CROSSROADS NEIGHBORHOOD ASSOC INC v. RICK ERICKSON (2017)

PETITION FOR REHEARING

The Appellant, pursuant to I.A.R. 116 and I.A.R. 42(a), hereby petitions the Court of Appeals, to rehear and reconsider its Opinion in this case filed on March 2, 2017.

A supporting brief will be filed within 14 days as allowed by I.A.R. Rule 42(b).

This Petition for Rehearing is brought for reasons which include the following:

A. The Court of Appeals erred when it failed to designate the Appellant as the prevailing party on appeal.

The Appellant clearly states in the CONCLUSION section of his Appellant's Brief that he wants the appeal at the district-court level to be reinstated and for appeal proceedings there to begin again: “the Appellant respectfully requests that the dismissal of appeal be reversed and this matter be remanded for appeal in the district court.” Appellant's Br., p. 13.

This Court granted exactly what the Appellant requested when it entered the following ruling: “The district court erred in dismissing Erickson's appeal because the briefing schedule was invalid and unenforceable. We vacate the district court's order dismissing the intermediate appeal and remand for further proceedings.” Crossroads v. Erickson, Idaho Ct. App. No. 44075 (2017), at 4.

The Appellant is clearly the prevailing party in case 44075.

B. The Court of Appeals erred when it failed to award costs to the Appellant as a matter of course.

I.C. sec. 12-107 provides and requires that the prevailing party on appeal shall recover the costs of appeal in all cases except when (1) a new trial is ordered, or (2) when a judgment is modified.

This Court did not order a new trial nor modify a judgment in this case, and the Appellant is therefore entitled to costs on appeal under the statute. Additionally, I.A.R. 40(a) provides that appeal “costs shall be allowed as a matter of course to the prevailing party.”

C. The Court of Appeals erred when it failed to award attorney's fees to the Appellant for out-of-pocket expenses paid to one or more third-party attorneys on appeal.

The Court of Appeals failed to apply the new standard governing awards of attorney's fees in civil litigation, which became effective March 1, 2017, and which stipulates that “prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred ‘when justice so requires.’ ” Hotter v. Shappard, Idaho Supreme Ct. No. 42087 (2016), at 20.

Neither the Court of Appeals nor Idaho Supreme Court has previously addressed the awarding of attorney's fees within the context of out-of-pocket expenses for third-party attorneys by a pro se litigant.

D. The ”Factual and Procedural Background” section of the Opinion filed March 2, 2017, contains several false statements which merit correction.

This Court has misunderstood the timeline and key aspects of events in the register of actions.

CERTIFICATE OF SERVICE

I hereby certify a true and correct copy of the Petition for Rehearing, was mailed by first-class mail on March 23, 2017, to Brindee Collins, Attorney for Plaintiff, as follows:

Brindee Collins

Vial Fotheringham LLP

6126 West State Street, Suite 311

Boise, Idaho 83713

Date: March 23, 2017