1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47817

MARTIN H. BETTWIESER ,
Plaintiff

- Appellant,

v.

CAROLE A

. BETTWIESER ,
Defendant

- Respondent

. ) ) ) ) ) ) ) ) ) ) Filed: August 13, 2021
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Nancy Baskin , District Judge.
Judgment dismissing complaint without prejudice, affirmed

.
Martin Bettwieser , Boise, pro se appellant.
K. Mitchell Law, PLLC; Katelynn Mitchell , Boise, for respondent.

________________________________________________ HUSKEY, Chief Judge Martin H. Bettwieser appeals from the district court’ s judgment dismissing h is complaint without prejudice and award of attorney fees and costs

. Bettwieser alleges that the district court
abused its discretion in dismissing his complaint without prejudice , was biased against him during the proceedings, and abused its discretion in its decision to award attorney fees and costs

. Because Bettwieser did not establish that he timely appealed from the judgment dismissing his complaint or that the district court erred in dismissing his November 14, 2019
, motion for reconsideration, the judgment dismissing his complaint without prejudice is affirmed. We find
that Bettwies er pursued this appeal frivolousl y , unreasonably, and without foundation ; accordingly
, we grant Carole Bettwieser (Carole) a ttorney fees and costs on appeal.
I.
FACTUAL AND PROCEDURAL BACKGROUND
After Bettwi e ser’s wife, Carol e , initiated divorce proceedings in a separate proceeding, Bettwieser filed a complaint against her, alleging th at she breached three marital contra cts2 formed between the parties. Carole filed a motion to dismiss the complaint and req uested attorney fees and costs

. The district court held a hearing on Carole’s m o tion to dismiss and
found that Bettwieser ’s complaint failed to state a claim upon which relief could be granted; the court overseeing the divorce proceeding had subject matter jurisdiction over the claims; and , for judicial economy and to avoid inconsist ent judgments, Bettw i eser’s claims should be addressed in the divorce proceeding

. Because Carole had initiated the divorce proceeding prior to
B ettw i eser filing the complaint, the district court found there was good cause to award Carole attorney fees and costs

. On June 17, 2019 , t he district court subsequently entered an order dismissing the complaint. Bettwieser filed an objection to the order because it did not state that the complaint was dismissed “ without prejudice
, ” and t he district court accordingly entered an amended order dismissing th e complaint without prejudice on July 10, 2019

. Bettw i eser thereafter filed multiple motions or documents, including an objection to the amended order dismissing the complaint without prejudice because he was not served with the order prior to it being issued ; a motion to disqualify the district court with cause
, alleging that the court was biased and prejudiced against him because of his pro se status ; and a motion for reconsideration of the cour t ’s dismissal of his complaint. Carole filed a motion requesting Bettwieser be referred to the administrative district judge for a determination of whether Bettwieser is a vexatious litigant.
The district court held a hear i ng on the outstanding motions, d enied Bettwieser ’s motions, and found good cause to refer Bettw i eser to the administrative judge to determine if
Bettw i eser should be declared a vexatious litigant. On October 29, 2019, t he district court
entered a final judgment dismissing the case without prejudice. Bettwieser filed a motion for
reconsideration on November 7, 2019 , (November 7 motion) , which the district court denied on e week later , on November 14, 2019

. That same day , Bettwieser filed another motion for
reconsideration 1 (Novembe r 14 motion) , which the district court denied on January 17 , 2020. On February 19, 2020, Bettwieser appealed.

1 Assigning the label “motion to reconsider” to the November 7 and November 14 motions is taken from the Case Summary in the Clerk’s Record and the district court’s references in the underlying case that designate the motions as such. Because the motions are not in the appellate record, it is unclear u nder which rule of civil procedure the motions were made.3 II

. ANALYSIS Bettwieser’s appellate brief identifies one issue : “ Was the district court bias [ed] and
erred and abuse [d] it’s [sic] discretion in dismissing the complai nt and awarding attorney fees?” The failure of an appellant to include an issue in the statement of issues required by I daho Appellate Rule 35(a)(4) will eliminate consideration of the issue from appeal. Kugler v. Drown
, 119 Idaho 687, 691, 809 P.2d 1166, 1170 (Ct. App. 1991). This rule may be relaxed, however, where the issue is argued in the briefing and citation to authority is provided. Everhart v. Washington Cnty. Rd. and Bridge Dep’t , 130 Idaho 273, 274, 939 P.2d 849, 850 (1997). Taking these principles into account , this Court can identif y four claims that Bettwieser
raise s on appeal: (1) the district court abused its discretion by dismissing his complaint because the complaint concerned an alleged breach of d ifferent agreements than those raised in the parallel divorce proceedings; (2) the district court abused its discretion by dismissing his complaint because the court was biased against Bettw i eser and his status as a pro se petitioner; ( 3) the district cou rt abused its discretion by dismissing t h e complaint without prejudice; and (4 ) the district court abused its discretion by granting an award of a ttorney fees and costs against
Bettw i eser. In response, Carole argues that the district court did not abuse i ts discretion in dismissing Bettwieser’s complaint without prejudice and awarding her attorney fees and costs. Carole requests attorney fees and costs on appeal.
A. Bettwieser Did Not Timely Appeal From the October 29, 2019 , Judgment
To challenge the district court’s underlying interlocutory orders dismissing Bettwieser’s complaint and awarding Carol e attorney fees on appeal, Bettwieser must have timely appeal ed
from the district court’s final judgment entered on October 29, 2019

. Idaho Rule of Civil Procedure 11.2(b) 2 provides the mechanism for a party to file a motion for a trial court to reconsider an interlocutory order

. Idaho Rule of Civil Procedure 11.2(b) states: (1) In General. A motion to reconsider any order of the trial co urt entered before final judgment may be made at any time prior to or within 14 days after the entry of a final judgment. A motion to reconsider an order entered after the entry of final judgment must be made within 14 days after entry of the order.

2 Idaho Rule of Civil Procedure 11.2 was adopted March 1, 2016
, and effective July 1, 2016. The same rule was previously designated as I.R.C.P. 11(a)(2)(B).4 (2) Certain Orders Not Subject to Reconsideration. No motion to reconsider an order of the trial court entered on any motion filed under Rules 50(a), 52(b), 55(c), 59(a), 59(e), 59.1, 60(a), or 60(b) may be made. Thus, a party may file a timely motion to reco nsider an interlocutory order : (1) any time
before the court enters a final judgment; or (2) within fourteen days after the court enters a final judgment. Agrisource, Inc. v. Johnson , 156 Idaho 903, 911, 332 P.3d 815, 823 (2014). A party

may not use a n I.R.C.P. 11.2 (b) motion to challenge a trial court’s final judgment. Agrisource , 156 Idaho at 91 3 , 332 P.3d at 82 5. See also Eby v. State
, 148 Idaho 731, 735

- 36, 228 P.3d 998,
1002

- 03 (2010) (holding “ a dismissal under I.R.C.P. 40(c) was ‘ in effect a final judgment
, ’ so I.R.C.P. 11(a)(2)(B) was not the proper method for relief because I.R.C.P. 11(a)(2)(B) ‘ by its terms, applies to interlocutory orders ’”)

. Additionally, the second sentence of I.R. C.P. 11.2( b ) (1) does not apply to decisions on motions t o reconsider. Agrisource , 156 Idaho at 913, 332 P.3d at
825. Idaho Appellate Rule 14(a) requires a notice of appeal to be filed within forty

- two days from entry of a judgment or order from which the appea l is taken. While a motion for
reconsideration tol ls the time for filing an appeal until an order is entered deciding the motion, Castle v. Hays
, 131 Idaho 373, 374, 957 P.2d 351, 352 (1998), w hen the motion is improperly and untimely filed, it will not toll the time. Shelton v. Shelton , 148 Idaho 560 , 564, 225 P.3d 693, 697 (2009); Dep’t of Env’ t Quality v. Gibson , 166 Idaho 424, 435 , 461 P.3d 706, 717 (2020). Here, the district court entered its final judgment dismissing the case on October 29,
2019. Bettw ie ser subsequently filed his November 7 motion, which the district court denied on November 14, 2019. Bettwieser then filed his November 14 motion, which the district cou rt denied on January 17, 2020. On February 19, 2020, Bettwieser appealed. B ecause Bettwieser
filed his appeal thirty

- three days after the district court’s denial of his last motion for reconsideration, but 113 days after the district court entered its final judgment, Bettwieser must
establish that either his November 7 motion or his November 14 motion toll ed the time for him

to timely appeal from the judgment dismissing the case on October 29, 2019

. Although Bettwieser’s November 7 motion could have temporarily tolled the time for filing an appeal, the motion is not included in the clerk’s record on appeal . As such, this C ourt

cannot assess whether the motion was properly filed. Further, the district court entered an order denying Bettwi e ser’s November 7 motion on November 14, 2019. If it was properly and timely5 filed, Bettwieser’s November 7 motion coul d have temporarily tolled the time for filing an appeal. However, once the district court entered its order denying the motion on November 14, the time for filing an appeal was no longer tolled. See Agrisource , 156 Idaho at 913, 332 P.3d at
825. Accordi ngly, even if the November 7 motion was properly and time ly filed, Bettwieser’s February 19, 2020 , notice of appeal would nonetheless be untimely as it was filed ninety

- seven days after the d istrict court denied Bettwieser’s November 7 motion. As to the November 14 motion, this Court cannot determine if it was properly filed because the motion is not included in the appellate record. It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on ap peal. Powell v. Sellers , 130 Idaho 122, 127, 937 P.2d 434, 439 (Ct. App. 1997). Without the motion, we cannot determine if Bettwieser sought reconsideration of an interlocutory order, which may have been a proper motion, or if he sought reconsideration o f the judgment dismissing the case or the court’s denial
of his November 7 motion, w hich would have been improper. See Agrisource , 156 Idaho at 913,
332 P.3d at 825 (“A party cannot continuously ask the court to reconsider its decisions on
motions to reco nsider after entry of a final judgment.”). Regardless, Bettwieser’s November 14 motion for reconsideration was not timely filed as a motion for reconsideration . Because the final judgment was entered on October 29, 2019, Bettwieser had to file a motion f or reconsideration within fourteen days, which was November 12, 2019. Because Bettwieser filed the motion two days late, it could not have tolled the time for Bettwieser to file the notice of appeal from the October 29 final judgment

. S ee Dep’t of Env’ t Quality , 166 Idaho at 435, 461
P.3d at 717. Accordingly, Bettwieser did not provide the record necessary for this Court to
determine i f his motion was properly filed and did not timely appeal from the final judgment.
T herefore
, his claims that the district court erred in dismissing his complaint and awarding attorney fees are not properly before this Court. Accordingly, the judgment dismissing Bettwieser’s complaint is affirmed.
B

. Bettwi e ser’s Appeal From the District Court’ s January 17, 2020 , Order Denying Bettwieser’s November 14, 2019 , Motion for Reconsideration Is Not Proper To the extent Bettwieser seeks to appeal from the district court’s January 17, 2020
, order denying his November 14 motion for reconsideration, this attempt suffers a similar flaw, an d consequently, a similar fate. In its order denying Bettwieser’s November 14 motion for reconsideration, the district court found that Bettwieser’s motion failed to show the court
committed clear error ; abused its discretion in its discretionary determinations, such as award ing6 attorney fees ; or that there was an intervening change in the applicable, controlling law that
woul d render its decision erro neous

. As noted above, Bettwi e ser’s November 14 motion is not
in the appellate record and i n the absence of an adequate record on appeal to support the appellant’s claims, we will not presume error. Powell , 130 Idaho at 127, 937 P.2d at 439

. Id

. Because Bettwieser’s No v ember 14 motion is not in the record, we will no t presume the district
court erred in denying it. Accordingly, we affirm the district court’s order denying Bettwieser’s
November 14 motion.
C. Attorney Fees and Costs Are Granted on Appeal Carole argues for an award of attorney fees and costs on appeal pursuant to I .A.R. 35(b)(5), 40, and 41
, and I.C

. § 12

- 121. Carole asserts an award of attorney fees and costs is appropriate because Bettwieser did not articulate the basis for his appeal, appealed nearly every decision decided adversely to him, p resented arguments for the first time on appeal, ignored and misquoted relevant case law, and did not show that the district cou rt incorrectly applied the law. Further, Carole argues that Bettwieser pursued the appeal frivolously, unreasonably, and withou t foundation. An award of attorney fees and costs may be granted under I.C. § 12

- 121 and I.A.R. 41 to the prevailing party , and such an award is appropriate when the court finds that the appeal has been brought or defended frivolously, unreasonably, or wi thout foundation. On appeal,
Bettwieser does not provide a sufficient record to make a showing that he timely appealed or for
this Court to assess his claims that the district court erred in his denial of his November 14
motion

. As a result , we find Bett wieser pursued this appeal frivolously, unreas onably, and
without foundation. Consequently, Carole is awarded attorney fees and costs on appeal.
III

. CONCLUSION
Bettwieser has failed to show that his November 14, 2019
, motion for reconsideration

was properly and timely filed. Therefore, Bettwieser has not established that the motion tolled the time for him to file an appeal from the jud gment dismissing his complaint. Accordingly,
Bettwieser’s claims that the district court erred in its pre

- judgment interlocutory orders are n ot properly before this Court. Similarly, to the extent Bettwieser alleges error in the district court’s denial of his November 14, 2019
, motion for reconsideration, this motion is not in the record

. Without being able to review the motion, we will not presume the district court erred in denying7 it. Accordingly, the district court’s judgment dismissing the complaint without prejudice is
affirmed. Costs and attorney fees are aw ar d ed to Carole on appeal. Judge GRATTON and Judge L ORELLO CONCUR

.