                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41764

STATE OF IDAHO,                                 )    2014 Unpublished Opinion No. 871
                                                )
       Plaintiff-Respondent,                    )    Filed: December 17, 2014
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
MITCHELL RYAN NILAN,                            )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge. Hon. Theresa Gardunia,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate, dismissing
       appeal, affirmed.

       Alan E. Trimming, Ada County Public Defender; Heidi Johnson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Judge
       Mitchell Ryan Nilan appeals from the district court’s order on intermediate appeal,
dismissing his appeal. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Nilan was charged with illegal consumption of alcohol by a minor and possession of an
open container. Nilan entered pleas of not guilty on April 5, 2013. On May 10, Nilan filed a
motion to suppress. The state opposed the motion, arguing that pursuant to I.C.R. 12(d), Nilan
had twenty-eight days from the date he entered his pleas to file any Rule 12(d) motions and that
the motion to suppress was untimely. The state further argued that Nilan had failed to show any
good cause or excusable neglect for the late filing. Nilan filed a memorandum in support of his

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motion to suppress and the magistrate heard argument regarding the timeliness of Nilan’s motion
to suppress. The magistrate found that Nilan failed to demonstrate good cause or excusable
neglect to justify the late filing and declined to hear Nilan’s untimely motion to suppress. Nilan
entered conditional guilty pleas to illegal consumption and open container, reserving the right to
challenge the adverse ruling regarding his motion to suppress. Nilan appealed to the district
court.
         On August 13, 2013, the district court entered an order requiring Nilan to file and serve
his appellant’s brief on or before December 2, 2013. On December 2, Nilan filed a “Stipulation
for New Briefing Schedule,” which was signed by Nilan’s counsel and the prosecutor, requesting
that the briefing schedule be vacated at the district court’s convenience. The district court denied
the request and entered an order dismissing Nilan’s appeal.              Nilan filed a motion for
reconsideration and an affidavit in support thereof from his counsel. The district court denied the
motion to reconsider, noting in handwriting on the face of the motion “no showing of good
cause.” Nilan appeals.
         Nilan raises several issues on appeal, including whether the district court abused its
discretion when it declined to accept the stipulation for new briefing schedule; whether the
district court abused its discretion when it denied Nilan’s motion for reconsideration; whether the
district court’s sua sponte dismissal of Nilan’s appeal was in error; and whether the district court
violated Nilan’s right to due process when it dismissed his appeal. 1
                                                  II.
                                    STANDARD OF REVIEW
         For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415,
224 P.3d 480, 482 (2009). If those findings are so supported and the conclusions following

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        Nilan also argues the magistrate abused its discretion when it declined to entertain
Nilan’s motion to suppress, which he concedes was untimely filed. We will not address this
issue because this Court is jurisdictionally bound to review the district court, which did not reach
the issue due to the appeal being dismissed. See State v. Trusdall, 155 Idaho 965, 968, 318 P.3d
955, 958 (Ct. App. 2014).
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therefrom, and if the district court affirmed the magistrate’s decision, we affirm the district
court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review the
decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App.
2014). Rather, we are procedurally bound to affirm or dismiss the decisions of the district court.
Id. When a court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as
one of discretion; (2) whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it; and (3) whether
the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
                                                III.
                                           ANALYSIS
A.     Stipulated Briefing Schedule
       Nilan argues the district court abused its discretion when it denied the “Stipulation for
New Briefing Schedule,” which was, essentially, a stipulated motion for an extension of time to
file his brief. The issue is whether the district court abused its discretion by denying the
stipulated motion. In support of his argument, Nilan cites an unrelated case and alleges that the
district court had recently accepted a stipulation for a new briefing schedule, following a similar
procedure as the stipulation in this case. Nilan argues that “it follows that as briefing schedules
have been vacated in prior cases and in this case simply denied with no explanation, that it is an
abuse of discretion.” Nilan further argues that “what is even more particularly egregious in this
case is that the parties had stipulated to the extension of time.” Nilan appears to assert that, when
a similar motion is granted in an unrelated case or when parties stipulate to a motion, the court is
somehow bound or, at least, that the denial of the motion is an especially egregious abuse of
discretion. Nilan has provided no authority to support his argument. A party waives an issue on
appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d
966, 970 (1996). Contrary to Nilan’s position, I.A.R. 34(e)(6), which is made applicable by
I.C.R. 54.15, explicitly states, regarding motions for extension of time for filing a brief, that a
“stipulation shall not be binding upon the Court” and that “extensions of time for filing briefs
shall not be favored and will be granted by the Supreme Court only upon a showing of good



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cause.” In this case, there is no evidence in the record that Nilan showed good cause for granting
the extension of time to file his brief.
        Further, the “Stipulation for New Briefing Schedule” fails to follow the requirements of
Rule 34(e) for making a motion for extension of time to file a brief. Rule 34(e) requires that a
motion for extension of time for filing a brief shall be supported by an affidavit and then lists
eight requirements. There is no evidence in the record that Nilan filed an affidavit, setting forth
the eight requirements of Rule 34(e). It is the responsibility of the appellant to provide a
sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872,
873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to
support the appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105,
803 P.2d 1009, 1011 (Ct. App. 1991). Nilan failed to follow the statutory requirement for a
motion for an extension of time to file a brief. In addition, Nilan failed to show good cause for
the extension. The district court correctly identified these decisions as calling for the exercise of
its discretion, acted within the boundaries of its discretion and consistent with the applicable
legal standards, and reached its decisions by an exercise of reason. Therefore, the district court
did not err in denying Nilan an extension of time to file his brief.
B.      Sua Sponte Dismissal
        Nilan argues the district court erred when it dismissed Nilan’s appeal sua sponte.
Specifically, Nilan argues that, since Rule 34(e) “allows for filing for an extension up until the
due date for the appellate brief, it follows that if that request is denied the Court must then
provide the moving party a reasonable period of time after the denial to submit the briefing to the
court before dismissing the appeal.” Nilan is essentially asserting that, when a party waits until
the last day to file a motion for extension of time, if the court denies the motion, the court must
nevertheless provide the party with additional time to file its brief. We are not persuaded. When
a party waits until the last minute to file a motion, that party runs the risk of having insufficient
time to file its brief if the motion is denied, which is what occurred in this case. Failure of a
party to timely take any step in the appellate process (other than filing a notice of appeal or
cross-appeal) is not jurisdictional, but may be grounds for such action or sanction as the district
court deems appropriate, including dismissal of the appeal. I.R.C.P. 83(s); State v. Langdon, 117
Idaho 115, 117, 785 P.2d 679, 681 (Ct. App. 1990). The district court is granted the discretion,
by I.R.C.P. 83(s), to take action when a party fails to timely take any step in the appellate

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process. Langdon, 117 Idaho at 117, 785 P.2d at 681. Thus, if a district court deems dismissal
to be an appropriate sanction for failing to timely file briefs, the district court has the authority to
act sua sponte in dismissing the appeal. See id. In this case, the district court deemed the
appropriate response to Nilan’s failure to file a brief by the deadline to be dismissed. The district
court correctly identified this decision as calling for the exercise of its discretion, acted within
the boundaries of its discretion and consistent with the applicable legal standards, and reached its
decision by an exercise of reason. Although the district court could have imposed a less onerous
sanction under the circumstances, the district court did not abuse its discretion when it exercised
a power granted to it, by dismissing Nilan’s appeal for failing to comply with the district court’s
briefing schedule.
C.      Motion for Reconsideration
        Nilan argues the district court abused its discretion when it denied Nilan’s motion for
reconsideration.     A motion for reconsideration is reviewed under the abuse of discretion
standard. State v. Montague, 114 Idaho 319, 320, 756 P.2d 1083, 1084 (Ct. App. 1988). The full
extent of Nilan’s briefing on this claim is his conclusion that based upon the record presented to
this Court, the district court abused its discretion by denying his motion for reconsideration.
Nilan provides no argument or authority to support his assertion. A party waives an issue on
appeal if either authority or argument is lacking. See Zichko, 129 Idaho at 263, 923 P.2d at 970.
Because authority and argument are lacking on this issue, the issue is waived and this Court need
not address it further. Although not particularly argued, Nilan may imply that the district court
was required to accept his asserted reasons for the request upon the motion for reconsideration,
even though not provided at the time of the original request. That is simply not so. In addition,
Nilan’s belated attempt to establish good cause did not persuade the district court that good cause
was established. Nilan has not demonstrated to this Court that the district court’s determination
that good cause was not established, even with the information submitted with the motion for
reconsideration, was erroneous.
D.      Due Process
        Nilan argues his right to procedural due process was violated when the district court
dismissed his appeal without notice and a hearing. Where a defendant claims that his or her right
to due process was violated, we defer to the trial court’s findings of fact, if supported by
substantial evidence. State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794 (Ct. App. 2001).

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However, we freely review the application of constitutional principles to those facts found. Id.
A procedural due process inquiry is focused on determining whether the procedure employed is
fundamentally fair. State v. Blair, 149 Idaho 720, 722, 239 P.3d 825, 827 (Ct. App. 2010). The
Due Process Clause of the Fourteenth Amendment prohibits deprivation of life, liberty, or
property without fundamental fairness through governmental conduct that offends the
community’s sense of justice, decency and fair play. State v. Carr, 128 Idaho 181, 183-84, 911
P.2d 774, 776-77 (Ct. App. 1995). Procedural due process is the aspect of due process relating to
the minimal requirements of notice and an opportunity to be heard if the deprivation of a
significant life, liberty, or property interest may occur. State v. Doe, 147 Idaho 542, 544, 211
P.3d 787, 789 (Ct. App. 2009). The minimal requirements are that there must be some process to
ensure that the individual is not arbitrarily deprived of his or her rights in violation of the state or
federal constitutions. State v. Rhoades, 121 Idaho 63, 72, 822 P.2d 960, 969 (1991). The
minimum requirements are met when the defendant is provided with notice and an opportunity to
be heard. Id.
       Where an order dismissing an appeal has been entered sua sponte, without prior notice
and opportunity to be heard or to respond by memorandum, concerning the reason for a
contemplated dismissal, justice requires an opportunity to seek the court’s reconsideration.
Langdon, 117 Idaho at 118, 785 P.2d at 682. In Langdon, the district court dismissed the
appellant’s appeal for failing to file his brief by the prescribed deadline. The district court’s
dismissal order prohibited the appellant from filing a petition for reconsideration. This Court
reversed and remanded to the district court, directing the district court to afford the appellant an
opportunity to file a motion for reconsideration. Unlike the appellant in Langdon, in this case
Nilan had an opportunity to seek the district court’s reconsideration, which he did through
memorandum. This was sufficient to satisfy the requirements of due process. Therefore, the
district court did not violate Nilan’s right to due process when it dismissed his appeal.
                                                  IV.
                                          CONCLUSION
       The district court did not abuse its discretion in denying Nilan an extension of time to file
his brief, in acting sua sponte in dismissing his appeal, or in denying his motion for
reconsideration. Further, the district court did not violate Nilan’s right to due process when it



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dismissed his appeal. Therefore, we affirm the district court’s order on intermediate appeal
dismissing Nilan’s appeal.
       Judge LANSING and Judge GRATTON, CONCUR.




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