Bernard v. Roby
| Decision Date | 13 February 1987 |
| Docket Number | No. 16267,16267 |
| Citation | 733 P.2d 804,112 Idaho 583 |
| Parties | Shane BERNARD and Joyce Bernard, husband and wife, Plaintiffs-Respondents, v. Delbert ROBY and Jane Doe Roby, husband and wife, and the Marital Community Comprised Thereof, Defendants-Appellants. |
| Court | Idaho Court of Appeals |
Lance D. Churchill (argued) and Laurence M. Bogert, Churchill & Vanderboegh, Boise, for defendants-appellants.
Nicholas Chenoweth and Scott L. Wayman (argued), Orofino, for plaintiffs-respondents.
In an action to recover damages for trespass and conversion committed through an alleged unauthorized removal of timber, a magistrate entered judgment against the defendant, Delbert Roby. Roby appealed to the district court. A district judge dismissed Roby's appeal when Roby failed to provide a transcript of the proceedings in the magistrate division. Roby now appeals from the order of dismissal, contending the district court abused its discretion. We agree and hold that the district court erred by refusing to decide any issues on the appeal which could have been resolved without the use of a transcript. We reverse the order of dismissal and remand for further proceedings.
The case comes to us with the following background. Shane and Joyce Bernard, residents of California, owned a potential homesite in Lewis County, Idaho. Apparently, they were alerted by acquaintances in Idaho that someone was cutting timber on a portion of the property. Upon visiting the site they found that approximately two dozen trees of marketable size had been removed. After further investigation, they concluded that Delbert Roby had harvested the trees while logging neighboring property. They brought suit seeking damages for conversion, for statutory trespass pursuant to I.C. § 6-202 (), and for common-law trespass.
Roby, pro se, answered and counterclaimed. His counterclaim sounded in malicious prosecution. Roby moved for summary judgment. The court served notice on the parties, scheduling a pretrial conference, summary judgment hearing and trial all on the same date. When Roby appeared at the scheduled time, he objected to proceeding with the trial on the grounds that the notice he had received from the court was ambiguous. He contended that he had expected a pretrial conference and summary judgment hearing only, and was not prepared to present his full defense. He moved for a continuance. The magistrate found the notice proper and denied Roby's motion. The magistrate proceeded with the trial, sitting without a jury. Roby was able to present only those defense witnesses who were in attendance for the anticipated summary judgment hearing.
Following the trial, the magistrate found that Roby had "willfully and intentionally removed the trees" by trespass, but "the trespass was not a grossly negligent, wanton or reckless trespass." 1 The damage award included $5,000 for "the reduction of fair market value of the property with the trees removed," $872 for the "fair market value of the trees" (trebled to $2,616 pursuant to I.C. § 6-202), and $2,000 in attorney fees--for a total judgment of $9,616, plus costs. The cost award specifically included $665 for survey expenses.
Roby then retained counsel, and, pursuant to I.R.C.P. 83, appealed to the district court. He raised seven issues, contending: (1) that I.C. § 6-202 does not permit trebling of damages without a finding that the trespass was willful and intentional; (2) that the proof at trial showed other unknown parties to have been on the site and therefore the timber trespass damages should have been apportioned; (3) that the magistrate erred by holding the pretrial conference, summary-judgment motion hearing, and trial all on the same day; (4) that, as a result, Roby was not afforded a fair trial; (5) that the evidence presented at trial was insufficient to support the judgment; (6) that the award of costs and attorney fees was improper because Roby was not allowed a fair opportunity to present his case; and (7) that the award of survey costs was improper, because the survey was unnecessary.
Roby requested a trial de novo and a waiver of the appeal bond. Pursuant to I.R.C.P. 83(j), the district court found that the appeal involved "both questions of fact and questions of law," and determined that the appeal should not be heard as a trial de novo. The court found that a transcript was required for processing the appeal. The court ordered Roby to pay--within fourteen days--the estimated fee of $540 for preparation of the transcript. I.R.C.P. 83(j)(3)(C). Also, Roby was ordered to post $13,077.76 in security, to stay enforcement of the magistrate's judgment. I.R.C.P. 83(i); I.R.C.P. 62(a); I.A.R. 13(b)(14). Although Roby later was given an additional fourteen-day extension, he still did not pay the transcript fee or post a supersedeas bond. Consequently, the Bernards moved to dismiss the appeal for failure to diligently prosecute, failure to pay transcript costs and failure to obey the court's order to post security. The district court granted the motion, finding that no good cause was shown for Roby's failure to make the necessary payments.
On this appeal, Roby attacks both the dismissal by the district court and the underlying judgment entered by the magistrate. Also, as part of his challenge to the dismissal order, Roby contends the district court erred in determining that there should not be a trial de novo and in deciding that a transcript was necessary. The Bernards argue that this appeal should be limited to a review of the propriety of the district court's action in dismissing the appeal. For reasons discussed below, we agree that this appeal should be limited to the dismissal order only, and that the merits of the review of the magistrate's judgment--which the district judge did not reach--should be decided in the first instance by the district court.
We first address the district court's decision to order a transcript and not to hear the appeal as a trial de novo. Idaho civil procedure rule 83(j)(2) provides four means by which a district judge may process an appeal from the magistrate division: (1) if the appeal involves questions of law alone, an appeal may be determined without ordering a transcript and without ordering a trial de novo; (2) the appeal may be determined by listening to recordings of the proceedings; (3) a transcript of the trial or proceedings before the magistrate may be ordered; or (4) the appeal may be heard as a trial de novo. Roby has presented no compelling reason for a trial de novo, aside from his contention that he was denied a fair trial in the magistrate division. This bare assertion does not mandate hearing the appeal as a trial de novo. The choice is committed to the sound discretion of the district judge. We find no error in the district court's conclusion not to allow a trial de novo.
Neither do we find an error in the court's decision to order preparation of a transcript. Roby's notice of appeal from the magistrate's judgment clearly included issues requiring a review of the trial record. The district judge had the choice of either listening to recordings or of ordering a transcript. Whether for convenience or other purposes, the district judge ordered a transcript. This choice was within the district court's discretion. We are not persuaded the court abused its discretion in that regard. 2
We now turn to the principal question on appeal: may a district court dismiss an appeal when issues of both law and fact are presented and the appellant refuses to pay transcript fees? We have had occasion to address this issue before. In State ex rel. Goodwin v. Valentine, 107 Idaho 1033, 695 P.2d 418 (Ct.App.1985), we were presented with a comparable dismissal of an appeal from the magistrate division, for refusal to pay transcript fees in the district court. There, as here, the appeal was taken upon issues of both law and of fact. The district court determined a transcript was necessary and dismissed the appeal when the appellant refused to pay for the cost of the transcript. We held that the district court did not abuse its discretion in dismissing the appeal. We stated:
The record shows the transcript is needed in order to review at least some of the issues Valentine raised in his initial appeal.
Valentine's refusal to pay the fee for the transcript subjected his appeal to dismissal at the district court's discretion.
The Bernards assert that Goodwin permits dismissal of an appeal by the district court whenever the appellant fails to comply with an order to pay transcript fees. Their interpretation is overly broad. The holding in Goodwin must be viewed in context. That case involved the collection of child support. As a defense to the action, and as an excuse for not paying for a transcript on appeal, the appellant asserted a "vow of poverty" grounded in his inability to possess lawful money of the United States, which he determined to consist only of gold and silver coins. We held that his position was "frivolous" in the face of numerous decisions holding federal reserve notes to be legal tender and lawful money. Goodwin is distinguishable from the instant case on the sole ground that the legal issue there was frivolous on its face, warranting a summary dismissal. Here,--as we point out in subpart B, infra--Roby raised issues of law that facially appear to warrant consideration on their merits. We believe those issues should not be extinguished by dismissal for lack of a transcript if a transcript is not essential to deciding them. We therefore will examine the issue in this case, in light of its distinction from Goodwin.
The dismissal will not be overturned on appeal unless the discretion granted the district court by I.R.C.P. 83(e) clearly appears to have been exercised unwisely and to have been manifestly abused. State ex rel. Goodwin v. Valentine, supra....
To continue reading
Request your trial
-
Golay v. Loomis
...or otherwise impractical to pay the cost of the transcript, the appellant should have the option Bernard v. Roby, 112 Idaho 583, 588-89, 733 P.2d 804, 809-90 (Ct.App.1987) (footnotes omitted). From Stirm v. Puckett, 107 Idaho 1046, 695 P.2d 431 [118 Idaho 396] of proceeding on the merits of......
-
Abbott v. Blades, Docket No. 34892 (Idaho App. 8/10/2009)
...instant appeal because the transcripts are not needed where the issues raised involve solely questions of law. See Bernard v. Roby, 112 Idaho 583, 733 P.2d 804 (Ct. App. 1987) (The decision to dismiss the appeal when the transcripts are not provided was an abuse of discretion where the appe......
-
Reynolds v. Lunders
...a transcript may preclude a review of any issue which depends upon such a transcript for resolution. Bernard v. Roby, 112 Idaho 583, 587 n.3, 733 P.2d 804, 808 n.3 (Ct. App. 1987). Neither the stipulation to enter into the amended order nor the September 2012 hearing transcript upon which R......
-
Gerstner v. Washington Water Power Co.
...323, 715 P.2d 993 (1986) (Bistline, J., concurring specially); Neal v. Harris, 100 Idaho 348, 597 P.2d 234 (1979); Bernard v. Roby, 112 Idaho 583, 733 P.2d 804 (Ct.App.1987); Johnson v. Pioneer Title Co. of Ada County, 104 Idaho 727, 662 P.2d 1171 In addition to the general admonition of I.......