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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47817

MARTIN H. BETTWIESER,

Plaintiff-Appellant,

v.

CAROLE A. BETTWIESER,

Defendant-Respondent.

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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THIS IS AN UNPUBLISHED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 his 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 Bettwieser pursued this appeal frivolously, unreasonably, and without foundation;

accordingly, we grant Carole Bettwieser (Carole) attorney fees and costs on appeal. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

After Bettwieser’s wife, Carole, initiated divorce proceedings in a separate proceeding, 

Bettwieser filed a complaint against her, alleging that she breached three marital contracts 
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formed between the parties. Carole filed a motion to dismiss the complaint and requested 

attorney fees and costs. The district court held a hearing on Carole’s motion 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 inconsistent judgments, Bettwieser’s claims should be addressed 

in the divorce proceeding. Because Carole had initiated the divorce proceeding prior to 

Bettwieser filing the complaint, the district court found there was good cause to award Carole 

attorney fees and costs. On June 17, 2019, the 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 the district court accordingly entered an amended order 

dismissing the complaint without prejudice on July 10, 2019. Bettwieser 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 court’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 hearing on the outstanding motions, denied Bettwieser’s 

motions, and found good cause to refer Bettwieser to the administrative judge to determine if 

Bettwieser should be declared a vexatious litigant. On October 29, 2019, the 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 one 

week later, on November 14, 2019. That same day, Bettwieser filed another motion for 

reconsideration1

 (November 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 under which rule of civil procedure the motions were made. 
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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 complaint and awarding attorney fees?” 

The failure of an appellant to include an issue in the statement of issues required by Idaho 

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 identify four claims that Bettwieser 

raises on appeal: (1) the district court abused its discretion by dismissing his complaint because 

the complaint concerned an alleged breach of different 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 Bettwieser and his status as a pro se petitioner; 

(3) the district court abused its discretion by dismissing the complaint without prejudice; and 

(4) the district court abused its discretion by granting an award of attorney fees and costs against 

Bettwieser. In response, Carole argues that the district court did not abuse its 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 Carole attorney fees on appeal, Bettwieser must have timely appealed

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 court 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.

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 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).
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(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 reconsider 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 an I.R.C.P. 11.2(b) motion to challenge a trial court’s final judgment. Agrisource, 

156 Idaho at 913, 332 P.3d at 825. 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 to 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 appeal is taken. While a motion for 

reconsideration tolls 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), when 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. Bettwieser 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 court 

denied on January 17, 2020. On February 19, 2020, Bettwieser appealed. Because 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 tolled 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 Court 

cannot assess whether the motion was properly filed. Further, the district court entered an order 

denying Bettwieser’s November 7 motion on November 14, 2019. If it was properly and timely 
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filed, Bettwieser’s November 7 motion could 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. Accordingly, even if the November 7 motion was properly and timely filed, Bettwieser’s 

February 19, 2020, notice of appeal would nonetheless be untimely as it was filed ninety-seven 

days after the district 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 appeal. 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 of the judgment dismissing the case or the court’s denial 

of his November 7 motion, which 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 reconsider 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 for 

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. See 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 if his motion was properly filed and did not timely appeal from the final judgment. 

Therefore, 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. Bettwieser’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, and 

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 awarding
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attorney fees; or that there was an intervening change in the applicable, controlling law that 

would render its decision erroneous. As noted above, Bettwieser’s November 14 motion is not 

in the appellate record and in 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 November 14 motion is not in the record, we will not 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, presented arguments for the first time on appeal, ignored and 

misquoted relevant case law, and did not show that the district court incorrectly applied the law. 

Further, Carole argues that Bettwieser pursued the appeal frivolously, unreasonably, and without 

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 without 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 Bettwieser pursued this appeal frivolously, unreasonably, 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 judgment dismissing his complaint. Accordingly, 

Bettwieser’s claims that the district court erred in its pre-judgment interlocutory orders are not 

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 denying 
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it. Accordingly, the district court’s judgment dismissing the complaint without prejudice is 

affirmed. Costs and attorney fees are awarded to Carole on appeal.

Judge GRATTON and Judge LORELLO CONCUR.