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Clemencia v. Mitchell

September 11, 2008

PAUL CLEMENCIA, APPELLANT,
v.
CAMAY MITCHELL, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB-05-6187) (Hon. Maurice A. Ross, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued April 28, 2008

Before RUIZ and THOMPSON, Associate Judges, and FERREN, Senior Judge.

Appellant Paul Clemencia*fn1 appeals the Superior Court's denial of his motion to vacate the default judgment entered against him in a personal injury action arising out of a vehicle collision in which he rear-ended the automobile of appellee Camay Mitchell. We affirm the trial court's ruling.

I. Facts

On or about June 16, 2003, Clemencia, driving a vehicle owned by his mother Ruth Williams, hit Mitchell's vehicle near the intersection of 3rd Street and New York Avenue, N.W. On October 12, 2005, Clemencia was served with the summons and complaint in Mitchell's suit against him. He failed to file a timely answer to the complaint. According to Mitchell's counsel, this was notwithstanding a telephone call on October 28, 2005, in which Mitchell's counsel advised Clemencia that he should contact the vehicle insurer, State Farm Insurance Company, and gave Clemencia the name and telephone number of a State Farm adjuster.

On November 22, 2005, with Clemencia still not having answered the complaint, Mitchell's counsel contacted State Farm and notified the company of the pending lawsuit. A representative of State Farm indicated that the company was unaware of the lawsuit prior to receiving notice from Mitchell's counsel, and requested a copy of the Affidavit of Service. On November 28, 2005, State Farm received a copy of the Summons, Complaint, and Affidavit of Service. State Farm faxed the documents to Attorney Thomas Medford on November 29, 2005, with a notation that Mitchell's counsel planned to seek a default judgment on that same day. Attorney Medford did not immediately file an answer on Clemencia's behalf or seek leave of court to file a late answer.

On December 2, 2005, the Clerk of the Superior Court entered an Order of Default against Clemencia, see Super. Ct. Civ. R. 55 (a),*fn2 for failing to file his answer within the time allotted by Super. Ct. Civ. R. 12 (a). On December 3, 2005, Attorney Medford filed on behalf of Clemencia a Motion to Vacate the Order of Default. Attached to the motion was a purported "Verified Answer" that was signed by Attorney Medford rather than by Clemencia himself.*fn3 Mitchell opposed the motion, arguing that there was no showing of good cause for failure to timely file an answer and that the late-filed answer was not verified by defendant Clemencia as is required by Super. Ct. Civ. R. 55 (c) and Super. Ct. Civ. R. 9-I. On January 17, 2006, the court signed a one-sentence order denying Clemencia's motion. The court set March 3, 2006, as the date for a hearing on damages. See Super. Ct. Civ. R. 55 (b)(2).*fn4

On February 21, 2006, Attorney Medford filed a Motion to Reconsider the denial of the motion to vacate the entry of default. The motion was accompanied by an affidavit signed by Clemencia,*fn5 but not by a verified answer. On March 3, 2006, the date set for the hearing on damages, the court first heard oral argument from both parties on Clemencia's motion for reconsideration. Attorney Medford explained that in the past, he had filed verified answers "with counsel signing." The court denied the motion for reconsideration, reasoning that Clemencia had failed to file the verified answer required by Rules 9-I and 55 (c) and, in addition, had failed to show good cause for vacating the default, as also required by Rule 55 (c).

Thereafter, the court heard evidence on damages. The court heard testimony from Mitchell, her treating neurologist, and an expert economist. Attorney Medford cross-examined each witness but did not call any witnesses on Clemencia's behalf. Clemencia was not present at the hearing. At the close of the evidence, Mitchell's counsel summarized the evidence that Mitchell had incurred approximately $13,000 in medical expenses, $150,000 to $202,000 in lost wages (as discounted to present value), as well as pain and suffering and loss of enjoyment. Mitchell prayed for damages of $750,000.

At the close of the Rule 55 (b)(2) hearing, the trial court entered judgment in Mitchell's favor in the amount of $230,000. The court scheduled an oral examination,*fn6 i.e., discovery in aid of execution of judgment, for April 21, 2006. Clemencia retained new counsel (O'Neil King), and on April 19, 2006, Attorney King filed on Clemencia's behalf a Motion to Vacate the Default Judgment, arguing that Clemencia's previous counsel, Attorney Medford, had committed gross and inexcusable neglect that constituted an extraordinary circumstance entitling Clemencia to relief from judgment under Super. Ct. Civ. R. 60 (b). The court denied this motion in an order dated June 28, 2006, finding that Attorney Medford's "mistake of law" (about the need for an answer verified by Clemencia) did not warrant relief under Rule 60 (b)(1), and finding no evidence of grossly negligent behavior or outrageous conduct that could justify relief under Rule 60 (b)(6). This appeal followed.

II. Standard of Review

We review the denial of a motion seeking to vacate a judgment under Rule 60 (b) under an abuse-of-discretion standard. Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 517 (D.C. 1985). That is, "[t]he grant or denial of a motion to vacate is within the discretion of the trial court, and its determination will be disturbed on appeal only upon a showing of abuse of discretion." Id. (citation and internal quotation marks omitted). We also recognize that the trial judge is "in the best position to evaluate the immediate circumstances of the case and the ...


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