brary 2
4 IN THE SUPERIOR COURT OF GUAM 5
6 ROBIN MARQUARDT, ) CIVIL CASE NO. CV0389-07 ) 7 Plaintiff, ) 8 ) DECISION AND ORDER ON ) DEFENDANT'S MOTION TO SET vs. 9 ) ASIDE JUDGMENT PETER ALVAREZ ) 10 ) 11 Defendant. )
13 INTRODUCTION 14 This matter came before the court on February 22, 2012, on Peter Alvarez's 15
16 Motion to Set Aside Judgment. Attorney William L. Gavras represented Robin
17 Marquardt, Plaintiff. Attorney Julie R. Rosete represented Peter Alvarez, Defendant. 18 Following the hearing, the court took the matter under advisement. Having 19 considered the parties' arguments and applicable law, this Court now issues its 20
21 Decision and Order.
23 The present motion addresses the issue of whether Defendant was
24 provided sufficient notice of a trial date such that the entry of Judgment by this Court 25 in favor of Plaintiff following a trial in Defendant's absence violated Defendant's right 26 to due process. 27
28 Decision and Order Civil Case No. CV0389-07
Plaintiff filed a Complaint for assault and battery in March 2007. Plaintiff 2 personally served Defendant with the Summons and Complaint. Defendant, acting 3 pro se, filed an Answer on which he included his mailing address. On June 14, 2007 4
5 Attorney Gavras mailed, via certified mail return-receipt requested, the At Issue
6 Memorandum and Notice of Scheduling Conference set for June 29, 2007, to the 7 address provided by Defendant. After three unsuccessful delivery attempts by the 8 USPS, the envelope was returned to Attorney Gavras. During the Scheduling 9 Conference on June 29, 2007 this Court issued the scheduling order. Defendant did 10
11 not appear at the scheduling conference. Attorney Gavras attempted to mail a copy of
12 the signed scheduling order to Defendant. Again, after multiple delivery attempts 13 USPS returned the mail to Gavras' office stamped "unclaimed." On October 25, 2007, 14 the Court held a status hearing attended by Attorney Gavras; Defendant was not 15 present. During the hearing this Court set dates for both the pretrial conference and 16
17 trial. Thereafter, Attorney Gavras attempted to mail yet another letter to Defendant
18 using the address provided by Defendant on his Answer. The letter included a 19 notification of the pretrial conference and trial dates. Again, after several delivery 20 attempts, the mail was returned, undelivered, to Attorney Gavras. 21
22 A bench trial was held on March 10, 2008. Defendant did not appear for trial.
23 Plaintiff presented evidence and following the trial this Court issued a Judgment in 24 favor of Plaintiff granting the relief requested in Plaintiffs complaint. An Order for 25 Judgment Debtor Exam was personally served upon Defendant. Defendant has since 26 appeared regularly at Judgment Debtor Exam hearings. Defendant maintains, 27
-2- Decision and Order Civil Case No. CV0389-07
however, that he never received notice of the trial date and that he was therefore 2 denied the opportunity to present a defense. 3 Defendant argues that the Judgment issued by this Court on March 24,2008 is 4 void and must be set aside under Rule 60(b)(4) because he was denied due process. 5
6 Alternatively, Defendant seeks to set aside the Judgment under Rule 60(b)(6)'s catch-
7 all provision which allows a court to relieve a defendant from judgment for "any other 8 reason justifying relief from the operation of the judgment." The Guam Supreme 9 Court has stated that relief under Rule 60(b)(6) is not proper if the circumstances 10
11 implicate any of the other 60(b) provisions. Brown v. Eastman Kodak Co., 2000 Guam
12 30 ~ 14. The following discussion begins with an analysis of whether the Judgment in 13 this case is void under Rule 60(b)(4). 14
15 DISCUSSION 16
17 I. Void Judgment Under GRCP 60(b)(4) 18 Guam Rule of Civil Procedure 60(b)(4) provides relief from judgment when the 19 judgment is void. "A trial court has 'no discretion to refuse vacating a judgment if it is 20
21 void,'" Mariano v. Surla, 2010 Guam 2 ~ 13) (quoting Pineda v. Pineda, 2005 Guam 10
22 ~ 10), and the general "reasonable time" requirement for moving for relief under Rule
23 60(b) does not apply where a judgment is deemed void. Mariano v. Surla, 2010 Guam 24 2 ~ 12. "A judgment is void within the meaning of Rule 60(b)(4) where it is entered by 25 the court ... in contravention of due process ...." Fed. Election Comm'n v. Al Salvi for 26
27 Senate Comm., 205 F.3d 1015, 1019 (7th Cir. 2000) (citing Wesco Products Co. v.
28 Alloy Automotive Co., 880 F.2d 981,984 (7th Cir. 1989». For any proceeding that will
-3- Decision and Order Civil Case No. CV0389-07
be accorded finality, due process requires "notice reasonably calculated, under all the 2 circumstances, to apprise interested parties of the pendency of the action and afford 3 them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & 4
5 Trust Co.,339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); see also
6 Pangelinan v. Gutierrez, 2004 Guam 16 ~ 7 (quoting Mullane). Thus, due process 7 unquestionably requires that parties receive adequate notice of trial dates before a 8 valid judgment may be entered. Grun v. Pneumo Abex Corp., 163 F.3d 411, 424 (7th 9 Cir. 1998) 10
11 Courts have recognized that where notice of a hearing is properly mailed to a
12 Defendant, such mailing constitutes due process. See Smith v. Smith, 908 S.W.2d 170, 13 172 (Mo. Ct. App. 1995); Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743 (Mo. Ct. App. 14 2004); c.f. Cincinnati Ins. Co. v. Emge, 124 Ohio App. 3d 61, 63, 705 N.E.2d 408, 410 15 (1997) ("Where the plaintiff follows the civil rules, courts presume that service is 16
17 proper"). Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743,747 (Mo. Ct. App. 2004) involved
18 facts similar to those in the present case. In Powell, the plaintiff mailed numerous 19 notices of hearing and trial settings to the defendant's last known address, but after 20 each mailing the envelopes were returned unclaimed. A trial was held in the absence of 21
22 the defendant and the trial court entered final judgment in favor of the plaintiff. The
23 defendant moved to set aside the judgment claiming that he never received notice of the 24 trial date, which he argued constituted a due process violation. The trial court denied 25 the motion. The Missouri Court of Appeals affirmed, holding that "there is no question 26 that mailing is a proper means of notifying a pro se litigant of scheduled hearings." Id. 27
28 at 746. In so holding, the Court noted that "a party cannot refuse notice that was
-4- Decision and Order Civil Case No. CV0389-07
properly served by mail in accordance with court rules and then assert a due process 2 violation because he did not receive actual notice of the court proceeding." Id. at 747.
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brary 2
4 IN THE SUPERIOR COURT OF GUAM 5
6 ROBIN MARQUARDT, ) CIVIL CASE NO. CV0389-07 ) 7 Plaintiff, ) 8 ) DECISION AND ORDER ON ) DEFENDANT'S MOTION TO SET vs. 9 ) ASIDE JUDGMENT PETER ALVAREZ ) 10 ) 11 Defendant. )
13 INTRODUCTION 14 This matter came before the court on February 22, 2012, on Peter Alvarez's 15
16 Motion to Set Aside Judgment. Attorney William L. Gavras represented Robin
17 Marquardt, Plaintiff. Attorney Julie R. Rosete represented Peter Alvarez, Defendant. 18 Following the hearing, the court took the matter under advisement. Having 19 considered the parties' arguments and applicable law, this Court now issues its 20
21 Decision and Order.
23 The present motion addresses the issue of whether Defendant was
24 provided sufficient notice of a trial date such that the entry of Judgment by this Court 25 in favor of Plaintiff following a trial in Defendant's absence violated Defendant's right 26 to due process. 27
28 Decision and Order Civil Case No. CV0389-07
Plaintiff filed a Complaint for assault and battery in March 2007. Plaintiff 2 personally served Defendant with the Summons and Complaint. Defendant, acting 3 pro se, filed an Answer on which he included his mailing address. On June 14, 2007 4
5 Attorney Gavras mailed, via certified mail return-receipt requested, the At Issue
6 Memorandum and Notice of Scheduling Conference set for June 29, 2007, to the 7 address provided by Defendant. After three unsuccessful delivery attempts by the 8 USPS, the envelope was returned to Attorney Gavras. During the Scheduling 9 Conference on June 29, 2007 this Court issued the scheduling order. Defendant did 10
11 not appear at the scheduling conference. Attorney Gavras attempted to mail a copy of
12 the signed scheduling order to Defendant. Again, after multiple delivery attempts 13 USPS returned the mail to Gavras' office stamped "unclaimed." On October 25, 2007, 14 the Court held a status hearing attended by Attorney Gavras; Defendant was not 15 present. During the hearing this Court set dates for both the pretrial conference and 16
17 trial. Thereafter, Attorney Gavras attempted to mail yet another letter to Defendant
18 using the address provided by Defendant on his Answer. The letter included a 19 notification of the pretrial conference and trial dates. Again, after several delivery 20 attempts, the mail was returned, undelivered, to Attorney Gavras. 21
22 A bench trial was held on March 10, 2008. Defendant did not appear for trial.
23 Plaintiff presented evidence and following the trial this Court issued a Judgment in 24 favor of Plaintiff granting the relief requested in Plaintiffs complaint. An Order for 25 Judgment Debtor Exam was personally served upon Defendant. Defendant has since 26 appeared regularly at Judgment Debtor Exam hearings. Defendant maintains, 27
-2- Decision and Order Civil Case No. CV0389-07
however, that he never received notice of the trial date and that he was therefore 2 denied the opportunity to present a defense. 3 Defendant argues that the Judgment issued by this Court on March 24,2008 is 4 void and must be set aside under Rule 60(b)(4) because he was denied due process. 5
6 Alternatively, Defendant seeks to set aside the Judgment under Rule 60(b)(6)'s catch-
7 all provision which allows a court to relieve a defendant from judgment for "any other 8 reason justifying relief from the operation of the judgment." The Guam Supreme 9 Court has stated that relief under Rule 60(b)(6) is not proper if the circumstances 10
11 implicate any of the other 60(b) provisions. Brown v. Eastman Kodak Co., 2000 Guam
12 30 ~ 14. The following discussion begins with an analysis of whether the Judgment in 13 this case is void under Rule 60(b)(4). 14
15 DISCUSSION 16
17 I. Void Judgment Under GRCP 60(b)(4) 18 Guam Rule of Civil Procedure 60(b)(4) provides relief from judgment when the 19 judgment is void. "A trial court has 'no discretion to refuse vacating a judgment if it is 20
21 void,'" Mariano v. Surla, 2010 Guam 2 ~ 13) (quoting Pineda v. Pineda, 2005 Guam 10
22 ~ 10), and the general "reasonable time" requirement for moving for relief under Rule
23 60(b) does not apply where a judgment is deemed void. Mariano v. Surla, 2010 Guam 24 2 ~ 12. "A judgment is void within the meaning of Rule 60(b)(4) where it is entered by 25 the court ... in contravention of due process ...." Fed. Election Comm'n v. Al Salvi for 26
27 Senate Comm., 205 F.3d 1015, 1019 (7th Cir. 2000) (citing Wesco Products Co. v.
28 Alloy Automotive Co., 880 F.2d 981,984 (7th Cir. 1989». For any proceeding that will
-3- Decision and Order Civil Case No. CV0389-07
be accorded finality, due process requires "notice reasonably calculated, under all the 2 circumstances, to apprise interested parties of the pendency of the action and afford 3 them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & 4
5 Trust Co.,339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); see also
6 Pangelinan v. Gutierrez, 2004 Guam 16 ~ 7 (quoting Mullane). Thus, due process 7 unquestionably requires that parties receive adequate notice of trial dates before a 8 valid judgment may be entered. Grun v. Pneumo Abex Corp., 163 F.3d 411, 424 (7th 9 Cir. 1998) 10
11 Courts have recognized that where notice of a hearing is properly mailed to a
12 Defendant, such mailing constitutes due process. See Smith v. Smith, 908 S.W.2d 170, 13 172 (Mo. Ct. App. 1995); Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743 (Mo. Ct. App. 14 2004); c.f. Cincinnati Ins. Co. v. Emge, 124 Ohio App. 3d 61, 63, 705 N.E.2d 408, 410 15 (1997) ("Where the plaintiff follows the civil rules, courts presume that service is 16
17 proper"). Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743,747 (Mo. Ct. App. 2004) involved
18 facts similar to those in the present case. In Powell, the plaintiff mailed numerous 19 notices of hearing and trial settings to the defendant's last known address, but after 20 each mailing the envelopes were returned unclaimed. A trial was held in the absence of 21
22 the defendant and the trial court entered final judgment in favor of the plaintiff. The
23 defendant moved to set aside the judgment claiming that he never received notice of the 24 trial date, which he argued constituted a due process violation. The trial court denied 25 the motion. The Missouri Court of Appeals affirmed, holding that "there is no question 26 that mailing is a proper means of notifying a pro se litigant of scheduled hearings." Id. 27
28 at 746. In so holding, the Court noted that "a party cannot refuse notice that was
-4- Decision and Order Civil Case No. CV0389-07
properly served by mail in accordance with court rules and then assert a due process 2 violation because he did not receive actual notice of the court proceeding." Id. at 747. 3 Like the defendant in Powell, Defendant in the case at hand received adequate 4
5 notice in accordance with the rules of service. Rule 5 of the Guam Rules of Civil
6 Procedure allows for mailing of "written notice, appearance, demand, offer of judgment, 7 designation of record on appeal, and similar paper ..." GRCP 5(a), by "[m]ailing a copy 8 to the last known address of the person served." GRCP 5(b)(2)(B). Plaintiff mailed to 9 Defendant papers that included notice of th pretrial conference and trial dates. These 10
II mailings met the service and notice requirements under Guam law.
12 Notably, Defendant does not argue that the service of notice provided by Plaintiff 13 was somehow not in accordance with Guam law: Rather, Defendant argues that due 14 process requires something more than proper service by mail-that is, Defendant 15 asserts that he is entitled to personal service and actual notice of the hearing date. 16
17 Defendant, however, fails to cite any law directly supporting these contentions. The
18 only case cited by Defendant is Grun v. Pneumo Abex Corp., 163 F.3d 411 (7th Cir. 19 1998), which merely supports the undisputed principal that due process requires notice 20 reasonably calculated to apprise a party of any hearing that will be accorded finality. 21
22 Grun involved a case in which the district court dismissed the plaintiffs action after
23 neither party appeared on the day of trial. The court, however, had inadvertently failed 24 to provide notice to either party of the trial date, which the Court had scheduled in the 25 parties' absence. Id. at 422. The Seventh Circuit reversed the district court's judgment 26 of dismissal, holding that the lack of notice violated the plaintiffs right to due process. 27
28 Id. at 424.
-5- Decision and Order Civil Case No. CV0389-07
The facts in the present case are easily distinguishable from those in Grun. 2 While Grun involved a complete failure to provide any notice whatsoever of the 3 scheduled trial, Plaintiff here made overt attempts to inform Defendant of important 4
5 hearings, including trial. Plaintiff sent the notices in accordance with Guam's rules.
6 And by following Guam's service rules, Plaintiff ensured that the mailed notice was 7 reasonably calculated to apprise Defendant of the trial date. It is clear that Defendant, 8 having answered Plaintiffs Complaint, was acutely aware that an action was 9 proceeding against him in the courts of Guam and Defendant had ample opportunity to 10
11 claim the mail sent by Plaintiffs attorney in relation to this case. Although Defendant
12 offers a justification for his delay in filing his motion to set aside judgment, Defendant 13 fails to offer any explanation or justification as to why the properly addressed notices 14 sent to him by Plaintiff to the address he provided went unclaimed. Based on the law 15 and the circumstances of this case this Court finds that Defendant was not entitled to 16
17 personal service or actual notice of the date of trial. The mailed notice of the pretrial
18 conference and trial dates satisfied constitutional due process. 19 II. Relief Under Rule 60(b)(6) 20
21 Rule 60(b)(6) allows a court to set aside judgment for "any other reason
22 justifying relief from the operation of judgment." As the Justice Black stated in 23 Klapprott v. United States, 335 U.S. 601, 93 L Ed 266, 69 S Ct 384 (1949), "the 24 language of the 'other reason' clause, for all reasons except the five particularly 25
26 specified, vests power in courts adequate to enable them to vacate judgments
27 whenever such action is appropriate to accomplish justice." Here, Defendant argues 28 that serious injustice would result if Plaintiff were allowed to benefit from his failure
-6- Decision and Order Civil Case No. CV0389-07
to provide actual notice to Defendant despite the facts that Defendant answered the 2 Complaint and that Plaintiff knew of Defendant's place of employment and could, 3 therefore, have personally served Defendant at work. This argument essentially 4 raises the same due process issues already discussed herein. As mentioned above, 5
6 under the case law and Guam's rules, a defendant is generally not entitled to receive
7 personal service of notice aside from the pleadings in a civil action. Plaintiff provided 8 notice that was reasonably calculated to apprise Defendant of the proceedings. Again, 9 Defendant offers no justification-let alone a compelling justification-for his failure 10
11 to collect the numerous papers mailed to the address he provided on his Answer.
12 Indeed, it seems to this Court that injustice would result from allowing a defendant to 13 engage in what appears, on its face, to be willful avoidance of an active lawsuit. 14 Contrary to Defendant's assertions, under the circumstances here justice is best 15 served by allowing the judgment to stand. 16
17 CONCLUSION 18 Based on the foregoing, Defendant's Motion to Set Aside Judgment is DENIED. 19
20 SO ORDERED this 5 th day of July, 2012. 21
22 o 23 HONORABLE ALBER 24 Presiding Judge, Superior 25