Syth v. Parke

823 P.2d 760, 121 Idaho 156

• Court: Idaho Supreme Court
• Decided: July 29, 1991
• Docket: 18437
• Status: Published

Opinions

BAKES, Chief Justice.

This appeal arises from a claim of malpractice against a chiropractor. The trial court granted defendants a new trial on grounds of juror misconduct, but sometime later reversed that ruling and denied the new trial. Defendants appeal from the trial court’s reconsideration and reversal of its earlier order granting a new trial.

In July, 1983, plaintiff Thomas Syth slipped at work and injured his back. Following this accident, he consulted with defendant David Parke, a chiropractor located in Sandpoint, Idaho. Dr. Parke performed chiropractic adjustments on Syth beginning in March, 1984. Syth testified that on June 12, 1984, when Dr. Parke adjusted his neck, he instantly suffered a sharp pain in his lower neck. Following this visit, Syth did not see Dr. Parke again. After consulting a series of various doctors and specialists, Syth was ultimately diagnosed as suffering from a congenital fusion in the neck, and Syth eventually had surgery performed to correct that problem. Syth was also diagnosed as suffering from radiculopathy.

In 1986, Syth and his wife initiated this action against Dr. Parke and his wife and several others, alleging malpractice. The other defendants were subsequently dismissed and the case proceeded to trial against Mr. and Mrs. Parke. In February, 1989, the jury returned a verdict in favor of plaintiffs. On March 6, 1989, the defendants moved for j.n.o.v. or, alternatively, new trial, on the basis of juror misconduct and/or irregularities. Apparently, one of the jurors (Austin) contacted counsel for the Parkes and informed him that another juror (Gerow) had stated during deliberations that she had been injured by a chiropractor and that he had done her no good. Gerow also allegedly questioned the appropriateness of the standard of care they were instructed to follow by the trial court and, according to Austin, Gerow appeared to be out for revenge against chiropractors.

Based upon this showing, the trial court granted defendants’ motion for new trial on July 17, 1989. Two days later the plaintiffs filed a motion asking the trial court to reconsider its order granting defendants’ motion for new trial. Subsequently, on August 1, 1989, the trial court entered a counsel-submitted formal written order confirming its July 17, 1989, minute entry order granting defendants’ motion for new trial.

On August 25, 1989, a telephonic hearing was held on plaintiffs’ motion to reconsider the granting of the new trial. The only record of this hearing is in the trial court minutes, which state that the trial court denied plaintiffs’ motion for reconsideration because I.R.C.P. 11(a)(2)(B) prohibits such motions. However, the court minutes further state that the trial court “on own motion will open motion granting new trial.” Shortly thereafter, on September 5, 1989, the plaintiffs filed a notice of appeal from the trial court’s August 1, 1989, written order granting a new trial. On November 13, 1989, the trial court entered a written order reversing its initial oral and written orders granting defendants’ motion for new trial. On December 1,1989, defendant Parke filed a notice of appeal from the November 13, 1989, order. On December 20, 1989, plaintiff Syth dismissed the appeal which he had filed on September 5, 1989.

The following significant dates summarize the action taken in the case:

Chronology of Procedural Motions and Orders:

February 27, 1989 Judgment on jury’s verdict entered

March 6, 1989 Defendants’ motion for new trial filed

July 17, 1989 Trial court orally grants defendants’ motion for new trial at hearing

July 19, 1989 Plaintiffs file written motion for reconsideration of the order granting new trial

August 1, 1989 Written order granting defendants’ motion for new trial filed

August 25, 1989 Telephonic hearing on plaintiffs’ motion for reconsideration—motion denied

August 25, 1989 Trial court’s minutes state that “on own motion will open motion granting new trial”

September 5, 1989 Plaintiffs file notice of appeal from August 1, 1989, order granting new trial

November 13, 1989 Trial court enters a written order reversing his July 17 and August 1 orders granting defendants’ motion for new trial

December 1, 1989 Defendant Parke files a notice of appeal from the November 13, 1989, order reversing the July 17 and August 1 orders

December 20, 1989 Plaintiff Syth dismisses the appeal filed September 5, 1989

The appellants argue that the trial court lacked authority to reconsider its previous order granting a new trial. Appellants point specifically to I.R.C.P. 11(a)(2)(B), Idaho Appellate Rule 13, and Hells Canyon Excursions, Inc. v. Oakes, 111 Idaho 123, 721 P.2d 223 (Ct.App.1986), asserting that I.R.C.P. 11(a)(2)(B) specifically prohibits any motion to reconsider an order granting a new trial, and that I.A.R. 13 provides that once an appeal is filed the trial court loses jurisdiction to take any further action in -the case.

For nearly a century, this Court has followed the general rule that once an appeal is perfected the trial court is divested of jurisdiction of the cause. H and V Engineering v. Board of Professional Engineers, 113 Idaho 646, 747 P.2d 55 (1987); Hell’s Canyon Excursions, Inc. v. Oakes, 111 Idaho 123, 721 P.2d 223 (Ct.App.1986); First Security Bank v. Neibaur, 98 Idaho 598, 570 P.2d 276 (1977); Avondale Irr. Disk v. North Idaho Properties, Inc., 99 Idaho 30, 577 P.2d 9 (1978); Coeur d’Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 461 P.2d 107 (1969); Dolbeer v. Harten, 91 Idaho 141, 417 P.2d 407 (1966); Richardson v. Bohney, 18 Idaho 328, 109 P. 727 (1910) (“[Wjhen the order was appealed from, the court lost jurisdiction, and will have no jurisdiction until the case is remanded from this court.”). Applying this rule in Dolbeer v. Harten, supra, we held that, “Appellants are correct in their contention that the trial court was without authority to pass upon the motion to amend and alter the findings of fact and conclusions of law and vacate the judgment, which was filed after the appeal to this court had been perfected.” 91 Idaho at 144, 417 P.2d at 411. This rule was formerly embodied in I.C. § 13-208, enacted in 1881, and survived in that form until 1977 when it was repealed and replaced by Idaho Appellate Rule 13. Rule 13(b) continued the general rule enunciated in Dolbeer, but modified it to vest the district court with limited jurisdiction during the pendency of an appeal. We recently discussed Rule 13 in H and V Engineering v. Board of Professional Engineers, 113 Idaho 646, 747 P.2d 55 (1987), noting that the district court had no jurisdiction to reconsider and make additional findings of fact after initial findings of fact had already been entered and an appeal taken. We held that, “Once a notice of appeal has been perfected the district court is divested of jurisdiction and the proceedings are stayed during the pendency of the appeal.” 113 Idaho at 648, 747 P.2d at 57. We also noted that, “There are exceptions to this general rule, and they are specifically enumerated in Rule 13.” 113 Idaho at 648, 747 P.2d at 57. Crucial to our holding in the H and V Engineering case was the fact that Rule 13(b) provided no exception for the district court to alter or reconsider its initial findings of fact after an appeal had been taken. We specifically noted that, “Absent from the limited enunciated exceptions to Rule 13 is any provision which authorizes the district court ... to consider and act upon additional findings of fact from the board where, in the interim, appeal of the remand was perfected in this Court.” 113 Idaho at 648, 747 P.2d at 57.

Under Rule 13(b), as outlined in H and V Engineering, the district court has “the power and authority to rule upon the following motions and to take the following actions during the pendency on an appeal:”

(1) Settle the transcript on appeal.

(2) Rule upon any motion for new trial.

(3) Rule on any motion to amend findings of fact or conclusions of law.

(4) Rule on any motion to amend the judgment.

(5) Rule upon any motion for judgment notwithstanding the verdict.

(6) Rule on any motion under Rule 60(a) or (b), I.R.C.P.

(7) Rule on any motion under Rule 11(a)(2)(B), I.R.C.P.

There is no exception in Rule 13(b) granting the district court power to entertain its own motion to reconsider an order granting a new trial. Or, to use the language in H and V Engineering, “Absent from the limited enunciated exceptions to Rule 13 is any provision which authorizes the district court [to entertain its own motion to reconsider an order granting a new trial].” This is particularly the case given the prohibition in I.R.C.P. 11(a)(2)(B), which specifically provides that “there shall be no motion for reconsideration of an order of the trial court entered on any motion [granting a new trial] filed under Rules ... 59(a)____,” whether it be the party’s motion or the trial court’s “own motion,” as was the case here.¹

Neither the motion for reconsideration filed by the plaintiffs nor the trial court’s “own motion” to reconsider the August 1, 1989, order granting a new trial is one of the “enunciated exceptions” which Idaho Appellate Rule 13(b) permits a trial court to take during the pendency of an appeal. H and V Engineering, supra.2

We conclude that, with the filing of the notice of appeal, the trial court lacked jurisdiction, on its “own motion,” to reconsider and reverse its July 17, and August 1, 1989, orders granting defendants’ motion for new trial. H and V Engineering v. Board of Pro. Engineers, 113 Idaho 646, 747 P.2d 55 (1987); Hells Canyon Excursions, Inc. v. Oakes, 111 Idaho 123, 721 P.2d 223 (Ct.App.1986) (once a post-trial motion is decided and an appeal is taken, the lower court has no jurisdiction to reverse its prior order); First Bank & Trust v. Parker Bros., 112 Idaho 30, 730 P.2d 950 (1986); Dolbeer v. Harten, 91 Idaho 141, 417 P.2d 407 (1966); Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923).

JOHNSON, BOYLE and McDEVITT, JJ., concur.

1 . Prior to adoption of the Federal Rules of Civil Procedure, when the granting of new trials was controlled by statute rather than by court rule, this Court interpreted the statute to mean that after the trial court had entered its order on a motion for new trial it did not have jurisdiction to reconsider and change its decision. In Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923), the Court held that, once having ruled upon a motion for new trial and entering an order thereon, the trial court had no jurisdiction to reconsider that decision. The Court issued a writ of prohibition against the trial court, stating, “[T]he clear intent of our statutes is that an order granting or denying a new trial is final and the only remedy is by appeal." 37 Idaho at 781, 219 P. at 204.

2 . The only authority in the Idaho Rules of Civil Procedure giving a trial judge authority to rule on a new trial on its own motion is I.R.C.P. 59(d), which reads:

Rule 59(d). On initiative of court.—Not later than fourteen (14) days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. The court may grant a motion for new trial, timely served, for a reason not stated in the motion. In either case, such order shall be made only after giving the parties notice and an opportunity to be heard on the matter, and the court shall specify in the order the grounds therefor.

In First Bank & Trust v. Parker Bros., 112 Idaho 30, 730 P.2d 950 (1986), this Court discussed the concept of reconsideration by courts of prior decisions and held that a motion for reconsideration "has validity only if it is the equivalent of one of the existing post-trial motions within the Idaho Rules of Civil Procedure, and not as a separate motion per se." The Court in Parker said that in determining whether reconsideration fits into a motion for new trial under Rule 59, or a motion for relief from judgment under Rule 60, “Each of these motions [59 or 60] is accompanied by certain procedural requirements as to time of filing and grounds for filing that movants must meet.” 112 Idaho at 31, 730 P.2d at 951. The Court further held that Rule 60(b)(6) "was not intended to allow a court to reconsider the legal basis for its original decision."

While Rule 59(d) does give a trial court authority to order a new trial on its own initiative, nothing in the rule expressly permits a trial court to reconsider on its own motion a previously issued order granting a new trial. Even if Rule 59(d) were construed to permit a court to reconsider on its own motion an earlier order granting a new trial, the rule requires that such sua sponte action be taken "not later than fourteen (14) days after entry of the judgment____” In this case the trial court's "own motion” to reconsider its prior order granting a new trial was entered in the minutes of the telephonic conference held on August 25, 1989, twenty-five days after the August 1, 1989, written order granting the new trial, thirty-nine days after the July 17, 1989, oral order, and approximately six months after entry of the judgment.