Stoecklein v. Johnson Elec., Inc., 23302

• Citation: 109 Nev. 268, 849 P.2d 305
• Case Date: March 24, 1993
• Court: Supreme Court of Nevada

Page 305

849 P.2d 305

109 Nev. 268

Donald J. STOECKLEIN, Individually and as Trustee of the

Country Revocable Trust, Appellant, v. JOHNSON ELECTRIC, INC., Respondent.

No. 23302.

Supreme Court of Nevada.

March 24, 1993.

Alverson, Taylor, Mortensen & Nelson, Las Vegas, for appellant.

Oshins, Gibbons & Marsh, Las Vegas, for respondent.

[109 Nev. 270] OPINION

PER CURIAM:

Respondent Johnson Electric, Inc. (Johnson) alleged in its complaint numerous causes of action, including breach of contract and fraud, arising from a real property transaction with appellant Donald Stoecklein (Stoecklein). The matter was called to trial on January 15, 1992, and neither Stoecklein nor counsel representing Stoecklein appeared. After a bench trial, the court entered judgment for Johnson, and awarded Johnson $75,000 in compensatory damages and $250,000 in punitive damages. On February 27, 1992, Stoecklein

filed a motion for relief from judgment under NRCP 60(b)(1). ¹ We agree with Stoecklein that he is entitled to a new trial. We conclude that his failure to attend the trial was a result of excusable neglect, as he had not received notice of the trial date, and therefore, we reverse the ruling of the district court and remand for a new trial on the merits

FACTS

Johnson filed a complaint on November 19, 1990, in district court against Stoecklein and five other named defendants. An answer to the complaint was filed on January 3, 1991, which denied all allegations and raised twenty-three affirmative defenses. A scheduling order for the district court trial was sent to counsel for the parties on April 26, 1991, stating that the parties should be ready for trial beginning September 30, 1991. ² The order stated that the court would notify the attorneys for the parties of the date of trial and any pretrial deadlines.

Counsel of record for Stoecklein and the other defendants withdrew on August 19, 1991, due to nonpayment of legal fees. The order of withdrawal filed with the district court provided an incorrect address for future pleadings to be served on Stoecklein.

A bench trial was held on January 15, 1992. Neither Stoecklein [109 Nev. 271] nor anyone representing Stoecklein appeared at trial. Judgment was entered on January 22, 1992, awarding Johnson $75,000 in compensatory damages and $250,000 in punitive damages. Counsel for Johnson sent notice of the judgment to Stoecklein at his correct address in Henderson, Nevada.

Stoecklein obtained new local counsel and filed a motion for relief from judgment under NRCP 60(b)(1) on February 27, 1992. The motion was based on Stoecklein's assertion that he had received no notice of the trial date. The minute order from the hearing on Stoecklein's motion reflects that Judge Lehman stated: "The Court [is] advised Mr. Colvin's client, Donald Stoecklein, is an attorney and should have been available. COURT ORDERED motion denied." On April 2, 1992, an order denying Stoecklein's motion for relief from judgment was entered. Stoecklein now appeals that order.

DISCUSSION

The district court has wide discretion in deciding whether to grant or deny a motion to set aside a judgment under NRCP 60(b). Its determination will not be disturbed on appeal absent an abuse of discretion. Union Petrochemical Corp. v. Scott, 96 Nev. 337, 338, 609 P.2d 323 (1980). However, this discretion is a legal discretion and cannot be sustained where there is no competent evidence to justify the court's action. Lukey v. Thomas, 75 Nev. 20, 22, 333 P.2d 979 (1959).

Under NRCP 60(b)(1), the district court may relieve a party from a final judgment on grounds of mistake, inadvertence, surprise, or excusable neglect. NRCP 60(b)(1). The presence of the following factors indicates that the requirements of this rule have been satisfied: (1) a prompt application to remove the judgment; (2) an absence of an intent to delay the proceedings; (3) a lack of knowledge of the procedural requirements on the part of the moving party; and (4) good faith. Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982). A showing of a meritorious defense to the action is also required. Deros v. Stern, 87 Nev. 148, 152, 483 P.2d 648, 650 (1971). Finally, the district court must consider the state's underlying basic policy of deciding a case on the merits whenever possible. Kahn v. Orme, 108 Nev. 510, 835 P.2d 790, 793 (1992). Whether Stoecklein acted promptly.

Stoecklein filed his motion for relief from judgment on February 27, 1992, thirty-five days after judgment was entered. NRCP 60(b) provides that a motion made under the rule shall be made within a reasonable time, and if based upon mistake, inadvertence, surprise, or excusable neglect, the motion must be made not more than six months after judgment is entered. NRCP 60(b). This court has concluded that such a motion must be made within a reasonable time and that the six-month period represents the extreme limit of reasonableness. Union Petrochemical, 96 Nev. at 339, 609 P.2d at 324 (1980). There is no dispute that Stoecklein's motion for relief was timely and made within a reasonable time. Therefore, a prompt application to remove the judgment was made, satisfying the first requirement of the rule.

Whether Stoecklein intended to delay the proceedings.

Johnson asserts that Stoecklein's conduct throughout the underlying litigation has been dilatory and that Stoecklein brought the NRCP 60(b)(1) motion to further delay the resolution of this litigation. Stoecklein argues his actions do not show an intent to delay the proceedings. Stoecklein points to the fact that he appeared at his own deposition without counsel, instead of seeking a continuance, and also sought immediate relief after judgment had been entered against him, to show a lack of intent to delay. Stoecklein also argues that he never had notice of the trial date, and was therefore not capable of forming an intent to delay it.

This court has previously examined the circumstances surrounding the filing of the motion for relief from judgment itself to determine whether the applicant was acting solely for the purpose of delay. See, e.g., Union Petrochemical Co. v. Scott, 96 Nev. 337, 609 P.2d 323 (1980). Stoecklein retained new local counsel promptly after learning of the judgment, timely filed his motion for relief, and claims to desire an opportunity to present his defense to this action. Based upon the limited record before the court, we conclude the facts do not evidence an intent to merely delay the proceedings on Stoecklein's part.

Whether Stoecklein lacked knowledge of the procedural requirements.

Johnson contends that Stoecklein, as a California attorney, must be presumed to have a knowledge of civil procedure, and therefore cannot claim he lacked knowledge of the procedural requirements. Stoecklein asserts that he did lack specific procedural knowledge in this matter--he had no knowledge that a trial date had been scheduled. Stoecklein also points out that the mere fact that he is a California attorney would not have provided him with knowledge of the trial date.

A lack of procedural knowledge on the part of the moving party is not always necessary to show excusable neglect under NRCP 60(b)(1). See, e.g., Passarelli v. J-Mar Development, 102 Nev. 283, 285-86, 720 P.2d 1221 (1986). Each case depends upon its own facts. In Hotel Last Frontier v. Frontier Property, 79 Nev. 150, 154, 380 P.2d 293, 294-95 (1963), we suggested guidelines for the lower court's exercise of discretion when determining whether to grant or deny a NRCP 60(b)(1) motion. We stated, "[T]he lack of knowledge of the party or counsel as to procedural requirements has been given weight." Id. at 154, 380 P.2d at 295; see also Kahn v. Orme, 108 Nev. 510, 835 P.2d 790 (1992); Yochum v. Davis, 98 Nev. 484, 653 P.2d 1215 (1982). A lack of procedural knowledge on the part of the moving party is but one persuasive factor to justify the granting of relief under NRCP 60(b)(1). It is not a determinative linchpin here. The key factor in the present case was Stoecklein's lack of notice of the trial date.

However, while Stoecklein may not have been ignorant of any procedural requirements, he was unaware of an essential procedural fact--the trial date. Neither Stoecklein's status as an attorney nor an extensive knowledge of civil procedure could have imbued him with knowledge of the trial date in this action. Therefore, we find Johnson's arguments unpersuasive. Whether...