Summary
In Lundstrom, this Court applied an appellate standard of legal error, not a standard of abuse of discretion. Compare Omega Alpha House Corp. v. Molander Associates, Architects, Inc., 102 Idaho 361, 630 P.2d 153 (1981) (applying discretion-based standard where noncompliance with Rule 11(b)(3) was among many grounds asserted for relief).
Summary of this case from Knight Ins., Inc. v. KnightOpinion
No. 14706.
August 28, 1984.
APPEAL FROM DISTRICT COURT, FIFTH JUDICIAL DISTRICT, TWIN FALLS COUNTY, THERON W. WARD, J.
Robert O. Eldredge of Maguire, Ward Maguire, Pocatello, for plaintiff-appellant.
Craig R. Jorgensen of Lyon Jorgensen, Pocatello, for defendant-respondent.
Before WALTERS, C.J., SWANSTROM, J., and McFADDEN, J., Pro Tem.
Plaintiff's counsel filed a notice of withdrawal as attorney in this action for damages for personal injury. Opposing counsel served notice on plaintiff demanding that he employ other counsel or appear in person. The district court then entered an order authorizing withdrawal of plaintiff's counsel, which order failed to advise the plaintiff that his claim was subject to dismissal with prejudice, without further notice, if plaintiff failed within twenty days to have other counsel appear or to appear in person as required by I.R.C.P. 11(b)(3).
Some months later defendant's counsel moved for dismissal of the action for plaintiff's failure to comply with the rule. The district court then entered its ex parte order dismissing plaintiff's complaint with prejudice. Plaintiff moved to set aside the order of dismissal, but his motion was denied. He then appealed from both of the orders.
We hold that the district court erred in refusing to set aside the dismissal because the prior order for withdrawal did not inform plaintiff of the possible consequences for failure, within twenty days, to either appoint new counsel or notify the court he would represent himself. I.R.C.P. 11(b)(3). See Omega Alpha House Corp. v. Molander, 102 Idaho 361, 630 P.2d 153 (1981). The notices sent to plaintiff by defendant's counsel did not supply the omitted information, even assuming they might have cured the defects in the order. Accordingly, we reverse. Costs to appellant.