Reeves v. Wisenor

CourtUnited States State Supreme Court of Idaho
Citation629 P.2d 667,102 Idaho 271
Docket NumberNo. 13571,13571
PartiesBen REEVES and Alberta Reeves, husband and wife, Plaintiffs-Respondents, v. Jimmy Joe WISENOR, Defendant-Appellant.
Decision Date05 May 1981
Daniel Mark Johnson of Strom, Longeteig & Johnson, Craigmont, for defendant-appellant

Dennis L. Albers and Gregory FitzMaurice, Grangeville, for plaintiffs-respondents.

SHEPARD, Justice.

This is an appeal in which the sole issue is the denial of a motion to set aside a default judgment. We affirm.

On June 24, 1979, respondents Reeves filed a complaint against appellant Wisenor for breach of a lease and assault and battery. Wisenor contacted an attorney and thereafter attorneys for the parties conducted settlement negotiations. As of October 11 or 12, 1979, no answer to the complaint had been filed and the final contact between their attorneys was a telephone conversation of that date. The context of that telephone conversation between those attorneys is in dispute.

Reeves' attorney sent Wisenor and Wisenor's attorney a notice of intent to make application for default, and on October 30, a hearing was held thereon at which no appearance was made on behalf of Wisenor. An order of default was filed at 9:25 a. m. An answer on behalf of Wisenor was received and filed at 10:00 a. m. on the same day. On that same day, at 4:00 p. m., judgment was entered in favor of the Reeves. On November 7, 1979, Wisenor filed a motion to set aside the judgment on the grounds of mistake, inadvertence and excusable neglect as provided in I.R.C.P. 60(b). A hearing was held on that motion at which testimony was received and thereafter the motion was denied.

A default judgment may be set aside on the basis of mistake, inadvertence, surprise or excusable neglect. I.R.C.P. 55(c), 60(b). A motion to set aside a default judgment presents the trial court with a factual determination. Hearst Corp. v. Keller, 100 Idaho 10, 592 P.2d 66 (1979). Where, as here, mistake is alleged as grounds for relief, such must be factual rather than legal and must be conduct that might be expected of a reasonably prudent person under the same circumstances. Hearst Corp. v. Keller, supra; Johnson v. Noland, 78 Idaho 642, 308 P.2d 588 (1957); Orange Transp. Co. v. Taylor, 71 Idaho 275, 230 P.2d 689 (1951). The trial court here had before it the affidavits and the arguments of the attorneys and the testimony of Alberta Reeves taken at the hearing. We further note that the notice of intent to make application for default was mailed to Wisenor's attorney approximately one week after the telephone conversation which Wisenor's attorney argues was the basis for his mistake and inadvertence. The trial judge made a factual determination based on conflicting evidence, thereon exercising his judicial discretion, and that exercise of discretion will not be disturbed on appeal.

Further, we hold that in addition to meeting the requirements of I.R.C.P. 60(b), a party seeking to set aside a default judgment must show a meritorious defense going beyond the mere notice requirements which would be sufficient if plead before default. Hearst Corp. v. Keller, supra; Thomas v. Stevens, 78 Idaho 266, 300 P.2d 811 (1956). That policy is founded on the doctrine that it would be an idle exercise for a court to set aside a default if, in fact, there is no real justiciable controversy. Hearst Corp. v. Keller, supra. Here, there is no showing that such a meritorious defense existed.

[102 Idaho 273]

The judgment and orders of the trial court are affirmed. Costs to respondents

BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.

BISTLINE, Justice, dissenting.

The practicing attorneys of this state may well wonder at the trial court's refusal to set aside the default and default judgment, which bewilderment in that regard can only be exceeded in turn by the Court's refusal to reverse a decision which is totally out of line with this Court's prior decisions, including some of which are very recent. The affidavit supporting the motion demonstrates circumstances not made entirely clear in the Court's opinion.

As I understand the ruling of the trial judge, he refused to set aside the default and judgment thereon solely because "in his discretion" the defendant, had "had ample time to actively defend ... and did not do so," and because even after receiving plaintiffs' notice of intent to default, defendant made no timely filings prior to the entry of default. The trial judge therein evidences a blessed unawareness that an answer had been mailed for filing on the day before the default was entered, and that it was in fact filed 35 minutes after the entry, and was on file prior to the entry of judgment later that day after the ex parte trial of plaintiffs' claims for relief. Nor does the trial court show any regard for defense counsel's sworn statement of his understanding of counsels' conversation that Mr. Albers "would not pursue his Motion for Default on October 24, 1979 and that he would not pursue the matter in the immediate future ... and that I would be notified again in advance of any hearing on a Motion for a Default Judgment ...." Nor did the trial court show any regard for the fact that the plaintiffs Reeves, after the entry of the judgment in their favor, filed a reply to Wisenor's counterclaim against them which was part of the answer.

It is an unusual case, and certainly a case which I would have thought would never have been decided as it was, both below and here. For the reason that it certainly sets the pattern of things to follow, I hope that my brief remarks may serve to temper the civil war which the upholding of this default judgment will surely precipitate down upon the bar, especially the younger and largely inexperienced members thereof.

Hearst Corp. v. Keller, 100 Idaho 10, 592 P.2d 66 (1979), in stating that a motion to set aside a default judgment initially presents questions of fact, taken in context, was correct in that so far as the opinion there was concerned with facts, the question was whether the defaulting defendant supplied any factual basis supporting his claim that he acted under mistake or excusable neglect in not proceeding sooner than he did. Defendant there stated only that he did not know of the strict time requirements for filing his answer and counterclaim. We held that such a mistake of law was no excuse, and that he showed no excusable neglect at all. In short, there was no factual determination to be made other than that his statements of fact, totally uncontradicted, were insufficient.

In a more recent case the trial court was presented with conflicting factual issues on a motion to set aside a default judgment which, although the opinion does not reflect it, was coupled with a motion seeking injunctive relief against the sheriff to restrain him from processing the writ of execution which had issued pursuant to the judgment. In fact, the district court entered a temporary restraining order, and set the matter for hearing on an order to show cause, which was canceled after the hearing. Credit Bureau, Inc. v. Harrison, 101 Idaho 554, 617 P.2d 858 (1980). Therein there was a hotly disputed contest as to the validity of the affidavit of service of summons and complaint. The issue was submitted on oral testimony, and decided by written findings of fact and conclusions of law which on appeal were upheld in this Court in accordance with the well known rule. This was a far cry from Hearst. Although Hearst was cited for the proposition that "(s)uch an application initially presents questions of fact to be determined by the trial court," id. at ----, 617 P.2d at 860, [102 Idaho 274]

there were no conflicting or contradictory factual issues in Hearst. And, I add, there were none here

Our concern here is twofold: one, whether the trial court erred in not setting aside the default and default judgment, thus allowing the case to be decided on the merits and not on a technical procedural rule which penalizes one party for what may be the fault of his attorney and casts an apparent windfall to the other party; and two, whether this Court should ignore the first question and reach its own determination. I address both questions.

Wisenor's motion was supported, as only it could be, his attorney's affidavit of November 6, 1979. Therein he explained how the default came to be taken. It is entirely clear therefrom 1 that (1) counsel had reached an understanding that defense counsel would not see his client defaulted, but that plaintiffs' counsel would send out a notice of default which would not be acted upon until defense counsel had an opportunity to contact his client and either file an answer or withdraw, and (2) that defense counsel was negligent or mistaken, or negligently mistaken in failing to comprehend that counsel had not reached such an understanding.

The only responsive paper filed by plaintiffs' counsel was that entitled reply to counterclaim, filed three days after defense counsel's affidavit. For reasons known only to himself, plaintiffs' counsel declined to execute an affidavit contradicting any of the statements made in the affidavit of defense counsel. Particularly, and that which should have concerned the trial court, and this Court as well, was defense counsel's statement that the arrangement recited in the affidavit was acceptable to plaintiffs' counsel who agreed to extend additional time beyond the 24th of October.

The integrity of defense counsel's statement of the understanding is wholly supported by the events which did transpire. Plaintiffs' counsel did send out a default notice, setting up the 24th as the day on which he would have the default entered. The 24th came and went, and no hearing [102 Idaho 275]

took place nor was plaintiffs' motion ever again noticed for hearing. Such is strong objective evidence, going wholly unrefuted by plaintiffs' counsel


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