IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 31717
JOHN N. BACH, )
)
Plaintiff-Appellant, )
)
v. )
)
BOB BAGLEY and MAE BAGLEY, husband )
and wife; and DOES 1 through 30, inclusive, )
)
Defendants, )
)
and )
Boise, January 2010 Term
)
KATHERINE D. MILLER, aka )
2010 Opinion No. 25
KATHERINE M. MILLER, dba R.E.M.; )
ALVA HARRIS, individually, and dba )
Filed: March 17, 2010
SCONA, INC.; JACK LEE McLEAN; BOB )
FITZGERALD, individually, dba CACHE )
Stephen W. Kenyon, Clerk
RANCH; OLE OLESON; BLAKE LYLE, )
individually, dba GRAND TOWING; )
GALEN WOELK and CODY RUNYAN, )
individually, dba RUNYAN & WOELK; )
ANN-TOY BROUGHTON; WAYNE )
DAWSON; MARK LIPONIS; EARL )
HAMBLIN; THE ESTATE OF STAN )
NICKELL; BRET HILL and DEENA R. )
HILL, )
)
Defendants-Respondents. )
______________________________________ )
Appeal from the District Court of the Seventh Judicial District of the State of Idaho,
Teton County. The Honorable Richard T. St. Clair, District Judge.
The various orders and judgment of the district court are affirmed.
John N. Bach, appellant pro se.
Alva A. Harris, Shelley, attorney for respondents Harris, individually and dba
Scona, Inc.; McLean; Fitzgerald, individually and dba Cache Ranch; Oleson; and
Lyle, individually and dba Grand Towing and Grand Body & Paint. Alva A.
Harris argued.
Hawley Troxell Ennis & Hawley, LLP, Boise, for respondents Galen Woelk and
Cody Runyan, individually and dba Runyan & Woelk. Jason D. Scott argued.
Hopkins Roden Crockett Hansen & Hoopes, PLLC, Idaho Falls, for respondent
Earl Hamblin. C. Timothy Hopkins argued.
Baker & Harris, Blackfoot, for respondents Wayne Dawson and Bret and Deena
Hill. Jared M. Harris argued.
Rigby, Thatcher, Andrus, Rexburg, for respondent Estate of Stan Nickell. Hyrum
D. Erickson argued.
Aron and Hennig, Laramie, Wyoming, for respondent Miller. Galen B. Woelk
argued.
_____________________
J. JONES, Justice.
John N. Bach appeals an adverse final judgment and a number of pre- and post-trial
orders. We affirm the orders and judgment of the district court.
I.
Factual and Procedural Summary
Between 1992 and 2000, John N. Bach acquired various interests in real property in
Teton County under variations of the name ―Targhee Powder Emporium.‖ However, he took no
action to establish a separate legal entity in that name or to file an assumed business name
certificate until 2007. Bach also purported to acquire some interests in real property on behalf of
the Vasa N. Bach Family Trust, which was established by Bach’s mother in 1993 with Bach as
the trustee. Bach treated all acquired property interests as his personal property, even executing
assignments on behalf of these entities to himself in a personal capacity.
As a result of his acquisition and use of these interests, Bach’s relationship with several
neighboring land owners and other Teton County residents, including the respondents,
deteriorated, culminating in a series of altercations that Bach characterized as ―raids‖ on his
property. There is evidence in the record that some of the respondents did enter upon real
property which Bach occupied and carried away or caused damage to his personal property,
resulting in the district court’s entry of a preliminary injunction. There is also some evidence that
threats were made against Bach by some of the respondents and vice-versa. However, there is
2
also evidence to indicate that many of the ―raids‖ resulted from actions taken by Bach to block
Katherine Miller’s access to a parcel of property purportedly jointly owned by Bach and Miller,
as well as another parcel held solely by Miller. Apparently prompted by Bach’s actions, Miller,
Jack McLean, Mark Liponis, and Alva Harris joined together to form an incorporated entity
known as Targhee Powder Emporium, Inc., whose name they subsequently used to deed land
interests, which Bach had obtained in the name of the Targhee entities, back to allegedly
defrauded parties.
Bach filed suit against Miller; Harris; Scona, Inc.; Bob Fitzgerald; Ole Oleson; Blake
Lyle; McLean;1 Galen Woelk; Cody Runyan; Bob and Mae Bagley; Ann-Toy Broughton; Wayne
Dawson; Earl Hamblin; Stan Nickell;2 Bret and Deena Hill; and Liponis (collectively, the
respondents) on July 23, 2002, with some parties added by an amended complaint.3 The
amended complaint that Bach filed on September 27, 2002, contained eleven counts. Counts one
through four sought to quiet title to the parcels of real property described below. The remaining
counts alleged causes of action for slander of title, intentional interference with prospective
economic advantage, breach of fiduciary duty, conversion, racketeering, malicious prosecution,
and malicious harassment. After attempting unsuccessfully to have the amended complaint
dismissed, Miller filed an answer and counterclaim against Bach, the Targhee entities, and the
Vasa N. Bach Family Trust,4 asserting claims for fraud, trespass, slander of title, and breach of
fiduciary duty. Broughton,5 Nickell, Runyan, and Woelk also immediately answered. The
remaining parties, as discussed below, were defaulted and either had default set aside or
judgment entered against them.
Bach sought to quiet title to five different parcels of real property. The first parcel, the
subject of Bach’s jury trial against Miller, consists of approximately 87 acres that Miller and one
of Bach’s fictitious business entities, Targhee Power Emporium, purchased from Lovell and
Lorraine Harrop in 1995. Based on various misrepresentations made by Bach, Miller signed a
1
Jack McLean passed away in December 2003. His daughter, Lynn McLean, was appointed personal representative
of his estate in Teton County and the estate was substituted for Jack McLean as a party defendant.
2
Stan Nickell passed away during these proceedings and his wife, Arlene Nickell, as personal representative of his
estate, was substituted as a party defendant.
3
Runyan, Liponis, and the Bagleys were dismissed because Bach failed to effect timely service of process on them
as required by I.R.C.P. 4(a)(2).
4
The Vasa N. Bach Family Trust was defaulted for failure to appear.
5
It is assumed that Broughton answered. Her answer appears nowhere in the record, but she was never defaulted and
judgment was entered in her favor.
3
contract in which she agreed to pay a total of $120,000.00 to the Harrops in order to obtain a
one-half interest in 80 acres of an original 160-acre parcel. Targhee would obtain the other one-
half interest. Unbeknownst to Miller, Bach arranged to pay the Harrops $105,000.00 to convey
the 80 acres to Targhee and Miller and have them refund the remaining $15,000.00 of Miller’s
money to Bach. As a result of subsequent litigation on the contract, Bach and Miller also
received the deed to an access strip of approximately 6.63 acres along the north of the eighty acre
parcel. Then, in September 1997, the district court quieted title to the eastern-most 80 acres (less
the access strip) in the Harrops. Title to the western half of the remaining 80 acres and the access
strip were quieted in Miller, while title to the eastern half of the 80 was quieted in Bach. As a
part of a settlement agreement, Miller and Bach agreed to share an undivided one-half interest in
the 6.63-acre access strip and in another 3.3-acre access strip.6 The parties also granted each
other reciprocal easements for access.
Bach sought to quiet title to a second parcel of 8.5 acres in which he held an undivided
one-half interest as a tenant in common with respondent Wayne Dawson. Bach sought to quiet
title in a third parcel of 33 acres, known as the ―Drawknife Property,‖ in which he held an
undivided one-third interest as a tenant in common with Jack McLean and Mark Liponis, who
each claimed a one-third interest. Bach also sought to quiet title to a fourth property of 40 acres,
known as the ―Peacock Property,‖ in which he claimed an undivided one-fourth interest, with
respondents McLean, Dawson, and Bach’s sister and brother-in-law, Diane and Milan Cheyovich
through the Cheyovich Family Trust, also claiming one-fourth interests as tenants in common.
Additionally, Bach sought to quiet title to a 1-acre parcel with a house located at 195
North Highway 33 in Driggs. The property was conveyed to the Targhee Power Emporium by
Layne and Cindy Price in 1992. Subsequently, the Internal Revenue Service recorded federal tax
liens against the property for $96,000 in delinquent federal tax owed by Targhee Powder
Emporium for tax years 1990 through 1993. The Internal Revenue Service sold the parcel to
Scona, an entity controlled by respondent Harris, at a tax sale on August 5, 1997, conveying the
property to Scona by quitclaim deed in 1998. Bach challenged the sale in state and federal court
as being in violation of the automatic stay in his chapter 13 bankruptcy case, which was filed on
August 4, 1997. Two federal actions brought by Bach were dismissed for his failure to file an
6
Additionally, Miller, Bach, and Targhee released all claims they had against each other.
4
adequate complaint and the state court quieted title in Scona after Bach defaulted. Subsequently,
Scona conveyed the property to respondents Bret and Deena Hill.
The remainder of Bach’s claims stem from clashes he had with neighboring landowners
and other Teton County residents. Bach alleges that most of the respondents joined together in a
concerted action to remove him from Teton County, taking such actions as threatening him with
physical harm, destroying his personal property, stealing his personal property, 7 damaging and
trespassing on his real property, misappropriating funds through the formation of corporate
entities, misappropriating his real property by issuing fraudulent deeds, abusing legal process as
a means of harassment, and harassing him on the basis of his Montenegrin heritage. The bulk of
these claims were dismissed on summary judgment or motions to dismiss by the non-defaulted
respondents, either for failure to state a claim on which relief could be granted, lack of evidence,
or on issue and claim preclusion grounds.
Trial was held in this matter on Bach’s claims against Miller and Broughton and Miller’s
counterclaims against Bach, resulting in a verdict in Miller and Broughton’s favor on all claims
asserted by Bach. The court entered a directed verdict for Miller on her breach of fiduciary duty
claim, and the jury found for Miller on all remaining counterclaims, with the exception of
trespass, and awarded her $132,456.72 in damages. The district court also quieted title in Miller
to the 87-acre parcel. Bach made multiple post-trial motions that were denied. After the first
denial of post-trial motions and the entry of findings of fact, Bach sought to have Judge St. Clair
disqualified for bias under I.R.C.P. 40(d)(2). Judge St. Clair denied this motion as well, making
detailed findings demonstrating why recusal was not warranted. Despite these denials, Bach
continued to argue the post-trial motions and disqualification issue through the remaining
proceedings. Although a trial was held, the vast majority of the record is comprised of various
motions filed by the parties, and the grant or denial of these motions constitutes the majority of
Bach’s bases for appeal.8
7
This claim is based in part on the raids described above and in part on actions taken by McLean. McLean withdrew
$15,000 from a bank account he co-owned with Bach and Liponis. Bach deposited the $15,000 into the account,
which was used to pay expenses associated with the property jointly owned by them. McLean’s attorney, Woelk,
initially indicated that the money would be returned to Bach; however, it was deposited with the clerk of court in a
separate action.
8
Miller’s counterclaim against Bach was already heard on appeal by this Court in Docket No. 31658, in which this
Court determined that Bach was not entitled to restitution for improvements he made on property that was awarded
to Miller by the district court because, by virtue of his fraud, those improvements had not been made in good faith.
Bach v. Miller, 144 Idaho 142, 158 P.3d 305 (2007).
5
Respondent Woelk, Miller and McLean’s attorney in prior actions, as well as Miller’s in
this one,9 was added as a defendant when Bach amended his complaint. Subsequently, Woelk
filed multiple motions for summary judgment, and was granted summary judgment on the
majority of the claims asserted against him, with the remaining claims set for a separate trial.
However, prior to trial, as the result of a judgment obtained in another action against Bach,
Woelk was able to levy upon and acquire Bach’s causes of action against him in this matter at a
sheriff’s sale. After this purchase, Woelk was then substituted for Bach as plaintiff under
I.R.C.P. 25(c) and stipulated to the dismissal of the claims against himself. Based on the
stipulation, the court dismissed the remaining claims against Woelk.
Respondents Bret and Deena Hill answered, were defaulted, had default set aside, and the
bulk of the claims against them were dismissed on summary judgment. The court determined
that Bach had presented no admissible evidence or alleged sufficient facts to show that the Hills
were liable on any of the counts asserted against them, and that the bankruptcy stay had not
invalidated the sale of the 1-acre parcel they purchased from Scona. The only count asserted
against the Hills that was not dismissed was the quiet title action with respect to the 8.5-acre
parcel. The court quieted title in the 8.5-acre parcel in Bach, disposing of the last of the claims
against the Hills. The Hills were also awarded attorney fees under Idaho Code section 12-121.
Respondents Hamblin and Nickell answered and were both granted summary judgment
on all claims, with the exception of the quiet-title claims. These claims were later dismissed after
Hamblin and Nickell filed disclaimers of interest in the real property at issue. Hamblin was also
awarded attorney fees under Idaho Code section 12-121. Finally, respondents Dawson, Harris,
Scona, Lyle, Oleson, Fitzgerald, and McLean were defaulted in this matter. Although they made
multiple attempts to set aside default, they were unsuccessful and the district court held a hearing
to determine the amount of damages to be entered against each of them. Judgment was entered
against each of them.10
The district court entered final judgment in this matter on February 11, 2005. The final
judgment contained a permanent injunction, enjoining the respondents from entering any of the
9
Bach unsuccessfully sought to have Woelk disqualified as Miller’s counsel in this action because of an alleged
attorney-client relationship formed between Bach and Woelk while Bach was doing paralegal work for Woelk. The
court denied this motion, finding no attorney-client relationship between the two.
10
A separate appeal on the validity of the default and the damage award proceeded as a companion case to this
matter as to all respondents in default but Dawson. This Court affirmed the default judgment against those parties.
Bach v. Miller, No. 31716, 2010 WL 323536 (January 29, 2010).
6
property in which Bach had an interest. Bach filed a timely notice of appeal, asserting that the all
orders and rulings unfavorable to him must be reversed because the court erred in: (1) refusing to
enter a permanent injunction at the outset of this matter; (2) granting respondents’ motions to
dismiss, for partial summary judgment, and for attorney fees and costs, (3) refusing to disqualify
Woelk as Miller’s counsel; (4) denying Bach’s motions for summary judgment; (5) the
formulation of the jury instructions and special verdict form; (6) entering inadequate findings of
fact and conclusions of law; (7) refusing to recuse Judge St. Clair; and (8) failing to award Bach
adequate damages.
II.
Issues Presented on Appeal
The following issues are considered on this appeal: (1) whether the bulk of Bach’s claims
are preserved as a result of his failure to comply with I.A.R. 35(a)(6); (2) whether Judge St. Clair
should have recused himself; (3) whether Bach’s bankruptcy affected various claims in this
matter; (4) whether Bach may appeal the denial of his summary judgment motions; (5) whether
the district court properly allowed the jury to issue an advisory verdict in Miller’s quiet title
action; (6) whether the district court erred in refusing to allow Bach’s punitive damage claims;
and (7) whether the respondents are entitled to attorney fees on appeal.
III.
Discussion
A.
Waiver of Issues on Appeal
The bulk of Bach’s claims on appeal will not be considered by the Court because Bach
has failed to support them with relevant argument and authority. We will not consider an issue
not ―supported by argument and authority in the opening brief.‖ Jorgensen v. Coppedge, 145
Idaho 524, 528, 181 P.3d 450, 454 (2008); see also Idaho App. R. 35(a)(6) (―The argument shall
contain the contentions of the appellant with respect to the issues presented on appeal, the
reasons therefor, with citations to authorities, statutes and parts of the transcript and the record
relied upon.‖). Regardless of whether an issue is explicitly set forth in the party’s brief as one of
the issues on appeal, if the issue is only mentioned in passing and not supported by any cogent
argument or authority, it cannot be considered by this Court. Inama v. Boise County ex rel. Bd. of
Comm’rs, 138 Idaho 324, 330, 63 P.3d 450, 456 (2003) (refusing to address a constitutional
7
takings issue when the issue was not supported by legal authority and was only mentioned in
passing).
Where an appellant fails to assert his assignments of error with particularity and to
support his position with sufficient authority, those assignments of error are too indefinite to be
heard by the Court. Randall v. Ganz, 96 Idaho 785, 788, 537 P.2d 65, 68 (1975). A general attack
on the findings and conclusions of the district court, without specific reference to evidentiary or
legal errors, is insufficient to preserve an issue. Michael v. Zehm, 74 Idaho 442, 445, 263 P.2d
990, 993 (1953). This Court will not search the record on appeal for error. Suits v. Idaho Bd. of
Prof’l Discipline, 138 Idaho 397, 400, 64 P.3d 323, 326 (2003). Consequently, to the extent that
an assignment of error is not argued and supported in compliance with the I.A.R., it is deemed to
be waived. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).
In Michael, the Court refused to consider two assignments of error that were ―in general
terms and [did] not in any respect point out wherein any of the findings or the judgment are
erroneous, contrary to law, or not supported by the evidence.‖ 74 Idaho at 445, 263 P.2d at 993.
The Court also found fault with the fact that ―[t]he brief contain[ed] neither citation of authority
nor argument in support of‖ either assignment of error. Id. Similarly, in Suitts, the appellant set
forth eleven assignments of error, along with a blanket statement that time constraints did not
allow her to formulate argument supporting them. 141 Idaho at 708, 117 P.3d at 122. We refused
to consider the arguments unsupported by authority, even when authority was later presented in
the reply brief. Id.
Bach sets forth eleven issues on appeal, along with the blanket statement that he
incorporates all argument and authority cited for each issue to every other issue because of the
unique and overlapping nature of this case. Because of Bach’s convoluted briefing, it is not easy
to follow his arguments or to discern how they might be legally supported. The issues we are
considering on appeal are those listed in Part II, most of which serve as recurring themes
throughout his briefing. That does not necessarily mean that the arguments we address were
presented in a cogent manner but merely that they were asserted to the extent that the Court
deemed them to have been marginally raised. The remainder of the issues, which we have not
addressed, were so lacking in coherence, citations to the record, citations of applicable authority,
or comprehensible argument that we simply will not consider them.
8
B.
Judicial Bias and Recusal
Although Bach does cite some authority that could theoretically support an argument for
judicial recusal for bias or prejudice, that authority is only cited in passing and its holding is
contrary to Bach’s contentions in this case. Bach cites to the syllabus of Liteky v. United States, a
U.S. Supreme Court case interpreting federal judicial recusal statutes, for the proposition that the
record in this matter demonstrates pervasive bias on the part of Judge St. Clair sufficient to
require his recusal. 510 U.S. 540 (1994). Bach’s argument demonstrates a misunderstanding of
the holding in Liteky. The appellant in Liteky argued that his conviction for willful destruction of
property should be reversed because comments made by the judge indicated the judge was
biased. Id. at 542. Specifically, the appellant alleged that the judge showed animosity toward him
by admonishing him to answer questions as they were posed, reminding him that he was not
making a speech in a political forum, interrupting the closing argument of a co-defendant to
admonish him to cease the introduction of new facts, and handing down what was characterized
as an excessive sentence. Id. at 542–43. The judge denied a motion for recusal, noting that
―matters arising from judicial proceedings were not a proper basis for recusal.‖ Id. at 543.
The Liteky Court rejected the appellant’s arguments, finding that any hostility that was
displayed toward the defendant was not improper bias or prejudice because it was not ―so
extreme as to display clear inability to render fair judgment,‖ but was merely a normal
predisposition that may arise in the course of a case. Id. at 550–52. The Court noted:
The judge who presides at a trial may, upon completion of the evidence,
be exceedingly ill disposed towards the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not thereby recusable for his
bias or prejudice, since his knowledge and the opinion it produced were properly
and necessarily acquired in the course of the proceedings, and are indeed
sometimes (as in a bench trial) necessary to the completion of the judge’s task. . . .
―Impartiality is not gullibility. Disinterestedness does not mean child-like
innocence. If the judge did not form judgments of the actors in those court-house
dramas called trials, he could never render decisions.‖
Id. at 550–51 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). Consequently,
unless there is a demonstration of ―pervasive bias‖ derived either from an extrajudicial source or
facts and events occurring at trial, there is no basis for judicial recusal. Id. at 551. The Court
went on to find:
9
It is enough for present purposes to say the following: First, judicial
rulings alone almost never constitute valid basis for a bias or partiality motion. . . .
and can only in the rarest circumstances evidence the degree of favoritism or
antagonism required . . . . Almost invariably, they are proper grounds for appeal,
not for recusal. Second, opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep seated favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge. . . . A judge’s ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune.
Id. at 555–56. Accordingly, as Liteky demonstrates, the standard for recusal of a judge, based
simply on information that he has learned in the course of judicial proceedings, is extremely
high.
Bach has failed to meet the Liteky standard. Bach provides no other legal authority on
judicial bias, nor does he make any citations to the record that evidence any specific bias or
prejudice by Judge St. Clair. Instead, Bach attacks Judge St. Clair’s findings of fact, his rulings
on various motions, and his performance as trier of fact on equitable issues. One of the few
pieces of evidence that Bach does cite of Judge St. Clair’s purported bias is the judge’s statement
that he had made a determination on the credibility of the parties based on an advisory jury
verdict, the evidence presented, and the testimony given by each party. This is precisely the kind
of determination that the Liteky Court notes should be made in a bench trial and will not serve as
sufficient evidence of pervasive bias. Other than his attack on St. Clair’s findings, Bach argues
that the entire record reflects pervasive bias. Bach’s other claims against Judge St. Clair simply
constitute borderline-offensive ravings concerning the judge’s suspected affiliation with the
Church of Jesus Christ of Latter Day Saints, an affiliation that Judge St. Clair expressly
disaffirmed in his order denying Bach’s motion for recusal.11
Further, viewing the record as a whole, when Bach presented a meritorious claim, Judge
St. Clair gave him a favorable ruling. Judge St. Clair granted Bach a preliminary injunction,
refused to set aside default against several respondents, refused to grant summary judgment in
favor of the respondents on several issues, sustained many of Bach’s objections during hearings
11
It is interesting to note that, prior to the jury verdict and bench trial of Bach and Miller’s claims against each
other, he actually opposed an attempt to recuse Judge St. Clair from the proceedings.
10
and trial, and refused to strike Bach’s pleadings and issue sanctions against him when there were
arguably ample grounds to do so. If anything, Judge St. Clair should be commended for his
handling of this matter. Given the animosity between the parties, the confusing nature of Bach’s
court filings, and the multiplicity of the proceedings, Judge St. Clair’s actions in this matter were
exemplary. As evidenced by the thirty-seven memorandum decisions issued in this case, Judge
St. Clair carefully considered each motion put before him and issued a ruling stating his reasons
for granting or denying those motions. In absence of these decisions, review of this complex case
would be much more difficult. Accordingly, Bach’s contentions that all orders not favorable to
him should be overturned because of Judge St. Clair’s bias are without merit, they do not
constitute argument or authority sufficient to support his various assignments of error, and they
certainly provide no basis for Judge St. Clair’s disqualification.
C.
Bach’s Bankruptcy
Bach asserts that his chapter 13 bankruptcy proceeding impacted several claims in the
present action and that the judge erred in failing to so find. His principal assertion is that the
district court should not have granted relief to Miller on her alternate claims for damages or quiet
title related to the 87 acres because any claims that Miller had against him were discharged in his
bankruptcy. Second, he contends that the IRS sale of the 1-acre parcel to Scona was void because
it occurred the day after he filed his bankruptcy and thus was conducted in violation of the
automatic stay. Although Bach makes passing mention to the 8.5-acre parcel in his brief, he does
not explain how that is relevant to his appeal, and makes no argument as to what, if any, relief he
seeks with regard to that property. Therefore, we do not address it.
In support of his claims that Miller’s causes of action against him were discharged in his
bankruptcy, Bach cites three cases: In re Sasson, 424 F.3d 864 (9th Cir. 2005); Catalano v.
Commissioner, 279 F.3d 682 (9th Cir. 2002); and In re Cogliano, 355 B.R. 792 (9th Cir. B.A.P.
2006). Although it is unclear from his briefing why Bach cites Sasson, the case stands for the
proposition that claims discharged in bankruptcy cannot be pursued in a state court action.12 In
fact, Sasson holds that the bankruptcy court may retain jurisdiction over some claims ―related to‖
bankruptcy after the case is closed when those claims have a ―close nexus‖ to the bankruptcy
12
Bach used Sasson as a citation for the following sentence: ―BACH paid all his creditors, got back money, Miller’s
claims were all discharged and she had no claims in this action to assert against BACH, nor Dawson, McLean,
Harris, and Liponis, also discharged.‖
11
proceedings. 424 F.3d at 869. This matter was not initiated until after Bach’s bankruptcy was
closed. As a result, Bach’s citation to Sasson provides no support for his argument because he
has made no attempt to demonstrate that the claims in this matter have any relation to his
bankruptcy, let alone the close nexus required for preclusion of state court jurisdiction.
Bach appears to rely on Catalano for the idea that all interests included in a chapter 13
bankruptcy estate are automatically returned to the debtor on discharge. Although this is an
accurate statement of bankruptcy law, the proposition is mentioned merely as dicta in Catalano,
which deals with the issue of whether lifting of the automatic stay constitutes an abandonment of
property of the bankruptcy estate, passing it back to the debtor. 279 F.3d at 687–88. While this
proposition of law may potentially support Bach’s claim, he has made no citation to the record
demonstrating that he had an ownership interest in the property in question at the time he filed
bankruptcy, that the property in question was part of the chapter 13 plan or declared as an asset
of the estate, or that those who had an interest in the property were given proper notice of the
plan and discharged by the bankruptcy court.
Further, Bach’s reliance on Catalano is partially undermined by his citation to Cogliano.
Bach quotes Cogliano for the proposition that a debtor’s property interest in a trust with an anti-
alienation provision does not become part of the bankruptcy estate. 355 B.R. at 801. This
authority is of questionable applicability because the only trust at issue in this matter never held
most of the property in question, and Bach attempted to disclaim any interest the trust had in the
property through his position as trustee. The Cogliano holding, if applicable, would mean that
some of the Targhee property was not an asset of the bankruptcy estate subject to discharge
under Bach’s claims that Targhee and its holdings were property of his mother’s trust. Although
unclear given Bach’s conflicting statements on this subject, one of his major contentions
concerning his assumed business name, Targhee Powder Emporium, was that it was a sole-
proprietorship held as an asset of the Vasa N. Bach Family Trust. Bach’s statements concerning
the trust’s ownership of Targhee Power Emporium are misleading at best. The trust instrument
that Bach disclosed as a trial exhibit indicates that the 8.5-acre parcel that Bach holds as a tenant
in common with Dawson is the only asset in the name of the Targhee Power Emporium that was
owned by the trust. There is no other mention of the Targhee Power Emporium as an asset of the
trust. Further, even if the Targhee Powder Emporium were an asset of the trust, Bach’s attempted
transfer of the assets of the Targhee Power Emporium to himself, although a breach of virtually
12
every duty owed to the beneficiaries of the trust by Bach, would place the property within the
bankruptcy estate because the bankruptcy plan had not yet been discharged at the time of
transfer. See 11 U.S.C. § 1306(a) (―Property of the estate includes . . . all property of the kind
specified in [section 541] that the debtor acquires after the commencement of the case but before
the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title.‖).
Despite Bach’s cited authority, bankruptcy law and the current state of the record are
fatal to his allegations regarding Miller’s claims. In order for a claim to be discharged in chapter
13 bankruptcy, 11 U.S.C. § 1328 requires that the chapter 13 plan make a provision for the
claim, meaning that the plan must ―deal with [the claim] or refer to it.‖ Ellett v. Stanislaus, 506
F.3d 774, 777 (9th Cir. 2007) (quoting Matter of Gregory, 705 F.2d 1118, 1122 (9th Cir. 1983)).
―[A] claim cannot be considered to have been provided for by the plan if a creditor does not
receive proper notice of the proceedings.‖ Id. (quoting In re Hairopoulos, 118 F.3d 1240, 1244
(8th Cir. 1997)). This requirement of basic notice and provision for a claim in the plan is
required in order to afford creditors notice and an opportunity to be heard. Id.
As the district court found, Miller’s claims against Bach were not discharged by his
chapter 13 plan. Under Ellett, in order for Bach’s claims to be discharged, the subject properties
must have been provided for in the plan and Miller must have received notice of the bankruptcy,
identifying the claim and the debtor. Despite Bach’s arguments that Miller was aware he and
Targhee Power Emporium were one and the same at the time of his bankruptcy filing and that
she had notice of his bankruptcy, there is no indication that Bach listed any of the properties
purportedly held by Targhee as assets of the estate, that the properties were dealt with in the
chapter 13 plan, or that Targhee Powder Emporium was to be considered a debtor along with
Bach. Further, the property interests at issue were held under the name Targhee Power
Emporium rather than Bach’s name at the time of his bankruptcy filing, and it does not appear
that he ever recorded or made any public record of the purported transfer of Targhee’s assets to
himself or of his affiliation with Targhee during the bankruptcy. Consequently, this confluence
of factors is sufficient to rob Miller of the required notice that her potential claims against Bach
were the subject of a chapter 13 plan. Thus, her claims were not discharged, as the district court
correctly concluded.
Bach also argues that the IRS sale of the 1-acre parcel to Scona, Inc., which occurred on
April 5, 1997, was void because it violated the automatic stay in his chapter 13 bankruptcy
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petition, which was filed the preceding day. Although Bach sought no relief from the bankruptcy
court for the purported stay violation and did not list the property as an asset of the bankruptcy
estate in his filing, he did seek to have the tax sale declared void in an action in the U.S. District
Court for the District of Idaho, Morgan v. Federal Agencies and Officers of the I.R.S., Case No.
CV-98-383-E-BLW. All claims in that action were dismissed with prejudice pursuant to Federal
Rule of Civil Procedure (F.R.C.P.) 41 because of failure to file a complaint that complied with
the F.R.C.P. Title to the parcel was also quieted in Scona in Teton County Case No. CV-98-025,
in which Bach failed to appear, resulting in a default judgment against him. Bach sought to avoid
the I.R.S. sale in another federal action in Idaho (Case No. 01-266-E-TGN), which was also
dismissed for failure to file a complaint in compliance with the F.R.C.P. As a result of these prior
actions, and his failure to file notice of his claim in the bankruptcy court, the respondents
contend that Bach is barred from seeking a declaration that the I.R.S. sale to Scona was void
under the doctrines of collateral estoppel and judicial estoppel. While both doctrines would apply
to bar Bach’s claims,13 we will only address the former, as it was the doctrine applied by the
district court.
The district court determined that the issue of void transfer was barred from consideration
in this action by the doctrine of collateral estoppel. Whether an issue is barred by collateral
estoppel or issue preclusion is a question of law over which this Court exercises free review.
Ticor Title Co. v. Stanion, 144 Idaho 119, 122, 157 P.3d 613, 616 (2007). Issue preclusion
protects a party from litigating an identical issue with the same party or his privy. Id. at 123, 157
P.3d at 617. Five factors are required in order for an action to be barred on the basis of issue
preclusion: ―(1) the party against whom the earlier decision was asserted had a full and fair
opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior
litigation was identical to the issue presented in the present action; (3) the issue sought to be
precluded was actually decided in the prior litigation; (4) there was a final judgment on the
merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or
in privity with a party to the litigation.‖ Id.
13
Bach failed to list or disclose the property in his bankruptcy schedules and, thus, the bankruptcy court had no
inkling that Bach had or claimed any interest in the property. Under our holding in A&J Constr. Co. v. Wood, 141
Idaho 682, 685–86, 116 P.3d 12, 15–16 (2005), Bach is judicially estopped from pursuing claims in or to the
property in state court.
14
In this matter, Bach’s claim that the sale to Scona, and subsequently to the Hills, is void
is barred by collateral estoppel based on Bach’s prior actions. Bach’s claims that the IRS sale
was invalid were dismissed with prejudice in the federal actions. Although the claims were
dismissed for failure to file a complaint that conformed to the F.R.C.P., this does not preclude a
finding of collateral estoppel. Bach had a full and fair opportunity to litigate the issue despite the
dismissal because he was given the opportunity to amend his complaint so that it complied with
the F.R.C.P. and he failed to do so. We have held that a party had a full and fair opportunity to
litigate where an argument could have been made in a prior proceeding. Rodriguez v. Dep’t. of
Corr., 136 Idaho 90, 92, 29 P.3d 401, 403 (2001). Bach also had a full opportunity to litigate the
matter in the state court action because a default will not bar a finding of opportunity to litigate
Waller v. State of Idaho, Dep’t of Health & Welfare, 146 Idaho 234, 238, 192 P.3d 1058, 1062
(2008).
Further, the other elements of collateral estoppel are met. The issue decided in the federal
and state court actions, whether the sale was void as a result of the automatic stay, are identical
to the issue presented here. The element of actual litigation in the prior action is met because,
despite the fact that there was a summary dismissal of both actions, the cause of action was
disposed of and there was an opportunity to provide sufficient facts to prove that the sale was
void. Both of the prior matters resulted in a final judgment. The federal action resulted in a
dismissal of Bach’s claims with prejudice, preventing subsequent relitigation of those claims,
and the state court action resulted in a quiet title decree in favor of Scona. Finally, Bach has been
a party to all prior suits. Accordingly, Bach has already asserted this claim and it was fully
decided so he is not entitled to seek relief on the same claim in this case. Therefore, the district
court properly found Bach’s claim regarding the 1-acre parcel to be barred by the doctrine of
collateral estoppel.
D.
Denial of Bach’s Summary Judgment Motions
Bach also attempts to appeal the denial of his motions for summary judgment. I.A.R. 11
provides that, in civil actions, ―[j]udgments, orders and decrees which are final‖ are appealable.
Idaho App. R. 11. ―An order denying summary judgment is neither a final order that can be
directly appealed, nor is it an order that can be reviewed on an appeal from a final judgment in
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the action.‖ Courtney v. Big O Tires, Inc., 139 Idaho 821, 823, 87 P.3d 930, 932 (2003).
Consequently, this Court will not review the denial of Bach’s motions for summary judgment.
E.
Jury Verdict on Equitable Claims
Bach argues that the jury verdict in Miller’s favor must be reversed because equitable
issues were improperly submitted to the jury and Judge St. Clair improperly relied on the jury
verdict. Although not framed in this fashion by Bach, this is essentially a request for new trial
and was presented by Bach in the district court as grounds for new trial. The decision whether to
grant a new trial pursuant to I.R.C.P. 59(a)(1) because of irregularities in the proceedings
preventing either party from having a fair trial rests within the sound discretion of the district
court and will not be overturned on appeal absent a showing of abuse of that discretion. Cramer
v. Slater, 146 Idaho 868, 880–81 204 P.3d 508, 520–21 (2009). This Court applies a three-part
test for determining abuse of discretion, examining whether the district court: (1) correctly
understood the issue to be one of discretion; (2) acted within the outer bounds of its discretion;
and (3) reached its decision on the motion before it through the exercise of reason. Crowley v.
Critchfield, 145 Idaho 509, 512, 181 P.3d 435, 438 (2007).
The district court did not abuse its discretion in refusing to grant Bach a new trial. As
evidenced by cases cited in Bach’s own brief, while there is no right to a jury trial in an equitable
action, empanelling a jury to make advisory findings of fact on equitable issues is not prohibited.
Fairview Inv. Co. v. Lamberson, 25 Idaho 72, 80, 136 P. 606, 614 (1913). Nearly a century ago
in Lamberson, this Court noted ―in most all equity cases, that there are some questions of fact
which a court may properly and sometimes wisely submit to a jury,‖ clearly indicating that an
advisory verdict is not only acceptable in equitable cases, but often well-advised. Id. (emphasis
added). The Court went on to note that the decision whether to submit an equitable issue to the
jury rested within the discretion of the district court. Id. Bach cites Lamberson in the section of
his brief stating that there is no right to jury trial in quiet title actions, ignoring the part of the
holding unfavorable to his position. Bach cites no authority to indicate that empanelling a jury in
an equitable case is improper, nor does he demonstrate any prejudice from allowing the jury to
hear his claims, other than the fact that the jury did not find in his favor. This, without more,
does not demonstrate that the district court abused its discretion.
16
Where an advisory verdict is issued on equitable claims, the trial judge is still required to
make independent findings of fact and conclusions of law on the equitable claims before him, not
solely relying on the jury’s findings. See Idaho R. Civ. P. 52(a); Vanderford Co. v. Knudson, 144
Idaho 547, 553, 165 P.3d 261, 267 (2007). The district court made the required findings in this
case. While Bach argues that these findings are in error, he cites to no support in the record for
this argument, other than pointing out an inadvertently omitted page in the originally filed
findings. Further, the purpose of I.R.C.P. 52(a) is to accord this Court a clear record of the
findings on which the district court’s decision was based. Id. at 554, 165 P.3d at 268. The
findings made in this matter fulfill this purpose, clearly demonstrating the bases for the district
court’s decision. Bach, rather than attacking the contents of the findings or demonstrating a basis
for error, simply asks us to reevaluate the record and reach our own conclusions, an improper
exercise for this Court. Accordingly, there has been no showing that the district court abused its
discretion in submitting the equitable claims to the jury nor has it been shown that the district
court failed to issue proper findings on the equitable claims; thus, a new trial is not warranted on
Bach’s claims against Miller and the judgment quieting title in Miller is affirmed.
F.
Adequacy of Damages
Bach contends that the district court erred in failing to award him adequate damages on
the default judgments entered against respondents Harris, Scona, Lyle, Fitzgerald, Oleson,
McLean, and Dawson. However, as noted above, Bach was required to provide specific
argument, authority, and citation to the record in support of his challenges to the damage award
pursuant to I.A.R. 35(a)(6). Bach only managed to do that with respect to allowance of punitive
damages. Bach provided no citation to authority to demonstrate that the amount of damages
awarded was in error, failing even to provide the governing standard for review of damage
awards. Consequently, only Bach’s contention that punitive damages should have been awarded
will be addressed.
Bach contends that the district court erred in failing to award punitive damages despite
the fact they were pleaded in the First Amended Complaint. Bach argues that he was entitled to
amend his pleading once as a matter of right because he amended the complaint before any
responsive pleading was served. See Idaho R. Civ. P. 15(a) (allowing amendment of pleadings
once as a matter of right before a responsive pleading is served); E. Idaho Econ. Dev. Council v.
17
Lockwood, 139 Idaho 492, 496, 80 P.3d 1093, 1097 (2003) (noting that a party may amend their
pleadings once as a matter of course at any time before a responsive pleading is served).
What Bach overlooks is Idaho Code section 6-1604, which does not allow punitive
damages to be added to a pleading without leave of the district court. I.C. § 6-1604(2). In order
to add a claim for punitive damages, the moving party must demonstrate to the court in a pretrial
hearing that there is a reasonable likelihood of proving facts at trial sufficient to support a
punitive damage award. I.C. § 6-1604(2). In absence of leave of the district court, a prayer for
punitive damages may not be added to an amended complaint. I.C. § 6-1604(2). This proposition
was pointed out to Bach by the district court, which noted that if Bach wished to amend to add
punitive damages, he would have to file a second amended complaint, allowing the defaulted
defendants another opportunity to answer. Bach chose not to do so. Consequently, although Bach
was entitled to amend his complaint, he was not granted leave to add a prayer for punitive
damages; accordingly, the district court properly refused to award them.
G.
Attorney Fees on Appeal
Respondents Miller, Hamblin, Woelk, Dawson, Nickell, and the Hills request attorney
fees on appeal pursuant to Idaho Code section 12-121 and I.A.R. 41. Respondents Harris, Scona,
Lyle, Fitzgerald, Olson, and McLean have not requested fees on appeal. Idaho Code section 12-
121 allows the award of attorney fees in a civil action if the appeal merely invites the Court to
second guess the findings of the lower court. Crowley v. Critchfield, 145 Idaho 509, 514, 181
P.3d 435, 440 (2007). Attorney fees may also be awarded under section 12-121 ―if the appeal
was brought or defended frivolously, unreasonably, or without foundation.‖ Id. The award of
fees under section 12-121 is within this Court’s discretion. Id.
Attorney fees will be awarded against Bach. Despite the fact that he presented three
lengthy briefs, Bach has done nothing more than ask the Court to second guess the findings of
the district court and he has provided no argument or authority on which reversal of the district
court could be based. Other than Bach’s abiding belief that he has been the subject of a
conspiracy and is entitled to millions of dollars in damages as a result, there does not appear to
have been any basis for this appeal. Because the appeal was brought unreasonably, we award
fees to the above-named respondents under Idaho Code section 12-121.
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IV.
Conclusion
Because the majority of the issues presented by Bach were not properly preserved for
appeal as a result of his failure to comply with the Idaho Appellate Rules and the remaining
assignments of error are without merit, the challenged orders and the final judgment are
affirmed. Further, because Bach brought this appeal frivolously, respondents Miller, Hamblin,
Woelk, Dawson, Nickell, and the Hills are awarded their attorney fees on appeal. All
respondents are awarded their costs incurred on appeal.
Chief Justice EISMANN, and Justices BURDICK, W. JONES, and HORTON
CONCUR.
19