questionable judgments 7.7.10
TRANSCRIPT
-
8/13/2019 Questionable Judgments 7.7.10
1/55
QUESTIONABLE
JUDGMENT?
Final judgments and other concerns
from the appellate courts
July 7, 2010
-
8/13/2019 Questionable Judgments 7.7.10
2/55
Two questions of significance:(1)What is a judgment?
(2) When does the time for appeal
begin to run?
-
8/13/2019 Questionable Judgments 7.7.10
3/55
ANCIENT HISTORY
Treatment of judgments prior to
1977
-
8/13/2019 Questionable Judgments 7.7.10
4/55
The legislature shall have no power to deprive the
judicial department of any power or jurisdiction which
rightly pertains to it as a coordinate department of the
government; bu t the legis lature shal l prov ide a
proper system of appeals.
Art. V, 13, Idaho Constitution
-
8/13/2019 Questionable Judgments 7.7.10
5/55
[T]he right to appeal at law is and
always has been purely statutory, and []
the legislature may prescribe in what
cases, under what circumstances and
from what courts appeals may betaken.
Weiser v. Middle Valley Irr. Ditch Co., 28 Idaho 548,
552, 155 P. 484, 485 (1916)
-
8/13/2019 Questionable Judgments 7.7.10
6/55
Under the statutes and constitutionof this state, appeals can only be taken
from judgments that are final, or those from
which appeals are specifically provided for.
Blaine Co. Natl Bank v. Jones, 45 Idaho 358, 361, 262 P.
509 (1927)
-
8/13/2019 Questionable Judgments 7.7.10
7/55
A Judgment is the final determination of the rights
of the parties in an action or proceeding.
I.C. 10-701 (repealed effective March 31,
1975)
-
8/13/2019 Questionable Judgments 7.7.10
8/55
Section 11-201, I. C. A., the predecessor to I.A.R.
11 and I.A.R. 14, provided:
An appeal may be taken to the Supreme Court
from a district court:
1. From a final judgment in an actionor special
proceeding commenced in the court in which the
same is rendered; from a judgment rendered on an
appeal from an inferior court; from a judgment
rendered on an appeal from an order, decision or
action of a board of county commissioners; within
ninety days after the entry of such judgment.
-
8/13/2019 Questionable Judgments 7.7.10
9/55
[A] formal order dismissing an action is in
effect a final judgment, as contemplated by
the statute, and will be so considered,
notwithstanding its designation.
Marshall v. Enns, 39 Idaho 744, 746, 230 P. 46, 47 (1924).
-
8/13/2019 Questionable Judgments 7.7.10
10/55
Respondents contend that it is merely an order sustaining a
demurrer, and is therefore not a judgment nor an appealable
order. If it is merely an order it is certainly not appealable. The
question remains whether it is a judgment. The fact that it is
entitled Order sustaining demurrer, and is referred to as
such in all parts of the record, is not conclusive. The real
character of a written instrument is to be judged by its
contents and substance, not by its title.
A judgment is the final determination of the rights of the
parties in an action or proceeding. C. S. 6826.
In dismissing the action with costs to defendants, this
instrument does finally determine the rights of the parties inthe particular action, and is therefore a judgment in
substance.
Swinehart v. Turner, 36 Idaho 450, 452, 211 P. 558, 559 (1922)
-
8/13/2019 Questionable Judgments 7.7.10
11/55
JudgmentsDefinitionForm.
Judgment as used in these rules includes adecree and any order from which an appeal lies. A
judgment shall not contain a recital of pleadings,
the report of a master, or the record of prior
proceedings.
I.R.C.P. 54(a) (1958)
-
8/13/2019 Questionable Judgments 7.7.10
12/55
Rule 54(b). Judgment upon multiple claims.
When more than one claim for relief is presentedin an action, whether as a claim, counterclaim, cross-
claim, or third party claim, the court may direct the entry of
a final judgment upon one or more but less than all of the
claims only upon an express determination that there is
no just reason for delay and upon an express direction forthe entry of the judgment. In the absense [sic] of such
determination and direction, any order or other form of
decision, however designated, which adjudicates less
than all the claims shall not terminate the actions as to
any of the claims, and the order or other form of decision
is subject to revision at any time before the entry of
judgment adjudicating all the claims.
I.R.C.P. 54(b) (1958).
-
8/13/2019 Questionable Judgments 7.7.10
13/55
Appellant also urges that under IRCP rule 58, the
opinion of the district judge or the findings of fact and
conclusions of law were sufficient to constitute a judgment,
and therefore appealable, and the appeal should be
retained and determined on its merits. We cannot agree
with this contention. Neither document purported to be a
judgment. The opinion contains only the reasoning of the
trial judge, and the authorities considered in arriving at hisdecision. The findings and conclusions are only what they
purport to be. They contain the conclusion of the court as to
the judgment to be entered. They are not in form [of] a
judgment, and contain no order for the execution of the
judgment of lien foreclosure therein directed to be entered.Hamblen v. Goff, 90 Idaho 810, 182, 409 P.2d 429, 430 (1965).
-
8/13/2019 Questionable Judgments 7.7.10
14/55
An appeal may be taken to the supreme court from a
district court in any civil action by such parties from such
orders and judgments, and within such times and in suchmanner as prescribed by rule of the supreme court.
I.C. 13-201 (1977)
-
8/13/2019 Questionable Judgments 7.7.10
15/55
An appeal as a matter of right may be taken to the Supreme
Court from the following judgments and orders:
(a) Civil Actions. From the following judgments and orders of a
district court in a civil action:
(1) Final judgments and decreesincluding decisions by the
district court on appeals from a magistrate, either affirmingor reversing or remanding.
(2) Judgments made pursuant to a partial summary judgment
certified by the trial court to be final as provided by Rule
54(b), I.R.C.P.
(3) An order granting or refusing a new trial.
(4) An order granting or denying a motion for judgment
notwithstanding the verdict.
(5)Any order made after final judgment.
I.A.R. 11 (1978).
-
8/13/2019 Questionable Judgments 7.7.10
16/55
Rule 14. Time for filing appeals. All appeals
permitted or authorized by these rules, except asprovided in Rule 12, shall be taken and made in the
manner and within the time limits as follows: (a)
Appeals From the District Court. Any appeal as a
matter of right from the district court may be made
only by physically filing a notice of appeal with theclerk of the district court within 42 days from the
date evidenced by the filing stamp of the clerk of
the court on any judgment or order of the district
court appealable as a matter of right in any civil orcriminal action.
-
8/13/2019 Questionable Judgments 7.7.10
17/55
This court's examination of a somewhat confused recordshows that the partial summary judgment was intended as a final
judgment. The partial summary judgment disposed of the substantive
issues, leaving for determination only the issue of attorneys fees and
costs of suit. It is significant that the partial summary judgment not
only determines that appellant is liable on the dishonored check and
establishes the amount of the damages, but it also calculates intereston the amount of the liability. If the court has truly granted a partial
summary judgment it would not have calculated interest until entry of a
subsequent final judgment. Furthermore, if the partial summary
judgment were only that, the court would not have granted a stay of
execution pending a ruling on the motion to reconsider the decision;
there can be no execution on a money judgment not yet final. Nor didrespondent act in any way inconsistent with the finality of the partial
summary judgment.
Idah-Best, Inc. v. First Sec. Bank of Idaho, N.A.,99 Idaho 517, 519-20,
584 P.2d 1242, 1244-45 (1978)
-
8/13/2019 Questionable Judgments 7.7.10
18/55
Rule 54(b). Judgment upon multiple claims or involving multiple
parties.When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third party
claim, or when multiple parties are involved, the court may direct
the entry of a final judgment upon one or more but less than all of
the claims or parties only upon an express determination that
there is no just reason for delay and upon an express directionfor the entry of the judgment. In the absence of such
determination and direction, any order or other form of decision,
however designated, which adjudicates less than all the claims
or the rights and liabilities of less than all the parties shall not
terminate the actions as to any of the claims or parties, and the
order or other form of decision is subject to revision at any timebefore the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
I.R.C.P. 58(a) (1978).
-
8/13/2019 Questionable Judgments 7.7.10
19/55
In the event the trial court determines that a judgment
should be certified as final under this Rule 54(b), thecourt shall execute a certificate which shall
immediately follow the court's signature on the
judgment and be in substantially the following form:
I.R.C.P. 54(b) (1979).
-
8/13/2019 Questionable Judgments 7.7.10
20/55
The placing of the clerks filing stamp on the
judgment constitutes the entry of the judgment.I.R.C.P. 58(a) (1981).
In 1980, Rule 79(b) was rescinded and replaced by Rule 31 of the Idaho
Court of Administrative Rules, which required that there be a register ofactions. Consequently, it became necessary to amend Rule 58(a) so that
the entry of judgment was not based upon a rule which no longer existed.
The amendment to I.R.C.P. 58(a) harmonized the civil rules with I.A.R. 14,
which uses this event as the trigger for the time to appeal.
-
8/13/2019 Questionable Judgments 7.7.10
21/55
An appeal as a matter of right may be taken to
the Supreme Court from the followingjudgments and orders:
(1)Final Judgments, orders and decrees which
are final, including orders of the district
court granting or denying preemptory writs
of mandate and prohibition.
I.A.R. 11(a)(1) (1991)
-
8/13/2019 Questionable Judgments 7.7.10
22/55
Immediately upon the entry of an order or judgment the clerk of the district court, or
magistrates division, shall serve a copy thereof, with the clerk's filing stamp thereonshowing the date of filing, by mail on every party affected thereby by mailing or
delivering to the attorney of record of each party, or if the party is not represented by
an attorney, by mailing to the party at the address designated by the prevailing party
as most likely to give notice to such party. The prevailing party, or other party
designated by the court to draft an order or judgment, shall provide and deliver to the
clerk sufficient copies for service upon all parties together with envelopes addressed
to each party, as provided above, with sufficient postage attached, unless otherwise
ordered by the court. The clerk shall make a note in the court records of the mailing.
I.R.C.P. 77 (d)
Any application for a default judgment must contain written certification of the name
of the party against whom the judgment is requested and the address most likely to
give the party notice of such default judgment, and the clerk shall use such
address in giving such party notice of judgment.
I.R.C.P. 55(b)(2)
-
8/13/2019 Questionable Judgments 7.7.10
23/55
Lack of notice of entry of an order or judgmentdoes not affect the time to appeal or to file apost-judgment motion, or relieve or authorize thecourt to relieve a party for failure to appeal or filea post-trial motion within the time allowed,except where there is no showing of mailing bythe clerk in the court records and the partyaffected thereby had no actual notice.
I.R.C.P. 77(d)
-
8/13/2019 Questionable Judgments 7.7.10
24/55
The trial court issued a Memorandum, Decision and Order. The trial court
stated that the findings and conclusion contained in the memorandum, decision andorder were in lieu of separate findings of fact and conclusions of law. The trial court
ended its memorandum, decision and order:
IT IS THEREFORE ORDERED that plaintiffs take nothing by their complaint and the
same is hereby dismissed.
IT IS FURTHER ORDERED that defendants have their costs necessarily incurred in this
action together with their attorneys fees reasonably incurred since July 18, 1989, in the
defense of this case.
DATED this 2nd day of August, 1990.
In this case, the trial court directed that all relief be denied to the City of Preston and
that the Baxters be awarded their costs and attorney fees. This constituted a specific
direction as to the judgment to be entered pursuant to I.R.C.P. 58(a). The placing of the
clerk's filing stamp on the judgment constituted the entry of the judgment.
City of Preston v. Baxter, 120 Idaho 418, 816 P.2d 975 (1991)
-
8/13/2019 Questionable Judgments 7.7.10
25/55
As in Baxter,there is no indication in the record that the clerk of the court served a copy of the
order, containing the clerk's filing stamp, on the plaintiff as required by I.R.C.P. 77(d). Nonetheless,
the record here shows that the plaintiff had actual notice of the entry of the dismissal order withinforty-two days of its filing, because, on April 10, 1990, in response to the defendants' memorandum
of costs and attorney fees, the plaintiff filed a motion to disallow the attorney fees, reciting that his
motion was based in part upon the pleadings and records in this action, including the order
granting defendants' motion for summary judgment.
Thompson v. Pike, 122 Idaho 702, 838 P.2d 305 (Ct. App. 1991)
-
8/13/2019 Questionable Judgments 7.7.10
26/55
Subject to the provisions of Rule 54(b): (1)
upon a general verdict of a jury, or upon adecision by the court that a party shall recover
only a sum certain or costs or that all relief shall
be denied, the court shall sign the judgment
and the clerk shall enter it; (2) upon a decision
by the court granting other relief, or upon aspecial verdict or a general verdict
accompanied by answers to interrogatories, the
court shall approve the form and sign the
judgment, and the clerk shall thereupon enter it.Every judgment shall be set forth on a separate
document.
I.R.C.P. 54(a) (1992)
-
8/13/2019 Questionable Judgments 7.7.10
27/55
Leaving two open questions:
(1)What is a judgment?
(2)What is the effect of a failure to enter the
judgment on a separate document?
-
8/13/2019 Questionable Judgments 7.7.10
28/55
[W] we must first decide whether the summary judgment in
this case constituted a final judgment subject to review by this Court.
Under Idaho Appellate Rule 11, only final judgments from the district
court are appealable. Therefore, a summary judgment resolving less
than all of the claims involved in the case is interlocutory and not
appealable unless certified pursuant to Idaho Rules of Civil
Procedure 54(b). In this case, Peacock filed an amended answer
and counterclaim which the Davises sought to have dismissed in
their motion for summary judgment. However, in reviewing thedistrict court's order entering judgment against Peacock, it does not
appear that the district court ever expressly dismissed or ruled on
Peacock's counterclaim. Therefore, there is a question as to whether
the judgment entered by the district court is truly final and
appealable.
Although the district court did not expressly dismiss orotherwise rule on Peacock's counterclaim, the summary judgment
entered is still final and appealable because there are no claims left
to be resolved with respect to that counterclaim.
Davis v. Peacock, 133 Idaho 637, 640-41, 991 P.2d 362, 365-66
(1999)
-
8/13/2019 Questionable Judgments 7.7.10
29/55
An appeal as a matter of right may be taken to
the Supreme Court from the following judgmentsand orders:
(1) Final Judgments, orders and decrees which
are final, including orders of the district court
granting or denying preemptory writs ofmandate and prohibition.
I.A.R. 11(a)(1) (1999)
-
8/13/2019 Questionable Judgments 7.7.10
30/55
Recent decisions struggling with
final judgment issues
Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 226 P.3d 1263
(2010) Goodman Oil Co. v. Scotty's Duro-Bilt Generator, Inc.,148 Idaho 588, 226 P.3d 530
(2010)
In re Doe, ___ P.3d ___, 2010 WL 1818444 (Ct.App. 2010)
Harrison v. Certain Underwriters at Lloyd's, London, ___ P.3d ___, 2010 WL
2136495 (2010)
-
8/13/2019 Questionable Judgments 7.7.10
31/55
The district court entered its order granting summary judgment. That order
stated:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there exists no
issue as to any material fact and that Defendant is entitled to judgment as a
matter of law.
NOW, THEREFORE, IT IS ORDERED that Defendant's Motion for Summary
Judgment against Plaintiff be, and it is, granted and that judgment will be
entered in favor of the Defendant Equitable Investment, LLC, and against thePlaintiff, Spokane Structures, Inc.
This order did not constitute a judgment. As we stated in In re
Universe Life Insurance Co., 144 Idaho 751, 756, 171 P.3d 242, 247 (2007),
An order granting summary judgment does not constitute a judgment.
***
The judgment sought is not an order granting a motion for
summary judgment.
Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 226 P.3d 1263
1265-66 (2010)
-
8/13/2019 Questionable Judgments 7.7.10
32/55
In order to clarify what a final judgment is, we restate: As a
general rule, a final judgment is an order or judgment that ends the
lawsuit, adjudicates the subject matter of the controversy, and representsa final determination of the rights of the parties. It must be a separate
document that on its face states the relief granted or denied. Although it
would be better practice to entitle the document Judgment in order to
avoid any confusion, the title is not determinative. Whether an instrument
is an appealable order or judgment must be determined by its content and
substance, and not by its title.
Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 226 P.3d 1263 1267
(2010)
-
8/13/2019 Questionable Judgments 7.7.10
33/55
Goodman Oil claims that the district court's April 2, 2007, order did not
trigger the forty-two day time limit because it was not a judgment and it was not
set forth in a separate document. In forming its argument, Goodman Oil reliesupon I.R.C.P. 58(a), which states: Every judgment shall be set forth on a separate
document. Goodman Oil also cites the Supreme Court Rules Committee's
explanation for the separate document requirement, which states that a separate
document is needed in order to eliminate confusion and so that all parties know
when the time for appeal has begun. In addition, Goodman Oil argues that I.R.C.P.
58(a) has been interpreted in Hunting v. Clark County School Dist.,129 Idaho 634,931 P.2d 628 (1997), Camp v. East Fork Ditch Co., Ltd.,137 Idaho 850, 55 P.3d
304 (2002), and In re Universe Life Ins. Co.,144 Idaho 751, 171 P.3d 242 (2007),
wherein this Court found that an order granting summary judgment was insufficient
to constitute a final judgment under I.R.C.P. 58(a) because it was not entitled
judgment and had not been entered in a separate document.
Goodman Oil Co. v. Scotty's Duro-Bilt Generator, Inc.,148 Idaho 588, 226 P.3d
530, 532-33 (2010).
-
8/13/2019 Questionable Judgments 7.7.10
34/55
This Court holds that the forty-two day period to
file a notice of appeal begins to run once an order isentered that resolves all issues, grants all relief to which
the prevailing party is entitled other than attorney fees
and costs, and brings an end to a lawsuit. It does not
matter whether the order is entitled, judgment, order, ordecree.
Goodman Oil Co. v. Scotty's Duro-Bilt Generator, Inc.,148 Idaho 588, 226
P.3d 530, 532-33 (2010).
-
8/13/2019 Questionable Judgments 7.7.10
35/55
On April 17, 2008, the Harrisons filed a motion to vacate
the arbitrator's award. On April 25, 2008, Lloyd's filed anapplication to confirm the award. On July 28, 2008, the district
court entered an order denying the motion to vacate the
arbitrator's award and confirming that award. On August 11,
2008, it entered what purports to be a judgment against H. Ray
Harrison and Julie Harrison in favor of Defendants. On
September 11, 2008, the Harrisons filed a notice of appeal fromthat purported judgment.
Harrison v. Certain Underwriters at Lloyd's, London, ___ P.3d
___, 2010 WL 2136495, *2 (2010)
-
8/13/2019 Questionable Judgments 7.7.10
36/55
Because the order confirming the arbitration award was appealable as a matter of
right, any appeal from that order could onlybe made by filing the notice of appeal within forty-
two days after the order was entered. In this case, the appeal was not filed within that forty-two
day period, and therefore there was not a timely appeal from that order. The timely filing of anotice of appeal is jurisdictional. Because the time for appealing from the order confirming the
arbitrator's award had expired, that order is not reviewable on an appeal from a later judgment
in this case.
Harrison v. Certain Underwriters at Lloyd's, London, ___ P.3d ___, 2010 WL
2136495, *4 (2010)
-
8/13/2019 Questionable Judgments 7.7.10
37/55
In the present case, the magistrate's November 18, 2009, decision clearly was not a final
judgment set forth on a separate document. It was, instead, a twenty-seven-pageexpression of the magistrate's findings of fact and conclusions of law and an announcement
of the court's decision to grant the Department's petition. Despite its title, this Order
Terminating Parental Rights of [Doe] did not purport to be the court's final determination, for
the order itself concluded with an instruction that the Petitioner is directed to prepare an
order consistent with this opinion.
In re Doe, ___ P.3d ___, 2010 WL 1818444, *3 (Ct.App. 2010)
-
8/13/2019 Questionable Judgments 7.7.10
38/55
The solution?
Amend the following rules:
I.R.C.P. 54(a)
I.R.C.P. 58(a)I.A.R. 11(a)
-
8/13/2019 Questionable Judgments 7.7.10
39/55
Rule 54(a). Judgments - Definition - Form.
"Judgment" as used in these rules means a
separate document entitled Judgment orDecree.
I.R.C.P. 54(a) (2010)
-
8/13/2019 Questionable Judgments 7.7.10
40/55
Rule 54(a). Judgments - Definition - Form. "Judgment" as used in
these rules means a separate document entitled Judgment or
Decree.A judgment shall state the relief to which aparty is entitled on one or more claims for relief in
the action. Such relief can include dismissal with
or without prejudice.
I.R.C.P. 54(a) (2010)
-
8/13/2019 Questionable Judgments 7.7.10
41/55
Rule 54(a). Judgments - Definition - Form. "Judgment" as used
in these rules means a separate document entitled Judgmentor Decree. A judgment shall state the relief to which a party is
entitled on one or more claims for relief in the action. Such
relief can include dismissal with or without prejudice.A
judgment shall not contain a recital of
pleadings, the report of a master, the record ofprior proceedings, courts legal reasoning,
findings of fact, or conclusions of law.
I.R.C.P. 54(a) (2010)
-
8/13/2019 Questionable Judgments 7.7.10
42/55
Rule 54(a). Judgments - Definition - Form. "Judgment" as used in
these rules means a separate document entitled Judgment or
Decree. A judgment shall state the relief to which a party is entitledon one or more claims for relief in the action. Such relief can include
dismissal with or without prejudice. A judgment shall not contain a
recital of pleadings, the report of a master, the record of prior
proceedings, courts legal reasoning, findings of fact, or conclusions
of law.A judgment is final if either it has been
certified as final pursuant to subsection (b)(1) of
this rule or judgment has been entered on all
claims for relief, except costs and fees, asserted by
or against all parties in the action.
I.R.C.P. 54(a) (2010)
-
8/13/2019 Questionable Judgments 7.7.10
43/55
Every judgment and amended
judgment shall be set forth on aseparate document as required in Rule
54(a).
I.R.C.P. 58(a)
-
8/13/2019 Questionable Judgments 7.7.10
44/55
An appeal as a matter of right may be taken to
the Supreme Court from the following
judgments and orders:
(a) Civil Actions. From the followingjudgments and orders of a district court in a
civil action:
(1) Final judgments, orders and decrees
which are final as defined in Rule 54(a) of theIdaho Rules of Civil Procedure, including
judgments orders of the district court granting
or denying peremptory writs of mandate and
prohibition.
-
8/13/2019 Questionable Judgments 7.7.10
45/55
WHAT THE COURT
MANAGED TO OVERLOOKJust appeals from the magistrate
division
-
8/13/2019 Questionable Judgments 7.7.10
46/55
Rule 83(a). Appeals from decisions of magistrates.An appeal
from any order granting or denying a petition for termination of
parental rights or granting or denying a petition for adoption must be
taken to the Supreme Court in accord with Idaho Appellate Rule
11.1. Otherwise, absent an order allowing a permissive appeal
pursuant to Idaho Appellate Rule 12.1, an appeal must first be taken
to the district judges division of the district court from any of the
following judgments, orders or decisions rendered by a magistrate:(1) A final judgment in a civil action or a special proceeding
commenced, or assigned to, the magistrate's division of the district
court. (2) Any of the orders, judgments or decrees in an action in the
magistrate's division which would be appealable from the district
court to the Supreme Court under Rule 11 of the Idaho Appellate
Rules.(3) Interlocutory orders by permissive appeal accepted by thedistrict court which shall be processed in the same manner as
provided by Rule 12 of the Idaho Appellate Rules. (4) Any order,
judgment or decree by a magistrate in a special proceeding in which
an appeal is provided by statute.
-
8/13/2019 Questionable Judgments 7.7.10
47/55
The proposed fix
Rule 83. Appeals(a) Appeals From Decisions of Magistrates.
An appeal from any order final judgment, as defined in Rule 54(a) of the Idaho Rules ofCivil Procedure,granting or denying a petition for termination of parental rights orgranting or denying a petition for adoption must be taken to the Supreme Court inaccord with Idaho Appellate Rule 11.1. Otherwise, absent an order allowing apermissive appeal pursuant to Idaho Appellate Rule 12.1, an appeal must first betaken to the district judges division of the district court from any of the following
judgments, orders or decisions rendered by a magistrate:
(1) A final judgment in a civil action or a special proceeding commenced, or assigned to,the magistrate's division of the district court.
(2) Any of the orders, judgments or orders decrees in an action in the magistrate'sdivision which would be appealable from the district court to the Supreme Court underRule 11 of the Idaho Appellate Rules.
(3) Domestic Violence Protection Orders issued pursuant to I.C. 39-6306.
(4 ) Interlocutory orders by permissive appeal accepted by the district court which shallbe processed in the same manner as provided by Rule 12 of the Idaho AppellateRules.
(5) Any order, judgment or decree by a magistrate in a special proceeding forwhich anappeal is provided by statute.
-
8/13/2019 Questionable Judgments 7.7.10
48/55
Rule 83(i) Stay During Appeal--Powers of Magistrate.
(1) Stay of Proceedings.The filing and perfection of an appeal to the district court shall
automatically stay the proceeding and execution of anyjudgment or orderappealed from
by the appellant for a period of fourteen (14) days. Any further stay shall be only by orderof the presiding magistrate or the district court.
-
8/13/2019 Questionable Judgments 7.7.10
49/55
-
8/13/2019 Questionable Judgments 7.7.10
50/55
OTHER CONCERNS OF THE
APPELLATE COURTS
-
8/13/2019 Questionable Judgments 7.7.10
51/55
When a party makes an oral or written request that a court take judicial
notice of records, exhibits or transcripts from the court file in the same or a separate
case, the party shall identify the specific documents or items for which the judicial
notice is requested or shall proffer to the court and serve on all parties copies of such
documents or items. A court shall take judicial notice if requested by a party and
supplied with the necessary information.
I.R.E. 201(d)
-
8/13/2019 Questionable Judgments 7.7.10
52/55
To the district court's credit in the present case, the court issued an opinion that
set forth the basis for dismissal of each of Kelly's claims in detail, with citations to
applicable authority and references to the evidence, or to omissions in the
evidence. Most of the present appellate challenge to the summary dismissal
order could have been prevented if the district court had presented this detailed
opinion as a noticeof intentto dismiss and allowed Kelly twenty days to
respond before the court entered its dismissal order. It would have entailed no
significant additional effort for the court and could have insulated the court's
order from attack on appeal on the basis of inadequate notice. Therefore, I
suggest that our district judges consider employing such a procedure.I would also point out to Kelly's counsel-and to all attorneys who represent post-
conviction petitioners-that when a post-conviction action has been dismissed
without adequate notice, rather than taking an immediate appeal it would
ordinarily be much more expedient for the petitioner to file a motion in the district
court for relief from the judgment under Idaho Rule of Civil Procedure 59(e).
Bringing the error to the district court's attention in this manner would give the
court an opportunity to take prompt corrective action and could eliminate the
need for, and the delay attending, an appeal. In this case, for example, Kelly
could have filed a Rule 59(e) motion pointing out that he had not received prior
notice of some of the grounds relied upon by the district court in its dismissal
order, and could have presented any additional evidence and legal argument that
he might deem appropriate to contest the grounds relied upon by the district
court.
Kelly v. State, --- P.3d ----, 2009 WL 973499, *9 (Ct. App. 2009)
S j d t
-
8/13/2019 Questionable Judgments 7.7.10
53/55
Summary judgment
Binary choicesone side wins, one side
loses on question of law and the losing
party has moved for summary judgment .
Make certain that you explicitly aredecision that the grant of summary
judgment is in favor of the non-moving
party.
-
8/13/2019 Questionable Judgments 7.7.10
54/55
Fi di f F t
-
8/13/2019 Questionable Judgments 7.7.10
55/55
Findings of Fact
Oral Findings of fact / Conclusions of Law
Narrative descriptions of testimony
presented by witnesses is okay, provided,
that you
Resolve the conflicting evidence