- 15 -
in default and that a decision be entered that there is a
deficiency in tax with respect to Life Choices for 1997 in the
amount of $500,028. Although the Court ordered petitioners to
file a response to the default motion, Dr. Trowbridge returned to
the Court a copy of that order with the following language
handwritten thereon: “Timely Notice of Non-Acceptance[.] The
Petition was Withdrawn”.
In pertinent part, Rule 123(a) provides:
(a) Default: If any party has failed to plead or
otherwise proceed as provided by these Rules or as
required by the Court, then such party may be held in
default by the Court either on motion of another party
or on the initiative of the Court. Thereafter, the
Court may enter a decision against the defaulting
party, upon such terms and conditions as the Court may
deem proper * * *
We have no doubt that petitioners had knowledge of the call of
this case on December 3, 2001, and the recall of the case on the
following day. We assume that petitioners failed to answer those
calls because they no longer wished to continue their case in
this Court; that is the position they took in their motion to
dismiss (which we previously denied). We therefore grant the
default motion and, in accordance with respondent’s primary
position therein, hold Dr. Trowbridge in default.10
10 As discussed above, we struck from the petition all
assignments of error other than petitioners’ limitations defense.
Since respondent addresses petitioners’ limitations defense
(among other items) in his motion for partial summary judgment,
the principal consequence of our holding Dr. Trowbridge in
(continued...)
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: May 25, 2011