Berg v. Kendall

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34763/35154
SCOTT BERG, as Guardian Ad Litem, for )
TRACEY BERG, a minor, )
)
Plaintiffs, )
)
and )
)
Boise June 2009 Terms
STACEY BERG, as next friend for TRACEY )
BERG, a minor, )
2009 Opinion No. 97
)
Aggrieved Party-Appellant, )
Filed: July 9, 2009
)
v. )
Stephen W. Kenyon, Clerk
)
ALYSSA KENDALL, individually and J. )
DOE, individually, )
)
Defendants-Respondents. )
)
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Minidoka County. Hon. John K. Butler, District Judge.

District courts dismissal of motion for relief under Rule 60(b)(6) and dismissal
with prejudice based on claim preclusion, reversed and remanded.

Seiniger Law Offices, Boise, for appellants. William Breck Seiniger argued.

Carty Law, Boise, for appellant. Stuart Waller Carty appeared.

Merrill & Merrill, Pocatello, for respondents. Thomas J. Lyons argued.

__________________________________

BURDICK, Justice
This appeal involves the claims of Appellant Tracey Berg, a minor child, who sustained
injuries when she was struck by a vehicle driven by Respondent Alyssa Kendall. In Berg I, Scott
Berg, Tracey‟s father, filed a complaint on Tracey‟s behalf as her guardian ad litem. The district
court dismissed this complaint with prejudice. Tracey and her mother Stacey Berg, appearing as
Tracey‟s next friend (collectively Appellants), filed an I.R.C.P. 60(b) motion for relief,
requesting the district court to modify its dismissal to one without prejudice. The district court

1
denied their motion. The Appellants then filed a complaint against Kendall in Berg II, which the
district court dismissed with prejudice on the basis of claim preclusion. Appellants now appeal
from the district court‟s denial of their Rule 60(b) motion for relief in Berg I, and from the
district court dismissal of their complaint with prejudice in Berg II. We reverse the district
court‟s denial of Appellants‟ motion for relief under I.R.C.P. 60(b)(6) in Berg I, and accordingly
reverse the district court‟s denial in Berg II. We remand for further proceedings in these cases.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 6, 2003, Tracey Berg, a minor child eleven years old at the time, was walking
alongside a public highway in Hailey, Idaho, when she was struck from behind by a vehicle
driven by Kendall. As a result of the accident, Tracey sustained multiple fractures to her left leg
and fractured her lower back.
On June 30, 2005, Scott Berg filed a complaint against Kendall on behalf of his daughter
Tracey as her guardian ad litem (Berg I). At all times relevant to this action, Mr. Berg and his
family have resided in Nebraska. Mr. Berg hired Elizabeth Burr-Jones, an Idaho attorney, to
represent Tracey‟s interests in the litigation. Over the following year, Ms. Burr-Jones was
unable to remain in contact with Mr. Berg. On January 5, 2007, Ms. Burr-Jones filed a motion to
withdraw1 as the plaintiffs‟ attorney of record, which contained notice of a telephone hearing on
the motion scheduled for January 9, 2007. A copy of this motion was mailed to Mr. Berg.
During the January 9, 2007 hearing, the district court informed Ms. Burr-Jones that Mr. Berg
was entitled to fourteen days notice of the hearing on her motion to withdraw. 2 Accordingly, the
district court rescheduled the hearing for January 23, 2007, exactly fourteen days later, and the
clerk‟s entry in the Register of Actions indicates that an amended notice of hearing was sent to
Mr. Berg. However, there is no evidence of the notice in the record.
During the January 23, 2007 hearing, Ms. Burr-Jones stated that she had no contact with
Mr. Berg. Ms. Burr-Jones also indicated that she had received calls from a law firm in Boise
interested in taking the case, but that there had been no substitution of counsel as of yet. Based
on the information presented at the hearing, the district court granted Ms. Burr-Jones‟s motion to

1
Although in this motion and other court filings Ms. Burr-Jones referred to Scott and Tracey Berg as “plaintiffs,”
Mr. Berg filed suit solely on behalf of Tracey in a representative capacity. Mr. Berg did not seek damages on his
own behalf in Berg I, nor did Mrs. Berg seek damages on her own behalf in Berg II. Therefore, this opinion does
not address any claims either of the parents may have personally had against Kendall.
2
The Honorable John K. Butler presided over Berg I.

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withdraw. On February 2, 2007, the district court entered an order permitting Ms. Burr-Jones
leave to withdraw as the plaintiffs‟ counsel of record.
Ms. Burr-Jones sent a copy of the court‟s order to Mr. Berg via certified mail on February
9, 2007. The order stated that the plaintiffs had twenty days from the date of service to file a
notice of appearance or other pleading identifying themselves or substitute counsel, and that
failure to comply with this requirement would be sufficient grounds for dismissal of the action
with prejudice. Despite the warning, no written appearance was made. Accordingly, on March
6, 2007, the district court entered an order dismissing the complaint with prejudice.
On August 22, 2007, Tracey, through her mother Stacey Berg as Tracey‟s next friend,
filed a motion for relief under Idaho Rule of Civil Procedure 60(b)(1), (5) and (6), requesting that
the district court modify its dismissal to one without prejudice. A hearing on Appellants‟ motion
was held on September 25, 2007. On October 5, 2007, the district court entered its memorandum
decision, denying Appellants‟ motion on all grounds.
On December 2, 2007, Mrs. Berg, on behalf of Tracey as her next friend, filed a
complaint against Kendall (Berg II). In response, Kendall filed a motion to dismiss based on the
doctrine of res judicata. On March 5, 2008, the district court granted Kendall‟s motion to
dismiss, holding the elements for claim preclusion were met and, therefore, Appellants were
barred from filing a claim in Berg II.3 The district court subsequently entered an order
dismissing the matter with prejudice.
Appellants now appeal from the district court‟s denial of their motion for relief in Berg I
under I.R.C.P. 60(b)(1) and (6). Appellants also request relief on appeal under I.R.C.P. 60(b)(4),
arguing the district court‟s dismissal with prejudice is void. In addition, Appellants appeal from
the district court‟s dismissal of their complaint with prejudice in Berg II based on res judicata.
II. ANALYSIS
Appellants argue the district court abused its discretion in Berg I by denying their motion
for relief under Rule 60(b)(1) and (6). Appellants also argue that they are entitled to relief as a
matter of law under Rule 60(b)(4) because the district court‟s dismissal with prejudice is void.
Appellants argue the judgment is void because the court did not appoint Mr. Berg as Tracey‟s

3
The Honorable Michael R. Crabtree presided over Berg II.

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guardian ad litem as required by I.R.C.P. 17(c)4 and I.C. § 5-306,5 and because Tracey‟s parents
did not sue together on her behalf as required by I.C. § 5-310.6
In addition, Appellants argue the district court abused its discretion in Berg II by
dismissing their complaint with prejudice on the basis of claim preclusion. Appellants argue that
under Idaho law, a minor is not bound by a judgment where no guardian ad litem has been
appointed. Appellants also urge this Court to adopt section 42 of the Restatement (Second) of
Judgments, under which a person is not bound by a judgment for or against a party who purports
to represent him if “[t]he representative failed to prosecute or defend the action with due
diligence and reasonable prudence, and the opposing party was on notice of facts making that
failure apparent.” Restatement (Second) of Judgments § 42(1)(e).
We hold that the district court did not abuse its discretion in denying Appellants‟ motion
for relief under Rule 60(b)(1), but that the court did abuse its discretion in denying relief under

4
Idaho Rule of Civil Procedure 17(c) states:
Whenever an infant or incompetent person has a representative, such as a general guardian,
committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of
the infant or incompetent person. If an infant or incompetent person does not have a duly
appointed representative the person may sue by a next friend or by a guardian ad litem. The court
shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in
an action or shall make such other order as it deems proper for the protection of the infant or
incompetent person.
(Emphasis added).
5
Idaho Code § 5-306 states:
When an infant or an insane or incompetent person is a party, he must appear either by his general
guardian or by a guardian ad litem appointed by the court in which the action is pending in each
case, or by a judge thereof, or a probate judge. A guardian ad litem may be appointed in any case
when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge
thereof, expedient, to represent the infant, insane or incompetent person in the action or
proceeding, notwithstanding he may have a general guardian and may have appeared by him.
(Emphasis added).
6
Idaho Code § 5-310 states:
The parents may maintain an action for the injury of an unmarried minor child, and for the injury
of a minor child who was married at the time of his injury and whose spouse died as a result of the
same occurrence and who leaves no issue, and a guardian for the injury of his ward, when such
injury is caused by the wrongful act or neglect of another, but if either the father or mother be
dead or has abandoned his or her family, the other is entitled to sue alone. Such action may be
maintained against the person causing the injury, or if such person be employed by another person,
who is responsible for his conduct, also against such other person.
(Emphasis added).

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Rule 60(b)(6).7 As such, there is no need for us to address whether Appellants are entitled to
relief as a matter of law under Rule 60(b)(4). Furthermore, because this Court has reversed the
dismissal of Berg I, there is no basis for claim preclusion, and Berg II is reinstated as a cause of
action.8
A. Appellants’ Motion for Relief under Rule 60(b).
Appellants argue the district court abused its discretion in Berg I by denying their Rule
60(b) motion for relief under various grounds. In determining the appropriate standard of review
for a motion for relief under Rule 60(b), the Court must consider what subsection of the rule is
being invoked. “Where discretionary grounds are invoked, the standard of review is abuse of
discretion.” Knight Ins., Inc. v. Knight, 109 Idaho 56, 59, 704 P.2d 960, 963 (Ct. App. 1985).
Accordingly, the Court must examine: “(1) whether the trial court correctly perceived the issue
as one of discretion; (2) whether the trial court acted within the boundaries of its discretion and
consistently with the legal standards applicable to the specific choices available to it; and (3)
whether the trial court reached its decision by an exercise of reason.” Win of Michigan, Inc. v.
Yreka United, Inc., 137 Idaho 747, 753, 53 P.3d 330, 336 (2002). However, where
nondiscretionary grounds are asserted, the question presented is one of law, upon which the
Court exercises free review. Knight Ins., 109 Idaho at 59, 704 P.2d at 963.
1. The district court did not abuse its discretion in denying Appellants’ motion
for relief under Rule 60(b)(1).
First, Appellants argue the district court abused its discretion in denying their motion for
relief under I.R.C.P. 60(b)(1), which provides that a judgment may be set aside on the grounds of
“mistake, inadvertence, surprise, or excusable neglect.” This Court reviews the district court‟s

7
We note that in fairness to the district court, this Court has infrequently found reason to grant relief under Rule
60(b)(6). See, e.g., Campbell v. Kildew, 141 Idaho 640, 646-48, 115 P.3d 731, 737-39 (2005) (Court affirming the
district court‟s decision to set aside a judgment confirming a sham arbitration award under Rule 60(b)(6) because it
constituted fraud upon the court); Hopkins v. Troutner, 134 Idaho 445, 447-48, 4 P.3d 537, 559-60 (2000) (Court
affirming the district court‟s decision to grant Hopkins relief under Rule 60(b)(6) from the Release of All Claims
and Indemnity Agreement and Stipulation for Dismissal with Prejudice based on counsel‟s representations to
Hopkins that constituted overreaching); Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 856, 555 P.2d 393, 396 (1976)
(Court affirming the district court‟s order granting relief from the default judgment entered against the defendant
under Rule 60(b)(6) where the defendant raised serious questions regarding whether the court had jurisdiction to
enter the judgment against him); Radioear Corp. v. Crouse, 97 Idaho 501, 503, 547 P.2d 546, 548 (1975) (Court
affirming the magistrate court‟s order to set aside the default judgment against Crouse in part under Rule 60(b)(6)
because Crouse did not have notice of the application for the default judgment nor did he have notice of the entry of
the default judgment).

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dismissal of Appellants‟ Rule 60(b)(1) motion for relief for abuse of discretion. See Knight Ins.,
109 Idaho at 58-59, 704 P.2d at 962-63. Mistake or inadvertence referred to in Rule 60(b)(1)
applies primarily to errors or omissions committed by an attorney or by the court that are not
apparent in the record. Silsby v. Kepner, 140 Idaho 410, 411, 95 P.3d 28, 29 (2004). Any claim
of mistake must be a mistake of fact and not a mistake of law. Gro-Mor, Inc. v. Butts, 109 Idaho
1020, 1023, 712 P.2d 721, 724 (Ct. App. 1985). “The conduct constituting excusable neglect
must be that which would be expected of a reasonably prudent person under the same
circumstances.” Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005).
Appellants argue the district court‟s failure to give Mr. Berg notice of the January 23rd
hearing on Ms. Burr-Jones‟s motion to withdraw was a mistake of fact, which made Mr. Berg‟s
failure to appear at that hearing excusable as a matter of law. Idaho Rule of Civil Procedure
11(b), which governs the procedure an attorney must follow to withdraw, states in pertinent part:
“[N]o attorney may withdraw as an attorney of record for any party to an action without first
obtaining leave and order of the court upon a motion filed with the court, and a hearing on the
motion after notice to all parties to the action, including the client of the withdrawing attorney.”
I.R.C.P. 11(b)(2). The notice of the hearing on the motion to withdraw must be served in
compliance with I.R.C.P. 7(b)(3)(A), which requires that notice be served so as to be received by
the parties no later than fourteen days before the hearing. McClure Eng’g, Inc. v. Channel 5
KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006); see also Parkside Sch., Inc. v.
Bronco Elite Arts & Athletics, LLC, 145 Idaho 176, 178, 177 P.3d 390, 392 (2008).
Appellants are correct that Mr. Berg did not receive adequate notice of the January 23rd
hearing on Ms. Burr-Jones‟s motion to withdraw. Although notice of the January 9th hearing
was mailed to Mr. Berg on January 5, 2007, there is no evidence in the record that notice of the
January 23rd hearing was mailed to Mr. Berg. Even if we were to assume that the district court
mailed the amended notice of the January 23rd hearing to Mr. Berg based on the clerk‟s entry in
the Register of Actions, the notice was sent on January 9th—exactly fourteen days before the
hearing. As set forth above, the notice must be served so as to be received by the parties no later
than fourteen days before the hearing. I.R.C.P. 7(b)(3)(A). Seeing that Mr. Berg lives in
Nebraska, we can reasonably presume that notice was inadequate. Furthermore, there is no

8
Although Appellants filed their claim in Berg II over four years from the date of the accident, the statute of
limitations issue was not raised before this Court and, therefore, will not be addressed on appeal.

6
evidence that Ms. Burr-Jones made an ex parte application to shorten time for the hearing on her
motion to withdraw to get around the fourteen days notice requirement under I.R.C.P.
7(b)(3)(A). See id.
However, Appellants have failed to demonstrate Mr. Berg‟s inadequate notice of the
January 23rd hearing on the motion to withdraw was the cause of the claimed prejudice. Idaho
Rule of Civil Procedure 61 requires that the Court, at every stage of the proceeding, “must
disregard any error or defect in the proceeding which does not affect the substantial rights of the
parties.” “Accordingly, untimely notice of a hearing requires no relief on appeal unless the
aggrieved parties show that the untimeliness of the notice prejudiced them in some way.”
McClure Eng’g, 143 Idaho at 955, 155 P.3d at 1194. The record in this case demonstrates that
Mr. Berg did not participate in the litigation—he failed to remain in contact with his counsel, he
did not respond to Kendall‟s written discovery requests along with two court orders compelling
him to respond, and he did not appear for his deposition. There is nothing in the record to
suggest that if Mr. Berg had received proper notice he would have participated in the January
23rd hearing on Ms. Burr-Jones‟s motion to withdraw.
Furthermore, the requirements of I.R.C.P. 11(b)(3) were strictly complied with in this
case. Idaho Rule of Civil Procedure 11(b)(3) provides in pertinent part that if an attorney is
permitted to withdraw, the court must enter an order permitting the attorney to withdraw and
directing the attorney‟s client to make a notice of appearance within twenty days from the date of
service or mailing or else the action may be dismissed with prejudice without any further notice.
This Court has held that strict compliance with Rule 11(b)(3) is required to obtain a valid
judgment. Wright v. Wright, 130 Idaho 918, 921, 950 P.2d 1257, 1260 (1998). This rule ensures
that a party is adequately protected from the harsh result that his or her case be dismissed with
prejudice, not because the party has failed to prosecute or defend the claim, but because the party
has failed to take the additional step of making a written appearance to prosecute or defend the
claim. Here, a copy of the order permitting Ms. Burr-Jones‟s withdrawal was mailed to Mr. Berg
via certified mail on February 9, 2007. The order clearly stated that Mr. Berg had twenty days
from the date of service to make a written appearance or else the case could be dismissed with
prejudice without any further notice. However, Mr. Berg did not respond. Accordingly, the
district court dismissed the case with prejudice on March 6, 2007, twenty-five days later. We
find that strict compliance with I.R.C.P. 11(b)(3) was met in this case. Therefore, because

7
Appellants failed to demonstrate prejudice stemming from inadequate notice of the January 23rd
hearing on Ms. Burr-Jones‟s motion to withdraw, we hold the district court did not abuse its
discretion in denying Appellants‟ Rule 60(b)(1) motion for relief.
Appellants also argue the district court abused its discretion in failing to recognize that
relief should be granted in doubtful cases. In the district court‟s memorandum decision denying
Appellants‟ motion for relief, the court took notice of the fact that judgments by default are not
favored and that relief should be granted in doubtful cases in order to decide the case on the
merits. The district court then considered the Appellants‟ arguments, including the evidence
presented in Mr. Berg‟s affidavit explaining why he did not respond to the court‟s order
permitting Ms. Burr-Jones‟s withdrawal. Mr. Berg stated that he “did not remember ever getting
any notice that [his] attorney was withdrawing because either [his] rural mail was mixed up and
sent to a neighbor or because [he] got so many legal papers [he] did not know what any of them
meant.” In applying the criteria set forth in Rule 60(b)(1), the district court appropriately
determined that Mr. Berg‟s conduct was not legally excusable and was not inadvertent, and
accordingly denied Appellants‟ Rule 60(b)(1) motion for relief. This Court has held that “[i]f the
trial court applies the facts in a logical manner to the criteria set forth in Rule 60(b), while
keeping in mind the policy favoring relief in doubtful cases, the court will be deemed to have
acted within its discretion.” Waller v. State, Dept. of Health & Welfare, 146 Idaho 234, __, 192
P.3d 1058, 1062 (2008) (quoting Idaho State Police ex rel. Russell v. Real Prop. Situated in the
County of Cassia, 144 Idaho 60, 62, 156 P.3d 561, 563 (2007)). Therefore, we hold the district
court acted within the bounds of its discretion in denying Appellants‟ motion for relief under
Rule 60(b)(1).
2. The district court abused its discretion in denying Appellants’ motion for relief
under Rule 60(b)(6).
Next, Appellants argue the district court abused its discretion in denying their motion for
relief under I.R.C.P. 60(b)(6). This rule authorizes modification of a judgment for “any other
reason justifying relief from the operation of the judgment.” I.R.C.P. 60(b)(6)). This Court
reviews a trial court‟s dismissal of a Rule 60(b)(6) motion for relief for abuse of discretion. See
Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 856, 555 P.2d 393, 396 (1976). “[A]lthough the
court is vested with broad discretion in determining whether to grant or deny a Rule 60(b)[(6)]
motion, its discretion is limited and may be granted only on a showing of „unique and

8
compelling circumstances‟ justifying relief.” Miller v. Haller, 129 Idaho 345, 349, 924 P.2d
607, 611 (1996) (quoting Matter of Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265
(Ct. App. 1990)). The appellate courts of this state have infrequently granted relief under Rule
60(b)(6).
Appellants argue they are entitled to relief under Rule 60(b)(6) based on Mr. Berg‟s
failure to comply with the provisions under I.R.C.P. 17(c) and I.C. § 5-306 that he be appointed
as Tracey‟s guardian ad litem. However, we find that this reason does not constitute a unique
and compelling circumstance justifying relief. In the instant case, Mr. Berg chose to initiate suit
on Tracey‟s behalf as her guardian ad litem rather than as her parent; however, Mr. Berg did not
follow the procedural requirements under I.R.C.P. 17(c) and I.C. § 5-306 that he be appointed
by the court.9 Rather than placing the burden on the trial court to ensure that a guardian ad litem
is appointed, we find that the better rule is to place the burden on the parent seeking to represent
his or her minor child in the capacity as a guardian ad litem. Thus, where a parent fails to apply
for court appointment as his or her minor child‟s guardian ad litem, the Court will not grant relief
under Rule 60(b)(6) based on this technical error.
Appellants also argue that a parent‟s failure to prosecute an action on behalf of a minor
child is a reason justifying relief under Rule 60(b)(6).10 The record demonstrates that Mr. Berg
ignored discovery requirements, motions, notices of hearing, and multiple court orders. His
failure to prosecute the action on behalf of his daughter caused Tracey the loss of an opportunity
to present her claim in Berg I and Berg II. Importantly, as the district court found, Tracey had a
meritorious claim at the time of dismissal. She was a pedestrian struck from behind by a vehicle
operated by Kendall. The accident allegedly left her with serious injuries and approximately
$95,000 in medical bills. Thus, at no fault of her own, Tracey was deprived of a meaningful
opportunity to present this claim. Therefore, we hold that in cases such as this where a person

9
This Court has held that the failure to appoint a guardian ad litem for a minor before the bringing of an action is a
matter of procedure and not of jurisdiction. See Trask et al. v. Boise King Placers Co., 26 Idaho 290, 299, 142 P.
1073, 1075 (1914); see also Trolinger v. Cluff, 56 Idaho 570, 576, 57 P.2d 332, 334 (1936) (quoting 14 R.C.L. p.
286, § 54).
10
Kendall asserts that this argument was not raised below. Although it was not formally raised, it was implicitly
raised in the affidavits attached to Appellants‟ Memorandum in Support of Motion for Relief from Order Dismissing
Case with Prejudice. In fact, the district court found in pertinent part that Appellants‟ argument under Rule 60(b)(6)
could “only be construed to mean that any time a parent or natural guardian fails . . . to prosecute an action on behalf
of the minor child for any reason relief should be granted.” Although we agree that this standard would be too broad
to grant relief under Rule 60(b)(6), we find the facts of this case present a much narrower circumstance.

9
lacking the capacity to sue or be sued is represented in an action, whether by a natural guardian,
guardian ad litem, or next friend, and the representative completely fails to prosecute a
meritorious claim that results in the claim being dismissed with prejudice, relief may be granted
under Rule 60(b)(6). Accordingly, we reverse the district court‟s dismissal of Appellants‟
motion for relief under Rule 60(b)(6).
B. Attorney Fees on Appeal
Kendall requests attorney fees on appeal pursuant to I.C. §§ 12-121 and 12-123. Under
I.C. § 12-121, the Court may award reasonable attorney fees to the prevailing party in a civil
action if we are left with the abiding belief that the appeal was brought or defended frivolously,
unreasonably or without foundation. Cramer v. Slater, 146 Idaho 868, __, 204 P.3d 508, 521
(2009). Because Kendall did not prevail in this case, we deny her request for fees under I.C. §
12-121. Furthermore, attorney fees are not available in appellate cases under I.C. § 12-123. Bird
v. Bidwell, 2009 WL 149264126 *3 (2009). Therefore, we deny Kendall‟s request for fees under
this provision as well.
III. CONCLUSION
For the reasons set forth above, we reverse the district court‟s dismissal of Appellants‟
motion for relief under Rule 60(b)(6) in Berg I and the district court‟s dismissal of Appellants‟
complaint in Berg II, and remand for further proceedings in these cases. We also deny Kendall‟s
request for attorney fees on appeal under I.C. §§ 12-121 and 12-123. Costs to appellants.
Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.

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