Judge Camacho finds inexcusable failure of two attorneys to appear

Superior Court Associate Judge Joseph N. Camacho has found inexcusable the failure of two attorneys to appear at a hearing in a small claim case filed against their client-former Senate president Joseph M. Mendiola.

Camacho denied Mendiola’s motion to set aside a $2,149.94 default judgment against him in the small claim filed by Leticia M. Palacios, who is a staff of Senate President Paul A. Manglona.

Camacho ruled that although Palacios would not be prejudiced by the minor delay in this case and Mendiola may have a defense, the fact that Mendiola’s counsel admits to knowing of the hearing but failing to show up because one of the defendant’s attorneys had a trial that day, “reflects routine carelessness or caseload management issues and does not rise to the level of excusable neglect.”

According to court records, in May 2010 Palacios, a landlord, filed the small claim seeking $1,412.66 plus interest and attorney’s fees for rent, utilities, and related charges incurred by her tenant, Mendiola.

On Feb. 23, 2012, Mendiola retained counsel, Loren A. Sutton and Janet H. King. The lawyers agreed between themselves that Sutton would handle appearances and King would prepare any written filings.

On Feb. 27, 2012, Mendiola and his lawyers failed to appear at the evidentiary hearing. This prompted the court to enter a default judgment.

On March 6, 2012, the former Senate president filed a motion to set aside the default judgment.

At the April 5, 2012 hearing, Sutton represented that his client was never served with the motion. Attorney Michael White, counsel for Palacios, provided a copy of the motion to Sutton. Sutton indicated he intended to file a written opposition.

Palacios then filed a memorandum in opposition to motion to set aside default judgment. Mendiola filed a reply.

Sutton argued that the default judgment should be set aside because he (Sutton) was in trial on another matter at the time of the hearing.

Palacios countered that there is no basis to set aside the judgment.

At the May 17, 2012 motion hearing, Sutton informed the court that based on the discovery, his client, Mendiola, has a defense, namely, that he was not a tenant at the relevant time.

In his order upholding the default judgment, Camacho said Mendiola filed the motion to set aside on March 6, 2012, only eight days after default judgment was entered.

Thus, Camacho said, given the minor delay here, and no other prejudicial circumstances, Palacios has not suffered any prejudice.

On the meritorious defense issue, Camacho said Sutton represented that Mendiola does have a defense; that it was not him, but another person, who occupied the property.

Camacho said this representation was made without offering any legal support for the defense.

“Without knowing more about the facts, or the legal relationship between the parties, it is difficult to determine if that factual basis is sufficient to raise a particular defense. Thus, this factor is neutral,” the judge said.

On the excusable neglect issue, Camacho said routine carelessness by counsel does not generally constitute excusable neglect.

Camacho said although a failure to appear generally is considered culpable conduct, given that Mendiola, a resident of Tinian, hired counsel, ostensibly to appear in his stead on Saipan, in equity he should not be faulted for failing to personally appear.

The judge said because Mendiola initially appeared in the action in December 2011 when the matter was held in Tinian, the failure here was clearly on the part of his attorneys.

Camacho said Mendiola’s reply argues that King could not appear based on a conflict because she works at the Law Revision Commission.

Camacho said King sought a stipulated continuance of the hearing by sending an email, but no continuance was ever granted by the court.

“While the Court and the legal profession encourage professional courtesy, Mr. White was under no obligation to stipulate to a continuance,” he said.

The judge noted that it is the attorney’s responsibility to advocate for their client-to make all appearances, and formally request continuances from the court if necessary.

“The failure to do so in this case is not justified by simply seeking a stipulation,” Camacho said, adding that King’s concern that she could not appear in court based on a conflict is unfounded.

With respect to Sutton, Camacho said the lawyer was already in court on another matter, when he failed to appear for his client.

“Like, Ms. King, he (Sutton) could have easily walked over to a different court room, to ask the Court for a continuance,” the judge said.

On balance, Camacho said, the inaction of counsel may be fairly characterized as routine carelessness.