Vail Daily column: Setting aside a judgment | VailDaily.com
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Vail Daily column: Setting aside a judgment

We’ve all learned that it ain’t over till the fat lady sings. The problem is, sometimes it’s hard to tell exactly when the score ends. What if she keeps singing when it runs out? Who’s going to run up with a Vaudeville theater hook and haul her off? Well, there’s a law for that.

Let me set the stage.

You see, the law has competing interests. Think of the scales of justice; it’s always a balancing act. Sometimes things tip this way, sometimes another. And in this particular case, the competing interests are those of finality of judgments balanced against … well … “doing justice.” While the law smiles upon letting things lie once they are done, it sometimes grins more broadly upon giving one his or her day in court.



A little context here might help.

And, unlike revenge, a suit is a dish best served piping hot. What I mean by this is once a lawsuit is lodged with the court, the party or parties to be affected by it must be officially provided notice of the claims against them and done so promptly.

YOU’VE BEEN SERVED



Unless we’re talking about a haberdashery, when a suit is filed, it must be “served.” And, unlike revenge, a suit is a dish best served piping hot. What I mean by this is once a lawsuit is lodged with the court, the party or parties to be affected by it (the defendant(s)) must be officially provided notice of the claims against them and done so promptly. Otherwise, how are they to show up and defend themselves?

The most usual way of “serving” a complaint is “personal.” “Personal service” means a member of the local constabulary or a private process server finds the defendant(s) (usually at their homes or place of work) and hands them a copy of the complaint along with a “summons.” The summons says, in essence, “Yo, you are being sued. Here is the complaint. Here’s the court that’s dealing with the matter. And here’s by when you have to answer the complaint.” OK, I’m simplifying and there’s nary a “yo” to be found, but you get the point; “service” is how a party is formally notified that there’s a legal action against him/her and, unless one wants the action to be “defaulted” against him/her, he/she better get his/her fanny in gear, find a lawyer and put up the legal dukes.

CLOCK IS TICKING



What if, though, a party served does nothing at all? Rather than responding, he/she kicks back to re-runs of “Breaking Bad”? We’ll get to that in just a sec. But first, after the complaint is served, it is “returned” to the court, sworn to under affidavit by the process server who swears, in effect, “I found him and dropped the bomb on him.”

Once a party is served, a clock begins to run. Speaking generally, once one is served, if he/she is a resident of this state, then he/she must “answer” the complaint in three weeks’ time. If a resident of another state or nation, he/she has a bit more leisure but, hey, this ain’t no Caribbean cruise, they’ll have to belly up to the bar of law within five weeks. If, instead of answering, he/she becomes locked into re-runs of bad (or even arguably good) TV, and does nothing, sure as shootin’ the plaintiff’s lawyer will “move” for a default judgment.

‘MOVING’ THE COURT

“Moving” in the law, rather than a Michael Jackson dance step, is how things get done. One files a “motion” or “moves the court” to do a certain thing. It is the formal process of asking the court to take action in a certain matter or regarding a certain thing. In this case, the plaintiff’s counsel will move the court to rule in the plaintiff’s favor, saying, “The defendant’s didn’t respond. Therefore, Honorable Court, the law provides that you must rule in my client’s favor.” But wait, there’s more … “Not only must you rule in my client’s favor, but you must give him everything he’s asked for in the lawsuit. As no one has shown up to contest his claims, the court must accept that they are true and provide my client with the precise ‘relief’ requested.” “Relief” is, by the way, the purpose of the lawsuit — it is what it is you are asking the court to do — whether award the plaintiff money damages or something else.

Admittedly, this a little overboard — say the plaintiff requested that he/she be deeded the moon, well then nah — but, this is generally correct. As the Stones observed, oh those many years ago, “You can’t always get what you want,” but if the other party fails to show up in court, you pretty much can.

The matter being uncontested and time having run, the court will, sure as the day is long, enter a default judgment against the defendant(s).

WAKE UP

But what if the defendant suddenly wakes up? What if, after time has run, he has a “come to Jesus moment” and realizes that, oops, he/she forgot about that lawsuit. So drawn in was he/she by Walter White and his evil doings that he/she just plain neglected that darn pesky lawsuit? But, hey, who could blame him/her? When one is enraptured by something as important as a TV series, surely forgiveness is peering shyly just around the corner.

So our hero digs out the lawsuit he/she dispatched to the closet with Wellington Boots and gives it the once over. Oops, he/she notes, the answer was due around the Yuletide season and now it’s dipping into spring. Still, he/she hauls up lethargy and calls a lawyer. Apprised the facts, the lawyer says, “Well, there is a chance …” And that gets us, finally, to motions to set aside a judgment.

The law believes in second chances. So long as one has a good reason (editorially, I’m not sure “Breaking Bad” will get you there), the court will at least consider what that reason is and consider giving you another swing at the pinata notwithstanding that you are a little late to the fiesta. If “good cause” is found, then the court, in its discretion, may provide a dilatory defendant a chance to be heard “on the merits,” the court generally disdaining judgments based on technical grounds or rules rather than a full airing of the dispute. In such case, the court will “set aside” the default judgment and proceed as if this little detour had never happened.

COMPELLING REASONS

Fair warning, though: The statute under which a motion to set aside may be brought is not without limits. “I just didn’t feel like answering” is never a good excuse. Instead, there must be compelling reasons for the court to set aside a judgment, but the court, in its mercy and in its sincere interest in giving all parties a chance to be heard, will err most times in substance over form. And the fat lady has sung her final note.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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