DocketNumber: No. 08-4402
Judges: LANPHEAR, J.
Filed Date: 3/9/2011
Status: Precedential
Modified Date: 7/6/2016
Suit was initiated in June 2008. On July 10, 2008, the summons and complaint were served on the Defendants by in-hand service on their sixteen-year old daughter. Neither Defendant responded to the complaint. Mr. Saute acknowledged receiving this service from his daughter. (Mr. Saute Aff. of May 18, 2010.) Mr. Saute was also served with a subpoena duces *Page 2 tecum for a deposition on August 25, 2008. He did not appear at the deposition.2 Certified mail and regular mail was sent to Mr. and Mrs. Saute in September and October 2008. The certified mail was unclaimed, and the regular mail was not returned. (Aff. of Ms. Golde, January 13, 2011.) Mr. Saute's refusal to accept in-hand process is demonstrated by Mr. Noury's affidavit of January 13, 2011.
On October 3, 2008, Mr. and Mrs. Saute were defaulted for their failure to answer the summonses. An oral proof of claim was scheduled but continued several times. Mr. Saute refused service of process during this time. Counsel entered for Defendants in November 2008. On February 12, 2010, the proceeding went forward, with Defendants represented by counsel. (See Exhibit E.) In February 2010, judgment entered. In March 2010, executions were issued and Defendants moved to vacate and stay. The Court granted the stay, but Defendants failed to file the bond which was a condition for the stay.
The Plaintiffs moved for contempt and an order to lift the stay in May 2010. In response, three new attorneys appeared for Defendants and pressed the Motion to Vacate. After some discovery, continuances, and an attempt at mediation, the motion proceeded to hearing. On January 10, 2011, the Court denied the motion for contempt, denied the request to stay the enforcement of the judgment and reserved decision on the Motion to Vacate.
Second, the Defendants claim that no permanency was suggested in the complaints, so the Plaintiffs cannot receive such a large recovery. While the June 2008 complaint may not reference the word "permanent" specifically, it does indicate that the damages are "severe" including "a loss of earning capacity" and "grievous injury including pain and suffering, medical expenses." They simply demand judgment in an "amount sufficient" — no specific monetary limit. This is in compliance with Super. R. Civ. P. 7(a) which states, "the pleading shall not state the amount claimed," and subjected the Defendants to unlimited exposure. The judgment rendered was in compliance with the complaint. The Defendants cite no case requiring an allegation of permanency in the pleadings, only cases where judgment exceeded what was specifically prayed for.
Third, the Defendants claim that cause has been shown to vacate the default judgment. A sixteen-year old daughter received process. She gave it to Mr. Saute, as he had knowledge. Perhaps Mr. Saute chose not to speak to his wife, but there is no testimony from the daughter. Indeed, it was the daughter's responsibility to pass it to her mother, whether she was getting along with her, or not. After Plaintiffs' counsel went from insurance company to insurance company to find coverage (with no help from the Defendants), Mr. Saute refused service of process for a subpoena. Counsel then represented both Defendants, delayed the oral proof of claim hearing and was present at the hearing. While counsel claims Mr. Saute was *Page 4 "overwhelmed with issues," the summons and the complaint are obviously important. During the twenty days he had ample time to contact counsel or his insurer. Apparently, he did nothing.
Defendants also claim that the judgment entered was not a final judgment. The document, entitled "JUDGMENT" states "that Judgment shall enter. . . ." Reyes v. Providence Place Group, L.L.C.,
Ms. Saute claims she did not know of the proceedings, as her family allegedly failed to inform her of the service of process. Counsel was present for her at the proof of claim.3 The question remains, however, whether her neglect was excusable. Fortunately our High Court provides significant guidance:
"Excusable neglect" is a more rigorous standard than "good cause," and it requires a party to show "that the neglect * * * was occasioned by some extenuating circumstances of sufficient significance to render it excusable." Daniel v. Cross,
749 A.2d 6 ,9 (R.I. 2000) (per curiam) (quoting Fields v. S. M. Foods, Inc.,105 R.I. 161 ,162 ,249 A.2d 892 ,893 (1969) (per curiam)). We have held that the excusable neglect that would qualify a party for relief "is generally that course of conduct that a reasonably prudent person would take under similar circumstances." Id. (quoting Astors' Beechwood v. People Coal Co.,659 A.2d 1109 ,1115 (R.I. 1995)). . . .Reyes v. Providence Place Group, L.L.C.,
853 A.2d 1242 ,1248 (R.I. 2004)
Ms. Saute stated, under oath, that she did not know of the service or proceedings until after the default. (Aff. of May 18, 2010.) While this may constitute good cause under Super. R. Civ. P. 55, it does not necessarily constitute excusable neglect, as the Court is unsure whether Ms. Saute knew of the later proceedings leading up to the judgment. Her statements also seem inconsistent with the affidavits of the Plaintiffs of September 13, 2010. As the memoranda focused on the incorrect standard (Rule 55(c), not Rule 60), and there are factual issues, the Court will reschedule Ms. Saute's motion for a later date, so the proper standard may be applied, and continues to reserve on her Motion to Vacate.
While a judgment was entered, it was not a final judgment. The claims of Mr. Oullette appear to be outstanding, and the judgment does not indicate finality. However, the issue of *Page 6 whether judgment by Ms. Owens against Mr. Saute has been fully adjudicated at this level and there appears to be no just reason for delay of entry of this final judgment, but the Court will await a proper motion. Given this situation, however, the Court treats the removal of the execution with trepidation. Clearly, a judgment remains against Mr. Saute, and the Plaintiff has sought to encumber his interest in the real estate. Any motions to vacate, or recall the executions are therefore denied without prejudice.
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