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Nuyen v. Luna10/13/2005
nds, action or damages which arise out of, or in any way relate solely to, the alleged personal injury claims of [Luna] and/or her minor children, which resulted in the filing of a lawsuit by [Luna] identified as Luna v. Nuyen Civil Action No. 01CA008500.
The agreement expressly exempted from its scope the claims and defenses in the landlord-tenant action, and stated that that action would "continue unhindered, unimpeded, and without any limitation to the causes or defenses asserted therein, notwithstanding the execution of this agreement."
On November l3, three days after Nuyen executed the settlement agreement, Luna and her attorney appeared for the scheduled pretrial conference in the landlord-tenant case. Nuyen did not appear, and neither did his lawyers in the civil action. The court took no action at the pretrial conference but granted Luna leave to file a motion for default judgment.
On December 24, 2002, Luna filed a motion for default judgment on her counterclaim, on the ground that Nuyen had failed to attend the pretrial conference. She asked for a rent abatement in the amount of $4,000, punitive damages in the amount of $50,000, release of all monies in the registry of the court, and injunctive relief.
Nuyen's counsel in this appeal filed a praecipe on February 26, 2003, in which he entered his appearance "in order to respond to defendant's motion for default judgment this remaining case." No response, however, was filed. On June 24, 2003, the trial court granted as unopposed the motion for default judgment, granting all of the relief Luna requested.
Acting pro se, Nuyen filed a motion to vacate the default judgment on July 14, 2003. He represented that he had not received notice of the pretrial conference, had been in prison since April 22, 2002, and had not been represented by counsel since the settlement of the civil action. He asserted that Luna's counterclaim had no merit, and attached to the motion a paper entitled "Plaintiff's Response to Defendant's Motion for Default Judgment and Motion for Enlargement of Time." The attachment stated, among other things, that there were no housing code violations in Luna's apartment, and argued that Nuyen's criminal convictions in the cases relating to lead-paint violations were irrelevant to the claimed housing code violations. In his motion, Nuyen represented that he had mailed and served the attached response immediately after receiving the motion for default judgment on January 3, 2003. (Nuyen's certificate of service on the response, however, indicated service of the response on December 27, 2002.) Citing Super. Ct. Civ. R. 59, Nuyen asked the court to vacate the judgment.
On July 24, 2003, Luna filed an opposition to Nuyen's motion. The opposition noted counsel's praecipe stating an intent to file a response to the motion for default judgment, and pointed out that the promised response had never been filed. Luna's opposition argued that Nuyen provided no grounds for relief under Rule 59, or "any other civil rule." Luna argued that Nuyen had asserted no error of law, no intervening change in the law, no new, previously unavailable evidence, and no manifest injustice warranting relief.
The trial court granted Nuyen's counsel an extension of time to amend Nuyen's motion. On August 26, Nuyen's counsel filed a motion to vacate the default judgment.
The motion represented that, in response to the motion for default judgment, Nuyen had filed an opposition claiming that he had received no notice of the pretrial conference. The motion then, somewhat confusingly, represented that Nuyen had had his counsel "deliver a copy of his Opposition to the court jacket and
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