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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43105

IN THE MATTER OF THE ESTATE 

OF: GORDON THOMAS LANHAM, 

Deceased.

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JUDD LANHAM,

Personal RepresentativeRespondent-Respondent on 

Appeal,

v.

THOMAS E. LANHAM,

Respondent-Appellant-Appellant

on Appeal.

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2016 Opinion No. 13A

Filed: February 25, 2016

Stephen W. Kenyon, Clerk

AMENDED OPINION 

THE COURT’S PRIOR OPINION 

DATED FEBRUARY 24, 2016, 

IS HEREBY AMENDED

Appeal from the District Court of the Third Judicial District, State of Idaho, Gem

County. Hon. D. Duff McKee, District Judge; Hon. Tyler D. Smith, Magistrate. 

Intermediate appellate decision dismissing appeal, affirmed.

Foley Freeman, PLLC; Patrick J. Geile and Matthew G. Bennett, Meridian, for 

respondent-appellant-appellant on appeal. Matthew G. Bennett argued.

Law Offices of Nancy L. Callahan; Nancy L. Callahan and Rolf M. Kehne,

Emmett, for personal representative-respondent-respondent on appeal. Rolf M. 

Kehne argued.

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HUSKEY, Judge

Thomas E. Lanham (Appellant) appeals from the district court’s order dismissing the 

appeal filed in this case, arguing that his appeal to the district court was timely. For the reasons 

set forth below, we affirm.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

After Gordon Thomas Lanham’s (Testator) death, Judd Max Lanham (Respondent) filed 

an application for informal probate and was appointed personal representative. Subsequently, 

Appellant filed a petition for order restraining the Respondent. After a hearing, the magistrate

denied Appellant’s motion. 

Appellant then filed a motion for summary judgment. Respondent filed a cross-motion 

for summary judgment and motion to dismiss. At the hearing on June 10, 2014, the magistrate

granted summary judgment in favor of the Respondent. On June 20, 2014, Appellant filed a 

motion for reconsideration, but the motion neither included a notice of hearing nor indicated

whether Appellant desired oral argument; both requirements under Idaho Rule of Civil Procedure

7(b).1 On June 25, 2014, the magistrate filed both an order granting the Respondent’s crossmotion for summary judgment and a judgment. In the judgment, the magistrate did not

acknowledge the motion for reconsideration. Appellant did not pursue the motion for 

reconsideration after the final judgment was filed.

On August 13, 2014, Appellant appealed to the district court. Respondent filed a motion 

to dismiss, arguing that Appellant’s appeal was untimely filed. The district court held that the 

notice of appeal was filed outside the forty-two-day period and that the motion for 

reconsideration did not toll the time for appeal because it was filed before the magistrate entered 

the judgment. Appellant timely appeals.

II.

STANDARD OF REVIEW

Whether an appeal to the district court was timely filed is a question of law. Goodman 

Oil Co. v. Scotty’s Duro-Bilt Generator, Inc., 147 Idaho 56, 58, 205 P.3d 1192, 1194 (2009). 

Over questions of law, we exercise free review. Kawai Farms, Inc. v. Longstreet, 121 Idaho 

610, 613, 826 P.2d 1322, 1325 (1992); Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818 

(Ct. App. 1989). 

 

1 Unless a motion may be heard ex parte, I.R.C.P. 7(b)(3)(A) requires a written motion 

and a notice of hearing to be filed with the court. I.R.C.P. 7(b)(1) requires a party to indicate on 

the face of the motion whether the party desires to present oral argument. 
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III.

ANALYSIS

Appellant argues the magistrate’s judgment was not a valid final judgment. Appellant 

also argues that his motion for reconsideration should be treated like a motion to alter or amend 

judgment and that his motion tolls the period for appeal.

A. The Magistrate’s Judgment was a Valid Final Judgment

Appellant argues the magistrate’s judgment was not a valid judgment because it, inter 

alia, contains a recital of the pleadings, in contravention of I.R.C.P. 54(a). Appellant cites 

Wickel v. Chamberlain, 159 Idaho 532, 363 P.3d 854 (2015), in support of his position.

In Wickel, the appellant filed a complaint against the respondent for medical malpractice. 

The Respondent filed a motion for summary judgment, which the district court granted on 

July 25, 2013. The district court entered a purported final judgment on July 30, 2013. The 

Appellant filed a motion for reconsideration on August 12, 2013, which the district court denied. 

Appellant timely appealed. On October 28, 2013, the Supreme Court remanded the matter to the 

district court because the July 2013 order was not a final judgment as defined by I.R.C.P. 54(a). 

On October 30, 2013, the Appellant filed a second motion for reconsideration. The district court 

entered a proper final judgment on October 31, 2013. On December 18, 2013, the district court 

determined it did not have jurisdiction to consider the second motion for reconsideration because 

it was filed more than fourteen days after the entry of the July 2013 judgment. The appellant 

again appealed to the Supreme Court. The Supreme Court noted the July 2013 judgment was not

a valid final judgment but, instead, was an interlocutory order. The second motion for 

reconsideration was timely because it was filed before or within 14 days of the entry of the actual 

final judgment entered in October 2013. The Supreme Court remanded the case to the district 

court on December 23, 2015.

Of note, on February 12, 2015, the Supreme Court entered an order entitled In Re: 

Finality of Judgments Entered Prior to April 15, 2015 (Standing Order). In pertinent part, the 

order stated that “any judgment, decree or order entered before April 15, 2015, that was intended 

to be final but which did not comply with Idaho Rule of Civil Procedure 54(a) . . . shall be 

treated as a final judgment.”

Wickel neither overrules nor contradicts the Standing Order. The doctrine of the law of 

the case provides that upon:
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an appeal, the Supreme Court, in deciding a case presented states in its opinion a 

principle or rule of law necessary to the decision, such pronouncement becomes 

the law of the case, and must be adhered to throughout its subsequent progress, 

both in the trial court and upon subsequent appeal. 

Swanson v. Swanson, 134 Idaho 512, 515, 5 P.3d 973, 976 (2000). In Wickel, the Supreme Court 

determined that the initial judgment was not a final judgment almost two years before it issued 

the Standing Order. Wickel, 159 Idaho 537, 363 P.3d at 859. Therefore, under the law of the 

case, as of October 2013, when the second motion for reconsideration was filed, the July 2013 

order was not a valid final judgment. Even though the opinion on the second Wickel appeal was 

issued after the Standing Order, the Supreme Court was obligated to follow the law of the case

established in the previous appeal. To allow the parties to relitigate the finality of the initial 

purported final judgment would transgress the purpose of the doctrine of the law of the case. 

Therefore, we hold that Wickel is not controlling precedent in this case and this Court will defer 

to the Standing Order as the controlling authority. 

Although the final judgment issued in this case did not comply with I.R.C.P. 54(a), it 

became a valid final judgment by virtue of the Standing Order. 

B. The Magistrate Presumptively Denied Appellant’s Motion by Entering the Final 

Judgment

Appellant argues that his motion can be treated as either a motion for reconsideration 

under I.R.C.P. 11(a)(2)(B) or a motion to alter or amend judgment under I.R.C.P. 59(e). 

Appellant further argues that his motion, under either rule, tolled the period for appeal.

Respondent argues Appellant’s motion was a motion for reconsideration pursuant to 

I.R.C.P. 11(a)(2)(B) and cannot toll the period of appeal because it was not timely filed. We 

hold that although Appellant’s motion was a timely filed motion for reconsideration under 

I.R.C.P. 11(a)(2)(B), it was presumptively denied when the magistrate entered the final 

judgment. Because the motion for reconsideration was presumptively denied, it did not toll the 

time for appeal.

1. Appellant’s motion was a motion for reconsideration under 

I.R.C.P. 11(a)(2)(B)

We begin by determining whether Appellant’s motion is actually a motion for 

reconsideration under I.R.C.P. 11(a)(2)(B) or a motion to alter or amend judgment under 

I.R.C.P 59(e). A motion for reconsideration allows a party to move a court to reconsider an 

interlocutory order. I.R.C.P. 11(a)(2)(B). An interlocutory order is an order that is temporary in 
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nature or does not completely adjudicate the parties’ dispute. Boise Mode, LLC v. Donahoe Pace 

& Partners Ltd., 154 Idaho 99, 107, 294 P.32 1111, 1119 (2013). When an order granting 

summary judgment is filed before a final judgment, the order granting summary judgment is an 

interlocutory order. Agrisource, Inc. v. Johnson, 156 Idaho 903, 911, 332 P.3d 815, 823 (2014). 

Here, Appellant moved the court to reconsider its ruling on Respondent’s cross-motion 

for summary judgment, not the final judgment. Because Appellant filed the motion prior to entry 

of the final judgment and was only challenging the order granting summary judgment, an 

interlocutory order, Appellant’s motion is a motion for reconsideration under

I.R.C.P. 11(a)(2)(B), rather than a motion to alter or amend judgment under I.R.C.P. 59(e).

2. Appellant’s motion for reconsideration was timely filed

Having determined that Appellant’s motion was a motion for reconsideration under 

I.R.C.P. 11(a)(2)(B), we now determine whether Appellant’s motion was timely filed. A motion 

for reconsideration of any interlocutory order of the trial court may be made at any time before 

the entry of final judgment, but not later than fourteen days after the entry of the final judgment. 

I.R.C.P. 11(a)(2)(B). When judgment has been pronounced in open court, requiring a litigant to 

wait to seek reconsideration until the court clerk has file-stamped the written order would be 

hyper-technical and violate the spirit of the rules of civil procedure. See Willis v. Larsen, 110 

Idaho 818, 821, 718 P.2d 1256, 1259 (1986). Therefore, Appellant’s motion was timely filed, 

even though it was filed prior to entry of the written order.

3. Appellant’s motion for reconsideration was presumptively denied by entry of 

the final judgment

A final judgment is “an order or judgment that ends the lawsuit, adjudicates the subject 

matter of the controversy, and represents a final determination of the rights of the parties. It 

must be a separate document that on its face states the relief granted or denied.” T.J.T., Inc. v. 

Mori, 148 Idaho 825, 826, 230 P.3d 435, 436 (2010). The purpose of a rule requiring that every 

judgment be set forth on a separate document is to eliminate confusion about when the clock for 

an appeal begins to run. Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 619, 

226 P.3d 1263, 1266 (2010). A final judgment that does not dispose of outstanding issues in a 

case does not fulfill its purpose. Therefore, where a trial court fails to rule on a motion for 

reconsideration filed prior to the entry of a final judgment, we presume the district court denied

the motion when it entered a final judgment. See State v. Wolfe, 158 Idaho 55, 61, 343 P.3d 497, 

503 (2015). 
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In Wolfe, the appellant was convicted of first degree murder in 1982. In 2004, he filed an 

Idaho Criminal Rule 35 motion to correct an illegal sentence. Id. at 58, 343 P.3d at 500. The 

motion was denied as untimely; the appellant filed a timely motion for reconsideration. Id. 

While the motion for reconsideration was pending, the appellant filed a petition for postconviction relief. Id. Thereafter, the district court ordered that the motion for reconsideration 

and the petition for post-conviction relief be decided in one civil case. Id. at 61, 343 P.3d at 503.

The district court subsequently issued its memorandum decision and order advising the parties 

that the appellant’s claims would be dismissed as untimely but did not separately or explicitly 

rule on the motion for reconsideration. Id. at 59, 343 P.3d at 501. The district court then entered 

its order dismissing the appellant’s civil case. Id. Four years later, the appellant moved the 

district court for a hearing on his seven-year-old motion for reconsideration. Id. The district 

court denied the appellant’s motion for a hearing; a timely appeal followed. Id.

The Supreme Court held the district court did not err when it denied the appellant’s 

motion for a hearing on the motion for reconsideration. Id. at 61, 343 P.3d at 503. The Court 

presumed, under the doctrine of the presumption of regularity and validity of judgments, that the 

district court considered the appellant’s motion for reconsideration when it issued its

memorandum decision and order. Id. The Court further noted, “[W]e have held that where a 

district court fails to rule on a motion, we presume the district court denied the motion.” Id. 

Because the district court did not rule on the appellant’s motion for reconsideration, the Supreme 

Court presumed the district court denied the motion. Id. at 62, 343 P.3d at 504. The Court noted 

that the presumption became a conclusion because the subsequent order dismissed the entire civil 

case. Id. The Court then held, because the order dismissed the entire case and the appellant 

failed to file a notice of appeal within forty-two days, the district court did not err in denying the 

motion for a hearing. Id.

As in Wolfe, Appellant filed a motion for reconsideration that was neither explicitly ruled 

on nor mentioned in the final judgment. However, as in Wolfe, we presume the court denied the

motion when it failed to rule on it. The presumption became a conclusion when the final 

judgment was entered. Additionally, presumptively denying outstanding motions by entering 

final judgment ensures that a final judgment actually ends the lawsuit, adjudicates the subject 

matter of the controversy, and represents a final determination of the rights of the parties, while 

simultaneously avoiding confusion about when the time for an appeal begins to run. 
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As noted above, Appellant’s motion for reconsideration failed to comply with several 

sections of I.R.C.P. 7. The failure to comply with I.R.C.P. 7(b)(3)(A) and I.R.C.P. 7(b)(1) was 

further exacerbated by Appellant’s failure to pursue his motion for reconsideration at any time 

prior to the filing of the notice of appeal or acknowledge his motion for reconsideration in his 

opening appellate brief to the district court.2 If Appellant was interested in pursuing the motion 

for reconsideration, it was incumbent upon Appellant to bring the motion to the attention of the 

court. See Wolfe, 158 Idaho at 62 n.3, 343 P.3d at 504 n.3. Because Appellant waited forty-nine 

days after the entry of judgment to file his appeal, the appeal is untimely. I.R.C.P. 83(e). 

Moreover, fairness and equity do not allow Appellant to destroy the finality of a 

judgment by failing to pursue the motion in this case and then claim that failure tolled the time 

for appeal. The rules of civil procedure shall be liberally construed to secure the just, speedy,

and inexpensive determination of every action and proceeding. I.R.C.P. 1(a). But to allow a 

motion that did not comply with I.R.C.P. 7, and which Appellant did not pursue, to toll the 

period for appeal does not advance those goals.3 Instead, it allows a party to attempt to 

indefinitely toll the period of appeals and can create confusion about when the time for an appeal 

begins to run.

Accordingly, we hold that an outstanding motion for reconsideration is presumptively 

denied when a trial court enters a final judgment and thus, does not toll the time for filing an 

appeal. 

C. Attorney Fees on Appeal

Appellant seeks an award of costs and attorney fees under Idaho Code §§ 15-8-208 and 

12-121. In addition to those statutes, Respondent seeks costs and attorney fees under 

I.C. § 12-123, I.R.C.P. 11, and Idaho Appellate Rule 11.2.

 

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Even if we did not presume the magistrate denied Appellant’s motion for reconsideration, 

Appellant abandoned that motion by not pursuing it at any point between the entry of the final 

judgment and the filing of the notice of appeal. Appellant had the burden to pursue the motion 

for reconsideration in the event the district court failed to rule on it. Because he failed to pursue 

the motion, Appellant abandoned the motion. See Wolfe, 158 Idaho at 62 n.3, 343 P.3d at 504 

n.3; see also Worthington v. Thomas, 134 Idaho 433, 437, 4 P.3d 545, 549 (2000). 

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In addition to the civil rules mentioned above, Appellant also failed to state that his 

motion for reconsideration was based on I.R.C.P. 11(a)(2)(B). I.R.C.P. 7(b)(1) (a motion shall 

state with particularity the ground therefor, including the number of the applicable civil rule). 
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On appeal, Appellant did not act frivolously. Therefore, neither party is entitled to fees 

under I.C. §§ 12-121 and 12-123, I.R.C.P. 11, or I.A.R. 11.2. Under I.C. § 15-8-208, an 

appellate court may, in its discretion, award costs or attorney fees to any party. We hold that 

neither party is entitled to costs or attorney fees on appeal. 

IV.

CONCLUSION

Based on the foregoing, the district court’s intermediate appellate decision dismissing 

appeal is affirmed.

Chief Judge MELANSON and Judge GUTIERREZ CONCUR.