{ "id": 1582559, "name": "Ralph DYER, Plaintiff-Appellant, v. George PACHECO, Defendant-Appellee", "name_abbreviation": "Dyer v. Pacheco", "decision_date": "1982-09-30", "docket_number": "No. 5818", "first_page": "670", "last_page": "675", "citations": [ { "type": "official", "cite": "98 N.M. 670" }, { "type": "parallel", "cite": "651 P.2d 1314" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "84 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766687 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0211-01" ] }, { "cite": "70 N.M. 209", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850046 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0209-01" ] }, { "cite": "560 F.2d 805", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 937990 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/560/0805-01" ] }, { "cite": "20 F.R.D. 407", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 1260696, 3766897 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/alaska/17/0075-01", "/frd/20/0407-01" ] }, { "cite": "85 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772750 ], "weight": 2, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0006-01" ] }, { "cite": "165 F.2d 869", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1204900 ], "year": 1947, "pin_cites": [ { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/f2d/165/0869-01" ] }, { "cite": "65 N.M. 114", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848226 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/65/0114-01" ] }, { "cite": "92 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557032, 1557235 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0578-01", "/nm/92/0578-02" ] }, { "cite": "85 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773182 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0201-01" ] }, { "cite": "94 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573176 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0273-01" ] }, { "cite": "89 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867893 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/89/0118-01" ] }, { "cite": "98 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582601 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/nm/98/0333-01" ] }, { "cite": "91 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571187 ], "weight": 3, "year": 1978, "opinion_index": 1, "case_paths": [ "/nm/91/0369-01" ] }, { "cite": "92 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557032, 1557235 ], "weight": 4, "year": 1979, "opinion_index": 1, "case_paths": [ "/nm/92/0578-01", "/nm/92/0578-02" ] }, { "cite": "85 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773182 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/nm/85/0201-01" ] } ], "analysis": { "cardinality": 764, "char_count": 16316, "ocr_confidence": 0.803, "pagerank": { "raw": 1.3509027082430147e-07, "percentile": 0.633516085300726 }, "sha256": "b12a2c9299a450ac6e3922db4245ad34272224642909179368a0b0746c783ea3", "simhash": "1:b10e123e3eaa8fef", "word_count": 2675 }, "last_updated": "2023-07-14T19:13:49.367595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "WOOD, J., specially concurs." ], "parties": [ "Ralph DYER, Plaintiff-Appellant, v. George PACHECO, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThe trial court vacated a default judgment granted plaintiff. Plaintiff was granted an interlocutory appeal. We affirm.\nThe chronology of the proceedings follow:\n(1) On June 22, 1978, plaintiff filed a complaint against defendant. It alleged that on March 16, 1976, plaintiff and defendant were on a business trip from New Mexico to Texas when defendant negligently caused an accident in which plaintiff suffered damages in the sum of $50,000.00.\n(2) On July 5, 1978 summons and complaint were served on defendant.\n(3) On December 21, 1978, a petition in intervention was filed against plaintiff seeking satisfaction of a judgment in the amount of $25,041.22.\n(4) On September 17, 1980, more than two years after plaintiff\u2019s complaint was filed, the district court entered an order \u201cthat the above case is dismissed with prejudice for lack of prosecution.\u201d\n(5) On October 16, 1980, (a) plaintiff moved the court to set aside the order of dismissal in \u201cthat the dismissal was premature and inadvertant\u201d [sic]; (b) the court ordered the action reinstated as to defendant only and ten days allowed to file pleadings; (c) plaintiff filed an affidavit as to military service of defendant; (d) plaintiff moved the court for a default judgment; (e) default judgment was entered against defendant in the sum of $50,000.00 and costs; (f) the clerk\u2019s certificate of non-appearance was filed after the judgment was entered.\n(6) On March 25,1981, a transcript of the docket of the judgment was entered in the district court clerk\u2019s office.\n(7) On October 21, 1981, one year and four days after the judgment was entered, plaintiff had a subpoena duces tecum issued by the clerk. It was served on defendant the same day. It commanded defendant to appear before a court reporter on October 28, 1981 and bring with him:\n[A]ll records pertaining to your income for the years 1979,1980, and 1981, including but not limited to wage records, etc., together with copies of your insurance policies in effect at the time of the accident to present (March 17, 1976 to present).\n(8) On. January 8, 1982, plaintiff gave notice to defendant, in care of his attorney, to appear before court reporters on Tuesday, January 19, 1982, for a Supplemental Proceeding and bring with him the items mentioned in the subpoena.\n(9) On January 18, 1982, defendant filed a motion to vacate the judgment pursuant to Rule 55(c) and Rule 60(b) of the Rules of Civil Procedure.\n(10) Prior to a hearing held on April 22, 1982, defendant filed an affidavit in which he stated inter alia that:\n11.As soon as I received the Complaint, I took it directly to Andy Baca, the soliciting agent for Republic Insurance Co., who sold me the policy. Mr. Baca said he would promptly turn it over to the insurance company and not to worry about it.\n12. I never heard anything about the Complaint again until about a month or two ago when I was served with a subpoena requiring me to bring all financial papers for the last four or five years to a deposition set up by Plaintiff\u2019s attorney; I turned these papers over to Andy Baca immediately.\n13. Approximately two days later, Gary Gunther, an adjuster for the Republic Insurance Company, called asking about the subpoena and previous complaint, both of which he and the Republic Insurance Company had apparently just found out about.\nPour other affidavits were filed by those who were employees of the local Albuquerque insurance office in 1978 and one affidavit was filed by an assistant secretary in charge of casualty claim losses of Republic Insurance Company. These affidavits established that Republic never received the 1978 process and complaint filed by plaintiff.\n(11) On April 22, 1982, a hearing was held on defendant\u2019s motion to vacate the default judgment. Oral argument was made and discussions occurred between the court and opposing lawyers.\n(12) On June 11, 1982, an order was entered that the default judgment entered on October 16, 1980, be vacated and the action reinstated on the court\u2019s docket.\nPlaintiff filed no affidavits and, although present at the April 22,1982, hearing, plaintiff did not testify. Plaintiff failed to explain (1) why his complaint lay dormant in the clerk\u2019s office for two years and 3 months after the complaint was filed and process served and over four years from the date of the accident; (2) why dismissal of plaintiff\u2019s complaint by the court for lack of prosecution was premature and inadvertent; (3) why plaintiff waited over two years from the date process was served on defendant to obtain a default judgment in the sum of $50,000.00 without any proof of damages and without notice to defendant; (4) why plaintiff waited for one year and five days to elapse after the default judgment was entered to seek defendant\u2019s financial records and insurance policy; (5) why plaintiff, who was on a business trip with defendant over six years ago, did not communicate with defendant to determine whether defendant had delivered the process and complaint to his insurance company, or whether defendant intended to defend the action. It is unreasonable to believe that plaintiff did not know the whereabouts of defendant. Yet no notice of the motion for default was given defendant within the spirit of Rule 55(b) of the Rules of Civil Procedure. See, Dean Witter Reynolds, Inc. v. Roven, 94 N.M. 273, 609 P.2d 720 (1980).\n\u201cA motion to set aside a default judgment is addressed to the sound discretion of the trial judge, whose ruling will not be reversed except for abuse of that discretion.\u201d Springer Corporation v. Herrera, 85 N.M. 201, 202, 510 P.2d 1072 (1973). The trial court did not abuse its discretion in vacating the default judgment.\nPlaintiff contends that the trial court improperly applied Rule 60(b)(6). Under this rule the court may relieve a party from a final judgment for \u201c(6) any other reason justifying relief from the operation of the judgment.\u201d To obtain relief under Rule 60(b)(6), defendant must establish the existence of exceptional circumstances. Marberry Sales, Inc. v. Falls, 92 N.M. 578, 592 P.2d 178 (1979). This rule originated in Battersby v. Bell Aircraft Corporation, 65 N.M. 114, 332 P.2d 1028 (1958). The court stated that Rule 60(b) \u201cmay be invoked only upon a showing of exceptional circumstances.\u201d [Id. 117, 332 P.2d 1028.] \u201cExceptional circumstances\u201d has not been defined or catalogued. \u201cExceptional\u201d usually means \u201cout of the ordinary.\u201d Webster\u2019s New International Dictionary 791 (3rd ed. 1966). \u201cCircumstanees are facts or things standing around or about some central fact.\u201d State of Maryland v. United States, 165 F.2d 869, 871 (4th Cir. 1947). \u201cExceptional circumstances\u201d means facts or things out of the ordinary standing around or about some central fact. The central fact in the instant case is the vacation of a default judgment.\nTo obtain relief under Rule 60(b)(6), defendant must establish facts or things standing around or about the default judgment, not common or ordinary, that justifies relief in the mind of the court. This rule is broad and expansive in scope. In other words, defendant must show \u201cgood cause\u201d to be relieved from the onerous burdens and consequences of defaults and default judgments. Rule 55(c) provides that if a judgment for default has been entered, the court may set it aside \u201cfor good cause shown.\u201d When Rules 55(c) and 60(b) are read together \u201cexceptional circumstances\u201d and \u201cgood cause shown\u201d are synonymous. \u201cFor good cause shown\u201d means that the district court must be satisfied that facts or questions of law involved, or both, make it a part of wisdom to set aside the default judgment. This constitutes an evaluation of the circumstances shown and a determination made in the exercise of the court\u2019s discretion that the circumstances are exceptional or that good cause was shown.\nAny doubts about whether relief should be granted are resolved in favor of the defaulting defendant because default judgments are not favored in the law; that \u201cin the absence of a showing of prejudice to the plaintiff,\u201d causes should be tried upon the merits. Springer Corporation, supra; Herrera v. Springer Corporation, 85 N.M. 6, 15, 508 P.2d 1303 (Ct.App.1973), Sutin, J., dissenting, rev\u2019d Springer Corporation, supra.\nWhether \u201cexceptional circumstances\u201d have been established or \u201cgood cause shown\u201d calls for a factual appraisal by the court in each case in the exercise of sound discretion. We agree with the trial court who stated at the close of the case that defendant \u201cdid all that was required of him. That is, he took it [legal papers] to his insurance carrier, which was a reasonable thing to do.\u201d In addition, after process was served on defendant, plaintiff did nothing for over two years until the complaint was dismissed for lack of prosecution. To reinstate the action, sufficient reasons must be shown to satisfy the court. See, Lucas v. City of Juneau, 20 F.R.D. 407 (D.Alaska 1957). In the instant case, no record was made and no explanation made in this Court. Plaintiff presented an order to reinstate the action along with default judgment proceedings and secured the signature of the court. After default judgment was entered, one year and four days elapsed before defendant proceeded against plaintiff to avoid the one year limitation period allowed defendant in Rule 60(b)(1), (2) and (3).\nThese \u201cexceptional circumstances,\u201d unexplained in the record, run in favor of defendant. A party who seeks to obtain and sustain a default judgment under these \u201cexceptional circumstances\u201d cannot challenge the discretion exercised by the trial court in vacating the default judgment.\nPlaintiff, silent on his own conduct, charges defendant with lack of diligence in determining the status of his case. He relies on Ben Sager Chemicals Intern. v. E. Targosz & Co., 560 F.2d 805 (7th Cir. 1977). It differs in three vital respects: (1) the district court denied defendant\u2019s motion to vacate the default judgment; (2) defendant was represented by a lawyer who was grossly negligent in his duties and failed to inform defendant of the progress of the case; and (3) the district judge was not fully convinced of the diligence of defendant. What was said of defendant and his attorney applies with equal force to plaintiff and his attorney in the instant case, not the defendant. See, Rogers v. Lyle Adjustment Company, 70 N.M. 209, 372 P.2d 797 (1962).\nNo authority has been cited that defendant, an insured, who immediately gives process and complaint to his insurance agent, is grossly negligent or ordinarily careless, in not making inquiry as to the progress of the action. Generally, insureds are ordinary persons who know that they must promptly deliver to the insurer legal papers received in connection with an accident, cooperate with the insurer in the settlement or defense of any action; that the insurer will provide a lawyer for the insured to defend the action; that it will settle or defend as it considers appropriate to the limit of its liability. After having delivered the legal papers, an insured feels secure in his position. He believes that he will receive maximum protection consistent with the insurance policy and his reasonable expectations. See, Pribble v. Aetna Life Insurance Company, 84 N.M. 211, 501 P.2d 255 (1972). Inquiry must come from the lawyer to the insured not from the insured to the lawyer. Defendant did not lack diligence in failing to inquire about the status of his case. For 39 months, plaintiff, a business associate of defendant, with knowledge of defendant\u2019s whereabouts and insurance coverage, used every procedural device for unaccountable reasons to hold Republic Insurance Company liable, and if not, to strangle defendant by creating additional extensive litigation.\nFinally, plaintiff argues that defendant failed to file his motion to vacate the default judgment within a reasonable time under Rule 60(b)(6). It merits no response.\nAFFIRMED. Plaintiff shall pay the costs of this appeal.\nLOPEZ, J., concurs.\nWOOD, J., specially concurs.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "WOOD, Judge\n(specially concurring).\nThe trial court set the default judgment aside under clause 6 of R.Civ.Proc. 60(b). The propriety of this action is the dispositive appellate issue.\nTo set aside any default judgment under R.Civ.Proc. 60(b), defendant must show there is a meritorious defense and the existence of grounds for setting the judgment aside. Marberry Sales, Inc. v. Falls, 92 N.M. 578, 592 P.2d 178 (1979). Defendant\u2019s showing of a meritorious defense was uncontradicted. See Springer Corporation v. Herrera, 85 N.M. 201, 510 P.2d 1072 (1973). Only the grounds for setting aside the judgment are in issue.\nRelief under clause 6 is authorized when appropriate to accomplish justice and requires a showing of exceptional circumstances. Parks v. Parks, 91 N.M. 369, 574 P.2d 588 (1978). Inasmuch as the trial court\u2019s order will be reversed only for an abuse of discretion, Marberry Sales Inc. v. Falls, supra, the question is whether the trial court\u2019s view of exceptional circumstances was not in conformity to law and, therefore, an abuse of discretion. Springer Corporation v. Herrera, supra.\nIn considering the question of exceptional circumstances:\n1. It is incorrect to equate the \u201cexceptional circumstances\u201d of clause 6 for setting aside a judgment with the \u201cgood cause\u201d required under R.Civ.Proc. 55(c) to set aside an entry of default prior to judgment. See Franco v. Federal Bldg. Service, Inc., 98 N.M. 333, 648 P.2d 791 (1982). Clause 6 is a residual clause to cover unforeseen contingencies and exceptional situations. 7 Moore\u2019s Federal Practice \u00b6 60.27[2] (2d ed. 1982). Thus the \u201cgood cause\u201d of the first five clauses may not be utilized for relief under clause 6. Parks v. Parks, supra.\n2. However, in determining exceptional circumstances, the trial court \u201cshould keep in mind that default judgments are not favored and that causes should generally be tried upon their merits.\u201d Marberry Sales, Inc. v. Falls, supra. Moore\u2019s, supra, at 362, states that default judgments \u201cmust be considered against a background of general preference for disposition of cases on their substantive merits.\u201d\nThe following items, considered in light of the preference for trial on the merits, were a sufficient showing of exceptional circumstances:\n(a) The trial court\u2019s evaluation that defendant \u201cdid all that was required of him. That is, he took it [the suit papers] to his insurance carrier, which was a reasonable thing to do.\u201d\n(b) Defendant was misled into inaction when the insurance agent \u201csaid he would promptly turn it [the suit papers] over to the insurance company and not to worry about it.\u201d The insurance company never received the suit papers from the agent and, thus, never employed counsel to defend plaintiff\u2019s suit.\n(c) Plaintiff\u2019s knowledge that defendant was insured and that insurance coverage had never been denied. Plaintiff negotiated with the insurance company pri- or to the time suit was filed.\n(d) The entry of a default judgment for $50,000.00 without any proof of damages. See R.Civ.Proc. 55(e); Gallegos v. Franklin, 89 N.M. 118, 547 P.2d 1160 (Ct. App.1976).\n(e) Plaintiff\u2019s lack of action to collect the default judgment until the one year period for relief under clause 1 of R.Civ. Proc. 60(b) had expired.\n(f) Defendant\u2019s lack of knowledge of the default judgment until the one year period for relief under clause 1 had expired, and the undisputed showing that the only bar to relief under clause 1 was the one year time limitation.\nThe \u201cexceptional\u201d aspect of the above circumstances is that defendant was originally misled into inaction and that plaintiff, with knowledge of insurance coverage, avoided alerting defendant to the need to take action in connection with an erroneous damage judgment until clause 1 relief was barred. The trial court did not abuse its discretion in setting aside the default judgment; setting the default judgment aside, under clause 6, was appropriate to accomplish justice.", "type": "concurrence", "author": "WOOD, Judge" } ], "attorneys": [ "Kevin M. Brown, Shwartz & Loughren, Albuquerque, for plaintiff-appellant.", "Edward T. Curran, Eric Scott Jeffries, Menig, Sager, Curran & Sturges, P.C., Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "651 P.2d 1314\nRalph DYER, Plaintiff-Appellant, v. George PACHECO, Defendant-Appellee.\nNo. 5818.\nCourt of Appeals of New Mexico.\nSept. 30, 1982.\nKevin M. Brown, Shwartz & Loughren, Albuquerque, for plaintiff-appellant.\nEdward T. Curran, Eric Scott Jeffries, Menig, Sager, Curran & Sturges, P.C., Albuquerque, for defendant-appellee." }, "file_name": "0670-01", "first_page_order": 708, "last_page_order": 713 }