Consider the case of Shawn Johnson v Roma II – Waterford, LLC and Roma’s E.T., Inc., which I have excerpted below:
http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=36075
ANDERSON, P.J.
Roma II – Waterford, LLC, is appealing the circuit court’s order granting default judgment to Shawn Johnson and denying its motion for reconsideration. Roma II asserts that the default judgment is unfair because its failure to answer three of the four causes of action was the result of a mistake made by its attorney, a lack of attention to detail. We reverse because Roma II did timely file an amended answer that joined all the causes of action. We decline to address its suggestion that today’s technology requires us to develop a definition of “mistake” that takes into consideration “technologically based mistakes,” such as computer printing errors.
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Roma II filed an answer [which was] incomplete. While it responded to Johnson’s general allegations and the allegations comprising her first cause of action, it did not respond to the other three causes of action. It was also oddly paragraphed. It started with paragraphs one through eleven and then skipped to paragraphs twenty-three and twenty-four, which denied the first cause of action.
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[At a hearing] Johnson asked the court to ignore Roma II’s amended answer because it was filed after Johnson had moved for default judgment and to grant her a default judgment on her second, third and fourth causes of action. Roma II’s attorney, Patrick J. Hudec, explained to the court that the first answer was a draft that a new secretary had printed from a computer file and he had signed and filed it by mistake. He complained that counsel for Johnson did not make a courtesy call to point out the incomplete answer rather than file a motion for a default judgment.2 Johnson’s counsel replied that when counsel signs a pleading, he is certifying that he has read the pleading, and Hudec cannot be heard to claim excusable neglect.
The trial court granted Johnson a default judgment after first acknowledging that the original answer was “clearly a mistake,” but going on to hold that “there has to be some good justification or reason for the mistake.” The court commented that the signer of the pleading is certifying that the contents are correct and that implies “that the signer of the document had reviewed the document for its correctness.”
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2 Attorney Hudec’s lack of attention to detail reared up in the motion hearing when he claimed to have filed an affidavit with the court but had to retract that claim when counsel for Johnson and the court stated that Hudec had not filed an affidavit. He then made the astonishing statement, “And my testimony for this Court, your Honor, can be presumed to be under oath.” It is astonishing because he was making a legal argument and had not been called as a witness and
sworn in as a witness.
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The Court concluded that the mistake did not rise to the level of “excusable mistake or excusable neglect or whatever the terms are used in the cases.” The court failed to discuss the amended answer that had been filed in response to the motion for a default judgment.
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Johnson retorted that the mistake did not rise to the level of excusable neglect. She told the court that there is a high burden on attorneys to do their job correctly. She reminded the court that her attorney was under no obligation to insure that Hudec was doing his job correctly. Johnson acknowledged that default judgment could be considered a Draconian remedy, but it was one that was authorized to be employed when a party does not live up to its obligations. Finally, she asserted that Hudec’s carelessness and inattentiveness should not be characterized as excusable.
The court refused to grant any relief to Roma II: “Now I recognize that this was a mistake, but the statute requiring attorneys to sign the documents is to serve the purpose of making sure they read and know what it is they are signing. If Mr. Hudec had done that, he would have immediately noted that [in]advertently several pages of the answer were left off when it was printed out. He nonetheless signed it. It was an incomplete answer, and the motion was made by the plaintiff for default judgment on all those paragraphs for which no answer was provided. Although common practice is attorneys would under those circumstances make a courtesy call and say hey, is there some mistake here, the last 27 paragraphs are not answered, Miss Piefer, for whatever reason, did not do that.”
Roma II promptly filed this appeal.7
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7 Roma II’s brief violates some basic rules of appellate practice and procedure. Included in the statement of facts are facts focusing on an intimate relationship between Johnson and the owner of Roma II; facts explaining their conduct; and, in the appendix, an administrative determination, postdating the decision being appealed. None of these facts are germane to the issues on appeal. In the brief, Hudec attempts to explain the inclusion of this material is to illustrate that Roma II has always “aggressively defended” against legal actions commenced by Johnson. We reject his explanation. The material is salacious and could only have been included to prejudice Johnson. No matter the reason Hudec included this material in the brief, it was improper because an appellate court will not consider materials outside the record.*** Because Hudec readily admits that the intentional inclusion of this material is in violation of the rules of appellate practice and procedure, we impose a $500.00 penalty payable to the clerk of the court of appeals within thirty days of the date of release of this opinion.
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But Hudec’s egregious conduct did not end in the circuit court. It continues here with his failure to insure a proper final order or judgment was in the record when he filed his notice of appeal.
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We also struck his reply brief, filed on behalf of Roma II, because it was not timely filed, *** and he failed to serve a copy of it on Johnson.
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Hudec’s problems in this court do not stop with his ignoring the rules of appellate practice. In the table of contents of his principal brief, he states the first issue is: Did the trial court err in granting a default Judgment where a timely answer was filed but mistakenly in an early draft form that did Respond to all causes of action? Skipping to the statement on oral argument and publication, Hudec writes: In this case, the attorney dictate final changes over the should of a secretary who then printed off an earlier draft and that mistake was not caught prior to signing the document. We will not detail other errors. We are left shaking our heads! Frankly, we are at a loss to understand what is clearly Hudec’s intentional disregard of the rules and the details, including his failure to proofread.8
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8 Tips for proofreading can be found online at The University of Wisconsin—Madison’s
“The Writing Center.” See http://writing.wisc.edu/Handbook/Proofreading.html (last visited
Mar. 13, 2009). _________________________________________________________________________________
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We reject Roma II’s request that we review “what type of mistakes, in this ‘new electronic age,’ should call into play equitable and remedial relief.” Whether counsel prepares pleadings with a quill pen and foolscap, a typewriter and bond paper, or a computer and pdf file there is an obligation to pay attention to details. We see no reason to construct different rules for computer-based errors; the novelty of an error inherent in a method of preparation does not justify different rules and relief.
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