Larry M. Dunn v. Thomas Black

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42408

LARRY M. DUNN, ) 2015 Unpublished Opinion No. 704
)
Plaintiff-Respondent, ) Filed: November 10, 2015
)
v. ) Stephen W. Kenyon, Clerk
)
THOMAS BLACK, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge. Hon. Patricia G. Young,
Magistrate.

Order of the district court, on intermediate appeal from the magistrate, affirming
judgment in action for attorney fees, affirmed.

Thomas Black, Nampa, pro se appellant.

Webb & Dunn Law; Brian L. Webb, Boise, for respondent.
________________________________________________

MELANSON, Chief Judge
Thomas Black appeals from the district court’s order on intermediate appeal from the
magistrate, affirming judgment against Black for unpaid attorney fees and denying relief on his
counterclaim. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Larry M. Dunn is an attorney who represented Black in a divorce case. Black made
intermittent payments to Dunn, but did not pay the entire fee owed for Dunn’s representation.
After the divorce case was completed, Dunn filed suit to recover the remaining fee owed by
Black. Black counterclaimed for damages. The case proceeded to trial and the magistrate found:
Mr. Dunn presented his testimony and exhibits. He represented Mr. Black
in the divorce action from April 2012 through December 2012. When Mr. Black

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and Mr. Dunn had disagreements about the best way to handle a particular issue
Mr. Dunn informed Mr. Black that he had the choice to hire another attorney. Mr.
Black agreed to the admittance of all of Mr. Dunn’s seven exhibits. Mr. Black
made no offers of proof of evidence or explained how damages occurred to him
during or after the divorce proceedings as a result of Mr. Dunn’s legal
representation of him.
. . . [T]his court finds no basis to challenge the reasonableness of the work
performed by Mr. Dunn in representing Mr. Black. There is no factual or legal
basis to award Mr. Black monetary damages for the work done by Mr. Dunn.

The magistrate entered judgment in favor of Dunn in the amount of $8,989.76 and denied Black
relief on his counterclaim. Black appealed to the district court, which affirmed. Black again
appeals.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855,
858-59, 303 P.2d 214, 217-18 (2013). If those findings are so supported and the conclusions
follow therefrom, and if the district court affirmed the magistrate’s decision, we affirm the
district court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review
the decision of the magistrate. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012).
Rather, we are procedurally bound to affirm or reverse the decisions of the district court. Id.
III.
ANALYSIS
A. Jurisdiction
Black argues that the magistrate did not have personal jurisdiction over him. Black
specifically asserts that he was not properly served because he received the summons and Dunn’s
complaint through the mail, rather than through in-person service. Other than Black’s
unsupported allegations, there is nothing in the record to suggest that Black was improperly
served. However, assuming, without deciding, that Black was improperly served, the improper

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service did not permanently deprive the magistrate of personal jurisdiction over Black. The
voluntary appearance of a party constitutes voluntary submission to the personal jurisdiction of
the court. I.R.C.P. 4(i)(1). A voluntary general appearance is equivalent to service of summons
upon a defendant and will cure any defects in service. Hutchinson v. State, 134 Idaho 18, 21,
995 P.2d 363, 366 (Ct. App. 1999). Black’s appearance before the magistrate to answer Dunn’s
claims and to file a counterclaim was a voluntary general appearance. Because Black made a
voluntarily general appearance before the magistrate, any defect in service was cured and the
magistrate did not err in exercising personal jurisdiction over Black.
B. Denial of Black’s Counterclaim
Black claims that the magistrate erred in dismissing his counterclaim against Dunn,
which was essentially a legal malpractice claim. The elements of a legal malpractice action are:
(a) the existence of an attorney-client relationship; (b) the existence of a duty on the part of the
lawyer; (c) the failure to perform the duty; and (d) the negligence of the lawyer must have been a
proximate cause of the damage to the client. Harrigfeld v. Hancock, 140 Idaho 134, 136, 90
P.3d 884, 886 (2004). The burden of proving that an attorney has been negligent or failed to act
with proper skill and that damages resulted therefrom is on the plaintiff client. Id. Likewise, the
burden is on the plaintiff to show that the negligence of the attorney was a proximate cause of the
client’s damage. Id.
Before the magistrate, Black alleged that Dunn failed to pursue a debt in the divorce
proceedings; failed to follow proper procedure and file answers in a timely manner; refused to
properly file material with the Internal Revenue Service; and forced Black to make agreements
under duress. The magistrate held that Black “made no offers of proof of evidence or explained
how damages occurred to him during or after the divorce proceedings as a result of Mr. Dunn’s
legal representation” of Black. Having reviewed the record, we agree that Black did not meet his
burden of proving that Dunn was negligent or failed to act with proper skill. Further, Black has
not shown that shortcomings in Dunn’s representation resulted in damages to Black. Because
Black did not meet his burden, the district court did not err in affirming the magistrate’s denial of
relief on Black’s counterclaim.
C. Scheduling Orders
On appeal to this Court, Black repeats an allegation made below. He alleges:

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[T]he magistrate as well as the district court abused their discretion by
issuing a scheduling order that reads in a confusing manner, and then again
abused her [sic] discretion by making an interpretation of the order that was
contrary to how the order read. If the average man were to read the scheduling
order, he would also be confused as to the time limitations and frames assigned in
the scheduling order.

Addressing the same issue with regard to the magistrate’s scheduling order, the district
court held that Black improperly sought to assert an issue on appeal that was not raised before
the magistrate and that the issue was, therefore, not to be considered on appeal. As the district
court noted, generally, issues not raised below may not be considered for the first time on appeal.
Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Accordingly, the district
court did not err in finding that the issue was not preserved for appeal.1
Regarding Black’s allegation that the district court’s scheduling order was similarly
confusing, his claim is without merit. Black has not shown that the scheduling order was
confusing or difficult to understand. More importantly, even if the scheduling order was unclear,
Black has provided no argument or authority to support his proposition that a confusing
scheduling order is an abuse of discretion. 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). Accordingly, this issue is waived and will not be addressed further on appeal.
D. Costs and Attorney Fees on Appeal
Dunn requests costs and attorney fees on appeal. 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 is left with the abiding belief that the appeal has been brought or
defended frivolously, unreasonably, or without foundation. Rendon v. Paskett, 126 Idaho 944,
945, 894 P.2d 775, 776 (Ct. App. 1995). In this case, Black asserts on appeal the same issues
raised to the district court, filing a nearly identical brief as that provided to the district court.
Black has added one new section to his brief on appeal regarding the magistrate’s personal
jurisdiction over him. As discussed above, that argument is unfounded. Because this Court is

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The district court analyzed the merits of Black’s argument. Because the issue was not
preserved for appeal, this Court will not review the district court’s analysis of the merits of
Black’s claim.

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left with the abiding belief that the appeal has been brought frivolously, unreasonably, or without
foundation, Dunn is awarded costs and attorney fees on appeal.
IV.
CONCLUSION
Black has not shown that the magistrate lacked personal jurisdiction over him. In
addition, Black has not shown that the magistrate erred in denying relief on his counterclaim.
Finally, Black has not shown that either the magistrate’s or district court’s scheduling orders
were an abuse of discretion. Therefore, we affirm the district court’s order on intermediate
appeal, affirming the judgment against Black for unpaid attorney fees and dismissing his
counterclaim. Dunn is awarded costs and attorney fees on appeal.
Judge GUTIERREZ and Judge HUSKEY, CONCUR.

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