Petition for Writ of Certiorari — Gibson v. Merrill

Supreme Court, U.8.

FILED

No. 04- O04 167 JUL 12 2004

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DAVID GIBSON, an individual and ALL UNKNOWN

INDIVIDUALS who may claim any interest in the real property which

is the subject of these proceedings, individually jointly and severally,

Petitioner,

v.

ORSON MERRILL and LYDIA MERRILL, Husband and Wife,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COUwuRT OF THE STATE OF IDAHO

PETITION FOR A WRIT OF CERTIORARI

ae ee ane em ae

oe Sania

VERNON K. SMITH

1900 W. Main Street

Boise, Idaho 83702

(208) 345-1125

Attorney for Petitioner

188435 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

Te

i

QUESTION PRESENTED

Whether the Decision of the Supreme Court of Idaho,

upholding its “nunc pro tunc” Order of Assignment of retired

former District Judge D Duff McKee, as entered by the

Vice Chief Justice of the Idaho Supreme Court,

“retroactively” after the trial, and notwithstanding the

disqualification of the retired Judge, constitutes a denial of

Petitioner’s constitutional Due Process and equal protection

rights under the United Stated Constitution.

il

TABLE OF CONTENTS

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TARAS UP CARE 6 5 on AR ews

CONSTITUTION PROVISIONS, STATUTES AND

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REASONS FOR GRANTING THE PETITION ...

I. The Idaho Supreme Court Cannot Undertake

The Use Of A “Nunc Pro Tunc” Format As A

“House Cleaning” Attempt To Resolve A

Procedural Dilemma, As It Constitutes A Due

Process Violation Of Petitioner’s Rights By

Perpetuating A Judicial Capacity That Had

Never Been Created, As Required By Statute,

And A Non-Judge Who Attempts To Assume

A Judicial Role Cannot Be Retroactively

Cloaked With Authority By Post Enactments

And “Nunc Pro Tunc” Proceedings, As A

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CROLL EASES 56 0 k0y 05 005 Seed ae

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TABLE OF CITED AUTHORITIES

Page

Cases

Black v. Industrial Comm’n of Arizona,

Be AER. 141, SE 7 P20 55S CI9ST) ow wwe ees 10

Blevins v. Commonwealth of Virginia,

Court of Appeals (1996) .................05. 8,9

Blum'’s Lumber & Crating, Inc. v. James,

259 Ind. 220, 285 N.E.2d 822 (1972) ......... 8

Cotton v. State of Indiana,

Supreme Court of Indiana (1995) ............ 8

Davis v. Mullins,

251 Va. 141, 466 S.E.2d 90 (1996) ........... 9

Heflin v. Commonwealth,

211 Va. 407, 177 S.E.2d 644 (1970) .......... 9

Merrick v. Pearce,

97 Idaho 250, 542 P.2d 1169 (1975) .......... 9,10

Perkins v. Hayward,

132 Indiana 95, 10131 N.E. 670 (1892) ....... 8

Ross v. Ross,

103 Idaho 406, 648 P.2d 1119 (1982) ......... 9,11

iv

Cited Authorities

Page

Constitutions

United States Constitution,

Fourteenth Amendment ................- 2, 7, 11, 14

Idaho Constitution, Article 1,§3 ............... ie

Idaho Constitution, Article V,§ 1] .............. 2, 3,4

Idaho Constitution, Article V,§ 12 .............. 2, 4,5

Statutes

y pik 5 oe B+; Sor eerrre ert fe eer er re Tee 1

Idaho Code, § 1-2001 et seg. ........ cee ee eens 4

Idaho Code, § 1-2001 through § 1-2005 ......... 2

Kaha Codia, 8 1-FOG1 oun cc ccc as sccccncvevens 3

Idaho Code, § 1-2005 et seq. .........00eeeeeee 4

Rbpted Cade, 4 V-DOGS voce ci cctccvstesesvuses a ae Ee

Bdaho Coda, $ 8-TUBTA) «< onccccccsansucscsess 3,3

Idaho Code, § 1-2005(S) ........cccccceccseces a2

Cited Authorities

Page

Rules

Sty NEE GUE D then ss asa Nose ee idee nnr ye

ete Ek i) re ere 2, 6, 7

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Other Authorities

EP Ae POOR AEOOED 6.0 bere aNSN eh eeaeenes 10

46 Am Jur 2d, Judgments, § 186 (1969) ......... 10

1 Freeman on Judgments, § 131 (S" ed. 1925) .... 10

vi

TABLE OFAPPENDICES

Page

Appendix A — Opinion Of The Supreme Court Of

The State Of Idaho Filed February 27, 2004 .... la

Appendix B — Order Of The Supreme Court Of The

State Of Idaho Dated April 16, 2002 .......... 14a

Appendix C — Order Of The Supreme Court Of The

State Of Idaho Denying Petition For Rehearing

SOUND PUNT BA, BE 6 5 0 tk vnc cnskvakannaes l6a

l

OPINION BELOW

The Opinion of the Idaho Supreme Court on this

issue (Appendix A) is reported at Merrill v. Gibson, _

Idaho __, 87 P.3d 949 (2004), Opinion No. 20, Docket

No. 28542, filed and released February 27, 2004. The Idaho

Supreme Court’s Order, Denying Petition for Rehearing

(Appendix C) is referenced in the published opinion.

JURISDICTION

The Decision of the Idaho Supreme Court was released

and filed on February 27, 2004, (Appendix A). A timely

petition for rehearing was denied on April 12, 2004

(Appendix C). This court has Jurisdiction of this case under

28 U.S.C. § 1257, and Supreme Court Rule 10 (b) and (c) in

that the Idaho Supreme Court has engaged in State action

that has violated an important due process and equal

protection right of Petitioner, and done in a way, employing

legal concepts, that contradicts and conflicts with decisions

of both Idaho and other state courts of last resort or Federal

courts. Under Idaho Constitution, Article I, § 3, the State of

Idaho is an inseparable part of the American Union, and the

Constitution of the United States is the supreme law of the

land and this Court has jurisdiction over those rights and

privileges guaranteed therein.

2

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

1. Constitution of the United States, Fourteenth

Amendment:

§ 1... No state shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United states; nor shall any state

deprive any person of life, liberty, or property

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

2. Idaho Constitution, Article V, § 11 and § 12

3. Idaho Constitution, Article I, § 3

4. Idaho Code, § 1-2001 through § 1-2005

5. Rule 40(d)(1), Idaho Rules of Civil Procedure

(I.R.C.P.)

6. Rule 40(d)(1)(D)(iii), Idaho Rules of Civil Procedure

(I.R.C.P.)

STATEMENT OF THE CASE AND FACTS

This case began in the Idaho Courts concerning the right

to ownership of a twenty-acre parcel of land located

South of the city of Boise, located in the State of Idaho.

The Judgment was entered by retired District Judge D. Duff

McKee, over Petitioner’s timely Motion to Disqualify the

retired Judge, as he had not been assigned or appointed by

3

either the provisions of Idaho Constitution, Article V § 11

or 12, or under the requirements of Idaho Code, § 1-2001,

§ 1-2005, § 1-2005(2), or § 1-2005(3), as his “order of

assignment” came “nunc pro tunc’’, entered un-certified, and

almost three (3) weeks later by the Vice Chief Justice of the

Idaho Supreme Court.

This Writ concerns the complete lack of jurisdiction and

authority of the retired Judge when he heard and decided the

case, and the decision of the Idaho Supreme Court to

perpetuate a Constitutional violation of Petitioner’s rights

of due process and equal protection, should not be condoned.

This Writ raises the constitutional concerns that result when

the highest State court allows a retired Judge to retroactively

become vested with authority, in violation of provisions of

‘Its own State statutes and Constitution, and in the clear

absence of any existing judicial appointment or assignment,

and solely by the use of a “retroactively” created order,

entered “nunc pro tunc”. The Idaho Supreme Court Clerk

Records at the relevant times confirmed retired Judge McKee

was never specifically assigned to the District Court, and no

certified order of the Supreme Court of Idaho ever existed

before, during, or after the trial, until this retroactive “order”

was entered almost 3 weeks later, on April 16, 2002, which

therein declared an Order of Assignment, “nunc pro tunc”’ to

January 1, 2002 by Order of the Supreme Court under

signature of Vice-Chief Justice, of the Idaho Supreme Court,

Gerald S. Schroeder (Appendix B).

This. question of authority and the meaning and

application of a “nunc pro tunc” order, as entered and

processed “retrospectively” by the Idaho Supreme Court has

several due process concerns because of Petitioner’s denial

of a valid judge to hear his case, and the denial of equal

4

protection in the use of the Idaho statutory enactment

§ 1-2001 ef seq. It is undisputed this retired judge did not

first obtain a certified order of assignment from the Supreme

Court, nor was there any observance of the Idaho

Constitutional mandate of Article V, §§ 11 & 12 or

compliance with the statutory criteria under Jdaho Code,

§ 1-2005 et seq.

Under the Idaho Constitution, Article V, § 11, “a judge

shall be chosen by the qualified electors” and “whose term

of office shall be (4) four years”. D. Duff McKee was not an

elected judge at the time, as he retired from the Fourth District

on July 31, 2000. Since he was not serving as an elected

judge, he instead could come within a special class of

treatment covered by Article V, Section 12, Constitution of

Idaho. It therein provides

any retired district judge may hold a district court

in any county at the request of the judge of the

district court thereof, and upon the request of the

governor or Chief Justice, and when any such

request is made and approved by the Chief Justice,

it shall be his duty to do so; but a cause in the

district court may be tried by a judge pro tempore,

who must be a member of the bar, agreed upon in

writing by the parties litigant, or their attorneys

of record, and sworn to try the cause. (Emphasis

added).

This retired judge was not requested by the Governor,

Chief Justice or any district judge; nor appointed by the Chief

Justice and did not sit with consent, but rather sat, despite

the written disqualification timely filed by the Petitioner,

5

upon his statement there was an order of assignment from

the Supreme Court. The retired judge stated:

There’s an application to recuse under

40(d)(1). . .. There’s an order from the Supreme

Court that makes the rule not applicable to

designation of Senior Judges, which is what you

all are saddled with today.

The records with the Clerk of the Idaho Supreme Court

confirm he was not appointed by any order of the Supreme

Court at the time he made that statement on March 25, 2002

(See Appendix A).

Notwithstanding the provisions of the Idaho

Constitution, the Idaho Legislature created a statute that

broadened the concept announced in Article V, § 12,

Constitution of Idaho, and provides a different manner, to

allow a temporary assignment to a State Court to occur

whenever, upon application by a lower court, the Supreme

Court determines the assignment is reasonably necessary

(§ 1-2005(2), Idaho Code), and a certified order of

assignment is entered (§ 1-2005(3), Idaho Code).

Assuming this Idaho statute were constitutional, the

“assignment” defined in § 1-2005, Jdaho Code, must be made

by an “order” which shall “designate” the court or duties,

the duration of the assignment, and the order be certified.

The statute further requires “promptly” after assignment, the

Supreme Court cause a “certified copy of the order” sent to

the Senior Judge and another “certified copy” sent to the

court to which the Judge is assigned. The assignment can

exist only by virtue of the certified order. Critical to this

statute is the existence of the certified order, before any

6

assignment could be valid, even under the terms of this

statute.

There is no dispute no assignment existed regarding

retired Judge D. Duff McKee when he sat on the bench on

March 25", 26", and 27", 2002, or when he entered the

Findings of Fact, Conclusions of Law, Judgment and Decree

Quieting Title on April 3, 2002. The only “assignment by

Supreme Court Order” of Retired Judge McKee came into

existence on April 16, 2002, because of Petitioner’s inquiring

how it was and in what manner D. Duff McKee had any right

or authority to assume the role as District Judge on

Petitioner’s case when no order existed, and was properly

disqualified under the Idaho Rules of Procedure, Rule

40(d)(1), allowing automatic recusal without cause, as he

was not exempt under Rule 40(d)(1)(I)(ii). The Order of

April 16, 2002 confirms, by its very format and content, no

other order existed, as the order attempted to “retroactively”

appoint the Judge back to January 1, 2002, by entry

“nunc pro tunc”, as no assignment by order of the Supreme

Court under that statute existed when D. Duff McKee chose

to enter the courtroom, sit on the bench, deny Petitioner’s

Motion to Disqualify him, and proceed to act as a judge,

when he knew he had no certified order, had no such

authority, had no jurisdiction and no District Court held any

Order appointing or assigning him. This subsequently entered

Order of Assignment was signed by the Vice Chief Justice,

Honorable Gerald S. Schroeder, “nunc pro tunc” in an attempt

to make retroactive an order of assignment that never before

existed.

Prior to trial, Petitioner inquired of the District Court if

any Supreme Court assignment had been entered of record,

as two (2) business days before trial, the indication was

7

expressed a retired judge may hear the case, and D. Duff

McKee’s name was mentioned. The Court confirmed it had

no order found toexist. Consequently, there was no exempt

status to prohibit disqualification under Rule 40(d)(1),

I.R.C.P., as no specific assignment by the Supreme Court of

Idaho existed under Rule 40(d)(1)(I)(iii), and no procedural

impediment would preempt recusal of D. Duff McKee as

allowed under Rule 40(d)(1), I.R.C.P.

The issue of whether the Idaho Supreme Court’s decision

constituted prohibited “state action” under the Fourteenth

Amendment violating Petitioner’s due process and equal

protection rights, was raised by the Petition for Rehearing

and addressed in the Memorandum in support thereof.

The Petition for Rehearing was denied by the Court, without

any comment.

REASONS FOR GRANTING THE PETITION

The Idaho Supreme Court cannot undertake the use of a

“nunc pro tunc” format as a “house cleaning” attempt to

resolve a procedural dilemma, as it constitutes a due process

violation of Petitioner’s rights by perpetuating a judicial

capacity that had Never been created, as required by statute,

and a non-judge who attempts to assume a judicial role cannot

be retroactively cloaked with authority by post enactments

and “nunc pro tunc” proceedings, as a matter of law.

According to case precedence, the only valid concept

endorsed by the courts for the use and allowed entry of any

“nunc pro tunc” order is to confirm what had actually been

done before, and a very fundamental analysis has been

addressed within our American jurisprudence in a number

of long established, well tested cases across the nation.

8

The only allowed purpose for using this concept, as

defined in law, is to affect “an entry made now for something

which was actually previously done, to have effect as of the

former date’’. It is to recite now what was actually done then,

and being pursued simply to correct the existing record, not

make a record that did not exist.

This concept was found in the case of Perkins v.

Hayward, 132 Indiana 95, 10131 N.E. 670, €72 (1892).

It continues to be cited as among the cherished definitions,

cited in Blevins v. Commonwealth of Virginia, Court of

Appeals (1996) and Cotton v. State of Indiana, Supreme Court

of Indiana (1995). In Cotton v. State of Indiana, the Court

stated:

a nunc pro tunc entry is defined in law as “an entry

made now of something which was actually

previously done, to have effect as of the former

date.” (citing) Perkins v. Hayward, 132 Ind. 95,

101, 31 N.E. 670. 672 (1892) ... Its purpose is

“to supply an omission in the record of action

really had, but omitted through inadvertence or

mistake (citing) Perkins, supra.

The trial court’s record, however, must show that

the unrecorded act or event actually occurred.

Thus, this court has required that a written

memorial must form the basis for establishing the

error or omission to be corrected by the nunc pro

tunc order. (citing) Blum s Lumber & Crating, Inc.

v James, 259 Ind. 220, 223, 285 N.E.2d 822,

824-25 (1972).

9

In order to provide a sufficient basis for the nunc

pro tunc entry, the supporting written memorial

(1) must be found in the records of the case;

(2) must be required by law to be kept; (3) must

show action taken or orders or rulings made by

the court; and (4) must exist in the records of the

court contemporaneously with or preceding the

date of the action described.

In Blevins v. Commonwealth of Virginia, supra, the court

stated:

This appeal is controlled by Heflin y.

Commonwealth, 211 Va. 407, 177 S.E.2d 644

(1970), in which the Supreme Court of Virginia

held ... trial courts may enter orders nunc pro

tunc only to correct defects or omissions in the

record so as to make the record show what actually

took place on a prior occasion. See also Davis v.

Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94

(1996).

Our Idaho Court has also addressed this issue years

before in Merrick v. Pearce, 97 Idaho 250, 542 P.2d 1169

(1975) and Ross v. Ross, 103 Idaho 406, 648 P.2d 1119

(1982).

In Ross, supra, the majority noted, in footnote 1,

the court did not approve the use of “nunc pro tunc” concept

in the context it had been used. Idaho’s former Chief Justice

Bakes, announcing the fundamentals and disapproval of its

use, stated the entire concept:

An entry of judgment nunc pro tunc represents

“the power of the court to amend records of its

10

judgments by correcting mistakes or supplying

omissions therein, and to apply such amendments

retroactively ....” 46 Am.Jur.2d, Judgments

§ 186 (1969) (emphasis added). However, “[t]he

failure of a court to act, or its incorrect action,

can never authorize a nunc pro tunc entry. If a

court does not render judgment, or renders one

which is imperfect or improper, it has no power

to remedy any of these errors oT omissions by

treating them as clerical misprisions. Omitted

judicial actions cannot be supplied, even though

it would have been proper in the first instance,

__.” | Freeman on Judgments, § 131 (5th ed.

1925); see Annot. 19 A.L.R.3d 648 (1968).

Consequently, since the partial summary judgment

was lacking Rule 54(b) certification, that omission

cannot later be supplied by an order nunc pro tunc

changing the nature of the partial summary

judgment. As was stated in Black v. Industrial

Comm’n of Arizona, 83 Ariz. 121, 317 P.2d 553,

555 (1957), “[T]he court cannot do more than to

make the record correspond with the actual facts.”

We have recently affirmed the power of our courts

to enter an order nunc pro tunc within the context

of a motion made pursuant to LR.C.P. 60(a), which

outlines the procedure for correcting “clerical

mistakes” in the record. Merrick v. Pearce, 97

Idaho 250, 542 P.2d 1169 (1975). In Merrick, the

court entered an amended judgment nunc protunc

to correct a clerical mistake in the amount of the

original judgment.

. wi tescaenvcs De Met ALLOTMENT IE a

HN SET“!

11

In Petitioner’s case, the order “nunc pro tunc” entered

April 16, 2002, purported to create a judicial capacity that

did not exist on March 25", 26", 27" and April 3™, 2002,

and attempts to validate what was pursued by a non-appointed

retired judge.

The concern exists with respect to the Court’s use of

“nunc pro tunc” and “retroactive” concepts applied in

contradiction to each other and contrary to case authority.

This misuse, and effort to resolve a procedural dilemma, has

served only to create a 14" Amendment due process and equal

protection violation of Petitioner’s rights. No authority for

this contradictory holding has been cited in the Opinion of

the Idaho Supreme Court. They avoided it. Petitioner cited

the only express definition, meaning, purpose, and only basis

for the application of a “nunc pro tunc’” order. As stated even

in Ross, supra, the failure of a court to act, or its incorrect

action, can never authorize a nunc pro tunc entry of an order

(See Ross, supra, p. 420, L 10). The current decision of the

Court appears to contradict its own prior holding. Our Idaho

Court has cited no authority to allow one to judicially engage

in ‘retroactivity’ to make judicial capacity to exist when it

did not exist before, in an attempt to resolve a dilemma or

create a desired result, not only resolving a clear lack of

authority, but also designed to affirm a decision and

disenfranchise a valid disqualification of a non-assigned

retired judge, all being done at the sacrifice of Petitioner’s

constitutional rights.

The Idaho Supreme Court had stated that: “Gibson’s

claim that the Idaho Supreme Court’s nunc pro tunc order is

invalid, is frivolous and without foundation”. We submit that

presents an affront and clear abridgment of Petitioner’s due

process and equal protection rights.

12

The Idaho Supreme Court declared in its conclusion

“the nunc pro tunc order retroactively and properly assigned

Judge McKee to this case in accordance with Idaho Code,

§ 1-2005” (See Opinion, p. 8, L 11), is a concept of novel

use. The Court’s use of the phrase “retroactively” would

confirm, it does acknowledge there had never been a prior

Court appointment of Retired Judge McKee. Consequently,

it is true the Idaho Court had failed to act originally, which

by law is a prerequisite for the application of any nunc pro

tunc concept. Such failure of a court to act originally can

never authorize a nunc pro tunc entry because of that failure

to act, and a due process violation has resulted.

The introduction of this “retroactive” concept, on top of a

“nunc pro tunc” entry, serves only to beg the question, and

confirm such authority never before existed at the time

judicial authority was assumed, contrary to any established

law.

The Idaho Court’s “retroactive” assignment can be seen

only as a way designed to trump what was a lawful

disqualification of a non-assigned retired judge, another

deliberate denial of due process-equal protection right.

Our Idaho Court is attempting to undo a disqualification that

was lawfully used, pursued and lawfully entitled to full

enforcement under the Idaho Civil Rules of Procedure,

viewed by Petitioner as another due process and equal

protection denial, done to serve an agenda to resolve a

procedural dilemma.

There is no case law or known legal principal that allows

retroactive destruction of a lawful consequence, and the

concept of retroactivity used to defeat a lawful

disqualification, or non-existent judicial authorization is

viewed as both novel and infringing on constitutional rights

and privileges.

+ es har a Hramw Sele RCN oe

13

Our Idaho Supreme Court has used a principle of

retroactivity to assign a judge under § 1-2005, Jdaho Code,

in an effort to vest authority nunc pro tunc, when it never

before existed, attempting to create validity for a judicial

role that had been assumed without a required certified order,

directly violating a due process right and infringing upon

equal protection

If there were found to be any authority to retroactively

assign a retired judge, to validate his past acts while lacking

authority, and should it exist separate and apart from the

attempted use of this nunc pro tunc concept, it was not cited

within the decision of our Idaho Supreme Court A Court’s

authority cannot be mandated retroactively or fabricated by

“nunc pro tunc” principles, as the concept has been addressed

in former Idaho cases and other state’s analysis.

CONCLUSION

To say the nunc pro tunc order “retroactively and

properly” assigned a retired judge serves only to enunciate a

legal impossibility, trying to reach a desired outcome to avoid

a disqualification and validate non-existent authority. If this

decision remains, it will result in a difficult analysis and

application of several contradictory doctrines, and disregard

the exclusive rules defining and implementing the Idaho

Plan B retirement statute affecting judges retiring after

July 1, 2000, and by doing so the Idaho Supreme Court has

retroactively assigned a judge to make him retroactively

exempt from disqualification, when the very exemption can

exist only in the context of a preexisting order of a valid

assignment. A retroactive authorization cannot undo the

effects of a lawful disqualification undertaken at the time

there has been no existing assignment, and cannot create

14

judicial authority that did not exist without violating

constitutional rights, and their desire to clean up or otherwise

chose to conceal, whether or not it be a noble objective, serves

only to deny due process and equal protection by improper

state action.

Therefore, Petitioner, respectfully prays this Court grant

this Petition for Writ of Certiorari, and thereafter reverse the

decision of the Idaho Supreme Court, and hold judicial

authority placed in a retired judge created by a “nunc pro

tunc” order, under a retroactive assignment or appointment

after the fact, attempting to validate conduct undertaken

without judicial authority, and to disenfranchise a valid

disqualification, constitutes a due process and equal

protection violation under the 14" Amendment of the

United States Constitution, by improper state action, and

results in a denial of vested rights, privileges and property

protected under the United States Constitution.

Respectfully submitted,

VERNON K. SMITH

1900 W. Main Street

Boise, Idaho 83702

(208) 345-1125

Attorney for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE SUPREME

COURT OF THE STATE OF IDAHO FILED

FEBRUARY 27, 2004

IN THE SUPREME COURT OF IDAHO

Docket No. 28542

2004 Opinion No. 20

Boise, December 2003 Term

Filed: February 27, 2004

Frederick C. Lyon, Clerk

ORSON MERRILL and LYDIA MERRILL,

husband and wife,

Plaintiffs-Counterdefendants-

Respondents-Cross Appellants,

V.

DAVID GIBSON, an individual, and ALL UNKNOWN

INDIVIDUALS who may claim any interest in the real

property which is the subject of these proceedings,

individually, jointly and severally,

Defendants-Counterclaimants-

Appellants-Cross Respondents.

2a

Appendix A

Appeal from the Trial court of the Fourth Judicial District

of the State of Idaho, Ada County. Hon. D. Duff McKee,

District Judge.

The decision of the trial court quieting title in plaintiffs

is affirmed.

Vernon K. Smith, Jr., Boise, argued for appellants.

Thomas G. Maile, IV, Eagle, argued for respondents.

TROUT, Chief Justice.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 1991, David Gibson (Gibson) looked to relocate his

tree and shrub nursery and negotiated to buy twenty acres

south of Boise, Idaho (Twenty Acres). Gibson took possession

of the Twenty Acres in June 1991, but did not enter into a

purchase agreement until September 3, 1991. After taking

possession, Gibson moved large amounts of compost onto

the land to recondition the soil and also stored other items

on the property.

Gibson informed his friend Orson Merrill he intended

to purchase the Twenty Acres and, according to Gibson,

Orson offered to loan Gibson $19,000 to finance the purchase.

Further, Gibson asserts Orson agreed the interest on the loan

would be the same rate received on funds he had in

certificates of deposit.

he BN i ee

3a

Appendix A

Gibson claims he took a $5,000 check issued from his

family trust to the November 7, 1991, closing and instructed

the closing agent to issue the warranty deed to Orson and

Lydia Merrill (the Merrills) so they could hold the deed as

security for the $19,000 loan. Gibson asserts that in addition

to providing the Merrills security for the loan, he wanted to

protect the property as Gibson was involved in a dispute with

the IRS.

October 29, 1991, Ada County sought a permanent

injunction against Gibson, alleging his activities on the

Twenty Acres violated a county zoning ordinance prohibiting

junkyards. Ada County v. Gibson, 126 Idaho 854, 893 P.2d

801 (1995). After the November 7th closing, the Merrills

and Gibson met with Ada County officials to find a way to

exclude the Merrills from the injunction action. To resolve

the issue, the Merrills executed an option contract giving

Gibson a lease and the option to purchase the Twenty Acres

on or before January 1, 1997. Gibson asserts the option

contract only served to exclude the Merrills from the lawsuit

and allowed the warranty deed to remain as security for the

$19,000 loan. Gibson also points out he gave no consideration

and never exercised the option.

According to Gibson, between 1991 and 2000, he

improved the Twenty Acres by adding a fence, building a

road, and contracting for a well and a pump. In addition,

Gibson claims he advanced or reimbursed the Merrills in

cash the equivalent of any tax assessment the Merrills paid.

It is undisputed Gibson remained in possession of the

Twenty Acres during this period and that he paid property

taxes on the Twenty Acres on August 25, 2000, and made a

4a

Appendix A

pre-payment of property taxes on September 13, 2000. Also,

Gibson filed a notice of ownership with Ada County,

September 28, 2000.

In 1999, the Merrills discovered the property taxes on

the Twenty Acres would increase. Lydia Merrill and her son

realized they needed to generate income from the property

and approached Gibson with a written offer to either purchase

the property or continue to lease it at a monthly rate.

According to the written offer, Lydia asked for $79,500, less

than the appraised value. Gibson refused, but offered to repay

the $19,000. Lydia refused.

February 20, 2001, the Merrills filed a quiet title action

in conjunction with a motion for a declaratory judgment in

the trial court which was heard initially by Judge Williamson.

The Merrills argued they owned the Twenty Acres and

Gibson’s interest was that of a tenant. The Merrills offered

title insurance records, the warranty deed, closing

instructions, and a cashier’s check as evidence of ownership.

The Merrills also asserted Gibson had not paid rent after

December 1994, but conceded they did not request any

because the land increased in value due to Gibson’s

improvements.

Gibson answered the complaint May 10, 2001, arguing

he purchased the property September 3, 1991, and gave the

Merrills the deed as security for the $19,000 loan which

Orson Merrill intended to transfer back to Gibson. Gibson

also claimed the Merrills could not enforce their security

interest due to the running of adverse possession statutes.

While this action was pending, the trial court recognized

Sa

Appendix A

Orson Merrill as incompetent and appointed Lydia guardian

ad litum.' The Merrills then filed a motion for summary

judgment and Gibson filed an answer, counterclaim, and

claim for damages September 14, 2001.

Judge Williamson denied the Merrills’ summary

judgment motion, except as to the issues of the validity and

enforceability of the option contract and issues of adverse

possession. Judge Williamson ruled the option contract void

because it had expired and ruled that Gibson’s adverse

possession claim had no merit because Gibson did not file

the notice of ownership until September 2000, and it is not

until this date that the five year statutory period for adverse

possession began to run. Judge Williamson scheduled trial

to commence on the remaining issues March 25, 2002.

On March 21, 2002, Gibson was informed orally that

retired Senior Judge D. Duff McKee would hear the case.

Gibson claims he immediately inquired as to whether an

official assignment of record existed and discoyered there

was no certified order of assignment. Gibson filed a motion

to disqualify Judge McKee March 22, 2002, pursuant to

I.R.C.P. 40(d)(1), claiming the Idaho Supreme Court did not

appoint Judge McKee, Judge Williamson had not been

disqualified, and Gibson had not received any written notice

of the appointment. Several days after the trial had concluded,

Vice Chief Justice Gerald Schroeder entered an order nunc

pro tunc assigning Judge McKee to this case.

1. Orson Merrill became disabled and unable to speak in 1997-

1998 due to health problems. He did not testify.

6a

Appendix A

Trial commenced March 25, 2002, and Judge McKee

denied Gibson’s disqualification motion, ruling that LAC.

40(d)(1) was inapplicable to senior judges. After the trial,

Judge McKee issued his judgment quieting title in the

Merrills and ordering Gibson to pay costs. The Merrills then

filed a motion for attorney fees under I.C. §§ 12-120(3) and

12-121, which Judge McKee denied. Gibson filed a timely

notice of appeal from the judgment quieting title and the

Merrills then cross-appealed the denial of attorney fees.

Il. STANDARD OF REVIEW

This Court reviews the denial of an I.R.C.P. 40(d)(1)

motion to disqualify and the award of attorney fees for an

abuse of discretion, and the burden is on the person asserting

error to show an abuse of discretion. Anderson v. Ethington,

103 Idaho 658, 651 P.2d 923 (1982). To determine whether

the trial court abused its discretion, this Court considers:

(1) whether the trial court correctly perceived the issue as

one of discretion; (2) whether the trial court acted within the

outer boundaries of its discretion and consistently with the

legal standards applicable to the specific choices available

to it; and (3) whether the trial court reached its decision by

an exercise of reason. Sun Valley Shopping Ctr. v. Idaho

Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).

This Court will only-set aside a trial court’s findings of

fact if they are clearly erroneous. I.R.C.P. 52(a); McCray v.

Rosenkrance, 135 Idaho 509, 513, 20 P.3d 693, 697 (2001).

Evidence is substantial and competent if a reasonable trier

of fact would accept it and rely on it. Jd. Findings based on

7a

Appendix A

substantial, competent evidence, although conflicting, will

not be disturbed on appeal. Bolger v. Lance, 137 Idaho 792,

53 P.3d 1211 (2002). This Court exercises free review over

the trial court’s conclusions of law. Conley v. Whittlesey, 133

Idaho 265, 269, 985 P.2d 1127, 1131 (1999).

Ili. DISCUSSION

A. The trial court did not err in denying Gibson’s

I.R.C.P. 40(d)(1) motion to disqualify.

Before the trial commenced, Judge McKee denied

Gibson’s I.R.C.P. 40(d)(1) disqualification motion because

it was untimely and the rule did not apply to senior judges.

According to the version of I.R.C.P. 40(d)(1) in effect at

the time of this case, “the right to disqualification without

cause shall not apply to ... (iv) Senior judges assigned

pursuant to I.C. § 1-2005.” A senior judge is a judge

“who leaves office or retires from ... a trial court” and

“may be designated a senior judge. . . by the supreme court.”

I.C. § 1-2005(1). A senior judge “is eligible for temporary

assignment by the supreme court to a state court. . . whenever

the supreme court determines that the assignment is

reasonably necessary.” I.C. § 1-2005(2). The assignment

“shall be made by an order which shall designate the court

... to which the judge is assigned and the duration of the

assignment. Promptly after assignment . . . the supreme court

shall cause a certified copy of the order to be sent to the

senior judge and another certified copy to the court... .”

LC. § 1-2005(3).

8a

Appendix A

Gibson argues the assignment is inconsistent with Article

V, § 12, of the Idaho Constitution, which provides “any retired

district judge, may hold a district court in any county at the

request of the judge of the district court thereof, and upon

the request of .. . the chief justice... .” Gibson argues that

because the Chief Justice of the Idaho Supreme Court did

not appoint Judge McKee, then the assignment is

unconstitutional. Gibson misreads this provision of the

constitution because it clearly states that a district judge may

ask a retired district judge to sit, which is the case here.

Moreover, an assignment order was signed by the Vice Chief

Justice of the Court.

There is no dispute Judge McKee is a senior judge

appointed pursuant to I.C. § 1-2005(3), but Gibson argues

that the statute is unconstitutionally broad and requires a

written assignment to be filed and a copy sent to the parties

before the judge hears the case. However, I.C. § 1- 2005

clearly indicates that the order of assignment need only be

promptly filed with the court and the judge. In this case, an

order nunc pro tunc was entered within three weeks of the

trial, was made effective back to before Judge McKee heard

the case, and the judge and the trial court received copies.

There is no showing that Judge McKee did not have the

authority to hear the case.

Finally, the version of I.R.C.P. 40(d)(1) in effect at the

time of trial specifically excluded senior judges and allowed

disqualification only for cause under I.R.C.P. 40(d)(2).

Gibson never moved to disqualify Judge McKee for cause

and, therefore, the trial court was correct in denying Gibson’s

motion to disqualify.

9a

Appendix A

B. The trial court correctly ruled on the Merrills’ quiet

title claim.

Gibson argues the Merrills’ did not file the quiet title

action within the time limits allowed by I.C. §§ 5-203 and

5-211. Section 5-203 provides that “no action for the recovery

of real property . . . can be maintained, unless it appears that

the plaintiff... was seized or possessed of the property in

question within five (5) years before the commencement of

the action.” In addition, I.C. § 5-211 provides that when a

landlord-tenant relationship exists, “the possession of the

tenant is deemed the possession of the landlord, .. . where

there has been no written lease, until the expiration of five

(5) years from the time of the last payment of rent.” Neither

of these statutes has any bearing on Gibson’s claims here.

I.C. § 5-203 does not apply because the Merrills had legal

title to the property and thereby established seisin and

possession. This Court stated in Dickerson v. Brewster,

88 Idaho 330, 337 (1930), “the requirement of seisin under

[I.C. § 5-203] is satisfied in any case where the party opposing

an adverse claimant is the holder of the legal title.” See also,

Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955). It appears

the Merrills possessed record title and satisfied any seisin

requirement under I.C. § 5-203 because their names were

listed on the warranty deed. As a result, I.C. § 5-203 does

not bar their quiet title action.

I.C. § 5-211 does not apply because Gibson did not bring

a claim of adverse possession. As a result, I.C. § 5-211 would

not bar any quiet title action by the Merrills.

10a

Appendix A

While Gibson did not properly raise the issue of whether

the trial court’s decision was supported by substantial and

competent evidence, he made some arguments to that effect

in his briefing to this Court. After reviewing the record and

decision, it is apparent the trial court properly weighed the

evidence and determined the credibility of the parties, and

there is substantial and competent evidence to support the

trial court’s decision.

C. Gibson is not entitled to attorney fees at the trial court

level or on appeal.

Gibson asserts he should have been the prevailing party

below and on appeal and is entitled to attorney fees under

LC. § 12-121. However, as discussed above, Gibson is not

the prevailing party in this action and has no right to fees.

D. The trial court did not abuse its discretion when it

denied the Merrills’ request for attorney fees under

I.C. §§ 12-121 and 12-120(3).

An award of attorney fees under I.C. § 12-121 is within

the broad and sound discretion of the trial court. Etcheverry

Sheep Co. v. J.R. Simplot Co., 113 Idaho 15, 19, 740 P.2d

57, 61 (1987); O’Boskey v. First Fed. Sav. & Loan Ass'n,

112 Idaho 1002, 1008, 739 P.2d 301, 307 (1987). Idaho Code

Section 12-121 provides: “In any civil action, the judge may

award reasonable attorney fees to the prevailing party or

parties . . .” (emphasis added). In addition, I.R.C.P. 54(e)(1)

further limits a trial court’s discretion by allowing a prevailing

party attorney fees only if the trial court “finds, from the

facts presented to it, that the case was brought, pursued or

defended frivolously, unreasonably or without foundation.”

lla

Appendix A

The trial court denied the Merrills’ request, finding

Gibson’s defense presented “legitimate questions regarding

the alleged oral agreement” between Orson Merrill and

Gibson. Given the broad discretion afforded the trial court

under I.C. § 12-121, this Court finds the trial court did not

abuse its discretion by denying the Merrills’ request for

attorney fees.

Idaho Code Section 12-120(3) provides in part: “In any

civil action to recover. . . ina commercial transaction unless

otherwise provided by law, the prevailing party shall be

allowed reasonable attorney fees to be set by the court.”

The language of I.C. § 12-120(3) is mandatory and requires

a trial court to award attorney fees to the prevailing party.

Inland Title Ce. v. Comstock, 116 Idaho 701, 779 P.2d 15

(1989); Torix v. Allred, 100 Idaho 905, 911, 606 P.2d 1334,

1340 (1980). A commercial transaction is defined “to mean

all transactions except transactions for personal or household

purposes.” I.C. § 12-120(3). Attorney fees are not appropriate

under I.C. § 12-120(3) unless the commercial transaction is

integral to the claim, and constitutes the basis upon which

the party is attempting to recover. Brower v. E.I. DuPont

De Nemours & Co., 117 Idaho 780, 784, 792 P.2d 345, 349

(1990); See Sun Valley Hot Springs Ranch v. Kelsey,

131 Idaho 657, 962 P.2d 1041 (1998).

The trial court found the Merrills’ action involved a

determination of property rights and I.C. § 12-120(3) does

not support an award of attorney fees in such an action.

We agree. The alleged commercial transaction in this case

(leasing the Twenty Acres for operation of a nursery) is not

integral to the quiet title claim. The Merrills quiet title action

12a

Appendix A - |

involves the determination of rights to the Twenty Acres; it

does not involve the validity or breach of a commercial lease.

E. The Merrills are entitled to attorney fees under

1.C. § 12-121.

When faced with an appeal and cross-appeal, an appellate

court may independently consider the appropriateness of an

award for attorney fees in each appeal. Fairfax v. Ramirez,

133 Idaho 72, 982 P.2d 375 (Ct.App.1999). This Court may

award attorney fees on appeal “when this court is left with

the abiding belief that the appeal was brought, pursued or

defended frivolously, unreasonably or without foundation.”

Minich v. Gem State Developers, Inc., 99 Idaho 911,

918, 591 P.2d 1078, 1085 (1979). This Court will not

award attorney fees “where the losing party brought the

appeal in good faith and where a genuine issue of law was

presented.” Jd.

Gibson’s claim that the Idaho Supreme Court’s nunc pro

tunc order is invalid, is frivolous and without foundation. In

addition, Gibson admitted publicly he was a tenant when it

suited his case and cited to irrelevant adverse possession

statutes in support of his claim. As a result, the Merrills are

entitled to attorney fees for defending Gibson’s frivolous

appeal under I.C. § 12-121.

l3a

Appendix A

IV. CONCLUSION

The trial court properly denied Gibson’s I.R.C.P. 40(d)(1)

disqualification motion because senior judges appointed

under I.C. § 1-2005 are excepted from I.R.C.P. 40(d)(1)

motions to disqualify with * cause and the nunc pro tunc

order retroactively and sroperly assigned Judge McKee to

this case in accordance with I.C. § 1-2005. LC. §§ 5-203 and

5-211 are inapplicable and do not bar the Merrills’ quiet title

claims. The trial court properly denied the Merrills’ request

for attorney fees below. The decision of the trial court is

affirmed. The Merrills’ request for attorney fees on appeal is

granted, together with their costs on appeal.

Justices KIDWELL, EISMANN and BURDICK

CONCUR.

Justice SCHROEDER sat but did not participate in the

decision.

l4a

APPENDIX B — ORDER OF THE SUPREME COURT

OF THE STATE OF IDAHO DATED APRIL 16, 2002

IN THE SUPREME COURT OF THE

STATE OF IDAHO

ASSIGNMENT OF SENIOR JUDGE

D. DUFF McKEE

ORDER

A request has been received for judicial assistance in

the Fourth Judicial District and the Court having determined

that the assignment is reasonably necessary and will promote

the efficient administration of justice; thereon,

IT IS HEREBY ORDERED that Senior Judge D. Duff

McKee be, and he hereby is, ASSIGNED to the Fourth

Judicial District to preside in any cases as may be assigned

to him by the Administrative District Judge of the respective

judicial district with the approval of the Administrative

Director of the Courts for purposes of any pending matters

and all proceedings necessary for their final disposition

during the period indicated below:

January 1, 2002 through June 30, 2003

IT IS FURTHER ORDERED that a copy of this Order

shall be placed in a senior judge assignments file to be

maintained by the District Court Clerk as a central register

of all assignment orders.

DATED this 16 day of April 2002, nunc pro tunc January

1, 2002.

15a

Appendix B

By order of the Supreme Court

s/ Gerald F. Schroeder

Gerald F. Schroeder, Vice Chief Justice

ATTEST:

s/ Frederick C. Lyon

Frederick C. Lyon, Clerk

l6a

APPENDIX C — ORDER OF THE SUPREME COURT

OF THE STATE OF IDAHO DENYING PETITION FOR

REHEARING DATED APRIL 12, 2004

IN THE SUPREME COURT OF THE

STATE OF IDAHO

No. 28542

Ref. No. 04RH-9

ORSON MERRILL and LYDIA MERRILL,

husband and wife,

Plaintiffs-Counterdefendants-

Respondents-Cross Appellants,

V.

DAVID GIBSON, an individual, and ALL UNKNOWN

INDIVIDUALS who may claim any interest in the real

property which is the subject of these proceedings,

individually, jointly and severally,

Defendants-Counterclaimants-Appellants-

Cross Respondents.

The Appellant having filed a PETITION FOR

REHEARING on March 19, 2004 and supporting

MEMORANDUM on April 5, 2004 of the Court’s Opinion

released February 27, 2004. Therefore, after due

consideration,

17a

Appendix C

IT IS HEREBY ORDERED that Appellant’s PETIT:ON

FOR REHEARING be, and hereby is, DENIED.

DATED this 12" day of April, 2004.

By Order of the Supreme Court

s/ Frederick C. Lyon

Frederick C. Lyon, Clerk