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McGee v. McGee3/12/1999
is also undisputably present. The grant or denial of a Rule 60(b) motion is a final judgment, despite a pending appeal. Therefore, entry of Rule 60(b) relief was a final judgment.
The critical question is whether the Rule 60(b) motion and the tort action addressed identical issues. By filing her Rule 60(b) motion, Debra re-opened the property distribution agreement and litigated the question of her right to the quota shares. But the issue of whether Ken intentionally misrepresented his ownership of the boat was not litigated or decided in the Rule 60(b) proceeding. The superior court predicated Rule 60(b) relief solely on the property settlement, rather than on Ken's alleged misconduct.
We therefore conclude that Debra is collaterally estopped from re-litigating her right to the quota shares, but that it was error to dismiss her entire tort action. Still outstanding is the issue of whether Ken's conduct was sufficiently outrageous to permit punitive damages; if it was, the amount of any punitive damages award is also in issue. We reverse and remand for further proceedings.
4. Attorney's fees
Because we have reversed the dismissal of Debra's tort suit, and because Debra is precluded from relitigating only one issue -- her right to the quota shares -- in the tort suit, Ken is no longer the prevailing party in the tort suit. It is therefore necessary to vacate Ken's attorney's fees award.
IV. CONCLUSION
Because the superior court properly granted Debra's Rule 60(b)(6) motion, we AFFIRM in Case No. S-7966.
Because the Rule 60(b) proceeding resolved only one issue -- Debra's entitlement to the quota shares -- raised in the tort suit, we REVERSE the judgment in Case No. S-7965, VACATE the attorney's fees award, and REMAND for further proceedings.
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