IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44925
JOHN S. KIRBY and VICKY L. KIRBY, husband and wife ,
Plaintiffs

- Respondents ,

v.

MARK SCOTTON and DAWN SCOTTON, husband and wife ,
Defendants

- Appellants

. ) ) ) ) ) ) ) ) ) ) ) ) 2018 Opinion No. 12

Filed: March 9, 2018
Karel A. Lehrman, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton , District Judge.
Order denying motion to set aside default and judgment, affirmed

. Perry Law, P.C.; Trevor L. Hart, Boise, for appellants. Trevor L. Hart argued.

Cos ho Humphrey, LLP; David M. Penn y, Boise, for respondents. D avid M. Penn y argued.

________________________________________________ LORELLO, Judge Mark Scotton and Dawn Scotton appeal from the district court ’ s order denying their
motion to set aside an order of default and from the final default judgment . For the reasons set forth below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND On July 8, 2016, John S. Kirby and Vicky L. Kirby filed a complaint against the Scottons asserting claims for trespass, nuisance, negligence, and a request for injunctive relief. The Kirbys asserted that the Scottons ’ irrigation practices resulted in water flooding onto the Kirbys ’ property, causing damage. Counsel for the parties communicated on July 13, 2016, regar ding a possible resolution of the case. The complaint was delivered to the Scottons ’ counsel on July 14, 2016, but counsel never signed the ac ceptance of service. The Kirbys ’ counsel served the2 Scottons directly with the complaint on Augu st 31, 2016, after the Scottons ’ counsel failed to accept service or file an answer. No answer or notice of appearance was filed within the timelines required by the Idaho Rules of Civil Procedure

. The Kirbys moved for entry of default on October 24, 20 16. 1 The Scottons ’ counsel contacted the Kirbys ’ counsel on October 26, 2016, stating that t he Scottons’ counsel had not filed an answer because he had been waiting to hear from the Kirbys ’ counsel in regard to whether the case had been resolved. The Kirbys ’ counsel agreed to withdraw the motion for default and gave the Scottons one week to file an answer. The next day, the Kirbys ’ counsel
emailed the following to the court clerk , advising : “ Please withdraw our Motion for Entry of Default against Mr. and Mrs. Scotton. We are in negotiation to secure an answer to our complaint. The answer will be filed next week sometime or if not we will refile our Motion for Entry of Default. ” On Novem ber 4, 2016 , t he Kirbys ’ counsel emailed the court clerk and indicated that the Kirbys intended to proceed with the default because no answer had been filed

. Counsel ’ s email asked, “ Do I need to ‘ refile ’ my documents or my [sic] I just request that they
b e provided to the judge. ” The court clerk responded that she could “ just provide them to the Judge. ” The Scottons ’ counsel was not included in the November 4 email exchange

. 2 The district court entered default on November 18, 2016.
The Scottons file d an answer on December 1, 2016, and filed a n I.R.C.P. 55 (c) motion to
set aside th e default on December 6, 2016

. In their motion to set aside default, t he Scottons
asserted that the Kirbys took action in the case without notice to the Scottons after they had

1 The affidavit filed in support of the Kirbys’ motion for default is not included in the record on appeal. 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. 1 997). Any missing portions of the record are presumed to support the action of the trial court. Kugler v. Drown , 119 Idaho 687, 690, 809 P.2d 1166, 1169 (Ct. App. 1991).

2 Although the Scottons were not entitled to notice of default because they ha d not appeared in the action, I.R.C.P. 55(a)(1), we note the unusual procedure surrounding the motion for default. While the Kirbys’ counsel served the Scottons with the motion for entry of default, and included the Scottons’ counsel on the email notifyin g the clerk that the Kirbys were withdrawing the motion for default (without filing a formal notice of withdrawal), the Kirbys’ counsel did not include the Scottons’ counsel , or notify the Scottons personally, when t he Kirbys’ counsel notified the clerk th at the Kirbys intended to proceed with the default.3 informed the Kirbys of a potential resolution. The Scott ons also argued that their answer asserted several meritorious defenses ; their failure to file an answer earlier was not willful, but was due to miscommunication; and that the Kirbys would not suffer any prejudice if the default

was set aside

. Although the Scottons ’ counsel filed an affidavit in support of the motion to set aside, to which he attached a letter he sent to the Kirbys ’ co unsel setting forth the Scottons ’ position regarding the dispute, the motion was not supported by an affidavit from the Scottons. In response to the motion, t he Kirbys argued that the Scott ons ’ counsel had told the Kirbys ’
counsel that t he Scottons’ couns el was uncertain as to whether h e was representing the Scottons and, because of this, the Kirbys served the Scottons directly. The Kirbys also assert ed that the
Scottons filed their answer seventy

- two days late and tha t, had the Kirbys not filed the lawsu it, the Scottons would not have done anything to prevent further damage to the Kirbys ’ property.
T he district court held a damages hearing on December 15, 2016, and argument on the
motion to set aside the default was heard on January 19, 2017. The district court denied the
Scottons ’ motion to set a side default , finding that the Scottons failed to show good cause for not accept ing service through their counsel and not fil ing a notice of appearance, a motion to extend time to answer, or an answer betw een July 19 and November 4, 2016. The district court also
concluded that the Scottons failed to plead
, with particularity
, a meri torious defense. Final judgment was entered on February 21, 2017. The district court awarded the Kirbys $11,230.73 in damage s and costs. 3 The Scottons a ppeal.
II.
ANALYSIS
A. Motion to Set Aside Entry of Default
T he Scottons argue that the district court erred in denying their I.R.C.P. 55(c) motion to
set aside the entry of default. A trial court ’ s refusal to set aside entry of default is reviewed

3 The Kirbys requested a total of $51,500.89 in damages (actual and treble), costs, and attorney fees. The district court found that the Kirbys were not entitled to the amount requested for their own labor because the Kirbys did not provide information as t o the hours of labor involved, who performed the labor, and the rate at which their labor should be compensated. The district court also found the Kirbys were not entitled to treble damages under I.C. § 6

- 202. Finally, the district court found that the K irbys were not entitled to attorney fees because they did not include a sum certain of attorney fees in the prayer for relief in their complaint and that attorney fees were not available on default pursuant to I.R.C.P. 54.4 under an abuse of discretion standard. Dorion v. Keane , 1 53 Idaho 371
, 373
, 283 P.3d 118
, 120 ( Ct. App. 20 12 ). When a trial court ’ s discretionary decision is reviewed on appeal, the appellate
court conducts a multi

- tiered inq uiry to determine whether the lower court correctly perceived the issue as one of discretion; acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; 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). The district court ’ s decision will not be overturned on appeal absent
clear abuse of that discretion. Clear Springs Trout Co. v. Anth ony , 123 Idaho 141, 143, 845 P.2d 559, 561 (1992). Where the trial court makes factual findings that are not clearly erroneous; applies correct criteria pursuant to the applicable legal standards to those fac ts; and makes a logical conclusion, while keepi ng in mind the policy favoring relief in doubtful cases and resolution on the merits, the court will be deemed to have acted within its discretion. Dorion , 153 Idaho at 373

- 74, 283 P.3d at 120

- 21

. The legal standard for a motion to set aside entry of
def ault under I.R.C.P. 55(c) is for good cause shown

. The primary considerations for determining whether good cause has been shown are whether the default was willful, whether setting aside the default would prejudice the opponent, and whether a meritorious defense has been presented. Dorion , 153 Idaho at 374, 283 P.3d at 121. The meritorious defense requirement for setting aside an entry of default recognizes that it would be an idle exercise and a waste of judicial resources for a court to set aside the entry of
default if there is no genuine justiciable controversy. Id. A party may satisfy the meritorious defense requirement by pleading facts which, if established, would constitute a defense to the
action. Id. The party moving to set aside a default is not required to present evidence in ord er to have the default set aside. Id. The meritorious defense requirement is a pleading requirement, not a burden of proof. Id

. However, factual details must be pled with particularity. Id. Where
no meritorio us defense is shown in support of a motion to set aside a default, a court does not abuse its discretion in denying the motion. Bach v. Miller , 148 Idaho 549, 553, 224 P.3d 1138,
1142 (2010)

. The Scottons assert t hat the district court erred by failing to address the willf ulness and prejudice factors for a showing of good cause and in finding that they failed to present a
meritorious defense. Because the district court ’ s finding that the Scottons failed to plead a5 meritorious defense is dispositive, we need not address the first two claims of error. In ruling on
the Scottons ’ motion to set aside the entry of default, the district court found that the “ answer is more of a general denial and does not plead with particularity and detail the defenses ” and, as a result, the Scottons ’ denials and defenses did not establish a meritorious defense. The Scottons argue that the district court ’ s conclusion in this regard was erroneous because, in their answer, they denied “ most of the mate rial averments in the Comp laint ” and asserted eight affirmative
defenses

. The affirmative defenses pled by the Scottons were that the cause of action was barred by the Kirbys’ contributory or comparative responsibility, estoppel, waiver, the doctrine of unclean hands, and release; that the damages, if any, were the result of Kirbys’ own conduct; that the Kirbys failed to mitigate their damages; and that the damages, if any, were subject to offset resulting from the Kirbys’ wrongful conduct, including trespass ; nuisance ; and intentional infliction of emotional distress caused by the Kirbys discharging their firearms in the direction of
the Scottons’ home. The Scottons also argue that they “ asserted a right of offset and pleaded specific facts in support of that right. ” A ccording to the Scottons, the district court ’ s denial of 80 percent of the damages the Kirbys requested indicates that the Scottons “ actually had meritorious defenses ” and, notwithstanding the reduction in damages, their defenses are “ good at law. ”
The Kir bys argue that the district court correctly held that the Scottons did not present a meritorious defense because they did not point to any specific factual details in their answer that would support any plausible defense to the underlying trespass action a nd, moreover, the
Scottons ’ answer was stricken . The Kirbys also argue that the Scottons ’ defense of a right to offset is not supported by facts and is a permissive counterclaim rather than a defense to the particular action brought by the Kirbys. Finall y, the Kirbys argue that the amount of damages awarded by the district court is not relevant to the meritorious defense requirement.
In Dori o n , this Court c onsidered whether the defendant s ’ answer was adequate to
demonstrate a meritorious defense for purposes of setting aside an entry of default. Dorion , 153 Idaho at 374, 283 P.3d at 121. In that case , default was entered thirty

- one days after the complaint was filed , but the district court set aside the default and the defendants filed their

an swer. Id. at 372

- 73, 283 P.3d at 119

- 20. T he parties then engaged in an unsuccessful
mediation after which defendants ’ counsel asked to withdraw. In response , the district court6 ordered the defendants to have counsel appear within twenty days or to file a written notice
i ndicati n g how they intended to proceed without an attorney

. The defendants contacted another attorney who called the plaintiff ’ s counsel and requested an extension for the defendants to
decide whether or not to retain counsel

. Howe ver, the plaintiff filed for default the next day,
which th e district court granted. The defendants ’ new counsel filed a motion to set aside the default, asserting that the default was the result of a miscommunication between the parties ’
counsel

. The di strict court denied the motion stating, in part, that the defendants ’ affidavit in support of the motion to set aside the first default “ was weak at best in presenting a meritorious
defense
, ” and the affidavit filed in support of the motion to set aside th e second default included

“ no additional facts ” demonstrating a meritorious defense. Id. at 374, 283 P.3d at 121. On appeal, this Court stated that, while it understood the district court ’ s frustration with
the defendants ’ sporadic efforts, the district court ’ s conclusion that the defendants failed to
sufficie ntly present a meritorious defe nse for purposes of setting aside the default was erroneous.
Id. This Court reasoned that whatever showing was made for purposes of se tting aside the first default was augmented by the defendants ’ answer in which the defendants denied making an agreement with the plaintiffs and asserted that the plaintiffs ’ claims were barred by the statute of
frauds. Id. The defendants also asserted t hat some of the plaintiffs ’ claims should have been dismissed and stated the reasons therefor. This Court concluded that the allegations in the
defendants ’ answer “ would constitute, at the very least, a partial defense. ” Id. This Court also
noted that t he plaintiffs never sought summary judgment of any of the defenses, and none of the defenses were dismissed. Rather, the case had been set for trial and was the subject of an attempted mediation, indicating the defendants “ had presented plausible defenses , which, if established, would have entitled them to various forms of relief. ” Id. at 374

- 75, 283 P.3d at
121

- 22. Thus, this Court held that the defenses in the defendants ’ answer , in conjunction with the course of proceedings in the case, were sufficien t to satisfy the meritorious defense requirement.
Unlike in Dori o n , neither the Scottons ’ answer, nor the course of the proceedings, show the district court abused its discretion in concluding that the Scottons failed to satisfy the7 meritorious defense ple ading requirement. As noted by the district court, the Scottons ’ answer 4 primarily contains general denials in relation to the allegations pled in support of the multiple causes of action set forth in the Kirbys ’ complaint. This general denial is reflected in the second paragraph of the Scottons ’ answer, which states that they “ deny all averments in the Complaint not specifically admitted herein. ” The Scottons only admitted the averments in paragraphs 2 through 4, 7 (in part), 8, and 16 (in part), leaving the general denial applicable to the remaining thirty

- seven paragraphs in the complaint. There are no facts pled in the Scottons ’ answer or in
the ir motion to set aside the default to indicate a meritorious def ense to the Kirbys ’ trespass, nuisance, or negligence claims. The only specific facts alleged in the Scottons ’ answer relate to
their “ Tenth Defense, ” which asserts that the Kirbys ’ damages would be subject to the Scottons ’

“ right of offset resulting from [the Kirbys’ ] wrongful conduct, including trespass, nuisance, and intentional infliction of emotional distress, caused by [the Kirbys’ ] discharging their firearms in
the direction of [the Scottons’ ] home. ” These facts do not constitute a defense to any o f the Kirbys ’ claims. Rather, these facts, on their face, relate to an alleged “ right of offset ” with respect to damages

-- an offset the Scottons claimed was proper due to their own unpled claims against the Kirbys for trespass and nuisance

. 5 Based on the record, we cannot say that the district court abused its discretion in concluding that the Scottons failed to plead a meritorious
defense sufficient to set aside the default. 6

4 In Bach , 148 Idaho at 553, 224 P.3d at 1142, the Court declined to consider the answer in determining whether the appellants had set forth sufficient facts for a meritorious defense because the answer was stricken prior to the hearing on the motion to set aside default. Becau se the district court in this case did not strike the Scottons’ answer until it issued its order denying the Scotton s ’ motion to set aside default, we may consider the answer in addressing the meritorious defense issue, just as the district court did.

5 In their r eply m emorandum in s upport of their m otion to s et a side d efault, the Scottons stated that, if the district court granted their motion to set aside the default, they “intend[ed] to file an Amended Answer and Counterclaim in which they [would] as sert claims for trespass and nuisance, among others.”

6 Neither the transcript nor the court minutes for the January 19, 2017, hearing on the motion to set aside the default are included in the record on appeal. Missing portions of the record are presu med to support the district court’s decision. Kugler , 119 Idaho at 690, 809 P.2d at 1169.8 The Scottons further argue that, “ even without considering [their] Answer, it is clear [they] actually had meritorious defenses to much of the Kirbys ’ damage claims ” as evidenced by
the district court ’ s denial of “ approximately 80 percent of the damages sought by [the] Kirbys. ” 7 Although the district court held its decis ion on damages “ in abeyance ” until it considered the
Scottons ’ motion to set aside the default, the district court ’ s damages determination was unrelated to, and did not cure, the Scottons ’ failure to plead, with particularity, any meritorious
defenses to t he Kirbys ’ causes of action. Moreover, the district court ’ s decision to deny a portion of the damages requested by the Kirbys was not based on a conclusion that the Scottons had any defenses to the Kirbys ’ request for damages and was based on the Kirbys ’ failure to prove they were entitled to the amount of damages sought. As such, the Scottons have failed to meet their burden of showing error in the denial of their motion to set aside the default. Accordingly, t he district court did not abuse its discretion in finding that the Scottons failed to present a meritorious defense.
B. Attorney Fees The Kirbys request attorney fees on appeal pursuant to I.C. § 12

- 121
, arguing that this appeal has been frivolously pursued. The Scottons have not reque sted attorney fees on appeal. An award of attorney fees 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 C ourt finds that the appeal has been brought or defended frivolously, unreasonably, or without foundation. The Kirbys argue that they are entitled to attorney fees because the district court ’ s decision was supported by substantial facts in
the record
, and the Scottons only ask this Court to second

- guess the district court ’ s discretionary
decision . The Scottons argue that the Kirbys are not entitled to attorney fees because the
Scottons “ have presented several legitimate issues
, ” including whether th e district court can assign no weight to any of the Rule 55(c) factors and whether the district court erred by not

“ construing the facts and pleadings liberally in favor of the Scottons. ” W e have rejected the
Scottons ’ argument that the district court abused its discretion in concludi ng they failed to adequately plead a meritorious defense . B ecause the Scottons have made reasonable arguments supported by relevant authority in support of their claims of error, w e conclude that this appeal is

7 Although the Scottons cite the damages award as evidence of a meritorious defense, they do not challenge the amount of damages awarded.9 not frivolous, unreasonable or without found ation . Accordingly, we decline to award attorney fees to the Kirbys

. III.
CONCLUSION
The Scottons failed to present a meritorious defense in support of their motion to set aside default. Therefore, the dist rict court ’ s order denying the Scottons ’ mot ion to set asi de
default and the final default judgment are affirmed. Costs , but not attorney fees, are awarded to the Kirbys. Chief Judge GRATTON and Judge HUSKEY, CONCUR

.