Four Seasons Solar Products LLC v. Bloes

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47906
FOUR SEASONS SOLAR PRODUCTS )
LLC, ) Filed: January 6, 2022
)
Cross Claimant-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
HORST VON BLOES, an individual, ) BE CITED AS AUTHORITY
)
Cross Defendant-Appellant, )
)
and )
)
NORTH WEST MARKETING )
CORPORATION, dba AMERICAN )
BRANDS CONSTRUCTION, )
)
Cross-Defendant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.
Judgment of dismissal with prejudice, affirmed.
Horst Von Bloes, Hayden, pro se appellant.
Ford, Dalton & Mortensen, P.S.; Wesley D. Mortensen, Spokane Valley,
Washington, for respondent.
________________________________________________
BRAILSFORD, Judge
Horst Von Bloes appeals from the district court’s judgment dismissing his breach of
contract claim against Four Seasons Solar Products, LLC (Four Seasons) after a court trial. Von
Bloes argues the court violated his due process rights as a pro se litigant and erred by not
deciding his motion to continue the trial. We affirm.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
Von Bloes owns and operates North West Marketing Corporation, doing business as
American Brands Construction (North West). In September 2017, North West entered into a
contract with Paula Woodward to install a manufactured aluminum patio cover on a property.
When North West and Woodward learned the homeowner’s association prohibited aluminum
patio covers, they agreed to a change order for a custom-built, wood patio cover instead.
Woodward paid North West $9,400, but the project did not proceed timely. As a result,
Woodard terminated the contract, and she demanded, but did not receive, a refund.
In January 2018, Woodward sued Von Bloes, North West, and Four Seasons Solar
Products, LLC (“Four Seasons”) for the return of her money.1 Von Bloes had a dealer agreement
with Four Seasons to market its products. This agreement also required Von Bloes to indemnify
Four Seasons in certain circumstances. Pursuant to this indemnification provision, Four Seasons
tendered defense of Woodward’s lawsuit against it to Von Bloes. Von Bloes, however,
proceeded pro se and did not retain legal counsel to represent and defend either North West or
Four Seasons against Woodward’s lawsuit.2
As a result, Four Seasons retained legal counsel, appeared in the action, and filed cross-
claims against Von Bloes and North West including, among other things, that they breached the
dealer agreement and failed to indemnify Four Seasons. Four Seasons also terminated the
agreement. In response, Von Bloes asserted cross-claims against Four Seasons, including a
claim that it unjustly terminated the dealer agreement. Meanwhile, Woodward obtained a default
1
Woodward alleged Von Bloes was acting as Four Seasons’ agent. According to the
district court’s findings of fact and conclusions of law entered after trial, Woodward testified at
trial that she believed Four Seasons was the supplier of the original aluminum patio cover and
she “had no reason to assume” Four Seasons was not also the supplier of the wood patio cover.
2
Initially, Von Bloes attempted to respond to Woodward’s lawsuit on behalf of North
West but learned he cannot represent a business entity like North West because he is not a
licensed attorney. Von Bloes does not dispute the rule that a non-lawyer cannot represent a
business entity. See Citibank (S. Dakota), N.A. v. Carroll, 148 Idaho 254, 260, 220 P.3d 1073,
1079 (2009) (noting a person’s right to represent himself does not extend to the representation of
other persons or entities); Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737,
745, 215 P.3d 457, 465 (2009) (“Although a non-attorney may appear pro se on his own behalf,
that privilege is personal to him.”).
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judgment against North West and eventually dismissed her remaining claims against Von Bloes
and Four Seasons.
According to the case summary in the appellate record, the district court originally
scheduled a jury trial for April 2019. During a pretrial conference in March 2019, Von Bloes
requested a continuance of the trial “to get counsel.” Opposing counsel did not object to this
request, and the trial court vacated the April 2019 trial to allow Four Seasons to file a motion for
summary judgment and Von Bloes to retain counsel.
Thereafter, Four Seasons filed a motion for partial summary judgment on Von Bloes’
cross-claim for breach of contract. Von Bloes filed an untimely response to this motion. After a
hearing on the motion, the court denied Four Seasons’ motion. It ruled the dealer agreement was
ambiguous and, thus, raised a genuine issue of material fact for trial.
Approximately two weeks before trial in October 2019, Von Bloes filed a motion to
continue the trial to retain counsel and to conduct additional discovery. The district court,
however, did not rule on this motion but, rather, the case proceeded to a one-day court trial on
the cross-claims. Following trial, the court entered written findings of fact and conclusions of
law. It ruled Von Bloes did not have an obligation to defend Four Seasons under the dealer
agreement; Four Seasons’ termination of the dealer agreement was unjustified; Von Bloes did
not present any evidence that the termination caused any damages, however; and neither party
prevailed on their cross-claims.
Von Bloes timely appeals.
II.
STANDARD OF REVIEW
Constitutional questions are purely questions of law. Bradbury v. Idaho Judicial
Council, 136 Idaho 63, 67, 28 P.3d 1006, 1010 (2001). Over questions of law, we exercise free
review. Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 613, 826 P.2d 1322, 1325 (1992); Cole
v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818 (Ct. App. 1989).
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III.
ANALYSIS
A. Due Process Rights
Von Bloes asserts the district court violated his due process rights by failing to provide
him “adequate assistance” and “adequate procedural guidance.” 3 Specifically, Von Bloes argues
“the district court erred when it failed to provide clear, neutral, and timely guidance to [him]
about procedures at various junctures” during the case. Von Bloes asserts these failures
“deprived [him] of his opportunity to prove damages.” In support, Von Bloes relies on Turner v.
Rogers, 564 U.S. 431 (2011).
In that case, Turner appeared without legal counsel at a civil contempt hearing regarding
his failure to comply with a child support order. Id. at 436-37. The family court found Turner in
civil contempt, sentenced him to twelve months of incarceration, but failed to address whether
Turner was able to make payments. Id. at 437-38. On appeal to the United States Supreme
Court, the Court addressed whether the Fourteenth Amendment’s Due Process Clause grants an
indigent defendant the right to state-appointed counsel in a civil contempt proceeding which may
lead to incarceration. Id. at 441. The Court held that “the Due Process Clause does not
automatically require the provision of counsel at civil contempt proceedings to an indigent
individual who is subject to a child support order, even if that individual faces incarceration.” Id.
at 448. Rather, the Court identified three considerations for determining whether due process
requires “the State to provide indigents with counsel in every proceeding of the kind before [the
Court].” Id. at 446. Those considerations are whether the defendant has the ability to pay;
whether counsel represented the party opposing the defendant; and whether “substitute
procedural safeguards” are available. Id. at 446-47. Those procedural safeguards include notice
that the defendant’s ability to pay is a critical issue, the use of forms to elicit relevant financial
information, an opportunity for a hearing, and the trial court’s express finding of a defendant’s
ability to pay. Id. at 447-48. Because Turner had “neither counsel nor the benefit of alternative
procedures,” the Court vacated the judgment and remanded the case. Id. at 449.
3
In stating his appellate issues, Von Bloes identifies the district court’s alleged failures to
provide “adequate assistance” and to provide “adequate procedural guidance” as two separate
issues. Von Bloes’ argument, however, combines the two issues into a single discussion and
does not provide any cognizable distinction between the two issues.
4
Turner has no application in this case for numerous reasons. Most notably, this case is
not a case in which Von Bloes is a defendant in a civil contempt proceeding potentially resulting
in incarceration as in Turner. Rather, Von Bloes has asserted an affirmative claim for relief
against Four Seasons, and the crux of his alleged due process violation is that the district court
did not guide or assist him in understanding how to obtain damages under his claim. The Court’s
language in Turner does not contemplate any extension of the procedural safeguards discussed in
that case to other types of cases in which a litigant may proceed pro se. See id. at 446(discussing due process in “the kind” of proceeding before the Court). Further, Von Bloes cites
no authority and provides no argument in support of extending those procedural safeguards
either to a party pursuing a civil claim or to a civil case not involving possible incarceration. 4
Further, Von Bloes fails to challenge the well-established rules in Idaho requiring that
pro se litigants must comport with “the same standards and rules” as parties represented by
counsel and providing that Idaho courts will not accord pro se litigants “special latitude” or
“special consideration” simply because they proceeded without the assistance of an attorney.
Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009). In particular, Von Bloes
does not cite any authority or argue that these rules do not comport with due process. As a
result, Von Bloes has failed to establish any due process violation.
Moreover, Von Bloes failed to raise any alleged due process violation before the district
court. Generally, this Court will not consider issues not raised before the trial for the first time
on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Implicitly
conceding he did not raise the issue before the district court, Von Bloes notes that appellate
courts will hear an issue raised for the first time on appeal where the issue implicates a
fundamental right and argues “the district court’s failure to ensure [he] got his evidence of
damages in for review” was a fundamental error. The Idaho Supreme Court, however, has held
the fundamental error doctrine is inapplicable in civil matters, such as this case. See In re Doe
(2013-29), 156 Idaho 682, 687-88, 330 P.3d 1040, 1045-46 (2014) (citing State v. Perry, 150
Idaho 209, 224, 245 P.3d 961, 976 (2010) (recognizing fundamental error analysis applies only
4
Other than Turner, Von Bloes only cites generally to a California “bench guide” for
judicial officers handling pro se cases and to other nonbinding authorities, including from
Australia. Because these authorities are neither binding nor persuasive, we do not address them.
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where criminal “defendant [is] deprived of his or her Fourteenth Amendment due process right to
a fair trial in a fair tribunal”)).
B. Motion to Continue the Trial
Von Bloes asserts the district court abused its discretion by failing to grant his motion to
continue the trial. Although Von Bloes filed this motion with the court, the record does not
indicate the court ever heard or ruled on the motion. To the contrary, the record suggests Von
Bloes proceeded to trial without requesting a ruling on the motion. On the day of trial, the court
expressly inquired whether the parties were “ready to proceed with trial,” to which Von Bloes
responded affirmatively without indicating he had a pending motion for a continuance.
Von Bloes challenges the court’s failure to rule on that motion, arguing that this Court “should
not be required to guess at the contours of the district court’s thinking.”
Von Bloes is correct that this Court cannot evaluate whether the district court erred
absent a ruling on the issue. For this reason, the record must contain an adverse ruling by the
trial court on the issue to preserve it for appeal. Johnson v. Crossett, 163 Idaho 200, 207, 408
P.3d 1272, 1279 (2018). Absent an adverse ruling on the record, this Court will not review an
alleged error on appeal. Id. Because the record does not contain an adverse ruling on
Von Bloes’ motion to continue the trial, we will not review this issue on appeal.
C. Attorney Fees
Four Seasons is the prevailing party on appeal and requests an award of attorney fees
under Idaho Code § 12-121 and Idaho Appellate Rule 41. An award of attorney fees may be
granted under I.C. § 12-121 and I.A.R. 41 to the prevailing party when the Court finds the appeal
has been brought or defended frivolously, unreasonably, or without foundation. Clark v. Jones
Gledhill Fuhrman Gourley, P.A., 163 Idaho 215, 230, 409 P.3d 795, 810 (2017). To receive
attorney fees under I.C. § 12-121, the entire appeal must have been pursued frivolously,
unreasonably, and without foundation. Shepherd v. Shepherd, 161 Idaho 14, 21, 383 P.3d 693,
700 (2016). Such circumstances exist when a party has only asked the appellate court to second-
guess the trial court by reweighing the evidence, has failed to show that the trial court incorrectly
applied well-established law, or has failed to provide authority or legal argument in support of
the party’s assertion. We decline to award Four Seasons attorney fees under I.C. § 12-121
because we cannot conclude Von Bloes’ appeal was entirely frivolous.
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IV.
CONCLUSION
The district court did not violate Von Bloes’ due process rights by failing to assist or
guide Von Bloes in presenting his case. Because the district court did not rule on Von Bloes’
motion for a continuance, we do not review the issue on appeal. Accordingly, we affirm the
district court’s judgment dismissing Von Bloes’ cross-claims. We decline to award attorney fees
but award Four Seasons costs on appeal under I.A.R. 40.
Chief Judge LORELLO and Judge HUSKEY CONCUR.
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