Johnston v. Pascoe

599 P.2d 985, 100 Idaho 414, 1979 Ida. LEXIS 482

• Court: Idaho Supreme Court
• Decided: September 4, 1979
• Docket: 12009
• Status: Published

Opinions

McFADDEN, Justice.

This is an appeal from a summary judgment granted in favor of Elmer D. Johnston, plaintiff-respondent, and against Darrel Pascoe, defendant-appellant, in an action brought on a previously obtained judgment against defendant-appellant. In a previous opinion, the appeal was dismissed. Thereafter, appellant’s petition for rehearing was granted and the appeal was reargued. The previous opinion is withdrawn and this opinion substituted therefor. In this opinion denial of appellant’s motions brought under I.R.C.P. 59(a) and 60(b) are affirmed and the appeal from the summary judgment is dismissed. While the appeal was pending Mr. Eismann was substituted as respondent’s counsel; he was not counsel, or of counsel, in the trial court.

In order to appreciate the issues presented on this appeal it becomes incumbent to briefly review the chronological series of events involved in this litigation.

May 10, 1968, a judgment was entered in the case of Johnston v. Pascoe in favor of Johnston for $13,620.00 plus 6% interest and $2500.00 attorneys fees on a promissory note.

May 17, 1968, Johnston brought an action against Pascoe and others to set aside allegedly fraudulent conveyances, which was duly answered by the defendants. This action was dismissed on September 9,1969 for lack of prosecution.

May 10, 1974, the present action was instituted by Johnston against Pascoe to renew the judgment of May 10, 1968. Answer was filed by Pascoe, setting forth among other defenses that the Johnston claim had been discharged in bankruptcy proceedings culminating in a discharge by Pascoe of certain obligations.

December 5, 1974, a motion for summary judgment supported by affidavits and memorandum was filed by Johnston. In the motion and affidavits, Johnston contended that Pascoe had failed to properly schedule his debt to Johnston in the bankruptcy proceedings and hence the judgment was not discharged.

February 14,1975, Pascoe filed his memorandum in opposition to the motion for summary judgment, supported by his affidavit. This memorandum of Pascoe was opposed by a subsequent memorandum of Johnston served February 24, 1975.

March 4, 1975, Pascoe moved the court for an extension of time within which to file additional affidavits, deposition and interrogatories, which was opposed by Johnston.

March' 12, 1975, the trial court entered its memorandum decision denying the motion for extension of time and ruling that plaintiff Johnston was entitled to summary judgment. The court directed Johnston’s counsel to prepare the order denying the requested extension of time and an order granting the motion for summary judgment. This memorandum decision reflects that a copy of it was submitted to counsel for each of the parties.

March 21, 1975, orders entered granting motion for summary judgment and denying motion for extension of time, both dated March 12, 1975.

March 21,1975, summary judgment dated March 18, 1975, was entered.

April 21, 1975, Pascoe moved for new trial or in the alternative for amendment of judgment under I.R.C.P. 59(a) and also moved to vacate judgment under I.R.C.P. 60(b). These motions were supported by counsel’s brief and affidavit. In his affidavit counsel acknowledged receipt of the court’s memorandum decision of March 12, 1975, but stated that he was never notified of the entry of the summary judgment and order and first became aware of its entry on or about April 11, 1975, and obtained copies of the judgment and order on April 16, 1975. He stated therein that although Johnston’s attorney filed a cost bill on March 18, 1975, he was not served with a copy of it.

April 21, 1975, Pascoe filed a motion for stay of proceedings until disposition of his motions under I.R.C.P. 59(a) and 60(b). The court entered its order granting a stay of proceedings on April 22, 1975.

April 29, 1975, Johnston filed objections to Pascoe’s motions, supported by memorandum of authorities and affidavit.

May 12, 1975, Pascoe filed three affidavits of witnesses to establish that Johnston had personal knowledge of Pascoe’s pending bankruptcy.

May 16, 1975, the court granted 10 days to Johnston to supplement his objections to motions by Pascoe, and Pascoe was given 5 days to respond, following which the court was to rule without further argument.

May 27, 1975, Johnston’s supplemental memorandum was filed, and following, on July 8, 1975, Pascoe’s reply memorandum.

On July 8,1975, the trial court entered its order denying Pascoe’s motion to vacate judgment under I.R.C.P. 60(b) and denying his motion for new trial or in the alternative for an amendment of the judgment under I.R.C.P. 59(a). The court also struck costs allowed Johnston in the summary judgment, and revoked the stay of proceedings previously entered.

August 11,1975, Pascoe’s notice of appeal dated August 7, 1975, was filed.

Appellant Pascoe in his initial brief asserts that the trial court erred in two regards in entering the summary judgment inasmuch as there were unresolved issues of disputed fact as to whether Johnston had received notice of the bankruptcy of the defendant, and that the trial court erred in the summary judgment in granting appellant attorneys fees. He also contends that the trial court erred in denying his motion for an extension of time to file additional affidavits, depositions and interrogatories in opposition to the motion for summary judgment; that the trial court erred in denying his I.R.C.P. 59(a) motion for new trial or in the alternative for amendment of the judgment; and finally that the trial court erred in denying his I.R.C.P. 60(b) motion to vacate the judgment.

In his petition for rehearing appellant asserts that this court should have considered his I.R.C.P. 60(b) motion and that it failed to give due weight to the opinion in the United States Supreme Court case of Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944), 149 A.L.R. 736. In his reply brief on rehearing, appellant strenuously contends that the ruling of this court in Sines v. Blaser, 98 Idaho 435, 566 P.2d 758 (1977), should control.

Appellant’s assignments of error will be discussed in the order presented. Under I.C. § 13-201,¹ an appeal from a final judgment, including a summary judgment, must be filed within 60 days of entry of the judgment. Here the summary judgment was filed in the district court on March 21, 1975, yet this appeal from that judgment was not filed until August 11, 1975, well beyond the 60 day appeal time. Appellant, however, argues that the time for appeal should be tolled because the district court clerk failed to provide immediate notice of entry of judgment as required by I.R.C.P. 77(d) as that provision existed at the time pertaining to this appeal.² However, even if the 60 day period of appeal were tolled until April 11, 1975, at which time appellant acknowledges he was aware of the entry of the summary judgment, more than sixty days elapsed between that date and the date of filing of this appeal. Therefore, we conclude that the appeal from the summary judgment was not timely and must be dismissed.

Appellant, nevertheless contends that under Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944), this appeal should still be entertained. In that case, the Supreme Court was considering an appeal taken from the District Court of the District of Columbia to the Court of Appeals. The appeal was not timely taken insofar as the original judgment of dismissal was concerned. The clerk of the district court failed to serve notice of entry of the judgment by mail and to make a note in the docket of mailing, contrary to the provisions of the Federal Rule 77(d) (which employed the same language as I.R.C.P. 77(d) here involved). The trial court, however, signed and filed a second judgment in the same terms as that of the original judgment, and the next day the appellant filed his notice of appeal. The high court held that the appeal was timely taken, stating:

It is true that Rule 77(d) does not purport to attach any consequence to the failure of the clerk to give the prescribed notice; but we can think of no reason for requiring the notice if counsel in the cause are not entitled to rely upon the requirement that it be given. It may well be that the effect to be given to the rule is that, although the judgment is final for other purposes, it does not become final for the purpose of starting the running of the period for appeal until notice is sent in accordance with the rule. . But we think it was competent for the trial judge, in the view that the petitioner relied upon the provisions of Rule 77(d) with respect to notice, and in the exercise of a sound discretion, to vacate the former judgment and to enter a new judgment of which notice was sent in compliance with the rules. The term had not expired and the judgment was still within control of the trial judge for such action as was in the interest of justice to a party to the cause.

Hill v. Hawes, 320 U.S. at 523-24, 64 S.Ct. at 336, 88 L.Ed. at 285, 286 (1944).

A similar situation prevailed in the case of this court in Andrus v. Irick, 87 Idaho 471, 394 P.2d 304 (1964), where the trial court entered its judgment on November 14, 1961. No appeal was timely perfected from that judgment. However, on February 23, 1962, the appellants moved under the then current version of I.R.C.P. 60(b) to be relieved from the entry of that judgment, on the grounds of mistake, inadvertence, surprise or excusable neglect on the part of themselves and their counsel. The motion was supported by affidavits. Later a subsequent motion was filed seeking to set aside the judgment, the appellants claiming they deserved relief from the judgment and that the court should reopen the judgment and take additional testimony and amend the findings of fact and conclusions of law and enter a new judgment. The trial court did enter a new judgment, which was verbatim to the original judgment, except for the date of entry of the judgment, i. e., April 19, 1962. Appellants then timely appealed from that judgment. In the case of Andrus v. Irick, supra, this court stated:

[W]e are of the view that the trial court did not err in setting aside the original judgment and entering a subsequent judgment, when failure to move earlier to set it aside was occasioned by the fault or neglect of plaintiff’s counsel. This conclusion is reached even though the effect of such determination by a trial court is to extend the time for appeal.

87 Idaho at 477, 394 P.2d at 307 (1964).

It is our conclusion that the instant case is at variance with the cases of Hill v. Hawes, supra, and Andrus v. Irick, supra. In the instant case it is admitted that appellant and his attorney were aware of the entry of the judgment on April 11, 1975, and at that time only 31 days had elapsed since the entry of the judgment. Thus there remained over four weeks within which an appeal from the judgment could have been perfected. It is also to be noted that unlike Hill v. Hawes and Andrus v. Irick,, here, the time for appeal had not expired when counsel sought relief from entry of the judgment, thus calling upon the trial court to exercise its discretion whether the time for appeal should in effect be extended. We therefore conclude that the appeal from the summary judgment was not timely taken and must be dismissed.

Appellant also contends that the trial court erred in denying his motion for an extension of time to file additional affidavits, depositions and interrogatories in opposition to the motion for summary judgment. This motion was filed on March 4, 1975. This motion was unsupported by any affidavit and contains the following statement: '

[T]hat since the filing of plaintiff’s Motion for Summary Judgment [filed on December 5, 1974], Defendant has information that there are witnesses who have personal knowledge that Plaintiff had actual knowledge of the filing of the petition in bankruptcy by Defendant.

Subsequent to the filing of the motion for summary judgment with its supporting affidavits and memorandum of authorities, appellant, on February 14, 1975, filed his memorandum in opposition to the motion for summary judgment with an affidavit by his attorney³ and an affidavit by appellant. On March 12, 1975, the trial court entered a memorandum decision granting respondent’s motion for summary judgment and denying appellant’s motion for extension of time, which was followed on March 21, 1975 by the summary judgment and order denying appellant’s motion for extension of time.

In the first place, this motion for an extension of time was addressed to the discretion of the court. There was no affidavit explaining why the information sought could not have been sooner found and presented to the trial court. Under the facts and circumstances presented to the trial court from this record we can see no abuse of discretion in denying this motion. In Lisher v. Krasselt, 96 Idaho 854, 857, 538 P.2d 783, 786 (1975), this court stated regarding abuse of discretion by a trial court:

We decline to ascribe a definitive meaning to the amorphous phrase “abuse of discretion” (citations omitted) solely for the purposes of this case, but it will suffice to say, that where the trial court has exercised such discretion after a careful consideration of the relevant factual circumstances and principles of law, and without arbitrary disregard for those facts and principles of justice, we will not . disturb that action.⁹

Moreover, under the appellate statutes in effect at the time this appeal was perfected, a motion for extension of time was not one of the orders from which an appeal could be taken. I.C. § 13-201. Thus, such rulings were reviewable only when an appeal from the judgment was taken, and were reviewable only as a corollary of the appeal from the judgment or from an order granting or denying a new trial. See State ex rel. State Board of Medicine v. Smith, 80 Idaho 267, 328 P.2d 581 (1958); Weiser Irrig. Dist. v. Middle Valley Irrig. Ditch Co., 28 Idaho 548, 155 P. 484 (1916); Richards v. Richards, 24 Idaho 87, 132 P. 576 (1913).

It is our conclusion that the dismissal of the appeal from summary judgment carried with it a dismissal of any of the non-appealable orders leading up to that judgment, including the order denying the extension of time.

As concerns appellant’s assignment of error directed to the trial court’s denial of his motion filed April 21, 1975, under I.R.C.P. 59, which motion was denominated a motion for new trial or in the alternative for an amendment of the judgment, it is our conclusion that this was not timely served. In Hill v. Hawes, supra, the United States Supreme Court held that when a trial court entered a new judgment following failure of a clerk to mail notice of entry of the judgment under Fed. Rule 77(d), the time for appeal commenced to run from the time of entry of the subsequent judgment. However, it did not address the issue of the timeliness of any motion under 59(e). Appellant has shown no case and research has failed to reveal any case where the clerk’s failure to provide notice under either Fed. Rule 77(d)'or I.R. C.P. 77(d) affects the time within which to file a post-judgment motion under I.R.C.P. 59 with the district court. Therefore, even assuming that the motion’s denial was timely appealed, it must be concluded that the district court properly denied the motion because more than ten days elapsed from entry of judgment and filing of appellant’s .motion for an amendment of the judgment under I.R.C.P. 59.⁴ I.R.C.P. 59(e) specifically provides “Motion to alter or amend a judgment. — A motion to alter or amend the judgment shall be served not later than ten (10) days after entry of the judgment.” In this case the record shows that the motion was filed on April 21, 1975, having been served by mail on April 18,1975, which was some 28 days subsequent to entry of the summary judgment on March 21,1975. I.R. C.P. 6(b) in specific terms prohibits any extension of time “for taking any action under rules 50(b), 52(b), 59(b), (d), (e), and 60(b), except to the extent and under the conditions stated in them.” Insofar as the provisions of 59(b), (d) and (e) are concerned, there appear to be no conditions stated in them allowing any extension of time. We therefore hold that the trial court properly denied appellant’s I.R.C.P. 59 motion because more than 10 days had elapsed from the entry of the judgment and filing of the motion.

A litigant may also be relieved from a final judgment for newly discovered evidence under I.R.C.P. 60(b)(2). A motion under that provision must be made within a reasonable time not exceeding 6 months, I.R.C.P. 60(b), and an appeal must be taken to this court from the district court’s denial within 60 days of its denial. I.C. § 13-201. However, “[a] motion under [I.R.C.P. 60(b)] does not affect the finality of a judgment or suspend its operation. . . .” I.R. C.P. 60(b). “Because of the more extended time periods applicable to a 60(b) motion, sound policy dictate[s] that the 60(b) motion should not affect appeal time.” 7 Moore’s Federal Practice ¶ 60.29 (2d ed. 1978). Thus, appellant’s appeal from the district court’s denial of the 60(b)(2) motion is properly before this court because the motion was presented to the district court within 6 months of entry of judgment and its denial was appealed within 60 days.

The next issue is whether the merits of this portion of appellant’s appeal warrants relief. In this motion appellant sought relief under 60(b)(1) “for mistake, inadvertence, surprise or excusable neglect in failing to file his motion for new trial.[amendment of judgment] within ten (10) days after the entry of judgment” because of failure of plaintiff or his attorney or the clerk of the court to give notice of entry of the judgment as required by I.R.C.P. 77(d). Appellant also claims the judgment is void under 60(b)(4) because the trial court erred in finding as a matter of law that the plaintiff did not have notice of the bankruptcy proceedings and further that the court erred in finding respondent was entitled to attorney fees. He further contends, apparently under 60(b)(2), that he was denied a fair opportunity to provide witnesses or other evidence of the notice or knowledge of respondent as to appellant’s bankruptcy.

The right to grant or deny relief under the provisions of Rule 60(b) is a discretionary one. 7 Moore’s Federal Practice ¶ 60.19. See Hearst Corp. v. Keller, 100 Idaho 10, 592 P.2d 66 (1979); Pullin v. City of Kimberly, 100 Idaho 34, 592 P.2d 849 (1979). The rule states “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, etc. . .” (Emphasis added.) From the record before this court we can find no abuse of discretion by the trial court of such extent as to require setting aside its ruling denying appellant’s 60(b) motion. In order to be entitled to relief under this 60(b)(1) motion, the movant must establish a mistake, inadvertence, surprise or excusable neglect. In examination of this record, it must be kept in mind that a 60(b) motion is not a substitute for appeal. 7 Moore’s Federal Practice ¶ 60.18(8). Schildhaus v. Moe, 335 F.2d 529 (2d Cir. 1964). In the instant case appellant was cognizant of the entry of the judgment against him for ten days before filing this 60(b) motion, and at the time of filing of the 60(b) motion the time for appeal had not expired. It is difficult to see how appellant can assert these claims when the trial court mailed a copy of its memorandum opinion of March 12, 1975, to both counsel, in which opinion it advised the parties that it was granting the respondent’s motion for summary judgment and denying appellant’s request for an extension of time, and then being fully cognizant of entry of the summary judgment on April 11, 1975.

Nor do we find any abuse of discretion by the trial court in denying this motion on the ground the judgment was void (I.R.C.P. 60(b)(4)). The record before the trial court was a written one wherein respondent was granted a summary judgment. No issues were unresolved, and the matter was fully briefed. Proper procedure would have been to appeal from such a judgment, which was not timely done. From appellant’s motion he would appear to be seeking to also come within the scope of 60(b)(2) of newly discovered evidence which with due diligence could not have been discovered in time to move for a new trial. However, there was no showing as to what action was taken constituting due diligence in the attempt to find the witnesses whose affidavits were taken and filed on May 12,1975, some three weeks subsequent to filing of the 60(b) motion and some months after the motion for summary judgment was filed. It is to be recalled that appellant filed his affidavit in opposition to the motion for summary judgment on February 13,1975, wherein he stated that he had information and belief that respondent had actual knowledge of appellant’s petition for bankruptcy in 1969 (see I.R.C.P. 56(e) requiring affidavits in opposition to a motion for summary judgment shall be on personal knowledge). Under all the facts and circumstances, and considering the lapse of time between filing of the initial motion for summary judgment and filing of the affidavits of witnesses on May 12, 1975, we must conclude that the trial court did not abuse its discretion in denying this motion under I.R.C.P. 60(b).

We further conclude that this case is distinguishable from Sines v. Blaser, 98 Idaho 435, 566 P.2d 758 (1977), which opinion was rendered subsequent to the initial argument in this case. In that case judgment was entered in favor of the Sines quieting title to certain real property as against the Blasers. Counsel for the Sines prepared findings of fact, conclusions of law and judgment, originals of which were mailed to the court and copies of which were mailed to counsel for Blasers on October 15, 1974. The court signed the judgment on October 18, 1974, but the clerk failed to give notice of the entry of the judgment as required by I.R.C.P. 77(d). Nonetheless, counsel for the Blasers, on December 10, 1974, unaware judgment had been entered, moved to set aside or amend the findings, moved for judgment n. o. v., and in the alternative moved for a new trial. On December 20, 1974, the trial court denied the motions. By this time the 60 days within which an appeal could be taken from the judgment had expired. Unlike the present case, where Paseoe and his counsel admitted that they were aware of the entry of the judgment within the 60 day period within which to appeal from the judgment, the Blasers and their counsel never acknowledged that they were previously aware of the entry of the judgment against them. This court held, in Sines v. Blaser, supra, that the trial court abused its discretion in denying the Blasers’ motion for relief under the provisions of I.R.C.P. 60(b). However, as previously discussed, we conclude that the record before this court in the instant case fails to reflect such an abuse of discretion by the trial court as was present in Sines v. Blaser.

The appeal from summary judgment is dismissed as not being timely filed. Appellant’s I.R.C.P. 59 motion for amendment of judgment is dismissed as not being timely filed. The order of the trial court denying appellant’s I.R.C.P. 60(b) motion is affirmed. Costs to respondent.

DONALDSON, C. J., and SHEPARD, J., concur.

1 . Idaho Code § 13-201, prior to its 1977 amendment, is the applicable notice of appeal provision.

“1. From a final judgment . . within sixty days after the entry of such judgment.”

2 . Rule 77(d) Notice of orders or judgments.— Immediately upon the entry of an order or judgment the clerk of the district court shall serve a notice of the entry by mail in the manner provided for in rule 5 upon every party affected thereby who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in rule 5 for the service of papers.

3 . At the time of the filing of the memorandum in opposition to the motion for summary judgment with its supporting affidavits, I.R.C.P. 11(c) had been amended by order of this court dated October 24, 1974, with effective date of January 1, 1975. As so amended, Rule 11(c) provided:

Affidavits. — Affidavits authorized or permitted under these rules shall be a written statement or declaration by a party or his attorney of record sworn to or affirmed before an officer authorized to take depositions by Rule 28, that the affiant believes the facts stated to be true, unless a verification upon personal knowledge is required: provided no attorney of a party may make an affidavit in support of or in opposition to a motion for summary judgment. .

(Emphasis added.)

9 See Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430 (1949); Richards v. Richards, 24 Idaho 87, 132 P. 576 (1913).

4 . Although the motion was denominated as one for “New Trial” no trial was had, the case being resolved under summary judgment proceedings. However, it could properly be considered as a motion in amendment of judgment, mentioned in I.R.C.P. 59(a).