Marcher v. Butler

• Decision Date: 27 January 1988
• Docket Number: No. 16811,16811
• Court: Idaho Supreme Court
• Parties: Sally MARCHER, Plaintiff-Appellant, v. Eloise O. BUTLER, individually, Defendant-Respondent, and David J. Flood, individually; Eloise O. Butler and David J. Flood dba Flood, Meyer, Setter & Associates; and Does I through V and XII through XXV, inclusive, Defendants.

Page 486

749 P.2d 486

113 Idaho 867

Sally MARCHER, Plaintiff-Appellant, v. Eloise O. BUTLER, individually, Defendant-Respondent, and David J. Flood, individually; Eloise O. Butler and David J. Flood dba Flood, Meyer, Setter & Associates; and Does I through V and XII through XXV, inclusive, Defendants.

No. 16811.

Supreme Court of Idaho.

Jan. 27, 1988.

Jenkins Law Office, Idaho Falls, for appellant. John O. Avery, argued.

Holden, Kidwell, Hahn & Crapo, Idaho Falls, for respondent. James D. Holman, argued.

HENRY F. McQUADE, Justice, pro tem.

This is a slip and fall case. The plaintiff, Sally Marcher, was employed as a cleaning lady for Victoria Golden, the lessee of a two-story condominium owned by the defendant, Eloise Butler. The upstairs and downstairs of the condominium are connected by a stairway that has two ninety degree turns in it--one turn is at the top, the other at the bottom. At the ninety degree turns, the stairs fan out so that they are narrow on one side of the stairway and wide on the other. On January 15, 1984, Marcher was cleaning the condominium for the first time, and as she started downstairs to get additional cleaning supplies, she put her left hand on a smaller wall to the left side of the stairwell and then stepped down. Since she was on the narrow side of the fan-shaped stairs, there was little or no stair where she stepped, and she fell to the bottom of the stairs on her backside. The stairwell did not have handrails.

On October 2, 1984, Marcher filed suit against Butler and various other John Does alleging that each "is negligently responsible in some manner for [plaintiff's fall and subsequent injuries]." Defendant Butler filed a motion for summary judgment on August 9, 1985. The record at this point in time consisted of the pleadings, the deposition of Marcher, and an affidavit of Butler. Butler submitted a memorandum in which she argued that summary judgment was proper because (1) defendant owed plaintiff no duty to protect her from an open, normal and obvious risk; and (2) plaintiff had failed to introduce evidence that the stairs on which she fell were unreasonably dangerous, or that Butler was in any way negligent. In her memorandum in opposition, Plaintiff Marcher argued that it was for a jury to decide whether the absence of a handrail constituted negligence and whether Marcher's fall was caused by her own negligence in walking on the narrow portion of the fan-shaped step. Marcher also tersely mentioned a violation of the Blaine County Building Code, but failed to attach a copy of that ordinance. On September 24, 1985, District Judge Douglas D. Kramer ruled in favor of defendant Butler, reasoning as follows:

"Viewing the pleadings, depositions, affidavits and other documents on file most favorably to Marcher, there is absolutely no way that Butler was at fault. Butler purchased the condominium as is. The stairs were open, visible, well lit and newly carpeted. Butler had not known of anyone else who had fallen on the stairs. There were no obstructions on the stairs. Further, there has been no showing that a handrail is required on stairs of this narrow width. Marcher has failed to show that there are any genuine issues as to any material facts and has failed to state a case as a matter of law. Accordingly, Butler's motion for summary judgment is granted."

A judgment was entered on November 4, 1985, by District Judge Daniel C. Hurlbutt. On November 18, 1985, Plaintiff Marcher filed a motion entitled "Motion to Alter or Amend Judgment." ¹ The motion was not noticed up for hearing, and laid dormant for nearly a year. On October 31, 1986, Plaintiff Marcher and Defendant Butler filed memoranda in support and opposition to the motion. Attached to Plaintiff Marcher's motion was a copy of the Blaine County ordinances which apparently applied to the facts her case. The motion to alter or amend judgment was denied on procedural grounds, and alternatively on the merits by District Judge J. William Hart. An appeal was thereupon certified pursuant to I.R.C.P. 54(b).

The issues on appeal are both procedural and substantive. Defendant Butler stresses the procedural issues and Plaintiff Marcher the substantive ones. Because the procedural issues are threshold, they will be discussed first.

I. Timeliness of Appeal From Summary Judgment

The parties do not dispute that Marcher's motion to alter or amend judgment pursuant to I.R.C.P. 59(e) was timely filed. However, because the motion was dormant from the time of filing, November 18, 1985, until October 31, 1986, when Marcher submitted a memorandum in support of the motion, the parties dispute the legal effect of the motion to alter or amend the judgment.

The last paragraph of Marcher's motion to alter or amend states: "This motion is based upon the pleadings, documents, its exhibits and materials presently in the court file, together with such memoranda and affidavits as may subsequently be presented to the court." Butler argues that since Marcher did not notice up her motion for hearing and did not file a written memorandum within fourteen days, as would seem to be required by I.R.C.P. 7(b)(3), ² the motion did not comport with I.R.C.P. 7 and was thus subject to dismissal without notice at the court's own discretion. From this, Butler concludes that the motion was a legal non-entity, which did not toll the time to appeal from the order granting summary judgment.

We must disagree. Butler is correct that a movant who neither requests oral argument nor submits written briefs may find that its motion has been denied by the trial court without notice. The rules grant such discretion. I.R.C.P. 7(b)(3). It does not necessarily follow, however, that the motion is a legal non-entity. Rule 7 only says that the court may dismiss the motion without notice, and clearly does not require this, and does not even establish a time frame in which filed motions must be noticed up for argument. Because it is equally within the trial court's discretion to permit written or oral argument, even where such was not requested within fourteen days, we hold that the time for appealing the district court's summary judgment order was tolled by Marcher's motion to alter or amend the judgment.

Marcher's motion to alter or amend the judgment was served not later than fourteen days after entry of the order granting summary judgment and was thus timely. I.R.C.P. 59(e). The full time for appeal therefore commenced to run anew from the entry on December 5, 1986, of the district court's order disposing of the motion to alter or amend. See First Security Bank v. Neibaur, 98 Idaho 598, 570 P.2d 276 (1977). The trial court certified an appeal pursuant to I.R.C.P. 54(b) on December 29, 1986. Marcher's notice of appeal, which was filed on January 14, 1987, therefore comported with the forty-two-day time period of I.A.R. 14 and was timely.

II. Judicial Notice of Municipal Ordinances

Marcher argues that the trial court should have taken judicial notice of the Uniform Building Code and the Sun Valley Municipal Ordinance which adopted it when it ruled upon Butler's motion for summary judgment. This position lacks merit. First, Marcher's complaint fails to mention the code or the ordinance. The only mention of the code or the ordinances before the court when it ruled upon the motion for summary judgment came in Marcher's brief in opposition to Butler's motion for summary judgment, in which it was argued:

At the time she purchased the condominium, Mrs. Butler was aware that there was no handrail on the stairway. Despite knowledge of this defect, which is a violation of the Blaine County Building Code, Mrs. Butler apparently did nothing to rectify the situation before renting the condominium to Ms. Golden.

Marcher then argued that Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984), establishes that the lack of a handrail in violation of local building codes constitutes negligence per se. Marcher did not supply the trial court with the applicable ordinances and codes at the summary judgment stage. Her offhand mention of building codes was insufficient to put the trial court on notice of them.

Further, there appears to be some authority for the proposition that courts may not take judicial notice of municipal ordinances. Section 9-101 of the Idaho Code deals with judicial notice of legislative facts. It states in relevant parts: "Courts take judicial notice of the following facts: ... public and private official acts of the legislature, executive and judicial departments of this state and of the United States." Inasmuch as this statute only permits a court to take judicial notice of legislative acts, it follows that the court may not take judicial notice of city ordinances or of the various codes adopted under them. Such matters must be proved. See People v. Buchanan, 1 Idaho 681, 684 (1878) ("courts will, judicially, take notice of the public and private acts of legislatures, and assume them to be true; such, however, is not the rule in regard to city ordinances; they must be proved either by the record, or by a certified copy thereof."). Accord, Keyes v. Amundson, 391 N.W.2d 602, 607 (N.D.1986); Hyman v. Robinson, 713 S.W.2d 300, 301 (Mo.App.1986); Concrete Contractors, Inc. v. City of Arvada, 621 P.2d 320 (Colo.1981), on remand 628 P.2d 170 (Colo.App.1981); Hood v. Mayor and Aldermen of City of Savannah, 277 S.E.2d 54, 55 (Ga.1981); City of Cedar Rapids v. Cach, 299 N.W.2d 656, 659 (Iowa 1980); General Motors Corporation v. Fair Employment Practices Division of Council on Human Relations of St. Louis, 574 S.W.2d 394, 400 (Mo.1978); Pelican Production Corporation v. Mize, 573 P.2d 703, 704 (Okla.1977).

We therefore hold that the failure of the trial court to take judicial notice of the municipal ordinances implicated by the facts of this case was not error. We do not decide today whether the ordinances, had they been properly made a part of the record, would have...