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Cobbley v. City of Challis11/1/2002
nd these issues will need to be resolved by the district court.
II.
The Cobbleys contend that the district court abused its discretion in granting the City's motion for extension of time to file an answer. The Cobbleys complain that the district court's grant of the motion allowed the City to not only file an answer but to improperly file a motion to dismiss as well. The City asserts that the extension of time is within the discretion of the district court and that the Cobbleys have failed to show how the district court abused its discretion by granting the extension.
To review an exercise of discretion, this Court applies a three-factor test. The three factors are: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of this discretion and consistent with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. Baxter v. Craney, 135 Idaho 166, 169, 16 P.3d 263, 266 (2000) (citing Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)).
The district court recognized that the City's motion to extend the time to file an answer was within its discretion. Accordingly, the district court granted the motion noting that since this was a matter involving a right-of-way which could require a lengthy time to review and investigate the nature and validity of the claim, it was reasonable to request additional time to file the answer. The district court further found that the request by the City was made in good faith and that the Cobbleys had shown no prejudice by allowing the extension of time. It is also notable that the district court did not grant the full amount of time requested by the City; rather, the court determined its own reasonable deadline.
There is nothing in the record to show that the district court abused its discretion in granting the City's motion for extension of time. This Court holds that the district court did not err in granting the City's motion for extension of time to file an answer.
III.
The City contends that the affidavit and other documents attached to the Cobbleys' briefs should be stricken. The City points out that the documents are not a part of the clerk's record and therefore should not be considered upon appeal.
Here, as in the case of State ex rel. Ohman v. Talbot Family Trust, 120 Idaho 825, 827, 820 P.2d 695, 697 (1991) the documents were presented attached to the Appellants' opening brief on appeal that were not part of the official clerk's record. In this case, the affidavit and potentially some of the other documents were not even presented to the district court. This Court is "bound by the record and cannot consider matters or materials that are not part of or contained therein." Id. (citing State v. Hodges, 103 Idaho 765, 653 P.2d 1177 (1982); Neer v. Safeway Stores, Inc., 92 Idaho 361, 442 P.2d 771 (1968); Baldwin v. Singer Sewing Mach. Co., 48 Idaho 596, 284 P. 1027 (1930); King v. Seebeck, 20 Idaho 223, 118 P. 292 (1911)).
This Court did not consider the materials attached to the Appellants' opening brief, with the exception of Exhibit E, which was properly augmented to the record on November 5, 2001.
IV.
Both parties seek an award of attorney fees on appeal. The Cobbleys are the prevailing party on appeal, however this Court does not award fees to a party appearing pro se. Chapple v. Madison County Officials, 132 Idaho 76, 81, 967 P.2d 278, 283 (1998) (citing Curtis v. Campbell, 105 Idaho 705, 672 P.2d 1035 (1983)).
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