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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 47511

STEPHEN MERRILL,

 Plaintiff-Appellant,

v.

ERIK P. SMITH,

 Defendant-Respondent.

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Boise, September 2020 Term

Opinion Filed: December 4, 2020

Melanie Gagnepain, Clerk

Appeal from the District Court of the First Judicial District of the State of Idaho, 

Kootenai County. Lansing Haynes, District Judge.

The district court’s order granting summary judgment is reversed, the judgment is 

vacated, and the case is remanded.

Appellant, Stephen Merrill, pro se.

Respondent, Erik P. Smith, pro se. 

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STEGNER, J.

This case involves a fee dispute between two attorneys arising from a purported fee-sharing 

agreement. The underlying case involved an airman in the U.S. Air Force who was injured while 

driving through Idaho on his way to a posting in Alaska. The airman hired an Alaska attorney, 

Stephen Merrill, to represent him in pursuit of his personal-injury claims in Idaho. Merrill 

associated Erik Smith, an Idaho attorney, to act as local counsel in the airman’s suits. At a point in 

the proceedings, the airman terminated Merrill’s representation. Smith ultimately settled the case 

and retained the entire attorney fee. Merrill then sued Smith seeking his proportionate share of the 

fee. Smith moved for summary judgment which was granted by the district court. Merrill appeals. 

For the reasons set out below, we conclude the district court erred in granting summary judgment

to Smith. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

Bradley Bliton, an airman serving in the United States Air Force, was driving through

Kootenai County, Idaho, on May 18, 2015, when he was involved in a rollover motor vehicle 

accident caused by the driver of another vehicle. Bliton sustained serious physical injuries. Bliton

was on his way to his new posting in Alaska. After Bliton was settled in Alaska, he hired Stephen 

Merrill to represent him in his claims against the other driver. In early 2016, Bliton was diagnosed 

with Post Traumatic Stress Disorder and a Traumatic Brain Injury (TBI) purportedly caused by

the accident. According to Bliton, Merrill believed there was also a case to be made against the 

manufacturer of Bliton’s vehicle because the airbags had failed to deploy and did not prevent the 

injuries sustained.

As the deadline for filing Bliton’s suits drew near, Merrill sought to obtain local counsel 

in Idaho to assist in Bliton’s representation. At some point in early May 2017, Merrill contacted 

Coeur d’Alene attorney Erik Smith to gauge whether he would be willing to act as Bliton’s Idaho 

counsel. Multiple emails were exchanged between Merrill and Smith in an apparent effort to agree 

upon how attorney fees would be split between them. In one of the last emails from Smith to 

Merrill, Smith wrote: “I would agree to the 2:1 atty [sic] fee agreement you propose.” Erik Smith 

thereafter agreed to act as Bliton’s Idaho counsel in association with Merrill. Merrill contends the 

terms of his agreement with Smith were contained in the series of emails between the two lawyers.

In particular, Merrill contends that he and Smith agreed that two-thirds of the contingent fee would 

be paid to Merrill, with the remaining one-third being paid to Smith. A contingent fee agreement 

was also drafted by Merrill for signature by Bliton, Bliton’s wife, Merrill, and Smith.

1 While the 

contingent fee agreement was signed by Bliton, Bliton’s wife, and Merrill, for reasons that have 

not been explained, Smith never signed the agreement. Even though the agreement referenced a 

fee-sharing agreement between Merrill and Smith, the agreement did not spell out or address any 

of the specifics of the separate fee-sharing agreement.

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1 While Bliton’s wife was also a plaintiff in the Idaho state court actions, her involvement is immaterial to this case. 

For the sake of simplicity “Bliton” will be used throughout this opinion in the singular.

2 The agreement contained a clause stating, “The division of the attorney fees paid between the Law Firms shall be 

determined by the Law Firms in their separate agreement.” However, there was no indication of what was contained 

in this “separate agreement.” Notably, the failure to set out the agreement between Merrill and Smith in the agreement 

signed by Bliton appears to violate the rules of professional responsibility in both Idaho and Alaska. Idaho Rule of 

Professional Conduct 1.5(e) states: “A division of a fee between lawyers who are not in the same firm may be made 

only if: . . . the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is 
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Smith filed two actions on Bliton’s behalf in Kootenai County on May 18, 2017. The first 

action was against the at-fault driver, who was insured by GEICO (Bliton v. Lee, Kootenai County 

Case No. CV-17-3881). The second action was against the manufacturer of the vehicle Bliton had 

been driving, Fiat-Chrysler (Bliton v. Fiat-Chrysler, Kootenai County Case No. CV-17-3880).

According to Bliton, after the suits were filed, Merrill’s involvement with the cases was 

marked by disagreements with Smith. In November 2017, Smith informed Bliton that he would 

withdraw from the cases because of the difficulty he was experiencing in working with Merrill. 

Bliton asked Smith if he would continue to represent him if Merrill were no longer involved. Smith 

agreed that he would. On December 5, 2017, Bliton terminated his agreement with Merrill.3

Smith continued to negotiate with GEICO in an effort to settle the suit against the at-fault 

driver. Although the exact timeline is unclear, sometime in 2018 GEICO tendered to Smith its 

$100,000 policy limits of liability coverage. Smith accepted the tender on behalf of Bliton and 

settled that litigation. Merrill alleges that Smith inappropriately kept the entire attorney fee 

proceeds of $40,000.00. Bliton received the balance. Merrill further alleges that at some point 

Smith also arranged to have a meritorious suit against Fiat-Chrysler dismissed.

B. Procedural Background.

On March 9, 2019, Merrill filed suit against Smith in Kootenai County seeking his share 

of the attorney fees. Merrill designated his suit as a “declaratory judgment complaint” brought 

pursuant to Idaho Code section 10-1201. Merrill sought “a determination of the attorney fee 

division for professional work performed on two suits[.]” Merrill contended that he had performed 

far more work on Bliton’s cases than had Smith. Merrill concluded his pro se complaint as follows:

29. Attorney Smith should gain no advantage from his destructive machinations 

described above that greatly harmed the interests of a disabled client and also 

betrayed the lead counsel who hired him.

30. Trial by jury is hereby requested. Idaho Code Section 10-1209[.]

THEREFORE, the plaintiff moves this honorable Court for entry of a Declaratory 

Judgment determining that the distribution of the attorney-fee to be $26,800 for the 

 

confirmed in writing[.]” Idaho Rules of Professional Conduct 1.5(e) (italics added). Alaska’s comparable rule is 

identical to Idaho’s. See Alaska R. Prof. Conduct 1.5(e). While the signed agreement appears to run afoul of both the 

Idaho and Alaska rules of professional responsibility, a violation of these rules does not affect our analysis of the 

merits of this case. See, e.g., Kosmann v. Dinius, 165 Idaho 375, 382, 446 P.3d 433, 440 (2019), reh’g denied (Aug. 

26, 2019). Needless to say, if the lawyers involved had complied with the applicable rules of professional 

responsibility, it is doubtful this dispute would have resulted. 

3 Merrill contends that Smith “poisoned” the relationship he enjoyed with Bliton. Merrill argues that at the time, Bliton 

was suffering from neurological issues related to his TBI. Bliton has provided statements contradicting this argument, 

explaining instead that he was frustrated by Merrill’s delays, unrealistic expectations, and difficulty in dealing with 

others.
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plaintiff [Merrill] herein and $13,200 for the defendant [Smith] herein, together 

with the award of costs in this suit.

As further procedural relief, the plaintiff seeks the alleged lien amount of 

$26,800 to be interpleaded by Attorney Smith into the Court’s account pending the 

resolution of this suit.

Smith answered the complaint and asserted several affirmative defenses on May 1, 2019. 

Contentious discovery ensued.

Smith filed for summary judgment on July 17, 2019. Smith first argued that there was no 

written contract entitling Merrill to relief, as the contingency fee agreement entered into by Merrill

and Bliton (and never signed by Smith) did not formalize the fee sharing agreement between 

Merrill and Smith. Smith also argued that there was no oral contract entitling Merrill to relief 

because there was no mutual agreement by the parties to all the essential terms. Finally, Smith 

argued that if an agreement had been formed, the agreement was terminated when Bliton 

discharged Merrill. Smith also argued that Merrill’s lack of work on Bliton’s cases constituted a

material breach defeating the fundamental purpose of the agreement with Smith. Smith did not file 

any supporting affidavits to describe or clarify his negotiations with Merrill.

In response, Merrill argued that there had been an agreed-upon fee split between Smith and 

himself, as reflected in a series of emails exchanged when Smith was retained as local counsel by 

Merrill. Merrill argued that Smith did not perform any additional work on Bliton’s cases after 

Merrill’s services were ended. Merrill further contended that this was a lien enforcement suit and 

that the legal standard for analysis was “quantum meruit,” with no requirement for a contract 

between the parties.

A hearing was held on August 14, 2019, before the district court. Smith argued that Bliton 

had lawfully terminated the attorney-client agreement. Smith also argued for the first time that 

Bliton was a necessary party because the settlement funds belonged to him.

Merrill reiterated his claim that quantum meruit applied even if contract law did not. When 

Smith argued that the issue of quantum meruit had not been referenced in the briefing or in the 

complaint, Merrill argued that he had cited quantum meruit cases in his briefing and had alleged 

sufficient facts to support a claim for quantum meruit in his complaint. Merrill also argued that all 

that was necessary to remedy this was to amend his complaint. At the close of the hearing, the 

district court took the arguments under advisement and stated that it would render a written

decision.
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On August 29, 2019, the district court issued its memorandum decision and order granting 

Smith’s motion for summary judgment against Merrill. The district court first concluded that 

Merrill had not submitted evidence supporting the existence of a contract with properly 

authenticated, admissible evidence. The district court observed that Merrill had merely attached 

copies of the emails between Smith and himself to his brief, and had not authenticated the exhibits, 

so the district court could not consider the evidence as it had not been properly submitted. The 

district court noted that Merrill would be allowed to properly support his assertions in a motion to 

reconsider if he chose to submit one. 

The district court also held that Merrill had not sufficiently pleaded a cause of action for 

quantum meruit, because Idaho Code section 10-1202 only authorized declaratory judgments for 

actual contracts and not implied-in-fact contracts. The district court observed that the only remedy 

that Merrill’s complaint sought was a declaratory judgment, and that a declaratory judgment was

not available where an implied-in-fact contract had been alleged. 

Merrill moved for reconsideration on September 10, 2019. Smith did not file a response. 

A hearing was held on October 1, 2019. Merrill “contend[ed] that the contract between the parties 

here does control.” Merrill also asserted that he was seeking to have his case move forward on 

quantum meruit as an alternative form of relief if no contract had ever been created.

Smith responded by pointing out that Merrill had not submitted any additional evidence on 

reconsideration, even though the district court’s memorandum decision had been clear that 

properly admissible evidence would be considered on reconsideration. Smith also argued that 

Merrill had not moved to amend his complaint, and therefore had failed to cure the deficiencies 

identified by the district court on summary judgment.

At the close of the hearing, the district court ruled against Merrill. The district court 

repeated that this was a declaratory judgment cause of action under Idaho Code section 10-1202, 

and in order to have relief under that statute, an express contract was required. The district court 

again held that Merrill had failed to properly submit and authenticate the emails that contained the 

fee sharing agreement. Without admissible evidence, the district court concluded summary 

judgment had been properly granted against Merrill. The district court stated:

The Court believes there is not a grounds (sic) under these procedural 

circumstances to just simply allow the filing of an amended complaint that brings 

forth a whole new cause of action as a basis for reconsideration of the order granting 

summary judgment; therefore, Plaintiff’s Motion for Reconsideration is denied.
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Merrill filed a timely appeal.

II. STANDARD OF REVIEW

“Pro se litigants are held to the same standards and rules as those represented by an 

attorney.”4 Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005) (quoting Twin Falls Cty. 

v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003)).

“This Court exercises de novo review of a grant of summary judgment[.]” AED, Inc. v. 

KDC Investments, LLC, 155 Idaho 159, 163, 307 P.3d 176, 180 (2013).

III. ANALYSIS

A. The district court erred in shifting the burden at summary judgment to Merrill.

Merrill’s original complaint alleged that attorney fees in Bliton’s cases would be split 

between Smith and Merrill, with Merrill receiving two-thirds and Smith receiving one-third. 

Merrill alleged that this agreement had been reached through “correspondence on the 

engagement.” When Smith filed for summary judgment, he argued that there was no actual contract 

between the two attorneys that finalized a fee-sharing agreement, only an attorney-client contract 

pertaining to the nature of the contingent fee arrangement. Smith maintained that it was undisputed 

that there was no written contract. Smith also argued that there was no proof of a “meeting of the 

minds” sufficient to form an oral contract. Notably absent from Smith’s submissions in support of 

his motion for summary judgment is an affidavit from Smith.5

In response to Smith’s contention, Merrill argued that there was an agreed-upon fee split 

in writing. In support of this argument Merrill attached to his brief a document containing emails 

between Smith and himself. In one, dated “May 04, 2017 7:39 AM” Merrill writes to Smith, “So, 

given the work so far and the work anticipated, I suggest a split of the contingent fee to be 2-1 in 

my favor, with flexibility on the number should things not develop as planned. Let me know on

this point.” Smith’s response, less than an hour later, reads in pertinent part: “Therefore I would 

agree to the 2:1 atty [sic] fee agreement you propose. However, if we go to trial I would want to 

split the fee evenly thereafter.” There is some further back and forth which seems to resolve the 

 

4 Both Merrill and Smith are members of their home-state Bar Associations. Merrill is a member of the Alaska Bar 

Association, and Smith is a member of the Idaho Bar Association. However, in this appeal, they are considered pro 

se (which is Latin meaning “for oneself”) because each party is self-represented. 

5 Smith cited to several admissions made by Merrill during discovery, but only to establish that Merrill did no further 

work on Bliton’s cases after Bliton terminated his relationship with Merrill. This was the only evidence Smith cited 

in support of his motion for summary judgment. 
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remaining issues and a simple “Ok” from Smith indicating he had agreed to the terms of the 

contract.6

In granting Smith’s motion for summary judgment against Merrill, the district court 

concluded that Merrill had “not submitted evidence supporting the existence of a contract with 

properly authenticated, admissible evidence[.]”

“On a motion for summary judgment, the ‘burden of proving the absence of a material fact 

rests at all times upon the moving party.’ ” Silicon Int’l Ore, LLC v. Monsanto Co., 155 Idaho 538, 

550, 314 P.3d 593, 605 (2013) (quoting Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 

(1994)). Under Rule 56, to meet this burden, a movant must support the assertion by

(A) citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits or declarations, 

stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a 

genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact.

I.R.C.P. 56(c)(1)(A)–(B).

“[I]f a party moving for summary judgment raises issues in his motion but then fails to 

provide any evidence showing a lack of any genuine issue of material fact with respect to those 

issues, the nonmoving party has no burden to respond with supporting evidence.” Thomson v. 

Idaho Ins. Agency, Inc., 126 Idaho 527, 531, 887 P.2d 1034, 1038 (1994). For example, in 

Thompson v. Pike, 122 Idaho 690, 697–98, 838 P.2d 293, 300–01 (1992), this Court reversed a 

grant of summary judgment when a defendant in a legal malpractice action failed to present any 

evidence concerning the element of breach of the standard of practice for attorneys. Although on 

appeal the parties disputed the non-movant’s showing in rebutting the movant’s assertions, this 

Court reiterated that the threshold inquiry was the movant’s evidence. “In the absence of any 

evidence presented by Pike that Pike had not breached the standard of practice, Thompson had no 

burden to respond with evidence supporting a breach of the standard of practice.” Id. In other 

words, only when the movant has properly met his burden will the burden shift to the non-movant 

 

6 The pleadings also tend to belie Smith’s assertion that an agreement between the two lawyers was never reached. In 

his Complaint, Merrill alleged: “In correspondence on the engagement it was agreed between the two counsel the 

attorney fee split between the two law firms for both cases would be in the counsel’s favor, 2-1, since I was going to 

do almost all of the work for both cases and provide most or all of the finance for the product liability suit.” In response 

to this specific pleading, Smith issued a general denial, but then wrote: “Defendant . . . affirmatively states that any 

correspondence should speak for itself.”
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to dispute the movant’s assertions and support his own. See also Aardema v. U.S. Dairy Sys., Inc., 

147 Idaho 785, 793, 215 P.3d 505, 513 (2009); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 

530–31, 887 P.2d 1034, 1037–38 (1994).

The district court erred in granting summary judgment against Merrill because Smith failed 

to meet his burden as the moving party on summary judgment. When Smith filed his motion for 

summary judgment, he alleged that it was undisputed that there was no agreement reached between 

the parties, written or oral. This bald assertion contradicted the crux of Merrill’s complaint that the 

agreement about fee sharing had been reached over the course of the email correspondence. 

However, Smith did not support this assertion by presenting evidence or by citing to any 

admissible evidence in this record. As Merrill argued in opposition to Smith’s summary judgment 

motion: “Oddly, no affidavit from Smith is included with his summary judgment motion that 

would explain the key events in the suit relating to the attorney work performed and the facts of 

the underlying suit.” Smith did not respond to this argument. In a dispute in which neither side 

produces admissible evidence regarding the discussions that took place between the two of them, 

the burden does not shift to the non-moving party. See Thompson, 122 Idaho at 697, 838 P.2d at 

300. A threshold requirement for the party seeking summary judgment is to produce admissible 

evidence if he wishes to prevail.

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Id.

Because Smith never met his burden to show the lack of a genuine issue of material fact as 

to whether there was a contract, the district court’s subsequent reliance on Shacocass was 

misplaced. See Shacocass, Inc. v. Arrington Constr. Co., 116 Idaho 460, 463, 776 P.2d 469, 472 

(Ct. App. 1989). Shacocass dealt with the record on appeal, not the record before the trial court. 

Merrill’s failure to produce admissible evidence to rebut Smith’s factual assertions was immaterial 

to the summary judgment motion unless and until Smith presented evidence disputing Merrill’s 

claims. While the district court correctly observed that Merrill failed to provide an affidavit 

authenticating the email exchange, Merrill had no obligation to do so under Idaho’s Rules of Civil 

Procedure because Smith had never cited to admissible evidence to support his argument that 

 

7 The only citation to external materials in Smith’s motion for summary judgment was for the assertion that Merrill 

had not continued to work on Bliton’s cases after he had been terminated, not whether there was an agreement between 

the two lawyers. In fact, Smith’s assertion that Merrill had ceased work on Bliton’s cases indicates Merrill had worked 

on Bliton’s cases prior to his services being terminated.
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“there had never been a meeting of the minds.”8In other words, Smith never did what was required 

of him to shift the burden to Merrill. 

On this scant record, Smith has failed to meet his burden at summary judgment, as 

unsupported factual allegations in a pleading do not constitute proof for purposes of a summary 

judgment motion. As a result, the district court erred in shifting the burden of proof to Merrill, the 

non-moving party. Whether Merrill had submitted admissible evidence in response to Smith was 

unnecessary; as the non-moving party, Merrill was not required to produce any evidence at all until

Smith met his burden, which he never did. Accordingly, we reverse the grant of summary judgment 

to Smith and vacate the judgment entered.9

IV. CONCLUSION

For the previously stated reasons, we reverse the grant of summary judgment, vacate the 

judgment entered, and remand the case for further proceedings. Costs are awarded to Merrill as 

the prevailing party on appeal.

Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER CONCUR.

 

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In addition, Merrill’s Brief in Opposition to the Defendant’s Motion for Summary Judgment contains the following 

verbiage: “The statements made in this brief that contain the personal knowledge of this counsel are true and complete 

to the best of my knowledge.” While this language does not arise to that of an affidavit, Merrill’s submission is entitled 

to more weight than it would without this vouching. In Merrill’s brief, he writes: “In this suit there was an agreed fee 

split between the two firms made in writing. The entire agreement of the two law firms is contained in the email string 

where I hired Attorney Smith as local counsel for Bliton, not as lead or equal counsel.” Merrill’s statement also 

referenced the email thread and the emails were attached to his brief. Smith has done nothing to refute this statement.

9 Because we are reversing the grant of summary judgment and remanding the case for further proceedings, we decline 

to address the additional arguments raised by Merrill on appeal.