Syth v. Parke , 121 Idaho 162 ( 1991 )

BISTLINE, Justice

concurs in the opinion of Justice BOYLE, and now dissents to the majority opinion based on the content of his earlier opinion filed May 23,1991,121 Idaho 156, 823 P.2d 760 which is not withdrawn and to which is added the following:

The Chief Justice, in authoring the majority opinion, has drawn on the vast knowledge of prior cases which he has accumulated in twenty years on the Supreme Court bench, and produced the one case which seemingly fills the bill for eradicating the efforts—as well as the result—of a district judge who entertained doubts as to his initial ruling serious enough that he wished to reconsider the respective arguments of the parties.

The prior Idaho case which best suited the view that the district court erred in reconsidering an order which he had just entered granting the defendants a new trial was Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923). During my tenure on the court, Spivey has been cited only three times. In Clark v. Ada County Bd. of Comm’rs, 98 Idaho 749, 572 P.2d 501 (1977), Spivey was cited but not relied upon in regard to any issue presented in the instant case. The reported opinion clearly suggests that the issue there was the validity of a minute entry which did not bear the court’s signatures.

Spivey was next cited in Iverson v. Gordon Farming Co., 103 Idaho 527, 650 P.2d 669 (1982), in the concurring opinion of Bistline, J., which did not gain one vote. The last and most recent citation of Spivey was in Hamilton v. Rybar, 111 Idaho 396, 724 P.2d 132 (1986), wherein a four-one majority, per Shepard, J., determined as follows:

As demonstrated by the above set forth chronology, Hamilton’s motion for a new trial was filed within ten days of the entry of judgment and hence was a timely motion which terminated the 42-day period of time within which to appeal. The motion for new trial was denied by order dated September 10, 1985, which reinstated the 42-day period within which an appeal should have been filed. The motion for reconsideration was not filed within ten days of the order denying the motion for new trial, and was filed approximately 90 days after the entry of judgment.

As this Court has observed in the past, the Idaho Rules of Civil Procedure do not provide for a petition to reconsider. Nevertheless, such a motion has been treated as a motion to alter or amend judgment pursuant to I.R.C.P. 59(e). Obray v. Mitchell, 98 Idaho 533, 567 P.2d 1284 (1977).

Even assuming that Hamilton’s motion to reconsider the court’s denial of the motion for reconsideration could be considered by the court as a motion to alter or amend the judgment under Rule 59(e), the motion was untimely since not filed within the ten days specified by I.R.C.P. 59(e). ‘Since the motion was not filed within ten days of entry of judgment, the court had no power to grant the requested relief____ The motion was properly denied.’ Wheeler v. MacIntyre, 100 Idaho 286, 596 P.2d 798 (1979). See also Spivey v. District Court, 37 Idaho 774, 219 Pac. 203 (1923); Turner v. Evers, 726 F.2d 112 (3d Cir.1984); American Sec. Bank v. Harrison Realty, 670 F.2d 317 (D.C.App.1982).

We hold, therefore, that the portion of this cause purporting to be an appeal from the judgment or from the denial of the motion for new trial is hereby dismissed as being untimely filed. As to that portion seeking to appeal from the denial of the motion for reconsideration since even if it be considered as a motion to alter or amend the judgment, the motion was not timely filed.

Hamilton, 111 Idaho at 397, 724 P.2d at 133 (emphasis added).

The salient portions of the Bistline, J., dissenting opinion were:

The question here which the majority avoids can be stated thusly: Can a procedural practice of longstanding and regular utilization become a part of the law?

Here, without answering that question, the majority also avoids any confrontation with the singular fact that the custom was indulged by both of the parties. It is true, as the majority asserts, that plaintiff Connie Hamilton’s motion for reconsideration was not filed within ten days after the entry of the order denying her motion for new trial. What is equally true, however, and unmentioned by the majority, is that a hearing was had on the motion for reconsideration, where appearances were made on behalf of defendant David Rybar, counsel present being Terry R. McDaniel of Brady & McDaniel, and on behalf of Connie Hamilton by Byron K. Meredith for Byron K. Meredith and Wm. J. Brauner. The court, the Honorable W.E. Smith, District Judge, took the motion under advisement and on October 21, 1985 filed a written decision wherein he considered the applicability of McDonald v. Safeway Stores, Inc., 109 Idaho 305, 707 P.2d 416 (1985), which opinion had not been released when the motion for new trial was first considered and denied.

The Court has been furnished with a transcript of the argument which was presented by Mr. Meredith and Mr. McDaniel at that hearing. Of extreme significance, counsel for Mr. Rybar did not file any written objection to the timeliness of the motion for reconsideration and at the hearing counsel for Mr. Rybar did not raise any question as to the timeliness of the motion. What Mr. McDaniel argued to Judge Smith was that the McDonald case was distinguishable and therefore inapplicable. When counsel had been fully heard from, Judge Smith stated: ‘All right, I’ll take another look at it and will give you a decision in due course.’

I would venture that in at least one out of three cases that comes before this Court the record will contain one or more motions for reconsideration. As just one ready example, Green v. Bannock Paving, 111 Idaho 3, 720 P.2d 186 (1986), there was such a motion. The procedure is very much a part of our Idaho practice, and with today’s opinion the practice will continue. And it seems to have served a good purpose. In the last year there were two cases where the district judge on reconsideration completely reversed his earlier decision.

One such case is Kleiber v. City of Idaho Falls, 110 Idaho 501, 716 P.2d 1273 (1986). In Kleiber, defendant filed a motion for summary judgment, which was denied by the district court on January 10, 1984. On January 12, 1984, defendant filed a motion for reconsideration, which read as follows:

COMES NOW the above-entitled Defendant, by and through its counsel of record, pursuant to Rule 56 of the Idaho Rules of Civil Procedure, and move this Court to reconsider its Memorandum Decision and Order entered as regards Plaintiffs prior Motion for Summary Judgment in this matter, and to reconsider Defendant’s Motion for Summary Judgment.

On February 8, 1984, defendant filed a memorandum in support of its motion to reconsider, which it later supplemented on February 27, 1984. On June 15, 1984, the district judge changed his mind and reversed his prior January 10, 1984 ruling. He stated:

This matter is again before the Court at the request of the parties for reconsideration of the decision offered in the prior Memorandum Decision.

Hamilton, 111 Idaho at 397-400, 724 P.2d at 133-36 (Bistline, J., dissenting) (emphasis added).

That Spivey is inappropriately applied by the majority as a purported basis for its opinion today is further buttressed by devoting five minutes to the final two pages of the opinion at 37 Idaho at 780-81, 219 P. at 204-05. Such a reading exercise brings forth the indelible conclusion that “then was then,” and “now is now.” In “then” times, the Spivey court held that:

Under Const., art. 5, sec. 13, the legislature may regulate by law the method of procedure in the district courts. The granting of a new trial is regulated by C.S., secs. 6890 and 6891. Notice of intention to move for a new trial must be given within ten days after the verdict or after notice of the decision of the court. (C.S., sec. 6890.) The application for a new trial should be heard at the earliest practicable time after notice of the motion if it is to be heard upon the minutes of the court, and in other cases after the affidavits are filed. (C.S., sec. 6891.) C.S., sec. 6893, also gives the court the power to grant a new trial on its own motion in certain contingencies, but it is not contended that this section has any application, and manifestly it cannot have, for reasons given in Merchants’ Protective Assn. v. Jacobson, 33 Ida. 387, 195 Pac. 89 [ (1921) ]. This is a plain case of a district judge permitting the motion for a new trial to be renewed and reversing his former order. We conclude that it was not the intent of the legislature that this should be done. On the contrary, the clear intent of our statutes is that an order either granting or denying a new trial is final and the only remedy is by appeal.

Spivey, 37 Idaho at 780-81, 219 P. at 204-05.

The court’s procedures as of more recent times, i.e. “now,” many years since Spivey, are not based on statutes, but fall under the court’s own self-promulgated Rules of Civil Procedure. Such being the actual current state of affairs, the Spivey decision has no bearing whatever on the instant case, and is but a matter of historical significance.

As noted in the majority opinion of 121 Idaho 156, 823 P.2d 760 (1991), the Chief Justice wrote that “[tjhere is no exception in Rule 13(b) granting the district court power to entertain its own motion to reconsider an order.” To that proposition, a ready response is that “there is no provision in Rule 13(b) prohibiting the district court from entertaining its own motion to reconsider an order granting a new trial.” At one time or another, some member of this Court has written to caution, admonish, or remind the Court as a whole why and wherefore there are rules: “These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action and proceeding.” I.R.C.P. 1(a). First and foremost of these three goals, and so it should be, is achieving JUSTICE. For reasons stated by Justice Boyle, the system will operate more efficiently, more fairly, and will avoid unjust results by eschewing inclinations to reverse district courts by the overly technical applications of the Court’s rules.

The majority, by a squeamishly narrow margin of a 3-2 vote, is bent on such technical application. The determination to do so is presumably based on curtailing the authority of the district courts. Yet it is the responsibility of those courts to preside over trials, and upon them also is the additional obligation to rule on post-verdict, post-judgment motions in order to ascertain whether justice has been achieved, and if not, then to take such action as will ensure that justice is done. In that regard, the Supreme Court’s function is that of second-guessing. In a proper case, and in the interests of justice, this Court intervenes. Be that as it may, this appeal does not present such a scenario, and instead will be viewed as the putting down of a district court which sought only to reconsider the validity of its decision granting a motion for a new trial. Moreover, the majority’s ratio decedendi in so doing illustrates it is oblivious to what it is doing—i.e., instructing the district courts that they need not be overly concerned as to the correctness of any given determination or conclusion. Otherwise put, “District Judges, with all deliberate haste, rule when called upon to do so, but from then on, fret not—because this Court will in due time (and with considerable expense to litigants) come forth with the correct answers.” On previous occasions, I have observed a truism which flows from over forty years of experience as an advocate and as an appellate jurist: It is the attorneys involved who will best know and understand the controversy. Second to the attorneys is the trial judge, and third, the appellate courts.

It is beyond cavil that this Court has recognized previous motions to suspend appeals, and has entered orders accordingly. One such order was entered in this case. It is in poor grace for the majority to single out this particular case as an opportune time for retromingently ruling otherwise. The majority acts unbecomingly in its ipse dixit that this Court’s order of November 13, 1989, suspending the appeal, did not give leave to the district court to on its own motion reconsider its earlier decision on defendant’s motion for a new trial.

The majority also talks in tongues, i.e., “the order issued by the Clerk of the Court ...” Each and every member of the Court received a copy of that order of 13 November, 1989. To a man, each of us acquiesced in it. Of substantial significance, the order recited “[n]o objection was filed by Respondents”; and based upon that predicate, the order continued, “therefore good cause appearing, IT IS HEREBY ORDERED that the MOTION TO SUSPEND THE APPEAL be, and hereby is, GRANTED.” That was the order of this Court.

It comes far too late in the day for those who comprise today’s majority, who now apparently see things differently, to not accept full responsibility for their inaction upon learning that this Court was suspending the appeal. Each and every one of us at all times had immediate access to the moving papers which clearly illustrated that the declared purpose of the stay was to allow the district court time in which to reach a decision as to whether there would or would not be a change in the earlier decision. The defendants-respondents indulged in that procedure. Five members of this Court indulged likewise.

The Clerk of the Court was completely within the bounds of this Court’s directives in issuing the order, there being no objection by the defendants, who inferentially were as interested as the plaintiffs in providing the district judge with adequate time to reach a determination which was fully satisfactory to the judicial intelligence and conscience. The readers who are to any extent acquainted with counsel for the parties know they are of such caliber and competence that it cannot be doubted that both sides to the controversy would have honored a request from the district court to present a stipulation putting the case on hold so as to give the court a further opportunity to reflect upon the granting or denying of a motion for a new trial.