IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47978
DENNIS L. MUNDEN and SHERRILYN L. )
MUNDEN, husband and wife; COYOTE )
CREEK RANCH, LLC, a Utah limited liability )
company, )
) Boise, September 2021 Term
Plaintiffs-Appellants, )
) Opinion Filed: December 15, 2021
v. )
) Melanie Gagnepain, Clerk
BANNOCK COUNTY, a political subdivision )
of the State of Idaho, )
)
Defendant-Respondent. )
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock
County. Robert C. Naftz, District Judge.
The judgment of the district court is vacated and the case is remanded. The decisions of
the district court are affirmed in part and vacated in part.
Petersen Moss Hall & Olsen, Idaho Falls, for appellants Dennis & Sherrilyn
Munden and Coyote Creek Ranch, LLC. Nathan M. Olsen argued.
Hall Angell & Associates, LLP, Idaho Falls, for respondent, Bannock County.
Blake G. Hall argued.
_____________________
STEGNER, Justice.
This case involves the status of a purported public road in Bannock County. The dispute
turns primarily on whether Idaho Code section 40-208(7) applies to that contested road. Dennis
and Sherrilyn Munden (the Mundens) and their limited liability company, Coyote Creek Ranch,
LLC, purchased property in Bannock County in 2012 (the Upper Property), and acquired adjoining
property (the Lower Property) in 2014. The Mundens’ ranch is accessible by a gravel road (the
Road) which leaves a paved public road before crossing the Lower Property. It then traverses a
neighbor’s parcel, and then the Upper Property, before exiting to the north.
The Mundens began ranching on the Lower Property in 2013 and started construction of a
barn and living quarters on the Upper Property in 2015 after obtaining a three-year building permit.
1
In 2017, the Mundens were informed by the Bannock County Commissioners that, pursuant to a
2006 county ordinance, the Road had been designated by the Commissioners for “snowmobile use
only” between December 15 and April 15. All other vehicular use was prohibited during this
timeframe. In January 2019, Bannock County passed an ordinance which gave discretion to the
Bannock County Public Works Director (the Director) to determine when snowmobile trails would
be closed to all but snowmobile use. Subsequently, the Director decided to close the Road for the
2018–19 winter season. The Mundens filed a complaint in district court against Bannock County,
bringing several claims involving the Road, and obtained an ex parte temporary restraining order
(TRO) to prohibit enforcement of the 2019 ordinance.
The County subsequently moved to dissolve the TRO, which the district court granted. The
district court then awarded attorney fees to the County. The Mundens amended their complaint to
add their ranching operation, Coyote Creek Ranch, LLC, as a plaintiff, to which the County
responded with an answer and counterclaim. The County alleged that the Road was a public right-
of-way with no winter maintenance that had been designated as a snowmobile trail by the 2006
ordinance. The County moved to dismiss the amended complaint for failure to state a claim. The
district court granted this motion, concluding that because the claims turned on a legal
determination of the Road’s status, the Mundens were required by Idaho Code section 40-208(7)
to first petition for validation or abandonment proceedings with the Board of County
Commissioners before they could bring a lawsuit. The district court accordingly entered a
judgment dismissing the plaintiffs’ amended complaint in its entirety.
The Mundens filed several motions, including the following: an unsuccessful motion to
reconsider with declarations (which were subsequently stricken); a motion to correct the judgment
(IRCP 60); a motion for certification of the judgment as final (IRCP 54(b)(1), which was ultimately
granted); and a motion to disallow the attorney fees the district court had awarded against them.
Two notices of appeal to this Court were filed, but each was dismissed by this Court for lack of a
reviewable final judgment. Ultimately, the district court entered a judgment certified under IRCP
54(b)(1) authorizing an immediate appeal, and the Mundens timely appealed. For the reasons
discussed, we affirm in part and vacate in part the decisions of the district court.
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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Dennis and Sherrilyn Munden1 purchased the Upper Property, consisting of approximately
768 acres of land in Bannock County in January 2012. In 2013, they purchased an adjoining three-
acre corner piece. In August 2014, they purchased the Lower Property, which contained an
additional 660 acres situated nearby. In total, the Mundens own approximately 1431 acres of
agricultural land.
The Mundens’ properties are accessible by the Road, which is a gravel road that leaves a
paved public road (West Arimo Road), crosses the Lower Property and a neighbor’s property, then
enters the Upper Property before continuing onto a ranch to the north. The Road provides access
to several additional properties, including property to the north owned by Dan Williams
(Williams). According to Sherrilyn, when the Mundens took possession of the property, they were
advised by the County that the Road was not maintained or plowed by the County in the winter,
and that it would be their responsibility upon taking ownership.
The Road, and its status, is the subject of dispute in this case. Even the Road’s name is in
dispute; the Mundens refer to the Road as “South Garden Creek Road,” while the County refers to
the Road as simply “Garden Creek Road.” The Mundens now contend that the Road is a private
agricultural road, and the County asserts that the Road is a public right-of-way not subject to winter
maintenance.
The Mundens’ ranching operation, Coyote Creek Ranch, LLC (Coyote Creek), is a limited
liability company incorporated in Utah and registered in Idaho. In 2013, Coyote Creek began a
calving operation on the Mundens’ Lower property and started developing it, including building
corrals in 2014 and constructing “miles of fence line.” The Mundens sought to build a large barn
and living quarters on the Upper Property to enable year-round ranching operations and, in August
2015, they obtained a three-year building permit from the County. According to Sherrilyn, the
Mundens were again advised by the County that the County did not maintain the Road during the
winter.
An early winter storm in September 2016 limited the Mundens’ contractor’s access to the
Upper Property. According to Sherrilyn, Dennis requested that the County plow the Road to
resolve this access issue. The County plowed one side of the Road until January 2017, when
1
The Mundens will be referred to by their first names “Sherrilyn” and “Dennis” when necessary.
3
Williams, the Mundens’ northern neighbor, protested, alleging that plowing the Road made
snowmobile travel over it impossible.
In December 2017, the Mundens received a letter from a County Commissioner stating that
a 2006 county ordinance designated the Road for snowmobile use only between December 15 and
April 15, with all other vehicular use being prohibited during that time. Thereafter, the Mundens
accessed the Property with a tractor during the 2017-18 winter season.
In November 2018, a public meeting was held before the County Commissioners
concerning a proposed ordinance that would affect the Road. Several members of the public,
including Sherrilyn, provided testimony about maintenance and snowmobile use on the Road.
During the winter of 2018-19, the Mundens continued to use their tractor to access the Upper
Property.
On January 8, 2019, the County passed Ordinance 2019-1 which amended the 2006
ordinance, changing the time during which certain snowmobile trails would be open. Instead of
requiring closure beginning December 15 and ending April 15, the amended ordinance granted the
Bannock County Public Works Director the discretion to determine when snowmobile trails would
be closed based on weather conditions.
According to Sherrilyn, on January 9, 2019, the Road was groomed and altered, leaving
snow berms at the beginning of the Road, making it impassable by anything other than a
snowmobile. A ranch hand employed by the Mundens was prevented from leaving the Upper
Property as a result of the County’s actions. The Mundens removed part of the berm with a plow
so that the ranch hand could leave the Property, and transported feed by tractor to various livestock.
The Mundens notified the Bannock County Sheriff’s Office that they had done so and were
informed by a deputy that they would not be cited for their action. According to the County, the
Mundens continued to use vehicles on the Road, including a tracked bulldozer in an attempt to
plow the Road. This created ruts in the Road that necessitated repair.
B. Procedural History
On January 17, 2019, the Mundens filed a complaint against Bannock County, which
included four claims: (1) a claim for declaratory relief establishing their property rights to the Road
and invalidating the 2019 ordinance; (2) a claim for a preliminary injunction to keep the County
from enforcing the 2019 ordinance; (3) an “inverse condemnation/takings” claim in the event the
Road was found to be public; and (4) an “intentional tort” claim on the basis that the Mundens had
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suffered harm as a result of the County’s “malice and bad intent.” The complaint was accompanied
by a declaration from Sherrilyn describing the potential harm to the Mundens’ livestock that could
result if Ordinance 2019-1 remained in effect. Sherrilyn stated the lack of access to the Road would
prevent the Mundens from transporting feed to various livestock. She next asserted that if the
Mundens could not access or maintain the Road, “our cattle, including cows, calves, and bulls, as
well as our horses run the extreme risk of starvation or other maladies.” Finally, she averred that
without access to the Road, “the losses we will suffer to property and our business will be
devastating.” The Mundens later filed an amended complaint on March 6, 2019.
On January 24, 2019, the district court entered a TRO.2 The TRO enjoined the County from
impeding or restricting the Mundens’ access to the Upper Property via the Road. The TRO also
required the Mundens to post a bond of $7,500.00. On January 31, 2019, the County moved to
dissolve the TRO. Following an evidentiary hearing, the district court granted the motion to
dissolve the TRO. The County then sought attorney fees related to the TRO, asserting that fees
were appropriate at this juncture because the district court had determined that the TRO had been
wrongfully entered. On July 2, 2019, the district court granted the County’s motion for fees by
entering a “Judgment” that awarded the County fees and costs totaling $15,085.64.
The County next filed a Rule 12(b)(6) motion to dismiss the Mundens’ amended complaint,
alleging that they had failed to state a claim upon which relief could be granted. The County
contended that because the Mundens did not petition the County to initiate proceedings regarding
the Road’s legal status pursuant to Idaho Code section 40-208(7) before seeking judicial relief, the
district court did not have jurisdiction over the matter. The Mundens opposed the motion. The
district court granted the County’s motion, holding that the Mundens had failed to follow the
procedures set forth in Idaho Code section 40-208(7). The district court entered another
“Judgment” on August 15, 2019, dismissing the Mundens’ amended complaint. This judgment did
not specify whether the complaint was dismissed with or without prejudice.
The district court next entered an “Amended Judgment” on August 20, 2019. It reads:
Judgment is entered against Plaintiffs and in favor of Defendant as follows:
1. On July 2, 2019, this [c]ourt issued an order granting attorney fees
associated with Defendant’s motion to dissolve the Temporary Restraining Order
in this Case.
2
Although the TRO references an “Ex Parte Motion for Emergency Relief Pendente Lite,” no motion by that name is
in the record. There is no transcript of the proceedings associated with entry of the emergency ex parte TRO.
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2. Defendants are hereby awarded attorney fees against Plaintiff [sic] in the
amount of $15,030.00 and costs as a matter of right in the amount of $55.64, for a
TOTAL JUDGMENT against Plaintiff [sic] in the amount of $15,085.64.
Apparently accompanying this judgment was a Memorandum Decision and Order awarding the
County attorney fees; however, this latter document was dated August 23, 2019.
The Mundens filed a Rule 60(a) motion to correct this judgment on August 21, 2019,
seeking clarification that it was a “final judgment” for purposes of an appeal. The Mundens alleged
that neither the August 15 nor the August 20 judgments were final for several reasons. The
Mundens requested clarification on whether the August 15 judgment was a final judgment because
it did not adjudicate all outstanding claims; specifically, the judgment did “not indicate whether
[the County’s] counterclaims have been dismissed.” The judgment also failed to state whether the
claims were dismissed with or without prejudice. The Mundens next asserted that the August 20
judgment, the “Amended Judgment,” “contain[ed] a recital of prior pleadings and therefore does
not appear to be a final and appealable judgment pursuant to IRCP 54(a).” Finally, the Mundens
argued that the district court erred by awarding the County attorney fees in excess of the bond. The
County responded, seemingly acknowledging that the district court’s “Amended Judgment” was
not a final judgment for purposes of IRCP 54. The district court never ruled on the Mundens’ Rule
60(a) motion.
The district court entered a “Second Amended Judgment” on November 13, 2019. It reads:
JUDGMENT IS ENTERED AS FOLLOWS:
The Plaintiffs’ First Amended Complaint is dismissed with prejudice.
The Defendant’s Counterclaim for a Declaratory Judgment regarding the status of
Garden Creek Road is dismissed without prejudice pending a determination of the
legal nature of Garden Creek Road pursuant to Idaho Code § 40–208(7).
The Amended Judgment dated August 20, 2019, granting costs and attorney fees
associated with the Defendant’s Motion to Dissolve the Temporary Restraining
Order remains in full force and effect.
The Mundens appealed the November 13, 2019, Judgment. The County filed a motion to
dismiss the appeal as untimely. This Court granted the County’s motion and dismissed the
Mundens’ appeal as untimely. The County argued that by dismissing the appeal, “the Supreme
Court showed that it considers the Second Amended Judgment entered by this Court to be a final
judgment under Idaho Rule of Civil Procedure 54(a).”
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The County filed an application for a writ of execution on the attorney fee award on January
29, 2020. The clerk issued the writ on January 30, 2020. On February 6, 2020, the Mundens filed
an objection to the application for writ of execution, arguing that because there were several
motions still pending, the County’s application was premature.
The Mundens then filed (1) a renewed motion for correction of the judgment, (2) a renewed
motion to vacate the existing judgments, and (3) a renewed motion to disallow the award of costs
and fees to the County, all of which had been previously filed and not heard by the district court.
The County objected to “all motions currently pending,” arguing that the district court no longer
had jurisdiction to hear them due to its dismissal of the Mundens’ complaint. The Mundens argued
that the “Second Amended Judgment” was not a final appealable judgment under Rule 54. They
also sought a Rule 54(b) certification so they could pursue an appeal. The district court agreed
with the County that it had issued a final appealable judgment and that it did not have jurisdiction
to hear the Mundens’ pending motions. The district court then directed the County to file an order
for release of the bond and a memorandum of attorney fees and costs.
The district court entered an order releasing the $7,500 cash bond to the County. The
district court also awarded the County its attorney fees and costs incurred after the TRO was
dissolved.
After the Mundens moved for permission to appeal, this Court entered an “Order Denying
Motion for Permissive Appeal and Order for District Court to Show Cause” on June 2, 2020. In
that order, this Court determined that “no judgment entered by the district court . . . resolved the
litigation between the Mundens and Bannock County.” This Court then ordered the district court
to show cause why
(1) a Rule 54(b) certificate should not enter as to the Second Amended Judgment
entered in this case on November 13, 2019 in the form required by Rule 54(b)(1);
or (2) Bannock County Case No. CV03-19-00217 should not proceed to final
judgment on the remaining claims in Bannock County’s Counterclaim (the
negligence claims and the remaining declaratory judgment claim).
Shortly thereafter, on June 8, 2020, the district court entered an “Amended Second
Amended Judgment and IRCP 54(b)(1) Certification.” It reads:
JUDGMENT IS ENTERED AS FOLLOWS:
The Plaintiffs’ First Amended Complaint is dismissed with prejudice.
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The Defendant’s Counterclaim for a Declaratory Judgment regarding the status of
Garden Creek Road is dismissed without prejudice pending a determination of the
legal nature of Garden Creek Road pursuant to Idaho Code § 40-208(7).
The Amended Judgment dated August 20, 2019, granting costs and attorney fees
associated with the Defendant’s Motion to Dissolve the Temporary Restraining
Order remains in full force and effect.
With respect to the issues determined by the above judgment, it is hereby
CERTIFIED, in accordance with Rule 54(b), I.R.C.P., that the court has determined
there is no just reason for delay of the entry of a final judgment and that the court
has and does hereby direct that the above judgment shall be a final judgment upon
which execution may issue and an appeal may be taken as provided by the Idaho
Appellate Rules.
On June 24, 2020, the Mundens appealed to this Court.
II. STANDARD OF REVIEW
“The granting or refusal of an injunction is a matter resting largely in the
trial court’s discretion.” Conley v. Whittlesey, 133 Idaho 265, 273, 985 P.2d 1127,
1135 (1999) (quotation omitted). This Court reviews a discretionary decision for
“[w]hether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the
legal standards applicable to the specific choices available to it; and (4) reached its
decision by the exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863,
421 P.3d 187, 194 (2018) (citation omitted).
Gem State Roofing, Inc. v. United Components, Inc., 168 Idaho 820, 488 P.3d 488, 496 (2021).
“This Court exercises free review over jurisdictional issues, including
‘whether dismissal for lack of jurisdiction was properly granted.’ ” Paslay v. A&B
Irr. Dist., 162 Idaho 866, 868, 406 P.3d 878, 880 (2017) (quoting Tucker v. State,
162 Idaho 11, 17, 394 P.3d 54, 60 (2017)). In addition, when reviewing a motion
to dismiss pursuant to I.R.C.P. 12(b)(6), “we apply the same standard of review we
apply to a motion for summary judgment. After viewing all facts and inferences
from the record in favor of the non-moving party, the Court will ask whether a
claim for relief has been stated.” Employers Res. Mgmt. Co. v. Ronk, 162 Idaho
774, 777, 405 P.3d 33, 36 (2017) (quoting Joki v. State, 162 Idaho 5, 8, 394 P.3d
48, 51 (2017)).
Nemeth v. Shoshone Cnty., 165 Idaho 851, 854, 453 P.3d 844, 847 (2019).
This Court freely reviews Rule 12(b)(6) dismissals. Paslay, 162 Idaho at 868, 406 P.3d at
880.
Under Rule 12(b)(6), “[a]fter viewing all facts and inferences from the record in
favor of the non-moving party, the Court will ask whether a claim for relief has
been stated.” Losser v. Bradstreet, 145 Idaho 670, 673, 183 P.3d 758, 761 (2008)
(quoting Gallagher v. State, 141 Idaho 665, 667, 115 P.3d 756, 758 (2005)).
Dismissal “for failure to state a claim should not be granted ‘unless it appears
8
beyond doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.’ ” Taylor v. Maile, 142 Idaho 253, 257, 127 P.3d 156,
160 (2005) (quoting Gardner v. Hollifield, 96 Idaho 609, 611, 533 P.2d 730, 732
(1975)).
Id. at 869, 406 P.3d at 881.
“Statutory interpretation is a question of law over which this Court exercises free review.”
Est. of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017) (quoting
Carrillo v. Boise Tire Co., 152 Idaho 741, 748, 274 P.3d 1256, 1263 (2012)).
III. ANALYSIS
A. The district court did not abuse its discretion in dissolving the TRO.
On January 24, 2019, the district court issued an ex parte temporary restraining order
preventing the County from enforcing Ordinance 2019-1 against the Mundens and granting the
Mundens “unrestricted access to their properties . . . pending the resolution of this action.” The
TRO appears to have been based on Sherrilyn’s declaration claiming that the Mundens’ livestock
would face starvation if the Mundens could not use the Road.
On January 31, 2019, the County filed a Motion to Dissolve the TRO. The County argued,
among other things, that the Road was a public road, and that the Mundens were aware of this fact
when they took possession of the property and sought to develop it. The County also asserted that
the Mundens had not followed the procedure set forth in Idaho Code section 40-208(7) before
challenging the legal status of the Road.
In response, the Mundens argued that whether the Road is a public road was not the
dispositive issue regarding the issuance of the TRO; rather, the main issue before the district court
was whether Ordinance 2019-1 would have caused irreparable harm to them.
A hearing on the County’s motion was held on February 4, 2019. Sherrilyn testified at the
hearing, clarifying that not all her livestock were located on the Upper Property. She testified that
a majority of her cattle, the “mama cows,” were located on the Lower Property, which is accessible
year-round by a paved road that is maintained by the County. However, the Mundens’ bulls and
horses were located on the Upper Property that was accessible only by the Road. Sherrilyn
admitted that she could provide feed and water to the cows via the paved road, but the fuel needed
for transporting the feed was located on the Upper Property and was generally inaccessible.
The County argued that the Mundens misrepresented facts to the district court regarding
the location of their cattle. The Mundens argued that dissolving the TRO at that point in time would
9
cause waste and irreparable harm to the Mundens’ calving operation. The district court noted its
discretion in determining whether to grant “the Temporary Restraining Order or a Preliminary
Injunction:”
Evidence here today that was provided to me does not suggest that there is
irreparable harm at this point in time. There is not a clear right. This will have to be
determined with regard to access of that road at some later date, but I find that there
is no irreparable harm or waste that will follow if a Preliminary Injunction is not
extended in this particular case, so I’m going to dissolve the Temporary Restraining
Order, and it will dissolve and expire as of February 11th.
On appeal, the Mundens argue that they presented unrefuted evidence demonstrating waste
if Ordinance 2019-1 were enforced preventing their use of the Road. The Mundens contend that
the inability to farm one’s land constitutes waste under IRCP 65(e). Thus, the Mundens claim that
the district court’s decision to dissolve the TRO was “clearly erroneous and an abuse of discretion.”
The County responds by contending that the district court applied the correct standard in
deciding whether to dissolve the TRO. The County argues that although “waste is a factor which
may be considered in granting a preliminary injunction, it is not relevant for an ex parte TRO under
Idaho Rule of Civil Procedure 65(b).” The County distinguishes between IRCP 65(b) (TRO) and
65(e) (preliminary injunction), arguing that the former does not contemplate a showing of waste,
while the latter does. Further, the County asserts that “a preliminary injunction [] is a wholly
separate and unique legal mechanism from an ex parte TRO.” (Citing IRCP 65(e).) Consequently,
the County asserts that the district court was correct in dissolving the TRO based on a lack of
irreparable injury, loss, or damage to the Mundens.
In reply, the Mundens argue that the County’s distinction between a TRO and a preliminary
injunction is inaccurate because “[t]hey are in effect one and the same.” Further, the Mundens
argue that “whether to affirm a TRO is ‘analyzed’ as a ‘motion for preliminary injunction.’ ”
Finally, the Mundens assert that because the County failed to dispute their arguments regarding
waste, the County has conceded that the district court erred in dissolving the TRO.
Idaho Rule of Civil Procedure 65 governs restraining orders and injunctions. Subsection
(b) governs temporary restraining orders:
(1) Issuing Without Notice. The court may issue a temporary restraining order
without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and
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(B) the movant or the movant’s attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.
...
(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without
notice, the motion for a preliminary injunction must be set for hearing at the earliest
possible time, taking precedence over all other matters except hearings on older
matters of the same character. At the hearing, the party who obtained the order must
proceed with the motion; if the party does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order
without notice, or on shorter notice set by the court, the adverse party may appear
and move to dissolve or modify the order. The court must then hear and decide the
motion as promptly as justice requires.
I.R.C.P. 65(b)(1)–(4) (italics added). Subsection 65(e) articulates the grounds for a preliminary
injunction:
A preliminary injunction may be granted in the following cases:
(1) when it appears by the complaint that the plaintiff is entitled to the relief
demanded, and that relief, or any part of it, consists of restraining the commission
or continuance of the acts complained of, either for a limited period or perpetually;
(2) when it appears by the complaint or affidavit that the commission or
continuance of some act during the litigation would produce waste, or great or
irreparable injury to the plaintiff; . . . .
I.R.C.P. 65(e)(1)–(2) (italics added).
Federal Rule of Civil Procedure 65 is virtually identical to IRCP 65. See F.R.C.P. 65.
Therefore, commentary on the federal rules is instructive here. See e.g., WRIGHT & MILLER, 11A
FED. PRAC. & PROC. CIV. (3d ed.). If a restrained party moves to dissolve a TRO, and that party is
“prepared to offer sufficient evidence at a hearing to modify or dissolve the temporary restraining
order . . . in effect, that proceeding becomes a hearing on a preliminary injunction.” WRIGHT &
MILLER, 11A FED. PRAC. & PROC. CIV. § 2953 (3d ed.). “If this occurs, the court should proceed
with the hearing as if it were one under [Federal] Rule 65(a),” which governs preliminary
injunctions. Id. “A preliminary injunction ‘is granted only in extreme cases where the right is very
clear and it appears that irreparable injury will flow from its refusal.’ ” Brady v. City of Homedale,
130 Idaho 569, 572, 944 P.2d 704, 707 (1997). The decision whether to grant or deny injunctive
relief is left to the district court’s discretion. Id.
We note that the record on appeal contains neither the Mundens’ purported application for
the TRO, nor their application for a preliminary injunction. The record simply contains the TRO
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itself, the County’s motion to dissolve it, and the Mundens’ brief in opposition to it being
dissolved. The record does contain the hearing transcript on the County’s motion to dissolve, at
the conclusion of which the district court ruled from the bench and ordered the TRO be dissolved.
The district court granted and issued the TRO on January 24, 2019. The County filed its
motion to dissolve on January 31, along with several attachments, and the hearing on the motion
was held on February 4, 2019. At the hearing, Sherrilyn testified and both parties submitted
exhibits, including the Mundens’ warranty deeds, maps of their property, and copies of the County
ordinances. The district court interchangeably referred to the TRO as a preliminary injunction
throughout the hearing. Although no application for a preliminary injunction was filed, we will
treat the district court’s decision to dissolve the TRO as if it were a decision on a preliminary
injunction because a full evidentiary hearing on the TRO was conducted. See WRIGHT & MILLER,
11A FED. PRAC. & PROC. CIV. § 2953 (3d ed.).
We conclude that the district court did not abuse its discretion in dissolving the TRO. First,
the district court “correctly perceived the issue as one of discretion.” Lunneborg, 163 Idaho at 863,
421 P.3d at 194. The district court stated: “[I]t is discretionary on the [c]ourt to make a
determination of whether or not to grant the Temporary Restraining Order or a Preliminary
Injunction.” The district court also acted within the outer boundaries of its discretion and acted
consistently with the applicable legal standards. The district court heard the testimony of Sherrilyn,
during which she admitted that the vast majority of her cattle, including nearly 200 “mama cows
and yearling heifers,” were actually located on the Lower Property, which was accessible year-
round by a paved road.
The district court stated that its main reason for issuing the ex parte TRO was the concern
that the Mundens’ entire herd of livestock was in danger of starvation. Upon hearing that only a
small fraction of the Mundens’ livestock were located on the Upper Property at the time the
County’s motion was heard, the district court concluded that there was not a threat of immediate
and irreparable harm to the Mundens. The district court’s decision was reached through an exercise
of reason by weighing all evidence before it. The district court did not abuse its discretion in
dissolving the TRO.
1. The district court did not err in awarding the County its attorney fees and costs
incurred in seeking dissolution of the TRO.
After the district court dissolved the TRO, the County filed a memorandum of costs and
Fees, arguing that any party that has been wrongfully enjoined or restrained is entitled to
12
reasonable attorney fees. The County included an exhibit detailing costs associated with
challenging the TRO. The Mundens opposed the motion, arguing that it was premature. At a
hearing addressing multiple motions, the district court granted the County’s motion for attorney
fees and costs related to the TRO, relying on IRCP 65(c).
On appeal, the Mundens argue that because the district court reserved its ruling on the
merits of the dispute, the County’s motion for attorney fees and costs was premature. The Mundens
point to Rule 54(e), which only allows attorney fees to be awarded to the “prevailing party” after
a final judgment issues. The Mundens also discuss Phoenix Aviation, Inc. v. MNK Enterprises,
Inc., 128 Idaho 819, 823, 919 P.2d 348, 352 (Ct. App. 1996), and argue that recovery of a bond
“pursuant to an award of attorney fees and costs under [Rule 65(c)] is ‘premature’ when ‘merits of
the action [have] not yet been determined.’ ”
In response, the County contends that IRCP 65(c) allows a court to award attorney fees
upon a determination that a TRO was wrongfully entered. The County also discusses Phoenix
Aviation, arguing that its facts are “readily distinguishable.” The County notes that in that case, a
TRO was dissolved as a discovery sanction, as opposed to a determination by a district court that
the order was wrongfully entered. Here, the County contends that because the district court held a
hearing regarding the TRO and determined that the County had been wrongfully enjoined, it was
appropriate to award attorney fees, even though the merits of the action had not yet been decided.
The Mundens respond by asserting that the rule set forth in Phoenix Aviation is
unequivocally clear that fees are not allowed prior to a “final determination on the merits.”
Idaho Rule of Civil Procedure 65(c) provides:
Security. The court may issue a preliminary injunction or a temporary restraining
order only if the movant gives security in an amount that the court considers proper
to pay the costs and damages, including reasonable attorney’s fees, sustained by
any party found to have been wrongfully enjoined or restrained. The State of Idaho
or any political subdivision, its officers, and its agencies are not required to give
security.
I.R.C.P. 65(c) (italics added).
The Idaho Court of Appeals has held that attorney fees related to a dissolved TRO should
not be awarded until a final judgment has been rendered or the district court has made “an
equivalent determination that the plaintiff was not entitled to an injunction.” Phoenix Aviation,
128 Idaho at 823, 919 P.2d at 352. In Phoenix Aviation, the district court dissolved a TRO as a
discovery sanction after the plaintiffs failed to respond to discovery requests. Id. at 821, 919 P.2d
13
at 350. After the TRO was dissolved, the enjoined party sought a judgment against the surety on
the bond posted for the issuance of the TRO. Id. at 822, 919 P.2d at 351. The district court denied
the motion, noting that “although the preliminary injunction had been dissolved, ‘there [had] been
no showing whatsoever . . . that the Preliminary Injunction was wrongfully issued or that
[defendants] have been wrongfully enjoined or restrained.’ ” Id. On appeal, the Idaho Court of
Appeals upheld the district court’s decision: “Generally, an injunction may be deemed to have
been wrongfully issued, so as to allow recovery on the bond, only if there has been a final judgment
or equivalent determination that the plaintiff was not entitled to an injunction.” Id. at 823, 919
P.2d at 351 (italics added). The Court of Appeals further held that the defendants’ motion for
recovery on the bond was premature because “the merits of the action had not yet been
determined.” Id. at 824, 919 P.2d at 353.
Here, because the district court made an “equivalent determination” that the Mundens were
not entitled to the TRO and that the TRO had wrongfully enjoined the County from enforcing
Ordinance 2019-1, its award of attorney fees and costs to the County was appropriate. See id. at
823, 919 P.2d at 351; I.R.C.P. 65(c). Although the merits of the Mundens’ action had not yet been
litigated to completion, the district court conducted a full evidentiary hearing regarding the
dissolution of the TRO, at which it heard testimony from Sherrilyn that tended to contradict her
initial declaration filed in conjunction with the application for the TRO. Because the district court
held that the TRO was entered under “false pretenses,” it concluded that the County had been
wrongfully enjoined from enforcing the ordinance. Thus, we affirm the district court’s entry of an
award for attorney fees and costs to the County in seeking to dissolve the TRO.
2. The district court erred in awarding the County attorney fees and costs in excess of
the $7,500 bond posted by the Mundens absent a showing of good cause by the
County.
After the district court granted the County’s motion to dissolve the TRO, the County filed
a motion for costs and fees in the amount of $15,085.64. At a hearing on July 1, 2019, the district
court granted the County’s motion pursuant to Rule 65(c). On August 23, 2019, the district court
entered a Memorandum Decision and Order finding that the Mundens request for a TRO “was
presented under false pretenses,” and that the Mundens had “purposefully embellished the urgency
of the situation.” This conclusion led the district court to award the County fees in excess of the
$7,500 bond posted by the Mundens.
14
The Mundens filed a motion to disallow the fees and costs, reasserting that they did not
pursue the TRO in bad faith. The Mundens also filed a motion for reconsideration on the district
court’s award of attorney fees to the County. Along with this motion, Sherrilyn submitted another
declaration, clarifying that she did not specify the number of livestock that were endangered in her
application for the TRO. Additionally, attached as exhibits to the motion were photographs of
cattle and calves that had perished as a result of this dispute. The County filed a motion to strike
Sherrilyn’s declaration, arguing that it was self-serving and contradictory to her prior declaration.
The district court granted the County’s motion to strike Sherrilyn’s declaration and denied the
Mundens’ motion for reconsideration.
The Mundens argue that the district court abused its discretion in awarding the County
attorney fees and costs “in excess of $15,000, well above the $7,500 bond posted by the Mundens.”
The Mundens assert that the “recovery of damages, costs[,] and attorney fees occasioned by the
temporary restraining order is limited to the amount of the bond.” (Citing McAtee v. Faulkner Land
& Livestock, Inc., 113 Idaho 393, 402, 744 P.2d 121, 130 (Ct. App. 1987).) The Mundens contend
that the only exception to this rule “allowing for a collection of fees ‘in excess’ of the bond is
where there has been a showing of ‘malicious prosecution.’ ” Finally, the Mundens argue that the
district court abused its discretion because it failed to employ the malicious prosecution standard,
instead finding that the Mundens acted in “bad faith” by making “misrepresentations” to the
district court. The Mundens argue that the district court abused its discretion by adopting the
County’s allegations without citation to the record or specific testimony. Finally, the Mundens
request that even if this Court upholds the award of attorney fees, the amount should be reduced
to $7,500 to comply with the rule from McAtee.
In reply, the County contends that the district court did not abuse its discretion in awarding
the County an award in excess of the bond amount because the Mundens misled the district court
in asserting that their entire herd of cattle was endangered by the Road’s winter closure. The
County asserts that the district court applied the correct standard from McAtee, finding that the
Mundens brought their request for a TRO in bad faith. The County points to the differences in
Sherrilyn’s original declaration filed in support of the TRO and her testimony at the hearing on the
County’s motion to dissolve. Specifically, Sherrilyn testified at the hearing that the vast majority
of her cattle were located on the Lower Property, which is accessible year-round by a paved road.
15
Therefore, the County argues, the district court properly found that the Mundens brought their
application for the TRO in bad faith, allowing an award of fees in excess of the bond amount.
In response, the Mundens reiterate that the district court did not support its award of
attorney fees with evidence or testimony in the record. The Mundens dispute that Sherrilyn
misrepresented the situation regarding the location of the majority of her cattle. Specifically, they
assert that Sherrilyn did not reference the specific location of the animals as a basis for the TRO.
IRCP 65(c) provides that “[t]he court may issue a preliminary injunction or a temporary
restraining order only if the movant gives security in an amount that the court considers proper to
pay the costs and damages, including reasonable attorney’s fees, sustained by any party found to
have been wrongfully enjoined or restrained.” I.R.C.P. 65(c). “In jurisdictions with rules or statutes
similar to I.R.C.P. 65(c), most courts have held that there can be no recovery in excess of the bond
absent a showing of malicious prosecution.” McAtee, 113 Idaho at 402, 744 P.2d at 130. In McAtee,
the Idaho Court of Appeals adopted the “majority rule,” articulated by Justice Cardozo, which
limits the restrained party’s right to compensation to the amount of the bond posted by a plaintiff.
Id. at 401, 744 P.2d at 129. The Court of Appeals noted that the rule strikes a balance “between
protecting wrongfully restrained defendants and avoiding undue hardship for plaintiffs who
present facially meritorious claims in good faith.” Id.
While we appreciate the majority rule’s attempt to strike a balance between these
competing interests, we conclude that a better balance can be struck by creating a rebuttable
presumption that the amount of a bond posted by a plaintiff seeking an ex parte TRO is adequate
at the time it is set by the court. Such a presumption may be overcome by the defendant, upon a
showing of good cause, that the amount of the bond was inadequate. This leaves the court with the
discretion to impose attorney fees in excess of the bond amount if the party that was wrongfully
restrained can provide good cause to show that the bond was inadequate. To be clear, we are
expanding the rule set out in McAtee so that a party adversely impacted by the issuance of an ex
parte TRO may nevertheless challenge the sufficiency of the bond.
As a result of this newly articulated rebuttable presumption, we vacate and remand the
district court’s award of attorney fees in the amount of $15,085.64. On remand, the district court
is left with the discretion to determine the amount of attorney fees to award the County in
defending the TRO, if the County can overcome the rebuttable presumption articulated in the
16
previous paragraph. Such a determination must be made on a case-by-case basis, depending on the
specific facts presented.
B. The district court did not err in granting the County’s Motion to Dismiss because the
Mundens failed to comply with Idaho Code section 40-208(7).
After answering the Mundens’ Amended Complaint and asserting counterclaims, the
County filed a Motion to Dismiss, arguing that the Mundens had failed to state a claim upon which
relief could be granted. The County asserted that the Mundens had not complied with the
administrative procedures of Idaho Code section 40-208(7) before seeking judicial relief. The
Mundens opposed the County’s motion, arguing that Idaho Code section 40-208(7) did not apply
to their action.
After a hearing on the motion, the district court granted the County’s motion and dismissed
the Mundens’ amended complaint. Specifically, the district court applied the plain language of
Idaho Code section 40-208(7), which mandates that “[a]ny person. . . seeking a determination of
the legal status or width of a highway or public right-of-way shall first petition for the initiation of
validation or abandonment proceedings” with the county commissioners. I.C. § 40-208(7) (italics
added). The district court held that “a lawsuit seeking declaratory relief as to the legal status of a
highway can only be pursued after a party has complied with the administrative procedures set
forth in [I.C.] § 40-208(7).” Because the Mundens complaint sought “a legal determination as to
the status of [the Road],” the district court concluded that it was barred from hearing the Mundens’
claims. Further, the district court dismissed the remainder of the claims brought by the Mundens
because those claims all “rel[ied] on the assumption that [the Road] is a private road.”
On appeal, the Mundens first argue that the County’s motion to dismiss for failure to state
a claim was actually a motion to dismiss for lack of subject matter jurisdiction. The Mundens argue
that the County “effectively alleg[ed] that [the] Mundens had failed to exhaust their administrative
remedies before filing a claim in court.” Thus, the Mundens assert that the “only issue before this
Court as it pertains to the dismissal of the Mundens’ complaint, is whether the district court had
subject matter jurisdiction over Mundens’ Amended Complaint as plead[ed].”
Next, the Mundens argue that they were not required to first initiate validation proceedings
with the county board of commissioners before seeking judicial relief. First, the Mundens point to
two cases from this Court, Nemeth v. Shoshone County, 165 Idaho 851, 453 P.3d 844 (2019), and
Palmer v. East Side Highway District, 167 Idaho 813, 815, 477 P.3d 248, 250 (2020), asserting
that the case at bar is dissimilar. The Mundens contend that they are neither seeking validation nor
17
abandonment of a public road; rather, they are pursuing inverse condemnation proceedings and a
declaration that the road is private, among other claims. However, the Mundens assert: “[s]imply
put, at issue in this case is the very title to the road on the Mundens’ property, as well as conduct
by the County.” (Italics added.) The Mundens claim that Idaho Code section 40-208(7) “does not
establish a judicial review process for a determination or designation of a public right of way or
highway.” (Emphasis in original.) The Mundens next contend that “the County cannot foist the
procedural requirements of I.C. § 40-208(7) upon [the] Mundens’ right to make claims with regard
to their right, title[,] and use of their property—including the road which they hold title to,
maintain[,] and pay property taxes for.” Finally, the Mundens argue that section 40-208(7)
“certainly does not provide the exclusive remedy for a takings claim under the Fifth and Fourteenth
amendment[s] of the U.S. Constitution and a deprivation of rights under 42 U.S.C. § 1983.”
In response, the County first argues that the difference between an IRCP 12(b)(1) and
12(b)(6) motion is irrelevant because “the standard of review is the same under either rule and
either can be used as a basis for affirming the dismissal” of the Mundens’ complaint. Next, the
County contends that the plain language of Idaho Code section 40-208(7) required the Mundens
to first petition the county board of commissioners for validation or abandonment proceedings
with respect to the Road. The County notes that the statute provides that any person seeking “a
determination of the legal status” of a highway or public right-of-way must first petition for the
initiation of validation or abandonment proceedings with the county board of commissioners.
The County asserts that the Mundens clearly sought a determination of the legal status of
the Road because their complaint asked for a declaration of their property rights as it pertains to
the Road. The County contends that the Mundens concede that this case turns on the legal status
of the Road by acknowledging that “at issue in this case is the very title and interest in the road.”
The County also notes that the cases cited by the Mundens, Nemeth and Palmer, involved parties
seeking a determination of the legal status of a road after first exhausting their administrative
remedies by filing validation or abandonment proceedings with the respective county boards.
Thus, the County argues, “filing for validation or abandonment proceedings is a mandatory
condition precedent to filing suit” in the district court. Accordingly, the County asserts that “the
district court is unable to hear a case seeking a determination of the legal status of a highway unless
a plaintiff ha[s] first petitioned for validation or abandonment proceedings.” The County finally
18
urges this Court to affirm the district court’s dismissal of the Mundens’ entire complaint because
the remainder of their claims rested on the assumption that they owned the Road.
In reply, the Mundens assert for the first time that Idaho Code section 40-208(7) is
ambiguous; therefore, the Court must engage in statutory interpretation “considering the public
policy and legislative intent.” The Mundens argue that the term “legal status” as used in Idaho
Code section 40-208(7) is ambiguous and urges the Court to consider the context of the whole
statute, as well as the legislative intent. The Mundens contend that the statute was “intended to
provide a procedure to protect private property rights by allowing the public, and property owners,
to pursue a process in which they could a) establish a right to access property via a public road or
b) seek an abandonment or extinguish a public right of way that may be an impediment to property
rights.
Idaho Code section 40-208(7) provides:
Any person. . . seeking a determination of the legal status or the width of a
highway or public right-of-way shall first petition for the initiation of validation or
abandonment proceedings, or both, as provided for in sections 40-203(1)(b) and
40-203A(1), Idaho Code. If the commissioners having jurisdiction over the
highway system do not initiate a proceeding in response to such a petition within
thirty (30) days, the person may seek a determination by quiet title or other available
judicial means. . . . Provided that nothing in this subsection shall preclude
determination of the legal status or width of a public road in the course of an
eminent domain proceeding, as provided for in chapter 7, title 7, Idaho Code.
I.C. § 40-208(7) (italics added). In turn, Idaho Code section 40-203(1)(b) allows “[a]ny . . .
property holder . . . [to] petition the [the county commissioners] for abandonment and vacation of
any highway or public right-of-way within their highway system.” I.C. § 40-203(1)(b). Idaho Code
section 40-203A(1) allows any resident to “petition the board of county or highway district
commissioners . . . to initiate public proceedings to validate a highway or public right-of-way.”
I.C. § 40-203A(1).
The rules for statutory interpretation are well known:
The objective of statutory interpretation is to derive the intent of the legislative
body that adopted the act. Statutory interpretation begins with the literal language
of the statute. Provisions should not be read in isolation, but must be interpreted in
the context of the entire document. The statute should be considered as a whole,
and words should be given their plain, usual, and ordinary meanings. It should be
noted that the Court must give effect to all the words and provisions of the statute
so that none will be void, superfluous, or redundant. When the statutory language
is unambiguous, the clearly expressed intent of the legislative body must be given
effect, and the Court need not consider rules of statutory construction.
19
Saint Alphonsus Reg’l Med. Ctr. v. Raney, 163 Idaho 342, 345, 413 P.3d 742, 745 (2018) (quoting
State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013)).
The Mundens cite to Nemeth, asserting it has “no application whatsoever” to their case.
165 Idaho at 851, 453 P.3d at 844. In Nemeth, landowners petitioned the Shoshone County
Commissioners to validate a public right-of-way across federal land under Idaho Code section 40-
204A. Id. at 853, 453 P.3d at 846. When Shoshone County failed to act on the petition, the
landowners filed a declaratory judgment action seeking validation of the road pursuant to Idaho
Code section 40-280(7). Id. at 854, 453 P.3d at 847. Importantly, the landowners in Nemeth
complied with section 40-208(7) because they “first petition[ed the county] for the initiation of
validation or abandonment proceedings.” See I.C. § 40-208(7).
The Mundens also attempt to distinguish this Court’s recent decision in Palmer, where a
purported public right-of-way crossed over several privately-owned properties. 167 Idaho at 816,
477 P.3d at 251. After an adjacent landowner requested confirmation from the county that the road
was in fact a public right-of-way, the county adopted a resolution to initiate validation proceedings
with respect to the road. Id. The owners of the private property disputed that the road was a public
right-of-way and filed a formal petition for abandonment proceedings pursuant to Idaho Code
section 40-203(1)(b) (as required by Idaho Code section 40-208(7)). Id. at 820 n.6, 477 P.3d at
255 n.6. Also in Palmer, this Court acknowledged that “Idaho Code section 40-208(7) established
validation and abandonment proceedings as the proper means of resolving disputes about the
status or width of highways (as opposed to resolving these disputes through quiet title actions).”
Id. at 821 n.7, 477 P.3d at 256 n.7 (italics added).
As a preliminary matter, we decline to consider the Mundens’ argument that Idaho Code
section 40-208(7) is ambiguous.
For this Court to consider an issue, the appellant must identify legal issues and
provide authorities supporting the arguments in its opening brief. I.A.R. 35. “A
reviewing court looks only to the initial brief on appeal for the issues presented
because those are the arguments and authority to which the respondent has an
opportunity to respond in the respondent’s brief.”
H.F.L.P., LLC v. City of Twin Falls, 157 Idaho 672, 684, 339 P.3d 557, 569 (2014) (quoting Suitts
v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005)). The Mundens did not argue that section
40-208(7) was ambiguous until their reply brief in response to the Respondent’s brief. Nowhere in
the Mundens’ opening brief did they assert that the term “legal status” was ambiguous.
Consequently, we will not consider the Mundens’ statutory interpretation argument.
20
Even if we were to consider whether the statute is ambiguous, Idaho Code section 40-
208(7) plainly requires that any person “seeking a determination of the legal status or the width of
a highway or public right-of-way shall first petition for the initiation of validation or abandonment
proceedings, or both, as provided for in [Idaho Code sections 40-203(1)(b) and 40-203A(1).]” I.C.
§ 40-208(7) (italics added). “The word shall, when used in a statute, is mandatory.” Paolini v.
Albertson’s Inc., 143 Idaho 547, 549–50, 149 P.3d 822, 824–25 (2006) (quoting Goff v. H.J.H.
Co., 95 Idaho 837, 839, 521 P.2d 661, 663 (1974) (italics in original).
The Mundens’ complaint sought a “declaration of their property rights” regarding the
Road. Specifically, the complaint alleged that the Mundens “are entitled to a declaration
invalidating Bannock County Ordinance 2019-1 and any other related decrees or actions pertaining
[to the] Mundens’ rights to South Garden Creek Road, due to the County’s improper purpose and
procedure in issuing such decisions affecting [the] Mundens’ [r]ights.” However, the Mundens
concede that the heart of this dispute concerns “the very title to the road on [the] Mundens’
property.” In fact, their briefing admits, “[o]bviously, the parties dispute the very title and interest
in the road.”
Idaho Code section 40-208(7) makes clear that the Mundens were required to first petition
the Bannock County board or highway district to determine the legal status of the Road before
filing their complaint in the district court. I.C. § 40-208(7); see also Nemeth, 165 Idaho at 851, 453
P.3d at 844; Palmer, 167 Idaho at 814, 477 P.3d at 249. Only upon a decision by the
commissioners, or a refusal to initiate such proceedings within the prescribed time limits, may a
claimant seek judicial relief. See id. (“If the commissioners having jurisdiction over the highway
system do not initiate a proceeding in response to such a petition within thirty (30) days, the person
may seek a determination by quiet title or other available judicial means.”).
It is undisputed that the Mundens did not file a petition with the Bannock County Board of
Commissioners or any other appropriate body to initiate determination of the Road’s legal status
before filing their complaint in district court. The Mundens concede that their complaint concerns
the legal status of the Road by repeatedly acknowledging that the heart of this dispute concerns
the “very title and interest in the road.” Although the Mundens claimed below that the Road was
their private road, they explicitly acknowledged that it was a public road by filing an application
and permit to use the Road during the construction of their barn. Given the disputed status of the
Road, the Mundens should have first petitioned the County to initiate abandonment proceedings
21
before seeking judicial relief. Consequently, we affirm the district court’s dismissal of the
Mundens’ complaint.
1. The district court erred when it dismissed the Mundens’ amended complaint with
prejudice.
Although we affirm the district court’s dismissal of the Mundens’ amended complaint, we
vacate the district court’s order dismissing their complaint with prejudice. After granting the
County’s motion to dismiss, the district court first entered a “Judgment” on August 15, 2019,
dismissing the Mundens’ complaint. The entirety of the judgment stated: “JUDGMENT IS
ENTERED AS FOLLOWS: the Plaintiffs’ First Amended Complaint is dismissed. IT IS SO
ORDERED.” On August 20, 2019, the district court entered an “Amended Judgment,” which
stated:
Judgment is entered against Plaintiffs and in favor of Defendant as follows:
1. On July 2, 2019, this Court issued an order granting attorney fees
associated with Defendant’s motion to dissolve the Temporary Restraining Order
in this Case.
2. Defendants are hereby awarded attorney fees against Plaintiff in the
amount of $15,030.00 and costs as a matter of right in the amount of $55.64, for a
TOTAL JUDGMENT against Plaintiff in the amount of $15,085.64.
After both parties sought clarification regarding the finality of these judgments, the district
court entered a “Second Amended Judgment” on November 13, 2019, which dismissed the
Mundens’ amended complaint with prejudice. The district court also dismissed the County’s
counterclaims, but without prejudice.
On appeal, the Mundens contend that despite their repeated attempts for clarification of the
district court’s judgment, “the district court never provided any explanation or reasoning justifying
a dismissal of [the] Mundens’ claims with prejudice.” The Mundens argue that “a dismissal for
lack of subject matter jurisdiction cannot be a dismissal with prejudice.” (Citing Telford v. Smith
County, Texas, 155 Idaho 497, 504, 314 P.3d 179, 186 (2013).) The Mundens also note that the
district court dismissed the County’s counterclaims without prejudice, allowing them to file suit
against the Mundens again and foreclosing the Mundens’ ability to defend the County’s claims in
the future.
The County does not dispute that the district court’s dismissal of the Mundens’ complaint
with prejudice was in error. As such, the Mundens argue that the County has conceded that the
district court erred in dismissing the Mundens’ claims with prejudice.
22
Dismissals with prejudice are only granted under specific circumstances due to their
finality:
A dismissal with prejudice connotes an adjudication or final determination on the
merits and extinguishes or bars any future claim.” 24 Am.Jur.2d Dismissal § 1
(2008) (footnotes omitted). “The case law holds, consistent with Rule 41(b), that a
dismissal for lack of subject matter jurisdiction cannot be a dismissal with
prejudice.” Bernstein v. Bankert, 733 F.3d 190, 224 (7th Cir. 2013).
Telford, 155 Idaho at 504, 314 P.3d at 186. “We have clearly stated that a dismissal with prejudice
operates as a final judgment for purposes of res judicata.” Maravilla v. J.R. Simplot Co., 161 Idaho
455, 458–59, 387 P.3d 123, 126–27 (2016) (quoting Scott v. Agric. Prods. Corp., 102 Idaho 147,
151, 627 P.2d 326, 330 (1981)). Further, dismissals with prejudice are a “drastic remedy which
should be used sparingly.” Kirkham v. 4.60 Acres of Land in Vicinity of Inkom, Bannock Cnty.,
100 Idaho 781, 784, 605 P.2d 959, 962 (1980).
When the district court entered its judgment dismissing the Mundens’ complaint with
prejudice, it did not give a reason for doing so. The dismissal was originally granted because the
district court held that the Mundens failed to exhaust their administrative remedies from the
County before filing for judicial relief. The district court further held that it did not have
jurisdiction over the Mundens’ amended complaint because of their failure to follow the
requirements of Idaho Code section 40-208(7). Therefore, there was no basis for the district court
to dismiss the Mundens’ complaint with prejudice. Accordingly, we vacate the district court’s
order dismissing the Mundens’ complaint with prejudice and remand the case with instructions to
dismiss the complaint without prejudice.
2. The district court failed to enter a final judgment from which the Mundens could
appeal; therefore, we vacate the district court’s March 10, 2020, award of attorney fees
to the County.
At a hearing held on March 2, 2020, the district court heard argument on the Mundens’
several pending renewed motions filed after the entry of multiple “judgments” from the district
court. The district court concluded at the hearing that it lacked jurisdiction to hear any of the
Mundens’ motions due to the entry of what it believed was a final judgment. The district court
then awarded attorney fees to the County for defending those motions, finding that the Mundens
brought the motions frivolously. On March 10, 2020, the district court entered an order awarding
the County fees in the amount of $6,920.
23
The Mundens allege on appeal that the district court erred in awarding attorney fees to the
County for the “post non-final judgment motions.” The Mundens assert that the district court’s
order violated the procedures set forth in Rule 54 and that the district court clearly abused its
discretion.
The County responds by asserting that any error related to this award of fees was invited
by the Mundens’ own conduct. The County again contends that because the Mundens filed an
appeal, they “led the district court to reasonably believe that its November 13, 2019[,] judgment
was a final appealable judgment.” Therefore, the County contends, the district court’s later
determination that it lacked jurisdiction over the case was permissible.
As a preliminary matter, we conclude that the County’s reliance on the invited error
doctrine is misplaced. The invited error doctrine stands for the principle that a party may not
complain of an error that it has previously acquiesced in. Taylor v. McNichols, 149 Idaho 826, 833,
243 P.3d 642, 649 (2010). It is “[a]n error that a party cannot complain of on appeal because the
party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.” Id.
The Mundens did not “prompt” or “encourage” the district court to enter multiple “judgments”
that were not final for either failure to comply with IRCP 54 or to resolve all pending claims
between the parties. Rather, the Mundens repeatedly and appropriately sought to be heard by the
district court to clarify the meaning of its duplicative and confusing judgments.
In short, the Mundens were left with no other legal avenue by which to be heard, either in
the district court or by an appellate court, due to the district court’s failure to enter a final
appealable judgment at multiple junctures. Consequently, we vacate the district court’s award of
attorney fees to the County on March 10, 2020.
C. The district court erred in issuing a writ of execution before there was a final
appealable judgment.
On January 29, 2020, the County filed an application for a writ of execution for its attorney
fees. The writ was signed by the court clerk on January 30, 2020.
The Mundens argue on appeal that it was error for the district court to issue a writ of
execution because the district court’s November 13, 2019, judgment was not a final, appealable
order. The Mundens also assert that at the time the writ was issued, “there were pending motions
24
before the [c]ourt, including a Rule 60 motion for relief from a judgment.”3 Further, the Mundens
contend that the writ was signed by the clerk before they could object to its issuance.
In response, the County argues that because the district court entered an appealable
judgment after the writ was issued, any error associated with the writ is harmless. The County also
contends that IRCP 69 “allows for a writ of execution to be issued when there is [a] partial
judgment which has been certified as final,” which was eventually entered by the district court
only upon this Court’s show cause order.
The County argues that even if the writ was prematurely issued, the Mundens have not
shown that their substantial rights were affected between January 30, 2020 (the date the writ was
issued) and June 8, 2020 (the date the district court issued its amended final judgment and 54(b)
certification). The County contends that any error relating to the issuance of the writ was “invited
by Appellants’ own action of filing an appeal on December 27, 2019.” In reply, the Mundens argue
that the premature issuance of the writ did in fact prejudice them because they were prevented
from challenging its issuance, posting a bond to avoid the need for a writ, or asserting exemptions.
Idaho Rule of Civil Procedure 69 governs the procedure for issuing writs of execution: “An
appealable final judgment, or a partial judgment if certified as final under Rule 54(b), for the
payment of money, or a court order for the payment of money, is enforced by a writ of execution
unless the court directs otherwise.” I.R.C.P. 69(a). The Idaho Court of Appeals has held that “an
uncertified partial summary judgment, not being final or appealable, will not support a writ of
execution.” CIT Fin. Servs. v. Herb’s Indoor RV Ctr., 108 Idaho 820, 821 n.1, 702 P.2d 858, 859
n.1 (Ct. App. 1985).
As noted above, the County’s reliance on the invited error doctrine is misplaced. The
district court failed to issue a final appealable judgment until June 8, 2020, after this Court ordered
it to do so. Consequently, the writ of execution was prematurely issued. This Court issued an order
in June of 2020 finding that the district court’s November 13, 2019, judgment was not final. In
addition, even though the Mundens filed a notice of appeal after the district court entered its
November 13, 2019, judgment, the Mundens did not “invite” the premature issuance of the writ.
The Mundens had filed several motions with the district court seeking clarification of the various
judgments issued by the district court, all of which were dismissed. The Mundens consistently
asserted below that the district court’s judgments were not final and needed to be amended or
3
The district court never ruled on the Mundens’ Rule 60(a) motion for correction of the judgment.
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clarified. Because they could not otherwise be heard in the district court, the Mundens likely chose
to file a notice of appeal for lack of a better option. The district court made it clear that it believed
its judgment to be final by refusing to hear the Mundens’ requests for clarification and
reconsideration.
Even though the district court eventually issued a Rule 54(b) certification allowing the
Mundens to appeal, the writ still should not have been issued until after the entry of a final
judgment. However, because the County is entitled, at a minimum, to the bond amount of $7,500,
this error is harmless. We need not decide whether the district court erred when it released the
bond to the County.
D. No attorney fees or costs will be awarded on appeal.
Both the Mundens and the County seek attorney fees and costs on appeal. Because both
parties have prevailed in part, we decline to award attorney fees or costs to either party on appeal.
Caldwell Land & Cattle, LLC v. Johnson Thermal Sys., Inc., 165 Idaho 787, 813, 452 P.3d 809,
835 (2019).
IV. CONCLUSION
For the reasons discussed above, we affirm the district court’s decisions dissolving the
TRO and dismissing the Mundens’ amended complaint. While we vacate the district court’s March
10, 2020, award of attorney fees to the County, we nevertheless affirm the district court’s award
of attorney fees and costs to the County incurred in seeking to dissolve the TRO, but remand the
case for the district court to reconsider the actual amount of attorney fees in light of the rebuttable
presumption we have articulated in this opinion. We vacate the district court’s judgment
dismissing the Mundens’ amended complaint with prejudice and remand the case for further
proceedings consistent with this opinion. No attorney fees or costs are awarded on appeal.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.
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