Taylor v. Van Winkle's IGA Farmer's Market, No. 17282

• Docket Nº: No. 17282
• Citation: 122 N.M. 486, 927 P.2d 41, 1996 NMCA 111
• Case Date: September 16, 1996
• Court: Court of Appeals of New Mexico

Page 41

927 P.2d 41 122 N.M. 486 Shirley A. TAYLOR, Plaintiff-Appellee,
v.
VAN WINKLE'S IGA FARMER'S MARKET, Defendant-Appellant. No. 17282. Court of Appeals of New Mexico. Sept. 16, 1996.
Certiorari Denied Oct. 29, 1996.

Page 42

[122 N.M. 487] David I. Rupp, Alamogordo, for Plaintiff-Appellee.

Emily A. Franke, David N. Whitham, Butt, Thornton & Baehr, P.C., Albuquerque, for Defendant-Appellant.

OPINION

BUSTAMANTE, Judge.

1. Defendant appeals from the trial court's order denying its motion under NMRA 1996, 1-060(B) to set aside a default judgment. Our second calendar notice proposed summary affirmance. Defendant filed a memorandum in opposition to the calendar notice. Not being persuaded by the arguments in the memorandum in opposition, we affirm the order of the trial court. Because the facts are clear, we deem this matter appropriate for the summary calendar. Garrison v. Safeway Stores, 102 N.M. 179, 180, 692 P.2d 1328, 1329 (Ct.App.), cert. denied, 102 N.M. 225, 693 P.2d 591 (1984).

2. Facts and Procedural Posture On June 24, 1994, Plaintiff filed her "Complaint for Negligence" in district court against Defendant. The complaint was served on Defendant on June 30, 1994. The complaint alleged that Plaintiff worked for Defendant and that on December 29, 1993, which was one of her days off, she went to the store to pick up her paycheck. While in the store, she slipped and fell on water that was on the floor due to a faulty sink drain in the bakery department. As a result of the fall, Plaintiff alleged she injured her knee, ankle, and back, and had been unable to work since the accident. The complaint sought damages for personal injury. The complaint was filed approximately one month after Defendant's workers' compensation carrier had denied by letter that the injury occurred within the course and scope of Plaintiff's employment.

3. By August 3, 1994, Defendant had not filed an answer, and Plaintiff took Defendant's default. In addition, Plaintiff filed a motion for a hearing to determine damages. The motion and the notice of hearing were served on Defendant's registered agent. A hearing was held, and, on September 16, 1994, the trial court entered judgment in favor of Plaintiff in the amount of $181,518.20.

4. Almost a year later, on September 15, 1995, Defendant moved to set aside the default judgment under NMRA 1-060(B)(1) and (4). With respect to NMRA 1-060(B)(1), Defendant argued that its failure to answer was due to excusable neglect and that it had a meritorious defense, which was that Plaintiff's injury was sustained in the course and scope of her employment, see Martinez v. Stoller, 96 N.M. 571, 632 P.2d 1209 (Ct.App.1981), and therefore the action was barred by the exclusivity provisions of the Workers' Compensation Act. See NMSA 1978, § 52-1-9 (Repl.Pamp.1991). With respect to NMRA 1-060(B)(4), Defendant argued that the default judgment was void because the district court lacked subject matter jurisdiction over workers' compensation claims. The

Page 43

[122 N.M. 488] trial court held an evidentiary hearing on the motion. Ultimately, the trial court entered findings of fact and conclusions of law and an order denying the motion. The trial court held that it had subject matter jurisdiction over the case, that Defendant had a meritorious defense, and that Defendant's failure to file an answer was not the result of excusable neglect. This appeal followed.

5. Initially, Defendant argued both issues on appeal. However, the memorandum in opposition to the second calendar notice did not contest our proposed affirmance of the trial court's determination concerning excusable neglect. Thus, the issue is abandoned. State v. Johnson, 107 N.M. 356, 358, 758...