Idaho Supreme Court Update: Grace at Twin Falls, LLC v. Jeppesen

The facts. An assisted living facility partnered with a preferred pharmacy to offset software costs related to the tracking and delivery of residents’ prescription medications. The facility charged residents an extra $10 each month if they did not choose the preferred pharmacy. The lower court held that the arrangement violated the Idaho Residential Care or Assisted Living Act, which guarantees residents the “right to select the pharmacy or pharmacist of their choice.” The facility appealed.

The issues. Two issues were on appeal: (1) whether the Idaho Residential Care or Assisted Living Act prohibits the facility from charging residents $10 more per month if they did not select the preferred pharmacy, and (2) whether either party could recover attorney’s fees.

The result. In a unanimous decision, the Court held that the $10 per month surcharge violated the “plan and unambiguous” text of the Idaho Residential Care or Assisted Living Act. As for attorney’s fees, the Court considered the request for fees under Idaho Code § 12-117(1) because the case involved “as adverse parties a state agency or a political subdivision and a person.” Under that statute, the Court must award attorney’s fees if it finds “that the nonprevailing party acted without a reasonable basis in fact or law.” The Idaho Department of Health and Welfare cited Rangen, Inc. v. Idaho Department of Water Resources, 159 Idaho 798 (2016), to argue that it was entitled to fees because the facility relied on the same arguments asserted below without adding new or persuasive authority. The Court declined to award fees, holding that after the Department filed its brief, the Court abrogated the Rangen standard in 3G AG LLC v. Idaho Department of Water Resources, 170 Idaho 251 (2022).

Practice Pointers.

  1. If your client is adverse to a state agency or political subdivision, don’t forget about attorney’s fees. The prevailing party is entitled to fees if the nonprevailing party acts without a reasonable basis in fact or law, which presents either an additional benefit or risk. 
  2. Stick by your guns if you think you have a reasonable argument that the trial court rejected. After 3G AG LLC v. Idaho Department of Water Resources, 170 Idaho 251 (2022), an appellant does not act unreasonably under Idaho Code § 12-117 simply because it repeats on appeal a reasonable argument that was rejected below.

Idaho Supreme Court Update: Sheehan v. Sun Valley Company

The facts. The Idaho Department of Labor found that Nathaniel Sheehan was ineligible for unemployment insurance benefits and ordered him to repay benefits that he had received. During Sheehan’s initial protest, the Department advised Sheehan that it would email updates to him, but the Department instead mailed a notice of telephonic hearing to Sheehan’s P.O. box. The Department dismissed Sheehan’s protest after he failed to appear at the hearing, and Sheehan’s subsequent appeals were dismissed as he continued to miss filing deadlines.

The issues. The issue on appeal was whether the Idaho Industrial Commission properly declined to consider Sheehan’s untimely appeals.

The result. The Idaho Supreme Court unanimously affirmed the decision below. The Court recognized that “Sheehan presents a poignant story rife with compelling circumstances” and expressed “concern” about “the conflicting communications by IDOL.” The Court noted that it could dismiss the appeal for failure to comply with Idaho Appellate Rule 35(a)(6) because Sheehan’s brief “offer[ed] no legal authority or any cogent argument.” But even looking past those shortcomings, the Court held that the Industrial Commission did not abuse its discretion because Sheehan “persistently missed other filing deadlines” that had no connection to the Department’s miscommunications about whether it would email or mail updates on Sheehan’s original protest.

Practice Pointers.

  1.  It is critical to adhere to deadlines to file a notice of appeal. Even if a litigant has “a poignant story rife with compelling circumstances,” the Court will dismiss an untimely appeal.
  2.  Appellate briefing is extremely important—don’t wait for oral argument to present your legal arguments. Idaho Appellate Rule 35(a)(6) requires an appellant’s opening brief to “contain the contentions of the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the transcript and record relied upon.” The Court can dismiss an appeal if the opening brief fails to adequately present the appellant’s legal arguments. The Court recently raised a similar point in Gray v. Gray.

Idaho Supreme Court Update: Gray v. Gray

The facts. Mom and Dad were married, had a child, and divorced. As part of the divorce, the parties reached a visitation arrangement that gave Mom primary custody of the child and Dad visitation. Mom later relocated to Costa Rica with the child. Mom made the decision to relocate unilaterally, without informing Dad and without leave of court. Dad moved to modify the custody arrangement. After shifting the burden to Mom, the magistrate court granted the motion and required Mom to return the child to the United States. Mom appealed.

The issues. Mom raised three main errors on appeal: (1) the magistrate court applied the wrong burden of proof; (2) the magistrate court abused its discretion in concluding the modification of custody was in the child’s best interests; and (3) the burden of proof violated due process.

The result. The Idaho Supreme Court affirmed and denied Dad’s request for attorney fees on appeal under Idaho Code § 12-121.

Practice Pointers.

  1. The Court included a lengthy discussion on the burden of proof in custody modification cases, addressing its history and the burden-shifting framework created by Roberts v. Roberts, 138 Idaho 401, 64 P.3d 327 (2003). Ultimately the Court held that Roberts’ burden-shifting analysis applied because Mom frustrated the custody arrangement to such a degree that violated the arrangement.
  2. The Court refused to consider Mom’s due process argument, which was raised for the first time in her reply brief. An assignment of error is deemed waived if there is no argument contained in the appellant’s brief. The same is true when it is raised for the first time in the appellant’s reply brief.
  3. Even though Mom’s appeal merely second-guessed the magistrate court’s findings, the Court denied Dad attorney fees on appeal under Idaho Code § 12-121. The Court reasoned that the case raised a unique question of law concerning the burden of proof in a discrete category of cases and that the appeal materially advanced the law.

Idaho Supreme Court Update: Carver v. Hornish

The facts. A father allegedly consented to a sham marriage for his minor daughter to evade the magistrate court’s jurisdiction over a custody dispute with his ex-wife. The mother requested expedited relief to stop the sham marriage, but the magistrate court did not enter an order stopping the father from consenting to the marriage until after the marriage had occurred. The mother asked the magistrate court to apply its order retroactively and nullify the marriage, but the magistrate court declined to do so, finding that the marriage would be voidable—not void ab initio. The mother appealed.

The issues. Two issues were on appeal: (1) whether the doctrine of nunc pro tunc allowed the magistrate court to apply retroactively an order granting an emergency motion that it did not see until eight days after the motion was filed, and (2) whether an Idaho law allowing only one parent to consent to the marriage of a minor child is constitutional.

The result. In a 3-2 decision, the Idaho Supreme Court affirmed. The Court declined to address the merits of the nunc pro tunc issue because even if the order applied retroactively, the marriage would be voidable—not void ab initio. Thus, the magistrate court would still lack jurisdiction overt the custody proceedings. The Court also declined to decide whether an Idaho law permitting only one parent to consent to a minor child’s marriage is unconstitutional because the mother presented a “cursory” argument in her opening brief and her attorney “did not provide any substantive response to the Court’s questions on the issue during oral arguments.”

Practice Pointers.

  1. Even in cases with extreme fact patterns like the alleged sham marriage of a minor child, the Court will strictly apply preservation rules—even more so if an appellant fails to provide substantive arguments in its opening brief and at oral argument.
  2. An appellant must remember to request relief that will change the outcome below. The Court declined to address the nunc pro tunc argument because the magistrate court would still lack jurisdiction even if the mother’s argument was correct.
  3. Unless a judge instructs otherwise, it is a best practice to submit to chambers courtesy copies of time-sensitive filings. This appeal may have been avoided if counsel had sent a courtesy copy of the motion requesting that the magistrate court stop the father from consenting to the marriage.

In Reversal, Minnesota Supreme Court Finds State Law Does Not Preempt Proposed City Charter Amendment On Municipal Waste Collection System

In Jennissen v. City of Bloomington, 913 N.W.2d 456 (2018), the Minnesota Supreme Court recently held that Minn. Stat. § 115A.94 (2016) does not preempt local ordinances concerning municipal waste collection systems, finding that the Legislature did not intend to occupy the field but instead left room for supplemental municipal regulation.  In reversing decisions by the Hennepin County District Court and the Minnesota Court of Appeals, the Minnesota Supreme Court specifically found that Minn. Stat. § 115A.94 does not preempt Bloomington residents’ passage of a charter amendment that would prevent the City of Bloomington from implementing an organized waste collection ordinance without prior voter approval. On remand, the Court of Appeals held that the residents’ proposed charter amendment was an improper referendum.  The Minnesota Supreme Court granted review on January 15, 2019. Continue Reading

Minnesota Supreme Court Clarifies The Disproportionate Forfeiture Doctrine

The Minnesota Supreme Court recently clarified the application of the doctrine against disproportionate forfeiture under Minnesota contract law in Capistrant v. Lifetouch Nat’l Sch. Studios, Inc., 916 N.W.2d 23 (Minn. 2018).  Minnesota courts (and other jurisdictions) have long relied on the disproportionate forfeiture doctrine as a way to prevent inequitable penalties in contracts, although the doctrine is not uniformly interpreted.  In Capistrant, while the court confronted the specific question of “whether a former employee’s delay in returning his employer’s property excuses the employer from paying a commission otherwise due to the employee,” its interpretation of the disproportionate forfeiture doctrine may have wider application.

Factual background

Capistrant worked as a photography and sales representative for Lifetouch, a photography services company that contracts with schools and other organizations.  After he retired, Capistrant filed this action seeking to recover unpaid commissions based on his employment contract.  The parties entered that contract in 1986, when Capistrant managed certain territory for Lifetouch and was compensated entirely with commissions, including “residual commissions” owed after his employment with Lifetouch ended.  The contract also contained a term by which Lifetouch could terminate its obligation to make any unpaid payments of residual commissions to Capistrant if “at any time” Capistrant “breached” certain provisions.  Included among those provisions was a “restriction against competition” wherein Capistrant was required, in one part, to “immediately deliver to Lifetouch all of Lifetouch’s property” at the end of his employment.  The Minnesota Supreme Court referred to this as the “return-of-property” clause.

During the discovery period, Capistrant revealed that he had retained a large number of Lifetouch’s proprietary documents in violation of the return-of-property clause.  Capistrant quickly returned the documents to Lifetouch and its forensic expert determined Capistrant had not disseminated the documents to outside sources.  Regardless, Lifetouch argued Capistrant’s failure to comply with the return-of-property clause excused it from paying him residual commissions.  Continue Reading

Trespass To Noncommercial Trees: No Effect On The Land’s Market Value? Then No Timber Trespass Claim, Says The Oregon Court Of Appeals

In Harshbarger v. Klamath County, No. A163379, the Oregon Court of Appeals addresses timber trespass claims involving noncommercial, ornamental trees.  In such cases, the court holds, the plaintiff must prove either (1) that damage to the trees diminished the market value of the real property, or (2) that the effect on the property’s value cannot be determined.  According to the court, if the evidence shows that the land’s market value is not affected, then the plaintiff cannot substitute evidence of the value of the trees or costs related to the trespass.  The timber trespass claim simply fails.

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Oregon Supreme Court Allows Appeal from Voluntary Dismissal with Prejudice

In Gist v. Zoan Management, No. S064925, the Oregon Supreme Court clarifies the circumstances under which a party can appeal from a judgment of voluntary dismissal.  More than 50 years ago, the Oregon Supreme Court held that “a party may not appeal from a judgment which he voluntarily requested.” Steenson v. Robinson, 236 Or 414, 416-17 (1963).  Now, in Gist, the court announces that the Steenson rule does not apply if the judgment was a voluntary dismissal with prejudice.

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Can an Orthodontist Tell the Oregon Board of Dentistry to Go Fly a Kite? Not Under ORS 679.170(6)

Angle v Board of Dentistry, No. A162472, decided by the Oregon Court of Appeals on October 17, 2018, is a statutory interpretation case about nonresponsive responses.

ORS 679.170(6) provides that no person shall “fail to respond” to a written request from the Board of Dentistry for information.  Does a “nonresponsive” reply count as a failure to respond?  In this case, the Oregon Court of Appeals decides that just saying something is not sufficient to comply with ORS 679.170(6).  Instead, responses must be responsive.  According to the court, telling the board to go fly a kite or writing a letter about the history of Rome will not pass muster.  However, a “curt and not overly helpful” response may work.

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Oregon Court of Appeals Questions Trial Court’s Authority to Dismiss Case as Sanction for Prelitigation Spoliation

Markstrom v Guard Publishing Co., No. A163317, decided by the Oregon Court of Appeals on October 10, 2018, is about the prelitigation destruction of evidence.  The plaintiff, as an employee of the defendant, had been reprimanded and placed on a performance improvement plan, and she had submitted a notice of grievance through her union.  Then, while out on a pregnancy-related medical leave, she deleted emails on her work account, against her supervisor’s instructions.  She also destroyed text messages between her and her union representative.  Ultimately, the plaintiff was fired, and she sued her former employer.  The trial court, relying on ORCP 46 D and its inherent authority, dismissed her case as a sanction for her intentional prelitigation destruction of evidence.  But the Oregon Court of Appeals reversed that dismissal.  In addition to questioning whether the trial court even had any discretion to dismiss for prelitigation spoliation, the Court of Appeals held that the trial court here had failed to sufficiently consider the effect of the plaintiff’s conduct in the context of the case as a whole.     Continue Reading