Nunez v. Johnson

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45136

LYDIA NUNEZ, ) 2018 Opinion No. 24
)
Plaintiff-Appellant, ) Filed: May 7, 2018
)
v. ) Karel A. Lehrman, Clerk
)
CARL JOHNSON, and DOES 1 through )
10, inclusive, )
)
Defendants-Respondents. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Dane H. Watkins, Jr., District Judge.

Order denying motion to set aside the order of dismissal, reversed and case
remanded.

Gordon Law Firm, Inc.; Don Gamble, Idaho Falls, for appellant.

Carey Romankiw, PLLC; Lindsey R. Romankiw, Idaho Falls, for respondent.
________________________________________________

GRATTON, Chief Judge
Lydia Nunez appeals from the district court’s order denying her motion to set aside the
order of dismissal. We reverse and remand to the district court for further proceedings.
I.
FACTUAL AND PROCEDRUAL BACKGROUND
Nunez and Carl Johnson were involved in a car accident. Nunez filed a complaint against
Johnson, and Does 1 through 10, alleging negligence and seeking recovery for property damage
and personal injuries sustained during the accident. Initially, Allen Browning represented Nunez
in this matter. Browning filed a motion to withdraw approximately six months after the
complaint was filed due to an inability to remain in contact with Nunez. Browning did not serve
the motion to withdraw on Nunez nor did he provide Nunez with notice of the hearing on the
motion.

1
 Following the hearing, the district court granted the motion to withdraw. The court
ordered Browning to serve copies of the order allowing withdrawal on Nunez by personal service
or certified mail, and ordered the matter stayed until service was made. Browning did not serve
Nunez with a copy of the order. Nunez did, however, receive a copy of the order from the court
clerk who had mailed it to Nunez via certified mail. Nunez obtained another copy of the order
when she retrieved her file from Browning’s office.
Johnson filed a motion to dismiss approximately four months after the order was served
on Nunez via certified mail. The district court granted the motion and issued an order and
judgment of dismissal with prejudice. Nunez filed a motion to set aside the order of dismissal
pursuant to Idaho Rule of Civil Procedure 60(b)(1), (b)(4), or (b)(6). The court denied the
motion following a hearing. Nunez timely appeals.
II.
ANALYSIS
Nunez asserts that the order of dismissal is void pursuant to I.R.C.P. 60(b)(4) and must be
set aside as a matter of law because Browning and the district court did not strictly comply with
the requirements of I.R.C.P. 11.3.
A. Standard of Review
The parties disagree about the applicable standard of review. Nunez argues the appellate
court should exercise free review over the question of whether to grant a motion to set aside a
dismissal pursuant to I.R.C.P. 60(b)(4) because relief under subsection (b)(4) is nondiscretionary.
On the other hand, Johnson argues the appellate court should review a trial court’s denial of a
motion to set aside a judgment under I.R.C.P. 60(b) for abuse of discretion because the decision
whether to grant relief from judgment under I.R.C.P. 60(b) is discretionary.
The confusion concerning the correct standard of review presumably stems from the
inconsistency in the standards employed by this Court and the Idaho Supreme Court. The
Supreme Court has repeatedly stated that “a trial court’s decision whether to grant relief pursuant
to I.R.C.P. 60(b) is reviewed for abuse of discretion.” See, e.g., Maynard v. Nguyen, 152 Idaho
724, 726, 274 P.3d 589, 591 (2011) (quoting Waller v. State, Dep’t of Health and Welfare, 146
Idaho 234, 237, 192 P.3d 1058, 1061 (2008)). However, the Supreme Court also recognizes that
the standard of review it has articulated differs from the standard utilized by this Court, which
applies a de novo standard of review when a judgment is challenged as void under Rule 60(b)(4).

2
Jim & Maryann Plane Family Trust v. Skinner, 157 Idaho 927, 931-32 n.2, 342 P.3d 639, 643-44
n.2 (2015). Although the Supreme Court recognizes this discrepancy, it has not yet decided
whether to abandon its traditional standard of review in favor of the standard employed in this
Court. Id.
This Court’s standard of review with regard to motions made under I.R.C.P. 60(b) has
remained essentially unchanged for more than three decades. Indeed, in our most recent decision
regarding a motion to set aside a void judgment, we articulated our standard of review as
follows:
A trial court’s denial of a motion to set aside a default judgment is
reviewed under an abuse of discretion standard. Suitts v. Nix, 141 Idaho 706, 708,
117 P.3d 120, 122 (2005). The decision will be upheld if it appears that the trial
court (1) correctly perceived the issue as discretionary, (2) acted within the
boundaries of its discretion and consistent with the applicable legal standards, and
(3) reached its determination through an exercise of reason. Flood v. Katz, 143
Idaho 454, 456-57, 147 P.3d 86, 88-89 (2006).
Where a default or default judgment is challenged as void under
I.R.C.P. 60(b)(4), we conduct de novo review. McClure Eng’g, Inc. v. Channel 5
KIDA, 143 Idaho 950, 953, 155 P.3d 1189, 1192 (Ct. App. 2006).
Secured Inv. Corp v. Myers Exec. Bldg., LLC, 162 Idaho 105, 109, 394 P.3d 807, 811 (Ct. App.
2016). This Court first announced a de novo review of judgments challenged as void under
subsection (b)(4) in Knight Ins., Inc. v. Knight, 109 Idaho 56, 704 P.2d 960 (Ct. App. 1985). In
that case, we explained that Rule 60(b) enunciates a variety of grounds upon which relief from a
judgment may be obtained. Knight, 109 Idaho at 58, 704 P.2d at 962. Furthermore, we
explained that some grounds--such as subsection (b)(1)--allow for discretionary relief while
others--such as subsection (b)(4)--create nondiscretionary entitlement to relief. Knight, 109
Idaho at 58-59, 704 P.2d at 962-63. We stated that where discretionary grounds for relief are
invoked, the standard of review is abuse of discretion, but where nondiscretionary grounds for
relief are asserted, the question presented is one of law upon which we exercise free review.
Knight, 109 Idaho at 59, 704 P.2d at 963. Importantly, in a subsequent case we explained that
the rationale for holding that Rule 60(b)(4) decisions are nondiscretionary is grounded in the
federal courts’ interpretation of Federal Rule of Civil Procedure 60(b)(4) and the potential for
“the untenable result of a court determining that [a judgment is void], and yet, in its discretion,
enforcing a void judgment.” Dragotoiu v. Dragotoiu, 133 Idaho 644, 647 n.2, 991 P.2d 369, 372
n.2 (Ct. App. 1998).

3
 Since Knight was decided, this Court has continually stated that the decision to grant or
deny a Rule 60(b) motion is generally committed to the sound discretion of the court, but we
have also repeatedly recognized the exception for de novo review of decisions on motions to set
aside void judgments pursuant to subsection (b)(4). See generally, McDavid v. Kiroglu, 155
Idaho 49, 51, 304 P.3d 1215, 1217 (Ct. App. 2013); McClure Eng’g, Inc. v. Channel 5 KIDA,
143 Idaho 950, 953, 155 P.3d 1189, 1192 (Ct. App. 2006); Fisher Systems Leasing, Inc. v. J & J
Gunsmithing & Weaponry Design, Inc., 135 Idaho 624, 627, 21 P.3d 946, 949 (Ct. App. 2001);
Dragotoiu, 133 Idaho at 647, 991 P.2d at 372.
We reaffirm our standard today. The decision to grant or deny a motion to set aside
generally rests in the sound discretion of the trial court. See Berg v. Kendall, 147 Idaho 571,
576-79, 212 P.3d 1001, 1006-9 (2009). Therefore, a trial court’s denial of a motion to set aside a
default judgment is reviewed for abuse of discretion. Secured, 162 Idaho at 109, 394 P.3d at
811. However, where a judgment is challenged as void under I.R.C.P. 60(b)(4), we conduct de
novo review. Dragotoiu, 133 Idaho at 647, 991 P.2d at 372; see also Kiroglu, 155 Idaho at 51,
304 P.3d at 1217. 1
B. Void Judgment
1. Failure to provide notice of the motion to withdraw
Nunez argues the order of dismissal must be set aside as void pursuant to
I.R.C.P. 60(b)(4) because Browning withdrew from his representation of Nunez without strictly
complying with I.R.C.P. 11.3(b)(1). According to Nunez, Browning withdrew without strict
compliance with the rule because he failed to provide her notice of the motion to withdraw and
notice of the hearing on the motion to withdraw. We agree.
An attorney may withdraw from an action but only by strict compliance with the
requirements of I.R.C.P. 11.3. “Judgments taken against a party whose attorney withdrew
without strict compliance with the rule are void and must be set aside as a matter of law.”
Kiroglu, 155 Idaho at 51, 304 P.2d at 1217 (referencing a prior version of I.R.C.P. 11.3). 2

1
The Supreme Court has held that whether a judgment is void is a question of law subject
to de novo review. Skinner, 157 Idaho at 931, 342 P.3d at 743.
2
The rules now enumerated in I.R.C.P. 11.3 were previously contained in I.R.C.P. 11(b).
Our prior cases required strict compliance with Rule 11(b)(3) specifically, which corresponds
with Rule 11.3(c) in the rules as presently constituted.
4
 An attorney withdraws without strict compliance with the rule when the contents of the
notice of the order allowing withdrawal do not comply with the requirements of
I.R.C.P. 11.3(b)(3). See Knight, 109 Idaho at 58-60, 704 P.2d at 962-64; see also Fisher, 135
Idaho at 627-28, 21 P.3d at 949-50. In Knight, the default judgment entered against the
withdrawing attorney’s client was vacated as a matter of law because the content of the notice
was defective under the rule. Knight, 109 Idaho at 60, 704 P.2d at 964. In that case, the rule
required the notice to state that if the party whose attorney was withdrawing failed to appear in
the action within twenty days, either in person or through a newly appointed attorney, then such
failure to appear was sufficient ground for entry of default. Id. at 59, 704 P.2d at 963. The order
delivered to the withdrawing attorney’s client in Knight contained no such provision. Id. Thus,
the contents of the notice failed to strictly comply with the rule and rendered the subsequent
default judgment voidable. Id. Likewise, in Fisher the defaults and default judgments were void
as a matter of law because the attorney withdrew without strict compliance with the rule. Fisher,
135 Idaho at 627-28, 21 P.3d at 949-50. In that case, the rule required the notice to contain a
provision stating that default judgment could be taken without further notice and the defendants’
claims could be dismissed with prejudice, but it contained no such provision. Id. at 628, 21 P.3d
at 950. This defect in the content of the notice rendered the subsequent default judgment entered
against the withdrawing attorney’s client void, and the court vacated the judgment as a matter of
law. Id.
Furthermore, an attorney withdraws without strict compliance with the rule when the
order for withdrawal is not served by the manner of service set forth in the rules. See Kiroglu,
155 Idaho at 51-54, 304 P.3d at 1217-20. In Kiroglu, the rule required the attorney to make
service upon the client by personal service or by certified mail to the last known address most
likely to give notice to the client. I.R.C.P. 11(3)(b) (2013); Kiroglu, 155 Idaho at 51, 304 P.3d at
1217. In that case, the withdrawing attorney sent the withdrawal order to the party by regular
mail; thus, the default judgment was void. Id. at 54, 304 P.3d at 1220.
Importantly, we have explained the policy that underlies the requirement of strict
compliance with Rule 11.3 as follows:
Rule 11(b)(3) provides a readily identifiable, straightforward requirement for
counsel and the courts to satisfy. Compliance with the rule obviates any need for
judges to weigh conflicting evidence of actual notice or to speculate concerning a
litigant’s state of mind. An entitlement to relief produces consistent, predictable

5
 results, unaffected by the varying philosophies that underlie exercises of
discretion by individual judges.
Knight, 109 Idaho at 60, 704 P.2d at 964.
In this case, Nunez challenges the order of dismissal as void for Browning’s failure to
strictly comply with I.R.C.P. 11.3(b)(1) by failing to provide notice of the motion for withdrawal
and notice of the hearing on the motion for withdrawal. Rule 11.3(b)(1) provides:
To withdraw from an action, except by substitution, an attorney must first
obtain leave of the court. The attorney seeking to withdraw must file a motion
with the court and set the matter for hearing, and must provide notice to all
parties, including the party the withdrawing attorney represents in the proceeding.
The attorney must provide the last known address of the client in any notice of or
motion for withdrawal.
(Emphasis added.) Having considered the foregoing policy and authorities that require strict
compliance with I.R.C.P. 11(b)(3), we conclude that the policy applies with equal force to the
notice requirement of I.R.C.P. 11.3(b)(1). We can conceive of no just reason to afford relief
from judgment as a matter of law where there is a defect in either the contents of the notice or in
the manner of service under I.R.C.P. 11(b)(3), but not where an attorney utterly fails to provide
notice to the client of the motion to withdraw or the hearing on that motion under
I.R.C.P. 11.3(b)(1). Moreover, we have stated that Rule 11.3 “requires particularized notice [of
the order allowing withdrawal] to the party whose attorney is withdrawing from representation.
When the predicate notice does not exist, the subsequent judgment by default is voidable under
I.R.C.P. 60(b)(4).” Reinwald v. Eveland, 119 Idaho 111, 112, 803 P.2d 1017, 1018 (Ct. App.
1991). Accordingly, we hold I.R.C.P. 11.3(b)(1) demands strict compliance, and subsequent
judgments entered against the party whose attorney withdrew without strict compliance with
I.R.C.P. 11.3(b)(1) are void.
Here, it is undisputed that Browning did not strictly comply with the requirements of
I.R.C.P. 11.3(b)(1). At the hearing on the motion to set aside, Nunez indicated the initial motion
to withdraw was defective, and Johnson’s attorney conceded that Browning did not provide the
notice to Nunez required by I.R.C.P. 11.3(b)(1). She stated, “I do agree . . . that Mr. Browning’s
motion to withdraw was defective in that he didn’t appear to serve it on Ms. Nunez.” Because
Browning did not provide Nunez notice of the motion to withdraw or notice of the hearing on the
motion to withdraw, thereby failing to strictly comply with the requirements of

6
I.R.C.P. 11.3(b)(1), the district court should have granted the motion to set aside the order
pursuant to I.R.C.P. 60(b)(4).
Johnson argues the order of dismissal is not void because it was harmless error for Nunez
not to receive notice of the motion to withdraw or notice of the hearing. According to Johnson,
Nunez’s substantial rights were not affected as the error was not the cause of the case’s
dismissal. Johnson relies on McClure; however, this case is distinguishable from McClure. In
that case, the rules required notice of the hearing to be served and received by the parties no
more than fourteen days before the hearing. McClure, 143 Idaho at 955, 155 P.3d at 1194. The
hearing, however, was held just five days after the notices were mailed to the defendants’
addresses. Id. The crux of the defendants’ argument was not that their attorney did not send
timely notice of the hearing on the motion to withdraw, but that they did not receive notice at all.
Id. Notably, the reason the defendants did not receive notice was not due to their attorney’s
failure to provide notice, but due to their own failure to pick up the certified mail. Id. The
defendants in that case did not show that if the notice of the hearing had been mailed earlier, or
the hearing held later, that the notice would have been received. Id. Thus, we concluded the
error was harmless because the untimeliness of service of the notice on their attorney’s motion to
withdraw was not the cause of the claimed prejudice. Id.
Here, unlike the attorney in McClure, there is nothing in the record that suggests
Browning provided notice to Nunez of the motion to withdraw or of the hearing on the motion to
withdraw. Even if a harmless error analysis were to apply, we could not conclude that an
attorney’s failure to provide such notice is harmless.
2. Defects in the order allowing withdrawal
Nunez also argues that the order of dismissal is void pursuant to I.R.C.P. 60(b)(4)
because the order allowing withdrawal did not strictly comply with I.R.C.P. 11.3(c). Nunez
argues that I.R.C.P. 11.3(c)(1) requires the order allowing withdrawal to notify the party whose
attorney is withdrawing that the party’s claims will be subject to dismissal with prejudice if the
party does not, within twenty-one days of service, either appoint another attorney to appear or file
notice with the court that the party will be self-represented in the action. Nunez argues that the
order of dismissal did not strictly comply with I.R.C.P. 11.3(c)(1) because the order allowing
Browning’s withdrawal stated Nunez’s claims were subject to dismissal with prejudice within

7
twenty days of service. According to Nunez, this discrepancy in the deadline renders the order of
dismissal void.
Johnson argues the discrepancy in the deadline is a technical defect in the order and
constitutes harmless error under I.R.C.P. 61 because it did not affect Nunez’s substantial rights.
The district court seemingly agreed with Johnson by concluding Nunez’s substantial rights were
not affected by the one-day discrepancy because Nunez waited more than four months after
being served with the order allowing withdrawal before seeking relief under I.R.C.P. 60(b)(4).
The court stated, “[A] one-day difference does not make a difference in this case. The Plaintiff
waited a number of weeks, even measured in months, and is still seeking relief under 60(b)(1),
(4), or (6).” The court continued, “And the Court, in this case, simply finds that allowing four
months to pass, having been given notice in at--in at least two ways before taking any action, is
[sic] reasonable.” We disagree.
The district court did not strictly comply with I.R.C.P. 11.3(c) when it issued the order of
withdrawal because the order does not contain the language required by I.R.C.P. 11.3. An
attorney withdraws without strict compliance with the rule when notice of the order allowing
withdrawal does not contain the language required by I.R.C.P. 11.3. See Knight, 109 Idaho at
58-60, 704 P.2d at 962-64; see also Fisher, 135 Idaho at 627-28, 21 P.3d at 949-50. Until 2016
the rule allowed a person whose attorney had been permitted to withdraw twenty days to either
appoint another attorney to appear or file notice with the court that the party would be
self-represented in the action. Compare I.R.C.P. 11(b)(3) (2015) (allowing twenty days) with
I.R.C.P. 11.3(c)(1) (2016) (allowing twenty-one days). However, in 2016 the Idaho Supreme
Court adopted I.R.C.P. 11.3(c)(1), which allowed twenty-one days. I.R.C.P. 11.3(c)(1). Thus, to
strictly comply with the rule, the order needed to notify Nunez that her claims would be subject
to dismissal with prejudice or default judgment may be entered against her if she did not, within
twenty-one days, either appoint another attorney to appear or file notice with the court that she
would be self-represented in the action. It did not. The court’s order states that Nunez is
“advised and notified that if she fails to file and serve an additional written appearance in this
action, either in person or through counsel, within twenty days, such failure shall be sufficient
grounds for entry of default and default judgment against her without further notice” (emphasis
added). Accordingly, the court did not strictly comply with I.R.C.P. 11.3(c).

8
 Nunez also argues the order of dismissal is void because it was entered while the matter
was stayed. According to Nunez, the order of dismissal stayed the matter until Browning served
a copy of the order on Nunez, and thus the matter was stayed when the court entered the order of
dismissal because Browning never served the order on Nunez. Johnson argues that the order
allowing withdrawal was served in compliance with the rules because (1) the clerk served the
order on Nunez by certified mail in accordance with I.R.C.P. 11.3(c)(1), and (2) the order was
personally served on Nunez because she picked up her entire file, which presumably contained a
copy of the order, from Browning’s office.
Regardless of whether the matter was stayed when the court entered the order of
dismissal, the order of withdrawal is not compliant with the rule. Although prior versions of the
rule have permitted the withdrawing attorney to serve copies of the order upon the client, see
I.R.C.P. 11.3(c)(1) (2013), in 2016 the rule stated that “the clerk of the court will serve on all
parties, including the party represented by the withdrawing attorney, an order permitting an
attorney to withdraw.” I.R.C.P. 11.3(c)(1) (2016). Here, the order is not compliant with the rule
because it requires Browning, not the clerk, to serve copies of the order upon Nunez.
For these reasons, it is readily apparent that the district court relied on a prior version of
the rule in issuing the order allowing withdrawal. It cannot be said that the court strictly
complied with I.R.C.P. 11.3 where it clearly relied on a prior version of the rule. Accordingly,
the order of dismissal is void.
C. Attorney Fees
Nunez argues she is entitled to attorney fees pursuant to Idaho Code § 12-121 because
Johnson’s opposition is frivolous. Likewise, Johnson argues he is entitled to attorney fees
pursuant to I.C. § 12-121 because Nunez mischaracterized the nature of the appeal, and misstated
the standard of review.
I.C. § 12-121 provides:
In any civil action, the judge may award reasonable attorney’s fees to the
prevailing party or parties when the judge finds that the case was brought, pursued
or defended frivolously, unreasonably or without foundation. This section shall
not alter, repeal or amend any statute that otherwise provides for the award of
attorney’s fees. The term “party” or “parties” is defined to include any person,
partnership, corporation, association, private organization, the state of Idaho or
political subdivision thereof.
Additionally, we have stated:

9
 Where the appellant fails to present any significant issue on appeal regarding a
question of law, where no findings of fact made by the trial court are clearly or
arguably unsupported by substantial evidence, where we are not asked to establish
any new legal standards or modify existing ones, and where the focus of the case
is on the application of settled law to the facts, the appeal is deemed to be without
foundation. Under those circumstances, attorney fees should be awarded to the
respondent.
Troche v. Gier, 118 Idaho 740, 742, 800 P.2d 136, 138 (Ct. App. 1990).
In this instance, neither party is entitled to attorney fees. Nunez did not fail to present
any significant issue on appeal. As discussed above, Nunez argued and we agreed that
I.R.C.P. 11.3(b)(1) demands strict compliance and that subsequent judgments entered against the
party whose attorney withdrew without strict compliance with I.R.C.P. 11.3(b)(1) are void.
Moreover, we agreed with Nunez that the order of dismissal is void because the order allowing
withdrawal failed to strictly comply with I.R.C.P. 11.3(c)(1). Likewise, Johnson reasonably
argued for modification of our standard of review. Accordingly, we decline to award attorney
fees.
III.
CONCLUSION
The order of dismissal is void pursuant to I.R.C.P. 60(b)(4) because Browning failed to
strictly comply with the requirements of I.R.C.P. 11.3(b)(1) and I.R.C.P. 11.3(c)(1). The district
court should have granted Nunez’s motion to set aside the order of dismissal with prejudice.
Accordingly, the district court’s order denying Nunez’s motion to set aside the order of dismissal
is reversed and remanded for further proceedings consistent with this opinion. Neither Nunez
nor Johnson is entitled to attorney fees on appeal. Costs to Nunez.
Judge HUSKEY and Judge LORELLO CONCUR.

10