Kutz v. Independent Publishing Co.

686 P.2d 277, 101 N.M. 587
CourtNew Mexico Court of Appeals
DecidedJuly 26, 1984
Docket7385
StatusPublished
Cited by6 cases

This text of 686 P.2d 277 (Kutz v. Independent Publishing Co.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kutz v. Independent Publishing Co., 686 P.2d 277, 101 N.M. 587 (N.M. Ct. App. 1984).

Opinion

OPINION

NEAL, Judge.

Plaintiff brought suit for libel against the defendants. A default judgment was entered, and then on motion of the defendants, the default was set aside. The court reinstated the default when defendants failed to comply with the terms of the order setting aside the default. Defendants appeal.

The case has an extensive procedural history. The complaint was filed June 2, 1980, and the defendants were served on June 3, 1980. The defendants filed a motion to dismiss for failure to state a claim which was granted. The plaintiffs appealed to this court which reversed the trial court and returned jurisdiction of the case to the trial court on January 20, 1982. See Kutz v. Independent Publishing Co., 97 N.M. 243, 638 P.2d 1088 (Ct.App.1981).

On February 26, 1982, thirty-five days after the court of appeals mandate, plaintiff filed a motion for default judgment as defendants had not answered or filed a responsive pleading within the thirty-day limit of the New Mexico Rules of Civil Procedure. That motion was denied by an order dated May 17, 1982.

Plaintiff propounded requested admissions of fact to defendants on April 3, 1982. On August 16, 1982, the plaintiff moved for summary judgment based on NMSA 1978, Civ.P.Rule 36 (Repl.Pamp.1980) that all matters not objected to or denied within thirty days after service of the request are admitted unless denied, and therefore the admissions disposed of all issues of material fact. The defendants then filed answers or objections to the request on August 31, 1982.

By its order of September 13, 1982, the court denied the motion, stating that the response filed April 31 (but apparently meaning August 31) would not prejudice the plaintiff and would serve the presentation of the cause on the merits. In the same order the court granted the motion of defendants’ counsel to withdraw, and directed the defendants to obtain new counsel by October 9, 1982. The court also ordered the defendants to pay $800.00 in attorney’s fees to plaintiff “on or about November 9, 1982, under penalty of appropriate sanctions.”

On November 16, 1982, after defendants failed to pay the attorney’s fees, the plaintiff filed a motion for order to show cause why the defendants should not be held in contempt for failure to comply with the September 13 order. The defendants’ response, filed the same date by the defendants, pro se, states that the defendants had never heard of the order or the requirement to pay the attorney’s fees, despite the fact that the order had been approved as to form by their attorneys, and referred to plaintiff’s attorney as an “alleged attorney.” The court issued an order to show cause in which the court ordered the defendants to appear on December 6, to show cause why they should not be held in contempt. The record does not contain any information regarding the outcome of the hearing.

A pretrial conference was scheduled for April 4, 1983. The defendants failed to attend. They had also failed to obtain counsel, despite being informed orally by the court that the corporate defendant could not proceed without counsel. The court had ordered that they be represented by April 4, 1983. The plaintiff moved for a default judgment on that date. The court found “[tjhat the continuous failure of the Defendants to appear for scheduled hearings and their failure to comply with the directions of this Court justify the entry of a Default Judgment against them.” The judgment was in the amount of $2,500.00.

The defendants then filed a motion to set aside the default judgment on April 25, 1983, having obtained counsel. The court issued an order setting aside default judgment on May 20, 1983. The order also contained the following specific conditions:

1. The court ordered that counsel for the defendants would not be allowed to withdraw under any circumstances;

2. that one of the defendants personally be present at all hearings or default would be entered;

3. that all discovery must be complied with or default would be entered; and,

4. that the defendants pay attorneys’ fees to the plaintiff in the amount of $800.00 by June 16, 1983.

On June 21, 1983, the plaintiff filed a motion for default judgment based on the failure of the defendants to pay the attorney’s fees awarded in the order of September 13, 1982 and required to be paid before June 16, 1983, by the May 20, 1983 order setting aside default judgment. The defendants paid the $800.00 on July 5, 1983, after notice of the plaintiff’s motion. The motion was granted on July 29, 1983 and the default judgment in the amount of $2,500.00 was reinstated.

On appeal the defendants argue that the court had no power to enter a default judgment based on untimely compliance with an order of the court and that the court abused its discretion in doing so. We disagree.

NMSA 1978, Civ.P.R. 55(a) (Repl. Pamp.1980) states: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” (Emphasis added.) Subsection (b) provides that default judgment may be entered on three days written notice when the opposing party has appeared in the action. Whether a default judgment should be entered rests with the sound discretion of the trial court. Gallegos v. Franklin, 89 N.M. 118, 547 P.2d 1160 (Ct.App.1976). While default judgments are not favored by the law and cases should be decided on their merits whenever possible, Springer Corporation v. Herrera, 85 N.M. 201, 510 P.2d 1072 (1973), the default judgment remedy protects a diligent party from continual delay and uncertainty as to his rights. Gallegos, 89 N.M. at 122, 547 P.2d 1160.

The trial court entered the initial default judgment for failure of defendants to attend the pretrial conference. At this point we need not consider the failure to pay attorney’s fees. The failure to attend the pretrial conference and the failure to obtain counsel as ordered by the court were failures to “otherwise defend.” See 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice H 55.02[3] (2d ed. 1983), and cases cited in footnote 12. The court had authority to enter default judgment on the basis of these failures.

Rule 55(c) provides that a default judgment may be set aside in accordance with Rule 60. Our concern here is not with the fact that the May 20, 1983 default judgment was set aside, but with the conditions imposed by the court for setting aside that judgment. Rule 60 allows the court to relieve a party from a final judgment for various reasons which the rule details, on “ * * * such terms as are just.” NMSA 1978, Civ.P.R. 60(b) (Repl.Pamp.1980).

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Cite This Page — Counsel Stack

Bluebook (online)
686 P.2d 277, 101 N.M. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kutz-v-independent-publishing-co-nmctapp-1984.