text:
    Concerning the APPLICATION FOR WATER RIGHTS OF Donald E. DILL, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County.
    Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce, Applicants-Appellees v. Yamasaki Ring, LLC, Opposer-Appellant and Kevin Rein, State Engineer and Steve J. Witte, Division Engineer, Water Division 2, Opposers-Appellees.
    Concerning the Water Rights of Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce in Fremont County.
    Donald E. Dill, Cathie G. Dill, Jerry R. Pearce, and Frances M. Pearce, Applicants-Appellees, v. Yamasaki Ring, LLC, Opposer-Appellant and Tom French and Joan French, Opposers-Appellees and Concerning Bill Tyner, Division Engineer, Water Division 2 and Kevin Rein, State Engineer, Defendants-Appellees.
    Supreme Court Case No. 17SA231 Supreme Court Case No. 17SA303
    Supreme Court of Colorado.
    February 25, 2019
    Attorneys for Applicants-Appellees: Somach Simmons & Dunn, Sarah A. Klahn, Denver, Colorado
    Attorneys for Opposer-Appellant: Monson, Cummins & Shohet, LLC, David M. Shohet, Ryan W. Farr, Colorado Springs, Colorado
    Attorneys for Division Engineer and State Engineer: Philip J. Weiser, Attorney General, Paul L. Benington, First Assistant Attorney General, Ema I. G. Schultz, Assistant Attorney General, Denver, Colorado
    No appearance on behalf of Opposers-Appellees Tom French and Joan French.
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 This appeal from the water court requires us to travel back in time to the last century. Our destination is January 4, 1909. Upon arrival, we find ourselves in the district court of Fremont County, Colorado, where W. S. Horton and A. W. Alexander are embattled in a water rights dispute. Both are represented by counsel. The Honorable M. S. Bailey is presiding. The centerpiece of the litigation is a water decree entered by Judge Bailey roughly three years earlier (in November 1905) which, among other things, adjudicated Horton's interest in certain water rights for the Campbell Ditch, an irrigation ditch. This 1905 decree, Judge Bailey rules, is "erroneous in the matter of the date fixed therein for the original construction of said Campbell Ditch," and this error, in turn, affects the priorities for the Campbell Ditch's two water rights in Cherry Creek. Therefore, Judge Bailey sets aside and annuls the 1905 decree and enters a new water decree, dated January 4, 1909. But the 1909 decree is not limited to the Campbell Ditch's two water rights in Cherry Creek; rather, consistent with the 1905 decree, it also provides that the Campbell Ditch is "entitled to receive and conduct water" from nine nearby springs.

¶2 It is the water from the nine springs that is at the root of this appeal some 110 years later. The question for us is whether the 1909 decree adjudicates an enforceable water right for the Campbell Ditch in the springs. Yamasaki Ring, LLC, which now owns some of the Campbell Ditch's water rights, asks us to answer the question in the affirmative. The Dills and the Pearces, who own properties where water from the springs has been put to beneficial use since as early as 1903, urge us to answer the question in the negative. In two orders issued in 2016, the water court agreed with the Dills/Pearces and determined that the 1909 decree does not adjudicate a water right in the springs' water because it does not set forth "the necessary information" for adjudication, including an appropriation date, a priority number, or quantification details. Therefore, concluded the water court, the Campbell Ditch's unquantifiable entitlement to "receive and conduct water" from the springs cannot be enforced or administered against any adjudicated water rights. We agree and therefore affirm the water court's judgment.

¶3 We hold that the 1909 decree fails to set forth required indicia of enforceability-including an appropriation date, a priority number, and quantification information-with respect to the springs. Therefore, it does not adjudicate a water right in the springs. Without indicia of enforceability, especially a priority number, the 1909 decree does not adjudicate a water right in the springs that can be enforced or administered vis-à-vis adjudicated water rights. We are not persuaded by Yamasaki Ring's assertion that there was no need for indicia of enforceability because the springs' water was adjudicated as a supplemental/additional source of water for the properly adjudicated water rights that the Campbell Ditch has in Cherry Creek. Without indicia of enforceability, and in particular a priority number, the Campbell Ditch's entitlement to receive and conduct water from the springs cannot be deemed an adjudicated water right that can be enforced or administered against other adjudicated water rights.

I. Facts and Procedural History

A. Overview

¶4 Yamasaki Ring owns some of the Campbell Ditch's water rights. The Campbell Ditch is an irrigation ditch built in 1883 that originates at a headgate along the north bank of Cherry Creek. In 1890, the Campbell Ditch was extended by the Deever's Extension. Some years later, in 1903, the Campbell Ditch was extended again by what later became known as the Horton Extension in order to access water from certain uphill springs. Water from those springs is captured by the Horton Extension and carried downhill to a forty-foot-long metal culvert over Cherry Creek and into a series of ditches that deliver it to the properties owned by the Dills/Pearces. Without the culvert, water from the springs would flow via the Horton Extension directly into Cherry Creek and to the Campbell Ditch headgate, which diverts water from Cherry Creek.

¶5 The dispute between Yamasaki Ring and the Dills/Pearces revolves around the springs' water. The parties disagree about whether the decree issued by the Fremont County district court in 1909 adjudicates an enforceable water right for the Campbell Ditch in the springs' water. To resolve the parties' dispute, we must interpret the 1909 decree. But before doing so, we take a moment to consider the pertinent events that preceded the issuance of that decree.

B. Pertinent Events Preceding the 1905 Decree

¶6 In 1904, Horton filed a "Plat and Statement" ("Plat") of the Campbell Ditch. In the Plat, Horton claimed three water rights: 2.34 cubic feet per second ("c.f.s.") for the Campbell Ditch from Cherry Creek, 2.34 c.f.s. for the Campbell Ditch (by way of the Deever's Extension) from Cherry Creek, and 2.34 c.f.s. for the Horton Extension from the springs. According to the Plat, the appropriation date for the springs' water was September 25, 1903.

¶7 The following year, Horton filed a petition and statement of claim (hereinafter collectively "Statement of Claim"), which alleged ownership of the water flowing through the Campbell Ditch. The Statement of Claim maintained that the Campbell Ditch was extended by the Horton Extension "from the original headgate further up the stream and to certain springs along the bank thereof, the water of which had not [previously] been diverted either by a ditch or by any natural stream." It further asserted that the Horton Extension had a carrying capacity of 2.34 c.f.s., that construction of that extension began on September 25, 1903, and that the springs' water had been appropriated and "used continuously during each and every year since ... by and through ... irrigation ... to the extent of the entire supply afforded by [the] springs."

C. The 1905 Decree Did Not Include Any Indicia of Enforceability with Respect to the Springs

¶8 In 1905, Judge Bailey issued a water decree addressing Horton's Statement of Claim. He found that: (1) all of the springs' water was "appropriated by and through" the Horton Extension, which began to be constructed on or about September 25, 1903; and (2) the evidence supported all the allegations in Horton's Statement of Claim. But these findings were omitted in the concluding paragraphs of the 1905 decree, which set forth Judge Bailey's final orders:

It is by the Court considered, ordered, adjudged and decreed that there be allowed to flow into the said The Campbell Ditch out of the waters of Cherry Creek under and by virtue of an appropriation of date March 1st, 1882 , being Cherry Creek Priority Number 1.5 and Arkansas River Priority Number 263.5 , 2.34 cubic feet of water per second of time for the use and benefit of said W. S. Horton;
That there be further allowed to flow into said ditch under and by virtue of an appropriation by enlargement and extension through the Deever[']s Extension out of the waters of Cherry Creek under an appropriation of date March 1st, 1890 , being Arkansas River Priority No. 384.7 and Cherry Creek Priority No. 3 [,] 2.34 cubic feet of water per second of time for the use and benefit of said W. S. Horton;
It is further adjudged that the said The Campbell Ditch is entitled to receive and conduct from a certain spring situate ... and water from all springs along the line thereof, which runs thence Northeast 7380 feet to the original headgate of The Campbell Ditch ....
It is further adjudged and decreed that the said W. S. Horton is the sole owner of said ditch and entitled to receive the water appropriated thereby.

(Emphases added.)

¶9 Notably, as to the two Cherry Creek water rights (the "Cherry Creek water rights"), the 1905 decree specified that the water was "allowed to flow into" the Campbell Ditch, and then included appropriation dates, priority numbers (for both Cherry Creek and the Arkansas River), and quantification information. In stark contrast, with respect to the springs, the 1905 decree simply mentioned that the Campbell Ditch was entitled to "receive and conduct" water, and did not include an appropriation date, a priority number, or any quantification information. Even the format of the decree seemed to distinguish between the Cherry Creek water rights, on the one hand, and the entitlement to receive and conduct water from the springs, on the other. The paragraph setting forth the first Cherry Creek water right started with a declaration that the right was "considered, ordered, adjudged and decreed" by the court. The next paragraph, which addressed the second Cherry Creek water right, seemed to be a continuation of the first paragraph-it started with "[t]hat there be further allowed to flow into said ditch." But the paragraph discussing the springs' water was drafted as though it was meant as a separate order that addressed a different subject matter; it started with "[i]t is further adjudged."

D. Like the 1905 Decree, the 1909 Decree Does Not Include Any Indicia of Enforceability with Respect to the Springs

¶10 Less than two years after the 1905 decree was issued, Alexander challenged it. In a filing submitted in 1907, he argued that the 1905 decree contained some inaccuracies related to the Cherry Creek water rights. Additionally, Alexander raised issues regarding the springs, including as to their tributary nature and Horton's alleged appropriation. He asserted "that the springs ... were a portion of the natural flow of said Cherry Creek, and [that] all of the waters whereof had been appropriated prior to [Horton's appropriation date] by [Alexander] and others having decreed rights in [Cherry] Creek." On January 4, 1909, following the presentation of evidence and arguments, Judge Bailey set aside and annulled the 1905 decree and entered a new decree, which he declared "the only decree for said The Campbell Ditch."

¶11 Agreeing with Alexander, Judge Bailey corrected the inaccurate information in the 1905 decree concerning the Cherry Creek water rights-he amended "the matter of the date fixed ... for the original construction of said Campbell Ditch" and "the numbers assigned to said Ditch, and to its priorities." However, Judge Bailey did not address the issues raised by Alexander concerning the tributary nature of the springs or Horton's alleged appropriation of all of the springs' water supply. Instead, he omitted the findings in the 1905 decree related to those issues-that is, with respect to the appropriation of all of the springs' water through the Horton Extension, the date when construction began on that extension, and the conclusion that the evidence supported all the allegations in Horton's Statement of Claim.

¶12 The 1909 decree is otherwise consistent with the 1905 decree:

IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that said The Campbell Ditch is hereby numbered 316.5, and that there be allowed to flow into said The Campbell Ditch , out of the waters of Cherry Creek, under and by virtue of an appropriation of date March 1st, 1883 , being Cherry Creek Priority No. 3 , and Arkansas River Priority No. 282.5 , 2.34 cubic feet of water per second of time, for the use and benefit of said W. S. Horton, and of his grantees claiming by, through and under said W. S. Horton.
That there be further allowed to flow into said Ditch , under and by virtue of an appropriation by enlargement and extension through the Deever's Extension, out of the waters of Cherry Creek, under an appropriation of March 1st, 1890 , being Arkansas River priority Number 384.7 , and Cherry Creek Priority Number 4 , 2.34 cubic feet of water per second of time, for the use and benefit of said W. S. Horton, and of his said grantees claiming by, through and under said W. S. Horton.
AND IT IS FURTHER ADJUDGED that said The Campbell Ditch is entitled to receive and conduct from a certain spring situate ... and water from all springs along the line thereof, which runs thence northeast 7380 feet to the original headgate of The Campbell Ditch ....
AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said W. S. Horton, and his grantees holding by virtue of titles and claims derived from him, said W. S. Horton, are the sole owners of said ditch, and entitled to receive the water appropriated thereby.

(Emphases added.)

¶13 Like the 1905 decree, the 1909 decree does not include an appropriation date or a priority number for the springs' water. Nor does it indicate the amount of the springs' water the Campbell Ditch is entitled to receive. And the format of the 1909 decree does not vary greatly from that of its predecessor: it addresses the Cherry Creek water rights in two connected paragraphs and the springs' water separately.

E. The Dills/Pearces and Their Predecessors in Interest Have Put the Water from the Springs to Beneficial Use Since as Far Back as 1903

¶14 Having discussed the 1905 and 1909 decrees and relevant events surrounding their issuance, we now turn our attention to the historical use of the springs' water. Has anyone put the water from the springs to beneficial use in the past? And, if so, for how long?

¶15 Through the metal culvert placed upstream from the Campbell Ditch, the Dills started irrigating their properties with water from the springs in 2005 and the Pearces started doing so in 1991. But these properties were irrigated with water from the springs as early as 1953. Even before that, and as early as 1903, the Dills'/Pearces' predecessors in interest used water from the springs continually. Indeed, the water court found that it was in 1903 that they first installed a metal culvert upstream from the Campbell Ditch.

F. The Curtailment of the Springs' Water Supply to the Properties Owned by the Dills/Pearces and This Litigation

¶16 In 2011, the Division Engineer for Water Division 2 curtailed the water supply from the springs that the Dills/Pearces were using to irrigate their properties. The Division Engineer accomplished this by serving the Dills/Pearces with a cease and desist order prohibiting their use of water from the Horton Extension for irrigation purposes. The curtailment order prevented the springs' water from traveling to the Dills'/Pearces' land, redirecting it instead into Cherry Creek, thereby allowing Yamasaki Ring access to it.

¶17 The Dills/Pearces reacted to the curtailment order by commencing an action against the State Engineer and the Division Engineer (collectively "the State Engineer") in 12CW95. Their complaint sought a declaratory judgment that: (1) "[t]he waters derived from that certain spring situate ... and water from all springs along the line thereof have always been treated as separate and distinct" from the Cherry Creek water rights; and (2) the water from the springs appears "to be tributary to Stout Creek and not Cherry Creek." Along with their claim for a declaratory judgment, the Dills/Pearces filed a motion for a preliminary injunction. The State Engineer filed an answer and Yamasaki Ring filed both an answer and a statement in opposition.

¶18 Following a hearing, the water court denied the motion for a preliminary injunction. The Dills/Pearces then submitted an application in a separate case, 13CW3041, seeking to adjudicate their water right in the springs. The State Engineer and Yamasaki Ring both filed statements in opposition. Yamasaki Ring also submitted a motion for determination of a question of law in both cases; it asked the water court to decide "whether the springs[,] as set forth in the 1909 Decree[,] are a decreed supplemental source for the two [Cherry Creek] water rights."

G. The Water Court's Orders

¶19 In January 2016, the water court issued identical orders in 12CW95 and 13CW3041. The water court disagreed with Yamasaki Ring's assertion that the 1909 decree grants the Campbell Ditch an adjudicated water right in the springs. Finding the decree clear and unambiguous, the water court reasoned as follows:

The 1909 Decree fails to establish a priority number, date or flow rate for this supplemental water source. Therefore, [Judge Bailey] did not confirm a specific water right attributable to the springs but only decreed an entitlement to receive and conduct the springs' water without adjudicating any appropriation date or priority enforceable or administrable for a water right in the springs.

The water court explained that the 1909 decree "does not contain typical decree language" with respect to the springs' water. The information missing from the 1909 decree, the water court observed, means that the decree fails to "award a priority ..., ... [set] acreage for the water's use, and ... [establish] an amount[,] all things the District Court in 1909 was clearly aware needed to be included in order to decree a separate and distinct water right as shown by the District Court's award for the [Cherry Creek water rights]." Because "there was no specific adjudication ... made" concerning the springs' water, the water court ruled that Yamasaki Ring does not have an enforceable right in such water.

¶20 In an order issued in September 2016 in 12CW95, the water court clarified its ruling at Yamasaki Ring's request. It reiterated that the 1909 decree "[does] not adjudicate a separate and distinct water right for the springs apart from the [Cherry Creek] water rights" because "the 1909 Decree [does] not set forth the necessary information" or "establish a priority date for the spring water." That the springs' water may be "a supplemental/additional source" for the Cherry Creek water rights did not alter the water court's analysis. As the water court noted, since the entitlement to "the supplemental/additional water from the springs is not enforceable against any ... adjudicated water right holder," it "cannot ... be administered as a separate and distinct water right apart from the [Cherry Creek] water rights." Thus, the water court concluded that the 1909 decree gives "the owners of the Campbell Ditch water rights" nothing more than "an unenforceable entitlement to water from the springs when the two [Cherry Creek] water rights are not fully satisfied from diversions from Cherry Creek up to a total of 4.68 c.f.s."

¶21 The Dills'/Pearces' application for a water right in the springs proceeded to a bench trial in 2017 in 13CW3041. After the trial, the water court issued a written order granting the application. The water court determined that the springs' water is tributary to Stout Creek, not Cherry Creek. More importantly, the water court was persuaded by expert testimony that the predecessors in interest of the Dills/Pearces appropriated the water from the springs in 1903, six years before the 1909 decree entered, though no right to the springs' water had ever been adjudicated. The water court thus ruled that the Dills/Pearces were "entitled to a decree for 0.46 cfs absolute and 0.54 cfs conditional, for irrigation and domestic purposes." Given the continuous use of the water from the springs by the Dills/Pearces and their predecessors in interest, and given further the findings and conclusions in the two 2016 orders, the water court approved the application by the Dills/Pearces for an adjudicated water right in the springs' water.

¶22 Yamasaki Ring then brought this appeal.

The only issue raised is whether the water court erred in determining that "the Campbell Ditch water rights have no legally enforceable right to the springs against any ... adjudicated water right holder."

II. Standard of Review

¶23 We review de novo a water court's interpretation of a decree. Select Energy Servs., LLC v. K-LOW, LLC , 2017 CO 43, ¶ 12, 394 P.3d 695, 698. A water court's conclusions of law are likewise subject to de novo review. Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc. , 2016 CO 75, ¶ 21, 386 P.3d 452, 460. But we "accept the water court's factual findings on appeal unless they are so clearly erroneous as to find no support in the record." Id.

III. Analysis

A. Relevant Legal Principles

¶24 In Colorado, the water of natural streams is public property and is dedicated to the public's use. Shirola v. Turkey Cañon Ranch Ltd. Liab. Co. , 937 P.2d 739, 747-48 (Colo. 1997). But such water is subject to appropriation. Id. at 748. An appropriation occurs by virtue of a person taking action that makes beneficial use of water. Id. ; see also Farmers High Line Canal & Res. Co. v. City of Golden, 975 P.2d 189, 198 (Colo. 1999) (explaining that water that has not been applied to a beneficial use cannot be deemed to have "ripened into an appropriation"). A person's appropriation of unappropriated water of a natural stream creates a water right. Shirola , 937 P.2d at 748. When an appropriation is established with reasonable diligence through the beneficial use of water, the appropriator's water right vests. Id. Our General Assembly has defined a water right as "a right to use in accordance with its priority a certain portion of the waters of the state by reason of the appropriation of the same." § 37-92-103(12), C.R.S. (2018).

¶25 Any individual who holds a water right may file an application with the appropriate water court and request that his or her water right be adjudicated. Shirola , 937 P.2d at 748. Following the requisite publication of a resume in the local media, any person may oppose such an application by submitting a timely statement of opposition. Id. An adjudicated water right is memorialized in a water decree. Id. A water decree does not confer a water right. Id. Instead, it "confirms a pre-existing water right, or in the case of conditional applications, gives the applicant the opportunity to develop the right and obtain a priority date that relates back to the date of the first appropriation." Id. Stated differently, an adjudication confirms that which has already been accomplished through appropriation. Cresson Consol. Gold Mining & Milling Co. v. Whitten , 139 Colo. 273, 338 P.2d 278, 283 (1959). Importantly, though, while a water right "vests upon appropriation, it is not legally enforceable until it is adjudicated" in a decree. Shirola , 937 P.2d at 749.

¶26 When reviewing a water decree, we look first to its plain language. Select Energy , ¶ 13, 394 P.3d at 698. "Only if the meaning of the decree is ambiguous" will we "look to extrinsic evidence." Id . If the decree is unambiguous, "it cannot be varied by extrinsic evidence." Farmers High Line Canal , 975 P.2d at 199 n.14. It follows that, absent a determination of ambiguity, we will not look beyond the four corners of the decree. Id. In ascertaining whether a provision in a decree is ambiguous, we examine the decree's language and construe it in accordance with the plain and generally accepted meaning of the words employed. Id .

¶27 "[I]t is fundamental that a decree should be complete and certain in itself." Id ."It is the decree that recognizes the scope of a water right, and any asserted right must appear on the face of the decree or result from a proper construction of its express provisions." Select Energy , ¶ 16, 394 P.3d at 699 ; see also Grand Valley , ¶ 53, 386 P.3d at 466-67 ("[I]f an asserted right exists, it must be found in the language of the decree or at least 'implied from the express provisions of the decree[ ].' " (quoting Orchard City Irr. Dist. v. Whitten , 146 Colo. 127, 361 P.2d 130, 136 (1961) )).

¶28 A water decree must "measure, limit and define both the nature and extent of [the holder's] rights." Orchard City , 361 P.2d at 135-36. "Priority, location of diversion at the source of supply, and amount of water for application to beneficial uses are the essential elements of the appropriative water right." Empire Lodge Homeowners' Ass'n v. Moyer , 39 P.3d 1139, 1148 (Colo. 2001). A water right's priority "is a function of appropriation and adjudication, and is the most important stick in the water rights bundle." Id. The goal of adjudication "is to fix the priority of a water right" so that it may be administered against other decreed water rights. Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson , 990 P.2d 46, 54 (Colo. 1999).

B. Application

¶29 Both parties argue that the 1909 decree is clear and unambiguous. And yet, they urge us to reach diametrically opposed conclusions on whether the decree adjudicated a water right in the springs' water. We conclude that the 1909 decree is clear and unambiguous, but we agree with the Dills/Pearces that it did not adjudicate an enforceable water right in the springs' water.

¶30 As the water court aptly noted, the paragraph in the 1909 decree that addresses the springs clearly lacks "typical decree language." It has no appropriation date, no priority number, and no information related to the amount of water for application to beneficial uses. Indeed, it is wholly lacking in indicia of enforceability.

¶31 Significantly, the statutory scheme in effect in 1909 required some of the missing information for the adjudication of a water right. Colorado has recognized "the interlocking nature of appropriation, adjudication, and administration" since 1879. Empire Lodge Homeowners' Ass'n , 39 P.3d at 1149. Legislative acts enacted in 1879 and 1881 "provided for courts to adjudicate irrigation water rights and the water officials to administer them in priority ." Id. (emphasis added). The 1903 Act extended the "adjudication and administration of [water] rights and their priorities to all beneficial uses, not just irrigation." Id. (emphasis added). "The purpose of each of these acts was to make clear that adjudication was required in order to obtain the benefits of priority administration." Id. (emphasis added).

¶32 In 1909, Colorado's statutes required the district court to receive evidence and issue a ruling regarding the adjudication of a water right based on the commencement of a ditch, its original size, its carrying capacity, and the time spent constructing it. § 3284, C.R.S. (1908). The same information was required for any enlargement, extension, or re-enlargement of a ditch. Id. The court was then required to order each water right according to the date of the ditch's construction, the date of the ditch's enlargements or extensions, and "the amount of water which shall be held to have been appropriated by such construction and enlargements, or extensions, describing such amount by cubic feet per second of time." Id.

¶33 Consistent with the law in effect at the time, Judge Bailey included indicia of enforceability in the paragraphs of the 1909 decree that address the Cherry Creek water rights. Each of these rights is accompanied by an appropriation date, priority numbers (with respect to Cherry Creek and the Arkansas River), and quantification information. But with respect to the springs, Judge Bailey did not provide any indicia of enforceability: no appropriation date, no priority number, and no quantification information. Without this information, it is impossible to enforce or administer any water right in the springs vis-à-vis adjudicated water rights.

¶34 We hold that the 1909 decree does not set forth required indicia of enforceability-including an appropriation date, a priority number, and quantification information-with respect to the springs. A decree must "measure, limit and define both the nature and extent" of a water right. Orchard City , 361 P.2d at 135-36. The priority, the location of diversion at the supply's source, and the amount of water for application to a beneficial use are all "essential elements of the appropriative water right." Empire Lodge Homeowners' Ass'n , 39 P.3d at 1148. Of these, priority "is the most important stick in the water rights bundle" because priority is "a function of appropriation and adjudication," id. ; indeed, the purpose of adjudication "is to fix the priority of a water right," Santa Fe Trail Ranches Prop. Owners Ass'n , 990 P.2d at 54. Absent indicia of enforceability, especially a priority number, the Campbell Ditch's entitlement to receive and conduct water from the springs cannot be deemed an adjudicated water right that can be enforced or administered against other adjudicated water rights.

¶35 Yamasaki Ring insists, however, that it has never claimed "a separate water right" in the springs and, therefore, any argument regarding what constitutes an adjudicated water right is irrelevant to its appeal. According to Yamasaki Ring, because the springs' water is a supplemental or additional "source to the [Cherry Creek] water rights," which no one disputes are properly adjudicated and enjoy indicia of enforceability, "it was unnecessary" for the 1909 Decree to "include an appropriation date, flow rate or other [indicia of enforceability]" with respect to the springs. We are unconvinced by this contention. Without indicia of enforceability, and in particular a priority number, an entitlement to receive and conduct water is not enforceable or administrable against adjudicated water rights. Therefore, it is not an adjudicated water right.

¶36 Still, Yamasaki Ring urges us to declare the Campbell Ditch's entitlement to receive and conduct water from the springs an adjudicated water right based on the 1909 decree's use of the word "adjudged." The word "adjudged" does not alter our analysis. First, Judge Bailey appeared to draw a distinction between the Cherry Creek water rights and the entitlement to receive and conduct water from the springs. Whereas "waters of Cherry Creek" are "allowed to flow into said The Campbell Ditch," the Campbell Ditch is "entitled to receive and conduct ... water from [the] springs." Further, the Cherry Creek water rights were addressed in connected paragraphs that were qualified by the same phrase: "IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court." In contrast, the entitlement to receive and conduct water from the springs was discussed in a stand-alone paragraph that started with the phrase: "AND IT IS FURTHER ADJUDGED."

¶37 Second, and more importantly, that something was "adjudged" is not what matters most to us; it's what was "adjudged" that is central to our analysis. As pertinent here, all the decree "adjudged" was the Campbell Ditch's entitlement "to receive and conduct" some unknown amount of water from the springs. That is not the equivalent of an adjudicated water right. Absent a priority number, an appropriation date, and quantification information, any purported right to use the water from the springs cannot be enforced against adjudicated water rights.

¶38 We are equally unmoved by Yamasaki Ring's alternative contention, which invites us to consider extrinsic evidence. Because the plain and generally accepted meaning of the language in the 1909 decree is clear and unambiguous, we do not look to extrinsic evidence. Yamasaki Ring nevertheless maintains that it is appropriate to consider extrinsic evidence to determine whether the language of the decree is ambiguous. We disagree. The rule Yamasaki Ring proposes would swallow the time-honored principle that we consult extrinsic evidence only when the plain language of the decree is ambiguous.

Under Yamasaki Ring's approach, extrinsic evidence would always have to be considered, even if merely to determine whether an ambiguity exists in the decree. And, where, as here, the decree is clear and unambiguous, a party could inject ambiguity into it through extrinsic evidence.

¶39 Relying on East Ridge of Fort Collins, LLC v. Larimer and Weld Irrigation Co. , Yamasaki Ring avers that we have relaxed the longstanding rule related to extrinsic evidence. 109 P.3d 969, 974 (Colo. 2005). But that case is factually distinguishable. There, we interpreted the terms of two contracts for water rights. It was in the context of attempting to ascertain and effectuate the parties' intent that we explained that "our courts no longer apply a rigid 'four corners' rule" and that extrinsic evidence is "conditionally" admissible to determine whether the contract, especially an ancient one, is ambiguous. Id. Here, we deal with a water decree entered by the district court, not a contract for water rights executed by private parties.

¶40 We do agree with Yamasaki Ring that the pleadings underlying the 1909 decree place the decree in context and are relevant to our interpretation. We have consistently recognized "that statements of claim and transcripts of testimony in adjudication proceedings are admissible evidence in other actions involving the construction or interpretation of water decrees." Orchard City , 361 P.2d at 134 ; see also Farmers Res. & Irr. Co. v. City of Golden , 44 P.3d 241, 248 n.6 (Colo. 2002) (same). In Orchard City , we observed that a water decree "is not woven of thin air," and is, instead, "a determination of ... specific issue[s] presented to the court" and "grounded on the facts creating [those] issue[s]." Orchard City , 361 P.2d at 134 (quoting Hinderlider v. Canon Heights Irr. & Res. Co. , 117 Colo. 183, 185 P.2d 325, 327 (1947) ). Consequently, a decree "must be construed in the light of the facts which gave it birth and limited by the issue[s] it resolved." Id. (quoting Hinderlider , 185 P.2d at 327 ); see also Grand Valley , ¶ 52, 386 P.3d at 466 (A statement of claim "is akin to a pleading upon which judgment is based, and may be consulted to enable the court to interpret or constrain the decree 'in light of the claimant's own assertion of his demand.' " (quoting In re Water Rights of Cent. Colo. Water Cons. Dist. , 147 P.3d 9, 16-17 (Colo. 2006) )).

¶41 But the pleadings that gave rise to the 1909 decree actually undermine Yamasaki Ring's position. In the 1905 decree, Judge Bailey found that Horton had appropriated the springs' water on or about September 25, 1903, and was claiming 2.34 c.f.s. from the springs. Alexander challenged these findings in 1907, even though they were not included in the 1905 decree's concluding paragraphs, which set forth Judge Bailey's final orders. More specifically, Alexander maintained that the springs were tributary to Cherry Creek, were part of the natural flow of said Cherry Creek, and had been appropriated before Horton's alleged appropriation date of September 25, 1903, by more senior water right holders, including Alexander. While the 1909 decree, which was issued in response to Alexander's filing, did not address the merits of these contentions, it omitted the challenged findings. We agree with the water court that the most reasonable inference is that Judge Bailey was not convinced in 1909 that Horton had proven his claim to an appropriation of any specific amount of the springs' water for which a priority could be assigned.

¶42 In short, the pleadings underlying the 1909 decree do not support Yamasaki Ring's position. To the contrary, they are consistent with the plain and unambiguous language of the decree. Thus, we conclude that the water court correctly ruled that, under the 1909 decree, Yamasaki Ring does not have an adjudicated water right in the springs; instead, it has "an unenforceable entitlement to water from the springs when the two [Cherry Creek] water rights are not fully satisfied ... up to a total of 4.68 c.f.s."

IV. Conclusion

¶43 The water court correctly ruled that the Campbell Ditch's entitlement to receive and conduct water from the springs is not an adjudicated water right. Because we agree with the water court's interpretation of the 1909 decree, we affirm.

      The predecessors in interest of the Dills/Pearces replaced the original culvert with the culvert that is in place now, which has a manufacture date of 1968.

      The cases were later informally consolidated.

      Each of the Cherry Creek water rights set forth in the 1909 decree involves 2.34 c.f.s. 2.34 + 2.34 = 4.68.

      On appeal, the State Engineer agrees with the water court's interpretation of the 1909 decree.

      Yamasaki Ring phrases the issue alternatively as follows: whether the water court erred in concluding that the 1909 decree awarded the Campbell Ditch "an 'unenforceable entitlement' to the entire flow of water" from the springs "when the Campbell Ditch water rights are not fully satisfied from diversions from Cherry Creek."

      To the extent the State Engineer argues that the law in effect when the 1909 decree was issued is extrinsic evidence, we disagree.

      We need not discern whether "ADJUDGED" has a different meaning than "CONSIDERED, ORDERED, ADJUDGED AND DECREED." What is of relevance to us is that Judge Bailey appeared to treat the Cherry Creek water rights differently than the entitlement to receive and conduct water from the springs.

      Yamasaki Ring takes issue with this conclusion because it cannot think of any reason to reference an unenforceable entitlement to water in a decree. We decline to speculate why Judge Bailey made mention of the Campbell Ditch's entitlement "to receive and conduct water" from the springs in the 1909 decree. However, we are satisfied that, whatever Judge Bailey's reason, the 1909 decree did not adjudicate a water right in the springs.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF the Application of Charles Edmond DAVIS, Situate in Waikiki, Honolulu, Oahu.
    In re Petitioners Lily Tai Nomura, Richard Y.S. Lee, Long Life Foundation, a Hawaii non-profit corporation, and Aloha Rainbow Investments, a Hawaii corporation affecting Transfer Certificate of Title Nos. 1053288 and 182404
    NO. CAAP-15-0000442
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Vacated. Remanded.


text:
    JIJUN YIN, Plaintiff-Appellant, v. P.I. AGUIAR, as Personal Representative of Virginio C. Aguiar, Jr., Deceased, Kevin Aguiar and Agee, Inc., Defendants-Appellees
    NO. CAAP-15-0000325
    Intermediate Court of Appeals of Hawai'i.
    February 27, 2019 As Corrected: February 27, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Nathaniel George Ikaika PENALVER, Defendant-Appellant
    NO. CAAP-17-0000772
    Intermediate Court of Appeals of Hawai'i.
    February 27, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. James MCDANIEL, Defendant-Appellant
    NO. CAAP-14-0001105
    Intermediate Court of Appeals of Hawai'i.
    February 27, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm. Vacate. Remand.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Darius FULLER, Defendant-Appellant
    NO. CAAP-18-0000394
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Reversed.


text:
    Colleen P. COLLINS, nka Colleen P. Otani, Plaintiff-Appellee/Cross-Appellant, v. John A. WASSELL, Defendant-Appellant/Cross-Appellee
    NO. CAAP-15-0000434
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirm. Dismissed. Vacated. Remanded.


text:
    DL, Plaintiff-Appellant, v. CL, Defendant-Appellee
    NO. CAAP-18-0000211
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    HAWAII GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME LOCAL 152, AFL-CIO, Union-Appellant, v. State of Hawai'i, DEPARTMENTS OF HEALTH OR HUMAN SERVICES, as Agents of Governor David Y. Ige, Employer-Appellees
    NO. CAAP-14-0001078
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.
    1 During the pendency of this appeal, Governor David I. Ige succeeded Governor Neil Abercrombie as Governor of the State of Hawai`i. Thus pursuant to Hawai`i Rule of Appellate Procedure Rule 43(c)(1), Governor Ige has been substituted automatically for former Governor Abercrombie in this case.
    --------


text:
    AMERICAN SAVINGS BANK, F.S.B., Plaintiff-Appellee, v. ASSOCIATION OF APARTMENT OWNERS OF THE HANOHANO HALE, Defendant-Appellant, and Marc Dominic De Luca; Evelyn Amy Kurosumi, As Trustee of the Evelyn Amy Kurosumi Revocable Living Trust, Dated August 30, 1994; Martha F. Hironaka, As Successor Trustee of the Sam S. Hironaka Revocable Living Trust, Established by the Unrecorded Instrument Dated March 7, 1985, As Amended and Restated, Defendants-Appellees, and The Estate of Thomas Charles De Luca, Deceased; John Does 1-10; Jane Does 3-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10 and Doe Governmental Units 1-10, Defendants
    NO. CAAP-15-0000689
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019.
    MEMORANDUM OPINION
    Affirm.


text:
    MAKILA LAND CO., LLC., Plaintiff-Appellee, v. Jonah Ke'eaumoku KAPU, Defendant-Appellant, Heirs or Assigns of Kua (k), Kainoa (w), also known as Kainoa Kikue Olala (w), and Samuel Hiku Kahalia; John Paul Kapu; Victoria Q. White; Kalani Kapu; and all whom it may concern, Defendants-Appellees
    NO. CAAP-17-0000358
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Claus Zimmerman HANSEN, Plaintiff-Appellant, v. BANK OF AMERICA, NATIONAL ASSOCIATION AS TRUSTEE FOR WASHINGTON MUTUAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-0A4 TRUST, US as the Successor Trustee to Bank of America, Barbara Hindman, JP Morgan Chase Bank, N.A., Defendants-Appellees, and Doe Defendants 1-20, Defendants
    NO. CAAP-15-0000961
    Intermediate Court of Appeals of Hawai'i.
    March 4, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    Gary KARAGIANES, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee
    NO. CAAP-17-0000509
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Joseph T. FUGOW, Petitioner-Appellant, v. STATE of Hawai'i, Respondent-Appellee
    NO. CAAP-18-0000165
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed. Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Raul Romero LOPEZ, Defendant-Appellant
    NO. CAAP-15-0000337
    Intermediate Court of Appeals of Hawai'i.
    February 28, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    Cindy Churan KODAMA, Plaintiff-Appellee, v. Alan Haruo KODAMA, Defendant-Appellant
    NO. CAAP-17-0000327
    Intermediate Court of Appeals of Hawai'i.
    March 12, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Kapahukula Kale VOORHEES, Defendant-Appellant
    NO. CAAP-14-0000844
    Intermediate Court of Appeals of Hawai'i.
    March 12, 2019
    MEMORANDUM OPINION
    Reversed. Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellant, v. Rodney Robert RODRIGUES, Jr., Defendant-Appellee
    NO. CAAP-17-0000656
    Intermediate Court of Appeals of Hawai'i.
    March 12, 2019
    MEMORANDUM OPINION
    Vacated. Remanded.


text:
    LS, obo Minor Children, Petitioner-Appellee, v. SH, Respondent-Appellant
    NO. CAAP-14-0000923
    Intermediate Court of Appeals of Hawai'i.
    March 6, 2019.
    MEMORANDUM OPINION
    Affirm. Vacate. Remand.


text:
    Grace CHEN, Plaintiff-Appellee, v. Jonathan William MAH, D.D.S.; Jonathan Mah, DDS, Inc., a Hawaii corporation, Defendants-Appellants, and John Does 1-10; Jane Does 1-10; Doe Governmental Agencies 1-10; Doe Entities 1-10; Defendants
    NO. CAAP-16-0000712
    Intermediate Court of Appeals of Hawai'i.
    March 14, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Samuel EAGER, Defendant-Appellant
    NO. CAAP-18-0000151
    Intermediate Court of Appeals of Hawai'i.
    March 14, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    SPAR MARKETING SERVICES, INC., Appellant-Appellant, v. State of Hawai'i, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, EMPLOYMENT SECURITY APPEALS REFEREES' OFFICE, and Lorene L. Kane, Appellees-Appellees
    NO. CAAP-14-0000500
    Intermediate Court of Appeals of Hawai'i.
    March 13, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Andrew Maxwell COX, Defendant-Appellant,
    NO. CAAP-15-0000563
    Intermediate Court of Appeals of Hawai'i.
    March 20, 2019
    MEMORANDUM OPINION
    Reverse.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Brandon B.W. GOO, Defendant-Appellant
    NO. CAAP-16-0000369
    Intermediate Court of Appeals of Hawai'i.
    March 15, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


author: EISMANN, Justice.

text:
    Dalrie COOK, fka Dalrie Arias, Plaintiff-Appellant, v. Hugo Marcelo ARIAS, Defendant-Respondent.
    No. 41745.
    Supreme Court of Idaho, Boise, November 2014 Term.
    Feb. 6, 2015.
    Aaron J. Woolf, Thompson, Smith, Woolf & Anderson, PLLC, Idaho Falls, for appellant.
    Neal Randall, Idaho Falls, for respondent.
    ORDER DENYING RECONSIDERATION AND VACATING JUDGMENT
   EISMANN, Justice.

This is an appeal by permission out of Bonneville County from an order in a divorce action modifying child custody. Because no final judgment dissolving the marriage and no judgment regarding custody had ever been entered in this action during the four-year period after the divorce trial, we dismissed the appeal because it did not qualify for an appeal by permission. After the appeal was dismissed, the magistrate court entered a partial judgment purporting to retroactively divorce the parties four years earlier and a partial judgment regarding custody and the division of property and debts. The appellant then filed a motion seeking reconsideration of the order dismissing the appeal. We deny that motion, vacate the partial judgment retroactively terminating the parties' marriage, and direct the magistrate court to enter a new partial judgment dissolving their marriage.

I.

BACKGROUND AND ANALYSIS.

On January 23, 2009, Dalrie Arias (Plaintiff) filed this action against Hugo Arias (Defendant) to annul their marriage on the ground that at the time of their marriage on April 9, 1993, he was still married to another. During their marriage, Plaintiff and Defendant had two children, a daughter born in 1998 and a son born in 1999. Plaintiff later withdrew the claim for an annulment, and this action proceeded as one for divorce.

The trial was held on January 6, 12, and 13, 2011, before Magistrate Blower. On January 25, 2011, he entered a document that purported to be a judgment, but was not. The document was titled "Decree of Divorce Nunc Pro Tunc," and it provided as follows:

This matter came before the court for trial on January 6, 12 and 13, 20l1. The court has heard the evidence and argument of counsel. The court has taken under advisement the issues of property and debt division and custody and visitation. However, the parties having stipulated to entry of a decree of divorce on the grounds of irreconcilable differences, at [sic] it appearing that the plaintiff is entitled to a divorce on the grounds of irreconcilable differences, and the court being fully advised in the premises;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS follows:
1. That the plaintiff is granted a divorce from the defendant upon the grounds of irreconcilable differences, nunc pro tunc January 13, 2011, and the bonds of matrimony existing between the plaintiff and the defendant be, and the same are, hereby dissolved and each parry is restored to the status of single person.
2. That Plaintiff shall be restored to her maiden name of "Dalrie Summers."
3. That the court by written decision to follow this decree shall decide all remaining issues.

The purported judgment did not constitute a judgment because it contained a record of prior proceedings (the opening paragraph) in violation of Rule 54(a) of the Idaho Rules of Civil Procedure. Estate of Holland v. Metro. Prop. and Cas. Ins. Co., 153 Idaho 94, 99, 279 P.3d 80, 85 (2012). That rule, which went into effect over six months earlier, provided that "[a] judgment shall not contain ... the record of prior proceedings." I.R.C.P. 54(a) (effective July 1, 2010). The purported judgment also attempted to make the divorce retroactive to January 13, 2011, the last day of the trial, and it included a statement that was not granting any relief requested in the pleadings ("That the court by written decision to follow this decree shall decide all remaining issues."). The pleadings asked the court to divide the property and debts, not merely to agree to decide those issues.

Even if the purported judgment had complied with Rule 54(a), it would not have been a final judgment. The rule states, "A judgment is final if either it has been certified as final pursuant to subsection (b)(1) of this rule or judgment has been entered on all claims for relief, except costs and fees, asserted by or against all parties in the action." For the purported judgment to be final, he would have had to either certify it as final pursuant to Rule 54(b)(1) or enter a judgment on the remaining issues. He did neither.

On February 4, 2011, Magistrate Blower entered his "Findings of Fact and Conclusions of Law" addressing the remaining issues in the case. However, he did not enter a judgment regarding those issues. Instead, he directed Defendant's counsel "to prepare a proposed Supplemental Order" that was consistent with the findings of fact and conclusions of law.

The primary dispute regarding custody was whether Plaintiff could move with the children to Utah so she could live with an old boyfriend. In his findings of fact and conclusions of law, Magistrate Blower stated that the children would reside with Defendant unless Plaintiff, within fourteen days, filed a document stating that she "abandons her plan to move the children away, in which event the court would order that the children reside primarily with [Plaintiff] and have reasonable visitation with [Defendant]." Plaintiff filed that document on February 11, 2011.

There was further litigation concerning the findings of fact and conclusions of law, and on March 17, 2011, Magistrate Blower entered a memorandum decision modifying the findings of fact and conclusions of law. He directed Defendant's counsel "to prepare a proposed Supplemental Order" that was consistent with the findings of fact and conclusions of law, as amended. Defendant's counsel did so, and on April 29, 2011, Magistrate Blower entered a "Supplemental Order" setting forth orders on the various issues addressed in the findings of fact. The order stated, "Because [Plaintiff] filed her Statement of Unequivocal Desire on February 11, 2011-advising the court that she will continue to reside in the Idaho Falls area-the children shall reside with [Plaintiff] except as provided below." The Supplemental Order then set forth Defendant's visitation schedule.

Magistrate Blower did not enter a judgment on the issues addressed in the Supplemental Order. Therefore, the Supplemental Order was simply an interlocutory order. Doe v. Doe, 155 Idaho 660, 663, 315 P.3d 848, 851 (2013). There is also no indication in the record that either counsel requested that Magistrate Blower enter a judgment on the issues addressed in the Supplemental Order.

On August 11, 2011, Plaintiff filed a motion to modify that portion of the Supplemental Order that granted her primary physical custody of the children upon her statement that she would continue to reside in Idaho Falls. In support of her motion, she stated that she had remarried and wanted to take the children to Utah to live with her new husband. She moved to disqualify Magistrate Blower, and he entered a judgment disqualifying himself from continuing to preside over this case. Magistrate Gardner was then appointed to preside.

Magistrate Gardner heard Plaintiff's motion to modify the Supplemental Order. On November 25, 2011, he entered an order denying the motion. In doing so, he wrote, "The law in this state is equally well settled that modifications of a decree of divorce to change the custody of minor children can be made only upon a showing of material, permanent and substantial change in the circumstances of the parties." That standard is applicable to a motion to modify a final judgment regarding custody, but no final judgment had ever been entered in this case regarding custody and the Supplemental Order was merely an interlocutory order.

Plaintiff appealed the denial of her motion to the district court. On December 6, 2012, the district court dismissed the appeal on the ground that the order denying her motion did not comply with the requirements of Rule 54(a) for a judgment. The district court failed to notice that no final judgment had ever been entered in this case, and it erroneously concluded that an order denying a motion to modify a judgment (assuming one had been entered) must also meet the requirements of Rule 54(a).

In response to the district court's decision dismissing the appeal, Magistrate Gardner on February 21, 2013, entered a "Judgment" dismissing Plaintiff's motion to modify custody that had been filed on August 11, 2011. Based upon that "Judgment," the district court then heard the merits of the appeal, and on May 31, 2013, it entered an opinion upholding Magistrate Gardner's decision that Plaintiff had failed to show a material, permanent and substantial change in circumstances since the entry of the original decree, even though no final decree had ever been entered in this action. As stated above, because no judgment had ever been entered regarding custody, that was not the correct standard to apply. Likewise, for the same reason, the matter was not even appealable to the district court. I.R.C.P. 83(a).

On March 25, 2013, Plaintiff filed another motion to modify the order regarding child custody, asking that she be allowed to relocate with the minor children to Salt Lake City, Utah. She alleged that she had remarried and that the children desired to live with her in Utah. Defendant responded by filing a motion to dismiss. On August 30, 2013, Magistrate Gardner entered an "Order Granting Motion to Dismiss" on the ground that Plaintiff had failed to show a material, permanent and substantial change in circumstances and was simply attempting "to re-hash issues that were the subject of the trial." As stated above, that was not the proper standard because Plaintiff was seeking to amend an interlocutory order. On September 19, 2013, Magistrate Gardner entered a "Judgment" granting Defendant's motion to dismiss, dismissing Plaintiff's motion to amend custody, denying other motions, ordering that Defendant was entitled to an award of attorney fees, and vacating the trial. Obviously, that "Judgment" was not a judgment that complied with Rule 54(a).

Plaintiff moved to Utah with the parties' daughter and enrolled her in school. On September 5, 2013, Defendant filed a motion seeking an expedited hearing on custody. After hearing that motion, Magistrate Gardner entered on October 13, 2013, a document titled "Order Granting Motion for Expedited Hearing as to Custody." In that order he stated, sua sponte, that pursuant to Rule 60(b)(6) he was modifying child custody by granting Defendant primary physical custody of both children, but ordering that the parties' daughter be transitioned into moving back to Idaho to live with Defendant.

On November 1, 2013, Magistrate Gardner entered an "Order for Child Support" requiring Plaintiff to pay child support. On November 25, 2013, he entered a document titled " Rule 54(b) Certificate," which stated:

With respect to the issues determined by the ORDER GRANTING MOTION FOR EXPEDITED HEARING AS TO CUSTODY filed herein October 3, 2013, and the ORDER FOR CHILD SUPPORT filed herein November 1, 2013, it is hereby CERTIFIED in accordance with Rule 54(b), I.R.C.P., that the court has determined that there is no just reason for the delay of the entry of a final judgment and that the court has and does hereby direct that the above judgments or orders shall be a [sic] final judgments upon which execution may issue and an appeal may be taken as provided by the Idaho Appellate Rules.

A Rule 54(b) certificate only makes a partial judgment that does not resolve all issues in the case into a final judgment. It does not make a document that does not comply with Rule 54(a) into a judgment. Because neither order constituted a judgment, the Rule 54(b) certificate was meaningless. Clearwater REI, LLC v. Boling, 155 Idaho 954, 958, n. 2, 318 P.3d 944, 948 (2014). In addition, the rule requires that "the court shall execute a certificate which shall immediately follow the court's signature on the judgment." I.R.C.P. 54(b)(1). A Rule 54(b) certificate cannot be filed as a separate document. Boyd-Davis v. Baker, 157 Idaho 688, 692, 339 P.3d 749, 753 (2014). Thus, the Rule 54(b) certificate entered by the magistrate was of no effect.

On January 10, 2014, Plaintiff filed a motion for a permissive appeal pursuant to Rule 12.1 of the Idaho Rules of Civil Procedure. This Court granted the motion. A clerk's record was filed with this Court on March 21, 2014, and the parties completed their briefing on May 9, 2014. The case was to be set for oral argument in November 2014, but the parties agreed to submit the matter on the briefs.

This Court later discovered that no final judgment had ever been entered in this case. As a result, this case did not qualify for a permissive appeal pursuant to Rule 12.1. That rule permits a direct appeal from the magistrate court to this Court "of a final judgment, as defined in Rule 54(a) of the Idaho Rules of Civil Procedure, or order made after final judgment, involving the custody of a minor." I.A.R. 12.1. Therefore, on January 7, 2015, the clerk of this Court issued an order dismissing the appeal.

On January 20, 2015, Magistrate Gardner responded by entering a "Decree of Divorce and Judgment," which stated as follows:

JUDGMENT IS ENTERED AS FOLLOWS:
1. That the Plaintiff is granted a divorce from the Defendant upon the grounds of irreconcilable differences, nunc pro tunc January 13, 2011, and the bonds of matrimony existing between the Plaintiff and the Defendant be, and the same are, hereby dissolved and each party is restored to the status of single person.
2. That Plaintiff is restored to her maiden name of "Dalrie Summers."

The attempt to make the partial judgment retroactive is void. "[A] judgment may not be given nunc pro tunc effect to correct a judicial error." Weaver v. Searle Bros., 131 Idaho 610, 615, 962 P.2d 381, 386 (1998). In this case, Magistrate Blower did not enter a final judgment terminating the parties' marriage. The failure to enter a judgment was not an accident, excusable oversight, or mistake. It was obviously a conscious decision, albeit a judicial error. Therefore, the nunc pro tunc partial judgment terminating the parties' marriage is void.

On January 29, 2015, Magistrate Gardner also entered a partial judgment regarding the remaining issues, and he attached a Rule 54(b) certificate to that judgment. It changed the custody provisions of the "Order Granting Motion for Expedited Hearing as to Custody," so that the children were to reside with Plaintiff rather than Defendant and Defendant would have specified visitation. Defendant was also required to pay child support to Plaintiff, rather than the reverse.

The judgment entered on January 29, 2015, essentially restored the child custody and support provisions to those set forth in the Supplemental Order entered on April 29, 2011, but there is no provision in the judgment requiring or assuming that Plaintiff reside in Idaho in order to have primary physical custody of the children. As far as the record reflects, she was still residing in Utah with the parties' daughter at the time the judgment was entered ordering that the children reside with her. The judgment also provided that "[e]ach party shall bear his or her own attorney fees and costs," thereby nullifying the order entered on February 13, 2014, awarding Defendant court costs and attorney fees in the sum of $4,660.

On January 26, 2015, Plaintiff filed a "Petition for Rehearing" asking that this Court set aside the order dismissing this appeal "so that this Court can decide the very important child custody issues which this Court agreed to hear when it entered its Order Granting Motion for Permission to Appeal to the Supreme Court on February 10, 2014." Because the order dismissing the appeal was not an opinion, Idaho Appellate Rule 42, which provides for petitions for rehearing, does not apply. We are considering Plaintiff's petition as a motion for reconsideration and addressing it pursuant to Idaho Appellate Rule 48.

The invalid permissive appeal in this case was taken from the "Order Granting Motion to Dismiss" entered on August 30, 2013, and the "Order Granting Motion for Expedited Hearing as to Custody" entered on October 3, 2013. Those two orders were simply interlocutory orders because no final judgment had ever been entered in this case. The first judgment entered regarding child custody was the partial judgment entered on January 29, 2015. Based upon the partial judgment entered, the two interlocutory orders that Plaintiff sought to address in a permissive appeal are no longer in effect.

II.

ORDER.

Based upon the foregoing, IT IS HEREBY ORDERED AS FOLLOWS:

1. That the "Decree of Divorce and Judgment" entered on January 20, 2015, is vacated;

2. That the magistrate court is ordered to enter a judgment terminating the parties' marriage and restoring Plaintiff's maiden name, which judgment shall be effective on the date it is entered; and

3. That Plaintiff's motion for reconsideration is denied.

Chief Justice BURDICK, Justices J. JONES, HORTON and Senior Justice Pro Tem WALTERS concur.

      Had there been a final judgment, an order denying a motion to amend that judgment need not comply with Rule 54(a). An order denying a motion to amend a judgment is not a judgment. An order granting a motion to modify a final judgment also need not comply with Rule 54(a), but an amended judgment should thereafter be entered reflecting the judgment as amended. To constitute a judgment, the amended judgment must be a single document that sets forth the provisions of the original judgment as amended by the subsequent order. Although the district court did not cite Rule 60(c) for its belief that an order denying a motion to amend child custody must comply with Rule 54(a), Rule 60(c) does not make a motion to modify child custody or support a new civil action. It simply requires certain procedures similar to the commencement of an action ("The motion shall be in a form similar to a complaint, served with a notice directing the opposing party to file a written response within twenty (20) days, or default may be entered, with or without hearing.") in order to improve the processing of those motions.

      Because no final judgment had ever been entered in this action, Rule 60(b) did not apply. Doe v. Doe, 155 Idaho 660, 664, 315 P.3d 848, 852 (2013) ; Idaho First Nat'l Bank v. David Steed and Assocs., Inc., 121 Idaho 356, 361, 825 P.2d 79, 84 (1992).

      We do not hold that such an order is required in order for a party to resume using his or her given surname after a divorce. There is no law that changes a spouse's name upon marriage, but Plaintiff apparently wanted that provision in the divorce decree.


author: PER CURIAM.

text:
    IN RE: PREFILING ORDER DECLARING VEXATIOUS LITIGANT, Pursuant to I.C.A.R. 59
    Mark D. Colafranceschi, Vexatious Litigant-Appellant, v. Melissa Moody, Administrative District Judge, Fourth Judicial District, Respondent.
    Docket No. 45554
    Supreme Court of Idaho, Boise, December 2018 Term.
    Filed: February 25, 2019
    Mark D. Colafranceschi, pro se, for appellant.
    Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
   PER CURIAM.

This is an appeal of an administrative order entered by Administrative District Judge Melissa Moody for the Fourth District declaring appellant, Mark D. Colafranceschi (Colafranceschi), a vexatious litigant pursuant to Idaho Court Administrative Rule 59. Colafranceschi appeals that order, arguing that the administrative judge erred in declaring him a vexatious litigant. For the reasons set forth in this opinion, we affirm the administrative district judge's order finding Colafranceschi a vexatious litigant and uphold the order prohibiting Colafranceschi from filing any new pro se litigation in the courts of this state without first obtaining leave of a presiding judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

Colafranceschi and his former wife, Julie Neustadt (Neustadt), have been involved in contentious litigation dating back to May 6, 2016. On March 16, 2017, Neustadt's attorney, Scot Ludwig (Ludwig), filed a motion to refer Colafranceschi to the administrative judge to determine if he was a vexatious litigant pursuant to I.C.A.R. 59. In response, Colafranceschi filed an objection to that motion on March 20, 2017, and another one on March 29, 2017. In addition, he filed a document titled " Rule 59" in which he requested a hearing on Ludwig's motion. He also filed a document with the administrative judge on April 12, 2017, reiterating many allegations against Neustadt and requesting that the court allow him to call Neustadt and other witnesses to respond to the allegation he was a vexatious litigant.

On April 19, 2017, the administrative district judge filed Proposed Findings and Notice of Intent to Issue a Prefiling Order. The proposed findings stated that Colafranceschi's conduct satisfied I.C.A.R. 59(d)(1), (d)(2), and (d)(3) - three of the four grounds upon which a person may be found to be a vexatious litigant. She determined that Colafranceschi had satisfied I.C.A.R. 59(d)(1) because in the preceding seven years he had represented himself in at least three cases that were finally determined adversely to him. Next, the administrative judge determined that Colafranceschi had satisfied I.C.A.R. 59(d)(2) because he repeatedly relitigated outcomes in two cases. Finally, she determined he had satisfied I.C.A.R. 59(d)(3) because he had propounded discovery requests for improper purposes.

On May 1, 2017, Colafranceschi filed a written objection to the administrative district judge's proposed findings. In that objection, he requested that the order in which the administrative judge issued her findings be dismissed, or in the alternative, that he be allowed to present evidence to counter the findings. On June 12, 2017, the administrative judge granted his request and scheduled a hearing for August 7, 2017. Colafranceschi submitted exhibits and subpoenaed witnesses for the hearing.

During the August 7 hearing, Ludwig objected to Neustadt being compelled to testify. The administrative judge sustained the objection, releasing Neustadt, and another witness, from their subpoenas. At the hearing, Colafranceschi claimed for the first time that he had contacted attorneys prior to filing the lawsuits cited and relied upon by the administrative judge in her proposed findings. He claimed that those attorneys told him that his lawsuits had merit. However, he failed to subpoena any of the attorneys or obtain any affidavits from them. In order to give Colafranceschi the opportunity to verify the claims raised, the administrative judge gave Colafranceschi until September 7, 2017 - she later extended the date to October 15, 2017 - to submit affidavits from the attorneys. Colafranceschi submitted affidavits from the following individuals: Curt McKenzie, Carol Griffith, Sam Johnson (Johnson), Nate Peterson, Terri Melcher (Melcher), and himself. The administrative judge found that only two of these affidavits, those from Johnson and Melcher, contained information relevant to the court's findings.

On November 6, 2017, after reviewing the evidence presented at the August 7 hearing as well as the post-hearing affidavits, the administrative judge dismissed the proposed findings under I.C.A.R. 59(d)(1) and 59(d)(2) but sustained the finding under 59(d)(3). The judge dismissed the proposed finding under I.C.A.R. 59(d)(1) because Melcher, an attorney in another state, had advised Colafranceschi that one of his cases had some merit; thus, that case would not be relied on to determine him to be a vexatious litigant. The administrative judge also concluded her proposed finding under I.C.A.R. 59(d)(2) was unfounded because, in one of the cases she cited, Colafranceschi quoted Justice Schroeder stating, "[i]t was not unreasonable for [Colafranceschi] to retry the custody issues." Consequently, the administrative judge found that the case could not be relied on to support finding him a vexatious litigant.

However, the administrative judge affirmed her original proposed finding that Colafranceschi was a vexatious litigant under I.C.A.R. 59(d)(3). The finding stated,

Mr. Colafranceschi has engaged in a pattern of conducting frivolous discovery, or discovery solely intended to cause unnecessary delay, in the following case[:]
1. Neustadt v. Colafranceschi , Valley County case no. CV 2016-125-C. In a divorce case, Mr. Colafranceschi propounded over 380 discovery requests, including 337 requests for admission. These requests included asking Petitioner to describe the nature and duration of her affairs with other married men in the last ten years and to admit that another man had raped her. Aff. of Scot Ludwig Ex. 8, at 3, 6. The court concluded that many of these requests were irrelevant. Mr. Colafranceschi filed several motions to compel responses to his discovery requests, at least one of which was denied in its entirety. Order Den. Mot. to Compel, Oct. 6, 2016.

The administrative judge wrote "no evidence or argument alters the Court's conclusion with respect to" the proposed findings under I.C.A.R. 59(d)(3). In addition to her administrative order finding Colafranceschi a vexatious litigant, the administrative judge issued an order prohibiting Colafranceschi from filing any new pro se civil actions in Idaho courts without first obtaining leave of the court where the litigation is to be filed. Colafranceschi timely appealed.

II. ISSUE PRESENTED ON APPEAL

Whether the administrative district judge abused her discretion when she found Colafranceschi a vexatious litigant based on I.C.A.R. 59(d)(3).

III. STANDARD OF REVIEW

A person determined to be a vexatious litigant by an administrative judge may appeal the order to this Court as a matter of right. I.C.A.R. 59(f). Determining a person to be a vexatious litigant is within the sound discretion of the administrative judge. Telford v. Nye , 154 Idaho 606, 610, 301 P.3d 264, 268 (2013). When reviewing a lower court's decision for an abuse of discretion, this Court must analyze "whether 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) (citing Hull , 163 Idaho at 250, 409 P.3d at 830 ). The appellant has the burden of showing the lower court abused its discretion. See Lunneborg , 163 Idaho at 863, 421 P.3d at 194. This Court will not set aside findings of fact unless they are clearly erroneous. I.R.C.P. 52(a)(7). Findings of fact are not clearly erroneous if they are supported by substantial and competent evidence. Hull v. Giesler , 163 Idaho 247, 409 P.3d 827, 830 (2018).

"This Court adheres to the rule that persons acting pro se are held to the same standards and rules as those represented by attorneys." Huff v. Singleton , 143 Idaho 498, 500, 148 P.3d 1244, 1246 (2006) (citing Suitts v. Nix , 141 Idaho 706, 709, 117 P.3d 120, 123 (2005) ).

IV. ANALYSIS

A. The record before this Court as presented by Colafranceschi is inadequate.

The record provided to this Court does not contain all of the necessary documents for this Court to adequately review the decision being appealed. In her decision, the administrative judge referenced 380 discovery requests propounded by Colafranceschi. However, none of these discovery requests were included as part of the record on appeal. The administrative judge also wrote that the requests asked, "Petitioner to describe the nature and duration of her affairs with other married men in the last ten years and to admit that another man had raped her." For this statement, the administrative judge cited an affidavit from Ludwig and the accompanying exhibits. However, neither Ludwig's affidavit nor the exhibits were included in the record. Finally, the administrative judge wrote that the underlying court found the requests to be irrelevant and even denied Colafranceschi's motions to compel. The motions and the order denying those motions were not included in this record on appeal. Given that many of Colafranceschi's arguments revolve around whether evidence was properly considered, these documents should have been provided by Colafranceschi in order for him to challenge the administrative judge's factual findings.

While these documents were available to the administrative judge when she made her decision, the documents were not included in the record on appeal. This Court has previously held that it is "bound by the record on appeal and 'cannot consider matters or materials that are not part of the record or not contained in the record.' " Kootenai Cnty. v. Harriman-Sayler , 154 Idaho 13, 16, 293 P.3d 637, 640 (2012) (quoting Chisholm v. Dep't of Water Res. , 142 Idaho 159, 162, 125 P.3d 515, 518 (2005) ).

"The party appealing a decision of the district court bears the burden of ensuring that this Court is provided a sufficient record for review of the district court's decision." Gibson v. Ada Cnty. , 138 Idaho 787, 790, 69 P.3d 1048, 1051 (2003) (citations omitted). Consequently, "[w]hen a party appealing an issue presents an incomplete record, this Court will presume that the absent portion supports the findings of the district court." Hansen v. White , 163 Idaho 851, 853, 420 P.3d 996, 998 (2018) (citing Gibson , 138 Idaho at 790, 69 P.3d at 1051 ). In addition, this Court "will not presume error from a 'silent record or from the lack of a record.' " Gibson , 138 Idaho at 790, 69 P.3d at 1051 (citations omitted).

Here, as Colafranceschi has the burden to prove the court below erred and to ensure a sufficient record, the missing documents noted above are presumed to support the administrative judge's findings.

B. The administrative district judge did not abuse her discretion by designating Colafranceschi a vexatious litigant.

As previously noted, when this Court reviews an alleged abuse of discretion by an administrative judge, it determines if the lower 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." My Lunneborg , 163 Idaho at 863, 421 P.3d at 194.

1. It is undisputed that the administrative judge perceived the issue as one of discretion. It is also undisputed that she acted within the boundaries outlined by Idaho Administrative Court Rule 59. The issue presented here is whether the administrative judge acted consistently with the applicable legal principles and reached her decision by an exercise of reason. The administrative judge acted "consistently with the legal standards applicable to the choices before" her because she applied the correct legal standard to Colafranceschi's conduct.

Generally, under an abuse of discretion analysis, a lower court's decision will be reversed when the lower court "fail[ed] to apply governing legal standards ...." See 917 Lusk, LLC v. City of Boise , 158 Idaho 12, 18, 343 P.3d 41, 47 (2015) ; see also State v. Thompson , 132 Idaho 628, 635, 977 P.2d 890, 897 (1999).

Here, the governing legal standards to designate someone a vexatious litigant are set forth in I.C.A.R. 59. Subsection (d) permits an administrative judge to declare someone a vexatious litigant if the judge makes a finding that the person has engaged in any one of four types of conduct. I.C.A.R. 59(d)(1)-(4).

As relevant here, I.C.A.R. 59(d)(3) states:

(d) An administrative judge may find a person to be a vexatious litigant based on a finding that a person has done any of the following:
....
(3) In any litigation while acting pro se, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

Here, the administrative judge applied the correct governing legal standard to Colafranceschi's conduct. The administrative judge found that Colafranceschi had propounded discovery requests for improper purposes. Many of the requests concern extremely personal and highly sensitive subject matter. The administrative judge specifically found that the nature and volume of the irrelevant questions were frivolous and "solely intended to cause unnecessary delay." In addition, the administrative judge found that Colafranceschi filed several motions to compel responses, and one was denied in its entirety. The administrative judge employed the plain language of the Rule to find Colafranceschi a vexatious litigant based on his conduct. Accordingly, she did not abuse her discretion.

Colafranceschi argues that the administrative judge failed to apply the governing legal standard outlined in De Long v. Hennessey , 912 F.2d 1144 (9th Cir. 1990). However, the factors outlined in De Long relate to the standard applicable in federal court not Idaho state court. See De Long, 912 F.2d at 1147-48. The factors outlined in De Long do not correspond with any of the requirements in I.C.A.R. 59 ; thus, those factors are inapplicable to Idaho courts and this proceeding. Compare De Long , 912 F.2d at 1147-48, with I.C.A.R. 59. Consequently, the case law cited by Colafranceschi is not the governing legal standard, and the administrative judge exercised appropriate judgment in applying the correct legal standard.

2. The administrative judge designated Colafranceschi as a vexatious litigant by an exercise of reason.

"The role of this Court, in determining if the district court reached its decision by an exercise of reason, is to review the process the district court engaged in to make its decision." Palmer v. Spain , 138 Idaho 798, 801-02, 69 P.3d 1059, 1062-63 (2003) (citing Sheridan v. St. Lukes Reg'l. Med. Ctr. , 135 Idaho 775, 781, 25 P.3d 88, 94 (2001) ). In order for this Court to perform this function properly, "the district court must disclose its reasoning ... unless its reasoning is obvious from the record." Palmer , 138 Idaho at 802, 69 P.3d at 1063 (citations omitted). Generally, this Court reviews the lower court's decision for reasonableness. See id.

Here, the administrative judge designated Colafranceschi as a vexatious litigant through an exercise of reason. The administrative judge's written findings were based on a reasoned consideration of the relevant evidence and testimony presented. After considering new evidence offered by Colafranceschi both during the August 7 hearing and in post-hearing affidavits, the administrative judge specifically noted why such evidence required her to reject her previous findings under I.C.A.R. 59(d)(1) and (d)(2). Colafranceschi provided Melcher's affidavit, which indicated that one of his pro se cases had some merit, at least in Melcher's opinion. After reviewing this affidavit, the administrative judge rescinded her proposed findings under Rule 59(d)(1). In addition, the administrative judge similarly rescinded her findings under Rule 59(d)(2) because in one of the two cases cited by her, Justice Schroeder had written that it was "not unreasonable" for Colafranceschi to retry issues related to his child's custody determination.

However, the administrative judge found that no evidence or argument presented at the hearing "alter[ed] the Court's conclusion" with respect to her finding under subsection 59(d)(3). The process outlined above demonstrates that the administrative judge acted with reason and deliberation. She rejected her proposed findings when provided with evidence that cast doubt on those findings. Therefore, the administrative judge reached her conclusion through reason and did not abuse her discretion.

C. The numerous arguments advanced by Colafranceschi that the administrative judge abused her discretion are not persuasive.

Colafranceschi makes numerous arguments that the administrative judge abused her discretion. Many of his arguments contend that the judge did not properly consider the evidence presented. His list of examples include: improperly weighing an affidavit by Carl Miller related to the use of the judicial system to harass witnesses; giving too much weight to Neustadt's distress in the courtroom; failing to consider a list of "bad acts" allegedly committed by Neustadt; and failing to consider Neustadt's statement that she would pay any amount of money to ensure Colafranceschi received nothing.

These arguments do little more than seek to relitigate the facts and argue that the lower court improperly weighed evidence. However, this Court "will not substitute [its] view of the facts for the view of the district court." Mortensen v. Berian , 163 Idaho 47, 50, 408 P.3d 45, 48 (2017) (citing Marshall v. Blair , 130 Idaho 675, 679, 946 P.2d 975, 979 (1997) ). Further, as noted previously, this Court will not set aside the findings of fact unless they are clearly erroneous. I.R.C.P. 52(a)(7). The administrative judge found Colafranceschi's conduct satisfied I.C.A.R. 59(d)(3), and her findings are supported by substantial and competent evidence. Colafranceschi's argument to the contrary is unavailing.

Another argument advanced by Colafranceschi is that the administrative judge failed to appreciate that Neustadt, Neustadt's attorney, and the judge signing the motion may have had ulterior motives in having Colafranceschi referred to the administrative judge. He quotes the administrative judge stating, "if [Neustadt] had malicious motives in filing a motion for you to be declared a vexatious litigant, why would that matter? I don't look at her motives. I don't consider whether she is doing something to hurt you or not."

As the administrative judge correctly noted, I.C.A.R. 59 does not require the administrative judge to inquire into the motives of a person who may refer a potential vexatious litigant to the administrative judge. The Rule only requires the administrative judge to review the litigant's conduct to determine whether it fits within one of the four categories described in subsection (d). I.C.A.R. 59.

Colafranceschi also argues that the administrative judge erred by declaring him a vexatious litigant based on his conduct in one case. However, this is not a limitation in the Rule. I.C.A.R. 59(d)(3) does not require multiple cases for its application. The language only states "[i]n any litigation while acting pro se." Id. Therefore, while multiple cases might bolster a court's decision, it is not a requirement under the Rule.

Similarly, Colafranceschi claims the administrative judge erred because her findings were based on only one set of discovery. There is no required number set by the Rule or by case law. See I.C.A.R. 59(d)(3). Rather, the Rule only requires a litigant to either (1) conduct "unnecessary discovery," (2) to "repeatedly file[ ] unmeritorious motions," or (3) to "engage in other tactics that are frivolous or solely intended to cause delay." I.C.A.R. 59(d)(3).

Here, Colafranceschi propounded 380 discovery requests. The administrative judge found that he had conducted unnecessary discovery, much of which was irrelevant. He also filed "several" motions to compel answers to that discovery, "at least one of which was denied in its entirety." As Colafranceschi's behavior runs afoul of the Rule, the administrative judge did not abuse her discretion.

Colafranceschi argues that the administrative judge should have recused herself from the proceedings. However, Colafranceschi did not file a motion to have the administrative judge recuse herself, nor did he offer any argument as to why she should not have sat on the case. "An argument not raised below and not supported in the briefs is waived on appeal." Doe (2010-15) v. Doe , 150 Idaho 432, 436, 247 P.3d 659, 663 (2011) (citing Crowley v. Critchfield , 145 Idaho 509, 512, 181 P.3d 435, 438 (2007) ). In addition, Colafranceschi cites no legal authority as to why the administrative judge should have recused herself. Bach v. Bagley , 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) ("We will not consider an issue not 'supported by argument and authority in the opening brief.' " (quoting Jorgensen v. Coppedge , 145 Idaho 524, 528, 181 P.3d 450, 454 (2008) ) ).

Next, Colafranceschi alleges that he was unfairly declared a vexatious litigant because the questions that are being referenced to declare him a vexatious litigant are the same questions reworded, edited, and asked by his attorney; thus, they should not be considered vexatious in his pro se case. The discovery questions for both cases are not a part of this record.

Regardless of the incomplete record, Colafranceschi's argument regarding the similarity of the requests is supported by comparing the Requests for Admissions in the First Set of Discovery/Civil Action (in which Colafranceschi was represented by an attorney) and the Requests for Admissions filed in the divorce action (in which Colafranceschi appeared pro se ). However, even if this Court were to agree with Colafranceschi, it is not the content of the questions alone that the administrative judge relied on to declare him a vexatious litigant. In the divorce case, Colafranceschi submitted over 380 discovery requests and 337 requests for admission. There is no evidence in the record, nor does Colafranceschi argue, that his attorney in the civil case even approached the number of discovery requests he filed. Many of these discovery questions were determined to be irrelevant for the purposes of the divorce proceeding. In addition, he filed motions to compel in that case, one that was denied in its entirety. It was within the administrative judge's discretion to determine that Colafranceschi conducted "unnecessary discovery" and "engaged in tactics that are frivolous or solely intended to cause unnecessary delay." That is all that is required under I.C.A.R. 59(d)(3).

Last, Colafranceschi argues that the divorce case, in which he made the numerous discovery requests, does not have a final determination. However, I.C.A.R. 59(d)(3) does not have a finality requirement. It only requires that the conduct occur "[i]n any litigation while acting pro se." I.C.A.R. 59(d)(3). Although it is true other portions of subsection (d) require a final determination, that is not the case for I.C.A.R 59(d)(3). Compare I.C.A.R 59(d)(3), with I.C.A.R. 59(d)(1)and I.C.A.R. 59(d)(2). Consequently, the administrative judge did not abuse her discretion by evaluating Colafranceschi's behavior in a case that had not reached a final determination. (As an aside, it makes sense that an individual could be found to be a vexatious litigant before a case ends, especially if the behavior giving rise to the finding causes unnecessary delay.)

Given the reasons set forth, Colafranceschi's arguments that the administrative judge abused her discretion are unpersuasive.

V. CONCLUSION

We affirm the administrative judge's order declaring Colafranceschi a vexatious litigant as well as her determination that Colafranceschi must obtain leave of the appropriate court before he may file anything pro se in the future.

      The three cases identified by the administrative judge in her order are Colafranceschi v. Schoonover , No. CV-2010-312C (Valley County); Colafranceschi v. Schoonover , No. CV-2012-375C (Valley County); and Colafranceschi v. Briley , No. CV-2012-376C (Valley County).

      The other witness was Durena Schoonover (Schoonover). Colafranceschi had previously cohabited and fathered a child with Schoonover. Colafranceschi had sued Schoonover for custody of their son.

      The administrative judge's rescission of her finding under I.C.A.R. 59(d)(1) reflects her willingness to give Colafranceschi every benefit of the doubt. First, recognizing that it was not necessarily reasonable to rely on an opinion from an out-of-state attorney, the administrative judge nevertheless gave credence to that attorney's opinion. Further, the administrative judge was not legally obliged to rescind her finding. I.C.A.R. 59(d)(1) only requires that "the person has commenced, prosecuted or maintained pro se at least three litigations ... that have been finally determined adversely to that person." There is no safe harbor in the Rule for claims in which the pro se litigant obtained a supportive legal opinion, from a lawyer not licensed in Idaho, before filing his case.