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Bianco ex rel. Estate of Gaston v. Erkins
Citation: 341 F. App'x 329Docket: Nos. 02-35909, 02-35910, 02-35932
Court: Court of Appeals for the Ninth Circuit; August 6, 2009; Federal Appellate Court
Robert A. and Bernardine Erkins, along with their adult children, appeal the district court's rulings: (1) denial of their Motion to Set Aside the U.S. Marshal Sale due to inadequate notice, (2) imposition of attorney fees and costs, and (3) a contempt ruling against Robert Randolph Erkins. The appellate court has jurisdiction under 28 U.S.C. § 1291 and affirms in part, reverses in part, and remands for further proceedings. The court reviews the denial of the motion to set aside the sale for abuse of discretion, affirming that the notice provided was constitutionally adequate, as it was "reasonably calculated" to inform interested parties of the action. The Erkins children acknowledged receiving actual notice of the sale, which met the requirements of Idaho Code § 11-302(2) through publication in the Idaho Statesman on February 4, 2002. The notice was deemed sufficient under state law, as it was published within the statutory timeframe. Regarding costs and attorney fees, the court reviews for abuse of discretion and de novo for the authority to award costs and the applicability of state statutes for attorney fees. The district court awarded Bianco $160,486.13 in attorney fees from the Erkins parents, $19,835.37 from the children, and $82,168.83 in costs. The Erkins contended that Bianco's request for fees was untimely; however, the court concluded that Idaho Code § 12-120 did not specify a deadline for postjudgment fees, and thus, Bianco's request was not barred. The district court's decisions in these matters were upheld. The Erkins argue that Bianco is not entitled to attorneys’ fees for post-judgment disputes under Idaho Code § 12-120(5). However, the court disagrees, stating that adopting the Erkins' interpretation would contradict the statute's purpose, which allows judgment creditors to recover attorneys’ fees associated with collecting on a judgment when such fees were awarded in the original action. Conversely, the court agrees with the Erkins that § 12-120 does not permit attorneys’ fees against the Erkins children, as these fees arose from defending a third-party claim under Idaho Code § 11-203. The case involved determining the rightful ownership of personal property seized by Bianco, which was not part of the original judgment collection action. Consequently, these fees do not qualify as expenses incurred in collecting on the judgment. Additionally, Idaho Code § 11-203 only refers to costs, not fees, regarding third-party rights to levied property. The court reverses the district court's award of fees against the Erkins children and remands for correction. Regarding the contempt finding against Robert Randolph Erkins, the district court imposed a $5,000 punitive sanction for violating a court order. This sanction is deemed criminal because it aims to punish past violations and does not end upon compliance. The court notes that criminal contempt findings must adhere to the procedural requirements of Rule 42 of the Federal Rules of Criminal Procedure, which the district court failed to follow. As a result, the contempt finding and the sanction are reversed. Each party is to bear its own costs on appeal. The outcome is affirmed in part, reversed in part, and remanded, with the disposition being non-precedential.