               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38939

TERRY-LEE,                                )            2012 Unpublished Opinion No. 612
                                          )
    Plaintiff-Counterdefendant-Appellant, )            Filed: August 29, 2012
                                          )
v.                                        )            Stephen W. Kenyon, Clerk
                                          )
NATHAN DAVID YOUNG,                       )            THIS IS AN UNPUBLISHED
                                          )            OPINION AND SHALL NOT
    Defendant-Counterclaimant-            )            BE CITED AS AUTHORITY
    Respondent.                           )
                                          )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. John T. Mitchell, District Judge.

       Orders denying motion to set aside default judgment, appeal dismissed.

       Terry-Lee, Loon Lake, Washington, pro se appellant.

       Lukins & Annis, P.S.; Michael G. Schmidt, Coeur d’Alene, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Terry-Lee appeals from the district court’s orders entered against him concerning a
default judgment. We dismiss the appeal for lack of appellate jurisdiction.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On May 9, 2009, Terry-Lee filed an action for dissolution of his partnership with Nathan
David Young. On November 10, 2009, Young filed his answer, affirmative defenses, and
counterclaim. Terry-Lee failed to reply to Young’s counterclaim and on December 15, 2009,
Young provided Terry-Lee with a three-day notice of intent to take default.
       On May 12, 2010, Young moved for entry of default judgment against Terry-Lee, which
was granted on June 2, 2010. On June 11, 2010, Terry-Lee requested that the default judgment
be set aside pursuant to Idaho Rules of Civil Procedure 60(b), 59(b), 26(e)(2), and 9(b). On
September 30, 2010, the district court entered its memorandum decision and order denying
Terry-Lee’s motion. Terry-Lee then proceeded to file numerous documents objecting to, and


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seeking reconsideration of, the district court’s denial of his motion to vacate the default
judgment. Young objected to these filings because they were untimely and prohibited under
I.R.C.P. 11(a)(2)(B).    The district court allowed Terry-Lee to proceed with his motion to
reconsider. Ultimately, on May 7, 2011, the district court entered its memorandum decision and
order denying Terry-Lee’s motion for reconsideration and other motions. Terry-Lee filed his
notice of appeal on June 28, 2011.
                                                 II.
                                          DISCUSSION
        Terry-Lee makes numerous claims concerning a default judgment entered against him in
the district court. He argues that the default judgment was improper because he never received
notice of the counterclaim. Terry-Lee’s argument is grounded on his assertion that the district
court and Young’s attorneys sent all court documents, except the default judgment, to an
incorrect address and addressee, and to open said documents would have constituted mail fraud.
Terry-Lee also argues that the default judgment was entered without an appraisal on the property
at issue.
        The district court’s default judgment was entered on June 2, 2010. Terry-Lee did not
timely appeal from that judgment. Idaho Appellate Rule 14(a) provides that a notice of appeal
must be filed with the clerk of the district court within forty-two days from the filing of the final
judgment or order from which the appeal was taken. This time limit is jurisdictional and a
failure to comply “shall cause automatic dismissal of such appeal.” I.A.R. 21. Thus, we must
dismiss Terry-Lee’s appeal insofar as it challenges the default judgment or any interlocutory
orders that preceded it, 1 unless the time for appeal was tolled by Terry-Lee’s June 11, 2010,
motion to vacate the judgment and to vacate transfer of Terry-Lee’s undivided one-half interest
in the lands in question. While I.A.R. 14(a) provides that the time for appeal from a civil
judgment “is terminated by the filing of a timely motion which, if granted, could affect the
findings of fact, conclusions of law or any judgment in the action,” that rule also explicitly
excludes motions brought under I.R.C.P. 60 from this tolling provision. Therefore, Terry-Lee’s
motion for relief from the default judgment brought pursuant to I.R.C.P. 60(b) did not extend the


1
        Idaho Appellate Rule 17(e)(1) provides that a notice of appeal from a judgment “shall be
deemed to include, and present on appeal: (A) All interlocutory judgments and orders entered
prior to the judgment.”

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time for an appeal from the default judgment. Terry-Lee’s appeal is untimely with respect to the
default judgment or any of the district court’s orders that preceded that default judgment.
Accordingly, as to those matters, the appeal is dismissed for lack of appellate jurisdiction.
       Terry-Lee also argues that the district court erred in denying his motion to vacate the
default judgment pursuant to I.R.C.P. 60(b). Under Rule 60(b), Terry-Lee had six months to file
a motion under parts 1, 2, and 3, or a reasonable amount of time under parts 4 and 5. Terry-Lee
timely filed his initial motion to vacate the default judgment under Rule 60(b). 2 Moreover, the
district court’s order denying Terry-Lee’s motion to vacate the default judgment is an appealable
order. Idaho Appellate Rule 11(a)(7) (An appeal as a matter of right may be taken from “[a]ny
order made after final judgment including an order denying a motion to set aside a default
judgment.”). The district court entered the order denying Terry-Lee’s motion to vacate the
default judgment on September 30, 2010.           Terry-Lee filed numerous motions and other
documents regarding the denial by the district court of his motion to vacate the default judgment.
However, I.R.C.P. 11(a)(2)(B) states that “there shall be no motion for reconsideration of an
order of the trial court entered on any motion filed under Rules 50(a), 52(b), 55(c), 59(a), 59(e),
59.1, 60(a), or 60(b).” Whether or not the district court entertained his various motions does not
alter the analysis of when Terry-Lee’s time period to appeal began to run. Because Terry-Lee’s
various motions to reconsider were impermissible, and did not toll the forty-two days to
appropriately appeal, Terry-Lee failed to timely appeal the order denying his motion to vacate
the default judgment. Accordingly, this Court is without appellate jurisdiction to consider the
merits of his claims concerning the denial of his Rule 60(b) motion.
       Young requests attorney fees on appeal pursuant to Idaho Code §§ 12-120(3) and 12-121.
An award of attorney fees may be granted under I.C. § 12-121 to the prevailing party and such an
award is appropriate when the court is left with the abiding belief that the appeal has been
brought or defended frivolously, unreasonably, or without foundation. Rendon v. Paskett, 126
Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995). Young argues that “Lee has failed to
articulate any grounds under I.R.C.P. Rule 60(b) for setting the Judgment aside.” Terry-Lee’s

2
        It is conceivable that Terry-Lee’s subsequent motions to reconsider and his motions to
object could be construed as additional I.R.C.P. 60(b) motions. Rule 60(b) does not foreclose the
use of subsequent motions if multiple Rule 60(b) parts apply. However, Terry-Lee’s subsequent
motions alleged the very same wrongdoing as his initial Rule 60(b) motion, and were not filed
within the time constraints contained in Rule 60(b)(6).

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appeal was not timely, his numerous pleadings failed to articulate under which I.R.C.P. 60(b)
part his claim was proceeding, and he failed to address the abuse of discretion standard, which
would have applied to the present case if it had been timely appealed. Therefore, we grant
attorney fees to Young on appeal.
                                                III.
                                          CONCLUSION
          The appeal derived from the default judgment, orders that preceded the default judgment,
and the district court’s order denying Terry-Lee’s motion to vacate the default judgment are
dismissed because the appeal was untimely. Costs and attorney fees are awarded to Young on
appeal.
          Judge LANSING and Judge MELANSON CONCUR.




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