QUESTIONABLE JUDGMENT Final judgments and other concerns from

QUESTIONABLE JUDGMENT? Final judgments and other concerns from the appellate courts July 7, 2010

Two questions of significance: (1)What is a judgment? (2)(2) When does the time for appeal begin to run?

ANCIENT HISTORY Treatment of judgments prior to 1977

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; but the legislature shall provide a proper system of appeals…. Art. V, § 13, Idaho Constitution

“[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 be taken. ” Weiser v. Middle Valley Irr. Ditch Co. , 28 Idaho 548, 552, 155 P. 484, 485 (1916)

“Under the statutes and constitution of this state, appeals can only be taken from judgments that are final, or those from which appeals are specifically provided for. ” Blaine Co. Nat’l Bank v. Jones, 45 Idaho 358, 361, 262 P. 509 (1927)

“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 ” I. C. § 10 -701 (repealed effective March 31, 1975)

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 action or 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.

“[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).

“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 in the particular action, and is therefore a judgment in substance. ” Swinehart v. Turner, 36 Idaho 450, 452, 211 P. 558, 559 (1922)

Judgments – Definition – Form. “Judgment” as used in these rules includes a decree 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)

Rule 54(b). Judgment upon multiple claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, 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 for the 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).

“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 his decision. 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. 2 d 429, 430 (1965).

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 such manner as prescribed by rule of the supreme court. I. C. § 13 -201 (1977)

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 decrees including decisions by the district court on appeals from a magistrate, either affirming or 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).

Rule 14. Time for filing appeals. All appeals permitted or authorized by these rules, except as provided 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 the clerk 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 or criminal action.

This court's examination of a somewhat confused record shows 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 interest on 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 did respondent 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. 2 d 1242, 1244 -45 (1978)

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 direction for 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 time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. I. R. C. P. 58(a) (1978).

In the event the trial court determines that a judgment should be certified as final under this Rule 54(b), the court 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).

The placing of the clerk’s 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 of actions. ” 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.

An appeal as a matter of right may be taken to the Supreme Court from the following judgments 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. (2) I. A. R. 11(a)(1) (1991)

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 thereon showing 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)

“Lack of notice of entry of an order or judgment does not affect the time to appeal or to file a post -judgment motion, or relieve or authorize the court to relieve a party for failure to appeal or file a post-trial motion within the time allowed, except where there is no showing of mailing by the clerk in the court records and the party affected thereby had no actual notice. ” I. R. C. P. 77(d)

The trial court issued a “Memorandum, Decision and Order. ” “The trial court stated that the findings and conclusion contained in the memorandum, decision and order 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 2 nd 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. 2 d 975 (1991)

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 within forty-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. 2 d 305 (Ct. App. 1991)

Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision 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 a special 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)

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?

“[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 the district 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 or otherwise 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. 2 d 362, 365 -66 (1999)

An appeal as a matter of right may be taken to the Supreme Court from the following judgments 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) (1999)

Recent decisions struggling with final judgment issues • • Spokane Structures, Inc. v. Equitable Inv. , LLC, 148 Idaho 616, 226 P. 3 d 1263 (2010) Goodman Oil Co. v. Scotty's Duro-Bilt Generator, Inc. , 148 Idaho 588, 226 P. 3 d 530 (2010) In re Doe, ___ P. 3 d ___, 2010 WL 1818444 (Ct. App. 2010) Harrison v. Certain Underwriters at Lloyd's, London, ___ P. 3 d ___, 2010 WL 2136495 (2010)

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 the Plaintiff, 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. 3 d 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. 3 d 1263 1265 -66 (2010)

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 represents a 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. 3 d 1263 1267 (2010)

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 relies upon 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. 2 d 628 (1997), Camp v. East Fork Ditch Co. , Ltd. , 137 Idaho 850, 55 P. 3 d 304 (2002), and In re Universe Life Ins. Co. , 144 Idaho 751, 171 P. 3 d 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. 3 d 530, 532 -33 (2010).

This Court holds that the forty-two day period to file a notice of appeal begins to run once an order is entered 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, or decree. Goodman Oil Co. v. Scotty's Duro-Bilt Generator, Inc. , 148 Idaho 588, 226 P. 3 d 530, 532 -33 (2010).

On April 17, 2008, the Harrisons filed a motion to vacate the arbitrator's award. On April 25, 2008, Lloyd's filed an application 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 from that purported judgment. Harrison v. Certain Underwriters at Lloyd's, London, ___ P. 3 d ___, 2010 WL 2136495, *2 (2010)

Because the order confirming the arbitration award was appealable as a matter of right, any appeal from that order could only be made by filing the notice of appeal within fortytwo 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 a notice 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. 3 d ___, 2010 WL 2136495, *4 (2010)

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-page expression 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. 3 d ___, 2010 WL 1818444, *3 (Ct. App. 2010)

The solution? Amend the following rules: I. R. C. P. 54(a) I. R. C. P. 58(a) I. A. R. 11(a)

Rule 54(a). Judgments - Definition - Form. "Judgment" as used in these rules means a separate document entitled Judgment or Decree. I. R. C. P. 54(a) (2010)

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 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)

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 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 of prior proceedings, courts legal reasoning, findings of fact, or conclusions of law. I. R. C. P. 54(a) (2010)

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 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 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)

Every judgment and amended judgment shall be set forth on a separate document as required in Rule 54(a). I. R. C. P. 58(a)

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, orders and decrees which are final as defined in Rule 54(a) of the Idaho Rules of Civil Procedure, including judgments orders of the district court granting or denying peremptory writs of mandate and prohibition.

WHAT THE COURT MANAGED TO OVERLOOK Just appeals from the magistrate division

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 the district 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.

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 of Civil Procedure, 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 orders 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) Domestic Violence Protection Orders issued pursuant to I. C. § 39 -6306. (4 ) Interlocutory orders by permissive appeal accepted by the district court which shall be processed in the same manner as provided by Rule 12 of the Idaho Appellate Rules. (5) Any order, judgment or decree by a magistrate in a special proceeding for which an appeal is provided by statute.

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 any judgment or order appealed from by the appellant for a period of fourteen (14) days. Any further stay shall be only by order of the presiding magistrate or the district court.

CAO forms: 4 forms in the family law area that would be final appealable orders and that need to be changed to use the word “judgment” instead of order. Until the forms are changed a judge would simply need to strike the word “order” and write in “judgment. ”

OTHER CONCERNS OF THE APPELLATE COURTS

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)

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 notice of intent to 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 postconviction 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. 3 d ----, 2009 WL 973499, *9 (Ct. App. 2009)

Summary judgment • Binary choices – one side wins, one side loses on question of law and the losing party has moved for summary judgment. • Make certain that you explicitly are decision that the grant of summary judgment is in favor of the non-moving party.

Standards governing summary judgment for non-moving party • The party against whom the judgment will be entered must be given adequate advance notice and an opportunity to demonstrate why summary judgment should not be entered. • The trial court may not decide an issue not raised in the moving party's motion for summary judgment. Harwood v. Talbert, 136 Idaho 672, 677 -78, 39 P. 3 d 612, 61718 (2001)

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