{
  "id": 1577392,
  "name": "Lola LOPEZ, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant",
  "name_abbreviation": "Lopez v. Sears",
  "decision_date": "1981-05-12",
  "docket_number": "No. 5086",
  "first_page": "143",
  "last_page": "144",
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      "cite": "628 P.2d 1139"
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  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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      "year": 1976,
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      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
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      "weight": 3,
      "year": 1973,
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  "last_updated": "2023-07-14T16:25:27.930698+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HERNANDEZ, C. J., concurs.",
      "LOPEZ, J., dissents."
    ],
    "parties": [
      "Lola LOPEZ, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nThis appeal involves a default judgment in a worker\u2019s compensation case. Plaintiff\u2019s claim was filed September 24, 1980 and a copy of the complaint was received by defendant on September 26, 1980. No answer was filed within thirty days. Plaintiff\u2019s motion for a default judgment was filed November 6, 1980; an order declaring defendant in default was also entered on November 6, 1980. This order provided for a hearing to determine \u201cinjuries and disability\u201d; thus, the effect of the order was to foreclose the question of liability to pay compensation. Plaintiff, by letter dated November 7, 1980, informed defendant of entry of the default judgment. Defendant\u2019s motion to set aside the default judgment was filed November 25, 1980. We do not know when this motion was heard by the trial court; an order denying defendant\u2019s motion was filed March 16, 1981.\nThis Court\u2019s order of March 25, 1981 granted defendant\u2019s application for an interlocutory appeal and provided:\nPlaintiff shall file * * * a written memorandum showing cause why this Court should not summarily reverse the district court\u2019s order of March 16, 1981. Springer Corporation v. Herrera, 85 N.M. 201, 510 P.2d 1072 (1973); Gengler v. Phelps, 89 N.M. 793, 558 P.2d 62 ([Ct.App.] 1976); Rogers v. Lyle Adjustment Co., 70 N.M. 209, 372 P.2d 797 (1962).\nThe trial court\u2019s order questioned whether the civil rules and decisions under those rules apply to defaults in compensation cases. Plaintiff\u2019s memorandum correctly concedes that the general law on defaults applies in compensation cases.\nSection 52-1-34, N.M.S.A.1978, states:\nThe Rules of Civil Procedure for the District Courts * * * shall apply to all claims * * * under the * * * Compensation Act [52-1-1 to 52-1-69 NMSA 1978] except where provisions of the * * * Compensation Act directly conflict with these rules, in which case the provisions of the * * * Compensation Act shall govern.\nThere is no claim that any provision of the Compensation Act conflicts with the default judgment rule, R.Civ.Proc. 55, and the rule for relief from a judgment, R.Civ. Proe. 60. Those rules, and decisions applying them, apply to a default in a compensation case.\nPlaintiff\u2019s memorandum states that there is no record of the hearing on defendant\u2019s motion to vacate the default judgment; \u201cthe Court must review what is available.\u201d The material before us consists of defendant\u2019s motion to vacate, copies of letters exchanged between defendant and plaintiff\u2019s attorney in July, 1980, an affidavit of defendant\u2019s personnel manager, copies of medical reports and a proposed answer by defendant.\nThe above items were a far stronger showing than was made in Springer Corporation v. Herrera, supra, for setting aside a default judgment; Springer held that the trial court erred in failing to set-aside the default judgment. Defendant\u2019s showing, uncontroverted in the record before us, is (1) that the failure to file a timely answer resulted from excusable neglect, mistake and inadvertence; the failure to file occurred because of a procedural mix-up during the time the employee who looked after compensation claims was on vacation; and (2) meritorious defenses involving statutes of limitation and no accidental injury. The trial court abused its discretion in denying the motion to set aside the default judgment.\nThe cause is remanded with instructions to vacate the order of default and to permit the filing of defendant\u2019s answer.\nIT IS SO ORDERED.\nHERNANDEZ, C. J., concurs.\nLOPEZ, J., dissents.",
        "type": "majority",
        "author": "WOOD, Judge."
      },
      {
        "text": "LOPEZ, Judge\n(dissenting).\nI agree that the Rules of Civil Procedure relating to default judgments apply to Workmen\u2019s Compensation cases. I have read the record and I do not find any evidence of excusable neglect, mistake, or inadvertence on the part of the defendant to justify a reversal. At best, defendant has shown to me that, while Christine Turner was on vacation, presumably nobody else could handle workmen compensation cases in the Albuquerque store. Defendant should have had someone else to assume this responsibility while she was gone. I do not see any evidence of a meritorious defense to justify reversal. The question of disability and payment of benefits is yet to be litigated later on.\nI would affirm the trial court\u2019s judgment.",
        "type": "dissent",
        "author": "LOPEZ, Judge"
      }
    ],
    "attorneys": [
      "Charles B. Larrabee, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellant.",
      "M. Terrence Revo, P. C., Albuquerque, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "628 P.2d 1139\nLola LOPEZ, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.\nNo. 5086.\nCourt of Appeals of New Mexico.\nMay 12, 1981.\nCharles B. Larrabee, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellant.\nM. Terrence Revo, P. C., Albuquerque, for plaintiff-appellee."
  },
  "file_name": "0143-01",
  "first_page_order": 171,
  "last_page_order": 172
}