Bettwieser v. New York Irrigation District , 154 Idaho 309 ( 2013 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37396
MARTIN BETTWIESER, )
) Boise, January 2013 Term
Plaintiff-Appellant, )
) 2013 Opinion No. 22
v. )
) Filed: February 22, 2013
NEW YORK IRRIGATION DISTRICT and )
Directors RICHARD MURGOITIO, BRIAN ) Stephen Kenyon, Clerk
MC DEVITT, PAUL WARRICK and )
VELTA HARWOOD, )
)
Defendants-Respondents. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Hon. Patrick H. Owen, District Judge.
The judgment of the district court is affirmed.
Martin Bettwieser, Boise, pro se appellant.
McDevitt & Miller LLP, Boise, for respondents. Chas. F. McDevitt argued.
_______________________________________________
HORTON, Justice.
Martin Bettwieser, a pro se plaintiff, brought a breach of contract action against the New
York Irrigation District and its directors (collectively, the District). Bettwieser alleged that the
District breached an oral contract by not timely providing him with a legal opinion regarding
whether he could be excluded from the irrigation district without paying statutory exclusion and
filing fees. Following a bench trial, the district court issued findings of fact and conclusions of
law, ruling that Bettwieser had failed to demonstrate that he was entitled to relief. Bettwieser
appealed, again representing himself, alleging the district court made errors of fact and law
during the trial and in its decisions regarding Bettwieser’s pre- and post-trial motions. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bettwieser has resided within the boundaries of the New York Irrigation District since
1983, but he does not receive water from the District. On May 1, 2007, Bettwieser appeared
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before the irrigation district’s board of directors to discuss the process for excluding his property
from the irrigation district. Also attending that meeting were directors Richard Murgoitio, Brian
McDevitt, and Paul Warrick; District Secretary/Treasurer Velta Harwood; and Kendal McDevitt,
the District’s legal counsel. The discussion related to the amounts owed by Bettwieser for
irrigation water assessments and accrued interest, as well as the process and requirements for
exclusion.
Bettwieser alleges that he and the District entered into an oral agreement at that meeting
wherein the District agreed to provide him with a legal opinion, within one week, regarding
whether he was required to pay the statutory filing and exclusion fees to have his property
excluded. In exchange, Bettwieser alleges he agreed to pay all outstanding assessments and fees
at a reduced rate. The other parties present at the meeting testified that no agreement of that
nature was reached. According to their testimony, Brian McDevitt agreed to personally pay the
accrued interest on Bettwieser’s account if he paid the outstanding balance. Separate from that
exchange, according to Brian McDevitt’s testimony, the District informed Bettwieser that it
would have its counsel render an opinion with respect to the exclusion process. Kendal McDevitt
later provided the District with a letter outlining his research on the issue.
The directors elected not to send a copy of McDevitt’s letter to Bettwieser. Instead, on
June 12, 2007, at the directors’ request, Harwood sent Bettwieser an application form for
exclusion from the District along with a letter explaining that the District would only consider
his request if he completed the form and returned it with the filing fee and exclusion fee.
Bettwieser did not return the form or submit a petition for exclusion that was accompanied by the
filing and exclusion fees.
On June 19, 2007, Bettwieser filed an action against the District for breach of contract, in
which he requested various forms of relief. The action was tried to the district court without a
jury, after which the district court entered its findings of fact and conclusions of law. The court
determined that Bettwieser was not entitled to any of the relief he requested and entered
judgment in favor of the District. The court also directed counsel for the District to prepare a
memorandum of costs. After Bettwieser objected to the memorandum of costs, the district court
held a hearing on the matter, which Bettwieser did not attend. On March 3, 2009, the district
court entered an amended judgment in the District’s favor and awarded costs to the District.
Bettwieser timely appealed.
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II. ISSUES ON APPEAL
1. Whether the district court’s findings of fact and conclusions of law were supported by
substantial evidence.
2. Whether the district court erred in failing to consider the issues as Bettwieser raised them
in his written closing argument.
3. Whether the directors of the New York Irrigation District are legally elected directors.
4. Whether the district court properly denied Bettwieser’s motion to disqualify counsel.
5. Whether the interest rate provisions found in Idaho Code §§ 43-708 and 43-712 are
contradictory.
6. Whether Idaho Code § 43-1107 permits the District to waive exclusion fees prior to
receiving an exclusion petition.
7. Whether the District’s exclusion petition form properly informs petitioners of their rights.
8. Whether the District and its directors breached an oral agreement with Bettwieser.
9. Whether the District’s petition form must be used by all petitioners.
10. Whether the district court failed to hear and rule on all of Bettwieser’s pre-trial motions.
11. Whether the district court properly awarded costs to the District.
12. Whether the district court’s processes are sufficient to adjudicate complaints and appeals.
13. Whether the district court erred in its rulings on post-trial matters.
14. Whether the district court erred in excluding Bettwieser’s exhibits 11 and 19.
III. STANDARD OF REVIEW
When this Court reviews a trial court’s findings of fact and conclusions of law after a
bench trial, the review is “limited to ascertaining whether the evidence supports the findings of
fact, and whether the findings of fact support the conclusions of law. Borah v. McCandless, 147
Idaho 73, 77, 205 P.3d 1209, 1213 (2009) (citing Benninger v. Derifield, 142 Idaho 486, 488–89,
129 P.3d 1235, 1237–38 (2006)). Because “it is the province of the trial court to weigh
conflicting evidence and testimony and to judge the credibility of the witnesses,” this Court
liberally construes the trial court’s findings of fact in favor of the judgment. Id. (citing Rowley v.
Fuhrman, 133 Idaho 105, 107, 982 P.2d 940, 942 (1999)). “This Court will not set aside a trial
court’s findings of fact unless the findings are clearly erroneous.” Id. (citing Ransom v. Topaz
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Mktg., L.P., 143 Idaho 641, 643, 152 P.3d 2, 4 (2006); I.R.C.P. 52(a)). Therefore, if the trial
court’s findings are based upon “substantial evidence, even if the evidence is conflicting,” those
findings will not be overturned on appeal. Id. (citing Benninger, 142 Idaho at 489, 129 P.3d at
1238). Nor will this Court substitute its view of the facts for that of the trial court. Id. (citing
Ransom, 143 Idaho at 643, 152 P.3d at 4). “This Court exercises free review over matters of
law.” Id. (citing Bolger v. Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002)).
When reviewing a trial court’s discretionary decision, we determine “(1) whether the
court perceived the issue as discretionary; (2) whether the court acted within the bounds of that
discretion and applied the correct legal standards; and (3) whether the court reached its decision
through an exercise of reason.” Am. Pension Servs., Inc. v. Cornerstone Home Builders, LLC,
147 Idaho 638, 641, 213 P.3d 1038, 1041 (2009) (citing Hayward v. Valley Vista Care Corp.,
136 Idaho 342, 345, 33 P.3d 816, 819 (2001)).
Pro se litigants are not entitled to special consideration or leniency because they represent
themselves. To the contrary, it is well-established that courts will apply the same standards and
rules whether or not a party is represented by an attorney and that pro se litigants must follow the
same rules, including the rules of procedure. Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d
580, 585 (2009) (citations and quotations omitted); Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d
120, 123 (2005); Twin Falls Cnty. v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003).
IV. ANALYSIS
As a preliminary matter, we note that Bettwieser’s briefing is, at best, difficult to follow. In
some cases, it is unclear what issue Bettwieser is attempting to raise. And, even where an issue is
identifiable, argument, authority, and legal reasoning are often absent. We recently reiterated the
standards we use when determining whether to consider the issues a litigant raises on appeal:
We will not consider an issue not “supported by argument and authority in the
opening brief.” Jorgensen v. Coppedge, 145 Idaho 524, 528, 181 P.3d 450, 454
(2008); see also Idaho App. R. 35(a)(6) (“The argument shall contain the
contentions of the appellant with respect to the issues presented on appeal, the
reasons therefor, with citations to authorities, statutes and parts of the transcript
and the record relied upon.”). Regardless of whether an issue is explicitly set forth
in the party’s brief as one of the issues on appeal, if the issue is only mentioned in
passing and not supported by any cogent argument or authority, it cannot be
considered by this Court. Inama v. Boise County ex rel. Bd. of Comm’rs, 138
Idaho 324, 330, 63 P.3d 450, 456 (2003) (refusing to address a constitutional
takings issue when the issue was not supported by legal authority and was only
mentioned in passing).
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Where an appellant fails to assert his assignments of error with
particularity and to support his position with sufficient authority, those
assignments of error are too indefinite to be heard by the Court. Randall v. Ganz,
96 Idaho 785, 788, 537 P.2d 65, 68 (1975). A general attack on the findings and
conclusions of the district court, without specific reference to evidentiary or legal
errors, is insufficient to preserve an issue. Michael v. Zehm, 74 Idaho 442, 445,
263 P.2d 990, 993 (1953). This Court will not search the record on appeal for
error. Suits v. Idaho Bd. of Prof’l Discipline, 138 Idaho 397, 400, 64 P.3d 323,
326 (2003). Consequently, to the extent that an assignment of error is not argued
and supported in compliance with the I.A.R., it is deemed to be waived. Suitts v.
Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).
Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010). The Court also held that it
would not consider any issues “lacking in coherence, citations to the record, citations of
applicable authority, or comprehensible argument . . . .” Id. at 791, 229 P.3d at 1153.
Bettwieser’s briefing in this case suffers from many of the defects noted in Bach. While
there are some citations to legal authority, the relevance and applicability of the citations are not
clear, and cogent argument is, for the most part, nonexistent. Much of Bettwieser’s “argument”
consists of rhetorical questions and conclusory statements. As a result, we have occasionally
been forced to look to the District’s characterization of the issues in its brief in order to gain
some understanding of what issues Bettwieser has attempted to raise.
A. The district court’s findings of fact and conclusions of law are supported by substantial
competent evidence.
Bettwieser argues that the district court’s findings of fact and conclusions of law are
deficient. He contends the evidence shows that the District entered into an oral agreement in
which it agreed to timely provide Bettwieser with a legal opinion regarding the requirements for
exclusion from the District and that the District breached this agreement by failing to provide
him with this opinion within the agreed-upon time.
“Formation of a valid contract requires that there be a meeting of the minds as evidenced
by a manifestation of mutual intent to contract.” Thomas v. Thomas, 150 Idaho 636, 645, 249
P.3d 829, 838 (2011) (quoting Inland Title Co. v. Comstock, 116 Idaho 701, 702, 779 P.2d 15, 16
(1989)). Whether a contract has been formed “is generally a question of fact for the trier of fact
to resolve.” Id.
In this case, the trial court ruled that Bettwieser did not sufficiently support his contention
that a contract existed requiring the District to provide him with written legal findings. The court
determined that “to the extent that the parties reached any agreement on May 1, 2007, the only
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agreement shown by the evidence was limited to the [District] advising Bettwieser that if he paid
his past assessments and late charges, the [District] would obtain advice from its counsel on the
process for exclusion.” It then found that Bettwieser had not shown the existence of any
requirement for the District to provide a specific written opinion and that the District fulfilled its
part of the agreement by instructing its attorney to provide advice on that topic. The court thus
concluded that Bettwieser had failed to demonstrate that the District breached any agreement
reached on May 1, 2007.
The district court’s findings are supported by substantial evidence. Each of the District
directors present at the May 1, 2007, meeting testified that the District did not agree to provide
Bettwieser with written legal findings at that meeting. The directors’ testimony instead tends to
support the district court’s findings regarding that meeting. Both the District’s
Secretary/Treasurer and its former counsel also testified that no agreement of the form alleged by
Bettwieser was entered into at that meeting. Only Bettwieser testified that the District agreed to
provide him with “findings” regarding the exclusion process, including whether he was required
to pay the fees. This constitutes substantial, though conflicting, evidence supporting the district
court’s findings of fact. Those findings support the court’s conclusions of law regarding the
formation of a legal agreement between Bettwieser and the District.
B. Bettwieser failed to satisfy the requirements for certification of a class action.
Bettwieser also asked the district court to order the District to make a refund to other
members of the District that he claimed were wrongfully charged exclusion and filing fees. The
district court treated this as a request for certification of a class and concluded that the matter
was not properly before the court because Bettwieser “failed to present evidence that a class
action existed.” We agree.
Certification of a class action is governed by the Idaho Rules of Civil Procedure. Before a
trial court may certify a lawsuit as a class action, it “must find that all four factors in Rule 23(a)
exist and that at least one factor in Rule 23(b) exists.” BHA Investments, Inc. v. City of Boise,
141 Idaho 168, 171-72, 108 P.3d 315, 318-19 (2004). We have held that the burden is on the
party seeking to bring a class action to “bring [itself] within the requirements of Rule 23.”
Middlekauff v. Lake Cascade, Inc., 110 Idaho 909, 915, 719 P.2d 1169, 1175 (1986) (citing 3B
Moore’s Federal Practice at 23.02–2 (2d ed.1985)). A party’s assertion in its pleadings that the
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action is on behalf of others similarly situated is not sufficient to support class certification.
Kerner v. Johnson, 99 Idaho 433, 444-45, 583 P.2d 360, 371-72 (1978).
Here, Bettwieser did not present the district court with any evidence that this matter
satisfies the requirements of Rule 23. On May 20, 2008, Bettwieser filed a motion to set the case
as a class action. The Court was aware of this motion, but informed Bettwieser that it would not
rule on the motion until he noticed it for hearing. 1 Bettwieser contends that the district court may
set a hearing at its discretion, citing Idaho Rule of Civil Procedure 6(e)(2). 2 However, the Rules
also permit district courts to make their own rules of procedure regarding the hearing of motions.
I.R.C.P. 1(c). The local rules of the Fourth Judicial District place the burden on parties to
schedule motion hearings with the clerk of the presiding judge and provide that “only those civil
matters which have been scheduled for hearing by the clerks as provided by this rule and noticed
for hearing pursuant to Rules 5(a) and 7(b), I.R.C.P., will be heard by the court.” Idaho 4th Jud.
Dist. Rule 2. There is no evidence that Bettwieser properly scheduled or noticed the motion for
hearing. We hold that the district court properly concluded that the class action issue was not
before it at trial and that Bettwieser was therefore not entitled to the requested order.
C. The district court was not obligated to consider claims not raised by the pleadings.
Bettwieser raises several other issues on appeal related to claims that were not framed in
his complaint. These issues are: 1) whether Idaho Code § 43-1107 provides the District with
discretion to waive the exclusion and filing fees and consider petitions for exclusion that are
submitted without those fees; 2) whether the district court erred in failing to consider the issues
as Bettwieser raised them in his written closing argument; 3) whether the directors of the New
York Irrigation District are legal representatives of the District; 4) whether the interest rate
provisions found in Idaho Code §§ 43-708 and 43-712 are contradictory; and 5) whether the
district court’s processes are sufficient for adjudicating complaints and appeals.
The Rules of Civil Procedure require that a complaint “shall contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief, and . . . a demand for
judgment for the relief to which he deems himself entitled. Relief in the alternative or of several
different types may be demanded.” I.R.C.P. 8(a)(1). Further, in the absence of explicit or implied
1
As noted by counsel for the District, the district court reminded Bettwieser on more than one occasion that he must
schedule a hearing with the clerk before the court would rule on a motion.
2
That Rule provides that “[t]he court upon its own initiative may notice for hearing any motion, trial or proceeding
which is pending before it by notice to all parties in conformance with these rules.” I.R.C.P. 6(e)(2).
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consent of both parties, a trial court is not obligated to address claims not raised by the pleadings.
See, e.g., Ross v. Coleman Co., Inc., 114 Idaho 817, 827-28, 761 P.2d 1169, 1179-80 (1988).
Bettwieser’s complaint in this case merely alleges that when he met with the District
regarding whether he was required to pay the exclusion and filing fees, the District made an
agreement with him that it later breached. While his prayer for relief appears to request relief for
claims other than breach of contract, the only claim stated in the complaint is for breach of
contract. After trial, the district court issued findings of fact and conclusions of law that
addressed the breach of contract claim. Thus, the district court properly addressed the issue
framed by the complaint. To the extent Bettwieser argues the district court erred in not
considering any other claims, we hold that there is no error because Bettwieser did not properly
raise them.
D. The district court did not abuse its discretion in denying Bettwieser’s motion to
disqualify counsel.
Bettwieser appeals from the district court’s denial of his motion to disqualify Charles
McDevitt as counsel for the District. Bettwieser asserts that he fears “unethical practices” and
“bias” by Charles McDevitt because he is the father of District director Brian McDevitt. The
District replies that Bettwieser has failed to demonstrate any error by the district court.
“The decision to grant or deny a motion to disqualify counsel is within the discretion of
the trial court.” Foster v. Traul, 145 Idaho 24, 32, 175 P.3d 186, 194 (2007) (citing Weaver v.
Millard, 120 Idaho 692, 696, 819 P.2d 110, 114 (Ct. App. 1991)). When reviewing a trial court’s
decision for an abuse of discretion, this Court employs a three-part inquiry to determine: “(1)
whether the court perceived the issue as discretionary; (2) whether the court acted within the
bounds of that discretion and applied the correct legal standards; and (3) whether the court
reached its decision through an exercise of reason.” Am. Pension Servs., Inc. v. Cornerstone
Home Builders, LLC, 147 Idaho 638, 641, 213 P.3d 1038, 1041 (2009) (citing Hayward v. Valley
Vista Care Corp., 136 Idaho 342, 345, 33 P.3d 816, 819 (2001)).
The Idaho Appellate Rules provide that “[t]he argument shall contain the contentions of
the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to
authorities, statutes and parts of the transcript and the record relied upon.” I.A.R. 35(a)(6). This
Court has held that if an appellant does not “assert his assignments of error with particularity and
to support his position with sufficient authority, those assignments of error are too indefinite to
be heard by the Court.” Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (citing
8
Randall v. Ganz, 96 Idaho 785, 788, 537 P.2d 65, 68 (1975)). Further, where the argument is
merely “[a] general attack on the findings and conclusions of the district court, without specific
reference to evidentiary or legal errors,” this Court will not consider the issue. Id. (citing Michael
v. Zehm, 74 Idaho 442, 445, 263 P.2d 990, 993 (1953)). Therefore, issues that are not argued and
supported as required by the Appellate Rules are deemed to have been waived. Id. (citing Suitts
v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005)).
Here, Bettwieser has essentially ignored the standard of review. In his argument, he
makes no effort to explain how the district court’s ruling was an abuse of its discretion. No
authority regarding the standards for disqualification is cited and no reference is made to the
district court’s analysis of his request. Rather, Bettwieser merely asks this Court to reconsider his
evidence for disqualification. Therefore, because he has failed to provide argument or authority
to support his claim of error, he has waived this issue.
E. Bettwieser is not entitled to declaratory judgment because he has failed to demonstrate
the existence of an actual or justiciable controversy.
Bettwieser asks this Court for declaratory judgments defining the process the District
must use when considering petitions for exclusion and deciding whether petitioners must use the
exclusion petition form the District provides. The District argues that Bettwieser is not entitled to
a declaratory judgment because no justiciable controversy exists regarding the exclusion petition
or the exclusion procedures.
Under Idaho’s Declaratory Judgment Act, a person “whose rights, status or other legal
relations are affected by a statute . . . may have determined any question of construction or
validity arising under the . . . statute . . . and obtain a declaration of rights, status or other legal
relations” under the statute. I.C. § 10-1202. However, this jurisdiction is limited to cases “where
an actual or justiciable controversy exists,” and courts are thus precluded “from deciding cases
which are purely hypothetical or advisory.” Wylie v. Idaho Transp. Bd., 151 Idaho 26, 31, 253
P.3d 700, 705 (2011) (quoting State v. Rhoades, 119 Idaho 594, 597, 809 P.2d 455, 458 (1991)).
This Court has explained that a justiciable controversy is:
[D]istinguished from a difference or dispute of a hypothetical or abstract
character; from one that is academic or moot . . . . The controversy must be
definite and concrete, touching the legal relations of the parties having adverse
legal interests . . . . It must be a real and substantial controversy admitting of
specific relief through a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts.
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Davidson v. Wright, 143 Idaho 616, 620, 151 P.3d 812, 816 (2006) (quoting Weldon v. Bonner
County Tax Coalition, 124 Idaho 31, 36, 855 P.2d 868, 873 (1993)). Therefore, “[a]n action for
declaratory judgment is moot where the judgment, if granted, would have no effect either
directly or collaterally on the plaintiff, the plaintiff would be unable to obtain further relief based
on the judgment and no other relief is sought in the action.” Wylie, 151 Idaho at 32, 253 P.3d at
706 (quoting Idaho Schs. for Equal Educ. Opportunity v. Idaho State Bd. of Educ., 128 Idaho
276, 282, 912 P.2d 644, 650 (1996)).
In Wylie, the Court held that Wylie was not entitled to a declaratory judgment because
there was no justiciable controversy. In that case, Wylie sought, among other relief, a declaratory
judgment invalidating an ordinance that limited his access to a state highway. On the question of
justiciability, this Court held that:
Wylie has been unable to articulate how a judgment declaring the Ordinance
invalid would provide him any relief. The Agreement clearly precludes direct
access to SH 20–26 and the provisions of the Agreement are not dependent upon
the Ordinance. Further, even if we were to declare the Ordinance invalid, ITD has
denied Wylie’s encroachment permit, which would still preclude his desired
access.
Wylie, 151 Idaho at 34, 253 P.3d at 708. When Wylie argued that if the court invalidated the
ordinance he would have an opportunity to petition the state for an access point, the Court held
that “a remote contingency is not sufficient to satisfy the requirements for a justiciable
controversy.” Id. Thus, a litigant seeking a declaratory judgment must demonstrate that an actual
controversy exists and that the requested relief will provide actual relief, not merely potential
relief.
Here, there is no justiciable controversy involving the petition form or the District’s
process. Regardless of any action taken by this Court regarding those issues, Bettwieser would
not be entitled to any further relief because he has failed to pay the mandatory filing and
exclusion fees, and thus, there is no valid exclusion petition before the District for its
consideration. We therefore hold that Bettwieser is not entitled to declaratory relief.
F. The district court did not err in failing to rule on pre-trial motions that Bettwieser did
not schedule for hearing.
Bettwieser argues that the district court erred by failing to rule on all of his pre-trial
motions. The District responds that Bettwieser failed to schedule many of his motions to be
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heard and that the court in fact ruled on all of both parties’ motions that were properly noticed
for hearing.
Attorneys are expected to know the rules of the forum, and pro se litigants are not
afforded a more lenient standard. Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585
(2009). As explained above, the Rules of Civil Procedure permit a district court to set a party’s
motion for hearing sua sponte. I.R.C.P. 6(e)(2). However, we also explained that under the local
rules of the Fourth Judicial District, parties are required to schedule motion hearings with the
clerk of the presiding judge and “only those civil matters which have been scheduled for hearing
by the clerks as provided by this rule and noticed for hearing pursuant to Rules 5(a) and 7(b),
I.R.C.P., will be heard by the court.” Idaho 4th Jud. Dist. Rule 2.
Here, the district court reminded Bettwieser on more than one occasion that he must
schedule a hearing before the court would rule on a motion. Bettwieser has not identified any
instance where the district court failed to address and rule on any motion that Bettwieser had
properly scheduled and noticed for hearing. The district court did not err in declining to rule on
motions that Bettwieser failed to notice for hearing.
G. The district court did not err in awarding costs to the District.
Bettwieser contends that the district court erred in awarding costs to the District, arguing
the District did not comply with the Rules of Civil Procedure in filing its memorandum of costs.
The District argues that it timely filed its memorandum of costs and that Bettwieser has failed to
demonstrate any noncompliance with the Rules of Civil Procedure.
The Idaho Rules of Civil Procedure provide that “[e]xcept when otherwise limited by
these rules, costs shall be allowed as a matter of right to the prevailing party or parties, unless
otherwise ordered by the court.” I.R.C.P. 54(d)(1). The Rules further provide that within fourteen
days of entry of judgment, “any party who claims costs may file and serve on adverse parties a
memorandum of costs, itemizing each claimed expense . . . .” I.R.C.P. 54(d)(5). A party may
object to the memorandum of costs within fourteen days of the date the memorandum of costs is
served “by filing and serving on adverse parties a motion to disallow part or all of such costs . . .
.” I.R.C.P. 54(d)(6). Finally, the Rules provide for settlement of the claimed costs:
After a hearing on an objection to a memorandum of costs, or after the time for
filing an objection has [passed], the court shall, upon motion of any party or upon
the court’s own initiative, enter an order settling the dollar amount of costs, if any,
awarded to any party to the action.
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I.R.C.P. 54(d)(7).
In this case, the district court entered judgment on January 7, 2009, in which it denied all
relief to Bettwieser and noted that the District was to prepare and submit its cost bill. The District
submitted its memorandum of costs on January 13, 2009, and Bettwieser filed an objection on
January 27, 2009. The district court held a hearing to consider the memorandum of costs and
Bettwieser’s objection to it on February 17, 2009, which Bettwieser did not attend. The district
court considered Bettwieser’s objection and, finding the District to be the prevailing party,
awarded costs as a matter of right in the amount of $1918.57 and discretionary costs of
$2438.85. The district court directed the District’s counsel to prepare an amended judgment
reflecting the award of costs. The amended judgment was entered on March 3, 2009.
Bettwieser has failed to demonstrate any error by the district court. The cost
memorandum and the judgment complied with the Rules of Civil Procedure. The District
manifestly was the prevailing party and the district court properly awarded costs pursuant to
I.R.C.P. 54(d)(1). Therefore, we affirm the amended judgment.
H. Bettwieser waived the issue of whether the district court erred in deciding his post-trial
motions.
This Court has held that it “will not search the record on appeal for error.” Dawson v.
Cheyovich Fam. Trust, 149 Idaho 375, 383, 234 P.3d 699, 707 (2010) (citing Suits v. Idaho Bd.
of Prof’l Discipline, 138 Idaho 397, 400, 64 P.3d 323, 326 (2003)). Further, if an allegation of
error is not supported by argument and authority, it is deemed waived. Id. (citing Suitts v. Nix,
141 Idaho 706, 708, 117 P.3d 120, 122 (2005)).
Here, Bettwieser asserts that the district court erred in making rulings on March 8, 2011,
and May 17, 2011. However, his briefing does not set forth what those errors are. Bettwieser
does not explain the substance of the rulings or of the alleged errors. Further, he fails to cite any
applicable law or point to the record for support of his allegations. In his briefing on this issue,
Bettwieser cites Idaho Appellate Rules 19, 21, 29, and 32, which are related to requests for
additional transcripts and the timeliness of motions for the same. However, Bettwieser provides
no cogent argument related to the relevance or application of these rules. Therefore, Bettwieser
has waived these claims of error.
I. The district court did not abuse its discretion in excluding Bettwieser’s exhibits.
Bettwieser argues that the district court erred in excluding two of the exhibits he offered
at trial. First, he contends that Exhibit 11, signed petitions for nomination to election as a director
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of the New York Irrigation District, were improperly excluded because the question of whether
the directors were validly elected is foundational to the lawsuit. Second, Bettwieser argues that
Exhibit 19, which consists of documents related to the ability of other members of the District to
get water, was also improperly excluded because it shows Bettwieser’s history with the District
and that other members also have complaints about the District’s exclusion process. In response,
the District argues that Bettwieser has failed to demonstrate any error or abuse of discretion.
A trial court’s evidentiary decisions, including decisions to admit or exclude documents,
are reviewed under the abuse of discretion standard. Vreeken v. Lockwood Eng’g, B.V., 148
Idaho 89, 106, 218 P.3d 1150, 1167 (2009) (quoting Perry v. Magic Valley Reg’l Med. Ctr., 134
Idaho 46, 50, 995 P.2d 816, 820 (2000)). However, “the determination of relevance is a question
of law,” and this Court therefore reviews that issue de novo. State v. Young, 136 Idaho 113, 119-
20, 29 P.3d 949, 955-56 (2001) (citing State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997)).
Here, the district court denied Bettwieser’s request to admit Exhibit 11 on the ground that
it was not relevant to any claim raised in his complaint. As explained above, Bettwieser’s claim
regarding the election of the directors is not an issue framed by his complaint. Any evidence
related to that claim is therefore irrelevant. Consequently, we hold that the district court did not
err in excluding Exhibit 11. The district court denied Bettwieser’s request to admit Exhibit 19 on
the grounds that 1) Bettwieser failed to provide adequate notice of the exhibit to the opposing
party, 2) the exhibit was not relevant to the issue before the court, and 3) under Idaho Rule of
Evidence 403, any probative value was substantially outweighed by its potential to confuse the
issues. Bettwieser has not demonstrated that the district court abused its discretion in excluding
this exhibit. The court recognized its discretion, articulated the standards it applied, and
explained the reasoning underlying its decision. Bettwieser has made it clear that he disagrees
with the court’s decision, but has failed to make any showing that the court did not apply the
proper standards or that it failed to exercise reason. Therefore, we hold that the district court did
not abuse its discretion in excluding Exhibit 19.
J. The District is entitled to attorney fees on appeal.
The District requests attorney fees on appeal pursuant to Idaho Code § 12-121, arguing
that Bettwieser’s appeal is merely an attempt to retry his case before this Court. Bettwieser
replies that the proper authority for attorney fees in this case is Idaho Code § 12-117 because the
District is a taxing district. He argues that the District is not entitled to attorney fees under that
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statute because it has not shown his appeal to be unreasonable. We agree that the District is not
entitled to fees under Idaho Code § 12-121 because § 12-117 is the controlling statute in this
matter. Nonetheless, we hold that the District is entitled to reasonable attorney fees pursuant to
Rule 11.2 of the Idaho Appellate Rules.
We first address Bettwieser’s contention that Idaho Code § 12-121 is not the proper
authority in this case. Idaho Code § 12-117 governs attorney fees in “any proceeding involving
as adverse parties a state agency or a political subdivision and a person . . . .” In these
proceedings, “the court hearing the proceeding, including on appeal, shall award the prevailing
party reasonable attorney’s fees, witness fees and other reasonable expenses, if it finds that the
nonprevailing party acted without a reasonable basis in fact or law.” I.C. § 12-117(1). We have
held that Idaho Code § 12-117 is “the exclusive means for awarding attorney fees for the entities
to which it applies.” Kootenai Cnty. v. Harriman-Sayler, No. 39071, 2012 WL 6621149, at *7
(Idaho Dec. 20, 2012) (quoting Potlatch Educ. Ass’n v. Potlatch Sch. Dist. No. 285, 148 Idaho
630, 635, 226 P.3d 1277, 1282 (2010)). Therefore, the question is whether an irrigation district is
a state agency or political subdivision within the meaning of Idaho Code § 12-117.
The term “‘Political subdivision’ means a city, a county, any taxing district or a health
district.” I.C. § 12-117(5)(b). As defined in Title 63, Idaho Code, a taxing district includes “any
municipal corporation, . . . any quasi-municipal corporation, or any other public corporation
authorized by law to levy taxes, now or hereafter organized.” I.C. § 63-3101. Because an
irrigation district has the power to levy assessments and taxes to pay for its operation, it is a
taxing district. See, e.g., I.C. §§ 43-701 through -732 (regulating the district’s authority to levy
assessments and providing penalties for delinquent payment of assessments, including tax deed
sales). Consequently, we hold that an irrigation district is a political subdivision for the purposes
of Idaho Code § 12-117.
We have been clear that a party seeking an award of attorney fees pursuant to a statute
must “cite to the statute and, if applicable, the specific subsection of the statute upon which the
party relies.” Poole v. Davis, 153 Idaho 604, ___, 288 P.3d 821, 826 (2012) (quoting Capps v.
FIA Card Servs., N.A., 149 Idaho 737, 744, 240 P.3d 583, 590 (2010)). Further, “merely citing
‘statutes and rules authorizing fees, without more, is insufficient.’” Id. (quoting Carroll v. MBNA
Am. Bank, 148 Idaho 261, 270, 220 P.3d 1080, 1089 (2009)).
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Here, the District’s request for attorney fees was based only upon Idaho Code § 12-121.
As explained, in cases where § 12-117 applies, that section is the exclusive authority for
awarding attorney fees. Thus, because the District is not entitled to fees under § 12-121 and has
provided neither citation nor argument supporting its entitlement under § 12-117, we hold that
the District is not entitled to attorney fees under either section 12-121 or 12-117.
Nevertheless, we award attorney fees to the district pursuant to the Idaho Appellate
Rules, which provide:
Every notice of appeal, petition, motion, brief and other document of a party
represented by an attorney shall be signed by at least one (1) licensed attorney of
record of the state of Idaho . . . . A party who is not represented by an attorney
shall sign the notice of appeal, petition, motion, brief or other document and state
the party’s address. The signature of an attorney or party constitutes a certificate
that the attorney or party has read the notice of appeal, petition, motion, brief or
other document; that to the best of the signer’s knowledge, information, and belief
after reasonable inquiry it is well grounded in fact and is warranted by existing
law or a good faith argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.
If the notice of appeal, petition, motion, brief, or other document is signed in
violation of this rule, the court, upon motion or upon its own initiative, shall
impose upon the person who signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the other party or parties the
amount of the reasonable expenses incurred because of the filing of the notice of
appeal, petition, motion, brief or other document including a reasonable attorney’s
fee.
I.A.R. 11.2 (italics added). We have held that “Rule 11 Sanctions are appropriate where an
argument on appeal ‘was so far outside the realm of reasonability that it warrants a sanction.’”
Martin v. Smith, No. 36055, 2013 WL 427436, *4 (Idaho Feb. 1, 2013) (quoting In re Estate of
McKee, 153 Idaho 432, ___, 283 P.3d 749, 757 (2012)). However, even where the issues raised
on appeal are “dubious,” fees will not be awarded under Rule 11.2 unless the Court can conclude
that “the appeal was interposed for an improper purpose.” Funes v. Aardema Dairy, 150 Idaho 7,
13, 244 P.3d 151, 157 (2010) (quoting Bradford v. Roche Moving & Storage, Inc., 147 Idaho
733, 737, 215 P.3d 453, 457 (2009)). Thus, this Court may consider, sua sponte, whether a party
has brought an appeal for any improper purpose, and if so, award reasonable attorney fees to the
other party.
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In this case, we have determined that Bettwieser’s appeal was brought for an improper
purpose. That determination is based upon the level of hostility, both in his briefing and at oral
argument, directed toward the district court, the directors of the New York Irrigation District,
and its counsel. This animosity, coupled with the complete absence of merit to Bettwieser’s
claims, leads us to the conclusion that Bettwieser has pursued this appeal for the purpose of
harassment and annoyance. Bettwieser has filed lengthy briefs that contain little in the way of
legal argumentation or authority and raises several issues on appeal that were not before the
district court at trial and, with respect to the issues that were properly appealed, he essentially
admits that his argument is that this Court should find his version of the facts “the credible one.”
Therefore, we award the District attorney fees on appeal, but base the award upon Rule 11.2,
I.A.R.
V. CONCLUSION
We affirm the district court’s amended judgment and award attorney fees and costs on
appeal to the District.
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR,
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