*1 plaintiffs parties. and all other Par- kers are also the owners of surface property question.
I would affirm.
SHEPARD, J., concurs. SHELTON, Individually, Marcilena guardian ad litem for Desiree Ro- Shelton, Eugene chelle Noble Ronald Shelton, Doyle Ray Noble Noble Shel- Shelton, ton and Teranie Leanne Noble Plaintiffs-Appellants, DIAMOND INTERNATIONAL CORPO- Corporation,” “XYZ
RATION unknown, whose true name is Defend- ants-Respondents. Branstetter, Wallace, Michael K. No. 15305. plaintiffs-appellants.
Supreme Court of Idaho. Miller, d’Alene, Patrick E. Coeur for de- fendants-respondents.
July
BAKES, Justice. appeal granting This is an from an order relief from a default on the basis of inadvertence and un- excusable 60(b)(1). der I.R.C.P. We affirm. August
Harold Shelton was killed on driving when the car he was went off steep a road and down a embankment. On 19, 1982, August day one before the stat- expire, ute of limitations was to Shelton’s complaint alleging heirs filed negli- road was within the control of and gently by defendant maintained Diamond (“Diamond”). Corporation International The defendant Diamond is a Delaware cor- poration principal place with its of business City. in New York summons com- plaint reg- were not served Idaho, agent Corpora- istered the C.T. tion, August approximately until *2 year complaint one after the was filed. were distracted from other matters be- Twenty-one service, days Septem- after cause of the consummation of a sale of plaintiffs ber took a default assets of one of its divisions. The affida- judgment against Diamond which had not vits also stated that Diamond maintained appearance. filed an answer or made an d’Alene, Idaho, an office in Coeur which judgment The default awarded Mrs. Shel- had not been notified in form of the in damages $1.8 ton million in her individu- pending complaint, although years two ear- capacity wrongful al for the death of her lier, in August, attorney for the husband. Sheltons had contacted the office to ascer- September tain potential liability.
On Diamond filed a The of- motion to vacate the default fice judgment. was never contacted either when the accompanied by The motion was complaint several was filed or before the default employees, affidavits of Diamond’s offi- was taken. cers, attorney. insurance carrier and The proposed Diamond also filed a answer affidavits stated that from the date of ser- setting out the defense that the road on days vice it took seven for the summons to which the by accident occurred was owned by Corporation, be transferred C.T. government the federal which controlled registered agent, from its Boise office to by parties the use of the road other than office, agent’s New York and then an- Diamond, merely and that Diamond had an days other five by be transferred C.T. easement to use the The answer also road. Corporation to Diamond’s New York office. alleged contributory negligence upon based point, At that Diamond’s executive secre- allegations of inattentive driving, excess tary’s usual course of action was to for- speed drinking. and
ward the summons to Diamond’s insurance The trial court found that the circum- manager, recently resigned but he had with adequately stances of this case showed ex- replacement hired. The executive secre- neglect cusable and inadvertence on behalf tary inquired company within the and was poli- advised that of Diamond. The trial court noted the assistant treasurer was handling cy in process; by now all service of how- Idaho to resolve doubtful cases ever, she was on vacation the time setting judgment pro- so aside the in favor of given the summons was not to her ceeding to the fur- merits of and days arriving until after in Dia- twelve proposed ther found that Diamond’s an- mond’s New York office. The summons presented swer a meritorious defense. The then transferred to Diamond’s insur- then court found that Diamond was at- later, days ance broker two and another tempting diligently act on the summons days elapsed five before the insurance though moving even it was not efficient in responsible carrier to defend the claim re- through the summons the various channels. day ceived the notice. the insur- On factors, The trial court further considered immediately telephoned ance carrier and such as the distance to New York and the retained Idaho counsel who filed the motion 12-day delay registered caused following judgment to set aside the on the factors, agent, which when with combined day, September 20. problems corporation, the other within the president amounted to excusable and inad- The affidavit of Diamond’s vice upon finding general and counsel further stated that the vertence. Based its of inad- corporation acquired by merger neglect, in De- vertence and excusable the trial cember, 1982, judgment. and since that had court set aside the default selling operating off most of its divisions right to relief from a default assets, resulting many employees 55(c) provided I.R.C.P.
resigning replacements being without hired, adopts by which reference the standard remaining working with the staff 60(b)(1), provides, “On pressure long under hours. Particular- I.R.C.P. ly, during August September, they just, are motion and such terms as 1985). party Appeals, relieve or his The Court of in Avondale representative judgment, Hall, from a final order Hayden, Inc. v. (1) proceeding following reasons: (Ct.App.1983), P.2d stated: mistake, inadvertence, surprise, or excusa- judg- “A motion for relief from a default Arvidson, neglect____” ble In Newbold v. fact-finding ment invokes both the *3 231, 105 Idaho 672 P.2d 232 law-applying functions of the trial court. (1983),the Court stated that motion to “[a] requires It the court to determine the judgment set aside default is addressed to concerning facts the circumstances of court, the sound discretion of the trial default, apply the and to the criteria of whose decision will not be reversed in the 60(b) Appel- I.R.C.P. to the facts found. absence of abuse of that discretion. restraint, late in review of such factual Keller, 10, Hearst v. 100 Idaho determinations, is consistent with the (1979).” record, reviewing After the we 52(a) principles embodied in Rule conclude that the trial court did not abuse with the traditional of deference accordingly its discretion and we affirm. deciding to trial court discretion in findings In its and conclusions the trial grant whether to relief from default analyzed particular court circumstances judgments. important We believe these presented in carefully applied this case and principles unduly damaged by are legal principles previous set out our suggestion in broad and its Parsons concerning cases the trial court’s standard progeny, pro- that where the evidence in to evaluate motions to set aside default ceedings judgment to set aside a default
judgments. We find no abuse of discretion
wholly documentary,
appellate
is
an
part
Appellants,
on the
of the trial court.
may displace
fact-finding
court
both the
however,
parallel
cite to us a
but conflict-
law-applying
functions of the trial
ing
that,
line of Idaho cases which hold
view,
court.
In our
the rule of Parsons
regardless of whether or not the trial court
that,
should be narrowed to mean
al-
discretion,
may
abused its
this Court
under-
though
appellate
may
court
draw its
independent review,
take its own
where the
impressions
entirely
own
from evidence
here,
wholly documentary
record is
as it is
in writing, it will not substitute those
discretionary
and make its own
decision as
impressions
findings
by
for
of fact
judgment
to whether the
should be set
findings
trial
unless the
below are
Keller,
aside.
Corp.
supra;
See Hearst
clearly
deemed to be
erroneous. This
Wood,
387,
100
Wood
597 P.2d
brings
formulation
the rule of Parsons
(1979);
Co.,
Fisher v. Bunker Hill
greater
princi-
into
accord with the basic
341,
(1974);
Parsons v.
ples of trial court discretion in default
Wrble,
619,
(1911).
out entirely Court of do not SHEPARD and HUNTLEY, JJ., dilemma, solve the we conclude that concur. approach preferable
Avondale to the two BISTLINE, Justice, dissenting. conflicting authority presently lines re flected in our decisions which state I. one hand that the appeal sole issue on If the majority perceived were whether or not trial sincere- court abused its discretion, ly trying Arvidson, bring stability some Newbold v. into the law, cases, join and the line would be inclined to of which Hearst *4 Keller, Corp. large for the Court. supra, standing is the most recent One obstacle example, way my doing in the joined which hold that where the so is that I motion judgment to set aside a default is sub Court’s unanimous in Hearst Keller, wholly Corp. mitted on written documents this may (1979). independent Court undertake its own history. This is not ancient areWe Therein, review and make discretionary talking years ago. its own deci about six short judgment sion as to whether the good legal single should be five minds were of a view set aside. that: [Wjhere the motion was heard on the
Accordingly, agree we with the conclu- only written record and without oral tes- sion of the Court of in the Avon- timony, exercise dale case that: passing its own discretion in on the mat- review, appeal, “When we on the trial Co., ter. Fisher v. Bunker Hill 96 Ida- application court’s of law to the facts ho Thomas found, appropri- we will consider whether Stevens, Idaho P.2d 811 applied ate criteria were and whether the (1956). logically result is one that follows. Thus, (a) A judg- if motion to set aside a default findings the trial court makes erroneous, clearly of fact which ment is addressed are not to sound (b) applies the court to those facts the discretion of the trial court whose deci- 60(b)(1)(tem- proper criteria under Rule sion will not be reversed unless an abuse pered by policy favoring clearly relief in appears. of discretion Fisher v. cases), (c) doubtful the trial court’s supra. Bunker Hill logically applica- decision follows from setting A mistake sufficient to warrant found, tion of such criteria to the facts aside default must be of fact then the court will to have be deemed Neglect and not of law. must be excusa- acted within its sound discretion. Its and, calibre, ble to be that must be not decision will be overturned on might expected conduct that be aof peal.” 104 Idaho at reasonably prudent person under same circumstances. Thomas v. Ste- Applying foregoing standard to the vens, supra. The record herein does not facts of this we that the trial conclude questions inadvertence sur- raise or findings clearly court’s of fact are “not prise. 52(b); erroneous” under I.R.C.P. that the properly applied trial court the criteria of Defendant’s affidavit herein offers as 60(b)(1) (tempered only his mistake or excusable his I.R.C.P. to those facts favoring he was unaware of the policy relief doubtful statement cases); requirements requiring of the rules and the trial court’s decision fol- strict to made logically application lows of such cri- answer and counterclaim be Accordingly, twenty days teria to of service. He offers the facts found. within reaching decision of the district court is affirmed. reason for such conclusion no plain wording sum- Mr. her in view of the matter. Calamari advised contrary. plea There not aware to handle mons to the he was of how these understand, read or since that he could not matters. He stated that Mr. Trivi- way distracted ur- departure, superior, was other Ms. Joan sone’s his gent If he law matters. mistook the Myers, Assistant Treasurer of Diamond such a mistake not sufficient. he Manager, and former Insurance had been If wording decided the the summons handling process all data. service of said, plainly did not mean what it such That at the time of Diamond’s re- 5. neglect was the act not reasonable Process, Myers ceipt of Ms. was on person like under circumstances and September Upon until 1983. vacation not excusable. Hearst therefore she delivered her return that date 11-12, Corp., her the Process. (emphasis added). P.2d at 67-68 September That 1983 Ms. The case law forth in not set Hearst was Myers had the hand delivered Process new. of law set forth agent, insurance Mr. Adolf paragraph firmly first above has been en- Tiernan, Gobel, of Tiernan & Fulton jurisprudence well trenched York, (file Street, York, copy New New century. over a During half all of that attached). forwarding letter time it subjected to no criticism. Dur- during 7. That the course ing all of that time this Court-sometimes *5 above related events was not aware she determined to exercise its own in discretion day requirement the to an- of reviewing granting denying an order or par- swer the Process nor the of of default, relief from a but most times it the claim. ticulars extensive simply agreed ruling' the with reasoned 8. she been That has never involved applied district court. The as handling any prior pro- in service of over the many years allowed this resulting untimely cess in an answer. one, where the was record a cold to make added.) (Emphasis use of knowledge experi- the collective and An of a Stronski affidavit Victor avers ence of single judge. more than a With only: mind, that in appropriate it is to the to turn 1. That he is a Vice President and the facts of following this which will General Counsel of Diamond Internation- submit Supreme today Court has (“Diamond”), al Corporation Delaware again once irresponsibly well- struck down corporation having principal place its settled case law. Avenue, business at 733 New Third York, New York.
II.
2. That
December
Dia-
In
today,
showing
the case
us
before
acquired
merger
mond
into an
made to set
not
aside
default was
indirect,
subsidiary
wholly-owned
of Gen-
portrayed
majority opin-
elaborate as
in the
eral Oriental Limited.
ion.
of a
The affidavit
Joan Jarvis is the
Diamond,
merger,
since
3. That
supporting
sole
documentation of claimed
in
company with 1982
excess of
sales
per-
excusable
inadvertence. As
million,
tinent,
continually
has been
en-
$800
following:
she
avers
gaged
disposition
the sale and
of most
receipt
4.That
her
Pro-
after
operating
of its
divisions
its other
cess, in
view
Diamond’s Insurance
property and assets.
having
Manager
recently resigned and
hired,
replacement having
merger
she
The
itself created uncer-
Calamari, Manager
resulting
asked Mr. John
tainty
many members of the
Employee
Department,
Benefits
a de-
corporate staff in
York resigning
New
partment
upon obtaining
positions. Replac-
affiliated with the Insurance
other
Department,
he could
ing employees
resigned
if
take care
who
became im-
practical and difficult and was never ef-
Court functioned as a court of error cor-
fectively accomplished.
mind,
my
rection. In
the roles have been
always
reversed—I
understood that the
remaining
5. The small
staff of Dia-
Appeals
Court of
was a court
mond,
of error
staff,
including
Legal
its reduced
correction,
it
and was our function to act
has worked under undue
burdens
as a court of law.
pressures.
employees remaining
regularly
day.
worked 10
hours
In
Avondale
narrow issue confront-
Saturday
Sunday
required
work was
ing
Appeals
the Court of
was whether to
and,
occasion,
from time to time
vari-
affirm or reverse a district court order
employees
through
ous
night
worked
denying a motion to set aside a default.
early morning.
Only at the conclusion of the Avondale
particular during
6. That
opinion
proof
does the reader discover the
August,
month
up
1983 and
to and
justify setting
judg-
offered to
aside the
including September
on which
opinion
ment. The
then notes that: “The
signed providing
date a contract was
district court concluded that none of the
the sale of the assets of Diamond’s Fiber
60(b)(1),
criteria recited in
including
Rule
Packaging Corpora-
Product Division of
prudence requirement,
the reasonable
had
America,
spent
tion of
much time was
Id.,
been satisfied
the evidence.”
away
office and
under-
Idaho at
7. That the occurrence of
Id.
timely
subject
failure to
answer in the
judge
The district
referred to was the
action was inadvertent and attributable
Prather,
E.
one of Idaho’s
Honorable Watt
to the above events.
experienced
judges,
more
trial
and also the
R.,
2, pp.
Vol.
41-42.
unanimous
author of this Court’s
*6
Hearst,
Judge
a
which
decision
my
offering
What
mind makes of that
forgotten
entering
in
Prather had not
busy doing
that Diamond was too
$800
relief,
he
denying
when wrote:
order
in sales to
of
million
attend to
business
why
forth
Halls were
No reason is set
summons,
responding
warning
to the
of the
23, 1979,
March
and
unable between
and Joan Jarvis cannot understand an Ida-
protecting
properly
take care of
June
English.
printed
ho summons
in
Other
litigation.
in this
their interests
large
obliging
than for
the desires of this
any
herein does not disclose
The record
corporation,
why
I can see little reason
part
law on the
of defendant
mistake of
should be trifled with.
default
herein set forth
nor does the record
III. A.
surprise on said defendant’s
element of
the conclusion of the Court
part.
It is
adoption
majority’s strange
by
forth
defendants
that
the facts set
Appeals’
announced in Avon
rule
Court
constitute ex-
Hall are not sufficient to
Hall,
v.
104 Idaho
Hayden,
dale on
Inc.
neglect or inadvertence. See
cusable
321,
(Ct.App.1983),recalls to
941 overrule, silentio, Appeals appropriate it Court of deemed new law and sub declare Hearst, long a line of cases supra, and interfere. Especially dating years. over 80 back My thought is that the Court of Prather, in memo- Judge true when his
this
inopportunely,
apparently
and
with-
acted
opinion, specifically
randum
relied
regard for the law as it had
proper
out a
authority
decision.
Hearst as
for his
(four years)
re-
just shortly before
been
apply
—the most re-
Rather than
Hearst
a unanimous Court.
affirmed Hearst
announcement
this Court on
cent
Appeals?
What motivated
Court of
Appeals relegated
it to
issue—the Court
know,
Frankly,
suspect
I
not
but
do
proceeded
unimportance
a footnote of
surmised that it would be the
the court
Roby Roby,
v.
to tilt at the ancient cases
primarily
routinely
first
139,
(1904)
10 Idaho
practice requires greater degree of law
stability precedent in the of case law than providing. this Court is As one writer has expressed it: evil, however,
The most intolerable un- der which past we have lived for the twenty-five years, changing has been the shifting judicial character of de- our
cisions, by deprived which we have been judicial
of the inestimable benefit of precedents safeguard rights a to our person property. COMPANY, Appellant, IDAHO POWER IDAHO PUBLIC UTILITIES
COMMISSION, Respondent. Application In the Matter of the of IDA- HO POWER COMPANY FOR AU- THORITY TO INCREASE ITS RATES
AND CHARGES FOR ELECTRIC SER-
VICE TO ELECTRIC CUSTOMERS
the State of Idaho.
No. 14780. Supreme Court of Idaho.
July