Appeals court considers whether summary judgment should be vacated after late opposition in Fossil Construction case

On March 9 the appeals panel heard argument in an appeal involving summary judgment and whether the superior court properly disposed of claims after a party failed to file a timely opposition.

Israel M. Sanchez Jr., speaking for appellant Carmine Fossil, asked the panel to vacate the superior court's summary-judgment entry and to expand the record to include evidence that the appellant said would show a binder of exhibits had been transmitted to the trial judge (a FedEx receipt and transmittal letter). Sanchez said counsel's missed filing was not due to wrongdoing and advocated vacatur because the case should be decided on the merits.

The justices questioned whether excusable neglect and other remedial motions had been litigated below; one justice noted that the record does not show a motion to set aside judgment or a reconsideration motion filed in the superior court. Sanchez responded that he had moved to stay the appeal to permit such practice and that his motion was denied, and that a judge below had held papers for 30 days.

Robert Callahan, for the appellees, replied that the superior court did not enter a default sanction but entered summary judgment on the merits after considering a voluminous appendix of evidence; he said there were no disputed facts presented to the trial court and that appellant's late filings did not mature into a motion properly before the lower court.

The panel also discussed whether interlocutory jurisdiction exists and why the superior court delayed a damages hearing pending appeal. The court took the matter under submission; no ruling was announced.