(Download) "Richard R. Reinwald and Leeann Reinwald v." by Court of Appeals of Idaho No. 18487 " eBook PDF Kindle ePub Free
eBook details
- Title: Richard R. Reinwald and Leeann Reinwald v.
- Author : Court of Appeals of Idaho No. 18487
- Release Date : January 07, 1991
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
This is an appeal from an order denying a motion to set aside a default judgment. Along with other named defendants, the appellant,
Lucy Eveland, was sued by Richard and LeeAnn Reinwald for damages allegedly arising from the purchase of a residence by the
Reinwalds from the Evelands. An answer was filed by an attorney, James Paulsen, on behalf of both of the Evelands. Later,
Paulsen was permitted by the court to withdraw from his representation of Lucy Eveland and a copy of the withdrawal order
was served upon her. When she failed subsequently to appear in person or to appoint new counsel, the Reinwalds obtained an
order for default and a default judgment against her without giving her notice of their application. Upon levy of an execution
by the sheriff on her property, Lucy moved to set aside the default and judgment on the ground that the order permitting Paulsen
to withdraw was defective because it did not inform Lucy that a default judgment could be taken against her if she did not
file another appearance in the case or obtain a new attorney to appear for her in the matter. Lucy's motion was denied. We
reverse. We begin first by noting our standard of review. Ordinarily, a timely motion under I.R.C.P. 60(b) to set aside a default
judgment is addressed to the sound discretion of the trial court. Baldwin v. Baldwin, 114 Idaho 525, 757 P.2d 1244 (Ct.App.1988).
However, when the default is obtained after a party's attorney has been permitted to withdraw -- as in this case -- the question
of setting aside the default must be viewed from a different posture. As we later explain, before such a default may be entered,
Rule 11(b)(3) of the Idaho Rules of Civil Procedure requires particularized notice 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). Knight Ins., Inc. v. Knight, 109 Idaho 56, 704 P.2d 960 (Ct.App.1985); Lundstrom v. Southern Idaho Pipe and Steel
Co., 107 Idaho 189, 687 P.2d 579 (Ct.App.1984). If the judgment is voidable for failure to provide the notice required by
Rule 11(b)(3), it will be set aside as a matter of law. Id. See also Rodell v. Nelson, 113 Idaho 945, 750 P.2d 966 (Ct.App.1988).
Consequently, we will exercise free review over the question whether Lucy Eveland's motion to set aside the default judgment
should have been granted.