STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKETNO. AP-22-11
ROBERT HACK, Plaintiff/ Appellee


### v. DECISION AND ORDER LOWE'S HOME IMPROVEMENT CENTER, LLC, Defendant/Appellant The matterbefore the court is defendant/appellant Lowe's Home Improvement Center, LLC's ("Lowes") appeal ofthe denial ofa District Court 

### (Ham-Thompson, J.) order denying a motion for relieffromjudgmentpursuantto M.R. Civ. P. 60(b). Argument onthe appeal was heard March 1, 2023. M.R.S.C.P. 9 provides "[o]n the written request ofa party setting forth reasons showing good cause, the court may, with orwithout hearing, correct, or relieve a patty from, the effect of
ajudgment in accordance with Rule 60 ofthe Maine Rules ofCivil Procedure." The Law Court has held thatM.R.S.C.P. 9 incorporates M.R. Civ. P. 60(b) and is decided on an excusable neglect standard. 

### See Thomas v. BFCMarine/Bath Fuel Co., 2004 ME 27,

## ,r 12,834 A.2d 3; 

### Taylorv. Walker,20I7ME2l8,

## ,r 10,173 A.3d 539. The case was initially set for a final hearing on June 15, 2022. (Order on Def.'s Mot. for Relieffrom 

### J. !.) The clerkprepared a notice ofhearing onMay 9, 2022, which was sent to the patties' addresses on record. (Id.) On June 15, the parties attended mediation and were unable to resolve the case. (Id.) The District Court continued the matter to July 26, 2022. (Id.) On July 26, the parties appeared, though not all parties were physically present, and agreed to continue the

1matter to a later date whenthe parties could all appear in-person. (Id.) The clerk prepared a notice ofhearing on July 28, 2022 and sent it to the parties at their addresses ofrecord once
more. The District Court held a final hearing in this matter on August 23, 2022. Lowes did not appear at this hearing, so the District Court enteredjudgmentfor Mr. Hack. Lowes moved to set aside thejudgmentpursuantto M.R. Civ. P. 60(b). Lowes's only
excuse for not appearing at the August 23 hearing was that counsel did not receive advance notice ofthe hearing. This claim was supported only by an affidavit from Lowes's attorney averring the same. (See Edwards Aff.) The District Court denied the motion, noting thatthe court sent the notice to the same address ofrecord that ithad for previous hearings and had no indication that the notice was not received. (Order on Def.'sMot. for Relieffrom J. 2.) Previous notices sentto the same address had reached Lowes's counsel. (Id.) It is well-established that the appellate court reviews a denial ofa Rule 60(b) motion for abuse ofdiscretion. Marks v. Marks, 2021 ME 55,**~** 14,262 A.3d 1135. A review for abuse of discretion requires the court to resolve three questions: "(l) are factual findings, ifany, supported by the record according to the clear error standard; (2) did the courtunderstand the law applicable to its exercise ofdiscretion; and (3) given all the facts and applying the appropriate law, was the court's weighing ofthe applicable facts and choices within the bounds of reasonableness." Id.**~** 15 (quoting Haskell v. Haskell, 2017 ME 91,**~** 12, 160 A.3d 1176). Lowes argues thatthe undisputed facts indicate that Lowes never received notice ofthe August 23 hearing. The District Court found thatLowes had been sent notice ofthe hearing to its address ofrecord and had appeared twice before when sent notice to the same address. This was based on the District Court's ownknowledge ofthe proceedings. The District Court also noted that it did not receive any indication that the notice did not reach Lowes's address. The District

2Court did not abuse its discretion by concluding from these facts that Lowes had received the notice and simply failed to appear. Lowes also highlights a comment made by the District Court that suggests Lowes should have known a hearing was coming and followed up with the District Court ifno notice came. Lowes con-ectly notes that there is no obligation in the Rules ofSmall Claims Procedure 1 requiring a party to stay in contact with the District Court to receive notice. That said, the District Court did not abuse its discretion by finding that a notice hadbeen sentto Lowes and
was under no obligationto credit counsel's affidavitthathe had never received it. The District Court had sufficientbasis for denying the motionthatthis comment does not require a finding of abuse ofdiscretion. The entry is Thejudgment ofthe District Comtis hereby AFFIRMED. The Clerk is directed to enterthis order into the docketby reference pursuantto M.R.Civ.P. 79(a). 

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Date: March 

# 8 ,2023 /~ , Harold Stewart, II Justice, Superior Court

1 Lowes actually cites the Maine Rules ofCivil Procedure, butthe Maine Rules ofSmall Claims Procedure do not have any such requirements either. 3