2013 Opinion No. 45
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
Order denying motion to set aside default judgment, reversed and case remanded.
Angstman Johnson; Matthew T. Christensen, Boise, for appellants.
Lerma Law Office, P.A.; Kenley E. Grover, Boise, for respondent.
Mega Group International, LLC ("MGI"); Izopoli Group, LLC ("Izopoli"); Florida Floors and Décor, Inc. ("Florida Floors"); and Murat Kiroglu, who is the owner, manager, and director of MGI, Izopoli, and Florida Floors (hereinafter referred to collectively as "Appellants") appeal from the denial of their motion to set aside default judgment.
On January 25, 2010, Saundra McDavid filed a complaint against Appellants and five other defendants. McDavid alleged numerous claims including breach of warranty, breach of contract, unjust enrichment, and fraud arising from her purchase of travertine pavers and coping. She alleged that the shipment of pavers and coping that Appellants sent her was incomplete, defective, and mismatched. Attorney Brian Knox entered an appearance for Appellants and filed pleadings on their behalf,  but on December 13, he filed a motion for leave to withdraw as their counsel. The district court entered an order granting the motion on February 17, 2011. Knox filed a certificate of service indicating that he mailed a copy of the withdrawal order to Appellants on March 1. On March 30, McDavid filed a motion for a default judgment against Appellants based on their failure to appear or to appoint new counsel within twenty days following the service of the withdrawal order. The district court granted the motion, and default judgment was entered on April 11.
On July 28, 2011, Appellants filed a motion to set aside the default judgment pursuant to Idaho Rules of Civil Procedure 55(c) and 60(b) on the ground that the judgment was void because the order allowing Knox's withdrawal was not properly served on them and, alternatively, on the ground of excusable neglect. According to a supporting affidavit, Murat Kiroglu, who was the "owner, manager and director" of the other Appellants, was out of the country until mid-March 2011 and did not learn of Knox's withdrawal until his return to the United States. The district court denied the motion for relief from the default judgment, and this appeal followed.
The decision to grant or deny a motion to set aside a default judgment for excusable neglect under Rule 60(b)(1) is reviewed for abuse of discretion. Berg v. Kendall, 147 Idaho 571, 576, 212 P.3d 1001, 1006 (2009); Knight Ins., Inc. v. Knight, 109 Idaho 56, 59, 704 P.2d 960, 963 (Ct. App. 1985). Where a default or default judgment is challenged as void under Rule 60(b)(4), we conduct de novo review. McClure Eng'g, Inc. v. Channel 5 KIDA, 143 Idaho 950, ...