CROSSROADS NEIGHBORHOOD ASSOC INC v. RICK ERICKSON (2017)

PETITION FOR REVIEW

The Appellant, pursuant to I.A.R. 118(a), hereby petitions the Idaho Supreme Court, to review and reconsider specific elements of the Opinion issued by the Court of Appeals on June 27, 2017.

The Appellant, pursuant to I.A.R. 118(a), hereby petitions the Idaho Supreme Court to review and reconsider the Order Denying Appellant's Motion, issued by the Court of Appeals in this action, dated June 26, 2017, and served to the Appellant on June 30, 2017, whereby the Court denied the Appellant's Motion and Brief for Estoppel Due to Contract Abandonment and Motion and Brief for Sanctions.

A brief in support of this petition will be filed within 14 days as allowed by I.A.R. Rule 118(a).

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This Petition for Review is brought for reasons and issues which include the following:

Many of the reasons for requesting a careful review and express findings by the Idaho Supreme Court in this case on appeal, center around the error of the Court of Appeals in denying the Appellant his several and various claims for out-of-pocket costs paid to one or more third-party attorneys. The Appellant is the prevailing party on appeal, and has made claims for third-party attorney fees under various and appropriate statutes, court rules, and contracts.

I. FAILURE TO AWARD MANDATORY ATTORNEY FEES UNDER I.C. 12-120(3)

One claim for third-party attorney fees by the Appellant is made under I.C. 12-120(3), which mandates an award of attorney fees to the Appellant for his successful defense against the Respondent's claim of attorney fees under that statute:

Garner v. Povey, 151 Idaho 462, 470, 259 P.3d 608, 616 (2011). We have held that when “a party alleges the existence of a contractual relationship of a type embraced by section 12-120(3) ․ that claim triggers the application of [I.C. § 12-120(3)] and a prevailing party may recover fees even though no liability under a contract was established.” Id. at 469, 259 P.3d at 615 (quoting Farmers Nat. Bank v. Shirey, 126 Idaho 63, 73, 878 P.2d 762, 772 (1994) (alteration in original)).

H-D Transport v. Pogue, 160 Idaho 428, _, 374 P.3d 591, 599 (2016).

The Court of Appeals has denied this mandatory award dictated by statute without legitimate basis. The Court of Appeals offers no findings of fact or relevant authority for its denials.

II. FAILURE TO IMPOSE SANCTIONS AND TO AWARD ATTORNEY FEES AS SANCTIONS

Other claims for attorney fees are made under various court rules that allow for sanctions, including attorney fees, for the malicious and harassing actions of the Respondent and the Respondent's attorneys. These include the Respondent's withholding and failure to serve a number of its filings throughout the underlying proceedings, the abandonment by the Respondent of the contract under which it is suing the Appellant, the Respondent coming before the Court with unclean hands, the Respondent's attorneys filing a number of motions and documents without reasonable inquiry and with no basis in fact or law (in violation of I.A.R. 11.2), and several, other transgressions.

The Court of Appeals has erred and abused its discretion by not imposing sanctions against the Respondent and its attorneys and in not awarding attorney fees to the Appellant as sanctions.

III. COURT OF APPEALS ERRS WITH ITS FIXATION ON “PRO SE LITIGANT”

Although the issue of attorney fees is pretty simple---they either exist or they don't---the Court of Appeals keeps trying to assert their existence is irrelevant if the Court labels a litigant as a “pro se litigant.” It is well-settled in Idaho that a litigant cannot claim attorney fees for his or her OWN WORK on a case, but that is not the issue at bar in this case, nor in the underlying proceedings.

There has never been a blanket prohibition against claiming and being awarded out-of-pocket, third-party attorney fees, regardless of any label that is assigned to a litigant. When the Court of Appeals repeatedly cites case law to support its denials on appeal, where, in every instance, the litigants are not allowed attorney fees for their OWN WORK in a case, it is both pointless and mindless---that issue is not the issue at bar in this case.

Despite repeated requests, the Court of Appeals has not provided any express findings of relevant law or findings of fact, and has only superficially engaged in the attorney fees issue.

The Court of Appeals' failure to substantively address the issue underscores the profound need for the Idaho Supreme Court to take up this important matter impacting each and every litigant in Idaho.

IV. ATTORNEY FEES ARE THE TOPIC DU JOUR AND IMPACT ALL LITIGANTS

Notwithstanding the Idaho Legislature's response, the Appellant applauds the Idaho Supreme Court for taking a fresh and serious look at attorney fees, for the first time in a long time, in its 2016 Opinion No. 105, Hoffer v. Shappard, 380 P.3d 681 (Idaho Supreme Ct.) (2016).

Upon taking up the present case for review, the Idaho Supreme Court would again have an opportunity to declare that “prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred ‘when justice so requires.’ ” Id., 696. In addition, the Idaho Supreme Court would have the opportunity to confirm and establish that prevailing parties in civil litigation have the right to out-of-pocket attorney fees because the applicable statute, the applicable court rule, or the applicable contract being claimed, say so, very plainly and simply---that is, they say “attorney fees.”

If a litigant pays an attorney some fees for work performed on a case, then there is obviously (i) a client-attorney relationship, and the litigant has obviously (ii) incurred out-of-pocket “attorney fees” that meet the criteria of eligibility by mere definition alone. Swanson & Setzkie, Chtd. v. Henning, 116 Idaho 199, ___, 774 P. 2d 909, 910 (1989). In very plain and unambiguous language, the various statutes, court rules, and contracts, that either mandate or allow for “attorney fees” to be awarded, are not referring to anything else except for FEES paid to an ATTORNEY:

This Court does not have the authority to modify an unambiguous legislative enactment. Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889, 895, 265 P.3d 502, 508 (2011) (quoting Berry v. Koehler, 84 Idaho 170, 177, 369 P.2d 1010, 1013 (1962)).

Hoffer, 695.

With respect to the very plain and unambiguous language of the various statutes, court rules, and contracts, the Court of Appeals has never explained why it is trying to carve out some kind of contrived prohibition that capriciously denies a labeled, or even mis-labeled, category of litigants, the same rights and equality under the law as all other litigants.

The Court of Appeals does not seem to have a problem in awarding mandatory (out-of-pocket) costs under I.A.R. 40 to a prevailing party, regardless of any assigned label of “pro se litigant,” but yet balks completely at awarding mandatory (out-of-pocket) attorney fees under I.C. 12-120(3), for example, because of an assigned label of “pro se litigant.” The basis for maintaining these two, incompatible positions remains unidentified, unreasoned, and unarticulated by the Court of Appeals.

V. REFUSAL TO SERVE FILINGS VIOLATES CONSTITUTION, COURT RULES, AND STATE BAR

The refusal of the Respondent's attorneys, Jeremy O. Evans and Brindee L. Collins, to serve quite a number of their court filings to the Appellant, continues to be an open and unresolved violation of Idaho court rules and the due process and constitutional rights of the Appellant. The Appellant moves and petitions for an order to compel service from the Idaho Supreme Court and moves and petitions for sanctions against the Respondent and the Respondent's attorneys of record under I.A.R. 11.2, under the Idaho Rules of Professional Conduct, in the interest of justice, and because justice so requires.

VI. RESPONDENT'S ABANDONMENT OF CONTRACT AFFECTS ALL FUTURE PROCEEDINGS

The Respondent has abandoned its claims to the contract under which it initiated the underlying proceedings. This obviously raises issues of jurisdiction with respect to the present appeal, the intermediate appeal, and all underlying proceedings. It raises issues of frivolousness, misconduct, and crimes being committed by the Respondent and its attorneys in the pursuit and prosecution of this case. These in turn raise issues of sanctions against the Respondent and its attorneys, and just and equitable compensation to the Appellant for ALL COSTS expended in ALL PROCEEDINGS, not just third-party attorney fees and not just expenses on appeal.

The Court of Appeals erred when it denied the Appellant's motion for estoppel against the Respondent, stemming from the contract abandonment. The Court of Appeals erred further when it failed to provide any findings of fact or law, or to make any other determination, beyond a terse denial, with regard to the issue of contract abandonment. The contract abandonment dramatically impacts all future proceedings in this case. This issue requires express findings by the Idaho Supreme Court before further proceedings can advance.

VII. REVOCATION OF I.R.C.P. 41(e) MERITS SUPREME COURT REVIEW

The Appellant's objection to the July 1, 2017, version of I.R.C.P. 41(e) is outstanding and will be ripe for review by the Idaho Supreme Court. The Appellant moved for revocation of the rule, citing its incompatibility with I.R.C.P. 4(b)(2). The prior version of I.R.C.P. 41(e) also guaranteed that an action MUST be dismissed after 6 months of inactivity, whereas the newest version of the rule does not provide for any guarantee of dismissal despite what could amount to years of inactivity.

VIII. MODIFICATION OF I.C.A.R. 59 MERITS SUPREME COURT REVIEW

The Appellant has moved for modification of Idaho Court Administrative Rule 59, to allow that any litigant, and not just so-called “pro se litigants,” may be designated as a vexatious litigant upon a finding that the criteria specified in the rule have been satisfied. The present rule, although well-intentioned, is unconstitutional owing to its restrictive application. The notion that only a pro se litigant can be a vexatious litigant, is the epitome of bias, prejudice, arrogance, pretentiousness, ivory tower syndrome, and superciliousness. I.C.A.R. 59 sorely needs to be expanded to allow that all litigants fall within its purview of enforcement and under its umbrella of protections. This issue will be ripe for review by the Idaho Supreme Court.

IX. A CORNUCOPIA OF DELIGHTS FOR LEGAL SCHOLARS

The many issues outlined above encompass a number that are of first impression and are ones which the Court of Appeals has either failed to adequately address, or has erred by issuing rulings or opinions which are contrary to existing statutes, court rules, or case law.

The Idaho Supreme Court's focused engagement and overarching authority is necessary to correct several decades of misimpression and misapplication that falsely posits there somehow and somewhere exists out there, a blanket prohibition against out-of-pocket, third-party attorney fee awards for a select category of litigants, when the truth is that there exists no statute or court rule that provides for such an egregious and unequal administration of justice, and the single example in case law where a past litigant has been denied out-of-pocket, third-party attorney fees on the basis of a “pro se” label has still not been discovered and presented. Further, if such example should ever be found, its basis and foundation would not support its unconstitutional premise upon even a casual examination.

CERTIFICATE OF SERVICE

I hereby certify a true and correct copy of the Petition for Review, was mailed by first-class mail on July 18, 2017, to Brindee Collins, Attorney for Plaintiff, as follows:

Brindee Collins

Vial Fotheringham LLP

6126 West State Street, Suite 311

Boise, Idaho 83713