 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 FLOYD YAZZIE and MARIE YAZZIE,

 8          Plaintiffs-Appellants,

 9 v.                                                                           NO. 28,375

10 CHAVA TRUCKING,

11          Defendant-Appellee,

12 and

13 COYOTE GRAVEL PRODUCTS, INC.,

14          Defendant.


15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
16 Ted Baca, District Judge


17   Bowles & Crow
18   Jason Bowles
19   B. J. Crow
20   Albuquerque, NM

21 for Appellants

22 Domenici Law Firm, P.C.
23 Pete V. Domenici, Jr.
24 Lorraine Hollingsworth
1 Albuquerque, NM

2 for Appellee




                    2
 1                              MEMORANDUM OPINION

 2 ROBLES, Judge.

 3        Floyd and Marie Yazzie (Plaintiffs) appeal from the district court order setting

 4 aside a default judgment entered against Defendant Chava Trucking (Chava) in the

 5 amount of $800,000. Having considered the arguments advanced by both Defendant

 6 and Plaintiffs, we affirm.

 7 I.     BACKGROUND

 8        This case arises from an automobile accident in which Floyd Yazzie collided

 9 with the back end of a water truck driven by an employee of Coyote Gravel Products,

10 Inc. (Coyote). Coyote had leased the truck from Chava. Plaintiffs filed claims against

11 Chava, Coyote, and the driver of the truck.

12        The default judgment at issue in this action came about following a motion by

13 Chava’s attorney to withdraw as counsel. As the basis for withdrawal, Chava’s

14 counsel indicated that his client was not responding to his attempts to communicate

15 and, as a result, a conflict had arisen. The district court granted the motion to

16 withdraw and ordered Chava to obtain counsel within twenty days because as a

17 corporation Chava could not proceed pro se.

18        A few days before trial the district court called a pretrial conference to address

19 issues relating to Chava’s presence at the trial. The wife of the president of Chava,



                                              3
 1 was present at the pretrial conference. She informed the court that (1) her husband,

 2 Salvador Guzman, had been involved in a serious automobile accident; (2) Guzman

 3 had a broken pelvis and was undergoing multiple surgeries; (3) the accident occurred

 4 around the time the district court had ordered Chava to find new counsel; (4) Guzman

 5 would be unable to appear at the trial; and (5) counsel had not been obtained.

 6 Plaintiffs waived the personal appearance of Guzman and advocated that the district

 7 court not vacate the trial setting. The district court decided to proceed with trial.

 8        When the trial commenced on October 15, 2007, neither a representative from

 9 Chava nor new counsel for Chava was present. Plaintiffs contend that, at this point,

10 they moved for default judgment, and it was granted. The district court discussed with

11 the parties how the jury would be instructed regarding Chava’s absence. The court

12 determined it would inform the jury that Chava had not appeared, and that there was

13 no attorney of record representing them at the time of trial. Plaintiffs presented their

14 case. A special verdict form including Chava was submitted to the jury. The jury

15 determined that while at least one Defendant was negligent, neither Defendants’

16 negligence was a cause of Plaintiffs’ injuries.

17        Following the trial, Plaintiffs filed a motion for default judgment. A hearing

18 was held in which the district court took judicial notice of the evidence presented at

19 trial, and the court entered an order of default, awarding Plaintiffs $800,000 against



                                              4
 1 Chava. Nine days later, Chava’s newly obtained counsel moved to set aside the

 2 default judgment pursuant to Rule 1-060 (B)(1), (3), and (4) NMRA. The district

 3 court granted the motion. The court determined that Plaintiffs had the opportunity to

 4 fully litigate the case against Chava and entered a judgment on the jury’s verdict,

 5 finding that Chava was not the cause of Plaintiffs’ injuries. Plaintiffs appeal the

 6 district court order.

 7 II.    DISCUSSION

 8        Plaintiffs contend on appeal that the district court correctly entered default

 9 judgment against Chava in the amount of $800,000, and that it was an abuse of

10 discretion for the district court to set aside the default judgment. This Court does not

11 address Plaintiffs’ contention that the district court correctly entered default judgment

12 against Chava, as we conclude that it was not an abuse of discretion for the district

13 court to set aside the default judgment under the circumstances presented by this case.

14 A.     Standard of Review

15        This Court reviews a district court’s decision to set aside a default judgment for

16 an abuse of discretion. See Sunwest Bank v. Roderiguez, 108 N.M. 211, 213, 770 P.2d

17 533, 535 (1989). A district court has abused its discretion in setting aside a default

18 judgment if its decision constituted arbitrary or unreasonable action. See id. In

19 determining whether the district court’s decision to set aside the default judgment was



                                               5
 1 proper, we must also keep in mind that our courts have “counseled trial courts to be

 2 liberal in determining the existence of grounds that satisfy Rule [1-0]60(B) . . .

 3 because default judgments are disfavored and causes generally should be tried upon

 4 their merits.” Sunwest Bank, 108 N.M. at 213, 770 P.2d 535. Thus, “in the absence

 5 of a clear showing of abuse of discretion where the trial court grants the motion, the

 6 appellate court will not disturb the order.” Springer Corp. v. Herrera, 85 N.M. 201,

 7 203, 510 P.2d 1072, 1074 (1973) (internal quotation marks and citation omitted),

 8 overruled on other grounds by Sunwest Bank, 108 N.M. at 214, 770 P.2d at 536.

 9        To set aside a default judgment, the movant must demonstrate grounds for

10 opening or vacating the judgment and a meritorious defense. See Rodriguez v.

11 Conant, 105 N.M. 746, 749, 737 P.2d 527, 530 (1987) (“A party seeking relief from

12 a default judgment must show the existence of grounds for opening or vacating the

13 judgment and a meritorious defense or cause of action.”). “There must also not be any

14 intervening equities that would render setting aside of the default inequitable.”

15 DeFillippo v. Neil, 2002-NMCA-085, ¶ 24, 132 N.M. 529, 51 P.3d 1183. In

16 determining whether it was proper to set aside a default judgment, our courts generally

17 consider whether (1) relief from the judgment was sought quickly, (2) the movant

18 acted willfully in failing to participate in the proceedings, and (3) the non-movant

19 would be prejudiced. See Springer Corp., 85 N.M. at 203, 510 P.2d at 1074 (noting



                                              6
 1 that the defendant made “a prompt application for relief, did not exhibit willfulness

 2 in failing to heed the process of the court, and did make a substantial showing of

 3 excusable neglect”); Sunwest Bank, 108 N.M. at 214, 770 P.2d at 536 (considering the

 4 length of delay before the movant requested the judgment be set aside and whether the

 5 movant was deliberately attempting to ignore her legal obligations); Dyer v. Pacheco,

 6 98 N.M. 670, 673, 651 P.2d 1314, 1317 (Ct. App. 1982) (indicating that we should

 7 consider prejudice to the plaintiff in determining whether to set aside a default

 8 judgment), overruled on other grounds by Chase v. Contractors’ Equip. & Supply

 9 Co., 100 N.M. 39, 43, 665 P.2d 301, 305 (Ct. App. 1983).

10         Plaintiffs raise arguments consistent with these considerations. Specifically,

11 Plaintiffs contend that (1) they were prejudiced by having to proceed to trial without

12 Chava; (2) the reason for Chava’s delay in appearing with counsel was not because

13 of the automobile accident, but due to Chava’s failure to communicate with its former

14 counsel and engage in the proceedings; and (3) the default judgment should not be set

15 aside after Chava made knowing and voluntary choices not to participate at trial and

16 disregarded numerous court orders. We address Plaintiffs’ arguments below.




                                             7
 1 B.     Grounds for Opening or Vacating the Judgment

 2        Chava moved to have the default judgment set aside under multiple provisions

 3 of Rule 1-060(B), including subsection Rule 1-060(B)(1) on the grounds of excusable

 4 neglect. See Gandara v. Gandara, 2003-NMCA-036, ¶ 23, 133 N.M. 329, 62 P.3d

 5 1211 (noting that the “criteria of Rule 1-060(B) are used when setting aside an entry

 6 of default judgment by the trial court”). Whether a movant’s conduct amounts to

 7 excusable neglect depends on the facts and circumstances of each case. See Sunwest

 8 Bank, 108 N.M. at 214, 770 P.2d at 536 (holding that, in ruling on motions to set aside

 9 judgment pursuant to Rule 1-060(B)(1), courts should analyze claims of excusable

10 neglect based on the circumstances of each case). “In ruling on a motion under Rule

11 [1-060(B)], the trial court has discretion, within the confines of justice, to decide and

12 act in accordance with what is fair and equitable.” Mendoza v. Mendoza, 103 N.M.

13 327, 332, 706 P.2d 869, 874 (Ct. App. 1985).

14        In this case, Chava moved the district court to reconsider its ruling nine days

15 following the district court’s entry of default judgment. Furthermore, Chava asserted

16 that excusable neglect existed because its president, Guzman, had been involved in a

17 serious automobile accident and had been unable to deal with any work issues,

18 including the district court’s order that he secure counsel to represent his corporation

19 at trial. Based on these circumstances, we cannot conclude that the district court



                                               8
 1 abused its discretion in finding that excusable neglect existed where we have

 2 previously upheld district court determinations of excusable neglect based on less

 3 compelling facts. See, e.g., Sunwest Bank, 108 N.M. at 214, 770 P.2d at 536

 4 (declining to hold that the district court had abused its discretion in determining

 5 excusable neglect existed where the defaulting party was unaware that she was

 6 required to defend against the litigation given the particular circumstances of her

 7 marital dissolution).

 8        Although Plaintiffs argue that Chava was required to demonstrate exceptional

 9 circumstances to warrant setting aside the default judgment, we note that other bases

10 for relief under Rule 1-060(B) may result in a default judgment being set aside, such

11 as excusable neglect. See, e.g., Adams v. Para-Chem S., Inc., 1998-NMCA-161, ¶ 21,

12 126 N.M. 189, 967 P.2d 864 (“Rule 1-060(B)(1) requires a defaulted defendant to

13 show both applicable grounds for vacating the judgment—for example, excusable

14 neglect—and a meritorious defense.”). Plaintiffs contend that grounds for setting

15 aside the judgment under Rule 1-060(B) do not exist because the reason for the delay

16 was not the injuries suffered by Guzman in the automobile accident, but was the result

17 of a voluntary and conscious decision by Chava to ignore numerous orders of the

18 district court. Plaintiffs contend that a calculated and voluntary decision cannot

19 provide the basis for relief under Rule 1-060(B). While we agree that calculated and



                                             9
 1 voluntary decisions cannot provide the basis for relief under Rule 1-060(B), see

 2 Benavidez v. Benavidez, 99 N.M. 535, 539, 660 P.2d 1017, 1021 (1983) (stating that

 3 Rule 1-060(B) cannot be used to relieve a party from free and conscious choice),

 4 Plaintiffs’ argument—that Chava’s failure to participate in the trial was voluntary—is

 5 unavailing.

 6        Plaintiffs argue that prior to Guzman’s accident, Chava failed to communicate

 7 with its counsel which resulted in Chava’s counsel moving to withdraw. Plaintiffs

 8 further argue that Guzman had a full opportunity to hire counsel by either instructing

 9 an employee to hire counsel, or by picking up a phone and hiring an attorney since,

10 as Plaintiffs point out, Guzman only had a pelvic injury. Based on the record before

11 this Court, it appears that, during the initial pendency of this litigation, Plaintiffs had

12 informed Chava that it would move to dismiss Chava from the case, and that Chava

13 as a result only minimally participated in pretrial litigation. Plaintiffs filed a motion

14 to dismiss Chava, but subsequently withdrew their motion, and indicated their intent

15 to fully litigate the case with Chava as a Defendant. Approximately twenty days later,

16 Chava’s counsel filed a motion to withdraw, asserting that Chava was not responding

17 to counsel’s attempts to communicate. Although Plaintiffs attempt to present Chava’s

18 failure to communicate with counsel as Chava having engaged in dilatory practices,

19 we are reluctant to accept this characterization where the record demonstrates that



                                               10
 1 Chava went from believing it was being dismissed from the case to suddenly having

 2 to prepare for an imminent trial. The record demonstrates that Chava’s counsel

 3 attempted to contact Chava for a period of less than three weeks prior to moving to

 4 withdraw. Given that Chava’s role in the litigation dramatically shifted and given the

 5 short period of time Chava was uncommunicative in relation to the overall duration

 6 of the litigation, we conclude that the district court did not abuse its discretion in

 7 determining that Chava did not act in bad faith. Nor are we persuaded that Chava’s

 8 failure to appear at trial or obtain counsel prior to trial or the hearing on default

 9 evidences bad faith. To the extent Plaintiffs contend that Chava had previously

10 engaged in dilatory tactics by filing a suggestion of bankruptcy that was later

11 withdrawn, Plaintiffs point to nothing in the record that would suggest that Chava

12 filed the suggestion of bankruptcy for the purpose of delaying the litigation.

13        Here, Chava made a prompt application for relief, demonstrated excusable

14 neglect for its failure to participate in the trial, and did not exhibit willfulness in

15 failing to heed the process of the district court. See Springer Corp., 85 N.M. at 203,

16 501 P.2d at 1074; see also Sunwest Bank, 108 N.M. at 214, 770 P.2d at 536 (stating

17 that “by moving quickly to set aside the judgment [ten days after judgment was

18 entered, the movant] demonstrated that she was not deliberately attempting to ignore

19 her legal obligations,” and concluding that the district court did not abuse its



                                             11
 1 discretion in finding excusable neglect). Although Plaintiffs argue that Chava’s

 2 actions can be construed differently, the district court’s refusal to construe Chava’s

 3 actions as Plaintiffs suggest does not constitute an abuse of discretion. See Talley v.

 4 Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App. 1993) (stating that it is not an

 5 abuse of discretion when reasons both supporting and detracting from a decision

 6 exist).

 7           Moreover, our cases instruct that the district court should be liberal in

 8 determining whether or not excusable neglect exists. See Sunwest Bank, 108 N.M. at

 9 213, 770 P.2d at 535 (noting that, in deciding motions to set aside default judgment

10 under Rule 1-060(B)(1), district courts should apply a liberal standard in determining

11 the existence of excusable neglect). “Stated another way, the policy of the law is to

12 have every litigated case tried upon its merits, and it looks with disfavor upon a party,

13 who, regardless of the merits of the case, attempts to take advantage of the mistake,

14 surprise, inadvertence, or neglect of his adversary.” Springer Corp., 85 N.M. at 203,

15 501 P.2d at 1074 (internal quotation marks and citation omitted). Applying this

16 liberal standard for determining if excusable neglect exists and given this Court’s

17 standard of review and the facts surrounding Chava’s failure to appear at trial, we

18 cannot conclude that the district court abused its discretion in determining that Chava

19 demonstrated excusable neglect.



                                              12
 1 C.     Prejudice

 2        “[B]ecause default judgments are generally disfavored, ‘[a]ny doubts about

 3 whether relief should be granted are resolved in favor of the defaulting defendant’

 4 and, ‘in the absence of a showing of prejudice to the plaintiff, causes should be tried

 5 upon the merits.’” Gandara, 2003-NMCA-036, ¶ 9 (alteration in original) (quoting

 6 Dyer, 98 N.M. at 673, 651 P.2d at 1317). Thus, a showing of prejudice by Plaintiffs

 7 could render the setting aside of a default judgment inequitable. See Chase, 100 N.M.

 8 at 46, 665 P.2d at 308 (“[W]hen the plaintiff will be prejudiced . . . relief may be

 9 denied.”).

10        Plaintiffs attempt to demonstrate prejudice by arguing that (1) they did not fully

11 litigate the claims against Chava, and (2) Chava’s absence resulted in Plaintiffs being

12 unable to admit an affidavit by Chava’s president that would have helped Plaintiffs’

13 case. We are unpersuaded that Plaintiffs were prejudiced by the district court setting

14 aside the default judgment. The affidavit Plaintiffs refer to provides that (1) the water

15 truck was not compliant with Department of Transportation requirements; (2) Chava

16 was aware of the truck’s non-compliance; and (3) Chava had leased the truck to

17 Coyote for in-yard use. To the degree the affidavit demonstrates that the truck was

18 not compliant with Department of Transportation regulations, Plaintiffs were able to

19 introduce other evidence regarding the truck’s deficiencies. Further, to the extent the



                                              13
 1 affidavit demonstrates knowledge by Chava and Coyote of the truck’s non-

 2 compliance, this would appear to be evidence of breach, not causation. Plaintiffs were

 3 successful in establishing a breach as reflected by the jury verdict, but not causation.

 4 We therefore conclude that Plaintiffs have failed to demonstrate any prejudice from

 5 the exclusion of the affidavit because Plaintiffs have not demonstrated that the

 6 evidence, if admitted, would have likely changed the outcome of the case. See

 7 Cumming v. Nielson’s, Inc., 108 N.M. 198, 203-04, 769 P.2d 732, 737-38 (Ct. App.

 8 1988) ( “[T]he complaining party on appeal must show the erroneous admission and

 9 exclusion of evidence was prejudicial in order to obtain a reversal.”); cf. Rule 11-

10 103(A) NMRA (“Error may not be predicated upon a ruling which admits or excludes

11 evidence unless a substantial right of the party is affected[.]”); Santa Fe Custom

12 Shutters & Doors, Inc. v. Home Depot U.S.A., Inc., 2005-NMCA-051, ¶ 32, 137 N.M.

13 524, 113 P.3d 347 (stating that where there is a “high probability” that improper

14 evidence may have influenced the fact finder, a substantial right has been affected)

15 (internal quotation marks and citation omitted).

16        Plaintiffs also assert, more generally, that they were prejudiced because they did

17 not fully litigate the case against Chava since the district court had already indicated

18 it would enter default as to liability. Plaintiffs, however, have not directed this Court

19 to any additional evidence they would have presented, other than the affidavit



                                              14
 1 addressed above if default had not been entered.              See In re Ernesto M.,

 2 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is

 3 not a showing of prejudice.”).

 4        Plaintiffs also contend that they were prejudiced because they suffered the

 5 emotional and economical expense of trial. Plaintiffs’ argument is unavailing since

 6 Plaintiffs advocated in favor of proceeding to trial without Chava despite their

 7 acknowledgment that they may have to retry the case against Chava. See Cordova v.

 8 Taos Ski Valley, Inc., 121 N.M. 258, 263, 910 P.2d 334, 339 (Ct. App. 1995) (“A

 9 party who has contributed, at least in part, to perceived shortcomings in a trial court’s

10 ruling should hardly be heard to complain about those shortcomings on appeal.”). To

11 the extent Plaintiffs argue that setting aside the default judgment would result in the

12 parties starting over, the district court’s order does not require any further

13 proceedings. Instead, as Chava points out, a new trial is not necessary because the

14 district court resolved the matter by entering a judgment based on the jury’s verdict

15 that Chava was not a cause of Plaintiffs’ injuries. Finally, we note that, in addition to

16 not demonstrating prejudice, Plaintiffs, in not submitting the full trial transcript, did

17 not prepare enough of the record for this Court to conduct its own independent review

18 of the potential prejudice to Plaintiffs. See Dillard v. Dillard, 104 N.M. 763, 765, 727

19 P.2d 71, 73 (Ct. App. 1986) (providing that it is the duty of the appellant to provide



                                              15
 1 a record adequate to review the issues on appeal). Based on the information before

 2 this Court, we cannot conclude that the district court abused its discretion in

 3 determining that there were no intervening equities that would prevent default

 4 judgment from being set aside.

 5 D.     Meritorious Defense

 6        Plaintiffs contend that the district court erred in granting Chava’s motion to set

 7 aside the default judgment because Chava did not plead a meritorious defense. In

 8 support of their argument, Plaintiffs assert that a party seeking relief from a default

 9 judgment must plead a meritorious defense, and that the party must do so “by setting

10 forth relevant legal grounds substantiated by a credible factual basis.” We agree that,

11 generally, “[a] party seeking relief from a default judgment must show the existence

12 of grounds for relief under Rule 1-060(B), and a meritorious defense.” See Sunwest

13 Bank, 108 N.M. at 213, 770 P.2d at 535. “[T]he meritorious defense component of

14 the analysis is also reviewed for abuse of discretion.” See Magnolia Mountain Ltd.

15 P’ship v. Ski Rio Partners, Ltd., 2006-NMCA-027, ¶ 12, 139 N.M. 288, 131 P.3d 675;

16 Sunwest Bank, 108 N.M. at 214, 770 P.2d at 536 (“The finding of a meritorious

17 defense is addressed to the sound discretion of the trial court; in making that

18 determination the court should be liberal.”). In determining whether there has been

19 an abuse of discretion, “‘our review of the application of the law to the facts is



                                              16
 1 conducted de novo.’ Accordingly, we may characterize as an abuse of discretion a

 2 discretionary decision that ‘[is] premised on a misapprehension of the law.’” N.M.

 3 Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d

 4 450 (alteration in original) (citations omitted). Based on the specific facts of this case,

 5 we hold that the district court did not abuse its discretion in determining that the same

 6 pleading requirements were not applicable here, and that a meritorious defense had

 7 been demonstrated.

 8        Although the district court stated at the hearing that it was not ruling on the

 9 issue of a meritorious defense, the district court went on to state that the reason was

10 because this was a different type of case where a verdict had been entered and then

11 discussed how the element of causation addressed in that verdict demonstrated that

12 Chava had a meritorious defense. Our Supreme Court has stated that “there is no

13 universally accepted standard as to what satisfies the requirement that a party show

14 a meritorious defense.” Sunwest Bank, 108 N.M. at 214, 770 P.2d at 536 (internal

15 quotation marks and citation omitted).           The purpose, however, of requiring a

16 meritorious defense is to “ascertain whether there is some possibility that the outcome

17 of the suit after trial will be different from the result achieved by the default.” Id.

18        We agree with the district court that this case is remarkably different from other

19 default judgment cases. More importantly, this case is different from those default



                                               17
 1 judgment cases setting out the requirement that a meritorious defense be pleaded with

 2 sufficient factual specificity and support. See id. (holding that “to establish the

 3 existence of a meritorious defense sufficient to warrant setting aside a default

 4 judgment the movant must proffer some statement of underlying facts to support the

 5 allegation”); Magnolia Mountain. Ltd. P’ship, 2006-NMCA-027, ¶ 15 (stating that “a

 6 litigant attempting to show a meritorious defense is subject to a heightened pleading

 7 requirement”). Under the specific circumstances of this case where the defendant has

 8 answered and participated in the litigation and does not appear at trial, the trial

 9 proceeds against the other defendants, and the jury is still presented with the question

10 of the defaulting party’s liability, the result of the trial satisfies the requirement that

11 the movant present a meritorious defense. In other words, the district court was able

12 to clearly ascertain that the result of the trial would be different from the result

13 garnered through default. We therefore hold that, under the unique facts of this case,

14 it was not an abuse of discretion for the district court to determine that the requirement

15 that the movant present a meritorious defense was satisfied.

16 III.   CONCLUSION

17        For the reasons stated above, we affirm the district court’s order setting aside

18 the default judgment.




                                               18
1      IT IS SO ORDERED.



2                                    _______________________________
3                                    ROBERT E. ROBLES, Judge


4 WE CONCUR:



5 ___________________________
6 JAMES J. WECHSLER, Judge



7 ___________________________
8 TIMOTHY L. GARCIA, Judge




                                19
