questionable judgments 7.7.10

8/13/2019 Questionable Judgments 7.7.10

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QUESTIONABLE

JUDGMENT?

Final judgments and other concerns

from the appellate courts

July 7, 2010


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Two questions of significance:(1)What is a judgment?

(2) When does the time for appeal

begin to run?


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ANCIENT HISTORY

Treatment of judgments prior to

1977


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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


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[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)


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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)


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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I.C. 10-701 (repealed effective March 31,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)


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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.


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[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).


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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)


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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)


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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).


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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).


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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)


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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).


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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.


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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)


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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).


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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).


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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.


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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)


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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)


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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)


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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)


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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)


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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)


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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?


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[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)


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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)


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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)


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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)


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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)


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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).


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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).


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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)


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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)


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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)


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The solution?

Amend the following rules:

I.R.C.P. 54(a)

I.R.C.P. 58(a)I.A.R. 11(a)


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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)


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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)


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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)


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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)


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Every judgment and amended

judgment shall be set forth on aseparate document as required in Rule

54(a).

I.R.C.P. 58(a)


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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.


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WHAT THE COURT

MANAGED TO OVERLOOKJust appeals from the magistrate

division


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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.


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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.


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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.


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OTHER CONCERNS OF THE

APPELLATE COURTS


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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)


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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


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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.


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Fi di f F t


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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

questionable judgments 7.7.10

Documents