Rosales v. Balbas

875 P.2d 945, 125 Idaho 848, 1994 Ida. App. LEXIS 73
CourtIdaho Court of Appeals
DecidedJune 2, 1994
DocketNo. 20568
StatusPublished
Cited by2 cases

This text of 875 P.2d 945 (Rosales v. Balbas) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosales v. Balbas, 875 P.2d 945, 125 Idaho 848, 1994 Ida. App. LEXIS 73 (Idaho Ct. App. 1994).

Opinion

WALTERS, Chief Judge.

This is an appeal from an order denying the plaintiffs’ motion to set aside an order dismissing their personal injury action. For the reasons explained below, we affirm.

Facts.

Roberto Rosales, Epifinia Rosales, Nora Rosales, Nelda Garcia, and Monica Rosales (“the Plaintiffs”) were allegedly injured in Boise, Idaho, when, on October 14, 1989, Michael Baibas backed his vehicle out of his driveway and collided with the pick-up truck in which the Plaintiffs were travelling. The Plaintiffs, all of whom reside in Texas, re[849]*849tained the services of a Texas attorney who, in turn, arranged to have the Plaintiffs represented by additional, local counsel in Idaho. Through their Idaho attorney, the Plaintiffs filed a complaint in the Ada County District Court on October 15, 1991, seeking compensation for the personal injuries they allegedly sustained in the collision.1

On July 10, 1992, the Plaintiffs’ Idaho attorney filed a motion to withdraw from the case, citing his inability to obtain the Plaintiffs’ full cooperation in the litigation of the matter. After notice and hearing, the district court granted the motion and on July 27, 1992, entered an order allowing that attorney to withdraw from the case. The order of withdrawal provided:

that the Plaintiffs shall have twenty (20) days from the date of the mailing of this order in which to retain another attorney to appeal’ or in which to appear in person by filing a written notice with the Court stating that each will represent himself or herself.
IT IS HEREBY FURTHER ORDERED That for a period of twenty (20) days after service or mailing of this Order of Withdrawal upon the Plaintiffs that no further proceedings can be had in the above-eaptioned action that will affect the rights of Plaintiffs.
IT IS FURTHER ORDERED That if the Plaintiffs fail to file and serve an additional written appearance in the action either in person or through a newly retained attorney within the following twenty (20) day period, that the opposing parties, the Defendants herein, may apply to the Court for the entry of default in the above-captioned action without further notice. Further, any Complaint or counterclaims entered by the parties whose attorney is withdrawing may be dismissed.

(Emphasis added.)

The certificate of service reflects that the Idaho attorney mailed copies of the withdrawal order to the Plaintiffs and their Texas attorney on July 30, 1992. As evidenced by the signed mail receipts, the Plaintiffs and their attorney actually received those copies on August 3, 1992. However, no additional notices of appearance were filed by or on behalf of the Plaintiffs within the twenty-day period. On August 25, 1992, the defendants filed an ex parte motion in the district court for an order to dismiss the case. That same day, the district court granted the motion and entered an order dismissing the Plaintiffs’ case with prejudice. Although the Plaintiffs’ Texas attorney had contacted another attorney in Idaho regarding the representation of the Plaintiffs sometime in the early part of August, it was not until August 26 — one day after the court had dismissed the case — that the new Idaho attorney filed his notice of appearance in the case.

Five months later, on January 13, 1993, the Plaintiffs, through their new Idaho attorney, filed a motion to set aside the order of dismissal on the grounds of mistake, inadvertence, surprise, or excusable neglect. I.R.C.P. 60(b)(1). After conducting a hearing on the matter, the district court entered an order denying the motion. The Plaintiffs appeal from that order.

Issues

On appeal, the Plaintiffs raise the following issues:

1. Should the order of dismissal be set aside on the ground that the predicate order allowing counsel to withdraw failed to provide the notice required by I.R.C.P. 11(b)(3)?
2. Did the district court abuse its discretion by faffing to grant the Plaintiffs’ motion, made under I.R.C.P. 60(b)(1), to set aside the order of dismissal?

1. Failure to comply strictly with I.R.C.P. 11(b)(3).

The Plaintiffs claim that the order of dismissal must be vacated because the predicate order of withdrawal did not comply with [850]*850the notice requirements of I.R.C.P. 11(b)(3).2 Specifically, they contend that the order of withdrawal failed to advise them that their complaint could be dismissed “with prejudice” as required by the Rule. As a result of this defect, they argue, the subsequent order dismissing the case with prejudice was voidable and should now be set aside. See Reinwald v. Eveland, 119 Idaho 111, 803 P.2d 1017 (Ct.App.1991); Rodell v. Nelson, 113 Idaho 945, 750 P.2d 966 (Ct.App.1988). This issue, however, was never raised before the trial court but is advanced for the first time on appeal. In Idaho, it is well established that issues not raised in the court below are deemed to have been waived; consequently, such issues will not be considered on appeal. Matter of Estate of Reinwald, 122 Idaho 401, 402, 834 P.2d 1317, 1318 (1992); Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 998 (1991).

2. Did the trial court abuse its discretion in denying Plaintiffs’ Rule 60(b) motion to set aside the order?

The Plaintiffs also aver that the district court erred in refusing to set aside the order under I.R.C.P. 60(b)(1). Rule 60(b)(1) provides that a court may relieve a party from a final judgment or order for “mistake, inadvertence, surprise, or excusable neglect.” In applying this criteria, the court must examine whether the litigant engaged in conduct which, although constituting neglect, was nevertheless excusable because a reasonably prudent person might have acted the same under the circumstances. Washington Fed. Sav. v. Transamerica, 124 Idaho 913, 915, 865 P.2d 1004, 1006 (Ct.App.1993); Gro-Mor, Inc. v. Butts, 109 Idaho 1020, 712 P.2d 721 (Ct.App.1985). Additionally, the party seeking relief from an order must show due diligence in the prosecution of its rights. Id.

The decision whether to grant relief under I.R.C.P. 60(b)(1) is committed to the discretion of the trial court. Shelton v. Diamond Int’l, 108 Idaho 935, 937, 703 P.2d 699, 701 (1985); Washington Fed. Sav., 124 Idaho at 915, 865 P.2d at 1006. When an exercise of discretion is reviewed on appeal, we inquire (1) whether the lower court rightly perceived the issue as one of discretion; (2) whether the court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cuevas v. Barraza
198 P.3d 740 (Idaho Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
875 P.2d 945, 125 Idaho 848, 1994 Ida. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosales-v-balbas-idahoctapp-1994.