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Nunez v. Johnson

Court of Appeals of Idaho

May 7, 2018

LYDIA NUNEZ, Plaintiff-Appellant,
v.
CARL JOHNSON, and DOES 1 through 10, inclusive, Defendants-Respondents.

         2018 Opinion No. 24

          Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Dane H. Watkins, Jr., District Judge.

         Order denying motion to set aside the order of dismissal, reversed and case remanded.

          Gordon Law Firm, Inc.; Don Gamble, Idaho Falls, for appellant.

          Carey Romankiw, PLLC; Lindsey R. Romankiw, Idaho Falls, for respondent.

          GRATTON, Chief Judge

         Lydia Nunez appeals from the district court's order denying her motion to set aside the order of dismissal. We reverse and remand to the district court for further proceedings.

         I.

         FACTUAL AND PROCEDRUAL BACKGROUND

         Nunez and Carl Johnson were involved in a car accident. Nunez filed a complaint against Johnson, and Does 1 through 10, alleging negligence and seeking recovery for property damage and personal injuries sustained during the accident. Initially, Allen Browning represented Nunez in this matter. Browning filed a motion to withdraw approximately six months after the complaint was filed due to an inability to remain in contact with Nunez. Browning did not serve the motion to withdraw on Nunez nor did he provide Nunez with notice of the hearing on the motion.

         Following the hearing, the district court granted the motion to withdraw. The court ordered Browning to serve copies of the order allowing withdrawal on Nunez by personal service or certified mail, and ordered the matter stayed until service was made. Browning did not serve Nunez with a copy of the order. Nunez did, however, receive a copy of the order from the court clerk who had mailed it to Nunez via certified mail. Nunez obtained another copy of the order when she retrieved her file from Browning's office.

         Johnson filed a motion to dismiss approximately four months after the order was served on Nunez via certified mail. The district court granted the motion and issued an order and judgment of dismissal with prejudice. Nunez filed a motion to set aside the order of dismissal pursuant to Idaho Rule of Civil Procedure 60(b)(1), (b)(4), or (b)(6). The court denied the motion following a hearing. Nunez timely appeals.

         II.

         ANALYSIS

         Nunez asserts that the order of dismissal is void pursuant to I.R.C.P. 60(b)(4) and must be set aside as a matter of law because Browning and the district court did not strictly comply with the requirements of I.R.C.P. 11.3.

         A. Standard of Review

         The parties disagree about the applicable standard of review. Nunez argues the appellate court should exercise free review over the question of whether to grant a motion to set aside a dismissal pursuant to I.R.C.P. 60(b)(4) because relief under subsection (b)(4) is nondiscretionary. On the other hand, Johnson argues the appellate court should review a trial court's denial of a motion to set aside a judgment under I.R.C.P. 60(b) for abuse of discretion because the decision whether to grant relief from judgment under I.R.C.P. 60(b) is discretionary.

         The confusion concerning the correct standard of review presumably stems from the inconsistency in the standards employed by this Court and the Idaho Supreme Court. The Supreme Court has repeatedly stated that "a trial court's decision whether to grant relief pursuant to I.R.C.P. 60(b) is reviewed for abuse of discretion." See, e.g., Maynard v. Nguyen, 152 Idaho 724, 726, 274 P.3d 589, 591 (2011) (quoting Waller v. State, Dep't of Health and Welfare, 146 Idaho 234, 237, 192 P.3d 1058, 1061 (2008)). However, the Supreme Court also recognizes that the standard of review it has articulated differs from the standard utilized by this Court, which applies a de novo standard of review when a judgment is challenged as void under Rule 60(b)(4). Jim & Maryann Plane Family Trust v. Skinner, 157 Idaho 927, 931-32 n.2, 342 ...


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