Melehes v. Wilson

URBIGKIT, Justice,

in part concurring in the decision and otherwise dissenting, with whom CARDINE, Chief Justice, partially joins.

One of the anathemas or, more explicitly, mine fields within the justice delivery system is procedural default, and expressly the default judgment. Default or forfeiture wfiich denies substantive resolution seems a cultivated growth which is pervasive in the modern day adjudicatory mold. In this case, differing from many, the error is not attributable to attorney performance default with deleterious effect then visited upon the client. Here, the separate litigants in one way or another did it to themselves. Cf. Hochhalter v. Great Western Enterprises, Inc., 708 P.2d 666 (Wyo.1985). I dissent in part because the law should actually, and not in unperformed and empty promise, favor disposition of litigation on the merits and should disfavor forfeiture of rights by a determination which is not correctable after unintended default. See in current review as a summary reversal of denied W.R.C.P. 60(b) relief, Lee v. Martin, 533 So.2d 185 (Ala.1988).

In my analysis, it was an abuse of discretion for the trial court to deny corrective opportunity by failing to set aside the default as to the son, Mark Melehes. I might have applied a similarly beneficence to either or both the father and the corporation if motions to set aside the default had been adequately, comprehensively and factually supported by affidavits providing some reasoned and realistic supporting detail. The affidavits should have justified the default occurrence and more comprehensively defined an adequate defense. Annis v. Beebe & Runyan Furniture Co., 685 P.2d 678 (Wyo.1984); RIM Group v. Mountain Mesa Uranium Corp., 78 Wyo. 204, 321 P.2d 229, reh’g denied 323 P.2d 939 (1958).

Since I do not perceive that the father and the corporation met the factual submission burden upon which the trial court’s abuse of discretion should be placed, I will concur and affirm the default judgments entered against the father and the corporation, except as to amount, although I do not necessarily conclude that W.S. l-l-109(d) application can justify the award made.1

*583As a second issue, I will concur in the result of the decision reflected in section four of the opinion since judgment amount, even within the factual context of the default hearing, was clearly an award of punitive damages. The evidentiary proof was totally insufficient to justify inclusion. Adel v. Parkhurst, 681 P.2d 886 (Wyo.1984). My reservation about punitive damages, except in the most unusual and egregious circumstance, is that even with acceptance of the entire pleading in this case as true, there still is no proper basis for such an award in addition to the actual proven damages.

My foremost departure in dissent is postured on the trial court denial of the Mark Melehes’ motion to set aside the default entered against him. Personally served, he delivered the document to his father, as president of the enterprise, for handling. No lack of concern or due diligence is demonstrated. Furthermore, realistic evidence of his liability for the injury to the appellee from the fall on the golf course is not reflected in the record.2

*584It is recognized that consideration of an appeal from a refusal of the trial court’s exercise of discretion to set aside a default or default judgment entails an examination of that discretion evaluated with due regard to certain standards. Claassen v. Nord, 756 P.2d 189 (Wyo.1988); Booth v. Magee Carpet Co., 548 P.2d 1252 (Wyo.1976); RIM Group v. Mountain Mesa Uranium Corp., 78 Wyo. 204, 321 P.2d 229 (1958). That principle, as a standard of justice, is defined for this jurisdiction in Lake v. Lake, 63 Wyo. 375, 182 P.2d 824 (1947) and then reemphasized in Westring v. Cheyenne National Bank, 393 P.2d 119 (Wyo.1964) and Claassen, 756 P.2d 189.

“ * * * Judgments by default are not favored. Courts prefer that cases be tried upon the merits. ‘It is generally recognized that the discretionary power of the court should be liberally exercised in furtherance of justice, to the end that cases may be disposed of upon their merits rather than upon technicalities or fortuitous circumstances.’ Freeman, supra [1 Freeman on Judgments, p. 580 (5 Ed.)], Sec. 292. 31 Am.Jur. 265, Sec.

Westring, 393 P.2d at 122 (quoting Lake, 182 P.2d at 834).

As this record is presented, there is nothing that Mark Melehes did which would be unusual or inattentively careless. Furthermore, his liability for the injury is surely tested under any theory which is directly controverted and supported by his affidavit regarding his non-relationship to the golf course and the operating entity. His liability, if any, should be proven before unjustified assessment is inflicted.

I concur in the results only to affirm the default judgment against the father, John A. Melehes, and Targhee Village, Inc., and concur in the remand for a proper determination of amount. I would also reverse and remand for an order setting aside the default judgment against Mark Melehes so that his liability can be tried and determined on the merits. To me, justice is a substantive decision on the merits of the issues presented after a fair trial. That is not this case. This court continues to make bad law on non-thinking acceptance of default judgments and ignores our heritage. Justitia nemini neganda est. “Justice is to be denied to none.” There is more to justice than disposition of litigation.

. The factual basis for cause shown to set aside the default against both the father, as the corporation’s president, and the corporation, is largely premised in hearsay and illusion. Specifically detailed first-party affidavit support from the company secretary as the registered agent (which arrangement is normally a serious organizational mistake) or from the president himself, is not provided. See RIM Group, 321 P.2d 229. Anyone who sets out to erase an entered default or default judgment incurs a realistic legal burden of detailed and sufficient affidavit support. Even those of us who do not believe in default judgments accept a persuasive submission as the price and basis for adequate trial court decision on the W.R.C.P. 55(c) and W.R.C. P. 60(b) motions to vacate.

The substance of the “excuse” afforded in behalf of the father is stated in paragraphs 4, 5 and 6 of his affidavit:

4. Due to your affiant’s lack of training and absence of experience, after reviewing those pleadings, he reasonably believed that the only response required was to provide Answers to Interrogatories pursuant to the preamble to those Interrogatories.
5. In order to give notice of his intent to defend against Plaintiff’s claims, your affiant prepared Answers to Interrogatories and mailed them to counsel for Plaintiff, Robert W. Horn, P.O. Box 3346, Jackson, Wyoming 83001, prior to the expiration of twenty days after service of the Summons and Complaint. A handwritten copy of those Answers is attached hereto as Exhibit “A”. The Answers *583submitted to counsel for Plaintiff were in type written form.
6.Based upon your affiant’s limited knowledge of civil procedure and his general notions of fairness and due process, he believed that no further proceedings or judgment might be had without further notice to him.

.In factual substance, Mark Melehes stated in his affidavit in support of his motion under W.R.C.P. 55(c) and 60(b):

1. I am the same Mark A. Melehes named as a Defendant in the above-entitled civil action.
2. I am the natural son of John A. Me-lehes, who is also named as a Defendant in the above-entitled civil action.
3. To the best of my knowledge, the land upon which the golf course referred to in the Plaintiffs complaint was and is located and owned by a corporation called Targhee Village, Inc.
4. To the best of my knowledge, my father, John A. Melehes was president of Targhee Village, Inc., at the time that Patrick Wilson alleges to have been injured on the golf course.
5. I am not now, nor have I ever been, an officer, director, manager or an employee in any capacity, manager or otherwise, of Tar-ghee Village, Inc. or the golf course upon which the Plaintiff claims to have been injured, or directed or controlled any of the activities of the corporation or golf course.
6. On November 27, 1987, Tracy Hansen, known to me as a Teton County, Wyoming deputy sheriff, gave me a copy of the complaint and summons issued to me in this action.
7. To the best of my recollection, on the same day that I was given a copy of the summons and complaint, I spoke in person to my father, John A. Melehes, showed him the summons and complaint, and asked him what this lawsuit was all about. At this time, my father took my copy of the summons and complaint and told me in substance that the lawsuit was not my problem; that I was not involved in the business of the golf course; and that he would file an answer and take care of the lawsuit.
8. That I am 36 years of age and to the best of my recollection during my entire life, my father has never told me he would do something that was important, and then fail to do so.
9. After giving the summons and complaint to my father, I heard nothing about this lawsuit until the evening of March 10, 1988, when my wife informed me that she received a telephone call from Larry Hartnett, an attorney who had represented me in the past, and that Mr. Hartnett had informed her that he had heard that a judgment in the amount of $175,000.00 had been entered against me by this Court that same day.
10. I spoke to Mr. Hartnett on March 11, 1988, and he told me that he thought a judgment had been rendered against me the day before for $175,000.00, and asked me what I knew about it.
11. I told Mr. Hartnett that I didn’t know anything about it, except that I had given my summons and complaint to my father and he (my father) had told me that he would take care of it.
12. On or about March 13, 1988,1 was able to locate my father, who resides in Utah, and told my father what Mr. Hartnett had told me. My father told me that he had taken care of it and filed an answer.
13. On Monday, March 14, 1988, I again spoke to Mr. Hartnett by telephone and related to him my father’s response, and Mr. Hart-nett told me that he had checked the court file on that same day and that there was no answer or any other kind of paper filed by my father.
14. I contacted my father again by telephone on March 16, 1988, and told him * * * Mr. Hartnett said * * * there was no answer from him in the court file, to which my father responded that he had personally prepared an answer, signed it and mailed it to Mr. Robert Horn, the attorney who had filed the complaint, within the time allowed.
15. I was genuinely surprised and confused when I learned that my father had not filed an answer with the court on my behalf.
*58416. I am not an irresponsible person and I truly believed that my father would file the papers with the court to protect me.
17. The statements contained in this Affidavit are based upon my personal knowledge and are true to the best of my information and belief.