Sherwood & Roberts, Inc. v. Riplinger

650 P.2d 677, 103 Idaho 535, 1982 Ida. LEXIS 282

• Court: Idaho Supreme Court
• Decided: September 8, 1982
• Docket: 13412
• Status: Published

Opinions

BAKES, Chief Justice.

This is an appeal from the district court’s denial of a motion to set aside a default judgment. The appellant, Robert Riplinger,¹ was employed by respondent Sherwood & Roberts, Inc., from February, 1969, to February, 1970, as a loan officer. In February, 1970, the respondent accused Riplinger of misappropriating funds. Rather than face criminal prosecution, Riplinger and his wife, Kathy, signed a “Memorandum of Agreement” on April 1, 1970, admitting among other things that “funds of Sherwood & Roberts were diverted to the bank account of Robert and Kathy Riplinger for their personal use ...,” and agreeing to repay the amount of the loss to Sherwood & Roberts. On May 1,1970, the appellant and his wife signed a promissory note in favor of Sherwood & Roberts for $20,000 pursuant to the “Memorandum of Agreement.”

The Riplingers made payments on the note through January, 1976, and then ceased making further payments. In September, 1976, Sherwood & Roberts filed a complaint against the Riplingers to collect on the balance of the note. On October 7, 1976, Robert Thompson filed a notice of appearance as counsel for Riplingers. Thereafter, an answer and counterclaim were filed. On October 20,1978, Thompson filed a motion for leave to withdraw as attorney for the appellant.² On October 27, 1978, in accordance with I.R.C.P. 11(b)(3)³ the court granted the motion to withdraw by entering the following order:

“NOW THEREFORE, IT IS HEREBY ORDERED that ROBERT H. THOMPSON is granted leave to withdraw as attorney for the defendants) and shall send by certified mail a copy of this order directing the defendant(s) to appoint another attorney to appear, or to appear in person by filing a written notice with the court stating how they will represent themselves within twenty (20) days from the date of this order. Such failure to appear in the action within twenty (20) days shall be sufficient grounds for entry of default against the defendant(s) without further notice to the defendant(s).”⁴

Two affidavits of personal service of the order permitting withdrawal of attorney appear in the record. Both were served on November 8 by the same process server at different addresses. The appellant admitted receiving a copy of the order, and he telephoned the court clerk on November 13, 1978. Riplinger maintains that he told the court clerk that he intended to defend the action, and if nothing else that he would represent himself. A note made by the clerk of that conversation was read by the trial court as follows:

“Mr. Bob Riplinger called this date advising that he has received notice from Robert Thompson that he has withdrawn from representing Mr. Riplinger. He advised that he did not receive this notice until the time for him to make an appearance or file written notice had expired. I advised Mr. Riplinger that he should decide as soon as possible how he intends to proceed and then notify the court of his intentions as soon as possible.”⁵

Riplinger took no further action, and pursuant to Sherwood & Robert’s request, the court entered an order of default and a judgment against Riplinger on the basis that he had “failed to file notice stating how said defendant shall represent himself .... ” Subsequently, respondent settled with Kathy Riplinger, and the action against her was dismissed by stipulation. Riplinger’s first notice of the default judgment against him appears to have been when a writ of execution was served on his employer on April 20, 1979. He then contacted his present attorney who filed a motion to set aside the entry of the default and default judgment on May 16, 1979. After a hearing, the court denied that motion, and that denial is the subject of this appeal.

I

The appellant argues initially that having once appeared in the action, judgment should not have been rendered against him without first providing him with “written notice of the application for judgment at least three days prior to the hearing on such application,” as required under I.R.C.P. 55(b)(2). In Radioear Corp. v. Crouse, 97 Idaho 501, 547 P.2d 546 (1976), this Court was faced with a similar question with regard to the application of I.C. § 3-206, since repealed and replaced with I.R.C.P. 11(b)(3), both of which address the provision of notice concerning counsel’s withdrawal. As then applicable to the Radioear decision, I.C. § 3-206 stated the following:

“3-206. NOTICE TO APPOINT ANOTHER ATTORNEY. — When one party’s attorney dies, is removed, suspended, or ceases to act as such, the adverse party must, before any further proceedings can be had by written notice, require such party to appoint another attorney or to appear in person. Notice of compliance must thereafter and within twenty days be given to the party requesting appointment. Failure to give such notice within the time specified shall be sufficient to justify default entry or dismissal of action.” (Emphasis added.)

In that case the defendant Crouse was served with a notice to appear or appoint new counsel, and was then defaulted without further notice when he failed to appear or appoint new counsel. In that case, we held that the three day notice under I.R. C.P. 55(b)(2) was required, and that the default judgment entered without that notice was voidable. 97 Idaho at 503-4, 547 P.2d 548-9.

However, I.R.C.P. 11(b)(3), which is applicable to the case at bar, is different in several respects from its predecessor, I.C. § 3-206. Of particular importance here is that I.R.C.P. 11(b)(3) provides that following service of the prescribed notice, failure of a party “to appear in the action either in person or through a newly appointed attorney within [the required] 20 day period, ... shall be sufficient ground for entry of default against such party or dismissal of the action of such party, with prejudice, without further notice, which shall be stated in the order.” (Emphasis added.) Thus, I.R. C.P. 11(b)(3), unlike I.C. § 3-206, clearly permits the entry of default⁶ without further notice, as long as the notice so states. Cf. Omega Alpha House Corp. v. Molander Assoc., 102 Idaho 361, 630 P.2d 153 (1981) (where answer had been filed by withdrawing counsel, but where notice did not state that default could be entered without further notice). Any conflict between I.R.C.P. 11(b)(3) and 55(b)(2) in this matter must be resolved in favor of Rule 11(b)(3), since it is both the more specific and the more recent⁷ rule. Mickelsen v. City of Rexburg, 101 Idaho 305, 612 P.2d 542 (1980).

Additionally, in regard to the question of notice, it is urged that I.R.C.P. 11(b)(3) violates the appellant’s right to due process under the fourteenth amendment in that it permits the entry of a default judgment without prior notice to him. However, I.R. C.P. 11(b)(3) itself clearly requires that notice be sent to the client of the withdrawing attorney, stating that failure to appear within twenty days will “be sufficient ground for entry of default against such party ... with prejudice ... without further notice.” Such notice unambiguously apprises the party of the consequences of failing to appear, and thus satisfies his right to prior notice. If the notice were not received or were materially defective, then appellant would have good cause to have the default judgment set aside. Cf. Omega Alpha House Corp. v. Molander Assoc., supra. However, in this case the notice fully conformed with the requirements of I.R. C.P. 11(b)(3), and the defendant admitted that he timely received that notice.

II

The appellant also argues that his verbal contact with the clerk of the court was sufficient to constitute an appearance. However, the order unambiguously required a written notice of how the appellant intended to represent himself. In Cuoio v. Koseris, 68 Idaho 483, 200 P.2d 359 (1948), a judge, by telephone, orally extended the time limit for filing an answer for “a few days.” Nevertheless, three days before the answer was filed, a default was entered. The district court later set the default aside on the basis of the oral extension. However, on appeal, this Court reversed the setting aside of the default, holding that the oral communication by the judge “was not a recognizable order effective to grant further time.” 68 Idaho at 485, 200 P.2d at 360. If a specific oral extension of time by a judge was insufficient in Cuoio to alter the procedural requirements imposed by law upon the defendant in that case, then certainly in this case the defendant’s telephonic communication with a clerk of the court, in which the clerk did nothing more than advise the defendant that “he should decide as soon as possible how he intended] to proceed and then notify the court,” is insufficient to relieve the defendant of the requirement of filing a written notice as set forth in both I.R.C.P. 11(b)(3) and the order of the court. Thus, we hold that the defendant’s oral communication with the clerk of the court did not constitute an appearance.

III

It is next contended that the due process clause of the fourteenth amendment prohibits the entry of a default judgment against a party who has timely appeared and filed responsive pleadings. The appellant relies in particular upon Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897). In Hovey, the defendants who had already appeared and answered in the action were ordered by the court to deposit into the court registry certain sums which were the subject of the suit. The defendants failed to obey the order and the plaintiffs moved the court to punish the defendants for disobedience of the order. Thereafter, the court ordered that the defendants’ answer “be stricken out and removed from the files of the court, and that this cause do proceed as if no answer herein had been interposed.” 167 U.S. at 412, 17 S.Ct. at 842. Then, judgment was entered against the defendants pro confesso. The United States Supreme Court, in reviewing the judgment, held that the judgment was invalid. The Court stated that “[t]he right which was here denied by rejecting the answer and taking the bill for confessed, because of the contempt, involved an essential element of due process of law,” and that “the [court below] did not possess the power to disregard an answer which was in all respects sufficient.” 167 U.S. at 444, 17 S.Ct. at 854.

Subsequently, in Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1908), the Supreme Court “substantially modified”⁸ its holding in Hovey to permit the sanction of default for a party’s failure to comply with discovery orders.⁹ In so doing, the court stated the following:

“Hovey v. Elliott involved a denial of all right to defend as a mere punishment. This case presents a failure by the defendant to produce what we must assume was material evidence in its possession, and a resulting striking out of an answer and a default. The proceeding here taken may therefore find its sanction in the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer to be gotten from the suppression or failure to produce the proof ordered, when such proof concerned the rightful decision of the cause.” 212 U.S. at 350-51, 29 S.Ct. at 379-380.

The court in Hammond also recognized that the ability of a court to default a defendant for failure to appear or file an answer rested as well on the court’s power to create a presumption that, by failing to appear or plead, the defendant admits the material facts of the complaint. 212 U.S. at 351, 29 S.Ct. at 380.

In comparing Hovey with Hammond, it appears that the reason the sanction in Hovey was determined to be “mere punishment” was because the objective of the underlying order in Hovey required an act which was ancillary to obtaining an adjudication of the merits. The paying in of moneys to the court registry was not an essential step in determining the validity of Hovey’s claim, and it had no bearing on the merits of the defendant’s defense. In contrast, a defendant’s appearance, answer, and compliance with discovery requests are all central to the adjudicative process, and concern “the rightful decision of the cause.” Id. The courts have inherent power to establish reasonable rules to manage their own affairs and achieve the orderly and expeditious disposition of cases. Link v. Wabash RR. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962). Thus, when defendants fail to proceed with their defense in accordance with those rules, the courts are justified in creating such presumptions as addressed in Hammond.

In the present case, the defendant failed to file a written notice of appearance or the appointment of new counsel within the prescribed time limit. This failure to comply with I.R.C.P. 11(b)(3) justifies a presumption that he abandoned his defense. In Rio Grande Irr. & Colonization Co. v. Gildersleeve, 174 U.S. 603, 19 S.Ct. 761, 43 L.Ed. 1103 (1899), decided two years after Hovey, the United States Supreme Court held that a defendant could be defaulted for failure to appear where his counsel, having already appeared once in his behalf, withdrew his appearance without leave of court.¹⁰ The court in Rio Grande also gave approving citation to Sloan v. Wittbank, 12 Ind. 444 (1859), in which it was held that the withdrawal of the defendant’s appearance carries with it the answer, thus entitling the defendant to judgment by default. 174 U.S. at 607, 19 S.Ct. at 762. The suggestion is thus clear that the result would have been the same in Rio Grande had the defendant already filed an answer prior to the attorney’s withdrawal, since under the rationale of Rio Grande the withdrawal of the attorney carried with it all incidents of the defendant’s appearance.¹¹ Although Hovey was not addressed in Rio Grande, and the presumption analysis in Hammond had not yet been set forth, still it is clear that the Supreme Court saw no impediment to defaulting the defendant in Rio Grande for failure to renew his appearance following the withdrawal of counsel.

The presumption of abandonment raised by a defendant’s failure to proceed in an action in accordance with court rules may be rebutted by any reasonable showing of inability to comply with those rules. Soeiete Internationale pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 210, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958). However, in this case the defendant made no showing of inability to comply with I.R.C.P. 11(b)(3). Thus, it was within the district court’s power to enter a default judgment against the defendant for failure to proceed in accordance with I.R. C.P. 11(b)(3).

The right to grant or deny relief under I.R.C.P. 60(b) is a discretionary one. Thus, absent a showing of arbitrary disregard for the relevant facts and principles of law by the court below, this Court will affirm the lower court’s decision to deny or grant relief under I.R.C.P. 60(b). Johnston v. Pascoe, 100 Idaho 414, 419, 599 P.2d 985, 990 (1979); Lisher v. Krasselt, 96 Idaho 854, 857, 538 P.2d 783, 786 (1975). We see no such arbitrary disregard in the present case, and therefore affirm the order denying relief.

IV

Respondent requests an award of attorney fees. In signing the promissory note, Riplinger agreed that in case a suit or action to collect the note was instituted he would ■ “pay such sum as the court may adjudge reasonable as attorney fees in such suit or action.” Attorney fees are therefore allowed pursuant to the agreement. I.C. § 3-205.

The order of the district court is affirmed. Costs and attorney fees to respondent.

DONALDSON and SHEPARD, JJ., concur.

1 . Defendant Kathy Riplinger is not involved in this appeal.

2 . Kathy Riplinger had previously obtained separate counsel.

3 . “RULE 11(b)(3). LEAVE TO WITHDRAW— NOTICE TO CLIENT. — If an attorney is granted leave to withdraw, the court shall enter an order permitting the attorney to withdraw and directing his client to appoint another attorney to appear, or to appear in person by filing a. written notice with the court stating how he will represent himself, within 20 days from the date of order. After the order is entered, the withdrawing attorney shall forthwith, with due diligence, serve copies of the same upon his client and all other parties to the action. In the event the withdrawing attorney is unable to make personal service of such notice upon his client, as shown by the attorney’s affidavit, he may make such service by certified mail to the last known address most likely to give notice to his client, which service shall be complete upon mailing. Upon the entry of an order granting leave to an attorney to withdraw from an action, no further proceedings can be had in that action which will affect the rights of the party of the withdrawing attorney for a period of 20 days, but if such party fails to appear in the action either in person or through a newly appointed attorney within such 20 day period, such failure shall be sufficient ground for entry of default against such party or dismissal of the action of such party, with prejudice, without further notice, which shall be stated in the order of the court.”

4 . The plural references in the order are due to the court’s use of a form order in granting the withdrawal.

5 . Riplinger was confused about the time period involved. He did receive the notice before the twenty day time period expired on November 16, 1978.

6 . In the context of this particular rule, reference to entry of “default” includes entry of “default judgment.” The fact that I.R.C.P. 11(b)(3) explicitly states that no further notice is necessary, clearly indicates that “default” in the context of I.R.C.P. 11(b)(3) includes “default judgment,” since the entry of a default alone, under I.R.C.P. 55(a)(1), requires no notice. The explicit provision in I.R.C.P. 11(b)(3) that no further notice is necessary would be superfluous if the rule was intended to apply only to entry of “default,” and not to entry of “default judgment.” Statutes and rules must be construed as a whole, without separating one provision from another, First American Title Co. of Idaho, Inc. v. Clark, 99 Idaho 10, 12, 576 P.2d 581, 583 (1978), and they should not be construed so as to make mere surplusage of any of the provisions included therein. Pettis ex rel. United States v. Morrison Knudson Co., 577 F.2d 668, 673 (9th Cir. 1978). In addition, Rule 11(b)(3) indicates that default may be entered “with prejudice.” Thus, construing the rule as a whole, reference to “default” clearly includes “default judgment.”

7 . I.R.C.P. 11(b)(3) was first adopted in 1975, while I.R.C.P. 55(b)(2) was adopted in 1958.

8 . Those words were used by the Supreme Court in Societe Internationale pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 209, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958), to describe the effect of Hammond upon Hovey.

9 . Of course, there are limits on the use of default as a sanction in such situations. See Societe Internationale pour Participations Industrielles et Commerciales v. Rogers, supra; Sierra Life Ins. Co. v. Magic Valley Newspapers, 101 Idaho 795, 623 P.2d 103 (1981).

10 . That default would have been proper had the court approved the withdrawal seems to have been assumed, see Creighton v. Kerr, 87 U.S. (20 Wall.) 8, 22 L.Ed. 309 (1874). The concern in Rio Grande was whether the appearance of the defendant could be considered as withdrawn, thereby subjecting the defendant to default, where the attorney withdrew without leave to do so.

11 . Certainly, however, in Idaho all of a defendant’s pleadings remain viable under I.R.C.P. 11(b)(3) if a new appearance is actually made.

2 . Riplinger was confused about the time period involved. He did receive the notice before the twenty day time period had expired.