Default judgment vs trader voided due to error

Superior Court Associate Judge Ramona V. Manglona has set aside the Clerk of Court’s default judgment that would have entitled a law firm to its payment of damages against a former client, businessman David Oh.

Manglona struck down the Clerk of Court’s signature on O’Connor Berman Dotts & Banes law firm’s “Proposed Entry of Default And Entry of Default Judgment,” which was filed with the court as part of the law firm’s petition.

Manglona granted Oh’s motion for relief from the Clerk’s entry of default and default judgment irregularly posted on Jan. 16, 2007.

The judge allowed the businessman to file no later than June 16, 2008, his proposed answer or other responses to the law firm’s lawsuit.

Manglona determined that the court’s documents on file and record in this lawsuit, as it existed on Jan. 15, 2007 when O’Connor’s law firm presented its request for entry of default and default judgment to the Clerk of Court, already contained a prior appearance by Oh in the case.

The Clerk, therefore, lacked authority at that time to enter the default judgment versus Oh, she said.

“No entry of default was in fact perfected on the docket, but the Deputy Clerk’s signature on plaintiff’s proposed entry and judgment was made without authority and is ineffective to constitute an entry of default or default judgment,” Manglona said.

According to court records, on June 20, 2003, O’Connor’s law firm sued Oh for breach of contract and unjust enrichment. The law firm sought $11,433 in general damages.

The law firm personally served the summons and complaint on Oh three days after the case was filed.

Before the 20-day period to file an answer to the complaint expired, counsel for plaintiff and Oh asked to extend the time for the defendant to file an answer to Aug. 15, 2003. The court granted the request.

Three years and five months after the Aug. 15, 2003, deadline, on Jan. 15, 2007, the law firm e-filed a petition for entry of default and default judgment.

The law firm’s petition was accompanied by its attorney’s declaration attesting that no answer to the complaint had been received.

The law firm’s attorney also stated that Oh’s counsel had not contacted them to seek another extension to file an answer to the complaint.

The petition’s third page had the words “Proposed Entry Of Default And Entry Of Default Judgment” across the top and a blank signature line for the Clerk of the Superior Court.

About 11 months after submitting its petition, the law firm’s counsel contacted the Clerk of Court’s office to determine if the Clerk had signed and entered the default and default judgment.

The counsel was informed and provided a copy of the signed entry of default and default judgment dated Jan. 16, 2007.

On Jan. 31, 2008, a little over a year after the clerk signed the proposed entry of default and default judgment, the law firm filed a request for immediate issuance of writ of execution against the businessman.

The court set the request for a hearing on Feb. 19, 2008, and ordered the law firm to serve notice of the hearing on Oh.

Oh personally appeared with a translator at the hearing. Based on the facts presented at the hearing, the court ordered him to make monthly payments toward the judgment.

Oh hired a new attorney to defend him in this case. He demanded relief from the Clerk’s entry of default, default judgment, and the court’s payment order.

The hearing was held on May 12, 2008. Oh appeared through counsel Richard W. Pierce. Lawyer George L. Hasselback appeared for the O’Connor law firm.

The issue presented at the hearing was whether there was a lawful entry of default or default judgment by the Clerk against Oh, entitling the law firm to its payment order in aid of judgment and a writ of execution.

Oh argued, among other things, that pursuant to Commonwealth Rules of Civil Procedure, the court should vacate the payment order and, if it is determined that a default and default judgment were in fact entered on the docket, they should be vacated.

Oh further challenged the clerk’s authority to enter a default judgment in this case.

In particular, Oh argued that the clerk had no authority to enter a default judgment because Mr. Oh had appeared in the proceeding through counsel in August 2003.

Oh filed the motion for relief a year and three months after the clerk signed the proposed entry of default and default judgment, and four months after the law firm’s counsel received confirmation that the proposal was actually signed by a Clerk.

In her order issued Thursday, Manglona found Oh’s motion as timely.

Manglona found that Oh’s motion was timely based on the circumstances surrounding the disputed entry of default in this case, particularly because of the Deputy Clerk’s unauthorized and erroneous “approval” of plaintiff’s petition.

Manglona also concluded that the Clerk’s action of manually signing a proposed entry of default or default judgment and placing it in the court’s file is not rendered a legal nullity.

The judge said the basis of its nullity is that neither the proposed entry or default judgment appear on separate documents and neither are separately entered on the docket.

In this case, she said, the Clerk failed to separately enter the requested default against Oh on the Court’s civil docket as required by Commonwealth Rules of Civil Procedure.

“Because the Clerk’s authority to issue such judgments is strictly limited, procedural irregularities may render the Clerk’s judgment void,” the judge pointed out.