Associates (McKeen) appeals from the judgment entered in the Superior Court (Androscoggin County, Dela-hanty, /.), denying McKeen’s motion for relief from judgment pursuant to M.R.Civ.P. 60. McKeen contends on appeal that the court erred in not finding that the Department of Transportation misrepresented facts to the court or committed fraud. We disagree and affirm the judgment.

[¶2] McKeen and the Department contracted for the promotion, development, and construction of an informational kiosk system in 1983. After problems developed, McKeen sued the Department for a breach of contract in 1987. On September 4, 1987, the Department filed a counterclaim alleging that McKeen owed it money for the project. The court stayed the action pending arbitration. After the court vacated the first arbitration award due to a conflict of interest of one of the arbitrators, the Department moved for the court to confirm a second arbitration award.¹ The Department did not include the actual award in an appendix to its motion. McKeen did not object to the motion, however, and the court confirmed² the arbitration award on January 4,1994.

[¶3] On May 31, 1994, the Department filed a motion for a summary judgment on its counterclaim. The Department did not attach a copy of the award to its motion or include it in its memorandum of law in support of its motion. McKeen did not object to the motion and filed no response to it. See M.R.Civ.P. 56; 7(c), (d). On August 8, 1994, the court granted the Department’s motion and entered summary judgment in favor of the Department in the amount of $95,791. On March 31,1995, McKeen moved for relief from judgment pursuant to M.R.Civ.P. 60(b)(3) alleging fraud and misrepresentation by the Department.³ Finding no fraud or misrepresentation, the court denied the motion. This appeal by McKeen followed.

[¶4] We review the denial of a motion for relief from judgment only for an abuse of discretion. McKinley v. McKinley, 651 A.2d 821, 823 (Me.1994); DiPietro v. Boynton, 648 A.2d 679, 680 (Me.1994). “We will vacate a judgment only when the denial of the Rule 60(b) motion works a plain and unmistakable injustice against the defendant.” Harris v. PT Petro Corp., 650 A.2d 1346, 1348 (Me.1994) (citation omitted). McKeen contends that it is entitled to relief from judgment pursuant to M.R.Civ.P. 60(b)(3) because the Department committed fraud and misrepresentation when it failed to inform the court of the language of the arbitration award that it contended precluded the Department from pursuing its counterclaim. McKeen also argues that the counterclaim was barred by res judicata because the arbitration award precluded recovery on the counterclaim. McKeen’s contentions are unpersuasive. Rule 60(b) “presupposes that a party has performed his duty to take legal steps to protect his own interests in the original litigation.” Reville v. Reville, 370 A.2d 249, 253-54 (Me.1977) (emphasis added). McKeen, however, never objected to the Department’s summary judgment motion. Pursuant to M.R.Civ.P. 7(c)(3), “[a] party failing to file a timely memorandum in opposition to a motion shall be deemed to have waived all objections to the motion.” ⁴ McKeen offered no reason or excuse to the trial court for failing to object to the motion for a summary judgment and has advanced no reason to this Court as to why it did not object. Moreover, McKeen did not appeal the grant of a summary judgment entered against it. We have “repeatedly stated that a motion for relief pursuant to Rule 60(b) is not a substitute for a direct appeal_” DiPietro v. Boynton, 648 A.2d at 680. “[T]he principles of res judicata bar relief under Rule 60(b) when, as here, the aggrieved party has failed to challenge the validity of the underlying judgment on direct appeal.” State v. Butler, 627 A.2d 530, 531 (Me.1993) (citation omitted). The court correctly denied McKeen’s motion for relief from judgment on the basis of res judicata.

[¶ 5] The trial court also was not persuaded that the Department committed fraud and misrepresentation by pursuing its counterclaim when the arbitration award allegedly precluded the State from doing so. The arbitrators, however, did not address the issue of whether the Department’s counterclaim was arbitrable and left unclear whether the arbitrators intended the arbitration award to be preclusive on the counterclaim. The court’s conclusion that the department did not make misrepresentations to the court or engage in fraud is not clearly erroneous. For the foregoing reasons, the court did not abuse its discretion in denying the Rule 60(b) motion for relief.

The entry is:

Judgment affirmed.

1 .The award concludes that the Department was liable to McKeen in the amount of $19,500 but that the sum would be set off by the $95,791 that McKeen owed the Department. The arbitrators noted in their award that they should not consider the Department’s counterclaim "except to the extent that the claim offsets the damages of McKeen.”

2 . See 14 M.R.S.A. § 5937 (1980) (court must confirm award unless grounds are urged for vacating, modifying, or correcting it).

3 . Rule 60(b)(3) provides relief from judgment for "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.]"

4 . Additionally, when the arbitration award was granted, McKeen should have moved pursuant to M.R.Civ.P. 15(a) to amend its answer to the Department's counterclaim to add the affirmative defense of res judicata. It did not, and therefore, McKeen has failed to preserve this defense. M.R.Civ.P. 8(c).