Scott v. Lipman & Katz, P.A.

• Decision Date: 26 October 1994
• Citation: 648 A.2d 969
• Parties: Susan SCOTT, et al. v. LIPMAN & KATZ, P.A., et al.
• Court: Maine Supreme Court

Page 969

648 A.2d 969

Susan SCOTT, et al. v. LIPMAN & KATZ, P.A., et al.

Supreme Judicial Court of Maine.

Argued June 14, 1994.

Decided Oct. 26, 1994.

Thomas F. Hallett (orally), Janet M. Kantz, Portland, for plaintiffs.

Jack H. Simmons (orally), Valerie Stanfill, Berman & Simmons, P.A., Lewiston, for defendants.

Before ROBERTS, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

LIPEZ, Justice.

Susan and Roscoe Scott (the "Scotts"), individually and on behalf of their minor child, appeal from the Superior Court's (Knox County, Chandler, J.) denial of their motion for relief from its order approving an infant settlement and attorney fees. M.R.Civ.P. 60(b). Lipman and Katz, P.A., ("Lipman") argues 1) that the appeal is untimely, 2) that the Rule 60(b) motion was untimely, and 3) that the trial court did not err in denying the Scotts' Rule 60(b) motion. We vacate the orders of the trial court denying 60(b) relief and approving the attorney fees.

Background

The Scotts consulted Lipman concerning the possibility of bringing suit on behalf of their child who has a withered, underdeveloped right arm as a result of an injury at birth. After that consultation the Scotts and Lipman executed a contingent fee agreement which provided that the fee could not exceed 40% of the amount collected in a suit against the physician who delivered the child. This agreement referred to, and reprinted verbatim, 24 M.R.S.A. § 2961 (1990). ¹ Although the Scotts concede that they reviewed the agreement prior to signing it, they claim that Lipman did not explain it to them. Lipman, on the other hand, testified that he explained the fee agreement to them, that they reviewed it, and that he answered any questions they had concerning the agreement.

Lipman's representation consisted of preparing a settlement brochure that included an index and preliminary statement, the child's medical records, and an economic analysis prepared by an expert obtained by Lipman; filing a notice of claim; and negotiating with the physician's malpractice insurer. The case was settled prior to a panel hearing and prior to discovery when the Scotts accepted the insurer's offer to pay the physician's policy limit of $500,000. Lipman's total disbursements were $1,238.65. Although all parties recognized that the fee agreement provided for a fee of up to 40%, Lipman told the Scotts that he would seek fees of one-third of the gross settlement.

Lipman and the Scotts signed a motion to allow the one-third fee and a motion to approve the settlement. Following a one-half hour meeting at the Waldo County Courthouse in Belfast, at which Lipman explained the case and asked for a one-third fee, the trial court (Chandler, J.) approved the settlement and the fee. The Scotts were not present at this meeting. Lipman testified that, at this meeting, he did not provide the court with a calculation of the fee allowable under 24 M.R.S.A. § 2961(1) ² and that he did not specifically go through each factor set forth in M. Bar R. 3.3(a).

After consulting with another attorney, the Scotts filed a Rule 60(b) motion for relief from the trial court's order. The court (Chandler, J.) denied that motion after a hearing. The Scotts filed a motion for findings of fact and conclusions of law, and a motion for reconsideration, both of which were denied. The Scotts then filed a notice of appeal to this Court. Lipman has filed a motion to dismiss the appeal.

Timeliness of the Appeal

The notice of appeal was filed more than 30 days after all of the trial court's rulings on the Rule 60(b) motion except the denial of a motion for reconsideration of the 60(b) denial. Lipman argues that the appeal is untimely since the notice of appeal was neither filed within 30 days from the entry of judgment nor filed within 30 days from the denial of any motion that tolls the 30 day period. He argues that the motion for reconsideration did not toll the running of the 30 day period of M.R.Civ.P. 73(a) ³ since the civil rules do not provide for a motion for reconsideration to the Superior Court and since Rule 73(a) does not list a motion for reconsideration as a motion which tolls the 30 day period.

Although the Maine Rules of Civil Procedure do not provide specifically for a motion for reconsideration to the Superior Court, we have previously held that such motions should be treated as motions made to alter or amend a judgment pursuant to M.R.Civ.P. 59(e). Anderson v. Willey, 514 A.2d 807, 809 (Me.1986); Dongo v. Banks, 399 A.2d 574, 575 (Me.1979). Since the Scotts' motion for reconsideration was filed within 10 days of the denial of their Rule 60(b) motion, and since the notice of appeal was filed within 30 days of the denial of their motion for reconsideration, we conclude that the Scotts' appeal is timely. M.R.Civ.P. 59(e), 73(a).

Timeliness of the Rule 60(b) Motion

The Scotts filed the Rule 60(b) motion with the trial court 364 days after the court approved the settlement and attorney fees. ⁴ Lipman argues that the Rule 60(b) motion was not brought within a "reasonable time" considering the circumstances, and thus the trial court correctly denied it. The trial court found that the Rule 60(b) motion was timely filed. We review this decision for an abuse of discretion. Small v. D'Ambra Mercantile Enterprises, 583 A.2d 1031, 1032 (Me.1990). We find no abuse of discretion in the trial court's decision on the timeliness of the 60(b) motion.

Rule 60(b) Motion

We review a trial court's denial of a Rule 60(b) motion for clear error or an abuse of discretion. Fleet Bank of Maine v. Hunnewell, 633 A.2d 853, 854 (Me.1993); Wood v. Wood, 602 A.2d 672, 674 (Me.1992). The supporting papers that must accompany any motion or application to approve a settlement of the claims of an infant are detailed in M.R.Civ.P. 17A(b). ⁵ Specifically, Rule 17A(b)(1) requires the submission of an affidavit or verified application "stating that the movant or plaintiff was informed of the right to attend the hearing upon the motion or application and that the right to attend a hearing is waived, where court action without hearing is sought[.]" The affidavit must indicate that the movant or plaintiff was informed of the right to attend the hearing before the court. If the affidavit further indicates that the movant or plaintiff seeks court action without a hearing, the affidavit must include the movant's or plaintiff's waiver of the right to attend a hearing. ⁶

In this case, the Scotts did not accompany Lipman when he met with the court prior to the approval of the settlement and fee. The record indicates that no affidavit or verified application was filed indicating that the Scotts were informed of their right to attend any hearing. In fact, Lipman testified at the Rule 60(b) hearing that he never discussed with Mrs. Scott her attendance at any hearing:

Q: Why didn't you want Mrs. Scott to come and talk to the judge?

[Lipman]: She never asked if she could come talk to the judge. She never asked if she could be present at a hearing.... I never told her she couldn't come to a hearing. We never even had any such discussion about her attending a hearing. ⁷

This testimony confirms what the record discloses--the Scotts never executed the affidavit or verified application required by M.R.Civ.P. 17A(b)(1) relating to the movant or plaintiff being informed of the right to attend a hearing. Although a motion to approve attorney fees was signed by the Scotts, the filing of such motion in no way diminishes the necessity for complying with the verified application and affidavit requirements of Rule 17A relating to a hearing where the attorney fees could be discussed. Therefore, the court's finding in the Rule 17A order that "the requirements of the Maine Rules of Civil Procedure 17A have been satisfied" was clearly erroneous.

The absence of the Rule 17A(b)(1) affidavit was neither considered by the trial court at the 60(b) hearing, briefed by the parties initially, nor argued at oral argument before this Court. ⁸ Generally, issues that are not briefed by the parties and raised at oral argument are not considered on appeal. E.g., Chadwick-BaRoss, Inc. v. Martin Marietta Corp., 483 A.2d 711, 717 (Me.1984). Likewise, issues raised for the first time on appeal are generally unpreserved. E.g., Bakala v. Town of Stonington, 647 A.2d 85, 88 (Me.1994). However, this case presents an appropriate situation for departure from these general rules. First, we are applying a court rule which requires no fact finding. The error is apparent on the face of the record. See Franklin Property Trust v. Foresite, Inc., 438 A.2d 218, 221 (Me.1981); August Realty v. Inhabitants of Town of York, 431 A.2d 1289, 1290 (Me.1981); cf. Unit B. Kittery Teachers Ass'n v. Kittery Sch. Comm., 413 A.2d 534, 537 (Me.1980). Second, the courts have a special responsibility in Rule 17A proceedings to ensure that the interests of an infant are adequately protected. See M.R.Civ.P. 17A advisory committee's note to 1966 amend., R. Field, V. McKusick & K. Wroth, Maine Civil Practice 168 (2d ed. Supp.1981) ("[Rule 17A] is adopted out of a concern on the part of both the courts and the practicing bar for the protection of the rights of injured minors and for the avoidance of any appearance of impropriety on the part of the legal profession or laxness on the part of the judiciary"). Therefore, we will consider this affidavit issue as part of the appeal from the denial of the Rule 60(b) motion.

"To grant relief from a judgment pursuant to Rule 60(b)(6) there must be a showing of injustice in the original judgment." Moulton v. Brown, 627 A.2d 521, 523 (Me.1993) (citations omitted); e.g., Merrill v. Merrill, 449 A.2d 1120, 1125 (Me.1982). We are also mindful that "Rule 60(b) is not intended as an alternative method of appeal." Kolmosky v. Kolmosky, 631 A.2d 419, 421 (Me.1993) (citations omitted); e.g., Fleet Bank of Maine, 633 A.2d at 854. In Reville v. Reville, 370 A.2d 249, 253-54 (Me.1977) (...