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DeFillippo v. Neil6/21/2002
Plaintiffs Patrick DeFillippo, Stephanie DeFillippo, Gary Lizzi, and Patricia Lizzi filed suit against Eva Neil (Neil) claiming damages for personal injuries suffered as a result of the collapse of a balcony. Neil filed her answer to the complaint one day late, and the trial court entered a "default judgment" against her in favor of Plaintiffs. Neil filed a motion to set aside the default, pursuant to Rules 1-055(C) and 1-060(B) NMRA 2002. The trial court denied this motion as well as her request for a jury trial on the issue of damages. Neil appeals from the denial of her motion to set aside the default and from the trial court's denial of a jury trial on the issue of damages.
To resolve the case, we analyze the applicability of Rules 1-055(C) and 1-060(B) as well as the discretion accorded a trial judge under Rule 1-055(C). We reverse the trial court's refusal to set aside the default and remand the case for a trial on the merits.
BACKGROUND
This action arises from injuries assertedly sustained by two of the Plaintiffs, Patrick DeFillippo and Gary Lizzi, on June 18, 1995, when an apartment complex balcony on which they were standing suddenly collapsed. Neil owned the apartment complex and had rented one of the units to Gary and Patricia Lizzi. Plaintiffs alleged Patrick and Gary suffered damages in the forms of physical injuries, pain and suffering, permanent disability, and economic losses as a result of the accident. Their wives alleged they suffered past and future loss of their husbands' services and loss of consortium.
Plaintiffs filed suit on June 4, 1998. Service was effected by leaving a copy of the summons and complaint at Neil's residence on June 11. There is no allegation that service was improper. The answer to the complaint was due by July 13. On the morning of July 14, Plaintiffs filed a certificate as to the state of the record and non-appearance, an affidavit for entry of default, and an application for default judgment. The trial court entered a "default judgment" the morning of July 14. Neil's answer was fax-filed with the court on the afternoon of July 14, and filed again in person on July 15.
Neil filed a "Motion To Set Aside Default Judgment" on July 24, and a "Jury Demand" on July 23. In her motion, Neil argued that the answer had been filed one day late because her insurance claims adjuster erred in calculating the due date for the answer and did not deliver the summons and complaint to her attorneys until July 14. Neil's motion cited Rules 1-055 and 1-060 as grounds for relief and also asserted the existence of a meritorious defense. As a practical matter, the majority of Neil's arguments asserted she had met the "excusable neglect" standard set forth in Rule 1-060(B)(1) for setting aside a default judgment.
The trial court initially denied Neil's request for relief. On Neil's oral motion for reconsideration, the trial court reversed itself and ruled in her favor. Plaintiffs thereafter moved for reconsideration of the trial court's second ruling. Ultimately, on March 11, 1999, the trial court issued an order denying Neil's motion to set aside default judgment. The trial court concluded that Neil "did not carry her burden of demonstrating that her insurer's conduct met the standard for relief under ule 1-060(B)(1)." This Court, on April 27, 1999, denied Neil's application for leave to file an interlocutory appeal on the issue. After a bench trial on the issue of damages, judgment was entered for Plaintiffs in the amount of $919,478.56, plus costs.
PRESERVATION
On appeal, Neil argues that the trial court erred as a matter of law in applying the Rule 1-060(B) stan
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