§ Rule 83 Appeals

Rule 83. Appeals

(a) Appeals From Decisions of Magistrates. An appeal from any final judgment, as defined in Rule 54(a) of the Idaho Rules of Civil Procedure, granting or denying a petition for termination of parental rights or granting or denying a petition for adoption must be taken to the Supreme Court in accord with Idaho Appellate Rule 11.1. Otherwise, absent an order allowing a permissive appeal pursuant to Idaho Appellate Rule 12.1, an appeal must first be taken to the district judges division of the district court from any of the following judgments or orders rendered by a magistrate:

(1) A final judgment in a civil action or a special proceeding commenced, or assigned to, the magistrate's division of the district court.

(2) Any of the judgments or orders in an action in the magistrate's division which would be appealable from the district court to the Supreme Court under Rule 11 of the Idaho Appellate Rules.

(3) Domestic Violence Protection Orders issued pursuant to I.C. § 39-6306.

(4) Final orders entered upon current forms approved by the Idaho Supreme Court.

(5) Interlocutory orders by permissive appeal accepted by the district court which shall be processed in the same manner as provided by Rule 12 of the Idaho Appellate Rules.

(6) Any order, judgment or decree by a magistrate in a special proceeding for which an appeal is provided by statute.

Provided, however, that whenever the Supreme Court, upon petition of the administrative district judge of a judicial district, assigns an attorney magistrate to hear any action which may otherwise be tried only by a district judge, any appeal taken from a judgment of such magistrate acting under such order shall be made to the Supreme Court of Idaho, unless otherwise provided by the original order of assignment.

(b) Magistrate Appeals--Judicial Review. All appeals from the magistrate's division shall be heard by the district court as an appellate proceeding. If there is not an adequate record of the proceedings in the magistrate's division, the district court may order a trial de novo or remand the matter to the magistrate's division. All appeals from the small claims department of the magistrates division shall be heard by an attorney magistrate as a trial de novo on the merits.

(d) Record of Proceedings of Magistrate Division. The court in the magistrate's division shall make a verbatim record or recording of all proceedings held before a magistrate.

(e) Filing Appeal. Except for the filing of an appeal from a small claim judgment as provided in Rule 81(l), an appeal to a district court from the magistrate's divisions must be filed with the appropriate district court within 42 days after entry of the judgment or order. Provided, however, that in the magistrate's division the running of the time for appeal from a final judgment is suspended by (1) a timely motion for a judgment notwithstanding the verdict following a timely motion for a directed verdict, (2) a timely motion to amend or make additional findings of fact or conclusions of law, whether or not alteration of the judgment is required if the motion is granted, (3) a timely motion to alter or amend the judgment (except motions under Rule 60 or motions regarding costs and attorney fees) or (4) a timely motion for new trial; and the full time for appeal from such a final judgment commences to run and is to be computed from the date of the clerk's filing stamp on any order granting or denying any of the above motions. An appeal is commenced by the filing of a notice of appeal with the district court, and the appellant shall forthwith serve copies of the notice of appeal upon the court appealed from and all other parties to the action. On appeals from judgments or decisions in a juvenile proceeding, a copy of the notice of appeal shall be served upon the prosecuting attorney of the county in which the juvenile proceeding was held.

(f) Notice of Appeal--Contents. A notice of appeal to the district judges division of the district court filed pursuant to this rule shall contain the following information and statement:

(1) The title of the court from which the appeal is taken.

(2) The title of the court to which the appeal is taken.

(3) The date and heading of the judgment or decision from which the appeal is taken.

(4) A statement as to whether the appeal is taken upon matters of law, or upon matters of fact, or both.

(5) A statement as to whether the testimony and proceedings of the original trial or hearing were recorded or reported, together with an identification of the method of recording or reporting and the name of the party or person in whose possession such recording or reporting is located.

(6) A statement of the issues on appeal which the appellant then intends to assert in the appeal; provided, such statement may be filed separately within fourteen (14) days after the filing of the notice of appeal and any such list of issues on appeal shall not prevent the appellant from asserting other issues on appeal thereafter discovered by the appellant.

(g) Cross Appeals. When an appeal is filed and served upon all parties required by this rule more than 28 days from the entry of a judgment or order, a cross appeal may be filed by any opposing party within 14 days from the date such party is served with a copy of the notice of appeal.

(h) Filing of Bond. [Rescinded May 25, 1977, effective July 1, 1977]

(i) Stay During Appeal--Powers of Magistrate.

(1) Stay of Proceedings. The filing and perfection of an appeal to the district court shall automatically stay the proceeding and execution of any judgment or order appealed from by the appellant for a period of fourteen (14) days. Any further stay shall be only by order of the presiding magistrate or the district court.

(2) Powers of Magistrate. During the pendency of an appeal from the magistrate's division to the district court, and any further appeal to the Supreme Court, the magistrate shall have the same powers and authority granted to a district judge by Rule 13(b) of the Idaho Appellate Rules during an appeal to the Supreme Court.

(j) Method of Appeal--Transcript of Proceedings--Listening to Recording Tapes--Trial De Novo.

(1) Transcript Required. Unless otherwise ordered by the district judge, a transcript shall be prepared as provided in Rule 83(k) and the appeal shall be heard as an appellate proceeding.

(2) Alternate Methods of Hearing Appeal. The district judge assigned the appeal may, on the court's own motion or motion of a party, order an alternate method of hearing the appeal by ordering:

(A) That the appeal involves a question of law only so that no transcript is required and the appeal will be decided on the clerk's record, the briefs of the parties and oral argument; or

(B) That the appeal should be heard as an appellate proceeding by listening to the recording tapes without a transcript; or

(C) That the appeal shall be heard as a trial de novo because there is not an adequate record of the proceedings in the magistrate's division.

(3) Hearing on Question of Law. If the district judge determines that the appeal can be heard as a question of law alone, without the necessity of a transcript or a trial de novo, he shall enter an order to that effect stating the issue of law to be determined on appeal and set a day certain for the filing of the appellant's opening brief based upon the clerk's file and the order of the court.

(4) Listening to or Viewing Tapes. If the district judge determines that the appeal should be heard by listening to or viewing the tapes of the trial or proceedings of the trial court, it shall enter an order to that effect and direct a time within which the parties shall review, view, or listen to the recording tapes and set a date certain for the filing of appellant's opening appellate brief.

(5) Special Transcript. If the district judge does not require the preparation of a transcript on appeal, the district judge shall nevertheless, upon motion of any party to the appeal, order the preparation of a transcript of the proceedings at the cost of the moving party which shall require the moving party to pay the estimated transcript fees within fourteen (14) days of entry of such order and the clerk of the court shall serve a copy of such order upon the transcriber of the trial or proceedings of the trial court.

(k) Payment of Fees--Preparation of Transcript. Unless otherwise ordered by the district judge, the transcript shall be prepared in the following manner:

(1) Payment of Transcript Fee. Unless otherwise ordered by the district judge, the appellant shall pay the estimated fee for preparation of the transcript as determined by the transcriber within 14 days after the filing of the notice of appeal, and the appellant shall pay the balance of the fee for the transcript upon its completion. The appellant shall pay a sum per page for the original and (2) copies of the transcript to be prepared by the transcriber equal to the dollar amount per page provided for the cost of a transcript prepared by a court reporter under Section 1-1105, Idaho Code. Such sum shall be paid to the clerk of the court of the magistrate's division and deposited in the district court fund, or such other fund which incurred the expense of the person who prepared the transcript. If the transcript is prepared by a transcriber or reporter privately retained by appellant, the cost therefor shall be paid by the appellant as agreed, but for purposes of taxing costs, the cost shall be deemed to be the same as provided in this rule. The district judge may order a transcript prepared at county expense if the appellant is exempt from paying such fee as provided by statute or law.

(2) Preparation of Transcript. Upon the payment of the estimated transcript fees, the transcriber shall give a receipt to the party paying such fees and shall thereafter prepare the transcript and lodge the same with the clerk of the trial court within thirty-five (35) days from the date of payment of the estimated fee. The transcriber may make application to the district judge for an extension of time in which to prepare the transcript, which shall be granted only for good cause shown.

(3) Certificate. The transcript must be examined and certified by the typist by a certificate in substantially the following form:

CERTIFICATE OF TRANSCRIPTION

The undersigned does hereby certify that he or she correctly and accurately transcribed and typed the above transcript from the recording of the

[Describe hearing: e.g., trial, hearing on motion for summary judgment, etc.]

which was recorded on (date) in the above entitled action or proceeding.

Dated and certified this ____ day of _______.

__________

Transcriber

(l) Form of Transcript. All transcripts of testimony and proceedings prepared for an appeal to the district court shall be in such form and arrangement as required for appeals to the Supreme Court under statutes and rules of the Supreme Court.

(m) Transcript of Administrative Proceedings. [Rescinded effective July 1, 1995]

(n) Clerk's Record. The official court file of any court proceeding appealed to the district court, including any minute entries or orders together with the exhibits offered or admitted shall constitute the clerk's record in such appeal. Upon the determination of any appeal to the district court, and the expiration of the time for appeal to the Supreme Court, the original clerk's record shall be returned to the magistrate division together with the order or other disposition rendered by the district court on the appeal. No copies of the clerk's record need be prepared unless ordered by the district court.

(o) Settlement of Transcript. Upon receipt of the transcript of the testimony and proceedings, the clerk of the trial court shall mail or deliver a notice of lodging of transcript to all attorneys of record, or parties appearing in person. The original of the transcripts shall be retained by the clerk of the court, but the notice shall advise the plaintiff and defendant that they may pick up a copy of the transcript at the clerk's office and that the parties have 21 days from the date of the notice in which to file any objections to the transcript; and the notice shall further advise the appellant to pay the balance of the fees for the preparation of the transcript, if any, before the copy of the transcript will be delivered to the appellant. Where there are multiple parties, they shall determine by agreement the manner and time of use of the transcript by each party, or failing such agreement, such determination shall be made by the trial court upon application by any party. Any party may object to the content of the transcript within 21 days from the date of mailing of the notice to the parties that the transcripts have been lodged with the court. Upon failure of the parties to file any objection within such time period, the transcript shall be deemed settled. Any objection made to a trial transcript shall be heard and determined by the trial court in the same manner as a motion.

(p) Filing of Transcript and Record. Within seven (7) days of the settlement of the transcript, or within seven (7) days of receipt of an order of the district court that no transcript is needed or required, the clerk of the trial court shall file with the district court the transcript, if any, the clerk's record, and all exhibits offered or admitted in the proceeding. The clerk of the trial court shall give notification of such filing to all parties or their attorneys. Any electronic recording tape or belt used to record or transcribe the testimony and proceedings need not be forwarded to the clerk of the district court unless ordered by the district court.

(q) Augmentation of the Record. Any party desiring to augment the transcript and record may file a motion with the district court within 21 days of the filing of the settled transcript and record in the same manner and pursuant to the same procedure provided for augmentation of the record in appeals to the Supreme Court.

(r) Joint Use of Transcript. Multiple parties may jointly use a transcript on appeal, or any party desiring a separate copy may obtain the same by paying the transcriber $1.00 per page.

(s) Effect of Failure to Comply With Time Limits. The failure to physically file a notice of appeal or notice of cross-appeal with the district court within the time limits prescribed by these rules shall be jurisdictional and shall cause automatic dismissal of such appeal upon motion of any party, or upon initiative of the district court. Failure of a party to timely take any other step in the appellate process shall not be deemed jurisdictional, but may be grounds only for such other action or sanction as the district court deems appropriate, which may include dismissal of the appeal.

(t) Motions. All motions on appeal shall be filed with the district court, except those expressly required to be filed in the trial court, and served upon the parties in the same manner as motions before a trial court under these rules. All motions must be accompanied with a brief in support thereof. The opposing party shall have 14 days from service to file a response or reply brief and the motion shall be determined without oral argument unless ordered by the court.

(u) Appellate Review. The scope of appellate review on an appeal to the district court shall be as follows:

(1) Upon an appeal from the magistrate's division of the district court, not involving a trial de novo, the district court shall review the case on the record and determine the appeal as an appellate court in the same manner and upon the same standards of review as an appeal from the district court to the Supreme Court under the statutes and law of this state, and the appellate rules of the Supreme Court.

(2) Upon an appeal from the magistrates division of the district court involving a trial de novo, the district court shall render a decision in the action as a trial court as though the matter were initially brought in the district court.

(v) Appellate Briefs. Briefs shall be in the form and arrangement and filed and served within the time provided by rules for appeals to the Supreme Court unless otherwise ordered by the district court; provided that such briefs may be typewritten and copies may be carbon copies or photo copies. Only one (1) original signed brief need be filed with the court and copies shall be served on all other parties.

(w) Appellate Argument. Appellate argument may be heard by the district court after notice to the parties in the same manner as notice of hearing of a motion before a trial court under these rules.

(x) Other Appellate Rules. Any appellate procedure not specified or covered by these rules shall be in accordance with the appropriate rule of the I.R.C.P. or the I.A.R. to the extent the same is not contrary to this Rule 83. These rules shall be construed to provide a just, speedy and inexpensive determination of all appeals.

(y) Listening to or Copying Recording Tapes. Any party to an action in the magistrates division may listen to or copy an electronic tape or belt recording of the trial or hearing proceedings under such rules and for such fee as adopted by the majority of the district judges of the judicial district. The fee charged under this rule shall be transmitted to the county treasurer of the county in which the trial or hearing occurred for deposit in the current expense fund of the county and credited back to the clerk's budget.

(z) Judgment Entered on Appeal.

(1) Trial de Novo. If an appeal is heard as a trial de novo, upon determination of the appeal the district judge shall enter a judgment as required by Rule 58(a).

(2) Appellate Review. If an appeal is heard on the record, upon determination of the appeal the district judge shall enter an appellate judgment which shall include instruction to the magistrate. The clerk shall file stamp the appellate ruling and mail copies to the parties and the presiding magistrate. The original appellate ruling shall be filed in the court file which is returned to the magistrate division as provided by Rule 83(n).

(A) Remittitur From District Court. If no appeal to the Supreme Court is filed within forty-two (42) days after the clerk files the appellate ruling, the clerk shall issue and file a remittitur with the magistrate court from which the appeal was taken and mail copies to the parties and the presiding magistrate. The remittitur shall advise the magistrate judge that the opinion has become final and that the magistrate shall forthwith comply with the directive of the opinion.

(B) Remittitur From Supreme Court or Court of Appeals. When the Supreme Court or Court of Appeals files a remittitur with the district court in a case that was initially appealed from the magistrate division of the district court, the clerk of the district court shall mail a copy of such remittitur to the presiding magistrate.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.