Doe, Matter of, 21833
| Decision Date | 09 February 1996 |
| Docket Number | No. 21833,21833 |
| Citation | 911 P.2d 140,128 Idaho 144 |
| Parties | In the Matter of the Petition to Terminate the Parent/Child Relationship of John DOE I and Jane Doe III, and In the Matter of the Application of John Doe II and Jane Doe II, husband and wife, to Adopt Jane Doe III, and In the Matter of Jane Doe I, Deceased. John DOE I, Petitioner-Appellant, v. John DOE II and Jane Doe II, Respondents. |
| Court | Idaho Court of Appeals |
Kenneth O. Kreis, Boise, for appellant.
M. Karl Shurtliff, Boise, for respondents.
By this appeal we are asked to determine whether an order that disposes of only one action among three related actions that have been consolidated in the trial court constitutes a final judgment in the absence of an I.R.C.P. 54(b) certification. We hold that it does not. Accordingly, we conclude that a memorandum of costs and fees filed more than fourteen days after such an order, but before entry of the judgment that fully resolved the remaining issues in the consolidated cases, was not untimely under I.R.C.P. 54(d)(5).
Appellant John Doe I is the natural father of a minor child, Jane Doe III. John Doe I and the child's mother, Jane Doe I, were divorced in June 1982, with the mother being awarded primary physical custody of the child. Following the divorce, Jane Doe III and her mother resided for extended periods with Jane Doe I's natural mother and step-father, Jane Doe II and John Doe II. In June 1991, Jane Doe I was killed in an automobile accident. Shortly thereafter, John Doe I reopened proceedings in the divorce case to obtain an order for custody of his daughter. The maternal grandparents, Jane Doe II and John Doe II, immediately thereafter filed an action to terminate the father's parental rights and to adopt their granddaughter. In addition, the grandparents filed a separate petition for permanent guardianship of the child. Thus, three separate actions pertaining to custody and parental rights were simultaneously pending before the magistrate court.
By order of September 17, 1992, the magistrate consolidated the three cases pursuant to I.R.C.P. 42(a). 1 After having ordered consolidation, however, the magistrate conducted an initial trial on the petition for termination of John Doe I's parental rights. Following that trial, the magistrate entered a Memorandum Decision and Order dated November 6, 1992, denying that petition in its entirety. In the memorandum decision, the magistrate made findings that John Doe I had maintained contact with his daughter since the divorce and had exercised visitation periodically and that there existed a warm and mutually beneficial relationship between father and daughter. The magistrate held that the grandparents had fallen far short of proving conditions warranting termination of parental rights under I.C. § 16-2005, and expressed the view that the action to terminate John Doe I's parental rights was frivolous and may have been motivated by a desire of the grandparents, who are substantially more affluent than John Doe I, to drive John Doe I away from his daughter by making it financially impossible for him to continue the litigation. The memorandum opinion then directed counsel for John Doe I to "prepare an Order and Judgment consistent with this decision."
In response to this directive, John Doe I's attorney prepared a document entitled "Order Denying Termination of Parental Rights and Adoption Petitions Filed by Petitioners." The magistrate made certain changes and interlineations that are not relevant here, and entered this order on December 3, 1992. The order not only specified that the petition to terminate the parent-child relationship "is hereby denied in all respects," but also included an order for a status conference to "determine the procedure for the disposition Following entry of the December 3, 1992 order, proceedings continued with respect to the issues of custody and guardianship raised in the other actions that had been consolidated with the action for termination of parental rights. On May 6, 1993, John Doe I filed a Memorandum of Costs, Disbursements and Attorney Fees by which he requested an award of costs and fees theretofore incurred in the litigation. This included a request, pursuant to I.C. § 12-121 and I.R.C.P. 54(e)(1), for fees associated with the defense of the grandparents' petition for termination of John Doe I's parental rights. The magistrate denied this request for costs and fees on the ground that it was untimely. The magistrate viewed the December 3, 1992, order to be a final judgment on the petition for termination of parental rights and held that John Doe I's memorandum of costs and fees was untimely because it was not filed within fourteen days from entry of that judgment as required by I.R.C.P. 54(d)(5). 3
[128 Idaho 146] of all remaining issues in this consolidated case, including the future custody and visitation rights of the respective parties to the minor child." Neither the magistrate's memorandum decision nor the December 3, 1992, order included an I.R.C.P. Rule 54(b) certification that the trial court had determined there was "no just reason for delay" and deemed the decision to be "a final judgment upon which ... an appeal may be taken." 2
A judgment resolving all remaining issues in the consolidated cases was entered on May 31, 1994. John Doe I filed a timely appeal to the district court. By the appeal he challenged only the magistrate's denial of the May 6, 1993, request for costs and attorney fees. The district court affirmed the magistrate's determination that John Doe I's memorandum of costs and fees did not comply with the time requirements of I.R.C.P. 54(d)(5). John Doe I now pursues this issue on further appeal to this Court.
The question thus presented is whether a decision, order, judgment or decree however denominated, that concludes only one of two or more consolidated actions, constitutes a "judgment" to which the time limit of I.R.C.P. 54(d)(5) will attach. This is an issue of law, and we therefore exercise free review. See Kawai Farms, Inc., v. Longstreet, 121 Idaho 610, 613, 826 P.2d 1322, 1325 (1992); Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818 (Ct.App.1989). In so doing, we give due consideration, but do not defer, to the intermediate appellate decision of the district court. Matter of Baby Boy Doe, 123 Idaho 464, 468-69, 849 P.2d 925, 929-30 (1993), cert. denied, 510 U.S.-860, 114 S.Ct. 173, 126 L.Ed.2d 133 (1993); Swope v. Swope, 122 Idaho 296, 298, 834 P.2d 298, 300 (1992).
The term "judgment," as used in the Idaho Rules of Civil Procedure, is defined in Rule 54(a) to include "a decree and any order from which an appeal lies." This definition is of little aid in discerning whether an order constitutes a final judgment based upon its content. The definition does, however, establish that any decision deemed to be a final judgment for purposes of timely presentation of a cost bill under Rule 54(d)(5) will also be a judgment that is subject to immediate appeal. Hence, the question as to the timeliness of John Doe I's memorandum of costs and fees ought not be addressed without considering the ramifications that our determination of this issue will have for appellate practice in consolidated cases. We think it appropriate, therefore, to approach the issue presented in the instant case from the standpoint of whether the December 3, 1992, order should be deemed an appealable judgment.
In determining the appealability of an interim judgment in consolidated cases, other jurisdictions have developed three different approaches. Several jurisdictions are of the view that consolidated cases remain separate actions so that a judgment entirely resolving one action will be appealable without a Rule 54(b) certification. This view is represented by Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir.1982); In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 442 (1st Cir.1972); and Litvin v. Engesether, 67 Or.App. 240, 678 P.2d 1232 (1984). Others apply a case-by-case approach in determining whether a Rule 54(b) certification is a prerequisite to an appeal. In those courts, the decision turns upon such factors as the extent and purpose of the consolidation, the relationship of the consolidated actions, the severability of the issues appealed, whether the cases could have been filed as a single action in the first place, and the potential harm to the appellant's interests if the appeal is delayed. See Bergman v. City of Atlantic City, 860 F.2d 560 (3d Cir.1988); Ivanov-McPhee v. Washington Nat'l Ins. Co., 719 F.2d 927, 930 (7th Cir.1983); Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir.1982). A third group of jurisdictions permit appeal from a judgment disposing of less than all of the consolidated claims only if a Rule 54(b) certification has been entered by the trial court. See Trinity Broadcasting Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987), cert. denied 487 U.S. 1223, 108 S.Ct. 2883, 101 L.Ed.2d 918 (1988); Huene v. United States, 743 F.2d 703 (9th Cir.1984); Currington v. Johnson, 685 P.2d 73, 77 (Alaska 1984); Steck v. Aagaire, 789 P.2d 708 (Utah 1990); State ex rel Pacific Intermountain Express, Inc., v. District Court of Second Judicial Dist., 387 P.2d 550, 552 (Wyo.1963). 4
In addressing the effect of consolidation in a context quite different from the present case the Idaho Supreme Court has observed:
In general, the consolidation of two cases does not have the effect of merging the two cases into a single action. Rather, "consolidation is permitted as a matter...
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