Opinion No. 24
from the District Court of the Seventh Judicial District,
State of Idaho, Bonneville County. Hon. Dane H. Watkins, Jr.,
denying motion to set aside the order of dismissal,
reversed and case remanded.
Law Firm, Inc.; Don Gamble, Idaho Falls, for appellant.
Romankiw, PLLC; Lindsey R. Romankiw, Idaho Falls, for
GRATTON, Chief Judge
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.
AND PROCEDRUAL BACKGROUND
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 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.
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.
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.
Standard of Review
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
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 ...