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Hausladen V. Knoche Appellant's Brief 2 Dckt. 40274

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Hausladen V. Knoche Appellant's Brief 2 Dckt. 40274 UIdaho Law Digital Commons @ UIdaho Law Not Reported Idaho Supreme Court Records & Briefs 1-16-2014 Hausladen v. Knoche Appellant's Brief 2 Dckt. 40274 Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported Recommended Citation "Hausladen v. Knoche Appellant's Brief 2 Dckt. 40274" (2014). Not Reported. 1066. https://digitalcommons.law.uidaho.edu/not_reported/1066 This Court Document is brought to you for free and open access by the Idaho Supreme Court Records & Briefs at Digital Commons @ UIdaho Law. It has been accepted for inclusion in Not Reported by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact [email protected]. Frank. William Hausladen, Jr., Pro Se Appellant 516 ½ Oak Street Sandpoint, ID 83 864 IN THE SUPREME COURT OF THE STATE OF IDAHO FRANK WILLIAM HAUSLADEN, JR. ) ) S. Ct. No. 40274 Appellant, ) ) vs. ) BRIEF IN ) SUPPORT OF SHARI COLENE KNOCHE ) PETITION FOR ) REVIEW Defendant, ) (I.A.R. 118) ) JOHN H. SAHLIN, ) ) Judgment Creditor on Appeal-Respondent, ) COMES NOW, the above-named Appellant, pursuant to I.A.R. 116 & 42 and petitions this Court for a rehearing of the Court of Appeals' ORDER dated October 7, 2013 and 2013 Unpublished Opinion No. 637S dated 12-12-13 (the third substituted opinion). FACTORS UNDER I.A.R. 118 THAT ARE PRESENT: 1. The Court of Appeals has decided a question of substance not in accord with applicable decisions of the Idaho Supreme Court; 2. The Court of Appeals has decided a question of substance not in accord with the Idaho Constitution, Idaho law, Idaho Rules of Civil Procedure, and/or Idaho Appellate Rules. 3. The Court of Appeals has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise the Idaho Supreme Court's power of superv1s10n. 4. The alternative issues on appeal relate to questions of substance not previously determined by the Idaho Supreme Court. Brief in Support of Petition for Review I.A.R. 118 OVERVIEW/INTRODUCTION The issues set forth herein ask the questions: (I) can an Idaho appellate court "deem" itself to reaquire jurisdiction after a remittitur was issued and (2) is a "parenting coordinator" still a "parenting coordinator" four ( 4) months after being dismissed by order of the magistrate court. The Court of Appeals said "yes" to both questions above even though both decisions were clearly outside of the law and contrary to the facts. Appellant has one question to the Idaho Supreme Court: Will you correct these flagrant "errors" or adopt them as your own through inaction?1 ISSUES: I. The Court of Appeals lacked jurisdiction to change/alter/amend the substituted opinion dated August 27, 2013, cited as 2013 Unpublished Opinion No. 673S after September 17, 2013. II. In the alternative, if this Court refuses to set aside the ORDER dated October 7, 2013: a. The standing analysis on pages 3 - 4 of Unpublished Opinion No. 673S contains a mistake in law and fact as John Sahlin: 1. was not a Parenting Coordinator (as required in LR.C.P. 16(1) and LC. Section 32-717D) at the relevant time, and 11. did not file a motion for fees (as required in LR.C.P. 16(1) and LC. Section 32-717D) and therefore lacked standing to pursue his cause of action in this case; b. Sahlin was not the prevailing party, Hausladen was the prevailing party and is entitled to costs pursuant to LA.R. 40. FACTS (1) The Idaho Court of Appeals issued an opinion that "reversed and remanded" the issue on appeal to the district court and awarded "costs to Sahlin" on 8-23-13. 1 The standing issue has been ignored up until the Court of Appeals "deemed" Sahlin was a "parenting coordinator" even after he was dismissed by court order. If the standing issue is not properly addressed by this Court, the Court will be presented with the issue in the near future as it is doubtful the Kootenai County district court will acknowledge the issue's existence. Brief in Support of Petition for Review 1.A.R.118 2 (2) On or about 8-23-13, Appellant called the Supreme Court Clerk's office an inquired whether the award of costs to Sahlin was an error since the district court's ruling was "reversed and remanded" and Sahlin was not the Appellant. The employee at the Supreme Court Clerk's office assured Hausladen that the issue would be looked into and a substitute opinion would be issued if the cost award was an error/mistake. (3) On 8-27-13, the Idaho Court of Appeals issued a substitute opm1on which mirrored the 8-23-13 opinion except for award of costs was changed from Sahlin to Hausladen. Hausladen/Appellant filed a memorandum of costs on or about 8- 28-13. (4) On 8-28-13, Appellant mailed his Memorandum of Costs to the Idaho Court of Appeals which disclosed costs in the amount of$987.81. (5) On or about 9-6-2013, Sahlin filed (mailed) an "OBJECTION TO AWARD OF COSTS ON APPEAL." In the first paragraph of said document, Sahlin cited that said document was filed "[p ]ursuant to Idaho Appellate Rule 40(d)" but was essentially an argument that Hausladen was not the prevailing party and should not have been awarded costs. ( 6) On or about 9-16-13 Appellant mailed ( which was apparently received by the Court of Appeals on 9-18-13) an objection to Sahlin's Objection to Award of Costs which stated that Sahlin was required to physically file a Petition for Rehearing (with the $71.00 filing fee) within 21 days of the publish date of the substitute opinion. Since Sahlin had not done this, all of his arguments were moot and Appellant was entitled to all costs set forth in his Memorandum of Costs (987.81). (7) Pursuant to LA.R.122 & 38(b), the substitute op1mon dated 8-27-13 which "awarded costs to Hausladen" became "final" on 9-17-13. Brief in Support of Petition for Review I.A.R. I 18 3 (8) On 9-18-13, the Remittitur was issued which included: "IT IS HEREBY FURTHER ORDERED that Sahlin's costs on appeal will be addressed in a subsequent order."2 (9) Chief Justice Gutierrez issued an "ORDER" on 9-20-13 (apparently in response to Appellant's brief filed on or about September 16, 2013) stating that the Court of Appeals was "treat[ing]" Sahlin's "OBJECTION TO A WARD OF COSTS ON APPEAL" as a petition for rehearing on the question of the "prevailing party." The "ORDER" is silent as to the legal basis for the holding. (10) On or about 10-3-13, Appellant filed a Motion to Dismiss (Sahlin's "deemed" Petition for Rehearing) & Objection to 9-20-13 Order. Appellant argued that Chief Judge Gutierrez's order was void for lack of jurisdiction.3 (11) On 10-7-13, Chief Judge Gutierrez issued another order (apparently in response to Appellant's Motion to Dismiss Petition for Rehearing) which did not directly acknowledged Appellant's legal arguments but "withdrew" its 9-20-13 order and dismissed Appellant's Motion to Dismiss because it was now "moot". The Court of Appeals also "withdrew" the Remittitur dated 9-16-13 and reissued its original opinion dated 8-23-13 and denied Hausladen's Memorandum of Costs. The October 7, 2013 Order failed to cite any authority or legal basis for its holding. (12) Thereafter Appellant timely filed (and paid the $71.00 filing fee) a Petitioner for Rehearing and a Petition for Review. (13) Although the Court of Appeals somehow "resurrected" jurisdiction over this issue on appeal, the Kootenai County District Court has done the following since the case was "recalled" back to the Court of Appeals: a. On 10-23-13, District Judge Rich Christiansen (who replaced Judge Luster who was on the appeal) filed a disqualification; 2 Appellant does not know if this was a mistake/clerical error but it obviously conflicts with the "final" substitute opinion issued by the Court since costs were awarded to Hausladen. 3 Appellant argued that the Court of Appeals lacked jurisdiction since no action was taken by the Court of Appeals within 2 I days of the date of the substituted order, Sahlin had failed to file a Petition for Rehearing, Sahlin had failed to pay the required $71.00 filing fee (at all let alone timely). Brief in Support of Petition for Review I.A.R. 118 4 b. On 10-24-13, District Judge John Mitchell was appointed in the case; and c. ON 11-5-2013, District Judge Mitchell issued "Order for Hearing and Setting of Briefing Schedule on Administrative Appeal". (14) On December 12, 2013, the Court of Appeals issued an order denying Appellant's Petition for Rehearing and issued a substitute opinion that changed (for the third time) the award of costs to neither party.4 LAW & ANALYSIS I. The Court of Appeals lacked jurisdiction to change/alter/amend the substituted opinion dated August 27, 2013, cited as 2013 Unpublished Opinion No. 673S after September 17, 2013. Under Idaho law, the Court of Appeals does not retain authority/power/jurisdiction over a case forever. As set forth in the rules5, 21 days after the issuance of the substituted order, the Court of Appeals automatically, by law, loses authority/power/jurisdiction over a case. After the 21 days have expired, both Appellant and Respondent are barred from changing the decision.6 Likewise, the Court of Appeals is barred from changing the outcome of the case (modifying its opinion).
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