               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45102

MARTIN BETTWIESER,          )                        2018 Unpublished Opinion No. 434
                            )
    Plaintiff-Appellant,    )                        Filed: April 24, 2018
                            )
v.                          )                        Karel A. Lehrman, Clerk
                            )
CODY MONROE, CM BACKCOUNTRY )                        THIS IS AN UNPUBLISHED
RENTALS, and 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. Jason D. Scott, District Judge; Hon. Roger E. Cockerille,
       Magistrate.

       Order denying motion to modify scheduling order and dismissing intermediate
       appeal, affirmed; order denying motion to modify, reconsider, set aside, vacate,
       alter, and/or amend judgment, affirmed.

       Martin Bettwieser, Boise, pro se appellant.

       Cody Monroe, CM Backcountry Rentals, and Shelby Monroe, McCall,
       respondents, did not participate on appeal.
                 ________________________________________________

GUTIERREZ, Judge
       Martin Bettwieser appeals from the district court’s order denying his motion to modify
the scheduling order and dismissing his intermediate appeal, as well as the district court’s order
denying his motion to modify, reconsider, set aside, vacate, alter, and/or amend the judgment.
Bettwieser contends the district court abused its discretion in dismissing his intermediate appeal
because it applied an incorrect legal standard. Bettwieser also challenges the jurisdiction of this
Court. For the following reasons, we affirm.




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                                                I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       The underlying action involves a small claims case that was dismissed with prejudice
after Bettwieser failed to appear at trial before the magistrate. After the case was dismissed,
Bettwieser filed a motion to vacate and reconsider, as well as a motion to correct the record; the
magistrate denied both motions.      Bettwieser then appealed to a second magistrate, which
dismissed the appeal.    Bettwieser then filed a motion to reconsider/set aside the judgment
dismissing the small claims case and the denial of his motion to correct the record, which was
denied by the magistrate. Bettwieser filed an appeal with the district court. After the district
court dismissed his appeal, Bettwieser appealed to the Supreme Court, which assigned the appeal
to this Court. Because the various orders from which Bettwieser appealed were not validly filed
final orders, this Court held that Bettwieser’s notice of appeal from these various orders was
prematurely filed.     Bettwieser v. Monroe, Docket No. 43070 (Ct. App. May 9, 2016)
(unpublished). Accordingly, we remanded the case to the district court.
       On remand, the magistrate once again denied Bettwieser’s motion to reconsider/set aside
the judgment dismissing the small claims case, noting that Bettwieser could challenge this denial
in district court. Bettwieser appealed to the district court. The district court issued an order
establishing appellate procedure, which informed Bettwieser that his opening brief was due on
March 13, 2017.       On March 8, 2017, Bettwieser moved to modify the order establishing
appellate procedure by having the district court hold a de novo proceeding or remand the case to
the magistrate for an evidentiary hearing to complete the record for the appeals process. On
March 14, 2017, the district court denied Bettwieser’s motion to modify the order establishing
appellate procedure and dismissed the appeal, sua sponte, because Bettwieser did not file his
opening brief by the deadline. In response, Bettwieser filed a motion to modify, reconsider, set
aside, vacate, alter, and/or amend the district court’s order denying motion to modify and
dismissing appeal, which the district court denied. Bettwieser timely appealed.
                                               II.
                                          ANALYSIS
A.     Jurisdiction
       We first address Bettwieser’s argument that this Court lacks jurisdiction to hear his
appeal. On May 31, 2017, the Supreme Court set August 2, 2017, as the due date for the clerk’s

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record. The clerk’s certificate of service states that the record was sent to Bettwieser on June 28,
2017. Though the certificate of service uses the word “sent,” Bettwieser explains in his brief that
service of the record was effected via certified mail with return receipt requested. On July 31,
2017, Bettwieser filed a motion to extend time for the filing of the clerk’s record because the due
date for the clerk’s record was within twenty-eight days of when he claims he received the
record, which he claims was on July 12, 2017. Bettwieser then filed an objection to the clerk’s
record on appeal, arguing that because this Court’s prior opinion was readily available to the
Supreme Court, he should not have been assessed costs to have it included in the record. The
Supreme Court did not reach the merits of this objection, as it denied Bettwieser’s motion to
extend time and filed the clerk’s record on August 28, 2017.
        Pursuant to Idaho Appellate Rule 29(a), parties involved in an appeal have twenty-eight
days from the date of service of the clerk’s record within which to file objections to the record,
including requests for corrections, additions, or deletions. If no objections are filed within the
twenty-eight-day time period, the record shall be deemed settled. Service of the clerk’s record
may be by personal delivery or by mail. If service is made by mail, it shall be accompanied by
a certificate indicating the date of mailing.
        In his opening brief, Bettwieser argues that certified mail with return receipt requested is
best considered personal service, meaning the date he received the record, not the date it was
mailed, would be the date of service for purposes of I.A.R. 29(a). Because the date Bettwieser
allegedly received the clerk’s record via certified mail was within twenty-eight days of the record
due date, Bettwieser asserts that he was not given proper notice or time to object to the clerk’s
record. Bettwieser further contends that the court’s failure to extend time to settle the record and
consider his objection has created a situation where the record is not properly settled. Without a
properly settled record, Bettwieser argues that the Supreme Court, and therefore this Court, lacks
jurisdiction.
        We need not reach the merits of Bettwieser’s arguments as he has not provided any
evidence contradicting the clerk’s certificate of service, which reflects that the clerk’s record was
sent to Bettwieser more than twenty-eight days before the clerk’s record was due. Though
Bettwieser alleges that he received the record by certified mail on July 12, 2017, he did not
provide any proof that he in fact received the record by certified mail on July 12, 2017. As we
are limited to the evidence presented to us in the record, we must presume that Bettwieser was

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served on June 28, 2017, as the clerk’s certificate of service reflects. See Lamar Corp. v. City of
Twin Falls, 133 Idaho 36, 40, 981 P.2d 1146, 1150 (1999) (“[T]he Supreme Court cannot
consider items outside of the record on appeal.”); Action Collection Serv., Inc. v. Haught, 146
Idaho 300, 303, 193 P.3d 460, 464 (Ct. App. 2008) (“It is the responsibility of the appellant to
provide a sufficient record to substantiate his or her claims on appeal.”).           Accordingly,
Bettwieser failed to object to the record within the twenty-eight-day time period provided by
I.A.R. 29(a), meaning the record is properly settled, and thus this Court has jurisdiction to hear
the appeal.
B.     Failure to Comply With Order Establishing Appellate Procedure
       In its order dismissing the appeal, the district court emphasized that Bettwieser moved to
modify the order establishing appellate procedure without seeking relief from the deadline to file
his opening brief. In its order denying Bettwieser’s subsequent motion to modify, reconsider, set
aside, vacate, alter and/or remand, the district court further explained that nothing in the order
establishing appellate procedure stated or implied that deadlines would be tolled if a motion to
modify was filed. Though none of Bettwieser’s requested modifications involved extending the
deadline for filing the opening brief, if either of the modifications had been granted, the need for
filing an opening brief would have been obviated because the “modifications” sought were to
hold a de novo proceeding or remand for an evidentiary hearing, thereby ending the appeal.
Accordingly, Bettwieser contends that a motion to modify an order serves to toll the briefing
deadlines contained in that order.
       Bettwieser frames the issue on appeal as whether the district court abused its discretion
when it dismissed his appeal. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly
perceived the issue as one of discretion, acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it, and reached its
decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho
87, 94, 803 P.2d 993, 1000 (1991). Here, Bettwieser argues that the district court ignored
applicable legal standards and erroneously relied on State v. Langdon, 117 Idaho 115, 785 P.2d
679 (Ct. App. 1990) in dismissing the appeal.
       The district court’s reliance on Idaho Rule of Civil Procedure 83(m) and Langdon was
not erroneous, as those sources grant the district court the power to dismiss an appeal sua sponte

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if a party fails to act timely; but Bettwieser is correct that Langdon did not address whether a
motion to modify tolls deadlines set by an order establishing appellate procedure. Neither the
district court nor Bettwieser have cited to any authority standing for the proposition that filing a
motion to modify does or does not toll deadlines. Nevertheless, as we explain below, the district
court was correct in its conclusion that the mere filing of a motion to modify does not free the
moving party from its obligation to meet filing deadlines.
       The cases to which Bettwieser cites are inapplicable as they apply to the tolling effect of
motions to alter judgment made under I.R.C.P. 59(e) and motions for new trial under
I.R.C.P. 59(a) on the limitations period for when a notice of appeal must be filed. See State v.
Goodrich, 104 Idaho 469, 471, 660 P.2d 934, 936 (1983) (“It is also a well settled rule that a
timely motion to alter or amend a judgment tolls the time for appeal from the order until a ruling
is made on the motion to alter or amend it.”); Wheeler v. McIntyre, 100 Idaho 286, 290, 596 P.2d
798, 802 (1979) (“Since the motion for new trial, motion to alter judgment, and objections to
judgment, findings and conclusions were untimely, they do not terminate the running of the 42
days in which to file notice of appeal.”). Unlike failure to timely file an appeal, which is
jurisdictional and requires automatic dismissal of a case, failure to timely file briefs will result in
whatever sanction the court deems appropriate. The district court, in determining what sanction
is appropriate, should consider the length of the plaintiff’s delay, any justification for the delay,
and the resultant prejudice to the defendant. Aho v. Idaho Transp. Dep’t, 145 Idaho 192, 195,
177 P.3d 406, 409 (Ct. App. 2008). 1 It is an abuse of discretion for a district court to use its
power of dismissal to punish a missed deadline if no prejudice resulting from the delay has been
shown. Id. Accordingly, parties appealing from a district court’s dismissal of their intermediate
appeal due to failure to strictly adhere to deadlines set by an order establishing appellate
procedure should not argue for equitable tolling, but rather that the district court abused its
discretion, as equitable tolling is only necessary when the dismissal is mandatory due to the
deadline being jurisdictional.
       Therefore, we hold that a party is not excused from compliance with scheduling deadlines
merely because a party moves to modify the scheduling order. While Bettwieser has asserted

1
        Although Aho v. Idaho Transp. Dep’t, 145 Idaho 192, 195, 177 P.3d 406, 409 (Ct. App.
2008) stemmed from a dismissal pursuant to I.R.C.P. 84(n), which applies to district court
review of agency actions, its reasoning is equally applicable to district court review of magistrate
decisions under I.R.C.P. 83.
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that the district court abused its discretion, he has not established an abuse of discretion under the
relevant criteria. Bettwieser may have shown that Monroe did not suffer any prejudice due to the
delay.    However, Bettwieser did not show that the district court abused its discretion by
dismissing Bettwieser’s intermediate appeal on the grounds that the delay was justified or the
defendant suffered no prejudice. Accordingly, the district court’s dismissal of Bettwieser’s
appeal was within its discretion in accordance with I.R.C.P. 83(m) and Langdon.
                                                 III.
                                          CONCLUSION
         We hold that the record is properly settled, thus granting this Court jurisdiction over this
appeal. Furthermore, we hold that the district court did not abuse its discretion by dismissing
Bettwieser’s appeal and denying Bettwieser’s motion to modify, reconsider, set aside, vacate,
alter, and/or amend the judgment. Accordingly, the district court’s orders are affirmed.
         Chief Judge GRATTON and Judge HUSKEY CONCUR.




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