Clark v. Conger

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 52590

JAY P. CLARK, )
) Filed: October 24, 2025
Plaintiff-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JEFF CONGER, and all occupants, ) OPINION AND SHALL NOT
tenants or subtenants of the property ) BE CITED AS AUTHORITY
commonly known as 1795 N. 4TH E., )
MOUNTAIN HOME, IDAHO 83647, )
)
Defendant-Respondent. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Brent A.
Ferguson, Magistrate.

Decision of the district court, on intermediate appeal from the magistrate court,
affirming the dismissal of unlawful detainer claim with prejudice and awarding
attorney fees, affirmed.

Jay P. Clark, Middleton, pro se appellant.

Ratliff Law Offices, Chtd; Matthew T. Ryan, Mountain Home, for respondent.
________________________________________________

GRATTON, Chief Judge
Jay P. Clark appeals from the district court’s decision, on intermediate appeal from the
magistrate court, affirming the dismissal of his unlawful detainer claim and awarding attorney fees.
Clark contends that the magistrate court erred in awarding attorney fees. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Clark, as landlord, entered into a lease agreement with Jeff Conger as a tenant.
Included in the agreement to lease Clark’s residence was an option for Conger to purchase the
home from Clark, so long as Conger did not breach the terms of the lease agreement. Clark filed
a claim for unlawful detainer on October 10, 2022, seeking to evict Conger because Clark claimed

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Conger failed on several occasions to make timely payments for rent and that Conger wrongfully
claimed Clark’s mortgage tax deductions. Clark also alleged that he served a thirty-day notice on
Conger to vacate the property and terminate the tenancy, yet Conger remained in possession.
Conger filed an answer and later filed a motion to amend to include a counterclaim and for removal
to the district court. Clark’s attorney filed a motion for leave to withdraw as counsel of record.
At a hearing on both motions, the magistrate court provided both parties additional time to
research and argue “whether or not a counterclaim can be properly asserted in the unlawful detainer
action.” In addition, the magistrate court granted Clark’s attorney’s motion to withdraw. Instead
of filing additional authorities in support of the motion to assert a counterclaim, Conger filed a
claim in the district court asserting that he had not breached the lease and was entitled to exercise
the option to purchase. In regard to the order allowing withdrawal of Clark’s counsel, on
August 15, 2023, the magistrate court stayed the proceedings for twenty-one days and ordered that
Clark file an appearance of counsel or provide a written notice to the magistrate court stating he
would represent himself in compliance with Idaho Rule of Civil Procedure 11.3(c)(3). The
magistrate court emphasized in its order:
[I]f Mr. Jay P. Clark fails to file and serve an additional written appearance in this
action in person or through a newly appointed attorney within such twenty-one (21)
day period, such failure shall be sufficient grounds for entry of default and default
judgment against said party, and for dismissal of any claims brought by said party,
with prejudice, and without further notice.
Clark failed to timely file and serve a notice of appearance of counsel or a notice that he
would represent himself. Conger then brought a motion to dismiss Clark’s claim for unlawful
detainer based on Clark’s failure to follow the order of the magistrate court. The magistrate court
issued an order dismissing Clark’s complaint with prejudice. Subsequently, Conger filed a motion
requesting attorney fees and costs. In response, Clark filed a motion to reconsider the magistrate
court’s dismissal and objection to the motion for attorney fees and costs. Clark asserted that
Conger’s filing in the district court was concealed and misleading. Conger sought to have the
magistrate court reconsider dismissal and, instead, transfer jurisdiction of his unlawful detainer
claim to the district court without prejudice. The magistrate court denied Clark’s motion to
reconsider and granted attorney fees and costs to Conger pursuant to Idaho Code § 6-324.
Clark appealed the magistrate court’s decision to the district court. The district court
affirmed the magistrate court’s judgment dismissing Clark’s complaint and awarding attorney fees
and costs, as well as the denial of Clark’s motion to reconsider. Clark appeals.
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II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.2d
214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal
will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s
findings and conclusions, whether the district court affirmed or reversed the magistrate court and
the basis therefore, and either affirm or reverse the district court.
A trial court’s “determination of who is a prevailing party will not be disturbed absent an
abuse of discretion.” Shore v. Peterson, 146 Idaho 903, 915, 204 P.3d 1114, 1126 (2009). When
a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-
tiered inquiry to determine whether the trial court: (1) correctly perceived the issue as one of
discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal
standards applicable to the specific choices before it; and (4) reached its decision by an exercise
of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
III.
ANALYSIS
On appeal, Clark claims that the district court erred by affirming the magistrate court’s
judgment dismissing Clark’s claim for unlawful detainer and awarding attorney fees and costs to
Conger. Clark argues that the magistrate court erred in finding that Conger was the prevailing
party. Clark argues that he prevailed on the only substantive claim addressed in the magistrate
court, the right to file a counterclaim. Clark also argues that the magistrate court should have
considered the fact that Conger filed his claim in the district court and that dismissal in this case
benefitted both parties as both were proceeding in the district court. Clark also argues that the
magistrate court erred in dismissing the case with prejudice. Conger argues the magistrate court
acted within its discretion in finding Conger was the prevailing party. In addition, Conger contends
that Clark’s argument on appeal that the magistrate court erred in dismissing the case with
prejudice is not properly raised. Conger also requests an award of attorney fees and costs on appeal
pursuant to I.C. § 12-121 and Idaho Appellate Rule 41.

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Clark claims the magistrate court abused its discretion in finding that Conger was the
prevailing party. To determine which party is the prevailing party and entitled to costs, “[a] trial
court must, in its sound discretion, consider the final judgment or result of the action in relation to
the relief sought by the respective parties.” I.R.C.P. 54(d)(B). This Court has rarely reversed a
trial court’s determination of which party is found to be the prevailing party. Shore, 146 Idaho at
914, 204 P.3d at 1125.
Clark argues that the magistrate court erred in finding Conger to be the prevailing party
because Conger “lost” on his counterclaim and the issues were then litigated in the district court.
On appeal, Clark asserts:
Here, we can only assume that the magistrate court found that [Conger] was
the prevailing party in spite of the fact that [Conger] lost on really the only issue
adjudicated in the entire case--whether [Conger] could add his counterclaims in this
case. [Conger’s] loss here resulted in him commencing a parallel case against
[Clark] while this case was still pending. [Clark] was then forced to litigate the
same issue presented here, whether [Conger] breached the lease in question in
district court. In other words, it is entirely immaterial here that [Clark] did not
appear in this case within 21 days after his attorney was allowed to withdraw since
[Conger] had already lost his bid to pursue his counterclaims in this case and
[Clark] had already appeared in the new case filed by [Conger] in district court
where all the remaining issues between the parties eventually were litigated.
Clark misconstrues the magistrate court’s decision on Conger’s motion to amend to add a
counterclaim. The issue of whether Conger was able to assert his counterclaim regarding the lease
agreement with Clark was never adjudicated or decided by the magistrate court. Instead, the
magistrate court expressed some concern that a counterclaim asserting a right to purchase might
not be appropriate in an unlawful detainer action and ordered additional briefing. The magistrate
court stated: “The Court is going to table that motion so as to allow counsel to conduct additional
research and determine how they would like to proceed.” Clark did not win on the counterclaim
issue because it was never decided.
The magistrate court found that Conger was the prevailing party due to Clark’s failure to
comply with the requirements of I.R.C.P. 11.3(c)(3). At both the hearing regarding Clark’s motion
for leave to withdraw as counsel of record and in the magistrate court’s order granting leave to
withdraw as counsel, Clark received notice to comply with I.R.C.P. 11.3(c)(3). To comply, Clark
needed to simply notify the magistrate court of his choice--whether he was going to hire another
attorney to appear for him or appear pro se. Clark elected to provide no notice to the magistrate

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court. Clark’s failure to follow the magistrate court’s order is the basis of dismissal, irrespective
of Conger’s motion to add a counterclaim which had not been decided.
Clark further argues that his unlawful detainer claim and Conger’s contract claim are the
same issue, but that is factually and legally incorrect. One is an eviction suit and the other is a
contract dispute. Clark’s failure to act pursuant to the magistrate court’s order was wholly
independent and separate from Conger’s claim that Clark breached the lease agreement. The
district court found that the record supports the magistrate court’s dismissal with prejudice due to
Clark’s failure to comply with the magistrate court’s order under I.R.C.P. 11(c)(3). 1 The district
court reasoned that “the fact a case was filed in district court pertaining to the lease is immaterial
to the reason for dismissal of the eviction case.” Therefore, Conger was appropriately found to be
the prevailing party in this suit.
In response to the dismissal, Clark submitted a motion to reconsider. Clark argued that if
Conger had notified the magistrate court of Conger’s claim in the district court, the magistrate
court would not have dismissed Conger’s claim with prejudice because Conger was intentionally
misleading the court. The magistrate court held a hearing regarding Conger’s motion to
reconsider. The magistrate court reviewed the entirety of the case before the hearing and
emphasized, “[it] doesn’t see any fraud or mistake or any type of excusable neglect that would
constitute a basis upon which the Court could set aside a default judgment.” While Clark also
asserts that Conger’s filing of his case with the district court was misleading and untrue, the
magistrate court found no correlation between that allegation and Clark’s failure to comply with
I.R.C.P. 11.3(c)(3).
Clark also argues that the magistrate court erred by dismissing the case with prejudice.
Conger asserts this Court should not consider the argument because Clark failed to include it in
the statement of issues in his opening brief and failed to provide argument or authority in support
of the argument. The failure of an appellant to include an issue in the statement of issues required

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In the district court’s opinion on appeal, the district court emphasized:
The magistrate dismissed the case with prejudice based on [Clark’s] failure to
comply with the Order Granting Leave to Withdraw as Counsel. The record
indicates [Clark] did not appoint new counsel or file a notice that he would be
representing himself within 21 days of the order. [Clark] had substantially more
than 21 days to comply with the order.

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by I.A.R. 35(a)(4) will eliminate consideration of the issue from appeal. Kugler v. Drown, 119
Idaho 687, 691, 809 P.2d 1166, 1170 (Ct. App. 1991). Moreover, a party waives an issue on appeal
if either argument or authority is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434,
440 (Ct. App. 1997). Pro se litigants are not entitled to special consideration because they
represent themselves and are held to the standards and rules as litigants represented by attorneys.
Owen v. Smith, 168 Idaho 633, 641, 485 P.3d 129, 137 (2021). Clark failed to include the argument
as an issue in his brief and thereby waives the issue. Even so, Clark failed to cite to authority to
support his claim of error.2 Nonetheless, I.R.C.P. 11.3(c)(3) expressly provides for dismissal with
prejudice.
Conger has failed to demonstrate error by the magistrate court in dismissing the case with
prejudice and finding Conger to be the prevailing party. The magistrate court acted within its
discretion to find that Conger was the prevailing party and award attorney fees and costs
accordingly. While Clark complains that the magistrate court did not articulate its reasoning in
finding Conger to be the prevailing party, the magistrate court considered and rejected Clark’s
contrary arguments, including on reconsideration. The magistrate court exercised reason in
finding Conger to be the prevailing party and awarding attorney fees and the district court correctly
affirmed the magistrate court’s dismissal with prejudice and award of attorney fees and costs, and
the denial of Clark’s motion to reconsider.
In his statement of issues, Clark contends that the district court erred in affirming the
magistrate court’s award of attorney fees and costs “when the record is devoid of any analysis,
argument or discussion of any kind that would give support to the magistrate’s decision here

2
Clark raised this issue with the district court on appeal. The district court held that the
magistrate court did not err under Idaho Rule of Civil Procedure 11.3(c)(3). The rule provides:
If a notice of appearance of a new attorney or a notice of self-representation is not
filed within 21 days after service of the order allowing withdrawal, the court, either
sua sponte or upon application by the opposing, may dismiss with prejudice any
claims of the party or may enter a default against the party.
Clark did not follow the requirements outlined in I.R.C.P. 11.3(c)(3), despite the magistrate
court giving written notice to Clark to do so as well as providing verbal instructions at the hearing
when granting Clark’s motion for leave to withdraw as counsel of record. Conger filed a motion
to dismiss Clark’s claim with prejudice thirty-eight days after the magistrate court ordered Clark
to follow I.R.C.P. 11.3(c)(3). The district court appropriately affirmed the magistrate court in
granting Conger’s motion and ordering Clark’s claim for unlawful detainer be dismissed with
prejudice.

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including any legal or factual support for an award of attorney fees and costs.” However, Clark
fails to provide any argument or authority as to how the magistrate court abused its discretion when
awarding attorney fees under I.C. § 6-324. As noted, a party waives an issue on appeal if either
argument or authority is lacking. Powell, 130 Idaho at 128, 937 P.2d at 440. Idaho Code § 6-324
requires “[i]n any action brought under the provisions of this chapter . . . the prevailing party shall
be entitled to an award of attorney fees.” The magistrate court recognized that attorney fees are
mandatory under the statute. As Conger is the prevailing party, he is entitled to attorney fees under
I.C. § 6-324.
Conger requests an award of attorney fees and costs on appeal pursuant to I.C. § 12-121.
An award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to the prevailing party
and such an award is appropriate when the court finds that the appeal has been brought or defended
frivolously, unreasonably, or without foundation. Where a non-prevailing party continues to rely
on the same arguments addressed in the lower courts, without providing additional persuasive law
or bringing into doubt the existing law on which the court based its decision, an award of attorney
fees under I.C. § 12-121 may be appropriate. Plasse v. Reid, 172 Idaho 53, 65, 529 P.3d 718, 730
(2023). This standard has been satisfied in this case. Accordingly, attorney fees and costs are
awarded to Conger.
IV.
CONCLUSION
The district court’s decision, on intermediate appeal, affirming the magistrate court’s
judgment dismissing the case with prejudice and awarding attorney fees and costs, as well as
denying Clark’s motion for reconsideration is affirmed. Costs and attorney fees on appeal are
awarded to Conger.
Judge HUSKEY and Judge TRIBE CONCUR.

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