               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41483

HEATHER G. BROWN,                               )     2014 Opinion No. 92
                                                )
       Plaintiff-Respondent,                    )     Filed: October 31, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
MICHAEL L. BROWN,                               )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson, District Judge; Hon. Scott L.
       Wayman, Magistrate.

       Judgment dismissing appeal, vacated, and case remanded.

       Madsen Law Offices, P.C.; Henry D. Madsen, Coeur d’Alene, for appellant.

       Amendola Doty & Brumley, PLLC; Jennifer K. Brumley, Coeur d’Alene, for
       respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Michael L. Brown appeals from the judgment of the district court dismissing his appeal
as untimely. For the reasons that follow, we vacate and remand.
                                               I.
                                 FACTS AND PROCEDURE
       This appeal arises out of a divorce proceeding begun by Heather G. Brown (Heather)
against Michael. On June 13, 2013, a magistrate signed a divorce decree, and the clerk of the
district court file stamped the decree on June 14. On June 28, the clerk faxed the decree to
Heather’s attorney and to a number that was printed next to Michael’s attorney’s name on the
certificate of service. However, according to an affidavit from Michael’s attorney, the attorney
did not receive the faxed copy of the decree that was sent on June 28. The facsimile number
printed on the certificate of service, which was part of the divorce decree prepared by Heather’s
attorney, was not the same facsimile number printed on Michael’s attorney’s notice of



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appearance. Moreover, the certificate of service does not indicate that the court clerk mailed a
copy of the decree to either party. Michael’s attorney first learned of the decree on July 23,
during a telephone conversation with Heather. Heather then emailed a copy of the decree to
Michael’s attorney around 5:30 p.m. that day, but the attorney did not receive the email until the
next afternoon, forty days after the decree was entered. On July 24, the attorney’s legal assistant
obtained a copy of the decree from the courthouse. Additionally, the certificate of service that
accompanied the decree in the record contains a handwritten notation that the decree was refaxed
on July 24 to the correct facsimile number that was originally listed on Michael’s attorney’s
notice of appearance.
       On July 26, Michael’s attorney faxed a notice of appeal to the district court at 5:08 p.m.
The clerk of the district court file stamped the notice of appeal on July 29, the next business day.
Michael then filed an amended notice of appeal, and Heather filed a motion to dismiss,
contending that the notice of appeal was not timely filed. Michael responded to Heather’s
motion and included an affidavit from Michael’s attorney and the attorney’s legal assistant. 1 The
district court dismissed the appeal as untimely. Michael appeals.
                                                II.
                                           ANALYSIS
       Michael raises three issues on appeal; first, whether the district court erred by dismissing
his appeal as untimely; second, whether Idaho Rule of Civil Procedure 77(d) extended the time
in which Michael had to file his appeal; and third, whether Michael is entitled to attorney fees
and costs on appeal. Heather also seeks attorney fees and costs on appeal. We begin by
addressing Michael’s first and second issues together.
A.     Timeliness of Michael’s Appeal
       A divorce decree issued by a magistrate in accord with I.R.C.P. 54(a) is a final judgment.
Under I.R.C.P. 83(a), a party may appeal to the district court from a final judgment issued by a



1
        The affidavit from Michael’s attorney explains his busy workload during the timeframe
from when he learned of the file-stamped decree and when the notice of appeal would have been
due. Michael’s attorney also details that Michael lives out of state, is disabled, and at times has
difficulty understanding the legal process. The attorney’s legal assistant describes the steps he
took in readying the appeal, including obtaining a copy of the divorce decree, preparing a notice
of appeal, telephoning the clerk of the district court to determine the fees for transcripts, and
attempting to contact Michael.

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magistrate. The appeal must be filed within forty-two days after the entry of the judgment.
I.R.C.P. 83(e); see also I.R.C.P. 6(a) (defining how time is computed). A judgment is entered
once it is has been file stamped by the clerk of the district court. I.R.C.P. 58(a); State v. Ciccone,
150 Idaho 305, 306-07, 246 P.3d 958, 959-60 (2010). An appeal is commenced by filing a
notice of appeal with the district court, I.R.C.P. 83(e), and the notice may be filed by facsimile,
see I.R.C.P. 5(e). Facsimile filings may be made to the court only during the normal working
hours of the clerk and only if there is a facsimile machine in the office of the filing clerk of the
court. I.R.C.P. 5(e)(2). “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.” I.R.C.P. 83(s).
       The forty-two-day time period to file an appeal may be tolled under certain conditions.
Idaho Rule of Civil Procedure 77(d) requires the clerk of the district court to serve a copy of the
judgment on the parties by mailing or delivering to the attorney of record of each party
immediately upon the entry of an order or judgment. The rule generally provides that the lack of
notice of entry of the judgment does not affect the time to appeal:
       Lack of notice of entry of an order or judgment does not affect the time to appeal
       or to file a post-judgment motion, or relieve or authorize the court to relieve a
       party for failure to appeal or file a post-trial motion within the time allowed,
       except where there is no showing of mailing by the clerk in the court records and
       the party affected thereby had no actual notice.

I.R.C.P. 77(d). Therefore, if the clerk fails to comply with the procedure in Rule 77(d) before
the time for filing an appeal expires, and a party does not receive actual notice of entry of the
judgment before the time for filing an appeal expires, the time to file an appeal runs from the
date the party seeking to appeal receives actual notice. Dustin v. Beckstrand, 103 Idaho 780,
786, 654 P.2d 368, 374 (1982); Cline v. Roemer, 97 Idaho 666, 668, 551 P.2d 621, 623 (1976);
Herrett v. Herrett, 105 Idaho 358, 360, 670 P.2d 63, 65 (Ct. App. 1983). The Idaho Supreme
Court has determined that actual notice of the entry of judgment--that is, actual notice of the
placement of the clerk’s filing stamp on the judgment--approximately two weeks prior to the




                                                   3
time to file an appeal expires would render a late-filed appeal untimely. 2 See Thompson v. Pike,
122 Idaho 690, 695, 838 P.2d 293, 298 (1992) (“If Thompson had actual notice of the placement
of the clerk’s filing stamp on the summary judgment order more than fourteen days prior to the
filing of the motion to alter or amend the judgment, the motion would have been untimely.”); see
also Tanner v. Estate of Cobb, 101 Idaho 444, 445, 614 P.2d 984, 985 (1980) (“We conclude that
although there is no showing in the court records of a mailing of notice of entry of judgment,
where appellants’ counsel had actual notice of entry of judgment thirteen days prior to expiration
of the time for filing an appeal, appellants’ notice of appeal filed forty-four days after the entry
of judgment was not timely.”).
       The issue of whether a district court erred by dismissing an appeal as untimely (and thus
for lack of subject matter jurisdiction) is a question of law, over which we exercise free review.
See Chapple v. Madison Cnty. Officials, 132 Idaho 76, 78, 967 P.2d 278, 280 (1998) (“The issue
of whether a district court has subject matter jurisdiction is a question of law, over which we
exercise free review.”); cf. Herrett, 105 Idaho at 359, 670 P.2d at 64 (addressing sua sponte the
timeliness of the filing of the notice of appeal).
       In this case, the magistrate’s divorce decree qualifies as a final judgment under
Rule 54(a), and it is thus appealable under Rule 83. The forty-two-day time period to file an
appeal is computed from the date the judgment was file stamped, Ciccone, 150 Idaho at 307, 246
P.3d at 960, excluding the day that the judgment was file stamped from the time computation,
I.R.C.P. 6(a). Therefore, the normal deadline to file a notice of appeal was Friday, July 26, 2013.
Here, Michael faxed a notice of appeal to the district court on July 26, but the fax was not
received until 5:08 p.m. This was after the normal working hours of the clerk. 3 Because the fax



2
        The Idaho Supreme Court previously used the phrase “actual knowledge of the
judgment” during its discussion of Idaho Rule of Civil Procedure 77(d), Cline v. Roemer, 97
Idaho 666, 668, 551 P.2d 621, 623 (1976), but the Idaho Supreme Court has since clarified that it
is actual knowledge of the entry of the judgment that constitutes actual notice, Thompson v. Pike,
122 Idaho 690, 695, 838 P.2d 293, 298 (1992).
3
        Michael does not challenge the fact that the clerk of the district court file stamped the
notice of appeal on Monday, July 29, 2013. We also take judicial notice, as permitted under
Idaho Rule of Evidence 201, of the fact that the office hours for the district court of the First
Judicial District in Kootenai County are “Monday - Friday 9:00 a.m. to 5:00 p.m.” FIRST
JUDICIAL DISTRICT, http://www.co.kootenai.id.us/departments/districtcourt/ (last visited

                                                     4
was not received during the normal working hours of clerk, I.R.C.P. 5(e), the notice of appeal
was not timely filed.
       Although the notice of appeal was untimely under I.R.C.P. 83(e), Michael claims that
Rule 77(d) should apply to this case. Even though Heather informed Michael’s attorney of the
decree on July 23, for our analysis we consider that Michael had actual notice of the entry of the
decree when he received the emailed decree from Heather on July 24, the same day he received
formal notice from the clerk of the district court. 4 See, e.g., Dustin, 103 Idaho at 786, 654 P.2d
at 374 (holding that the receipt of a writ of execution that specifically set forth the case and the
amount of damages awarded was “sufficient notice to constitute ‘actual notice.’”). Neither this
Court nor the Idaho Supreme Court has addressed a situation analogous to this in which Michael
had but two days to file an appeal. The closest scenario we have addressed was in Herrett, an
appeal in which the appellant had actual notice ten days before the time to appeal expired.
Herrett, 105 Idaho at 361, 670 P.2d at 66. In that case, we explained that the Idaho Supreme
Court’s ruling in Tanner was based on the conclusion “that the appellant had sufficient notice to
file his appeal before the original period expired and therefore it was not necessary to toll the
period, even though the clerk did not give notice.” Herrett, 105 Idaho at 360, 670 P.2d at 65.
Citing to Tanner, we held in Herrett that the appellant still had sufficient notice to file an appeal:
“Because appellant received actual notice through his counsel, while the original period was still
running and while opportunity to file an appeal still existed, we hold that the time for appeal
began to run from entry of judgment and expired irrevocably on May 10.” Herrett, 105 Idaho at
361, 670 P.2d at 66 (emphasis added).
       Consistent with our analysis and discussion in Herrett, we are persuaded that district
courts, when considering whether to apply Rule 77(d) tolling for an appeal from the magistrate




September 25, 2014). Accordingly, a fax received after 5:00 p.m. would not be received during
the normal working hours.
4
        We note that we would reach the same result in this case, even if we considered that
Michael had actual notice of the entry of the decree on July 23. We also note that under Idaho
Supreme Court precedent, if formal notice had not been served on Michael, and Heather had not
given actual notice to Michael’s attorney until after the clerk’s normal working hours on Friday,
July 26, 2013, the time for filing an appeal would run anew from the day Michael received actual
notice.

                                                  5
division, should examine whether the party that filed the late appeal had reasonably sufficient
notice (time) to file a notice of appeal and whether the party filed the late notice of appeal within
a reasonable time after the time to file an appeal under I.R.C.P. 83(e) had expired. This is not a
mechanistic function, as the district court in this case may have believed; to be sure, actual notice
of entry of judgment just one minute before the deadline would not fall outside the tolling of
Rule 77(d). Rather, the district courts should consider the burdens placed on the party filing an
appeal. Idaho Rule of Civil Procedure 83(f) 5 dictates what a notice of appeal from the magistrate
division to the district court must contain:
       (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.

In addition, the Idaho Rules of Professional Conduct, namely Rule 1.4 pertaining to
communication between the lawyer and client, are also at play in preparing an appeal.
       Although the district court did not decide whether Michael had sufficient notice to file a
notice of appeal, we need not remand the case for specific findings because the record in this
case is clear and undisputed. Rose v. Showalter, 108 Idaho 631, 633, 701 P.2d 251, 253 (Ct.
App. 1985) (citing Pope v. Intermountain Gas Co., 103 Idaho 217, 646 P.2d 988 (1982)). In his
affidavit before the district court, Michael’s attorney stated that Heather informed him of the
decree and emailed a copy of the divorce decree to him after 5:00 p.m. on July 23, although he
did not receive and reply to the email until the afternoon of July 24. Thus, Michael had actual



5
         The notice of appeal filed by Michael’s attorney appears to conform to the requirements
listed in Idaho Appellate Rule 17. Idaho Appellate Rule 17 is more onerous than I.R.C.P. 83(f),
but I.A.R. 17 only applies to appeals to the Idaho Supreme Court, I.A.R. 2(a).

                                                 6
notice of the entry of the decree on the fortieth day and this left Michael’s attorney two days to
prepare a notice of appeal and satisfy the rules of professional conduct. In this two-day span,
Michael’s attorney would have had to inform Michael of the final divorce decree, I.R.P.C.
1.4(a)(3); supply a copy of the final divorce decree to Michael, if requested, I.R.P.C. 1.4(a)(4);
consult with Michael about filing an appeal, I.R.P.C. 1.4(a)(2); and secure Michael’s consent to
file an appeal, I.R.P.C. 1.4(a)(1). Likely before obtaining Michael’s consent to file an appeal,
Michael’s attorney would have had to determine the estimated costs of pursuing the appeal,
including transcript fees and other fees paid to the court. If Michael consented to filing a notice
of appeal, Michael’s attorney would have had to prepare the notice of appeal, in conformity with
I.R.C.P. 83(f).
       Michael’s attorney and his legal assistant also detailed facts in their respective affidavits
that are relevant to our analysis. Michael’s attorney initially noted that Michael lives out of state,
is disabled, and at times has difficulty understanding the legal process; thus Michael’s attorney
stated that he had to spend more time with Michael than with other clients. The legal assistant
attempted to contact Michael at least twice, leaving at least one voicemail message, but Michael
did not return the assistant’s phone calls. The attorney also attempted to contact Michael after
learning of the decree, but like the legal assistant, the attorney was unable to contact Michael and
left voicemails asking Michael to call the attorney’s office. Michael’s attorney also explained
his other obligations during the time period, including billing thirty-three hours between July 23
and July 26 and attending a pretrial conference for another case at 3:00 p.m. on July 26.
       Having considered all of the requirements imposed upon an attorney by the Idaho Rules
of Professional Conduct and the Idaho Rules of Civil Procedure, and taking into account the
special difficulties that the attorney encountered in his effort to communicate with Michael and
due to the attorney’s other obligations, we conclude that Michael’s attorney did not have
sufficient notice (time) to file a notice of appeal within the Rule 83(f) deadline. In addition,
Michael’s attorney faxed the notice of appeal a mere eight minutes late and the notice was
recorded on the next business day. Thus, Michael’s attorney filed the notice of appeal within a




                                                  7
reasonable time after the original time to appeal expired. For these reasons, we determine Rule
77(d) tolling applies to Michael’s filing of the notice of appeal. 6
B.       Attorney Fees on Appeal
         Both Michael and Heather argue for attorney fees on appeal, citing Idaho Code § 12-121.
An award of attorney fees may be granted under I.C. § 12-121 and Idaho Appellate Rule 41 to
the prevailing party, and such an award is appropriate when the court is left with the abiding
belief that the appeal has been brought or defended frivolously, unreasonably, or without
foundation.    Rendon v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995).
Although Michael prevailed on appeal, we are not persuaded that Heather defended this appeal
frivolously, unreasonably, or without foundation. Michael’s appeal raised a valid question of
whether actual notice two days before the time to file an appeal ran would be sufficient to permit
an attorney to file an appeal. The previous cases analyzed by Idaho appellate courts focused on
situations where the attorney had actual notice thirteen days and ten days before the time to file
an appeal expired. Tanner, 101 Idaho at 445, 614 P.2d at 985 (thirteen days); Herrett, 105 Idaho
at 361, 670 P.2d at 66 (ten days). Thus, this case presented an issue of a different magnitude
than the situations in Tanner and Herrett. Hence, we do not award attorney fees on appeal.
However, costs on appeal are awarded to Michael because he is the prevailing party. I.A.R.
40(a).
                                                 III.
                                          CONCLUSION
         We conclude that Rule 77(d) tolling applies to this case because Michael’s attorney
lacked sufficient notice to file an appeal within the time limits specified in Rule 83(e). Thus, the
district court erred when it dismissed the appeal as untimely. The district court’s judgment

6
       Although neither party raises this issue, we note that there may be due process
considerations at play. Here, the rules provide for a forty-two-day time period to file an appeal
following the entry of judgment and require the clerk of the district court to immediately serve a
copy of the judgment on the parties. Yet, in this case, even though the divorce decree was file
stamped the day after the decree was signed, the clerk did not attempt to fax the decree until two
weeks later, and Michael did not have actual notice until the fortieth day. The court clerk never
did comply with the Rule 77(d) requirement that a copy of the decree be served on Michael’s
attorney by mailing or by delivery. In addition, although Michael did not assert estoppel or quasi
estoppel, we note that these doctrines may apply because the divorce decree, which listed the
incorrect facsimile number for Michael’s attorney, was prepared by Heather’s attorney.


                                                   8
dismissing the appeal as untimely is vacated, and the case is remanded for proceedings consistent
with this opinion. Costs, but not attorney fees, are awarded to Michael on appeal.
       Judge LANSING and Judge GRATTON, CONCUR.




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