Rill v. State, Department of Highways

OPINION

PER CURIAM.

The single issue presented in this appeal is whether the superior court abused its discretion in denying the plaintiffs’ Civil Rule 60(b) motion to set aside the judgment entered in this action. For the reasons set forth below, we conclude that the court did not abuse its discretion and we accordingly affirm the judgment.

In 1971, the state constructed a portion of the Funny River Road across the property of the plaintiffs, Lynn and Evelyn Rill. The Rills eventually sued the state for inverse condemnation. A settlement conference was scheduled for October 5,1981, and, in the event that did not resolve the case, trial was set for November 12, 1981.

Irwin Ravin, attorney for the Rills, suffered excruciating back pains on October 1, 1981, resulting from a ruptured interverte-bral disc. He decided to seek medical treatment in Canada for his condition. Nonetheless, Ravin participated in the settlement conference on October 5. No settlement *575was reached. Ravin did not inform the court of his illness and stated that he would be ready to proceed to trial on November 12. By that date, he had left for Canada and did not return until November 14.

On November 12, the state appeared before the court, ready for trial. Ravin did not appear and had not contacted the court to request a continuance. His clients also did not appear. Lynn Rill was working on the North Slope at that time, and Evelyn Rill was en route from Georgia to Fairbanks. They had contacted Ravin in October and had been assured that he would represent them at the trial.

The only issue to be litigated at trial was the value of the property taken from the Rills by the state. The state was prepared to offer expert testimony as to the value of the property. The superior court decided to proceed with the trial and received this testimony. Based upon the evidence presented, a judgment was subsequently entered awarding the Rills $1,350.00 plus interest as compensation for the taking of their property.

In late November or early December, the Rills contacted another law firm, the Law Offices of Mark C. Choate. The Rills asked Choate to contact the state and determine what had happened at the trial because they had been unable to reach Ravin. Choate discovered that Ravin had not appeared at the trial. He advised the Rills on December 2,1981, to contact Ravin immediately and have him seek relief from the judgment under Civil Rule 60(b). Ravin could not be or was not contacted until sometime in March 1982. At that time, Choate substituted as counsel for the Rills and reviewed their file. Choate finally filed a motion for relief from judgment on May 5, 1982.

On September 3, 1982, the superior court denied the Rills’ motion for relief from judgment. From this decision, the Rills appeal.

The Rills contend that the judgment entered for them should be set aside pursuant to Civil Rule 60(b). This rule provides in part as follows:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.

In their motion filed with the superior court, the Rills argued that the judgment should be set aside because Ravin’s failure to appear at trial constituted “mistake, inadvertence, surprise or excusable neglect.” They submitted an affidavit by Ravin, in which he stated that his failure to appear was excusable neglect because his excruciating back pains prevented him from preparing for the trial or arranging for a continuance of the trial.

The superior court denied the Rills’ motion for two reasons. First, it concluded that Ravin’s failure to appear was not the result of a mistake, inadvertence, surprise or excusable neglect. Second, it concluded that the motion had not been brought within a reasonable time following the entry of the judgment.

As we have stated in the past, the grant or denial of a motion brought under *576Civil Rule 60(b) is within the discretion of the court. We will not reverse a decision unless we are left with the firm and definite conviction on the whole record that the court was mistaken. Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980). In this case, we are not left with such a conviction.

There is no evidence suggesting that Ra-vin’s failure to appear at the trial was the result of mistake, inadvertence or surprise. As indicated, Ravin asserts that his failure was the result of excusable neglect. Ra-vin’s illness began on October 1, 1981. Nonetheless, he was able to and did participate in the settlement conference held on October 5, 1981. It would have been prudent of Ravin to have informed the court of his condition at that time. Rather than doing so, Ravin instead assured the court that he would be ready to proceed to trial on November 12, 1981. Upon giving this assurance, Ravin left the country for medical treatment and did not return until two days after the trial. He failed to advise the court or his clients before the trial of his departure. Furthermore, upon his recovery of good health and return to the state, he still did not contact his clients or the court.

On the facts presented in his affidavit, we agree with Ravin that his conduct was neglectful. Civil Rule 60(b)(1), however, only authorizes the court to relieve a party from a judgment entered by the excusable neglect of a party or his agent.1 Obviously, not all forms of neglect are excusable. We are not left with the firm and definite conviction that the superior court erred in concluding that Ravin’s neglect was inexcusable. We do not mean to imply that an attorney’s sudden illness cannot justify setting aside a judgment that was entered as a result of the illness. See Bibeau v. Northeast Airlines, Inc., 429 F.2d 212 (D.C.Cir.1970). What makes Ravin’s conduct inexcusable in this case is that he clearly had the time and ability to contact either the court or his clients and make adequate arrangements for the trial that was scheduled to take place forty-three days after the onset of his condition. An attorney’s failure to act responsibly toward his or her clients when the attorney reasonably could be expected to do so constitutes inexcusable neglect. See, e.g., Ben Sager Chemicals International, Inc. v. E. Targosz Co., 560 F.2d 805 (7th Cir.1977); Tubman v. Olympia Oil Corp., 276 F.2d 581 (2d Cir.1960); Greene v. Pyatt, 78 F.R.D. 362 (E.D.N.Y.1978). Inasmuch as we agree with the superior court’s determination that the Rills’ motion under Civil Rule 60(b)(1) was without merit, we need not consider whether the superior court was also correct in concluding that the motion was not filed within a reasonable time as required by Rule 60(b).

The Rills argue for the first time on appeal that the judgment entered for them should be set aside under Civil Rule 60(b)(6), which authorizes the court to relieve a party from a final judgment for “any other reason justifying relief.” This argument was not raised in the superior court, and the court’s failure to consider it does not amount to “plain error.” Accordingly, we are unable to address the issue. Burford v. State, 515 P.2d 382, 383 & n. 2 (Alaska 1973); Moran v. Holman, 501 P.2d 769, 770 & n. 1 (Alaska 1972); Lumbermens *577Mutual Casualty Co. v. Continental Casualty Co., 387 P.2d 104, 109 (Alaska 1963).

The judgment of the superior court is therefore AFFIRMED.

. This point is apparently overlooked by Justice Rabinowitz in his dissenting opinion. He suggests that the “blameworthiness” of an attorney should not be determinative. 669 P. 2d at 577. To the contrary, an attorney acts as his or her client’s agent and, to the same extent that a judgment cannot be set aside under Civil Rule 60(b)(1) unless the client’s alleged negligence is excusable, a judgment cannot be set aside because of the neglect of the client’s attorney unless that neglect is excusable. This rule, however, does not necessarily leave the client without a remedy. See Pew v. Foster, 660 P.2d 447, 449 n. 1 (Alaska 1983) (Burke, Chief Justice, dissenting).

The arguments raised by Justice Rabinowitz in his dissent relate much more to Civil Rule 60(b)(6), which permits a judgment to be set aside for “any other reason justifying relief,” than they relate to “excusable neglect” under Civil Rule 60(b)(1). As explained below, the issue of relief under Rule 60(b)(6) is not properly before this court. Accordingly, it is unnecessary for us to set forth our disagreements with Justice Rabinowitz’s analysis.