Laurel Bank and Trust Co. v. Burns

• Decision Date: 26 February 1979
• Citation: 398 A.2d 41
• Parties: LAUREL BANK AND TRUST COMPANY v. John BURNS.
• Court: Maine Supreme Court

Page 41

398 A.2d 41

LAUREL BANK AND TRUST COMPANY v. John BURNS.

Supreme Judicial Court of Maine.

Feb. 26, 1979.

Stitham, Clapp & Cunniff by Michael J. Cunniff (orally), Pittsfield, for plaintiff.

Vafiades, Brountas & Kominsky by Susan R. Kominsky (orally), Lewis V. Vafiades, Paine & Lynch by Martha J. Harris, Bangor, Jude & Cox by Robert E. Cox, Newport, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, DELAHANTY, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

Pursuant to an agreement of counsel for a docket entry, on September 26, 1977, the Superior Court in Penobscot County entered judgment against the three Defendants in this contract action. One Defendant, John Burns, on December 5, 1977, moved pursuant to M.R.Civ.P. 60(b)(1) to vacate the judgment against him. The Superior Court denied his motion. He brings his appeal here, arguing (a) that the agreement of counsel for the docket entry was executed without his express authority and (b) that the court below should have granted him such relief due to his attorney's mistake, inadvertence or excusable neglect of his attorney.

The sole issue before us is whether the Superior Court abused its discretion in denying relief upon the Defendant's motion.

We deny his appeal.

By complaint filed December 18, 1974, the Plaintiff, Laurel Bank and Trust Company, sought recovery from three Defendants, James M. Albert, Robert Dunn and John Burns, of $50,000 allegedly due it under a security agreement covering certain travel-trailer units. The Bank charged the Defendants with conversion of those units. An answer on behalf of all three Defendants was timely served and filed by their attorney.

This action lay dormant for more than two years. During the two year period the attorney for the three Defendants also represented one of them, Robert Dunn, ¹ who along with a second Defendant, James M. Albert, was charged in contemporaneous criminal prosecutions. Speaking of the civil action, this attorney conceded, "I never thought of it for a two and half year period."

In March, 1977, this civil action was continued on the Plaintiff's motion. Simultaneously with the filing of that motion the Plaintiff's pre-trial memorandum was filed. There is no indication that the Defendants' attorney filed any trial memorandum in their behalf.

In April, 1977, a pre-trial conference was held and there was entered a pre-trial order, which reflected this attorney's consent to having the case placed upon the court list for trial. We can infer from his testimony that this attorney did not advise Defendant Burns that the case against him was assigned for pre-trial conference nor did he inform Defendant Burns of the action taken at the pre-trial conference.

During the same month of April the attorney for the Plaintiff and the attorney for the three Defendants consulted by telephone concerning possible settlement of the action, mentioning specifically, however, only the names of Albert and Dunn. Subsequently the Defendants' attorney consulted Albert and Dunn and determined that both had such meager assets that they were willing to consent to entry of judgment in full against themselves.

Next the attorneys for the respective parties orally agreed to stipulate to judgment for the Plaintiff, making no mention by name of the third Defendant, John Burns. Thereupon, the attorney for the three Defendants signed an agreement for docket entry (prepared by the Plaintiff's attorney), expressly granting judgment against all three Defendants in the amount of $50,000 plus costs. There is no allegation or suggestion of fraud on the part of the Plaintiff's attorney in including the Defendant, John Burns, in that agreement.

The Defendant's attorney acknowledged that he did not read the agreement for docket entry before signing it. He asserts he read only the cover letter from the Plaintiff's attorney, which referred to "James M. Albert et als. (sic)" as Defendants. He claimed that he had forgotten the involvement of his client, John Burns, in the case during the long dormancy of the action and his representation meanwhile of Albert and Dunn in the related criminal action.

Significantly, he offered no justification or excuse whatsoever for his failure to note on the agreement for docket entry the name of his client, John Burns, where it appeared not once, but twice, on the very sheet he signed, agreeing to judgment against all three of his clients.

Further, at the hearing in the Superior Court a single question was directed to the lack of authority on the part of the Defendant's attorney. Responding, that attorney stated he had no authorization from Defendant Burns to confess judgment against him. There was no further reference during the hearing to this fact or to any issue derived from this fact.

We consider initially the argument which the defendant Burns raises for the first time in this Court, that he is entitled to relief on the grounds that the judgment against Burns was void because of the attorney's admitted lack of authority to enter into the agreement for docket entry, which resulted in the judgment against Burns.

Assuming Arguendo that an attorney does not have authority to consent to judgment merely by virtue of his being retained to represent a litigant, ² we do not reach the issue on this appeal because the Defendant failed to present it to the Superior Court. In the examination of the Defendant's attorney at the hearing upon his M.R.Civ.P. 60(b)(1) motion there was a single question directed to whether he was authorized by the Defendant to confess judgment against him. The attorney's answer was in the negative. At no time in Superior Court did the Defendant contend to the justice hearing this motion that the legal consequence of his lack of authority was to make the judgment void. In the Superior Court sole reliance was placed on the attorney's "mistake" or "neglect." At no time in Superior Court did the Defendant question the amount of the judgment against him or contend that the amount was unconscionable. At no time did the Defendant ask the Superior Court to set aside the judgment against him upon the ground that the attorney lacked authority or upon the ground that the amount thereof was unconscionable.

First, the Defendant Burns brought his motion under M.R.Civ.P. 60(b)(1), thus expressly seeking vacation of the judgment against him on the grounds of "mistake, inadvertance (sic), surprise, or excusable neglect." He did not invoke M.R.Civ.P. 60(b)(4) to vacate upon the ground that the judgment was void. Neither did he invoke M.R.Civ.P. 60(b)(6) to vacate for any other reason justifying relief from the operation of the judgment.

Secondly, and apart from the matter of his pleading, at the close of the hearing upon his motion, both parties were given an opportunity by the Superior Court "to argue" the motion. The Defendant Burns chose not to argue. It thus appeared that the sole ground he asserted for relief from judgment was the attorney's mistake. His adversary directed his argument to this issue of mistake. Thus the Defendant foreclosed appellate review of the issue of voidness because of lack of authority.

M.R.Civ.P. 46 mandates that a party make known to the court, at the time the ruling or order of the court is sought, not only the action which he desires the court to take, but also the grounds he asserts therefor. A party who seeks to raise an issue for the first time at the appellate level is held to have waived that issue insofar as he utilizes it to attack the judgment or order from which he appeals. A major policy underlying this principle is to ensure that the trial court has full opportunity to dispose finally of the action. Harrington v. Inhabitants of the Town of Garland, Me., 381 A.2d 639, 642-643 (1978).

The consequences of failing in the trial court to preserve for appeal this possible ground of attack upon the stipulated judgment are not avoided by here labeling the defect in the attorney's authority as " jurisdictional." When the Defendant brought his M.R.Civ.P. 60(b) motion, he was bound to assert in the trial court all grounds for relief from the judgment which he had, or risk loss of the grounds unasserted there (such as the claim that the attorney lacked authority or a claim that the judgment was in an unconscionable amount). Willette v. Umhoeffer, Me., 268 A.2d 617, 619 (1970). This rule is applied even though the unasserted ground is jurisdictional. Id.

We turn now to the other grounds upon which the Defendant Burns urges he is entitled to relief from this judgment, namely mistake, inadvertence, surprise or excusable neglect in the granting of said judgment.

At oral argument this Defendant took the position that his attorney's action was due to mistake, and not due to neglect, thus avoiding, as he saw it, the task of persuading the Court that it was excusable neglect.

His attempt to draw this distinction misses an important point. Whether it is a case of mistake or a case of neglect, the movant under M.R.Civ.P. 60(b) must make some showing of why he was justified in failing to avoid the mistake or the inadvertence. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2858, p. 170 (1973). ³ In the case at bar such justification would be tantamount to a showing by this Defendant that his attorney's mistake was excusable.

A motion for relief from judgment, such as this, was addressed to the sound discretion of the Superior Court. Its denial of the motion for such relief is reviewable by this Court only for abuse of discretion. Ingham v. Tzikas, Me., 320 A.2d 665, 667 (1974); Warren v. Waterville Urban Renewal Authority, Me., 290 A.2d 362, 365 (1972). A party seeking such relief from judgment had the burden of presenting competent evidence from which the court in the exercise of sound judicial discretion could conclude that the judgment was entered under circumstances which M.R.Civ.P. 60(b)(1) recognizes as justifying vacation of the...