Meade v. Nelson: The Court of Appeals did not decide the questions about excusable neglect or due diligence because prior conditions were not met.
By Christina A. Meserve and Charles E. Szurszewski, family lawyers
This is not a family law case, but a malpractice action brought against a plaintiff’s personal injury attorney. Charity Meade hired David Nelson to bring a personal injury suit on her behalf. The suit was ultimately dismissed on summary judgment because the attorney had failed to timely serve the opposing party within the statute of limitations.
Meade retained a law firm to represent her in the potential malpractice suit against Nelson. Nelson and his firm retained attorney Christopher Tompkins to defend him. The plaintiff’s lawyer and Tompkins discussed the suit and exchanged emails regarding telephone conferences to discuss settlement. The malpractice suit was also filed close to the expiration of the statute of limitations. After the filing, the plaintiff’s attorney and Tompkins spoke again, but Tompkins never filed a notice of appearance.
Meade v. Nelson: notice of the motion for default
The plaintiff’s lawyer faxed Tompkins a settlement demand. Telephone conversations ensued and Tompkins offered $40,000 in satisfaction of the plaintiff’s claims. The plaintiff’s attorney never responded and no further communications occurred. Less than a month later, the plaintiff’s counsel sought and obtained an order of default without notice to Tompkins. The plaintiff’s attorney then filed a motion for default judgment, seeking $3.9 million. Tompkins filed a motion to set aside the order of default which was granted.
The Court of Appeals agreed with the trial court, noting that Tompkins’ communication with the plaintiff’s lawyer constituted an informal appearance and required notice of the motion for default. Interestingly, the plaintiff had demanded $250,000, the defendant had offered $40,000, the defendant’s attorney characterized that as “not an unbridgeable gap,” and then the motion for entry of the default judgment requested $3.9 million.
Because Tompkins was entitled to notice as a result of his informal appearance, the Court of Appeals did not need to reach the issue of whether there had been either excusable neglect or due diligence.
Practice Tip: Isn’t it obvious?
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.