Dustin v. Beckstrand

• Decision Date: 27 August 1982
• Docket Number: No. 13824,13824
• Citation: 654 P.2d 368,103 Idaho 780
• Parties: Herbert W. DUSTIN, Plaintiff-Respondent, v. Leonard BECKSTRAND and Mary Burdette Beckstrand, husband and wife, Defendants-Appellants, and Big Wood Canal Company, Defendant.
• Court: Idaho Supreme Court

Page 368

654 P.2d 368

103 Idaho 780

Herbert W. DUSTIN, Plaintiff-Respondent, v. Leonard BECKSTRAND and Mary Burdette Beckstrand, husband and wife, Defendants-Appellants and Big Wood Canal Company, Defendant.

No. 13824.

Supreme Court of Idaho.

Aug. 27, 1982.

Rehearing Denied Dec. 9, 1982.

Dalon Esplin, Lowell N. Hawkes, Chartered, Pocatello, for defendants-appellants.

Jon J. Shindurling, May, May, Sudweeks, Shindurling & Stubbs, Twin Falls, for plaintiff-respondent.

SHEPARD, Justice.

This is an appeal from an order denying a motion to vacate a judgment. We affirm in part, reverse in part and remand.

The genesis of this action arose in 1977 when defendants sold to plaintiff a farm and personal property at a price of $150,000. As a part of that sale, defendants were required to turn over to plaintiff a number of shares in the Big Wood Canal Company representing water appurtenant to the land. A quarrel broke out almost immediately between the parties, resulting from defendants' refusal to turn over certain of the personal property and defendants' attempts to sell the same property to other persons. Plaintiff brought an action against defendants and recovered a judgment of some $4,000. In 1977, plaintiff Dustin entered negotiations with third parties for the sale of the real property. Defendants made efforts to prevent that sale and entered into a pattern of behavior intended to delay and prevent the consummation of that sale, which conduct included a refusal to transfer the shares of the Big Wood Canal Company water stock. Defendants had obtained possession of the shares of water stock, refused to convey them to the plaintiff and denied having possession of the stock. During the spring and summer of 1978, plaintiff, the prospective purchasers, and plaintiff's attorneys, on numerous occasions sought to gain transfer of the stock from defendants to plaintiffs; however, defendants refused to convey the stock, denying they had possession of it. Denial of conveyance of the stock delayed the consummation of the sale from plaintiff to third parties.

The instant action was filed November 15, 1978, wherein plaintiff sought the performance of defendants in conveying the water stock to the plaintiff and for damages. Service of process was made on defendants and a handwritten, pro se answer was filed by defendants in which they essentially denied failure and refusal to turn over the water stock, denied having possession of the water stock, and conditionally stipulated that the court could order the transfer of the water stock, but only if plaintiff's claim for damages was dismissed. Therein the defendants stated: "Our present address is Box 111, Missionary Training Center, Provo, Utah 84601".

Thereafter on January 5, counsel for plaintiff filed a note of issue and request for trial setting. Included therein was an indication of the estimated time of trial, the nature of the action, and that a jury was not requested. Contained on this document was a certification that a copy had been mailed to defendants at P.O. Box 111, Provo, Utah; however, the designation "Missionary Training Center" was not contained thereon. At the same time, counsel for plaintiff filed a motion for partial summary judgment together with a notice of hearing on that motion. Those documents all were received by defendants and in response thereto, defendants filed two handwritten, pro se documents in which the defendants essentially reiterated their willingness to accede to the transfer of the water stock on the condition that the remaining claim for damages be dismissed. In the event the claim for damages was not dismissed, defendants indicated they intended to counterclaim, but no counterclaim was stated. It was stated therein:

"Before any trial dates are set, or before any hearings are set or heard, or any judgments given, other than the two choices given above, the Judge is disqualified from having anything more to do with this case, either of hearing any more arguments or giving any more rulings or judgments. * * * This is the final and last offer of the Defendants, for the Plaintiffs to accept this water stock and forevermore hold their peace, or forget that they should ever have it ... P.S. We have no idea what our address from this day on for a period of undetermined length.

* * * It is further stated that the defendants, Leonard Beckstrand and Burdette Beckstrand has sought counsel to represent them in this case, but have been unable to secure that counsel. If it is necessary for counsel to represent them; that counsel will not be available for a period of two years." (Emphasis added.)

The defendants stated that neither they nor their counsel could be present at the hearing on the motion for summary judgment, "nor can they be for a period of two years".

Approximately two days later, the defendants Beckstrand left the United States having no knowledge as to where they would be or at what address, other than in the country of Peru. On February 5, 1979, the trial court entered its order setting a trial date for the 14th of August, 1979, a copy of which order was sent to Leonard Beckstrand, Box 111, Provo, Utah, 84601. That mailing was returned to the court marked, "returned to sender, undeliverable as addressed, unable to forward."

The record does not reflect and indeed defendants do not contend that following their departure from the United States they ever furnished or attempted to furnish the clerk of the court, the trial judge, the plaintiff, plaintiff's counsel, or any other person associated with the litigation, an address at which they could be contacted or receive mail. During their absence from the United States, the Beckstrands were in at least two locations in Peru and one in Bolivia. Nevertheless, defendants admit that during the time they were in Peru, they received two communications from counsel for plaintiff, one of which notified them of a hearing on motion for summary judgment, and the other indicating plaintiff's waiver of a jury trial. Following receipt of those notices, defendants continued to do nothing.

In the meantime, plaintiff's motion for partial summary judgment was heard on the 22nd day of January, with defendants failing to appear either in person or by counsel, and said motion was granted. Notice thereof was mailed to defendants at an address in Arequipa, Peru, but was returned to the district court for lack of sufficient postage.

Thereafter, the matter came on for trial on the 14th day of August, 1979, before the trial court sitting without a jury. Defendants failed to appear either in person or through counsel. Following trial, findings of fact, conclusions of law and judgment were entered in favor of plaintiff and against defendants insofar as these parties are concerned, ordering defendants to convey the water stock to the plaintiff and awarding plaintiff $5,000 in general damages and $5,000 in punitive damages together with costs and attorney's fees. The record does not disclose whether or not notice of the entry of that judgment was sent to defendants at any address, but defendants received actual notice of that judgment as of November 13, 1979.

Thereafter, the Beckstrands returned to the United States and on February 11, 1980, counsel for Beckstrands filed an attempted appeal from the judgment and at the same time filed a motion to set aside judgment. The attempted appeal from the judgment was dismissed by this Court as untimely. Defendants' motion to set aside judgment came on for hearing on May 28, 1980, at which no evidence was presented, but argument from counsel for both plaintiff and defendants was heard. Thereafter, the trial court entered its memorandum decision denying said motion to set aside the judgment.

It must be recalled that the sole issue on appeal from a denial of appellants' Rule 60(b) motion to set aside the judgment against them is whether the trial court abused its discretion in denying the motion. Johnston v. Pascoe, 100 Idaho 414, 599 P.2d 985 (1979); Pullin v. City of Kimberly, 100 Idaho 34, 592 P.2d 849 (1979); Lisher v. Krasselt, 96 Idaho 854, 538 P.2d 783 (1975); Willis v. Willis, 93 Idaho 261, 460 P.2d 396 (1969). Accordingly, its decision will not be set aside absent a clear showing of abuse of discretion. A Rule 60(b) motion is not a substitute for a timely appeal.

Appellants first assert that the judgment should be set aside because they never received the notice of the court's order setting the trial date. That notice was sent to Box 111, Provo, Utah, and returned as undeliverable. The Beckstrands argue that this was an incorrect address and that the court therefore failed to serve that notice at their "last known address" as required by Rule 5(b). First, it is not clear that this address, without the words "Missionary Training Center", was so deficient that it could not be their "last known address." The record reflects that the Beckstrands received the request for trial setting filed and served by plaintiff. The attached affidavit for mailing states that it was sent to P.O. Box 111, Provo, Utah. It would not be a clear abuse of discretion for the trial court to conclude that Box 111 was an adequate address at which the appellants could have been reached prior to their departure for South America.

Assuming, however, that the address was not the Beckstrands' "last known address", such does not require a reversal on the grounds of improper service under the facts of this case. Rule 5(b) states, in pertinent part:

"Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court."

Appellant's interpretation of this sentence would have us ignore the last clause. As the Beckstrands were leaving this country they informed the court in writing that they did not know what their address would be from that day forward for...