D. Warren Justice, Superior Court.
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,
appealed from that judgment, which was affirmed by the Law
Court on May 3, 2018. Decision No. Mem. 18-38, Docket No.
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.
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.
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.
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).
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.
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.
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).
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.
entry shall be:
Rule 60(b) motion for relief from the judgment entered on
September 8, 2017 is denied. The clerk shall incorporate this