State Ex Rel. Utah State Department of Social Services v. Musselman

667 P.2d 1053, 1983 Utah LEXIS 1086

Opinions

HALL, Chief Justice:

This is a rehearing on the appeal of defendant D. John Musselman from a denial by the trial court of defendant’s motion to set aside a default judgment entered against him. The facts of this matter are as set forth in our initial opinion:

The defendant, Musselman, an attorney, appealed from the denial of his Motion to Vacate a Judgment obtained against him by the plaintiff for medical expenses paid on behalf of his client, the defendant, Linda Ann Coram. His motion was made under the claim that he did not make a timely response to the complaint because of excusable neglect. The excuse was based on his assertion that because of a week’s stay in a hospital and a two- or three-week convalescent period, he excusably neglected to file a timely responsive pleading to protect and preserve any defenses he may have had to the suit.

The pleading and proof showed, and the defendant conceded, that his client (the other defendant here) obtained $82,-522 of State welfare money for medical services incurred for treatment, which later she claimed was negligently administered. It is also conceded that as consideration for such absorption of the expenses by the State, she would and did assign to the State any claim she had for reimbursement of the medical expenses. Such assignment and right of subrogation are conceded by the defendant, and the record shows that in aid of such right, the defendant agreed to honor and assist in its assertion.

Footnotes

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[1]

With the above backdrop, the defendant made an out-of-court settlement for his client of $150,000. In so doing, defendant accepted from the insurance company a check payable to his client and himself and the Department of Social Services, for the exact amount of the medical expenses, $82,522, and another for substantially the balance of the $150,-000 settlement. He and his client personally endorsed the $82,522 check. He also endorsed for the plaintiff, without any proof of capacity or authority, by the written words: “State of Utah Office of Recovery Services by D. John Musselman, its Attorney at Law and in Fact.” This check he banked along with the other, and promptly thereafter issued a check on the account payable to one Herbst, for $50,000 as a loan secured by a promissory note calling for 180% interest per annum, payable monthly. He did not offer to pay, nor did he pay anything to plaintiff. His claim that he should have been relieved of the default judgment under such circumstances would be far less suspect had he had been a licensed member of the Bar at the time.²

The lower court denied defendant’s motion to set aside the default judgment on the grounds that defendant had failed to state a defense in his proposed answer to the complaint. Defendant’s subsequent appeal to this Court resulted in an affirmance of the trial court’s ruling. In a per curiam decision dated July 26, 1982, we held that “what he [defendant] had to offer the court in support of his Motion to Vacate, in no way could satisfy the rule that the Motion must be supported by facts showing a meritorious defense .... ”

Thereafter, defendant petitioned this Court for a rehearing on the basis that' certain controlling facts relied upon by this Court in support of its initial ruling had been misconstrued. We granted defendant’s petition for rehearing on October 8, 1982.

The standard upon which defendant predicated his motion for relief from the default judgment is set forth in Rule 60(b)(1) of the Utah Rules of Civil Procedure:

On motion and upon such terms as are just, the Court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect³- [Emphasis added.]

With respect to the application of this rule, we reiterate our well-settled policy, stated thus:

[W]e are in accord generally with the doctrine urged by defendant that the courts should be liberal in granting relief against judgments taken by default to the end that controversies may be tried on the merits.⁴

We also, however, acknowledge the coexistence of this judicial policy with the broad latitude of discretion accorded the trial court in ruling upon such motions.⁵ Indeed, the implementation of the policy is a matter which this Court has specifically committed to the trial court as follows:

The trial court is endowed with considerable latitude of discretion in granting or denying a motion to relieve a party from a final judgment under Rule 60(b)(i), U.R.C.P., and this court will reverse the trial court only where an abuse of this discretion is clearly established .... The rule that the courts will incline towards granting relief to a party, who has not had the opportunity to present his case, is ordinarily applied at the trial court level, and this court will not reverse the determination of the trial court merely because the motion could have been granted. For this court to overturn the discretion of the lower court in refusing to vacate a valid judgment, the requirements of public policy demand more than a mere statement that a person did not have his day in court when full opportunity for a fair hearing was afforded him or his legal representative.⁶

In order for defendant to be relieved from the default judgment, he must not only show that the judgment was entered against him through excusable neglect (or any other reason specified in Rule 60(b)), but he must also show that his motion to set aside the judgment was timely,⁷ and that he has a meritorious defense to the action.⁸

It is defendant’s contention on appeal that he has satisfied each of the above-stated requirements for setting aside a default judgment, and that the trial court, therefore, abused its discretion by denying him relief from the judgment and an opportunity to have his case tried on the merits.

The timeliness of defendant’s application to have the default judgment set aside is undisputed. The judgment was entered on the 14th of July, 1981, and the motion to set aside the judgment was filed on August 13, 1981, which was well within the three-month limitation prescribed by the rule (60(b)).

Defendant’s assertion that the showing of excusable neglect has been implicitly recognized by both this Court and the lower court is in dispute. The alleged basis for this assertion is the trial court’s denial of the motion to set aside solely upon the ground that defendant had failed to state a defense. According to defendant, the lower court would have had no reason to address the issue of a meritorious defense unless it believed excusable neglect had already been established, and thus it is implicit in the lower court’s ruling that such excusable neglect was shown. As supportive of his position, defendant relies upon the following statement made by this Court in a similar case:

This latter question [of a meritorious defense] arises only after consideration of the first question [of excusable neglect] and a sufficient excuse therefrom being shown.⁹

The motion shall be made within a reasonable time and for reasons (1), (2), (3), or (4), not more than three months after the judgment, order, or proceeding was entered or taken.

We find merit in defendant’s position. This Court’s statement in the Cox decision (quoted immediately above) clearly sets forth the policy in this jurisdiction requiring that the lower court consider and resolve the question of excusable neglect (when the motion to vacate the default judgment is based on excusable neglect) prior to its consideration of the issue of whether a meritorious defense exists. Furthermore, in accordance with this policy, it is unnecessary, and moreover inappropriate, to even consider the issue of meritorious defenses unless the court is satisfied that a sufficient excuse has been shown.

This policy is not unique to this jurisdiction. Another state, which has likewise held that the requirement of showing excusable neglect should precede that of showing a meritorious defense, is Arizona. There, the courts acknowledge:

We have repeatedly held, in order to secure the setting aside of a default judgment, the party in default must show first, excusable neglect, and second, a meritorious defense.¹⁰

Accordingly, although the lower court did not specifically rule on the question of excusable neglect, we may imply from its consideration of and ruling on “defenses” that it found a sufficient excuse for defendant’s failure to file a timely answer.

Notwithstanding defendant’s showing of timeliness and excusable neglect, unless he can show “some defense of at least ostensible merit as would justify a trial of the issue thus raised,”¹¹ his motion to set aside cannot justifiably be granted. This leads us to a consideration of defendant’s principal contention on appeal: that he did, in fact, show a meritorious defense, and that the trial court’s contrary ruling was an abuse of discretion.

Defendant urges this Court to reconsider certain “controlling facts,” which he contends were erroneously construed by the trial court, as well as by this court, on its initial review, and which, he further contends, led to the determination that no defense had been shown. The first of these alleged misconstrued facts was that plaintiff had a right of subrogation to the medical benefits recovered by Mrs. Coram by reason of an assignment of benefits. Defendant argues that this alleged assignment of benefits was not supported by sufficient evidence, inasmuch as the only proof offered to support its existence was the mere assertion thereof contained in plaintiff’s complaint. Defendant also, however, acknowledges that he admitted to the assignment in his tendered answer, but explains that the admission was made on the assurances of plaintiff that such an assignment had been made and that a written copy thereof would be produced. Inasmuch as no written copy of the assignment was, in fact, ever produced nor any other supporting evidence proffered, defendant argues that his admission was ineffectual.

We find no merit whatsoever in defendant’s position with respect to the assignment of benefits. Plaintiff’s allegation regarding such assignment was properly submitted in its complaint, and defendant’s admission thereto, in his proposed answer, was unconditional and unequivocal. The fact of an assignment and right of subrogation was, therefore, clearly established, and the trial court’s, as well as this Court’s, reliance thereon was justified.

The next alleged misconstruction of facts was that defendant acted as representative and legal counsel for the State in the assertion of its subrogated claims. Defendant points out that his proposed answer contained a specific denial to the allegation that he was acting as a legal representative of the State, and that that denial constituted a meritorious defense to the action. He further argues, in his brief, that the record of the lower court proceedings clearly supports his position.

A review of the record does not bear out defendant’s contention. To the contrary, the record adequately supports the conclusion of the trial court that defendant’s general denial that he acted as a legal representative of the State did not constitute a meritorious defense. This is to be seen in that at the hearing held by the trial court, the defendant confirmed that he endorsed the settlement draft issued jointly in favor of the State in the exact amount of its assigned claim of $82,522.22, and that he did so in the following manner:

D. John Musselman

State of Utah

Office of Recovery Services by: D. John Musselman

Its: Attorney at law and in fact

Also at the hearing, when questioned as to whether he was representing the State of Utah in the $82,522.22 recovery, defendant answered: “In recovering the funds initially — well, I don’t know. I’d have to research that before I could answer that correctly.” This statement, coupled with defendant’s endorsement of the settlement draft, graphically reveals the inadequacy of the general denial contained in the proposed answer as a meritorious defense.

Defendant’s failure to support his proposed defenses with specific, detailed facts is governed by the generally accepted rule, which is:

A meritorious defense is one which sets forth specific and sufficiently detailed facts which, if proven, would have resulted in a judgment different from the one entered.¹²

Defendant must therefore do more than merely dispute or deny the truth of plaintiff’s allegations; he must set forth specific facts showing meritorious defenses to those allegations in order to have the default judgment set aside. In this instance, as a matter of law, a meritorious defense was not asserted.

In conclusion, we reiterate that due to the broad discretion given the trial court in granting or denying Rule 60(b)(1) motions, “this court will reverse the trial court only where an abuse of this discretion is clearly established....”¹³ No abuse of the trial court’s discretion has been established by defendant in the instant case. We find the record to be clearly supportive of the trial court’s determination. We therefore adopt the final statement from our initial opinion:

A case that we believe and hold to be dispositive here, made the following statement which particularly has application to the instant case:

A primary difficulty he confronts is that, as a general proposition, one who seeks to vacate a default judgment must proffer some defense of at least ostensible merit as would justify a trial of the issue thus raised. As the trial court appropriately remarked on this point: the defendant failed to proffer any meritorious defense, or in fact any defense at all.¹⁴ [Emphasis added.]

The judgment is affirmed.

OAKS, J., concurs.

1. On rehearing, defendant retracts his earlier concession regarding his client’s assignment of benefits to plaintiff, and denies any agreement between himself and plaintiff to the effect that he would represent plaintiff in a legal capacity in the assertion of plaintiff’s subrogated claims. This matter is more fully discussed infra.