City of Pocatello v. Anderton, 14531

• Decision Date: 29 March 1984
• Docket Number: No. 14531,14531
• Citation: 106 Idaho 370,679 P.2d 647
• Parties: CITY OF POCATELLO, Plaintiff-Respondent, v. Cleve D. and Marilyn ANDERTON; the Lockhart Co.; Bannock County, a political subdivision of Idaho; and a tract of land more particularly described in the complaint, Defendants, and Bardell J. and Mae M. Anderton, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 647

679 P.2d 647

106 Idaho 370

CITY OF POCATELLO, Plaintiff-Respondent, v. Cleve D. and Marilyn ANDERTON; the Lockhart Co.; Bannock County, a political subdivision of Idaho; and a tract of land more particularly described in the complaint, Defendants and Bardell J. and Mae M. Anderton, Defendants-Appellants.

No. 14531.

Supreme Court of Idaho.

March 29, 1984.

[106 Idaho 371] James E. Harward, Pocatello, for defendants-appellants.

William L. Herrington, Moscow, for plaintiff-respondent.

HUNTLEY, Justice.

This appeal presents two issue for resolution: (1) whether the trial court erred in denying a request for jury trial which was made two years after the date of service of the last pleading directed to an issue triable by jury; and (2) whether condemnees in eminent domain proceedings are, in the circumstances presented, entitled to recover attorney fees as part of the costs reasonably incurred in determining the just compensation due them.

This appeal rose from the condemnation by the City of Pocatello of thirteen acres along the Portneuf River for parkland. A written offer of $11,250 was made to the Andertons, which they refused. The City filed a complaint in October, 1979, alleging the right of eminent domain and an answer was filed by the Andertons in December of the same year. Partial summary judgment condemning the land was subsequently granted the city, and the court ordered that the trial be limited to the determination of the amount of compensation due the Andertons.

A note of issue was filed by the City in December, 1980, wherein it was stated that a jury trial had been requested. The Andertons argue that this constituted a demand for a jury by the City. The City contends that the statement was made in error, and should have read that a jury trial was not requested, and that in any event the note of issue did not serve as a demand for a jury. In January, 1981, the Andertons filed a second answer to the original complaint. An amended complaint adding two new defendants was filed in June of 1981, and an answer thereto was filed in July 1981. The Andertons filed a pretrial memorandum on December 3, 1981, eight days before the commencement of trial. The court held that the right to a jury trial had been waived by the failure to make a timely demand therefor.

At trial the City continued to assert that its offer of $11,250 accurately reflected the value of the property. The Andertons presented evidence placing the value of the land at $65,000. The court awarded $22,425 to just compensation for the land plus $5,198.16 as interest from the date of filing. The court did not declare one party or the other the "prevailing party."

I

Rule 38(b) of the Idaho Rules of Civil Procedure provides that any party may demand a jury trial of an issue triable by jury, by making a demand therefor within ten days after the service of the final pleading directed to such an issue. Failure to make a timely demand constitutes waiver of the right. Meyer v. Whipple, 94 Idaho 260, 486 P.2d 271 (1971).

The final pleading directed to an issue triable by jury was the answer filed by the Andertons in December, 1979. The memorandum to the court regarding a jury was not filed until two years later. This "request" was made far beyond the ten day limit set forth in I.R.C.P. 38(b), and was therefore ineffective. ¹ The Andertons' contention that the second answer to the original complaint, filed in January 1981, is the last pleading directed to an issue, and that the first answer filed by them in December 1979 was merely an affidavit is fallacious. The first document was entitled "answer to summons and complaint" and contained a denial of the right of the city to condemn the land. It also raised defenses based on the United States Constitution. Following the rule of liberal construction of pleadings as required by I.R.C.P. 8(f), we hold that the contents of that document were sufficient to constitute a pleading directed to an issue within the intendment of Rule 38(b).

Although it is true that an amended or supplemental pleading which raises a new issue revives the right to demand a jury trial as to that new issue, State ex rel. Symms v. Thirteenth Judicial District, 91 Idaho 237, 419 P.2d 679 (1966), that rule is of no assistance to the Andertons here. No new issues were raised by any of the subsequent pleadings. The right to demand a jury trial expired in December 1979 and was not thereafter revived.

Notwithstanding the failure of a party to demand a jury in an action, the court in its discretion may order a trial by jury. I.R.C.P. 39(b). The appellants argue that the court abused its discretion by failing to do so. Since the matter has been entrusted to the discretion of the trial court, in the absence of proof of abuse of discretion, this court ordinarily will not intervene in the trial court decision. The appellants have given no reason for their failure to make a timely demand; moreover, the demand purportedly made occurred on the eve of the trial. Therefore, we find no abuse of discretion in denying the request.

The dissent argues that the Constitution specifically entrusted to the legislature's law-making power the right and obligation to pass a substantive law setting out the manner in which a constitutional right (here the right to jury trial) may be waived, but that this Court has usurped that legislative function, and denigrated the right by providing by a rule of procedure (I.R.C.P. 38(b)) that waiver of the right may occur by mere failure to assert it. This issue was considered by the court in R.E.W. Construction Co. v. District Court of the Third Judicial District, 88 Idaho 426, 400 P.2d 390 (1965), wherein we adopted the view of the Illinois Supreme Court when it held:

"While the right to a trial by jury is a constitutional guarantee Section 64 imposes regulations as to what must be done by a litigant to display his desire for a jury trial so as to insure the orderly presentation of the business of the court. This section has been held to be reasonable in its requirements, and constitutional. The provision is not intended to impose a burden on a person or to create a condition precedent of the enjoyment of a constitutional privilege, but merely establishes an orderly method for a party to a lawsuit to inform the court of his desire to have his case tried by a jury, as is his right. 88 Idaho at 441-42, 400 P.2d 390 (quoting Roszell v. Gniadek, 348 Ill.App. 341, 109 N.E.2d 222, 224 (1952)) (citations omitted).

We found no deprivation of the right to jury trial as guaranteed by Idaho Constitution, art. 1, § 7; the adoption of I.R.C.P. 38(b) was a proper exercise of the inherent rule making power of this court, and merely establishes the orderly procedure to be employed in determining whether a party has waived the right to trial by jury. Moreover, the validity of Rule 38(b) as a rule of procedure is implicitly recognized by the author of the dissent in footnote 2 thereof, where he quotes State v. Creech, I.C.R. 779 (1977):

"The word "procedural" as used by this Court in the foregoing cases [State v. Yoder, 96 Idaho 651 and R.E.W. Construction Co. v. District Court, 88 Idaho 426] means the procedure by which the Idaho courts conduct their business, not the substantive law which governs the case." (Emphasis in the original).

It is argued that from 1881-1975 the right to jury trial was governed by I.C. § 10-301 which provided that:

"Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions in the manner following:

1. By failing to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent, in open court, entered in the minutes.

The dissent asserts that in 1975 however, the legislature "obligingly allowed the Court to take over the field of court procedure," and that, at that point, the court made "a sweeping adoption of the F.R.C.P. [and] forsook the legislative requirement of a clearly expressed waiver in favor of providing that litigants would either alertly demand their right or lose it. I.R.C.P. 38." We note with interest that the effective date of I.R.C.P. 38 was November 1, 1958. I.R.C.P. 86. Therefore, not only was this rule of procedure in effect well before 1977, its constitutionality was ruled on as early as 1965, in light of the then effective I.C. § 10-301.

II

The determination of whether attorney fees are recoverable by the Andertons is governed by our recent holding in Ada County Highway Dist. v. Acarrequi, --- Idaho ---, 673 P.2d 1067 (1983). The question there presented was whether a property owner in eminent domain proceedings is absolutely entitled to reasonable attorney fees as part of the just compensation due under the United States and Idaho Constitutions. We held that the awarding of such fees, while not mandatory under the definition of just compensation, is within the discretion of the court.

"[A]n award of reasonable attorneys' fees to the condemnee in an eminent domain proceeding is a matter for the trial court's guided discretion and, as in other areas of the law, such award will be overturned only upon a showing of abuse." Id. at ---, 673 P.2d 1067.

[A]ttorneys' fees may be awarded to the condemnee without a showing and finding that the action was brought and pursued 'frivolously, unreasonably or without foundation.' " Id. at ---, 673 P.2d 1067.

The factors for the trial court to consider in exercising its discretion include those set forth in Acarrequi:

"Hence, we would deem that in considering the award of attorneys' fees to a condemnee, a condemnor should have reasonably made a timely offer of settlement of at least 90 per cent of the ultimate jury verdict. We also deem that an offer would not be timely if made on the courthouse steps an...