The opinion
Mig-nosa v. Poirier, CV-I0-195 (Superior Ct. Cumberland)
Before the court is defendants' motion pursuant to Rule 60(b) for relief from the
default judgment entered on October 25, 2010. Defendants argue that they should be
granted the relief they are seeking pursuant to Rules 60(b)(l) (excusable neglect),
60(b)(3) (misrepresentation), and 60(b)(6) (other reasons justifying relief).
In order to prevail on the basis of excusable neglect, the defendants must show
(1) a reasonable cause for their inattention to court proceedings and (2) a meritorious
defense to the underlying action. Ezell v. Lawless, 2008 ME 139 CJ[ 22,955 A.2d 202, 207.
Parties who are not represented by counsel are not afforded any special consideration.
Id. The "excusable neglect" standard in Rule 60(b)(1) is a higher standard than the
standard for setting aside a default under Rule 55(c). Butler v. D!Wave Seafood, 2002
ME 41 CJ[ 17, 791 A.2d 928, 932.
In this case the complaint was filed on April 29, 2010. After an ex parte motion
for attachment was denied, defendants were served on May 12,2010. No answers were
filed and plaintiffs filed a request for the entry of default on July 22, 2010. That request
was accompanied by an affidavit by plaintiff's counsel, John Campbell, stating that he
had spoken to defendant Poirier, that Poirier acknowledged he had been served, and
that Poirier had not requested any extension of time to respond. The clerk's office
entered defaults on July 22,2010, the same date that plaintiff's request was filed.
Subsequently, on October I, 2010 plaintiff filed a motion for a default judgment
including affidavits detailing his damages. One of those affidavits was signed by
plaintiff Anthony Mignosa stating, inter alia, that defendants had abandoned the job.
Mignosa Aff. CJ[ 7. On October 25, 2010 the court granted the motion and entered a
default judgment against both defendants in the amount of $110,700.
The basis of defendants' motion for relief from the judgment is an affidavit from
defendant Poirier which sets forth certain facts, not previously before the court, with
respect to the dealings between the parties after suit was filed. Specifically, Poirier states
that when he spoke to attorney Campbell in early June, after he had been served with
the summons and complaint, he had informed Campbell that he was ready, willing, and
able to complete the work on the house. His affidavit further states that he thereafter
met at the job site with Joseph Brown, a client of attorney Campbell who Poirier
understood to be acting as a site representative, to discuss progress on the project.
Finally, he states in his affidavit that his work crew performed significant work on the
project in July 2010 and that he thereafter contacted Mignosa without success to get
further guidance and obtain permission to perform additional work.
Plaintiff has responded to the Rule 60(b) motion with an affidavit from attorney
Campbell, which states that in his June 2010 conversation with Poirier he had expressed
skepticism as to Poirier's good faith and that he had never suggested or intimated that
he would delay or put off further action in the lawsuit. Campbell acknowledges,
however, that there were discussions with respect to Poirier's resumption of work, that
Campbell had in fact requested a written proposal from Poirier for completion of the
job, and that Campbell had also requested that Brown, one of his clients who is in the
excavating business, meet with Poirier to assess Poirier's proposal to complete the
work. 1 Campbell does not dispute that Poirier thereafter worked at the job site during
the summer of 2010 but states that Brown advised him that Poirier had done very little
of the additional work that he had proposed to perform. Campbell states that, as far as
he knows, Poirier was never prevented from entering the property to complete the job.
The court accepts attorney Campbell's evidence as to his discussion with Poirier
in June 2010. However, it is undisputed that the discussion concerned whether Poirier
could finish the job, that Campbell solicited from Poirier a written proposal to that
effect, that Poirier's discussions with Campbell then led to meetings with Brown at the
job site,2 and that Poirier thereafter performed additional work at the site in July
although whether the amount of that work was "significant" is disputed. No evidence
has been offered that Poirier was ever told in June or July (1) that, notwithstanding
Poirier's further efforts, plaintiff intended to proceed with the lawsuit or (2) that
plaintiff had concluded that Poirier's additional work was unsatisfactory or (3) that
plaintiff had concluded that Poirier had failed to follow through with his proposal to
complete the work. If anyone of those messages had been communicated, the court
would be inclined to conclude that Poirier had failed to show a reasonable excuse for
his failure to respond to the lawsuit.
Poirier has instead shown that, notwithstanding the filing of the complaint, he
was asked to submit a proposal to complete the job, that he submitted such a proposal,
and that the proposal led to meetings at the job site and the performance of additional
work. Poirier therefore had reason to believe that Mignosa was prepared to allow him
to resolve the case instead of proceeding with the lawsuit. Poirier has also shown that
Mignosa's representatives never disabused him of that belief before plaintiff went
ahead and obtained the entry of a default and a default judgment. Under those
circumstances, although this is a close case, the court finds that Poirier has shown a
reasonable excuse for his inattention to the lawsuit under Rule 60(b)(1).
In reaching this result, the court is mindful of the strong preference in Maine law
for deciding cases on their merits. Thomas v. Thompson, 653 A.2d 417, 420 (Me. 1995);
Wescott v. Allstate Insurance Co., 397 A.2d 156, 163 (Me. 1979); Millet v. Dumais, 365
A.2d 1038, 1040 (Me. 1976), quoting Field McKusick & Wroth, Maine Civil Practice §
55.4 at 21-22 ("substantial rights should not be determined by default if that procedure
can reasonably be avoided and no substantial prejudice has resulted"). See Gill v.
Stolow, 240 F.2d 669,670 (2d Cir. 1957).
1 The conversation between Poirier and Campbell appears to have occurred after the time for
Poirier to answer had expired. However, Poirier was not told that he was already in default or
that Campbell intended to proceed with the lawsuit. It was reasonable for Poirier to assume that
the outcome of his discussions with respect to completing the work would affect whether the
lawsuit would proceed.
2 Campbell disagrees that Brown was a "site representative" but whether or not Brown
deserved that title, it is not disputed that Brown was acting on behalf of plaintiff and attorney
Campbell when Brown met with Poirier at the job site to discuss and evaluate the progress of
the work.
2
One other point should be addressed in this connection. Poirier has cited
authority from other jurisdictions to the effect that where counsel for plaintiff is in
communication with a party who is in default, some warning should be given before
the entry of a default or a default judgment is sought. While this might be generally
advisable as a matter of fairness and courtesy, the court is not inclined to rule that such
warnings are uniformly required. What must be evaluated, based on the specific facts of
a given case, is whether, regardless of whether there was a specific intent to lull the
defaulting party into inaction, the interaction between the parties could reasonably have
had that effect.
The remaining issue under Rule 60(b)(l) is whether Poirier has demonstrated a
potentially meritorious defense. On that issue, a party need not demonstrate that it will
necessarily prevail on the merits but must only set forth facts which if proven at trial
would constitute a viable defense. See Hart v. Terry L. Hopkins Inc., 588 A.2d 1187,
1190 (Me. 1991); Coon v. Grenier, 867 F.2d 73, 77 (lst Cir. 1989).3
In this case the evidence offered by plaintiff in opposition to defendants' Rule
60(b) motion indicates that it may be highly unlikely that defendants will ultimately
prevail. However, the facts set forth in Poirier's affidavit would, if proven at trial,
constitute a defense to some or all of plaintiff's claims. In particular, his affidavit offers
facts that if proven at trial would lead to a conclusion that Mignosa bore some or all of
the responsibility for the seemingly inordinate delays in completing the contract.
Moreover, there appears to be a defense to Mignosa's claims under the Home
Construction Contract Act because that statute is directed to contracting requirements
and does not necessarily provide relief just because a home construction contract which
meets the legal requirements of the statute is thereafter breached.
Because defendants are entitled to relief under Rule 60(b)(l), the court does not
need to reach their arguments under Rules 60(b)(3) and 60(b)(6). Defendants shall file
their answer to the complaint within 14 days, and the court would entertain a motion
by plaintiff to shorten the discovery schedule if counsel for plaintiff believes a shorter
schedule would be warranted.
The entry shall be:
Defendants' motion for relief from the judgment entered in this case on October
25, 2010 is granted and that judgment is vacated. The Clerk is directed to incorporate
this order in the docket by reference pursuant to Rule 79(a).
Dated: March 2- ~ 201'I
~
Thomas D. Warren
Justice, Superior Court
3 Hart v. Terry L. Hopkins Inc. was decided under Rule 55(c) rather than Rule 60(b). However,
the Hart decision has been cited by the Law Court in a decision interpreting Rule 60(b) as
authority for the necessity to show a "meritorious defense". See Interstate Food Processing
Corp. v. Pellerito Foods Inc., 622 A.2d 1189, 1193 (Me. 1993)
3
ANTHONY MIGNOSA VS JOEL POIRIER ET AL
UTN:AOCSsr -2010-0042954 CASE #:PORSC-CV-2010-00195
01 0000000185 BOWIE, JAMES M
THREE CANAL PLAZA PO BOX 4630 PORTLAND ME 04112-4630
F JOEL POIRIER DEF RTND 12/13/2010
F POIRIER CONSTRUCTION COMPANY INC DEF RTND 12/13/2010
02 000000230 0 . :;.C.:. ;AM.:. . :-P..; ;,B. ; ;,E. ; ;,L. ; ;,L-<-,----"-J..; ;.O=H=N---:: . S _
75 MARKET STREET PO BOX 369 PORTLAND ME 04112-0369
F ANTHONY MIGNOSA ~P..;;;,L _