Decisions – Ct. App. – March 4, 2014

A few criminal cases (mostly denials of PCRs) and one civil case today.  The civil case is instructive on a few civil procedure issues. 

Ice Plant v. Grace – This case started out as an MVA.  Grace was injured in an accident with an 18-wheeler driven by Allan Walker and owned by Ice Plant.  Grace sued Walker and Ice Plant. When neither defendant answered the complaint, Grace was awarded default judgments against both.On November 22, 2011, the trial court awarded $350,000 in damages at a hearing.  A month later, the defendants moved pursuant to M.R.C.P. 60(b) to set the default judgments aside.  The trial court granted the motion to set aside the judgment against Walker because Walker was not personally served.  Rather, his employer was served with the summons and complaint for Walker.  The court refused to set aside the verdict against Ice Plant and Ice Plant appealed.

The Ct. of Appeals, en banc, affirmed the denial of the motion to set aside.  First the Court cites the familiar rule that the denial of Rule 60(b) motions are reviewed for abuse of discretion and found no such abuse here. Ice Plant argued that with the default against Walker set aside, any future litigation against Walker might result in inconsistent verdicts.  Since Ice Plant, though, was responsible for Walker’s negligence in respondeat superior, there was no reason for Grace to pursue Walker. Ice Plant also complained that there was no hearing on the damages award.  As it turned out, though, there was a hearing and Ice Plant neglected to ask to have it transcribed even though, as the Appellant, it would have had the duty to do so.  Grace ended up supplying the transcript and the Court held that the damages seemed reasonable and since Ice Plant never challenged the damages award, it was precluded from doing so on appeal.   

Evans v. State – Seventeen-year-old Evans was convicted of accessory before the fact of sexual battery involving her eight-year-old cousin Glenda.  Evans was sentenced to 25 years with 5 suspended. The abuse was discovered when Glenda  was found to be suffering from trichomonas.  Glenda then reported that Evans’ 27-year-old boyfriend had performed oral sex on her  as directed by Evans.   On appeal, Evans raised sufficiency and weight of the evidence, and that the trial court erred in telling Evans’ counsel to sit down prior to his having finished given his closing argument.  The Court of Appeals noted that the order to sit down was issued only after the court told defense counsel five times not to argue matters outside the record.  The Court observed that prior to closing argument, the trial court warned defense counsel not to do this because he had a habit of referring to matters outside of evidence.  Nevertheless, defense counsel argued that Glenda may have resented Evans.  “And it didn’t come out on the stand so I can’t really talk about it . . . but Dillan (Evans’ grandmother) said [Evans] once told her ‘you don’t really know anything about [Glenda].”  Later defense counsel argued that there were not more exhibits for the jury to review since the State did not call everyone on its witness list.   And after that defense counsel stated that Evans’ boyfriend was never prosecuted for forcible sex on Evans.  At trial, defense counsel did not object to the trial court’s shutting him down a few minutes short of the 30 minutes he was allotted  and certainly made no proffer as to what he would have said.  

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