               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44057

JOHN EDWARDS,                                   )    2017 Unpublished Opinion No. 370
                                                )
       Plaintiff-Appellant,                     )    Filed: February 17, 2017
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
JOSHUA MILLS,                                   )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Respondent.                    )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Judgment dismissing complaint, affirmed.

       John Edwards, Caldwell, pro se appellant.

       Hamilton, Michaelson & Hilty, LLP; Maren Ericson, Nampa, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       John Edwards appeals from the district court’s judgment dismissing Edwards’ complaint
against Joshua Mills. Edwards specifically maintains he was denied due process of the law. For
the reasons explained below, we affirm the district court.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       For several years, the Animal Control Department of the city of Caldwell has had
ongoing issues with Edwards due to his conduct in city parks. Edwards has apparently interfered
with animal control officers who were attempting to trap cats. Additionally, Edwards threatened
the safety of other park visitors by driving dangerously.       The city of Caldwell recreation
superintendent served a notice on Edwards, notifying him that pursuant to Idaho Code
Section 18-7008(A)(8), Edwards was no longer permitted to visit the city parks. Idaho Code




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Section 18-7008(A)(8) makes criminal the continued presence of an individual on property that
belongs to another after being notified to depart from the property by the owner or agent. 1
       Edwards questioned the validity of the trespass notice, so the Caldwell city prosecutor,
Joshua Mills, wrote a letter to Edwards explaining the history of misconduct and the need for the
trespass notice. In response, Edwards filed a complaint against Mills. Edwards titled the
complaint as a “Restraint Order of Notice of No Trespass.” Mills filed a motion to dismiss for
failure to state a claim upon which relief may be granted pursuant to Idaho Rule of Civil
Procedure 12(b)(6). 2 At a hearing on the motion, the district court informed Edwards that
because the city was the owner of the property, the city was lawfully permitted by statute to
order Edwards to not enter the parks. Mills, as an agent of the city of Caldwell, was lawfully
permitted to explain to Edwards the need for the trespass notice. The district court further
indicated that if Edwards disregarded the notice, he would be charged with trespass. The district
court granted Mills’ motion to dismiss with prejudice and awarded costs and attorney fees to
Mills. Edwards appeals from the district court’s judgment dismissing Edwards’ complaint and,
in his reply brief, seeks attorney fees on appeal. Mills requests an award of attorney fees and
costs on appeal.
                                                II.
                                           ANALYSIS
       Edwards contends the district court erred in dismissing the complaint because Mills
violated Edwards’ due process rights. As an appellate court, we will affirm a trial court’s grant

1
        Idaho Code Section 18-7008(A)(8) provides that the following people willfully commit
trespass:
               Every person, except under landlord-tenant relationship, who, being first
       notified in writing, or verbally by the owner or authorized agent of the owner of
       real property, to immediately depart from the same and who refuses to so depart,
       or who, without permission or invitation, returns and enters said property within a
       year, after being so notified.
2
       Idaho Rule of Civil Procedure 12(b) provides:
              Every defense, in law or fact, to a claim for relief in any pleading, whether
       a claim, counterclaim, cross-claim, or third party claim, must be asserted in the
       responsive pleading if one is required. But a party may assert the following
       defense by motion:
              ....
              (6) failure to state a claim upon which relief can be granted.
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of a Idaho Rule of Civil Procedure 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). When reviewing an
order of the district court dismissing a case pursuant to Rule 12(b)(6), the nonmoving party is
entitled to have all inferences from the record and pleadings viewed in its favor, and only then
may the question be asked whether a claim for relief has been stated. Coghlan, 133 Idaho at 398,
987 P.2d at 310. 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).
       Edwards maintains he did nothing “wrong” to justify the notice of trespass because the
city parks are public. This argument is without merit for several reasons. First, Idaho Code
Section 18-7008(A)(8) applies to both public and private property. State v. Korsen, 138 Idaho
706, 711, 69 P.3d 126, 131 (2003), abrogated on other grounds by Evans v. Michigan, ___ U.S.
___, ___, 133 S. Ct. 1069, 1087 (2013). Second, Edwards’ argument that he did nothing wrong
is irrelevant because Idaho Code Section 18-7008(A)(8) does not require a valid reason,
justification, or explanation for the notice to stay off property. Third, although not required by
statute, Mills explained why the city served Edwards the notice of trespass--that Edwards
contests the city’s reasoning is of no consequence.
       Moreover, Edwards’ conduct that served as the basis for the trespass notice is not
protected by the Constitution.      The Due Process Clause of the United States and Idaho
Constitutions forbids the government to deprive an individual of life, liberty, or property without
due process of law. U.S. CONST. amend. XIV; IDAHO CONST. art. I, § 13. To determine whether
an individual’s due process rights under the Fourteenth Amendment have been violated, a court
must engage in a two-step analysis. Schevers v. State, 129 Idaho 573, 575, 930 P.2d 603, 605
(1996). It must first decide whether the individual’s threatened interest is a liberty or property
interest under the Fourteenth Amendment. Id.; Smith v. Meridian Joint Sch. Dist. No. 2, 128
Idaho 714, 722, 918 P.2d 583, 591 (1996). Only if it finds a liberty or property interest will the
court reach the next step in which it determines the extent of due process procedural protections.
Schevers, 129 Idaho at 575, 930 P.2d at 605. The United States Supreme Court has held that the
right to petition government for a redress of grievance is a liberty interest intimately connected to



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the First Amendment. United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass’n, 389
U.S. 217, 222 (1967).
       In a similar case, Pentico v. State, 159 Idaho 350, 353, 360 P.3d 359, 362 (Ct. App.
2015), the defendant was cited for trespassing after receiving notice that he was not permitted on
that property. The defendant argued that application of Idaho Code Section 18-7008(A)(8) to a
citizen ordered to leave property that is otherwise held open to the public violates the Due
Process Clause.    Pentico, 159 Idaho at 354-55, 360 P.3d at 363-64.         We considered the
defendant’s First Amendment rights and concluded the defendant’s prohibited entry onto the
property constituted nonexpressive conduct--not speech. Because the defendant was not asked to
leave the premises due to his attempt to exercise his First Amendment rights, we held the
defendant’s First Amendment rights were not infringed when he was charged with trespass.
       Here, too, Edwards received a trespass notice for his nonexpressive conduct of entering a
park, interfering with animal control efforts, and driving dangerously. Edwards was not asked to
stay off the property on account of his speech or expressive conduct. Accordingly, Edwards is
unable to identify a constitutionally protected liberty or property interest necessary for a due
process violation. We conclude Mills did not violate Edwards’ due process rights by sending
Edwards a letter explaining why he could no longer enter the city’s parks under Idaho Code
Section 18-7008(A)(8). Because Edwards failed to plead facts to support his claims, the district
court properly dismissed his complaint.
       Mills requests an award of attorney fees and costs on appeal, pursuant to Idaho Appellate
Rules 40 and 41 and Idaho Code Section 12-121. An award of attorney fees on appeal is
appropriate when an appeal is brought, pursued or defended frivolously, unreasonably or without
foundation. Crowley v. Critchfield, 145 Idaho 509, 514, 181 P.3d 435, 440 (2007). 3 The district
court informed Edwards that Mills acted lawfully by sending the letter to Edwards. On appeal,
Edwards failed to present new or revised arguments. Most of his briefing consists of convoluted



3
        The Supreme Court recently adopted a new standard for attorney fees: “[P]revailing
parties in civil litigation have the right to be made whole for attorney fees they have incurred
when justice so requires.” Hoffer v. Shappard, 160 Idaho 868, 883, 380 P.3d 681, 696 (2016)
(internal quotation marks omitted). However, this new standard is not effective until March 1,
2017, “and will have prospective effect, applying to all cases that have not become final as of
that date.” Id. Thus, until March 1, 2017, we utilize the former standard. Regardless, we award
attorney fees and costs to Mills under either standard.
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or irrelevant arguments and claims. Thus, an award of attorney fees and costs to Mills is
appropriate.
       Edwards also requests an award of attorney fees in his reply brief. “In order to be
considered by this Court, the appellant is required to identify legal issues and provide authorities
supporting the arguments in the opening brief.” Myers v. Workmen’s Auto Ins. Co., 140 Idaho
495, 508, 95 P.3d 977, 990 (2004). “A reviewing court looks to the initial brief on appeal for the
issues presented on appeal.” Id. Because Edwards did not request an award of attorney fees in
his opening brief, the issue was not properly raised. Moreover, an attorney acting as a pro se
litigant is not entitled to an award of attorney fees on appeal. Chavez v. Canyon Cty., State, ex
rel. its Duly Elected Bd. of County Comm’rs, 152 Idaho 297, 305, 271 P.3d 695, 703 (2012).
Edwards’ request for attorney fees on appeal is denied.
                                                III.
                                         CONCLUSION
       For the reasons set forth above, the district court did not err in dismissing Edwards’
complaint because Edwards failed to set forth a claim for relief. We therefore affirm the district
court’s dismissal. Costs and attorney fees awarded to the respondent on appeal.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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