Walker v. Shoshone County

BISTLINE, Justice,

specially concurring in the Court’s judgment which reverses the trial court.

I.

That Sterling continues to trouble Bakes, J., and Shepard, C.J., is understandable on the basis of their views previously expressed in this area of the law. Hence, it is equally understandable that they are willing to join a Donaldson, J., opinion which contains the language which troubles Huntley, J., as noted in his special concurrence. As with him, I am troubled also, but see rather clearly that there should be no such language. It is clearly the gratuitous dicta which Huntley, J., declares it to be.

Our prior decisions were intended to and did make clear the distinctions between that which is a discretionary governmental function and that which is operational. Such guidelines are drawn to serve the trial bench and bar, and will be applied in accordance with the evidence adduced at trial.

Not at all kept in mind in the majority opinion is the not unimportant factor that the appeal to this Court is from the grant of a defendant’s summary judgment motion which put the plaintiffs out of court. There has been no trial; there will be a trial; there is no occasion for this Court to fancifully indulge in any assumptions as to what the trial evidence may or may not “indicate.” What the evidence establishes or demonstrates will form the basis for the court’s findings of fact and there is no present reason whatever to anticipate that the trial judge will have any more trouble in applying the law of Sterling than was encountered in applying the law of Chandler and Dunbar.

It is a bad appellate practice to do any more on this type of a record than reverse and remand. Totally unacceptable are any insinuations as to what the evidence may divulge, and how the trial court should react.

*997It will readily appear to the trial bench and bar that the Court members comprising today’s majority of three favoring the giving of such “guidance” on remand choose to believe that it is required under provisions of I.C. § 1-205. That section, however, applies to “questions of law involved in the case presented upon such appeal ... ,” and is clearly inapplicable to the law which has been generally declared by this Court. The facts remain to be found at trial, and it is wholly within the province of the trial court, or jury, should the parties so stipulate, to apply the law to the facts and reach the ultimate conclusion.

II.

At the same time, I strongly commend Donaldson, J., and his office for heading the Court back in the right direction regarding a most disturbing appellate court practice in which this Court has indulged in recent years. Reference is made to the discussion contained in part I of Justice Donaldson’s opinion, dealing with the statute of limitations, I.C. § 5-221. In the respondent County’s opening brief in this Court, it raised as an issue presented on the appeal:

If this Court overrules Chandler, the trial court’s decision should be affirmed on other grounds raised below.

As noted in the majority opinion, the county’s motion for summary judgment was two-pronged — one contention being that of the statute. Had the County not raised the issue in the trial court, it would or should have been precluded from raising it in this Court. Such is the true rule. Unfortunately, the Court in recent years has failed to abide by the true rule, and hence the accolades to Donaldson, J., and staff for now giving recognition to the rule as it should be properly applied, and in earlier days was so applied. Initially, when the Court started straying, it was probably more inadvertent than purposeful, but in recent times the deviation has been used to sustain a district court decision which was clearly predicated upon an erroneous legal theory.

A ready example of the many such cases, which are collected in the Idaho and Pacific Digests under Appeal & Error, key number 854(2), is Duthie v. Gun Club, 104 Idaho 751, 663 P.2d 287 (1983). There, as noted in the Court’s opinion, the issue on appeal dealt with the res judicata effect of a prior case between the same parties:

The Duthies argued that the Gun Club should be precluded from claiming in the second action that the license was revoked because that issue of revocation should have been raised in the first action. In reviewing this issue, the trial court held that res judicata applies only to issues raised by the pleadings. After a review of the complaint and answer in Case No. 29669, the trial court found that nothing in the pleadings raised the issue of “use or continued use of the waterline in question.” The motions for summary judgment were denied. Id. at 753, 663 P.2d at 289 (emphasis added).

There ensued a trial and a trial judge decision adverse to the Duthies, who appealed. The Court’s opinion squarely noted that “the Duthies contend that this issue of res judicata was erroneously decided,” id, at 753, 663 P.2d at 289, and then proceeded to concede that the trial court had indeed erred, BUT, pointed to a procedural method by which the Duthies could be deprived of the reversal to which they were clearly entitled:

Even though we disagree with the trial court’s finding that res judicata applies only to issues raised by the pleadings, where an order of the lower court is correct but based upon an erroneous theory, the order will be affirmed upon the correct theory. Foremost Insurance Co. v. Putzier, 102 Idaho 138, 627 P.2d 317 (1981). Duthie, supra, 104 Idaho at 753, 663 P.2d at 289.

The Court was then faced with the task of “discovering the correct theory.” In doing so, it had to work around its own concession that the law of res judicata was firmly entrenched by prior Idaho cases, none of which were in the least equivocal. To the credit of counsel for the Gun Club, it had made no suggestion of a correct theory *998that would circumvent the law of res judicata. Its best argument was actually self-defeating:

“Though the Gun Club and the Duthies could have litigated the issue of the revocability of the Duthies’ license in Case No. 29669, they did not do so. Since they did not actually litigate the issue of the revocability of the license in Case No. 29669, res judicata does not bar the litigation of that issue in Case No. 37367.” Id. at 757, 663 P.2d at 293.

The innovative but doubtful “correct theory” to which a first, second, third, and fourth member of the Court subscribed as being the correct theory was this, which I will not attempt to paraphrase, because it is to my mind incomprehensible: Ironically, West Publishing Company, in headnote 1, picked from that opinion of the Court the very statement of the law of res judicata which has forever applied in Idaho,1 and has been given application in a number of post-Duthie cases, and Duthie is never again mentioned.2

In this case facts occurred subsequent to the first trial that led to the filing of the second suit, i.e., the cutting and capping of the waterline. Therefore, even though the same facts may be used to determine whether the license was revocable as were used in the first action to determine whether a license existed, because facts occurred subsequent to the first trial that triggered the filing of the second suit, we hold that the issue of revocability was not ripe for trial in the first case, but rather, was premature until the license was actually revoked. Heaney, supra. Therefore, we uphold the trial court’s decision that res judicata does not bar the raising of the issue of revocability in the second suit. Id. at 754, 663 P.2d at 290.

Hopefully, after today there will never be another opinion which sustains an erroneous trial court decision or ruling on another and correct theory of law unless that correct theory was, as here, indeed presented to and urged upon the trial court. Shoshone County recognizes that the “correct theory” must have been preserved for appellate review by having been urged below, and today’s opinion blessedly does likewise. It was formerly so. Extensive research on my part shows the genesis of this peculiar appellate practice, which was sound, then degenerated, and is today making a comeback to a proper utility.

So long ago that there are comparatively but a handful of attorneys left who remember, once upon a time there were no rules governing pleadings, but instead, we had a relatively more simple system called code pleading, which many of the surrounding states still enjoy. There was then, as now, a complaint which was the first pleading. To the complaint the defendant could first demur even before he answered, or he could do both at the same time. There were seven grounds of demurrer. A demurrer was considered “general” if it claimed a cause of action had not been stated; the other six grounds of demurrer were called special. The demurrer could be *999based on any or all of the seven enumerated grounds. It was a common practice to demur both generally and specially. Demurrers were sometimes sustained and a complaint dismissed.

In Gagnon v. St. Maries Light Co., 26 Idaho 87, 141 P. 88 (1914), the Court had before it an appeal which involved three grounds for demurrer, only two of which were under consideration on appeal. Although it is probable that other earlier-filed opinions may have erroneously established the proposition relied upon in Gagnon, it was there ruled that if a demurrer is good on any ground stated, it should be sustained on appeal, even though the trial court had sustained the demurrer on an erroneous ground. Id. at 91, 141 P. at 90 (bold emphasis added).

The Gagnon case was cited for the same principle in Feenan v. Kendrick, 32 Idaho 220, 179 P. 507 (1918): “If a demurrer, sustained by the trial court, is good on any ground, the ruling will not be reversed.”

The older attorneys of the bar who practiced under code pleading will remember well the regular interposing of a general demurrer — usually to gain time — and most of the grounds for special demurrer. There was nothing wrong with the Gagnon rule, for the plain reason that the various grounds had indeed been pleaded.

Misapplication of the Gagnon rule seems to have been initiated by the Court in the March, May and July 1966 cases of Jackson v. Blue Flame Gas Co. 90 Idaho 393, 412 P.2d 418; Fike v. Bauer, 90 Idaho 442, 412 P.2d 819; and also in Layrite Products Co. v. Lux, 91 Idaho 110, 416 P.2d 501. Browsing quickly through Layrite, it is seen that the trial court denied a material-man’s lien against an owner on the basis that the supplier, Layrite Co., relied on the general credit of the owner’s contractor. The Supreme Court nevertheless affirmed the decision below by making its own finding of fact that Layrite relied “exclusively” on the contractor’s credit. By so doing, the Court neatly circumvented an array of authority relied upon by appellant standing “for the proposition that a materialman does not forfeit the right to a lien where he has primarily relied upon the credit of the contractor or some other person in furnishing materials for the construction, alteration, or repair of a particular structure or improvement.” Layrite, supra, 91 Idaho at 115, 416 P.2d at 506 (emphasis added). “Primarily,” of course, is less than “exclusively” and solely by resorting to authority neither cited to nor relied upon by the trial court, the Supreme Court very nicely avoided reversing the trial court. That is a nice behavior toward the trial court, but no credit was due this Court, unless there is a principle of appellate review procedure which entitles members of the Court to use their superior knowledge toward the end of letting the trial bench and bar know how a case should have been tried and decided. It smacks of appellate court advocacy. I have heard it said that appellate justices and judges should not do so —but perhaps that is only when they do not want to do so.3 Gagnon *1000did not sustain the Court’s conduct in Lay-rite.

A few years later, although Gagnon was not cited as enabling authority, the Court upheld an erroneous trial court ruling which had admitted into evidence a police officer’s accident report. The report stated that the deceased driver had run a stop sign and driven into the path of an oncoming loaded car transport truck. The Court’s opinion avoided stating the basis upon which the trial court had admitted the exhibit.4 The Court manufactured its own basis for holding the report admissible which was not on a ground urged by defense counsel or utilized by the trial court. Possessing a more superior knowledge of the law than extremely able counsel, the Court resorted to I.C. §§ 9-316, 9-317, and 9-318, which deal with admitting into evidence “written reports or findings of fact made by officers of this state, on a matter within the scope of their duty as defined by statute____” Bell v. O’Connor Transport Ltd., 94 Idaho 406, 408, 489 P.2d 439, 441 (1971). As a result, the trial court’s win-loss record was enhanced, but the plaintiffs (husband and daughter of the deceased) did not get a new trial to which they were clearly entitled, and for certain had not had a fair trial because of admission of the accident report.

It may be of some solace to the deceased mother, R.I.P., that eight short years later, the Court overruled Bell v. O’Connor’s holding that an accident report is admissible as substantive evidence. Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979). The officer’s report in the Bell case was based on the truck driver’s self-serving statements. The driver of the car had no input, having been killed on impact.

It would be interesting to hear from those attorneys who pursued an apparently sure-win appeal, only to have the Supreme Court decide the issue presented on a “correct” ground or theory which was not ever urged upon the trial court.5

*1001Hopefully, under the auspices of Donaldson, J.’s opinion today which is a correct appellate procedure, the misapplication of the Gagnon rule will come to a halt.

III.

The opinion for the Court is also to be commended for its holding that a cross-appeal is not required in order to urge the second ground of defense which the trial court ruled against, i.e., the statute. It has become extremely evident that beginning somewhere in 1972 the Court has been unusually hyperactive in the mass production of rules, paragraphs of rules, subparagraphs, and sub-subparagraphs. The trial bar will be delighted to see that as of now, an issue can be raised in a respondent’s brief, although I feel certain that cases can be found in the past ten years where an issue was turned away on the grounds that the party raising it had not cross-appealed.

It may be that today the Court is off in a better direction. What we do today is reminiscent of Rabido v. Fury, 33 Idaho 56, 190 P. 73 (1920), where the Court sensibly stated: “Since the appeal was taken from the judgment, and not from a portion thereof, the entire judgment is before the court and subject to review, even though the respondents took no cross-appeal.” 33 Idaho at 65, 190 P. at 82.

. Headnote 1 reads as follows: "Res judicata does not apply only to issues raised by pleadings, rather, it applies to every matter which might and should have been litigated in first suit whether or not it was raised in pleadings.”

. Mention should be made that my concerns as to the validity of the res judicata exception of the Duthie opinion are not to be taken as reflecting on its apparent author. The opinion reported in 94 Idaho was the second opinion. An earlier unreported opinion reversing the trial court was withdrawn after a rehearing was granted, and the case reargued. That opinion is now only to be found in the Idaho Capital Reports, where it will show Donaldson, J., as the author, and McFadden, J., Bistline, J., and Scoggin, J. (pro tern) concurring with Bistline, J., writing a special concurring opinion which explained and distinguished the Heaney case, and Bakes, J., dissenting with opinion.

Our first opinion in Duthie was soundly written. My dissent to the second opinion incorporates the salient portions of the August 11, 1981, earlier opinion, on all of pages 758 (less the first three lines), all of p. 759, and the first ten lines of p. 760 of 104 Idaho Reports.

It was my understanding at the time, and remains so, that the turnabout in the second opinion was not the apparent author commanding the other three votes, but rather the other three persuading the author who, in a display of collegiality, was dissuaded from what he had earlier written in favor of what was a majority’s changed consensus.

. The Layrite opinion points to the three cases which were used to defeat the appeal:

Cf. Botzum Bros. Co. v. Brown Lumber Co., 104 Ohio App. 507, 150 N.E.2d 485 (1957); Schuman v. Teague, 195 Okl. 328, 156 P.2d 1010 (1945); Ohio Oil Co. v. Fidelity & Deposit Co., [42 N.E.2d 406 (1942)]. Layrite, supra, 91 Idaho at 115, 416 P.2d at 506.

A reading of those three cases, two being from Ohio and one from Montana, leaves considerable doubt that any of them have much bearing on Idaho litigation revolving around the Idaho materialman’s lien statute. The respondent’s brief in Layrite strongly suggests that there was no error committed by the trial court. That briefs conclusion, compared against the record, appears amply sustained. It states:

The findings of the trial Court, based upon substantial evidence, demonstrate without peradventure that the sale of the materials involved herein were sold to a contractor on a general credit sales basis, and these findings are admitted by appellant in the position taken and expressed in appellant’s brief.

The trial Court found, based on substantial evidence, that the materials were not furnished for the use in any particular structure, and respondents respectfully submit that appellant can hardly claim otherwise in this case.

The authorities cited in appellant’s brief from other jurisdictions, to the effect that a sale on general credit to a contractor does not afford a defense by the landowner where the materialman has not been paid, though the *1000contractor has, do not find support in the decisions of our state. In fact, the decision of Colorado Iron Works vs. Riekenberg, 4 Idaho 705 [43 P. 681], negates such theory. To advance the theory of appellant’s position in this regard by a reversal herein of the trial Court’s findings and decree, would ultimately allow any individual, firm or corporation to pursue lien rights never anticipated by the statute or such supplier at the time of sale and delivery, and, in effect, establish and foreclose a lien on any structure in which he could identify any of the materials sold. Such is not the law of this state, nor can it in equity and good conscience become the law of this state. It is one thing to assert that lien laws should be liberally construed to effect their object and to promote justice and quite another to pervert such lien laws to thereby establish an injustice.

The decree of the trial Court should, by this Court, be affirmed. Layrite, Respondent’s Brief, pp. 27-28.

. The reporter’s transcript in the Bell v. O'Con-nor case, available from the clerk’s office, shows that when the accident report was offered, on voir dire examination of the office who prepared it that the information thereon contained what he was told by the driver of the truck. It was objected to on the basis of the statutory prohibition against its use, and the recorded hearsay of the driver contained therein.

The only statement made in support of its admissibility was this:

I hate to argue matters. It isn’t a statement by Mr. Smith, it is the official report called for by statute. He has testified to his investigation and has expressed his opinion here as to his investigation. This contains a full and complete report that the law requires him to complete, and was so completed at the time of the accident. It is not inadmissible, not barred by statute and it is pertinent to the issues. It maybe could go to the weight of evidence but as to its admissibility, that is something else again. R., p. 111.

The trial court’s reasoning in admitting the exhibit was only this, and nothing more:

THE COURT: Objection will be overruled. It may be admitted. R., p. 111.

. Cases listed in the Idaho Digest include:

Broadhead v. Hawley, 109 Idaho 952, 712 P.2d 653 (Ct.App.1985)

M & H Rentals, Inc. v. Sales, 108 Idaho 567, 700 P.2d 970 (Ct.App.1985)

Dursteler v. Dursteler, 108 Idaho 230, 697 P.2d 1244 (Ct.App.1985)

Andre v. Morrow, 106 Idaho 455, 680 P.2d 1355 (1984)

Barr Development, Inc. v. Utah Mortgage Loan Corp., 106 Idaho 46, 675 P.2d 25 (1983)

Newbold v. Arvidson, 105 Idaho 663, 672 P.2d 231 (1983)

Southern Idaho Production Credit Ass’n v. Ruiz, 105 Idaho 140, 666 P.2d 1151 (1983)

Duthie v. Lewiston Gun Club, 104 Idaho 751, 663 P.2d 287 (1983)

*1001Idaho Falls Consol. Hospitals, Inc. v. Bingham County Bd. of County Com’rs, 102 Idaho 838, 642 P.2d 553 (1982)

Goodwin v. Nationwide Ins. Co., 104 Idaho 74, 656 P.2d 135 (Ct.App.1982)

Lowe v. Lym, 103 Idaho 259, 646 P.2d 1030 (Ct.App.1982)

Foremost Ins. Co. v. Putzier, 102 Idaho 138, 627 P.2d 317 (1981)

Matter of Revello, 100 Idaho 829, 606 P.2d 933 (1979)

Eimco Corp. v. Sims, 100 Idaho 390, 598 P.2d 538 (1979)

Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 595 P.2d 709 (1979)

Robison v. Compton, 97 Idaho 615, 549 P.2d 274 (1976)

City of Weippe for Use and Benefit of Les Schwab Tire Centers of Idaho, Inc. v. Yarno, 96 Idaho 319, 528 P.2d 201 (1974)

Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974)

Church v. Roemer, 94 Idaho 782, 498 P.2d 1255 (1972)

Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972)

Nysingh v. Warren, 94 Idaho 384, 488 P.2d 355 (1971)

Industrial Indem. Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970)

Openshaw v. Adams, 92 Idaho 488, 445 P.2d 663 (1968)

Bjornstad v. Perry, 92 Idaho 402, 443 P.2d 999 (1968)

Layrite Products Co. v. Lux, 91 Idaho 110, 416 P.2d 501 (1966)

Fike v. Bauer, 90 Idaho 442, 412 P.2d 819 (1966) Jackson v. Blue Flame Gas Co., 90 Idaho 393, 412 P.2d 418 (1966)

Bistline v. Eberle, 88 Idaho 473, 401 P.2d 555 (1965)

Evans v. Continental Life & Acc. Co., 88 Idaho 254, 398 P.2d 646 (1965)

Andrus v. Irick, 87 Idaho 471, 394 P.2d 304 (1964)

Saulls v. Employment Sec. Agency, 85 Idaho 212, 377 P.2d 789 (1963)

Clark v. Clark, 58 Idaho 37, 69 P.2d 980 (1937).