Objections to Attorney Fees Must Be Particular to Avoid Waiving Issue On Appeal

The Idaho Supreme Court recently instructed that to preserve issues regarding the reasonableness of attorney fee awards for appeal, objections must be stated with particularity in a motion to disallow costs. In Fagen, Inc. v. Rogerson Flats Wind Park, LLC, 2016 Opinion No. 8 (Jan. 26, 2016), following judgment, the plaintiff filed a memorandum of costs seeking $99,452 in attorney fees. The plaintiff sought attorney fees incurred by both its Minnesota and Idaho counsel. The defendants objected, arguing the fees were unreasonable, but failed to raise specific objections to the fee request.  On that basis, the district court awarded the plaintiff the full amount of fees requested.

On appeal, the defendants argued that the district court erred by concluding that the rates of Minnesota counsel, which were vastly higher than rural Idaho market rates, were reasonable. The Supreme Court refused to consider the issue, explaining:

The appropriate manner in which to object to the attorney fees claimed in a memorandum of costs is to file and serve timely on adverse parties “a motion to disallow part or all of such costs.” I.R.C.P. 54(e)(6), 54(d)(6). A motion must “state with particularity the grounds therefor.” I.R.C.P. 7(b)(1).

Slip op. at 4. Here, defendants’ objection did not specifically address the reasonableness of Minnesota counsel’s hourly rate. Without this specific objection, the Supreme Court concluded that defendants were raising the issue for the first time on appeal and would not consider it.

You can read the full opinion here: http://www.isc.idaho.gov/opinions/42684.pdf

The Idaho Supreme Court proposes amendments to Idaho Appellate Rule 5, Special Writs and Proceedings

Idaho Appellate Rule 5 sets forth procedures for special writs and other proceedings over which the Idaho Supreme Court has original jurisdiction. The Court recently proposed adding five new subsections to the rule.  The amendments address the form of the Court’s denial of a petition for a writ of mandamus or prohibition or issuance of a peremptory writ (proposed subsection (e)) and procedures for a prevailing party to seek costs (proposed subsections (f)-(i)).  Of particular note, proposed subsection (g) lists 11 categories of costs, one of which is reasonable attorney fees.  Look for the amendments to be issued later in 2016.

Idaho Supreme Court Is Bound by the U.S. Supreme Court’s Interpretations of Federal Law

Yesterday, the United States Supreme Court in a per curiam decision, reversed the Idaho Supreme Court’s decision on an award of attorney fees under 42 U.S.C. § 1988. In the case of James v. City of Boise, 158 Idaho 713, 351 P.3d 1171 (2015), the Idaho Supreme Court granted attorney fees to the City of Boise without an analysis of whether the Plaintiff’s action was frivolous, unreasonable, or without foundation, as is mandated by the U.S. Supreme Court’s interpretation of 42 U.S.C. § 1988 in Hughes v. Rowe, 449 U.S. 5 (1980).  See James, 158 Idaho at 734, 351 P.3d at 1192. The Idaho Supreme Court concluded  it had discretion to award attorney fees without this analysis because while “the [U.S.] Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute.” Id.

The U.S. Supreme Court reversed, explaining: “Section 1988 is a federal statute. ‘It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.’” James v. City of Boise, 577 U.S. ___, 2016 WL 280883 (2016) (citations omitted). “The Idaho Supreme Court, like any other state or federal court, is bound by this Court’s interpretation of federal law.” Id.

You can read the full opinion here: http://www.supremecourt.gov/opinions/15pdf/15-493_5h26.pdf. We wrote about the Idaho Supreme Court’s decision in James in May 2015.

The Idaho Supreme Court and Court of Appeals Announce Their Spring Terms for 2016

The Idaho Supreme Court and Idaho Court of Appeals announced their respective 2016 Spring Terms in the January 2016 edition of The Advocate.  Of note, the Supreme Court does not have hearings scheduled in March and will travel to Coeur d’Alene and Lewiston in April, to Idaho Falls and Pocatello in May, and to Twin Falls in June.  The Court of Appeals scheduled hearings in Boise through June.  The terms look like this:

Idaho Supreme Court Regular Spring Term for 2016

Boise ………………………………………………………………………………… January 11, 13, 15, 19, 22

Boise   ……………………………………………………………………………………  February 8, 10, 12, 17

Boise (Concordia Univ. School of Law) …………………………………………   February 19

Boise ……………………………………………………………………………………..  April 1, 4

Coeur d’Alene …………………………………………………………………………. April 6, 7

Lewiston   ……………………………………………………………………………….  April 8

Boise ……………………………………………………………………………………… May 9, 11

Idaho Falls ……………………………………………………………………………… May 4

Pocatello   ………………………………………………………………………………  May 5, 6

Boise ……………………………………………………………………………………… June 1, 3, 6

Twin Falls ………………………………………………………………………………. June 8, 9

Idaho Court of Appeals Regular Spring Term for 2016

Boise ……………………………………………………………………………………… January 7, 12, 14, 28

Boise ……………………………………………………………………………………… February 9, 11, 16, 18

Boise ……………………………………………………………………………………… March 8, 10, 15, 17

Boise ……………………………………………………………………………………… April 5, 12, 19, 21

Boise ……………………………………………………………………………………… May 10, 17, 19, 24

Boise ……………………………………………………………………………………… June 7, 9, 14, 16

Changes to the Idaho Appellate Rules effective January 1, 2016

Amendments to Idaho Appellate Rules 11, 11.1, 17, 28, 30, 34.1 and 118 went into effect January 1, 2016. Here is an overview of the amendments:

I.A.R. 11. Appealable judgments and orders. The rule now requires a copy of the final judgment or order to be attached to the notice of appeal.

I.A.R. 11.1. Appealable judgments from the magistrate court. When an appeal is taken from the magistrate court, a copy of the final judgment must also be attached to the notice of appeal.

I.A.R. 17. Notice of appeal – content. Again, a copy of the final judgment or order must be attached to the notice of appeal.  Note that the suggested form of the notice of appeal includes this language:  “A copy of the judgment or order being appealed is attached to this notice, as well as a copy of the final judgment if this is an appeal from an order entered after final judgment.”

I.A.R. 28. Preparation of clerk’s or agency’s record – content and arrangement. For administrative proceedings, the standard clerk’s record now includes the findings of fact and conclusions of law made by a referee or a hearing officer.

I.A.R. 30. Augmentation or deletions from transcript or record. The current rule requires motions to augment to include as attachments the documents sought to be augmented.  The amendment requires each page of each document to be separately and sequentially numbered.

I.A.R. 34.1. Electronic briefs. In criminal appeals, the parties may choose to file only an electronic brief.  In civil appeals, the rule remains the same:  the parties may file an electronic brief but still must file paper copies of the brief as required under I.A.R. 34.

I.A.R. 118. Petition for review by the Supreme Court. A party aggrieved by an opinion or order of the Court of Appeals may petition for review by the Supreme Court.  The amendment simply breaks out the briefing procedures for petitions for review into a stand-alone subsection.

The Idaho Supreme Court Just Awarded Your Client Attorney Fees on Appeal; Don’t Forget to Timely File a Memorandum of Costs

Two recent cases before the Idaho Supreme Court highlight the procedure—and the importance of following the procedure—for securing an award of attorney fees on appeal.

The first case is City of Challis v. Consent of the Governed Caucus, 2015 Opinion No. 92 (Sept. 25, 2015). There, the Court awarded attorney fees and costs to the Caucus. In doing so, the Court clarified that it was the Supreme Court’s duty, not the duty of the district court, “to determine an appropriate award of fees and costs incurred on appeal . . . .” The Court explained: “In the event that the Caucus timely submits a memorandum of costs and fees” under I.A.R. 40(c) and 41(d), the Court is responsible for evaluating “that memorandum, and any objections thereto, to determine an appropriate award of attorney fees and costs.” (Emphasis added.) Pursuant to the Idaho Appellate Rules, a timely submission means that a memorandum for costs and attorney fees is filed “[w]ithin 14 days of the filing and announcement of the opinion on appeal.” See I.A.R. 40(c), 41(d).

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Notes from ‘An Appellate Practice CLE’ – Part 2: motions for an extension of time, motions for an overlength brief, avoiding delays in appeals, cross-appeals, and more

In a post earlier this week, I relayed notes and practice pointers on Idaho appellate practice gathered from An Appellate Practice CLE, held on October 9, 2015. Here are some additional notes from the CLE:

  • First motions for an extension of time to file a brief are granted 99.99% of the time. Typically, extensions are limited to 28 days.
  • For expedited appeals, such as appeals in family law cases brought under Idaho Appellate Rules 11.1 and 12.1, extensions of time to file a brief are usually not granted. See I.A.R. 12.2(e).
  • Briefs before the Idaho Supreme Court and Court of Appeals are limited to 50 pages; the front and back covers, the table of contents, and table of authorities are included in that page count. See I.A.R. 34(a). Motions for an overlength brief seeking between 51 and 60 pages are typically granted by the Clerks’ office. Motions seeking more than 60 pages are addressed by the Idaho Supreme Court.
  • If the Idaho Supreme Court grants a permissive appeal under Idaho Appellate Rule 12, the party seeking to appeal must still file a notice of appeal in the district court.

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An award of attorney fees under Idaho Code § 12-120(3) may be proper in an action for declaratory or injunctive relief

Must a party seek to “recover” on a commercial transaction before attorney fees are allowed under Idaho Code § 12-120(3)? Stated differently, does an action for declaratory or injunctive relief preclude attorney fees under the statute? The Idaho Supreme Court addressed those questions in Idaho Transportation Department v. Ascorp, Inc., 2015 Opinion No. 94 (Sept. 25, 2015). The case concerned an action for declaratory judgment filed by the Idaho Transportation Department (ITD) to determine rights under a highway construction contract. The district court granted Ascorp’s motion to dismiss and awarded it attorney fees under Idaho Code § 12-120(3). ITD appealed, and the Court affirmed.

Idaho Code § 12-120(3) allows an award of attorney fees “[i]n any civil action to recover on an open account, account stated, note, bill negotiable instrument, guaranty, or contract relating to the purchase or sale of goods wares, merchandise or services and in any commercial transaction ….” ITD argued that its declaratory judgment action did not qualify as a dispute involving a commercial transaction because the action sought declaratory relief, not to “recover” on a commercial transaction. The Court rejected the argument: “The plain language of Idaho Code section 12-120(3) referencing ‘and in any commercial transaction’ does not require the element of recovery or collection of a debt. An action for interpretation or enforcement of provisions of a commercial transaction relationship or declaration of rights therein falls within the statute.”

The Court also found Ascorp was entitled to attorney fees on appeal under section 12-120(3). According to the Court: “When a party prevails at both trial and on appeal, and that party received an award of attorney fees under Idaho Code section 12-120(3) at the trial level and the award is affirmed on appeal, that party is also entitled to an award of attorney fees for the appeal pursuant to Idaho Code section 12-120(3).”

The Idaho Supreme Court and Court of Appeals announce oral argument calendars for October and November

The Idaho Supreme Court and Court of Appeals announced their oral argument calendars for the 2015 Fall Term. Official notice was published in the October edition of The Advocate. Case summaries can be found here for the Idaho Supreme Court and here for the Idaho Court of Appeals.

Idaho Supreme Court Oral Argument Calendar

October
There are no oral arguments scheduled in October for the Idaho Supreme Court.

Monday, November 2, 2015 – BOISE
8:50 a.m.         Chadwick v. Multi-State Electric …………………………………………………..#42473
10:00 a.m.    Severson v. State………………………………………………………………………..#42830
11:10 a.m.    Easterling v. Kendall, M.D……………………………………………………………#42158

Wednesday, November 4, 2015 – TWIN FALLS (Twin Falls County Courthouse)
8:50 a.m.      Humphries v. Becker…………………………………………………………………..#41897
10:00 a.m.    Lepper v. Eastern Idaho Health Services…………..…..………..……………….#42004
11:10 a.m.    Mitchell v. State…………………………………………………………………………#41882

Thursday, November 5, 2015 – TWIN FALLS (Twin Falls County Courthouse)
8:50 a.m.      Samples v. Hanson……………………………………………………………………..#41869
10:00 a.m.    Bank of NY Mellon v. Evans…………………………………………………………#42633
11:10 a.m.    Houpt v. Wells Fargo Bank…………………………………………………………..#41990

Friday, November 6, 2015 – TWIN FALLS (Twin Falls County Courthouse)
8:50 a.m.      State v. Razo-Chavez………………………………………………………………….#42398
10:00 a.m.    State v. McIntosh………………………………………………………………………#41910

Tuesday, November 10, 2015 – BOISE
8:50 a.m.      Countrywide Home Loans v. Sheets……………………………………………….#42063
10:00 a.m.    Rich v. State……………………………………………………………………………..#42515
11:10 a.m.    Huber v. Lightforce USA………………………………………………………………#41887

Idaho Court of Appeals Oral Argument Calendar

Tuesday, October 27, 2015 – BOISE
9:00 a.m.      Hymas v. Meridian Police Department……………………………………………#42626
10:30 a.m.       State v. Van Komen…………………………………………………………………….#41916
1:30 p.m.      State v. Jimenez…………………………………………………………………………#42098

Thursday, November 12, 2015 – BOISE
9:00 a.m.      State v. Harbison ……………………………………………………………………….#42689

Thursday, November 19, 2015 – BOISE
10:30 a.m.    State v. Ostler……………………………………………………………………………#42335

Tuesday, November 24, 2015 – BOISE
9:00 a.m.      State v. Bischoff…………………………………………………………………………#42574
10:30 a.m.    State v. Mercado…………..……………………………………………………………#42436

Notes from An ‘Appellate Practice CLE’ – Part 1: electronic filing, average times for disposition of civil appeals, amended judgments, and more

On October 9, 2015, the Idaho Appellate Practice Section (IAPS) and the University of Idaho College of Law hosted An Appellate Practice CLE in Boise, Idaho. Steve Kenyon, the Clerk of the Idaho Supreme Court and Court of Appeals, spoke on a variety of matters concerning appeals before Idaho’s highest courts. Here are some updates, reminders, and other points of interest:

  • The Idaho Supreme Court is still working with a vendor on an electronic appellate filing system. The date of the launch is still in flux.
  • Until the new system is operational, there is no electronic filing with the Idaho Supreme Court and Court of Appeals. There are three exceptions, however. The Courts will accept the following documents via email: (1) an electronic brief pursuant to Idaho Appellate Rule 34.1 (an electronic brief is in addition to paper copies of the brief); (2) correspondence, such as oral argument notices; and (3) first motions for an extension of time to file a brief.
  • The average time from notice of appeal to a decision in civil cases before the Idaho Supreme Court is 465 days. For the Idaho Court of Appeals, the average time is 380 days. According to Steve Kenyon, those times stay remarkably consistent.
  • The average time from notice of appeal to oral argument before the Idaho Supreme Court is 12 months. The quickest time to oral argument is nine months.

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