               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39698

ISLAND WOODS HOMEOWNERS         )                      2012 Unpublished Opinion No. 677
ASSOCIATION, INC.,              )
                                )                      Filed: October 16, 2012
      Plaintiff-Respondent,     )
                                )                      Stephen W. Kenyon, Clerk
v.                              )
                                )                      THIS IS AN UNPUBLISHED
PHILIP P. MC GIMPSEY,           )                      OPINION AND SHALL NOT
                                )                      BE CITED AS AUTHORITY
      Defendant-Appellant,      )
                                )
and                             )
                                )
JOLENE MC GIMPSEY, and STERLING )
DEVELOPMENT AND MORTGAGE CO., )
a Montana corporation,          )
                                )
      Defendants.               )
                                )
                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Judgment in favor of homeowners’ association in judgment lien execution action,
       affirmed.

       Philip P. McGimpsey, Eagle, pro se appellant.

       Fredric V. Shoemaker of Greener, Burke & Shoemaker, P.A., Boise, for
       respondent.
                 ________________________________________________
MELANSON, Judge
       Philip P. McGimpsey appeals from the district court’s judgment entered in favor of Island
Woods Homeowners Association (IWHA) in an action to execute on real property. For the
reasons set forth below, we affirm.




                                               1
                                               I.
                                 FACTS AND PROCEDURE
        In 2001, McGimpsey and his wife purchased an unimproved lot located in a subdivision
in Idaho. The recorded Declaration of Covenants, Conditions, and Restrictions (CC&Rs) of the
subdivision applied to all properties located within the subdivision. In 2006, the IWHA filed a
complaint alleging that McGimpsey had breached the CC&Rs. McGimpsey denied any breach.
The IWHA filed a motion for summary judgment, which the district court granted. The district
court ordered McGimpsey to immediately comply with the CC&Rs. Subsequently, the district
court heard oral argument on McGimpsey’s motion to alter or amend, which the district court
treated as a motion to reconsider, as well as the IWHA’s request for costs and attorney fees. In
February 2008, McGimpsey recorded a document entitled “Real Estate Mortgage,” stating that a
mortgage was created on the property effective February 28, 2008, between McGimpsey and
Sterling Development and Mortgage Company. 1 In April 2008, the district court issued an order
denying McGimpsey’s motion to reconsider and granting costs and attorney fees to the IWHA.
A judgment was entered in favor of the IWHA in May 2008 in the amount of $16,354.20, plus
interest.
        McGimpsey filed a second motion to alter or amend the judgment in the district court. In
June 2008, McGimpsey filed a notice of appeal seeking review of the summary judgment
decision, as well as the award of costs and attorney fees. Thereafter, the district court denied
McGimpsey’s second motion to alter or amend the judgment and entered an order awarding
supplemental costs and attorney fees.     McGimpsey filed an amended notice of appeal in
September 2008, seeking relief from the district court’s April 2008 order denying his motion for
reconsideration and awarding costs and attorney fees, the judgment entered upon that order in
May 2008, and the district court’s award of supplemental costs and attorney fees. A second
judgment was entered in favor of the IWHA in November 2008 in the amount of $9,062.60, plus
interest.
        McGimpsey continued to file various motions before the district court, all of which were
denied. In September 2009, the district court again ordered the award of supplemental costs and
attorney fees. A third judgment was entered in favor of the IWHA in October 2009 in the

1
        Sterling Mortgage is a Montana Corporation incorporated by McGimpsey in 1994.


                                               2
amount of $11,813.39. Thereafter, in an unpublished opinion, this Court affirmed the district
court in all respects and concluded that McGimpsey’s appeal was brought frivolously,
unreasonably, and without foundation. Island Woods Homeowners Ass’n v. McGimpsey, Docket
No. 35363 (Ct. App. Mar. 24, 2010). Thus, in June 2010, an order awarding costs and attorney
fees on appeal in favor of the IWHA was entered in the amount of $18,240.
       The IWHA made unsuccessful attempts to collect on the judgments awarding costs and
attorney fees. Consequently, in April 2011, the IWHA filed a complaint against McGimpsey,
McGimpsey’s wife, and Sterling Mortgage. The complaint alleged that the conveyance of the
real estate mortgage by McGimpsey to Sterling Mortgage was a fraudulent transfer. Thus, the
IWHA sought an order that the conveyance of the real estate mortgage by McGimpsey to
Sterling Mortgage was void and without effect or that it secured no money loaned to
McGimpsey. In the complaint, the IWHA also listed the May 2008, November 2008, and
October 2009 judgments owed to the IWHA and stated:
              IWHA is entitled to a declaratory judgment that each of the above listed
       judgments owed to IWHA is valid and Mr. McGimpsey’s personal and real
       property, including his interest and the McGimpseys’ community interest in the
       Property, is subject to execution for the payment of those judgments in full.

The IWHA also requested that a writ of execution issue for sale of the property to satisfy all
judgments owed by McGimpsey.
       Sterling Mortgage and McGimpsey’s wife were served with the complaint, summons,
and discovery requests, but neither responded. In June 2011, the district court entered default
judgment against Sterling Mortgage and declared that the real estate mortgage was void and
found to secure no money owed to Sterling Mortgage by McGimpsey. The district court also
entered default judgment against McGimpsey’s wife and ordered that she could not raise any
legal or factual objection to the property being sold at a sheriff’s sale in order to satisfy the
IWHA’s outstanding judgment liens on the property.
       McGimpsey filed an answer, in which he asserted that the real estate mortgage was valid
and also raised three counterclaims. The IWHA filed a motion for summary judgment, which
the district court granted. In September 2011, the district court entered a final judgment in favor
of the IWHA. In January 2012, the district court awarded the IWHA a supplemental judgment
for costs and attorney fees in the amount of $21,306.40. McGimpsey filed motions to vacate or



                                                3
amend the supplemental judgment, motions for stay of execution and sheriff’s sale, and a motion
to quash the amended writ of execution and levy. The district court denied all of these motions
as frivolous. McGimpsey filed a notice of appeal in February 2012.
       In March, the property was sold at a sheriff’s sale. After applying the proceeds to satisify
McGimpsey’s homestead claim and the various judgments and costs associated with the sale and
sheriff fees, the surplus funds were deposited with the district court.       The IWHA filed a
supplemental memorandum of costs and attorney fees and a motion requesting that the district
court continue to hold sufficient surplus execution sale proceeds to pay any supplemental costs
and attorney fees awarded and anticipated costs and attorney fees from the current appeal. In
May, the district court entered a memorandum decision and order awarding the IWHA
supplemental costs and attorney fees in the amount of $18,653.06. The district court further
ordered that an additional $20,000 be withheld from the surplus funds currently being held by the
district court for distribution for potential attorney fees awarded on appeal. McGimpsey appeals.
                                               II.
                                          ANALYSIS
A.     Amendment to the Complaint
       McGimpsey argues that the district court erred by allowing the IWHA to add a claim for
the order awarding costs and attorney fees entered by this Court in June 2010 to the April 2011
complaint. As described above, in the complaint, the IWHA listed the May 2008, November
2008, and October 2009 judgments owed to the IWHA and stated:
              IWHA is entitled to a declaratory judgment that each of the above listed
       judgments owed to IWHA is valid and Mr. McGimpsey’s personal and real
       property, including his interest and the McGimpseys’ community interest in the
       Property, is subject to execution for the payment of those judgments in full.

In July 2011, the IWHA filed an amended memorandum in support of its motion for summary
judgment asserting that the facts regarding the award of costs and attorney fees entered by this
Court in the amount of $18,240 were inadvertently left out of the complaint and that it was
entitled to execute on the property to satisfy all of its judgment liens. Thereafter, the district
court entered an order granting the IWHA’s motion for summary judgment and approving
foreclosure on the property to allow the IWHA to recover on its May 2008, November 2008,
October 2009, and June 2010 judgments against McGimpsey.



                                                4
        McGimpsey argues that, by allowing the IWHA to add a claim for the June 2010
judgment to the complaint without requiring that the IWHA first file an I.R.C.P. 15 motion to
amend the complaint, I.R.C.P. 54(c) was violated and the defaulted defendants were deprived of
notice and the opportunity to be heard. McGimpsey correctly asserts that I.R.C.P. 54(c) provides
that a judgment by default shall not be different in kind from or exceed in amount that prayed for
in the demand for judgment. However, McGimpsey is not a defaulted defendant in this case and
cannot raise any argument on behalf of such defendants on appeal.              To the extent that
McGimpsey asserts he was deprived of notice and the opportunity to be heard, such assertion is
belied by the record. Specifically, as noted above, before the district court entered an order
granting the IWHA’s motion for summary judgment, the IWHA filed an amended memorandum
in support of the motion asserting that the June 2010 judgment was inadvertently left out of the
complaint and that it was entitled to execute on the property to satisfy all of its judgment liens.
McGimpsey filed an opposition brief in which he raised the same arguments he now raises on
appeal. Further, I.R.C.P. 54(c) provides that, except as to a party against whom a judgment is
entered by default, every final judgment shall grant the relief to which the party in whose favor it
is rendered is entitled, even if the party has not demanded such relief in his or her pleadings.
McGimpsey does not contest that the June 2010 judgment was a valid judgment that the IWHA
was entitled to execute upon. Thus, the district court did not err by allowing the IWHA to add a
claim for the June 2010 judgment to its request for relief without requiring that the IWHA first
file an I.R.C.P. 15 motion to amend the complaint.
B.      Counterclaims
        McGimpsey argues that the district court erred by granting summary judgment in favor of
the IWHA on the counterclaims he raised in answer to the IWHA’s April 2011 complaint.
Specifically, McGimpsey asserts that, pursuant to I.A.R. 35(a)(6), because the IWHA failed to
make any argument or cite any authority to support its claim that McGimpsey’s counterclaims
were barred by res judicata, the IWHA failed to prove such claim by a preponderance of the
evidence and, therefore, the district court erred by summarily dismissing the counterclaims on
that basis.
        Idaho Appellate Rule 35(a)(6) is an appellate rule which requires that an appellant’s brief
contain a division entitled “Argument” which “shall contain the contentions of the appellant with
respect to the issues presented on appeal, the reasons therefor, with citations to the authorities,


                                                 5
statutes and parts of the transcript and record relied upon.” McGimpsey cites to no authority to
support his contention that I.A.R. 35 applies to summary judgment proceedings such that the
IWHA’s alleged failure to provide argument or cited authority to support its position that
McGimpsey’s counterclaims were barred by res judicata precluded summary judgment on the
counterclaims. Also, the rule governing summary judgment motions in trial courts, I.R.C.P. 56,
contains no similar requirement of citation to authorities.
       Res judicata prevents the litigation of causes of action which were finally decided in a
previous suit. Grubler by and Through Grubler v. Brydon, 125 Idaho 107, 110, 867 P.2d 981,
984 (1994). See also Magic Valley Radiology P.A. v. Kolouch, 123 Idaho 434, 436, 849 P.2d
107, 109 (1993); Diamond v. Farmers Group, Inc., 119 Idaho 146, 150, 804 P.2d 319, 323
(1990). As a general proposition, res judicata prevents litigants who were parties in a prior
action and those in privity with them from bringing or having to defend a claim arising from the
transaction or series of transactions giving rise to the first suit. Grubler, 125 Idaho at 110, 867
P.2d at 984. The review of a trial court’s ruling on whether an action is barred by res judicata is
a question of law over which this Court has de novo review. Wolfe v. Farm Bureau Ins. Co., 128
Idaho 398, 403, 913 P.2d 1168, 1173 (1996).
       The record shows that the counterclaims McGimpsey raised in his answer to the IWHA’s
April 2011 complaint were based on the IWHA’s alleged violations of the CC&Rs and
specifically arose out of the claims addressed in the 2006 litigation. McGimpsey’s counterclaims
either were directly addressed in the 2006 litigation and appeal or could have been addressed. In
other words, they are barred by res judicata. Thus, McGimpsey has not shown that the district
court erred by determining that McGimpsey’s counterclaims were barred by res judicata and,
therefore, summarily dismissing the counterclaims on that basis.
C.     Summary Judgment
       McGimpsey argues that the district court erred by granting the IWHA’s motion for
summary judgment with respect to the claim that the conveyance of the real estate mortgage by
McGimpsey to Sterling Mortgage was void. Specifically, McGimpsey asserts that the district
court erred by not providing him a trial on the claim and, instead, basing its decision for
summary judgment with respect to the claim upon default by the purported mortgagee, Sterling
Mortgage.




                                                 6
       We first note that summary judgment under I.R.C.P. 56(c) is proper only when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
On appeal, we exercise free review in determining whether a genuine issue of material fact exists
and whether the moving party is entitled to judgment as a matter of law.                Edwards v.
Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a
motion for summary judgment, all controverted facts are to be liberally construed in favor of the
nonmoving party. Furthermore, the trial court must draw all reasonable inferences in favor of
the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808
P.2d 851, 854 (1991); Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876 P.2d 154, 156
(Ct. App. 1994).
       The party moving for summary judgment initially carries the burden to establish that
there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of
law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden
may be met by establishing the absence of evidence on an element that the nonmoving party will
be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App.
1994). Such an absence of evidence may be established either by an affirmative showing with
the moving party’s own evidence or by a review of all the nonmoving party’s evidence and the
contention that such proof of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134
Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been
established, the burden then shifts to the party opposing the motion to show, via further
depositions, discovery responses or affidavits, that there is indeed a genuine issue for trial or to
offer a valid justification for the failure to do so under I.R.C.P. 56(f). Sanders, 125 Idaho at 874,
876 P.2d at 156.
       The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c),
which is identical in all relevant aspects to I.R.C.P. 56(c), stated:
       In our view, the plain language of Rule 56(c) mandates the entry of summary
       judgment, after adequate time for discovery and upon motion, against a party who
       fails to make a showing sufficient to establish the existence of an element
       essential to that party’s case, and on which that party will bear the burden of proof
       at trial. In such a situation, there can be “no genuine issue as to any material
       fact,” since a complete failure of proof concerning an essential element of the
       nonmoving party’s case necessarily renders all other facts immaterial. The
       moving party is “entitled to judgment as a matter of law” because the nonmoving



                                                   7
       party has failed to make a sufficient showing on an essential element of her case
       with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and
reasoning of Celotex has been adopted in Idaho. Dunnick, 126 Idaho at 312, 882 P.2d at 479.
       Here, the real estate mortgage purportedly granted a lien to Sterling Mortgage. Sterling
Mortgage was properly served with the April 2011 complaint and put on notice that the validity
of the real estate mortgage was being challenged and that the IWHA was seeking an order
declaring the conveyance of such mortgage to be void and without effect or to secure no money
loaned to McGimpsey. When Sterling Mortgage failed to respond to the complaint, no other
party remained with standing to defend the lien. Thus, the district court properly entered default
judgment against Sterling Mortgage and declared that the real estate mortgage was void. Once
default judgment was entered against Sterling Mortgage, the real estate mortgage was
invalidated. Sterling Mortgage received a copy of the default judgment and the record does not
disclose that Sterling Mortgage raised any challenge to that judgment. Therefore, there was no
genuine issue of material fact regarding whether the real estate mortgage was void. Thus, the
IWHA was entitled to judgment as a matter of law and the district court did not err by granting
the IWHA’s motion for summary judgment with respect to the claim that the conveyance of the
real estate mortgage by McGimpsey to Sterling Mortgage was void.
D.     Attorney Fees
       McGimpsey argues that the district court erred by awarding the IWHA’s counsel unpaid
attorney fees. McGimpsey relies on the language of I.R.C.P. 54 to support this argument.
Specifically, McGimpsey claims that, because I.R.C.P. 54(e)(5) indicates that attorney fees shall
be deemed as “costs” and I.R.C.P. 54(d)(1)(C) states that, when “costs” are awarded to a party,
such party shall be entitled to costs “actually paid,” the district court could not award the
IWHA’s counsel any attorney fees because counsel admitted in a December 2011 reply in
support of the IWHA’s memorandum of costs and attorney fees that counsel had yet to be paid.
       McGimpsey’s reliance upon the language of I.R.C.P. 54 is misplaced. Idaho Rule of
Civil Procedure 54(e)(5) provides:
               Attorney fees, when allowable by statute or contract, shall be deemed as
       costs in an action and processed in the same manner as costs and included in the
       memorandum of costs; provided, however, the claim for attorney fees as costs



                                                8
         shall be supported by an affidavit of the attorney stating the basis and method of
         computation of the attorney fees claimed.

Idaho Civil Rule of Procedure 54(d)(1)(C), on the other hand, lists ten specific costs--not
including attorney fees--that, when a party is awarded such costs that have been actually paid,
such party is entitled to those costs as a matter of right.          An award of attorney fees is
discretionary. Specifically, 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 court is left with the abiding
belief that the appeal has been brought or defended frivolously, unreasonably, or without
foundation. Rendon v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995). Thus,
attorney fees are not costs that a party is entitled to as a matter of right and are not subject to the
“actually paid” requirement of I.R.C.P. 54(d)(1)(C). McGimpsey has not shown that the district
court erred by awarding the IWHA’s counsel unpaid attorney fees.
         McGimpsey also argues that the district court erred by ordering in May 2012 that
$20,000 be withheld from the surplus sale proceeds for potential attorney fees on appeal.
McGimpsey does not cite to any argument or authority to support this argument. Indeed,
McGimpsey asserts that he is “unaware of any rule of jurisprudence or case law that stands for
the proposition that ‘unearned’ fees can be legally, or for that matter ethically, paid.” A party
waives an issue on appeal if either argument or authority is lacking. Powell v. Sellers, 130 Idaho
122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Therefore, we need not consider McGimpsey’s
claim.
         We also note that, pursuant to I.A.R. 13(b)(12), in civil actions, unless prohibited by
order of the Idaho Supreme Court, the district court shall have the power and authority to take
the following action during the pendency of an appeal:
                Make any order which the district court deems appropriate in its discretion
         for the payment or advancement of attorneys fees and/or anticipated costs on
         appeal by one party to the other, subject to the order of the Supreme Court
         determining the right to, and amount of, attorneys fees on appeal.

As the district court noted in its May 2012 order, this provision was addressed by the Idaho
Supreme Court in Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 745, 979 P.2d 605,
618 (1999). In that case, the Court upheld a decision based on I.A.R. 13(b)(12) to require an
appellant to advance attorney fees to an appellee when the trial court had determined that the



                                                  9
appellant had brought a cross-claim that was frivolous and without foundation, the appellee was
indigent and unable to pay costs and attorney fees to defend the appeal, and the appellant was not
incurring attorney fees because she was being represented by her son. Peasley, 132 Idaho at 745,
979 P.2d at 618. Finding no reason to question the discretionary judgment of the trial court in
ordering the advancement, the Court affirmed the trial court’s order advancing fees to the
appellee for appeal provided that the appellee’s attorney file with the Court within twenty-one
days from the date of the opinion a satisfactory showing that the advanced funds were
appropriately applied toward defending the appeal of the trial court’s decision. Id. at 745-46,
979 P.2d at 618-19.
       The district court in this case stated:
                Analogous to the indigent appellee in Peasley, Island Woods, as a non-
       profit organization, represents its homeowners and relies on those homeowners to
       contribute through dues. It is not a money making organization. Those fees and
       costs have now reached over $100,000 where all it was trying to do was enforce
       its CC&Rs.
                This Court determined that based on the facts of the previous litigation,
       the subsequent appeal and the current litigation that attorney fees and costs should
       be awarded to Island Woods under I.C. § 12-121. The current appeal is not unlike
       the prior one. Mr. McGimpsey has been and is continuously told his actions are
       frivolous. The Court of Appeals found that Mr. McGimpsey’s arguments were
       frivolous and awarded Island Woods $18,240.00 in fees and costs. The issues in
       the present action alone are extremely similar to those found in the previous
       litigation and appeal. Island Woods represented to the Court that in responding to
       Mr. McGimpsey’s various arguments on appeal, it expects to incur another
       $20,000 in attorney fees and costs.
                If McGimpsey is successful or the appellate court rules attorney fees
       should not be awarded to Island Woods, the funds obviously will be released to
       McGimpsey and his wife.
                However, based on its concerns that should Island Woods be successful
       and awarded attorney fees on appeal, McGimpsey would continue this frivolous
       litigation by claiming he did not have any assets and once again Island Woods
       would have to pursue him. Therefore, in an exercise of discretion, the Court
       orders that an additional $20,000 be withheld from the surplus funds currently
       being held by the court for distribution for a potential attorney fees award on
       appeal.

As in Peasley, there is no reason to question the discretionary judgment of the district court in
ordering the advancement. Thus, McGimpsey has not shown that the district court erred by




                                                 10
ordering that $20,000 be withheld from the surplus sale proceeds for potential attorney fees on
appeal. 2
E.      Sale of the Property
        McGimpsey argues that the district court erred by allowing the sheriff’s sale of the
property to go forward based upon a defective writ of execution. In February 2012, McGimpsey
filed a motion asking the district court to quash the amended writ of execution against the
property based upon demonstrated mathematical and financial defects. McGimpsey filed a brief
in support of the motion and attached a spreadsheet. In March, the district court entered an order
denying McGimpsey’s motion. McGimpsey asserts that, because the spreadsheet demonstrated
to the district court the mathematical and financial errors in the amended writ, the district court
erred by allowing the sheriff’s sale to proceed.
        It is the responsibility of the appellant to provide a sufficient record to substantiate his or
her claims on appeal. Powell, 130 Idaho at 127, 937 P.2d at 439. In the absence of an adequate
record on appeal to support the appellant’s claims, we will not presume error. Id. The record on
appeal does not contain the amended writ of execution. Thus, it is impossible for this Court to
determine whether the spreadsheet attached to McGimpsey’s brief filed in support of his motion
to quash the amended writ actually demonstrated to the district court mathematical and financial
errors. Accordingly, we will not presume that the district court erred by allowing the sheriff’s
sale of the property to go forward as McGimpsey asserts.
        McGimpsey also argues that the district court erred by concluding that the entire property
could be sold. Specifically, McGimpsey asserts that the entire property could not be sold
because he and his wife owned separate interests in the property as tenants-in-common.
However, as described above, after McGimpsey’s wife was served with the April 2011
complaint, she did not respond. Thus, in June 2011, the district court entered default judgment
against McGimpsey’s wife and ordered that she could not raise any legal or factual objection to
the property being sold at a sheriff’s sale in order to satisfy the IWHA’s outstanding judgment
liens on the property. Once default judgment was entered, McGimpsey’s wife was the only one
who could challenge the judgment. Having failed to do so, the issue was fully and finally
decided pursuant to the default judgment entered against McGimpsey’s wife. Thus, McGimpsey

2
      Since we do award costs and attorney fees in this case, the IWHA will be required to
comply with the provisions of I.A.R. 40.

                                                   11
has failed to show that the district court erred by concluding that the entire property could be
sold in order to satisfy the IWHA’s judgments against McGimpsey.
       McGimpsey further argues, generally, that the district court erred by allowing the
sheriff’s sale of the property to go forward without requiring the IWHA to comply with the
execution process set forth in I.C. § 55-1101 to I.C. § 55-1115, which deals with execution upon
property subject to a claim of homestead. However, McGimpsey did not raise this argument
before the district court, with the exception of his claim that the IHWA did not request an
appraisal pursuant to I.C. § 55-1101. McGimpsey argues that the execution sale was not valid
because it was done without a pre-sale appraisal under I.C. § 55-1101. While I.C. § 55-1101
provides that “the judgment creditor may apply to the district court of the county in which the
homestead is situated for the appointment of persons to appraise the value thereof,” use of the
word “may” indicates that such application is not mandatory. Here, the IWHA chose not to use
the appraisal procedures. Therefore, McGimpsey has not shown that the district court erred by
refusing to require a pre-sale appraisal. We do not consider the remaining claims raised by
McGimpsey under these statutes because, generally, issues not raised below may not be
considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061,
1062 (1991).
F.     Attorney Fees on Appeal
       The IWHA argues that it is entitled to attorney fees on appeal pursuant to I.C. § 12-121
and I.A.R. 41(a) because all of McGimpsey’s arguments on appeal are frivolous. 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 court is left with the abiding belief that the appeal has been
brought or defended frivolously, unreasonably, or without foundation. Rendon, 126 Idaho at
945, 894 P.2d at 776. The IWHA is the prevailing party on appeal, and we conclude that
McGimpsey’s appeal has been brought frivolously, unreasonably, and without foundation.
                                               III.
                                        CONCLUSION
       The district court did not err by allowing the IWHA to add a claim for the June 2010
judgment to its request for relief in the present action without requiring that the IWHA first file
an I.R.C.P. 15 motion. McGimpsey has not shown that the district court erred by determining
that McGimpsey’s counterclaims were barred by res judicata and, therefore, summarily


                                                12
dismissing the counterclaims on that basis. The district court did not err by granting the IWHA’s
motion for summary judgment with respect to the claim that the conveyance of the real estate
mortgage by McGimpsey to Sterling Mortgage was void. McGimpsey has not shown that the
district court erred by awarding the IWHA’s counsel unpaid attorney fees or by ordering that
$20,000 be withheld from the surplus sale proceeds for potential attorney fees on appeal.
McGimpsey has not shown that the district court erred by allowing sale of the property to satisfy
the IWHA’s judgments against McGimpsey. Thus, the district court’s judgment entered in favor
of the IWHA is affirmed. Costs and attorney fees are awarded to the IWHA on appeal.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




                                               13
