Gutierrez v, Mosor

Syllabus

The defendant appealed to this court from the judgment of the trial court rendered for the plaintiff after a trial to the jury on the issue of damages in which the defendant was precluded from offering evidence as a result of a prior default the court imposed against him as a sanction for failing to attend his scheduled deposition. The defendant claimed, inter alia, that the trial court abused its discretion by imposing and thereafter refusing to set aside the default. The plaintiff contractor had brought an action in negligence against the defendant as a result of injuries the plaintiff suffered after falling from a platform on property where the defendant allegedly was constructing a house. The self-represented defendant timely filed an answer and special defense to the plaintiff's complaint. More than two years later, the plaintiff filed a reply to the special defense and, about one year after that, issued to the defendant a renotice for his deposition at the law office of the plaintiff's counsel. Thereafter, the defendant, who had not filed an objection to the plaintiff's motion for default, then filed a motion, through counsel, to set aside the default, claiming that good cause existed to set aside the default because, as a then self-represented party, he had been confused about where to appear and what would happen on the date of the deposition. The trial court denied the motion to set aside the default, noting that the defendant had failed to file an objection to that motion and conclud- ing that he failed to demonstrate good cause to set aside the default. Held that the trial court abused its discretion in granting the plaintiff's motion for default, as the sanction of default was not proportional to the defendant's single discovery violation when he failed to attend his deposition: there was an insufficient record from which the court could have determined that the defendant's conduct was wilful or in bad faith, as the motion for default simply alleged that