Respondent Joseph Crowley appeals the trial court's denial of his motion for relief from the court's entry of a judgment pro confesso. We reverse and remand.
We recite the following facts, which are derived from the record. On May 28, 2009, the petitioner, Anthony Hartford, filed his petition to rescind his assignment of a 2000 judgment against Crowley to respondent The Carlson Company, LLC (Carlson Company). On October 7, 2009, Crowley filed a special appearance and moved to dismiss the petition on the ground that it failed to state a claim upon which relief could be granted. Hartford moved to amend his petition on October 19, 2009. On November 19, 2009, the trial court denied Crowley's motion to dismiss and granted Hartford's motion to amend.
In December 2009, Hartford filed a motion to determine whether the attorney representing both respondents had a conflict of interest. The trial court granted this motion on January 20, 2010. Shortly thereafter, Crowley moved for summary judgment, arguing that the court should grant judgment in his favor because Hartford's amended petition did not allege claims against him. On March 3, 2010, and March 4, 2010, Hartford filed three pleadings: (1) an objection to Crowley's summary judgment motion; (2) a motion for judgment pro confesso; and (3) a motion to disqualify the attorney for Crowley and Carlson Company.
On March 15, 2010, the superior court denied Crowley's motion for summary judgment "without prejudice due to the unresolved conflict [of interest] issue." On May 7, 2010, the trial court granted Hartford's motion to disqualify the attorney representing both respondents. On June 15, 2010, the court issued a notice pursuant to Superior Court Rule 20 that explained that because "no other appearance" had yet been entered since it granted Hartford's motion to disqualify the attorney for Crowley and Carlson Company, if Crowley and Carlson Company failed to "file an appearance by July 12, 2010, the court may take such action as justice may require."
Consistent with the court's June 15, 2010 notice, on July 9, 2010, Crowley's new attorney filed a special appearance and requested permission to file a new motion to dismiss the amended petition. On July 12, 2010, the court held a structuring conference which counsel for all parties attended. In its structuring conference order, the court stated: "The Court anticipates being able to enter a final order in this case upon receipt of dispositive motions which are to be filed by October 1, 2010." On July 26, 2010, the trial court granted Crowley leave to file his motion to dismiss and simultaneously denied it.
Hartford then filed a motion for summary judgment on or about September 21, 2010. Crowley timely objected to Hartford's motion, arguing again that Hartford's petition should be dismissed. It does not appear that the trial court ever ruled upon Hartford's motion.
The court entered a judgment pro confesso against Crowley on March 16, 2011. On or about March 17, 2011, Crowley moved to strike the confession of judgment entered against him and requested that the court accept his answer to the amended petition. The trial court denied Crowley's motion, and this appeal followed.
As an initial matter, Hartford asserts that this appeal should be dismissed as an improperly filed interlocutory appeal because the entry of a decree pro confesso is not a final order. See O'Brien v. Continental Ins. Co., 141 N.H. 522, 524-25 (1996) ("An entry of default or of judgment pro confesso is a notation of status in the case. Neither a verdict nor a judgment, it is an interlocutory finding which forms the basis for the later entry of judgment upon proof of right and amount." (quotation and emphasis omitted)). Because of the unique circumstances of this case, we elect to waive the requirements of Supreme Court Rule 8 to the extent necessary and treat Crowley's appeal as properly before us. See Sup. Ct. R. 1.
A trial court has discretion in deciding whether to strike a confession of judgment, and we will not disturb its ruling unless the court erred as a matter of law or engaged in an unsustainable exercise of discretion. Anna H. Cardone Revocable Trust v. Cardone, 160 N.H. 521, 524 (2010).
Superior Court Rule 131 provides that if a respondent "having been duly notified" neglects to "enter his appearance on the return day, or shall neglect to file and deliver to [the petitioner's] attorney his plea, answer or demurrer within the time prescribed in the order, the bill shall be taken pro confesso, and a decree entered accordingly." Under Superior Court Rule 136, a respondent's "answer or demurrer to an amended bill must be filed and a copy delivered to the [petitioner's] attorney within ten days after the amendment . . . or the bill shall be taken as confessed." Under both rules, no judgment pro confesso shall be set aside, except by agreement, or by court order, upon such terms as justice may require. Super. Ct. R. 131, 136.
In the instant case, we conclude that justice required striking the confession of judgment entered against Crowley. The record on appeal demonstrates that although Hartford moved for judgment pro confesso in March 2010, the trial court did not act upon the motion until more than a year later. In the meantime, Crowley obtained a new attorney, filed a new motion to dismiss Hartford's amended petition, opposed Hartford's summary judgment motion, answered interrogatories, and participated in a structuring conference. We find, as a matter of law, that Crowley's failure to file an answer to Hartford's amended petition "was an oversight occurring despite diligent attention to the defense of [the petition]" and that Hartford is in the same position he would have been had Crowley filed an answer earlier. 5 G. MacDonald, Wiebusch on New Hampshire Civil Practice and Procedure § 33.16, at 33-18 (3d ed. 2010). Under these circumstances, we conclude that the trial court erred, as a matter of law, in denying Crowley's motion to strike the confession of judgment. See id. Our rules of procedure must "be tools in aid of the promotion of justice rather than barriers and traps for its denial." Lewellyn v. Follansbee, 94 N.H. 111, 114 (1946).
Reversed and remanded.
HICKS, CONBOY and LYNN, JJ., concurred. ...