Crossroads Neighborhood Assoc v. Erickson

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44075

CROSSROADS NEIGHBORHOOD ) 2017 Opinion No. 18 ASSOCIATION, INC., ) ) Filed: March 2, 2017 Plaintiff-Respondent, ) ) Stephen W. Kenyon, Clerk v. ) ) RICK A. ERICKSON, ) ) Defendant-Appellant. ) ) )

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Gerald F. Schroeder, District Judge; Hon. Patricia Young, Magistrate.

Order of the district court dismissing intermediate appeal, vacated and case remanded.

Rick A. Erickson, Meridian, pro se appellant.

Vial Fotheringham LLP; Brindee Collins, Boise for respondent. ________________________________________________

GUTIERREZ, Judge Rick A. Erickson appeals from the district court’s order of dismissal of Erickson’s intermediate appeal from the magistrate. Erickson argues the district court erred in several respects, including denying Erickson thirty-five days to file his appellant’s brief and not settling the transcripts. Erickson requests attorney fees and costs on appeal to this Court. Crossroads requests attorney fees and costs on appeal to this Court and on appeal from the magistrate. For the reasons explained below, we vacate the district court’s dismissal and remand. I. FACTUAL AND PROCEDURAL BACKGROUND In September 2013, Crossroads Neighborhood Association, Inc. (hereinafter “Crossroads”) filed a complaint against Erickson to enforce compliance with Crossroads’

protective covenants and to address a number of outstanding violations on Erickson’s property. Erickson failed to respond with an answer to the complaint and instead filed several motions. Thus, the magistrate entered default judgment against Erickson in July 2014. Erickson soon after filed several additional motions with the magistrate, including a motion to set aside the default judgment. Erickson also filed an appeal with the district court in September 2014. That same month, the district court issued an order setting forth the procedure and timelines for the appeal and requiring Erickson to order and pay for the cost of the transcripts within fourteen days of the filing of the notice of appeal. After Erickson failed to pay the transcript fee, the district court entered a conditional dismissal, giving Erickson an additional fourteen days to pay the fee. Erickson paid the fee, as evidenced by a notice of payment, and the district court reinstated the appeal. The district court then updated the briefing schedule in an amended order on October 30, 2014, which provided that Erickson had thirty-five days to file his appellant’s brief after the filing of the transcripts. The district court determined that Erickson’s motion to set aside the default judgment had not yet been resolved by the magistrate, and thus the appeal was improperly reinstated. The district court stayed the appeal, pending a decision on Erickson’s motion, and remanded the case to the magistrate. The magistrate denied the motion to set aside the default judgment. The district court reviewed the magistrate’s order and, after determining the appeal had no valid basis, dismissed the appeal. Erickson filed a petition for rehearing, which the district court presumably granted. 1 During the hearing on November 19, 2015, the district court stated, “I’m dissolving the stay . . . we need to resolve this quickly, and we can best do that by reinstating the appeal, having a briefing schedule. . . . Any stays are dissolved, the appeal is reinstated, and we’ll issue an order setting forth a briefing time.” The district court clarified the issue on appeal was whether the magistrate appropriately granted the default judgment. The district court asked Crossroads to prepare an order reinstating the appeal. On November 20, 2015, the district court entered another amended order governing procedure on appeal, requiring Erickson to file his appellant’s brief by December 24, 2015. The district court noted in that order, “it appear[s] that a transcript of all the testimony of the original trial or hearing has been provided by appellant.” However, a review of the record indicates the

1 The record does not include the order granting Erickson’s petition.

transcripts were never produced. Erickson filed a request for the transcripts on November 24, 2015, but the record does not indicate the district court resolved this request. On December 21, 2015, the district court issued a written order lifting the stay and reinstating the appeal. Erickson failed to file his brief by December 24, 2015, so Crossroads filed a motion to dismiss the appeal. Notably, Crossroads did not provide authority to support its motion to dismiss. The district court subsequently dismissed the appeal with prejudice on January 8, 2016. Erickson filed a petition for rehearing, which the district court denied. Erickson appeals from the district court’s order dismissing the intermediate appeal. II. ANALYSIS As a threshold issue, Erickson argues Crossroads lacks standing. However, Erickson does not support his argument with authority and instead offers the mere conclusion that “the plaintiff lacks standing to bring this case in the first place.” When issues on appeal are not supported by propositions of law, authority, or argument, they will not be considered. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). We accordingly decline to further address this argument. Turning to the merits, Erickson argues the district court erred in denying him thirty-five days to file his appellant’s brief. We agree and conclude the district court acted improperly by dismissing the appeal on the basis of Erickson’s failure to timely file an appellant’s brief. The briefing schedule entered on November 20, 2015, was invalid and unenforceable because the district court had not yet signed and filed an order lifting the stay. “Once the proceedings are stayed by appeal, the district court ordinarily is divested of jurisdiction to act in any manner (with relation to the rights and liabilities of an appellant) except to act in aid of and not inconsistent with the appeal.” Coeur d’Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 329, 461 P.2d 107, 112 (1969). While the district court attempted to verbally lift the stay during the November 19 hearing, it also directed counsel to prepare a written order lifting the stay: “Will you [prepare] an order to this effect?” Counsel for Crossroads responded, “Yes, I will.” The district court’s order lifting the stay was signed and filed on December 21, 2015, which would

require a new briefing schedule to be set. 2 Pursuant to Idaho Rule of Civil Procedure 83(o) and Idaho Appellate Rule 34(c), Erickson was entitled to thirty-five days to file his brief. We therefore remand to the district court to reset the briefing schedule so that Erickson may have the opportunity to file an appellant’s brief within the thirty-five-day time period. Erickson further contends the district court erred in failing to address the procedures and time periods for lodging and settling the transcripts. The record confirms Erickson paid a transcript fee, but there is no indication the transcripts were produced. Thus, we remand to the district court with instructions to order the production of and settle the transcripts of testimony before the magistrate. Because there is no prevailing party, we deny attorney fees and costs to both Erickson and Crossroads. Moreover, an attorney acting as a pro se litigant is not entitled to an award of attorney fees on appeal. Chavez v. Canyon County, State, ex rel. its Duly Elected Bd. of Cty. Comm’rs, 152 Idaho 297, 305, 271 P.3d 695, 703 (2012). Thus, even if Erickson was the prevailing party, he would not be entitled to attorney fees. III. CONCLUSION The district court erred in dismissing Erickson’s appeal because the briefing schedule was invalid and unenforceable. We vacate the district court’s order dismissing the intermediate appeal and remand for further proceedings. Judge MELANSON and Judge HUSKEY CONCUR.

2 See, e.g., Idaho Rule of Civil Procedure 58: “[T]he placing of the clerk’s filing stamp on the judgment constitutes the entry of the judgment, and the judgment is not effective before such entry.”