               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43070

MARTIN H. BETTWIESER,       )                        2016 Unpublished Opinion No. 527
                            )
    Plaintiff-Appellant,    )                        Filed: May 9, 2016
                            )
v.                          )                        Stephen W. Kenyon, Clerk
                            )
CODY MONROE, CM BACKCOUNTRY )                        THIS IS AN UNPUBLISHED
RENTALS, SHELBY MONROE,     )                        OPINION AND SHALL NOT
                            )                        BE CITED AS AUTHORITY
    Defendants-Respondents. )
                            )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Valley County. Hon. Thomas F. Neville, District Judge; Hon. Roger E. Cockerill,
       Magistrate.

       Order dismissing appeal, reversed and case remanded.

       Martin H. Bettwieser, Boise, pro se appellant.

       Cody Monroe and Shelby Monroe, McCall, pro se respondents.
                ________________________________________________

HUSKEY, Judge
       This is an appeal from a default judgment issued in a small claims case. We reverse the
district court’s order dismissing the appeal and remand for further proceedings.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Martin Bettwieser sued Cody and Shelby Monroe and CM Backcountry Rentals
(Monroe) for unethical business practices in connection with a snowmobile rental transaction.
Monroe was served on January 28, 2014, and timely filed an answer. Trial was set for March 31,
2014, and notice was sent to both parties.
       Prior to trial, Bettwieser filed various motions. First, he filed a motion for default
judgment, asserting Monroe had actually been served on January 13, 2014, and thus, its answer
filed on February 18, 2014, was untimely filed. Second, seven days before the trial, Bettwieser
filed a motion to continue the trial, arguing that one of his witnesses was unavailable. No notice

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of hearing was attached to the motion. Monroe filed an objection to continuing the trial date,
arguing it would be prejudiced by the continuance.
       On the trial date, Monroe appeared but Bettwieser did not. The magistrate denied the
motion to continue the trial and dismissed Bettwieser’s case with prejudice. Within fourteen
days, Bettwieser filed a motion to vacate and reconsider, which was denied by the magistrate.1
Bettwieser then filed a motion to correct the register of actions2 in the case asserting that the
ROA had initially shown Monroe being served on January 13, 2014, but had subsequently been
changed to reflect Monroe’s service date as January 28, 2014. Bettwieser argued the ROA
should be corrected to reflect, at a minimum, what Bettwieser believed was the Monroes’
original date of service of January 13, 2014. The magistrate denied the motion on the grounds
that Bettwieser failed to appear at the trial and even if the procedural errors cited by Bettwieser
were accurate, he was not excused from appearing for trial and the errors would not justify his
non-appearance.
       Bettwieser filed a notice of appeal. Therein, he appealed from the March 31, 2014,
dismissal of his small claims action, the April 22, 2014, denial of his motion to vacate and
reconsider, and the April 28, 2014, denial of his motion to correct the record. One week later,
the magistrate dismissed the appeal, citing Idaho Rule of Civil Procedure 81(a) that “if the
plaintiff or employee does not appear at the time set for hearing . . . the court may dismiss the
claim with or without prejudice” as grounds for dismissing the case. The court cited I.R.C.P.
81(k), “a party who does not appear at the small claim proceeding shall have no right to appeal
the judgment in the small claim proceeding to district court” as the basis for dismissing the
appeal. The magistrate did not address the other two orders from which Bettwieser appealed.
       Bettwieser then timely filed a motion to reconsider/set aside the judgment dismissing the
small claims case and the denial of his motion to correct the record. The magistrate denied the
motion by striking a line through the caption of the motion and handwriting, “DENIED--REC
5/28/14,” just below the motion’s caption. This purported denial was not separately file stamped
by the clerk’s office. Bettwieser filed a motion to clarify, pointing out the purported denial was
neither typed nor on a separate document as required by I.R.C.P. 10(a)(1) and was not time-

1
       Neither the motion to vacate and reconsider nor the decision re: motion to vacate and
reconsider are included in the clerk’s record or the amended clerk’s record on appeal.
2
       The motion to correct the record is not included in the Clerk’s Record or the Amended
Clerk’s Record on Appeal.
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stamped by the clerk’s office and therefore, was not validly filed pursuant to I.R.C.P. 5(a). The
magistrate denied Bettwieser’s motion to clarify by again striking a line through the caption and
handwriting, “The motion to reconsider is/was denied. REC 6/11/2014.” This subsequent
purported denial was also not separately filed stamped by the clerk’s office. No other judgment
or order was filed vis-a-vis Bettwieser’s motion to clarify. Bettwieser timely appealed from “the
decisions and orders of the Magistrate Court dated on or after May 28, 2014.” In essence,
Bettwieser appealed from the magistrate’s denial of his motion to reconsider and set aside the
judgment, the denial of the motion to correct the record, and the denial of a motion to disqualify
and change venue.
       Approximately six months later, without setting any briefing schedule or accepting any
briefing on the case, the district court dismissed Bettwieser’s appeal, concluding that the
magistrate correctly applied I.R.C.P. 81(k) and that because Bettwieser failed to appear at the
trial, he was prohibited from taking an appeal from the judgment dismissing the case. The
district court determined it did not have jurisdiction to hear the appeal and that Bettwieser had
exhausted all avenues for the appeal. The district court did not address any of the other orders or
issues that Bettwieser raised on appeal.
       Bettwieser filed a motion to reconsider, asserting that although he had requested a case
status, no briefing schedule had been set, and as a consequence, he had no opportunity to address
the merits of the appeal. He further argued that even if he was prohibited from pursuing an
appeal from the judgment in small claims court, he was not prohibited from pursuing an appeal
from the denial of the various motions to reconsider or set aside the dismissal.
       The district court, in a manner similar to the magistrate court, handwrote the “Order”
denying the motion at the bottom of Bettwieser’s motion, as follows: “ORDER This motion is
hereby DENIED with prejudice. So ordered. Dated: February 13, 2015, T. Neville, District
Judge.” Again, there was no separate filing stamp from the clerk’s office. Bettwieser timely
appealed.
                                                II.
                                   STANDARD OF REVIEW
       When reviewing the decision of a district court sitting in its appellate capacity, our
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

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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 follow 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, we 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 reverse the decisions of the district court. Id.
                                                  III.
                                             ANALYSIS
        In this case, several preliminary issues preclude a decision on the merits. First, although
a judgment dismissing the case was filed March 31, 2014, no I.R.C.P. 54(a) final judgment has
ever been filed. However, on February 12, 2015, the Supreme Court entered an order entitled In
Re: Finality of Judgments Entered Prior to April 15, 2015 (Standing Order). In pertinent part,
the order stated that “any judgment, decree or order entered before April 15, 2015, that was
intended to be final but which did not comply with Idaho Rule of Civil Procedure 54(a) . . . shall
be treated as a final judgment.” Thus, the judgment filed March 31, 2014, is treated as a final
judgment for purposes of this appeal.
        More troubling, however, is the manner by which the other orders from which Bettwieser
appeals were entered. For each order in which the magistrate or district court simply handwrote
it’s order across the caption of the motion, such order does not comply with I.R.C.P. 10(a)(1),
which states in pertinent part:
        Every pleading, motion, notice, or judgment or order of the court shall be typed
        with black ribbon or produced by a computer or word processor type printer of
        letter quality on white paper and contain a caption setting forth the names of the
        parties, the title of the district court, together with the assigned number of the
        action, the designation of the document or pleading and the names, addresses and
        phone numbers of the attorneys appearing of record for the party filing the
        document or pleading and the typewritten name of the person signing the
        pleading.
(Emphasis added.)      Pursuant to I.R.C.P. 10, the only persons who may file handwritten
documents are “prisoners incarcerated or detained in a state prison or county jail” or where such
writing appears on “printed forms approved by the Supreme Court,” neither of which
circumstances apply here.


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         Additionally, without any indication of the date, hour, and minute of the filings, none of
these orders have ever been validly filed pursuant to I.R.C.P. 5(e)(1), which provides:
         The filing of pleadings and other papers with the court as required by these rules
         shall be made by filing them with the clerk, except that the judge may accept the
         papers for filing, in which event the judge shall note thereon the filing date, hour
         and minute and forthwith transmit them to the office of the clerk. The judge or
         clerk shall indorse upon every pleading and other paper the hour and minute of its
         filing.
         The Idaho Supreme Court held in State v. Ciccone, 150 Idaho 305, 246 P.3d 958 (2010):
“[T]he placing of the clerk’s filing stamp on the judgment constitutes the entry of the judgment;
and the judgment is not effective before such entry. I.R.C.P. 58(a). Thus, in order to be
effective, a judgment must be file stamped by the clerk of court.” Ciccone, 150 Idaho at 306-07,
246 P.3d at 959-60. In the instant case, the date and initials of the magistrate on the motion to
vacate and reconsider and on the motion to reconsider/set aside judgment and correct the record
is not sufficient to equate to a clerk’s filing stamp. Therefore, the annotations on each document
do not constitute valid, final orders because they were never filed by the clerk.
         Similarly, the date and signature of the district court on Bettwieser’s motion to
reconsider/rehear/clarify is not sufficient to equate to a clerk’s filing stamp. Therefore, the
annotation on that document is not a valid and final entry of denial because it was never filed by
the clerk. As such, appeals from all orders except the judgment dismissing the small claims
action, are prematurely filed. A notice of appeal filed from an appealable judgment, order, or
decree before formal written entry of such document becomes valid upon the filing and the
placing the stamp of the clerk of the court on such appealable judgment, order, or decree, without
refiling the notice of appeal. I.A.R. 17(e)(2) Numerous times since the Supreme Court’s
adoption of I.R.C.P. 54(a), this Court has remanded for entry of a final order where the district
court failed to comply with the rule. We remand in this case so that orders that comply with
I.R.C.P. 5 and 10 can be entered and so that Bettwieser’s prematurely filed appeal becomes
valid.
         For guidance on remand, while the magistrate and district court correctly determined
Bettwieser’s failure to appear at the small claims proceeding would result in the dismissal of his
appeal from the judgment entered in the small claims action, such failure to appear does not
waive his right to appeal from his various motions to reconsider or set aside the default. The
Idaho Supreme Court held in Nelson v. Prop. Mgmt. Servs., 105 Idaho 578, 579, 671 P.2d 1041,

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1042 (1983) that I.R.C.P. 81(k) did not bar an appeal from a motion to set aside the default
judgment entered in a small claims case despite the fact that the party failed to appear at the trial.
As neither the magistrate nor the district court addressed any of Bettwieser’s claims regarding
the denial of his motions to set aside based on their incorrect belief that I.R.C.P. 81(k) would
preclude such review, such legal conclusion is erroneous.
                                                 IV.
                                          CONCLUSION
       Because the various orders from which Bettwieser appeals were not validly filed final
orders, his notice of appeal from these various orders was prematurely filed. Thus, we reverse
the order dismissing the appeal and remand the case for further proceedings consistent with this
opinion.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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