               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37941

TODD and CHRISTINA BATES, husband               )     2011 Unpublished Opinion No. 416
and wife,                                       )
                                                )     Filed: March 28, 2011
       Plaintiffs-Counterdefendants-            )
       Respondents,                             )     Stephen W. Kenyon, Clerk
                                                )
v.                                              )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
MICHAEL B. SCHWARZKOPF,                         )     BE CITED AS AUTHORITY
                                                )
       Real Party in Interest-Appellant,        )
                                                )
and                                             )
                                                )
STEVEN PAUL SELDIN, JR. and TARA                )
RACHELLE BATES, husband and wife;               )
THE WHOLE NINE YARDS, INC., an                  )
Idaho corporation,                              )
                                                )
        Defendants-Counterclaimants.            )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Phillip M. Becker, District Judge.

       Order denying motion for relief under I.R.C.P. 60(b), affirmed.

       Michael B. Schwarzkopf, Boise, pro se appellant.

       Scott L. Rose, Boise, for respondents.
                  ________________________________________________
GRATTON, Chief Judge
       Michael B. Schwarzkopf appeals from the district court’s denial of his Idaho Rule of
Civil Procedure 60(b) motion for relief from a judgment awarding attorney fees against him.
                                               I.
                      FACTS AND PROCEDURAL BACKGROUND
       Todd and Christina Bates, husband and wife (Bates), brought an action against Steven
Paul Seldin, Jr., and Tara Rachelle Bates, husband and wife, and The Whole Nine Yards, Inc.,



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(collectively “Seldin”) for breach of contract, unjust enrichment, and fraud. Schwarzkopf, who
is an attorney, represented Seldin in the action. Following a jury verdict in favor of Bates on all
counts, the district court entered judgment and awarded costs and attorney fees. Seldin filed a
motion for judgment notwithstanding the verdict, which the district court denied. Seldin filed a
motion to reconsider the district court’s denial of the motion for judgment notwithstanding the
verdict. Seldin also filed a motion to reconsider the district court’s award of costs and attorney
fees. In response, Bates filed a motion for costs and attorney fees incurred in defending Seldin’s
motions to reconsider. On November 16, 2007, the district court issued an order denying both of
Seldin’s motions to reconsider and awarding Bates $2,800 in additional attorney fees incurred as
a result of Seldin’s motions to reconsider. On December 17, 2007, the district court entered a
second amended judgment which awarded Bates $2,800 against both Seldin and Schwarzkopf.
       Seldin appealed the judgment and awards of attorney fees and costs entered against
Seldin to the Idaho Supreme Court. While Schwarzkopf represented Seldin in the appeal, he did
not appear and directly appeal the award of attorney fees against him personally. Bates v. Seldin,
146 Idaho 772, 203 P.3d 702 (2009). The Idaho Supreme Court affirmed the district court’s
award against Seldin of $2,800 for fees incurred by Bates incident to the motions for
reconsideration. Id. at 777-78, 203 P.3d at 707-08. Following remittitur on appeal, the district
court entered an amended judgment in favor of Bates on November 13, 2009, as against Seldin
and, at the same time, another judgment in the amount of $2,800 individually against
Schwarzkopf.
       On May 12, 2010, Schwarzkopf filed a motion under I.R.C.P. 60(b) asking for relief from
the district court’s $2,800 judgment entered against him personally. After a hearing, the district
court denied Schwarzkopf’s Rule 60(b) motion. Schwarzkopf appeals.
                                                II.
                                           ANALYSIS
       Schwarzkopf claims that the district court erred by denying his I.R.C.P. 60(b) motion for
relief from the $2,800 judgment entered against him. Specifically, Schwarzkopf argues the
district court should have granted his motion under I.R.C.P. 60(b)(1), (4) and/or (5). Relief from
a judgment under Rule 60(b)(5) may be granted when a prior judgment upon which it is based
has been reversed or otherwise vacated. Relief under Rule 60(b)(4) may be granted from a final




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judgment or order when the judgment is void. Under Rule 60(b)(1), relief from a judgment may
be granted if it was entered by mistake.
A.     I.R.C.P. 60(b) Motion on Grounds of Vacated or Voided Judgment
       Schwarzkopf argues he is entitled to relief because the judgment against him has been
vacated, I.R.C.P. 60(b)(5), or voided, I.R.C.P. 60(b)(4). Schwarzkopf contends that the Idaho
Supreme Court’s decision affirming the award of attorney fees against Seldin incident to the
motions for reconsideration “limited” the basis of the award to Idaho Code § 12-120(3), because
the underlying case involved a commercial transaction. He asserts that, since he was not a party
to the commercial transaction, there is no basis for the award entered against him and the
judgment against him has, therefore, been vacated or voided. We disagree.
       Schwarzkopf did not appeal the $2,800 judgment entered against him personally,
although he could have done so. Under Idaho Appellate Rule 4, “[a]ny party aggrieved by an
appealable judgment order or decree” may appeal preserved issues. It is not necessary for a
person to be named as a plaintiff, defendant, or intervener in the title to an action, or in the title
to a judgment entered therein, in order to become a party to the action as contemplated by the
rule. See Washington County Abstract Co. v. Stewart, 9 Idaho 376, 380-81, 74 P. 955, 956-57
(1903) (decision under former statute providing “any party aggrieved may appeal”). Review is
available by filing a notice of appeal as a “real party in interest” in the case, and the need to do so
can occur in a number of different instances where a court issues an order that is adverse to a
person or entity that is not a formal party to the proceedings. As pertinent here, there are many
reported Idaho appellate decisions where an attorney has appealed a district court’s judgment
against the attorney personally as a real party in interest. See Slack v. Anderson, 140 Idaho 38,
89 P.3d 878 (2004); Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 803
P.2d 993 (1991); Curzon v. Hansen, 137 Idaho 420, 49 P.3d 1270 (Ct. App. 2002).
       On behalf of Seldin, Schwarzkopf argued on appeal to the Idaho Supreme Court that the
award of $2,800 was improper because it was not supported by written findings of fact, which he
asserted were required in order to award attorney fees for frivolous conduct. The Idaho Supreme
Court addressed the issue specifically as to the award against Seldin, stating:
              Appellants argue that the district court failed to find that the motions were
       defended or made frivolously, unreasonably, or without foundation and failed to
       make a written finding as to the basis and reasons for awarding attorney fees. We
       do not find this argument persuasive. Both parties acknowledged that the instant


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       case involved a commercial transaction. Therefore, the district court properly
       awarded [Bates] their attorney fees pursuant to I.C. § 12-120(3).

Seldin, 146 Idaho at 777-78, 203 P.3d at 707-08. Because the appeal was brought on behalf of
Seldin, the Court’s decision upholding the award of attorney fees, pursuant to I.C. § 12-120(3),
applied only against Seldin, not Schwarzkopf. The Idaho Supreme Court made no determination
as to the award of attorney fees against Schwarzkopf personally. Therefore, the Idaho Supreme
Court’s decision did not directly vacate or void the judgment against Schwarzkopf.
       Schwarzkopf appears to also contend that if the Idaho Supreme Court’s ruling did not
directly vacate or void the award against him, the decision operated to undermine the basis for
the award and, therefore, effectively vacate or void the award against him personally. The
decision of the Idaho Supreme Court cannot be read to limit the basis of attorney fees as against
Schwarzkopf.    First, the Idaho Supreme Court did not expressly reject the district court’s
attorney fee award to the extent it was based on a rule or statute providing for attorney fees for
frivolous conduct. Instead, as to the argument regarding the need for written findings, the Idaho
Supreme Court stated: “We do not find this argument persuasive.” Second, because the award
being challenged was only as against Seldin, the Idaho Supreme Court did not need to
extensively analyze the frivolousness issue, since, as between Seldin and Bates, an alternative
ground to uphold the award, I.C. § 12-120(3), clearly existed. Third, the Idaho Supreme Court
was simply not given the opportunity to review any basis for the award against Schwarzkopf,
which may have resulted in substantially different analysis than the award against Seldin. The
Idaho Supreme Court may have, if it had been presented with the issue of the propriety of the
award against Schwarzkopf, determined that an appropriate basis to uphold the award existed.
Contrary to his argument, the Idaho Supreme Court’s decision does not “limit” the district
court’s judgment against Schwarzkopf in any way or effectively vacate or void the award.
Therefore, Schwarzkopf’s arguments that he should be relieved from the judgment based on
I.R.C.P. 60(b)(4) and/or I.R.C.P. 60(b)(5) are without merit.
B.     Rule 60(b) Motion on Grounds of Mistake
       Schwarzkopf argues that the district court should have granted his Rule 60(b) motion
because the court signed the order by mistake. As evidence of the alleged mistake, Schwarzkopf
points to certain comments made by the district court in the hearing on the Rule 60(b) motion
which he contends constitute an acknowledgement by the court that the original order was not


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intended to include an award against him personally.           Schwarzkopf argued below that
Rule 60(b)(1) relief was warranted because “this court’s attempt to re-enforce its original order
against me for these fees and costs after the Supreme Court effectively ruled to the contrary was
a mistake.” He did not assert that the “mistake” was including him in the award in the first
place. Instead, on appeal, Schwarzkopf contends that “for the first time, during the hearing”
evidence developed that the court had mistakenly included him in the original order.
Schwarzkopf did not raise this issue with the district court or obtain a ruling on this particular
argument. Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Moreover, upon review of the
entire transcript of the hearing on the Rule 60(b) motion, we find no acknowledgement by the
district court that it mistakenly included Schwarzkopf in the original order. The district court
was well aware, in denying Rule 60(b) relief, that the issue before it was the award of attorney
fees against Schwarzkopf personally. 1
                                               III.
                                         ATTORNEY FEES
Bates requests attorney fees on appeal pursuant to I.C. § 12-120(3) and I.R.C.P. 54(e) as a
prevailing party in a commercial transaction. Bates has provided no authority or argument that
I.C. § 12-120(3) applies to the parties in this appeal and, therefore, we decline to award attorney
fees on this ground. Bates also requests attorney fees pursuant to Idaho Appellate Rule 11.1,
citing Frank v. Bunker Hill Co., 142 Idaho 126, 132, 124 P.3d 1002, 1008 (2005). Idaho
Appellate Rule 11.1, as referenced in Frank, has been redesignated to I.A.R. 11.2. Under
I.A.R. 11.2, sanctions may be imposed on appeal if: (1) the arguments are not well grounded in
fact, warranted by existing law or a good faith argument for extension, modification, or reversal
of existing law; and (2) interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. Bates claims that this appeal was
brought for the improper purpose of causing unnecessary and needless increase in the cost of
litigation. While we clearly disagree with the positions taken by Schwarzkopf in this appeal, we




1
        We also note that this new argument is directed at the original order entered in 2007,
instead of the judgment entered in 2009. However, a Rule 60(b)(1) motion must be brought no
later than six months from the date the order was entered.

                                                5
have been directed to no evidence that the purpose of the appeal was to cause unnecessary and
needless increase in litigation costs. The request for attorney fees by Bates is denied.
                                                  IV.
                                           CONCLUSION
         Schwarzkopf has failed to demonstrate that the district court erred in failing to grant relief
from the judgment under I.R.C.P. 60(b). Therefore, the district court’s denial of Schwarzkopf’s
motion for relief under I.R.C.P. 60(b) is affirmed. Costs, but no attorney fees, are awarded to
Bates.
         Judge LANSING and Judge GUTIERREZ CONCUR.




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