Melehes v. Wilson

• Decision Date: 10 May 1989
• Docket Number: Nos. 88-126,88-131,s. 88-126
• Citation: Melehes v. Wilson, 774 P.2d 573 (Wyo. 1989)
• Parties: Mark A. MELEHES, Appellant (Defendant), v. Patrick WILSON, Appellee (Plaintiff). John A. MELEHES and Targhee Village, Inc., Appellants (Defendants), v. Patrick WILSON, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 573

774 P.2d 573

Mark A. MELEHES, Appellant (Defendant), v. Patrick WILSON, Appellee (Plaintiff).

John A. MELEHES and Targhee Village, Inc., Appellants (Defendants), v. Patrick WILSON, Appellee (Plaintiff).

Nos. 88-126, 88-131.

Supreme Court of Wyoming.

May 10, 1989.

Rehearing Denied June 12, 1989.

Lawrence B. Hartnett, Jackson, for appellant Mark A. Melehes.

W. Keith Goody of Goody & Lubing, Jackson, and Larry G. Reed of Parsons & Crowther, Salt Lake City, Utah, for appellants John A. Melehes and Targhee Village, Inc.

Robert W. Horn, P.C., Jackson, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellants are Targhee Village, Inc., an Idaho corporation and owner of the golf course in question (Corporation); John A. Melehes, president of the corporation (President); and Mark A. Melehes, the president's son and allegedly the golf course manager (Manager). They appeal from the district court's denial of their separate motions to set aside the default judgment in the sum of $175,443.01, entered against them jointly and severally in appellee Patrick Wilson's personal injury action. Appellee sued them because of a leg injury he received when he stepped into a grasscovered hole in the fourth fairway of the golf course.

We address the following issues raised by appellants:

I. Whether each appellant "appeared in the action" for the purposes of W.R.C.P. 55(b)(2), relating to the three-day written notice requirement which a plaintiff must satisfy before he is heard on his default judgment application;

II. Whether the default judgment for $175,443.01, for personal injury damages, entered after a proper hearing, is void under the provisions of W.R.C.P. 55(b), (c) and (d), 60(b), 54(c), 8(a), and 9(g), as they relate to each other, if the underlying complaint did not contain, either in its body or its prayer, a specific dollar amount of damages for which the plaintiff demanded judgment;

III. In light of the provisions of W.S. 1-1-109(d), relating to the limitation of a defendant's liability proportionately to his percentage of fault, whether a default judgment jointly and severally against multiple defendants is void for purposes of relief under the provisions of W.R.C.P. 60(b);

IV. Whether the district court judge at the W.R.C.P. 55(b)(2) hearing improperly included punitive damages in the default judgment damages award despite plaintiff's having withdrawn his punitive damages claim;

V. Whether fundamental notions of due process and fair play require that we set aside the default judgment against the Corporation.

We affirm the district court's denial of appellants' motions to set aside the default judgments and affirm those judgments entered against appellants, including $101,039.01 of the $175,443.01 total damages award. As to the remaining $74,404 of that total award, however, we reverse, vacate and remand to the district court for its determination, in accordance with this opinion, of a damages award for past and future pain and suffering based upon only proper evidence and not upon any punitive considerations.

FACTS

Appellee injured his leg on July 3, 1987, when he stepped into a grass-covered hole on a golf course owned by the Corporation. The concealed hole was lined with plastic pipe and contained sprinkling system valves. Appellee filed his complaint on November 19, 1987, naming eleven individual and corporate defendants. Neither in the body nor in the prayer of the complaint did appellee state a specific dollar amount of damages for which he demanded judgment. Instead, after alleging a variety of elements of personal injury damages, he stated: "The amount of the damage incurred by Plaintiff will be proved at trial, but it exceeds the minimum jurisdictional limitation of this court." President and Manager were served with the complaint in their individual capacities on November 27, 1987. The Corporation received service through its registered agent, Betty Helderman, on December 17, 1987. None of the appellants timely filed proper responsive pleadings to appellee's complaint.

The record includes five pages of "Interrogatories to Defendant" from appellee containing handwritten answers. President Melehes asserts by affidavit that the handwritten answers are his, and that he mailed them to appellee's counsel within twenty days of their receipt. The Corporation asserts that its registered agent, Betty Helderman, prepared and mailed a personal letter response to appellee's complaint to appellee's counsel within twenty days of service. The sole support for this assertion is the affidavit testimony of President. Neither the letter, nor an affidavit from Betty Helderman is included in the record. Manager asserts by affidavit that he gave the complaint that was served on him to President who promised him he would file an answer and take care of the lawsuit.

Appellee filed applications for entry of default against all three appellants in late December 1987, and January 1988. Appellee moved the trial court for a hearing on damages on January 20, 1988, but none of the appellants were notified of that motion. The hearing on damages took place on March 10, 1988, after which the trial court entered default judgment against all three appellants, jointly and severally, in the amount of $175,443.01.

On March 31, 1988, Manager filed a motion under W.R.C.P. 55 and 60(b), to vacate the judgment and entry of default. He also filed an answer to appellee's complaint. The complaint alleged Mark Melehes was the manager of the course when the injury occurred; Melehes denied that allegation in the answer. President and the Corporation filed similar motions and answers on April 4, 1988. The trial court denied Manager's motion to set aside default judgment on May 7, 1988, and did the same with President and the Corporation on May 13, 1988. Manager filed his notice of appeal to both the default judgment and the denial of his motion to set aside the default judgment on April 20, 1988. President and the Corporation appealed on May 22, 1988.

STANDARD OF REVIEW

The law does not favor default judgment because decisions on the merits are preferable when rules of civil procedure allow for them. Claassen v. Nord, 756 P.2d 189, 193 (Wyo.1988). A defendant may move to set aside a default judgment or the entry of default pursuant to W.R.C.P. 55(c) and 60(b). A trial court exercises wide judicial discretion when it responds to such a motion, and we defer to that discretion unless it is shown to have been abused. Claassen, 756 P.2d at 193. See also Martin v. State, 720 P.2d 894, 897 (Wyo.1986) (defining judicial discretion).

I.

APPEARANCE IN ACTION

W.R.C.P. 55(b)(2), provides in pertinent part:

(b) Judgment.--Judgment by default may be entered as follows:

* * * * * *

(2) By the Court.--In all other cases the party entitled to a judgment by default shall apply to the court therefor; * * * If the party against whom a judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.

(Emphasis added.)

None of the appellants, as parties against whom a judgment by default was sought, received a written notice of appellee's default judgment application. We must inquire, therefore, whether each appellant "appeared in the action."

A. Did Manager "appear"?

By affidavit, Manager asserts that immediately after being served with the complaint and summons he gave them to President, also his father, who promised him he would file an answer and take care of the lawsuit. Manager reasons that President's act of mailing unsworn, unsigned, undated interrogatory answers to appellee's counsel before the answer date expired should inure to Manager's benefit and constitute an "appearance" for purposes of triggering the mandatory three-day written notice requirement in W.R.C.P. 55(b). Further, Manager claims his "mistake" was that he trusted President and his "excusable neglect" was that he did not check to see if President in fact had answered the complaint for him.

Manager cites no legal authority, and we find none, supporting his claim that one defendant's asserted appearance can inure to a co-defendant's benefit in this situation. We have stated before that "[a]n appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court." (Citation omitted). U.S. Aviation, Inc. v. Wyoming Avionics, Inc., 664 P.2d 121, 124 (Wyo.1983) In Annis v. Beebe & Runyan Furniture Company, 685 P.2d 678 (Wyo.1984), we affirmed the district court's entry of default judgment against defendants who timely requested an additional twenty days to answer, but then failed to file any other papers, or in any other way defend against the action for five months. In our concluding paragraph in Annis, 685 P.2d at 680, we sounded a warning to litigants who, like Manager, President and the Corporation here, choose to handle their lawsuits without benefit of counsel:

This court has consistently refused to give special consideration to a litigant who chooses to proceed without counsel; he must expect and receive the same treatment as if he were represented by an attorney. Thus, he is held to the same rules of procedure as are required of those qualified to practice law in our courts; otherwise, ignorance is unjustly rewarded.

(Citations omitted). Cf. Korkow v. Markle, 746 P.2d 434, 435 (Wyo.1987)

In Hochhalter v. Great Western Enterprises, Inc., 708 P.2d 666, 670 (Wyo.1985), where the defaulted defendant asserted that his failure to appear in the action was due to his counsel's personal problems or psychological disorders, we observed that a litigant who voluntarily chooses an attorney as his representative in an action may not be able to avoid the...