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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

ALLEN L. WISDOM,

Plaintiff-Appellant,

v.

JANET C. MALLO, an individual; KAREN 

McMURTRIE, an individual; WILLIAM F. 

YOST, III, an individual; ALLIED 

MUTUAL INSURANCE COMPANY, an 

Iowa Mutual Insurance Company,

Defendants-Respondents.

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Docket No. 36616

IN THE MATTER OF THE ESTATE OF 

LESSIE MAY STEIL, AKA LESSIE W. 

STEIL.

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ALLEN L. WISDOM,

Plaintiff-Appellant,

v.

JANET C. MALLO, personal representative 

of the ESTATE OF LESSIE MAY STEIL, 

aka LESSIE W. STEIL,

Defendant-Respondent.

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Docket No. 36617

ALLEN L. WISDOM,

Plaintiff-Appellant,

v.

JANET C. MALLO, an individual; KAREN 

McMURTRIE, an individual; WILLIAM F. 

YOST, III, an individual; ALLIED 

MUTUAL INSURANCE COMPANY, an 

Iowa Mutual Insurance Company,

Defendants-Respondents.

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Docket No. 36976

2010 Unpublished Opinion No. 667

Filed: October 14, 2010

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY
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Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. Thomas J. Ryan, District Judge. 

Judgment dismissing tort action and order for submission of will to probate, 

affirmed.

Allen L. Wisdom, Idaho City, pro se appellant. 

Terry Michaelson of Hamilton, Michaelson & Hilty, LLP, Nampa, for 

respondents. 

________________________________________________

LANSING, Chief Judge

In this consolidated appeal, Allen L. Wisdom challenges the dismissal of his tort claims 

against William Yost, Janet Mallo, Karen McMurtrie, and Allied Mutual Insurance Company, 

and the order submitting his mother‟s will to probate. Wisdom asserts the district court made 

multiple errors. We affirm. 

I.

BACKGROUND

These consolidated cases arise out of a dispute concerning the disposition of the estate of 

Wisdom‟s mother, Lessie May Steil. From 2004 to 2005, Steil executed three different wills, 

which were drafted and notarized by her attorney, Defendant William Yost. Steil‟s last will 

revoked all previously made wills and trusts, appointed Defendant Janet Mallo as the personal 

representative of the estate, and appointed Defendant Karen McMurtrie as the alternate personal 

representative. Mallo, in her capacity as personal representative of Steil‟s estate, filed a petition 

for formal probate of this will after Steil‟s death. Wisdom filed an objection in the probate case, 

challenging the validity of the will and requesting the appointment of a disinterested personal 

representative. The magistrate court ultimately entered an order admitting the will to probate 

and appointing Mallo as the personal representative. Wisdom appealed the magistrate court‟s 

decision to the district court.

While the probate case was pending in the magistrate court, Wisdom filed a separate tort 

action in the district court naming Yost, Mallo, McMurtrie, and Allied Mutual Insurance 

Company (Allied Mutual) as defendants (collectively referred to as Defendants). Wisdom 

alleged that the Defendants were liable for civil conspiracy, breach of fiduciary duty, tortious 
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interference with economic expectancy, undue influence, and fraud. Additionally, Wisdom 

asserted a claim against Yost for legal malpractice and against Yost and his surety, Allied 

Mutual, for breach of the Idaho Notary Public Act. Upon Wisdom‟s appeal to the district court 

in the probate case, the district court decided to hear the probate appeal as a trial de novo and 

consolidated the tort action with the probate appeal.

1

 The district court conducted a bench trial 

despite Wisdom‟s request for a jury. 

Before trial, Wisdom moved for defaults against Defendants in the tort case for failure to 

timely file responsive pleadings. Defendants filed motions to dismiss or, alternatively, motions 

for summary judgment. The court denied Wisdom‟s application for defaults and granted 

summary judgment for Defendants on Wisdom‟s tort claims for undue influence and fraud 

because the court determined that they were duplicative of Wisdom‟s claims in the probate case. 

The court also granted summary judgment on Wisdom‟s civil conspiracy and tortious 

interference with economic expectancy claims because Idaho does not recognize causes of action 

for civil conspiracy or for attempted interference with an inheritance. Yost was granted 

summary judgment on Wisdom‟s legal malpractice and breach of fiduciary duty claims on the 

ground that Yost did not owe Wisdom a fiduciary duty. Mallo and McMurtrie were granted 

partial summary judgment on Wisdom‟s breach of fiduciary duty claim. The court determined 

that transactions conducted after the appointment of the personal representative should be heard 

in the probate action and granted summary judgment in the tort case with regard to those 

transactions. However, the court concluded that to the extent Wisdom was making claims 

regarding sales of Steil‟s property or other transactions that Mallo and McMurtrie conducted 

under a power of attorney while Steil was still living, the claims would remain in the tort action. 

Finally, the court dismissed Wisdom‟s breach of the Idaho Notary Public Act claim against Yost 

in the tort action for failure to plead fraud with particularity and dismissed all claims against 

Allied Mutual because Allied Mutual‟s only connection to the suit was as surety for Yost, who 

had been dismissed. In sum, the court dismissed all tort claims against Yost and Allied Mutual 

and granted summary judgment on all claims against Mallo and McMurtrie except for the breach 

of fiduciary duty prior to Steil‟s death. 

 

1 Whether a de novo trial was authorized under the circumstances of this case is not an 

issue raised by the parties.
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After these dismissals and partial summary judgments, Wisdom filed motions to enter 

defaults against Yost, Mallo, and McMurtrie; compel discovery; vacate the scheduling order; and 

postpone the trial. Wisdom argued that tort claims still existed against Yost, Mallo, and 

McMurtrie and that they were in default for failing to file an answer to the remaining claims 

against them. Wisdom also argued that Defendants had not responded to his discovery requests,

making it impossible for him to be prepared for trial. Defendants asserted that they had made 

available to Wisdom all the requested information they possessed. The court never ruled on 

Wisdom‟s motion for defaults. Wisdom‟s other motions were denied, and the consolidated cases 

proceeded to trial on May 19, 2009. On that date Wisdom continued to maintain that he was not 

prepared for trial, and he did not proffer evidence to support his claims. The extent of his 

participation at trial was to cross-examine some of Defendants‟ witnesses and make some 

objections. Thereafter, the court entered an order admitting Steil‟s will to probate and appointing 

Mallo as personal representative and a judgment dismissing Wisdom‟s remaining breach of 

fiduciary duty claims against Mallo and McMurtrie.

On appeal, Wisdom argues that the district court erred by not granting his requests for 

entry of defaults, granting partial summary judgments to Mallo and McMurtrie, “transferring” 

tort causes of action to the probate case “and later causing the transferred causes of action to 

disappear,” refusing to order Mallo and McMurtrie to file an answer, granting summary 

judgment to Yost, dismissing Allied Mutual, denying Wisdom the opportunity to participate in 

scheduling, conducting a bench trial instead of a jury trial, denying Wisdom the opportunity to 

conduct discovery, declining to continue the trial, refusing to hear Wisdom‟s motion for the 

appointment of a special administrator, allowing irregularities at trial, admitting Steil‟s last will 

and testament to probate, appointing a conflicted personal representative, and awarding attorney 

fees to Defendants. Wisdom also claims these various errors violated his due process rights. 

Many of Wisdom‟s claims on appeal are so interrelated that we have re-organized and combined 

them for ease and clarity of discussion.
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II.

DISCUSSION

A. Did the District Court Err in Not Granting Wisdom’s Requests for Entry of 

Defaults?

Having been personally served with Wisdom‟s tort complaint on November 13, 2008, 

Yost, McMurtrie, and Allied Mutual were required to file responsive pleadings on or before 

December 3, 2008. Idaho Rule of Civil Procedure 12(a). Mallo was personally served on 

November 17, 2008, and was required to file a responsive pleading on or before December 7, 

2008. Id. A notice of appearance was filed on November 18, 2008, for Mallo and McMurtrie,

and on November 24, 2008, for Yost and Allied Mutual. On December 4, 2008, Allied Mutual 

filed an I.R.C.P. 12(b)(6) motion to dismiss. Then on December 11, 2008, Wisdom filed a 

motion for entry of defaults against the Defendants and served the motion upon them by mail. 

On December 15, 2008, Yost, Mallo, and McMurtrie filed an I.R.C.P. 12(b)(6) motion to dismiss 

or, alternatively, for summary judgment. Wisdom then sought to “strike” the motions to dismiss 

as untimely because they were not filed within twenty days after service of Wisdom‟s complaint. 

The district court denied Wisdom‟s application for entry of default because default “would not 

be in the interests of justice” and also stated that it would entertain the motions to dismiss 

because Wisdom did not indicate any prejudice that may result from the court considering the 

motions to dismiss on the merits. On February 3, 2009, the district court granted summary 

judgment to Yost, granted partial summary judgment to McMurtrie and Mallo, and dismissed 

Wisdom‟s claims against Allied Mutual. 

On March 3, 2009, Wisdom filed another motion for default against Yost, Mallo, and 

McMurtrie in the tort case. Wisdom argued that because the district court appeared to have 

“transferred” his causes of action against these three to the probate case, they were still required 

to file an answer to the claims in his tort action within ten days of the court‟s summary judgment 

decision pursuant to I.R.C.P. 12(a). Additionally, he pointed out, Mallo and McMurtrie were 

required to file an answer to the surviving claims in the tort action. As none of the defendants 

had filed an answer within ten days, Wisdom argued that defaults should be entered against 

them. Yost, Mallo, and McMurtrie never responded to this motion, and it does not appear from 

the record that the district court ever ruled on it. On appeal, Wisdom argues that the district 

court abused its discretion by not granting Wisdom‟s motions for defaults because I.R.C.P 12(a) 

and (b) required entry of defaults against Defendants on both occasions.
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A defendant generally has twenty days after service of the summons to file a responsive 

pleading in the action. I.R.C.P. 12(a). However,

[t]he service of a motion permitted under this rule alters these periods of time as 

follows, unless a different time is fixed by order of the court: (1) if the court 

denies the motion or postpones its disposition until the trial on the merits, the 

responsive pleading shall be served within ten (10) days after notice of the court‟s 

action . . . .

Id. If a party fails to plead or “otherwise defend as provided by these rules” the court may enter 

a default against the party. I.R.C.P. 55(a)(1). However, default cannot be entered against a party 

who has appeared in the action unless that party was served with three days written notice of the 

application for entry of default. I.R.C.P. 55(a)(1). Furthermore, if 

a party has the right or is required to do some act or take some proceedings within 

a prescribed period after the service of a notice or other paper upon the party and 

the notice or paper is served upon the party by mail, three (3) days shall be added 

to the prescribed period.

I.R.C.P. 6(e)(1). Therefore, upon service of a motion for entry of default, a party who has 

entered an appearance may take action to defend, and thereby prevent entry of a default, within 

six days pursuant to I.R.C.P. 6(e)(1) if the party was served notice by mail. Where a party has 

entered a notice of appearance and moved for the dismissal of the action or for summary 

judgment, though the motion be made outside the I.R.C.P. 12(a) twenty-day time period, entry of 

default judgment against that party is properly denied. Conley v. Looney, 117 Idaho 627, 629, 

790 P.2d 920, 922 (Ct. App. 1989). Although Conley was addressing default judgment, it is 

instructive to a default analysis as well.

It is thus apparent that the district court did not err in denying Wisdom‟s first application 

for entry of default. Allied Mutual had filed a notice of appearance and moved for dismissal, 

though the dismissal motion was made one day outside the twenty-day deadline, before 

Wisdom‟s application for entry of default. It therefore had not “failed to plead or otherwise 

defend” when Wisdom‟s motion for default was filed. Although Wisdom did apply for default 

against Yost, Mallo, and McMurtrie before they filed motions to dismiss, distinguishing Conley, 

the court could properly deny a default against them. The motion for default was served by mail 

on December 11, 2008, so these Defendants were entitled to take action through December 17. 

Two days before this deadline, Yost, Mallo, and McMurtrie filed their motions to dismiss. 

Therefore, these parties filed a notice of appearance and moved for dismissal before a default 
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could issue. It follows that the district court correctly denied Wisdom‟s first application for 

default against Yost, Mallo, and McMurtrie.

Wisdom‟s second motion for default against Mallo and McMurtrie is more problematic. 

Although Wisdom is incorrect in asserting that Yost, Mallo, and McMurtrie were required to 

respond to the claims that were dismissed on summary judgment and therefore no longer existed 

in the tort action, there remained Wisdom‟s breach of fiduciary duty claim against Mallo and 

McMurtrie that survived summary judgment. They never filed an answer to this claim. 

Nevertheless, we find no reversible error in the district court‟s failure to rule on Wisdom‟s 

second motion for default. An error is prejudicial only if it could have affected or did affect the 

outcome of a proceeding. Wohrle v. Kootenai County, 147 Idaho 267, 272, 207 P.3d 998, 1003 

(2009); Crown Point Dev., Inc. v. City of Sun Valley, 144 Idaho 72, 77, 156 P.3d 573, 578 

(2007). See also In re Estate of Keeven, 126 Idaho 290, 296, 882 P.2d 457, 463 (Ct. App. 1994) 

(“This Court will not grant relief for what is, at most, harmless error.”). It is apparent that 

Wisdom was not prejudiced by the court‟s failure to act on his application for default. By the 

time his second application was filed, it was clear that Mallo and McMurtrie were actively 

participating in the litigation and vigorously defending against Wisdom‟s tort claims. As is 

explained in more detail below, Wisdom received a trial on the merits in which he had a full 

opportunity to present any evidence to support his claim of breach of fiduciary duty by Mallo 

and McMurtrie, but he failed to do so. Nothing in the record suggests that the district court‟s 

decision dismissing these claims after a full trial on the merits was based upon some affirmative 

defense of which Wisdom lacked notice or other factor that could have been affected by Mallo‟s 

and McMurtrie‟s failure to file an answer to this claim. 

Even if Wisdom was entitled to a default against Mallo and McMurtrie, he would not 

have been assured of obtaining a default judgment against them without evidence to prove his 

claim, particularly where they had already appeared and contested his claims. I.R.C.P. 55(b)(2) 

(“If, in order to enable the court to enter judgment or carry it into effect, it is necessary to take an 

account or to determine the amount of damages or to establish the truth of any averment by 

evidence or to make an investigation of any other matter, the court may conduct such hearings or 

order such references as it deems necessary and proper.”); Olson v. Kirkham, 111 Idaho 34, 38, 

720 P.2d 217, 220 (Ct. App. 1986) (holding that a court may exercise its discretion in 

determining whether additional evidence is necessary on application for a default judgment). 
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Finally, even if Wisdom could have demonstrated some breach of fiduciary duty by Mallo and 

McMurtrie as attorneys-in-fact for Steil prior to initiation of the probate proceedings, he could 

not have demonstrated any damages. This is so because the estate‟s value at the time of the trial 

was between $300,000 and $500,000, and Wisdom‟s share under the will was $5,000; therefore, 

any breach of fiduciary duty by Mallo and McMurtrie did not affect Wisdom‟s inheritance. For 

all of these reasons, the district court‟s error in failing to act on Wisdom‟s second application for 

a default against Mallo and McMurtrie was harmless. 

B. Did the District Court Err in Granting Summary Judgment to Yost, Granting 

Partial Summary Judgment to Mallo and McMurtrie, and Dismissing Wisdom’s 

Action Against Allied Mutual?

Summary judgment under I.R.C.P. 56(c) is proper only when there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law. On appeal, we 

exercise free review in determining whether a genuine issue of material fact exists and whether 

the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 

Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a motion for summary 

judgment, all controverted facts are to be liberally construed in favor of the nonmoving party and 

all reasonable inferences are drawn in favor of the party resisting the motion. G & M Farms v. 

Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint 

School Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994). 

The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c), 

which is identical in all relevant aspects to I.R.C.P. 56(c), stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary 

judgment, after adequate time for discovery and upon motion, against a party who 

fails to make a showing sufficient to establish the existence of an element 

essential to that party‟s case, and on which that party will bear the burden of proof 

at trial. In such a situation, there can be “no genuine issue as to any material 

fact,” since a complete failure of proof concerning an essential element of the 

nonmoving party‟s case necessarily renders all other facts immaterial. The 

moving party is “entitled to judgment as a matter of law” because the nonmoving 

party has failed to make a sufficient showing on an essential element of her case 

with respect to which she has the burden of proof. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and 

reasoning of Celotex has been adopted in Idaho. Dunnick v. Elder, 126 Idaho 308, 312, 882 P.2d 

475, 479 (Ct. App. 1994). 
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We will affirm a trial court‟s grant of an I.R.C.P. 12(b)(6) motion where the record 

demonstrates that there are no genuine issues of material fact and the case can be decided as a 

matter of law. Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 398, 987 P.2d 300, 310 

(1999). The issue is not whether the plaintiff will ultimately prevail, but whether the party is 

entitled to offer evidence to support the claims. Orthman v. Idaho Power Co., 126 Idaho 960, 

962, 895 P.2d 561, 563 (1995).

Wisdom makes some arguments that apply equally to Yost‟s, Mallo‟s, and McMurtrie‟s 

summary judgments, and Allied Mutual‟s dismissal. First, Wisdom argues that the summary 

judgments and the dismissal were improper because the district court did not allow discovery 

first. As discussed in more detail in Section C below, Wisdom‟s argument fails as the record 

establishes Wisdom was given ample opportunity to conduct discovery. 

Wisdom next asserts that the district court erred in “transferring” certain causes of action 

from the tort case to the probate case and then granting summary judgment on the causes of

action in the tort case when they “still existed” in the probate case. Wisdom asserts that these 

claims should have been heard in the tort case and not in the probate case because as probate 

claims, Wisdom‟s remedies were limited. Wisdom argues this “procedural nightmare” violates 

the Idaho Rules of Civil Procedure, his right to due process, and is not supported by I.C. § 15-3-

407. Wisdom also argues that on several claims, the district court improperly based its rulings 

on issues not raised by the Defendants, but by the court itself. We need not address these 

arguments because we find Wisdom suffered no prejudice from the district court‟s disposition of 

these claims, as Wisdom failed to prove in the consolidated action that he had a factual basis to 

bring them. As stated above, an error is prejudicial only if it could have affected or did affect the 

outcome of a proceeding. Wohrle, 147 Idaho at 272, 207 P.3d at 1003; Keeven, 126 Idaho at

296, 882 P.2d at 463 (“This Court will not grant relief for what is, at most, harmless error.”). At 

trial the Defendants and three other witnesses testified that the decedent was competent at the 

time the will was signed and that there was no factual support for Wisdom‟s claims. Wisdom 

failed to produce any witnesses or elicit any evidence on cross-examination in support of his 

contentions that Steil had been incompetent or that any of the Defendants had exercised undue 

influence over her or otherwise engaged in misconduct. Although Wisdom attributes this to a 

lack of discovery, as explained in more detail below, Wisdom was allowed adequate opportunity 

to conduct discovery before trial. Therefore, because Wisdom could not produce any factual 
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support for these claims regardless of which case they were tried in, any error in the district 

court‟s “transfer” of some tort claims to the probate case was harmless. 

1. Summary judgment for Yost

Wisdom also asserts errors specific to the dismissal of the claims against Yost and Allied 

Mutual. Wisdom argues that the court‟s original memorandum decision did not mention certain 

claims being dismissed as to Yost. Those claims were civil conspiracy, tortious interference with 

economic expectancy, undue influence, fraud, and breach of fiduciary duty. According to 

Wisdom, these claims simply “disappeared” from all further proceedings. Wisdom argues this 

was error because by not addressing the claims but nevertheless dismissing them, the trial court 

clearly could not be said to have applied the summary judgment standards of law to those claims. 

This argument lacks any factual basis, for the district court did grant summary judgment on all of 

the causes of action against Yost in its memorandum decision, but allowed some of the same 

allegations of misconduct to be litigated in the trial de novo of the probate appeal. Wisdom‟s 

argument on appeal fails because it is predicated upon an inaccurate description of the district 

court‟s action on Yost‟s motion for summary judgment. 

Wisdom also argues that the district court erred in concluding that he was required to 

plead his Idaho Notary Act claim with particularity because not all the conduct prohibited by I.C. 

§ 51-112 requires fraud and Wisdom pled negligence, a ground specifically enumerated in I.C. 

§ 51-112.2 Again, Wisdom‟s argument fails for lack of factual support. He did not plead a 

negligence claim in his complaint but specifically alleged that Yost engaged in fraudulent 

conduct. Because Wisdom‟s complaint alleged fraud, not the I.C. § 51-112 “official 

misconduct” language as Wisdom contends, the district court properly held that the claim was 

subject to dismissal because it was not pleaded with particularity as required by I.R.C.P. 9(b). 

Wisdom next argues that even if he was required to plead his Idaho Notary Act claim 

with particularity, the district court erred in dismissing the claim without giving Wisdom a 

chance to amend his complaint. As Wisdom cites no authority for this proposition, he waives the 

issue on appeal. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997) 

(holding that a party waives an issue on appeal if either argument or authority is lacking). We 

 

2 Wisdom also asserts these errors regarding his Idaho Notary Act claim against Allied 

Mutual. Because we address it in this section, we do not repeat our analysis in the next section 

concerning arguments against Allied Mutual‟s dismissal.
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also note that Wisdom never filed a motion to amend his complaint, so he could not have been 

denied that opportunity by the district court. 

 Wisdom next contends that the district court erred in granting summary judgment on his 

legal malpractice claim because, under Harrigfeld v. Hancock, 140 Idaho 134, 138, 90 P.3d 884, 

888 (2004), Yost owed a fiduciary duty to Wisdom when he was employed by Steil to draft her 

will. Generally, an attorney can be held liable for legal malpractice only to his or her client. 

Harrigfeld, 140 Idaho at 137, 90 P.3d at 887; Estate of Becker v. Callahan, 140 Idaho 522, 526, 

96 P.3d 623, 627 (2004). Nevertheless, 

an attorney preparing testamentary instruments owes a duty to the beneficiaries 

named or identified therein to prepare such instruments, and if requested by the 

testator, to have them properly executed, so as to effectuate the testator‟s intent as 

expressed in the testamentary instruments. If, as a proximate result of the 

attorney‟s professional negligence, the testator‟s intent as expressed in the 

testamentary instruments is frustrated in whole or in part and the beneficiary‟s 

interest in the estate is either lost, diminished, or unrealized, the attorney would be 

liable to the beneficiary harmed. 

Harrigfeld, 140 Idaho at 138, 90 P.3d at 888. As this quote makes clear, the attorney‟s duty is to 

prepare testamentary instruments that effectuate the testator‟s intent; an attorney has no duty to 

see that the testator distributes his or her property among the named beneficiaries in any 

particular manner. Id. Therefore, the extension of an attorney‟s duty to named beneficiaries 

does not “subject attorneys to lawsuits by persons who simply did not receive what they believed 

was their fair share of the testator‟s estate.” Id. at 139, 90 P.3d at 889.

In this case, though Wisdom is a named beneficiary in Steil‟s testamentary instrument, 

the trial court was correct in holding that Wisdom has presented no issue of material fact that 

would subject Yost to a valid malpractice claim, for Wisdom did not assert that some error by 

Yost in drafting the instrument caused Wisdom to not receive what Steil intended him to receive. 

Rather, Wisdom asserted that Yost should not have drafted the will or allowed it to be executed 

because of Steil‟s legal incompetence and the undue influence being exerted upon Steil. As 

Harrigfeld held, the duty of a lawyer to the named beneficiaries of his or her client‟s 

testamentary instrument does not extend to such claims. Wisdom made no averment that Yost 

did not fulfill his duty to the named beneficiaries by giving effect to Steil‟s intent as expressed in 

her will. Therefore, summary judgment on Wisdom‟s legal malpractice claim against Yost was 

appropriate.
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2. Allied Mutual’s 12(b)(6) motion to dismiss

Wisdom argues that the district court erred in dismissing Allied Mutual because it 

improperly granted summary judgment to Yost on three counts. Wisdom maintains that Allied 

Mutual can be sued directly because it is not an “insurance company” but a “surety”; and 

because Yost is liable for wrongful conduct, Wisdom can directly sue Allied Mutual, as Yost‟s 

surety, for such liability. Wisdom further asserts that the court improperly dismissed his claim 

against Allied Mutual on a ground different from that asserted by Allied Mutual in its motion to 

dismiss. 

Wisdom‟s contention that the district court improperly dismissed Allied Mutual on a 

ground different than that raised in Allied Mutual‟s motion, even if true, does not entitle him to 

relief on appeal. If a trial court‟s decision is predicated upon an incorrect theory, it may be 

affirmed on appeal on the correct theory. BECO Constr. Co., Inc. v. J-U-B Eng’rs, Inc., 145 

Idaho 719, 724, 184 P.3d 844, 849 (2008); J.R. Simplot Co., Inc. v. Idaho State Tax Comn’n, 120 

Idaho 349, 853, 820 P.2d 1206, 1210 (1991). Here, Allied Mutual sought dismissal of Wisdom‟s 

claim against it on the ground that, even if Allied Mutual were ultimately obligated to pay any 

damages awarded to Wisdom against Yost, “a third party may not directly sue an insurance 

company in an attempt to obtain the coverage allegedly due the insurer‟s policy holder.” Allied 

Mutual‟s contention was correct, and it was entitled to dismissal of Wisdom‟s claim on this 

basis. See Graham v. State Farm Mut. Auto Ins. Co., 138 Idaho 611, 613-14, 67 P.3d 90, 92-93

(2003); Stonewall Surplus Lines Ins. Co. v. Farmers Ins. Co. of Idaho, 132 Idaho 318, 321-22, 

971 P.2d 1142, 1145-46 (1998). As the Idaho Supreme Court stated in Pocatello Ind. Park Co. 

v. Steel West, Inc., 101 Idaho 783, 791, 621 P.2d 399, 407 (1980): “It is well established that 

absent a contractual or statutory provision authorizing the action, an insurance carrier cannot be 

sued directly and cannot be joined as a party defendant. . . . We are aware of no direct action 

statute in Idaho.” Accordingly, the district court‟s order dismissing Wisdom‟s claims against 

Allied was correct, even if predicated on a theory that should not have been raised sua sponte.

C. Did the District Court Err in Denying Discovery and in Denying Wisdom’s Requests 

to Continue the Trial?

Wisdom asserts that the district court abused its discretion by not issuing an order 

compelling Defendants to respond to his discovery requests and that the district court should 

have continued the trial because Wisdom was unable to complete discovery. We review a trial 

court‟s decision to grant or deny a motion to compel discovery for a clear abuse of discretion. 
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Villa Highlands, LLC v. Western Comty. Ins. Co., 148 Idaho 598, 609, 226 P.3d 540, 551 (2010); 

Sirius LC v. Erickson, 144 Idaho 38, 43, 156 P.3d 539, 544 (2007). 

The record here does not show that Wisdom was denied discovery or that the district 

court failed to compel discovery within a sufficient timeframe to allow Wisdom to prepare for 

trial. In the six months that passed from the initiation of Wisdom‟s tort action until the trial, he 

had ample time to independently interview witnesses and gather relevant information from third 

parties. The court took steps to aid Wisdom in conducting his own investigation by ensuring that 

he received a confidentiality waiver from the personal representative so Wisdom could acquire 

the decedent‟s medical information concerning her competence. Wisdom was also on notice of 

the Defendants‟ potential trial witnesses as early as four months prior to trial and could have 

interviewed them. However, Wisdom apparently did not conduct an independent investigation;

rather, he contended that Defendants possessed all the information he needed to support his 

claims and refused to take steps other than asking the court to order Defendants to turn over 

information that they repeatedly represented they did not possess. This is illustrated in the 

following exchange:

THE COURT: And I‟m not in a position to give you any legal advice, but 

I would think you would want to conduct your own investigation given the 

authorizations to obtain medical information. And if I were you I would start that 

tomorrow.

WISDOM: Well, I will. I don‟t have but one doctor‟s name, and I need 

other medical providers‟ names, and they have all the records.

MICHAELSON: We don‟t. We gave you what we had.

WISDOM: They have all of my mother‟s records from before she moved 

to Idaho and while she lived in Idaho.

THE COURT: Well, you say that, but what information do you have that 

would lead the court to believe that what Mr. Michaelson is representing is 

untrue?

WISDOM: I say that they have possession of the records, and the 

information is in the records.

THE COURT: I hear you say that, and they tell me that they don‟t. How 

am I going to referee that?

WISDOM: Discovery.

THE COURT: You need to provide some evidence that they do have this 

information.

WISDOM: Order the discovery.

THE COURT: Okay. And, Mr. Michaelson, what‟s your position on 

that?

MICHAELSON: The discovery would be we don‟t have this. . . . I mean, 

that‟s not the kind of stuff that we would have or we would have access to. 
14

. . . .

. . . I disclosed ten witnesses and that doesn‟t even count the medical 

records people.

This exchange took place two months after the court insured that Wisdom would receive a 

confidentiality waiver so he could gather the decedent‟s medical records himself. As this 

discussion shows, Wisdom squandered these two months that could have been used to conduct 

an investigation; instead he sought to force Defendants to give him information that they 

repeatedly denied possessing. 

Wisdom also received discovery responses, including names of witnesses, names of 

nonwitnesses with relevant information, and 800 pages of medical and legal documentation. His 

complaint that he was unable to obtain responses is frivolous. For example, in response to one of 

Wisdom‟s interrogatory questions as to whether, when, where, in whose presence, and with what 

detail Mallo had ever discussed decedent‟s relationship with Wisdom, Mallo answered:

Yes. Defendant discussed Decedent‟s relationship with the Plaintiff on almost 

every occasion she visited with Decedent or talked with her telephonically. These 

discussions took place in Boise, McCall, and in Arizona. Decedent would 

question what she had done to make Plaintiff hate her. Decedent stated that she 

would ask Plaintiff what she had done. Decedent stated that Plaintiff said that she 

knew what she had done to him. Decedent was upset and troubled by the fact that 

the Plaintiff had little to do with her. No record was kept of the times and dates of

the conversations.

Wisdom challenged this answer as nonresponsive because “defendant admits to „discussions‟ but 

identifies only one discussion.” Mallo‟s response was detailed and complete; her inability to 

detail precisely what comments were made on specific dates is understandable, as people 

normally do not write down the dates of discussions with close family members and friends and 

take notes. Wisdom‟s complaint that this answer is insufficient is frivolous and is generally 

representative of his complaints regarding other discovery answers he received. 

Wisdom‟s contention that he was denied discovery is disproven by the record, and his 

argument that the district court should have continued the trial because of Wisdom‟s lack of 

access to discovery is without merit. 
15

D. Did the District Court Err in Creating Scheduling Orders Without Wisdom’s 

Input?

Wisdom argues that the district court erred in creating scheduling orders without 

consulting Wisdom in violation of I.R.C.P. 16(b) which states, “Except in cases exempted by 

order of the court as inappropriate, the judge or magistrate shall, after consulting with the 

attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, 

mail or other suitable means, enter a scheduling order.” (Emphasis added.) 

On appeal a trial court‟s fashioning of a pretrial scheduling order for efficient case 

management will be reviewed for an abuse of discretion. Peterson v. McCawley, 135 Idaho 282, 

284, 16 P.3d 958, 960 (Ct. App. 2000); Fish Haven Resort, Inc. v. Arnold, 121 Idaho 118, 121, 

822 P.2d 1015, 1018 (Ct. App. 1991). 

Wisdom‟s opening brief takes issue under this heading with many trial court actions that 

have nothing to do with scheduling. Such issues, including lack of opportunity to engage in 

discovery, are addressed elsewhere. After parsing out the irrelevant factual recitations 

concerning those issues, it appears that Wisdom asserts error in the scheduling of trial for 

May 19, 2009; the court‟s April 3, 2009, scheduling order; and the court‟s April 13, 2009,

amended scheduling order. Wisdom‟s arguments are unfounded. He was consulted regarding 

scheduling the trial at a March 19, 2009, hearing. After a discussion concerning discovery, 

Wisdom told the court that he could be ready for trial beginning May 19, 2009. The April 3, 

2009, scheduling order was just a written summary of what had been agreed to at the hearing. 

Wisdom‟s arguments to the contrary are groundless. 

The amended scheduling order entered April 13, 2009, was in direct response to 

Wisdom‟s motions for reconsideration. The district court concluded that the liability issues in 

Wisdom‟s tort action and his allegations of undue influence, fraud, and other misconduct in the 

probate proceeding should be severed from the issue of damages in his tort action and directed 

that the already-scheduled trial would address only the probate and tort liability issues. The 

court reasoned that including evidence concerning damages would unduly complicate the trial

and that the damages issue would be moot if Wisdom did not prevail on liability issues. Wisdom 

does not take issue with the scheduling of the trial date itself; he takes issue with the court 

severing the liability issues from the issue of damages. However, a trial court may sever trials to 

prevent delay, I.R.C.P. 20(b), and Wisdom has shown no abuse of the trial court‟s discretion in 

this regard. 
16

E. Did the District Court Deny Wisdom’s Statutory and Constitutional Right to a Jury 

Trial?

Wisdom argues that because his claims were not equitable but legal, the district court‟s 

denial of his request for a jury trial violated I.C. §§ 15-8-210, 15-1-306 and violated Wisdom‟s 

constitutional rights. We conclude that even if an error occurred, it was harmless.

Error in denying a litigant a jury trial can be harmless error if it is apparent following a 

court trial that no reasonable jury could have found for that litigant upon the evidence provided 

to the trial court. Dustin v. Beckstrand, 103 Idaho 780, 786, 654 P.2d 368, 374 (1982) 

(erroneous denial of jury trial was not reversible error because, where defendants did not 

participate in the court trial, if a jury trial had been conducted the court would have been required 

to direct a verdict for the plaintiff). See also California Scents v. Surco Prods., Inc., 406 F.3d 

1102, 1109 (9th Cir. 2005); United States v. California Mobile Home Park Mgmt Co., 107 F.3d 

1374, 1380 (9th Cir. 1997). See also Pickens v. Soo Line R.R. Co., 264 F.3d 773, 779 (8th Cir. 

2001) (holding that denial of jury trial was harmless error); Brown v. Sandimo Materials, 250 

F.3d 120, 127 (2d Cir. 2001) (reviewing denial of a jury trial for harmless error); Segrets, Inc. v. 

Gillman Knitwear Co., Inc., 207 F.3d 56, 64 (1st Cir. 2000) (holding that denial of a jury trial is 

harmless error if the evidence produced meets the standard for a directed verdict); Sims v. 

Fitzpatrick, 288 S.W.3d 93, 102 (Tex. App. 2009) (reviewing denial of a jury trial for harmless 

error). As explained above, Wisdom presented not a scintilla of evidence to support any of his 

tort claims or his objections to the appointment of the personal representative or probate of 

Steil‟s will. Therefore, no reasonable jury could have found in his favor and any error in the 

denial of a jury trial was harmless at best.

F. Did the District Court Err in Refusing to Hear Wisdom’s Petition for the 

Appointment of a Special Administrator?

Wisdom next asserts that the district court erred in denying oral argument on his motion 

for the appointment of a special administrator and in not ruling on the motion. Wisdom asserts 

that this was an abuse of discretion because Mallo, the personal representative appointed by the 

court, was using estate assets for personal use, and therefore a special administrator was required 

to protect the estate.

We review the decision to deny oral argument on a motion for an abuse of discretion. 

I.R.C.P. 7(b)(3)(D); Lamm v. State, 143 Idaho 763, 766, 152 P.3d 634, 637 (Ct. App. 2006). 
17

Oral argument is not required; a trial court may limit or deny such argument. Id. Wisdom has 

not shown an abuse of discretion in the denial of oral argument on his motion. 

It is not appropriate, of course, for a trial court to fail to rule on a motion at all. See, e.g., 

Montgomery v. Montgomery, 147 Idaho 1, 6, 205 P.3d 650, 655 (2009) (stating that “trial courts 

must determine the admissibility of evidence as a „threshold question‟ to be answered before 

addressing the merits of motions for summary judgment” and therefore a district court‟s failure 

to rule on evidentiary issues before deciding motions for summary judgment is an abuse of 

discretion). However, any error in this regard does not require reversal here because it was 

harmless. Keeven, 126 Idaho at 296, 882 P.2d at 463. Wisdom was to receive $5,000 as a 

beneficiary under the will. An accounting of the estate at the time of trial showed its value in 

excess of $300,000. As Wisdom‟s only interest in the estate was unharmed, he cannot show 

prejudice from the court‟s omission to decide (or grant) his motion to appoint a special 

administrator. Therefore, no reversible error is demonstrated.

G. Did the District Court Err in Allowing Irregularities at Trial?

Apart from issues that we have already addressed, Wisdom‟s only argument concerning 

“irregularities” at trial is his contention that the district court did not have “any substantive 

evidence” to support its findings and conclusions following the bench trial. He contends that the 

Defendants never presented “proof of venue” or proof that Steil actually died. The absurdity of 

this argument is apparent from Wisdom‟s own pleadings. He never contested the venue of the 

probate proceeding, and as plaintiff in the tort action, he selected the venue himself. Further, 

Wisdom‟s own objection to the petition for formal probate and his complaint in the tort action 

specifically alleged that Steil was deceased. Neither venue nor the fact of Steil‟s death was a 

contested issue in the consolidated action, and the Defendants were not required to prove facts 

that Wisdom had admitted in his own pleadings.

Next Wisdom argues that the Defendants comprised most of the witnesses, and therefore, 

as interested parties their testimony was not credible. It is the province of the trial court to 

determine the credibility of witnesses, the weight to be given their testimony, and the inferences 

to be drawn from the evidence. Triad Leasing & Fin., Inc. v. Rocky Mountain Rogues, Inc., 148 

Idaho 503, 514, 224 P.3d 1092, 1103 (2009); KMST, LLC v. County of Ada, 138 Idaho 577, 581, 

67 P.3d 56, 60 (2003). Moreover, not all the witnesses were the Defendants; their testimony was 

supported by disinterested parties. The Defendants produced nontestimonial evidence to support 
18

their case as well. Wisdom, on the other hand, produced absolutely no evidence supporting his 

case. Therefore, the trial court had ample “substantive evidence” to support its credibility 

determinations and inferences drawn from the evidence. 

H. Did the District Court Err in Admitting the Purported Last Will and Testament to 

Probate, Appointing a Conflicted Personal Representative and Issuing Letters 

Testamentary?

Wisdom lists as an issue in his appellant‟s brief, “Did the district court err in admitting 

the purported Last Will and Testament to probate, appointing a conflicted personal representative 

and issuing letters testamentary?” He does not, however, address the issue with any separate 

argument and authority apart from the contentions already addressed by this Court. Thus, this 

Court will not address it further. 

I. Did the District Court Err in Awarding Attorney Fees to Any Party?

The district court awarded attorney fees to the Defendants on the ground that Wisdom‟s 

objections to the petition for formal probate and his tort claims were frivolous and without 

foundation. Wisdom argues that this was error because the Defendants were not prevailing 

parties and Wisdom‟s objection in the probate case and claims in the tort case were not brought 

frivolously.3

A court may award attorney fees to the prevailing party pursuant to I.C. § 12-121 when it 

finds that the case was brought, pursued, or defended frivolously, unreasonably, or without 

foundation. I.R.C.P. 54(e)(1). The decision whether to award attorney fees pursuant to I.C. 

§ 12-121 is within the discretion of the district court and will be reviewed for an abuse of 

discretion. Hunt v. Hunt, 137 Idaho 18, 22, 43 P.3d 777, 781 (2002); Simons v. Simons, 134 

Idaho 824, 830, 11 P.3d 20, 26 (2000). Also discretionary, is the question of which party to the 

action is the prevailing party. Shore v. Peterson, 146 Idaho 903, 915, 204 P.3d 1114, 1126 

(2009). When reviewing a trial court‟s discretionary decision, this Court inquires into whether 

 

3 Wisdom further asserts that the award of attorney fees to Steil‟s estate was in error 

because the estate was not a party to the action. Wisdom does not cite any authority in support 

of this claim, and therefore waives it on appeal. See Powell, 130 Idaho at 128, 937 P.2d at 440. 

Furthermore, the estate was in fact always a party to the probate case. Wisdom also claims in a 

conclusory manner that Defendants did not prove the fees sought were “reasonable.” As 

Wisdom does not support this claim with any further argument, he waives the issue on appeal. 

Id. Furthermore, this claim is belied by the record, which shows Defendants did show 

reasonableness and the court properly found the fees reasonable.

 
19

the lower court correctly perceived the issue as discretionary, acted within the boundaries of such 

discretion and consistently with applicable legal standards, and reached its decision by an 

exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 

P.2d 993, 1000 (1991). 

Since all of Wisdom‟s claims were decided in favor of Defendants, the district court 

plainly did not abuse its discretion in determining that they were the prevailing parties. 

Wisdom‟s argument that there should be no attorney fee award because his claims were 

dismissed without prejudice4is also meritless. Whether a dismissal is with or without prejudice 

does not affect its finality, and it is well settled that a formal order dismissing the action is a final 

judgment. Eby v. State, 148 Idaho 731, 735-36, 228 P.3d 998, 1002-03 (2010); Castle v. Hays, 

131 Idaho 373, 374, 957 P.2d 351, 352 (1998).

Additionally, the district court did not err in determining that Wisdom‟s claims were 

pursued frivolously and unreasonably. As the court pointed out,

Despite an eight and one-half month period in which to gather evidence to support 

his claims, Wisdom did not present any evidence to the Court at the trial. Rather, 

he claimed that he did not have adequate time to conduct discovery and was not 

prepared. 

. . . .

. . . Wisdom had a list of [Steil‟s] medical providers and a “medical release” to 

obtain medical records regarding her care. He obviously never followed through 

with obtaining those documents, or if he did, he never made the court aware of it. 

Wisdom did not produce any evidence at the trial to support the claims he made 

of his mother‟s incompetence to manage her affairs. He produced no evidence to 

support his claims that Mallo and McMurtrie unduly influenced Steil or otherwise 

to support his claims of fraud and duress.

The utter lack of evidence demonstrates that Wisdom possessed no factual basis for his objection 

in the probate proceeding or for his tort complaint, and they were therefore without foundation 

from the inception. It follows that the district court did not abuse its discretion in awarding 

Defendants attorney fees pursuant to I.C. § 12-121.

 

4

The district court made the judgment of dismissal “without prejudice” so that “[i]f and 

when the Plaintiff can demonstrate that there are inadequate funds in the estate of [decedent] to 

pay the $5,000 bequeathed to him, the Plaintiff shall then have standing to refile this action to 

pursue any claims asserted therein to the extent the same have not been previously dismissed by 

this court.”
20

J. Did the District Court Violate Wisdom’s Right to Due Process?

Wisdom asserts that cumulatively, his claims of error show deprivations of his right to 

due process. As this Court has already determined that Wisdom‟s claims of error are without 

merit, no due process violation is shown.

Wisdom also contends that the trial court was not impartial or disinterested, but he cites 

no portion of the record and offers no further argument in support of this conclusory assertion. 

Therefore, Wisdom has waived this issue on appeal. See Powell, 130 Idaho at 128, 937 P.2d at 

440.

K. Attorney Fees on Appeal

Defendants seek attorney fees and costs on appeal pursuant to Idaho Appellate 

Rule 41(a), I.C. §§ 12-121 and 12-123, I.C. § 15-8-208, and Idaho Rule of Civil Procedure 

54(d)-(e). Defendants argue that Wisdom‟s action was brought and pursued frivolously and 

unreasonably, and for the sole purpose to harass and maliciously injure the other beneficiaries of

Steil‟s estate.

Because we find costs and attorney fees proper under I.C. § 12-121 and I.A.R. 41(a), we 

will not address the other grounds asserted by the Defendants. An award of attorney fees to the 

prevailing party pursuant to I.C. § 12-121 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). Though 

the trial court here made unconventional procedural decisions and failed to address at least two

of Wisdom‟s motions, it is clear that Wisdom brought this action and pursued this appeal 

unreasonably and frivolously. As stated above, Wisdom possessed no evidence to support his 

multitude of claims, but engaged in litigation tactics that forced the Defendants to expend funds 

and deplete estate assets in order to respond to unfounded claims, discovery complaints, and 

frivolous motions. Wisdom then pursued this appeal, forcing the Defendants to expend yet more 

resources, even though it was clear that, in view of the lack of any evidentiary support at trial for 

his allegations against the Defendants, any error in the district court proceedings was harmless. 

In our view, Wisdom brought and pursued this consolidated action and appeal frivolously, 
21

unreasonably, and without foundation.5 Therefore, this Court grants reasonable attorney fees to 

Defendants pursuant to I.A.R. 41(a) and I.C. § 12-121.

III.

CONCLUSION

The judgment of the district court dismissing Wisdom‟s tort claims, its order admitting 

Steil‟s will to probate, and its award of attorney fees are affirmed. Costs and attorney fees on 

appeal to Defendants.

Judge GRATTON and Judge MELANSON CONCUR.

 

5

In their respondents‟ brief, the Defendants request “to the extent permissible by this 

Court, that the Court consider issuing a restraining order against the Appellant from filing any 

additional filings, actions, or claims against Respondents or Respondents‟ counsel in any state 

court within the state of Idaho, without first obtaining approval for each document filed by either 

an Idaho judge or an attorney licensed to practice in the state of Idaho.” Although it may be 

within the authority of the district court or the Idaho Supreme Court to issue such an order, see 

Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980), this Court being neither a court of 

general jurisdiction nor one with supervisory authority over the trial courts, it is not apparent that 

this Court possesses authority to issue such an order, and we therefore take no action on the 

request by the Defendants.