TLC Landscape v. Mallett

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51277

TLC LANDSCAPE, LLC, )
) Filed: October 4, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JAMES K. MALLETT, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Gerald F. Schroeder, District Judge. Hon. Michael McLennan,
Magistrate.

Final judgment of the district court on intermediate appeal from the magistrate
court, affirmed.

James Mallett; Eagle, pro se appellant.

William L. Mauk, Boise, for respondent.
________________________________________________

HUSKEY, Judge
James K. Mallett appeals from the final judgment of the district court affirming the verdict
of the jury and awarding attorney fees on appeal. Mallett argues various employees of TLC
Landscape, LLC (TLC) and TLC’s attorney committed perjury during the trial. TLC contends
Mallett provided no authority or argument challenging the district court’s decision, the allegation
of perjury was unsupported and unfounded, and the appellate courts are not the proper forum for
adjudication of criminal complaints. For the following reasons, we affirm the decision of the
district court.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mallett hired TLC for landscaping services to cure drainage issues in his backyard where
water intruded into the crawlspace. Mallett and Todd Waggoner, the owner of TLC, discussed
and negotiated the scope of the project. Mallett had ideas regarding the design elements that would

1
cure the problem, while Waggoner utilized his professional knowledge to suggest designs.
Ultimately, Mallett and Waggoner agreed to the scope and terms of the project. Mallett and
Waggoner discussed the project extensively as the project progressed. TLC completed the project
and sent an invoice in the amount of $5,377.64 to Mallett. Mallett did not pay the invoice.
Both Mallett and TLC filed suit in small claims court, each seeking $5,000, the maximum
recovery amount in small claims court. TLC filed suit to collect on the outstanding invoice.
Mallett filed suit to collect payment for damage to his property and time spent fixing mistakes
caused by TLC. A bench trial was held. On TLC’s suit, the magistrate court entered judgment in
favor of TLC for $5,000 and costs in the amount of $138. On Mallett’s suit, the magistrate court
found in favor of TLC and denied Mallett’s claim for damages. Mallett appealed both judgments.
The cases were consolidated for a trial de novo. A trial was held on claims of breach of contract,
implied-in-fact contract, and unjust enrichment. The jury found in favor of TLC on all claims.
Mallett appealed the judgment, alleged Waggoner and an employee of TLC provided false
statements and committed perjury during testimony and that TLC’s attorney provided false
statements and committed perjury during opening arguments.
The district court, on intermediate appeal, held it lacked jurisdiction to review Mallett’s
allegations of criminal perjury in an appeal from a verdict in a civil case. It further held Mallett
waived his claim that TLC made false statements in its opening statements because Mallett did not
object in the trial court and, as a result, did not preserve his claim for appeal. The district court
noted that even if Mallet had preserved his claim, opening statements are not evidence and the jury
was so instructed. The district court held that it would not compare the testimony from the small
claims case to the testimony in the trial de novo because the statements from the small claims case
were not introduced at the trial and, thus, could not be considered on appellate review. Finally,
the district court noted that it could not, and would not, reweigh the evidence or consider the
credibility of the witnesses when acting in its appellate capacity. The district court awarded
attorney fees and costs to TLC as the prevailing party on appeal. Mallett appeals.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s

2
conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d
214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal
will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s
findings and conclusions, whether the district court affirmed or reversed the magistrate court and
the basis therefor, and either affirm or reverse the district court.
Whether a court lacks jurisdiction is a question of law over which this Court exercises free
review. Bach v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007).
III.
ANALYSIS
Mallett asserts the district court erred in affirming the jury verdict and awarding attorney
fees on intermediate appeal. Mallett alleges that the owner of TLC, an employee of TLC, and
TLC’s legal counsel committed perjury and provided false statements to the court, causing the
factfinders to be confused as to the nature of the agreement and actions of the parties. Mallett
argues that for those reasons, TLC should not be awarded attorney fees. TLC argues Mallett’s
claims do not fall within the jurisdiction of the appellate courts and are not supported by argument
and authority. TLC asserts the appeal is frivolous and attorney fees should be affirmed.
Pro se litigants are held to the same standards as those litigants represented by counsel.
Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009). Pro se litigants are not excused
from abiding by procedural rules simply because they are appearing pro se and may not be aware
of the applicable rules. Id.
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. 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. This Court will not search the record on
appeal for error. 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.
Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (citations omitted).
Mallett raises nearly identical arguments in this appeal as he did in his intermediate appeal
to the district court. The district court addressed each argument and explained why Mallett’s
claims failed. The district court concluded that Mallett failed to articulate any claims that are
reviewable on appeal. We agree.

3
Regarding Mallett’s claim of perjury, this Court must have appellate jurisdiction over a
claim before it can reach the claim’s merits. See Martin v. Soden, 80 Idaho 416, 419, 332 P.2d
482, 483 (1958). Thus, the question of this Court’s jurisdiction comes before all other questions,
which includes the district court’s subject matter jurisdiction. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94 (1998). Mallett alleges witnesses and counsel provided false and
contradictory statements while testifying, but Mallett does not cite any authority or present cogent
argument to explain how this Court has the authority to determine, in the first instance, whether a
crime has been committed. 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).
Moreover, Mallett’s claims seem to rest on a comparison between testimony given in the
small claims action and the testimony in the trial de novo. The testimony from the small claims
case was not introduced in the trial de novo and, thus, was not part of the record on intermediate
appeal. The district court could only consider the evidence in the record on intermediate appeal.
See Obenchain v. McAlvain Const., Inc., 143 Idaho 56, 57, 137 P.3d 443, 444 (2006) (reiterating
that appellate court review is limited to evidence, theories, and arguments that were presented
below).
Additionally, although Mallett cites the Idaho statutes for perjury and unqualified
statements of unknown fact as support for his claims of perjury, his argument nonetheless fails.
For example, he alleges TLC’s attorney committed perjury by making false statements to the jury,
but the attorney was not under oath and statements made by the attorney are not evidence. See
Bennett v. Patrick, 152 Idaho 854, 859, 276 P.3d 726, 731 (2012) (noting, “[a]rgument by an
attorney is not evidence”). As to various statements made by other witnesses, Mallett invites this
Court to reweigh the evidence and credibility of the witnesses. We decline to do so. See Neustadt
v. Colafranceschi, 167 Idaho 214, 227, 469 P.3d 1, 14 (2020) (holding appellate courts in Idaho
do not reweigh evidence).
In the conclusion section of his opening brief, Mallett challenges the award of attorney fees
because, “No [Judgment], or Attorney fees should be awarded to the Parties that broke the sworn
oath to tell the truth in the Courtroom.” The district court held it had authority to award attorney
fees to the prevailing party under I.C. §§ 12-120(3) and 12-121. Idaho Code § 12-120(3) provides
recovery of attorney fees in contract actions and I.C. § 12-121 permits a court to award fees to the
prevailing party if a claim or appeal is brought, pursued, or defended frivolously. The district court

4
determined the underlying claim was a contract action and Mallett pursued the appeal without
support in fact or law and, therefore, the court awarded TLC attorney fees and costs. On appeal,
Mallett does not challenge any of the grounds upon which attorney fees were awarded. A party
waives an issue on appeal if either argument or authority is lacking. Powell, 130 Idaho at 128, 937
at 440. Thus, Mallett has waived any challenge to the award of attorney fees on intermediate
appeal.
Last, TLC requests attorney fees and costs for this appeal, arguing it was frivolously and
unreasonably pursued, citing I.C. § 12-120(3), I.C. § 12-121, and Idaho Appellate Rule 41, which
permits the award of attorney fees on appeal. Mallett did not respond to TLC’s request for attorney
fees on appeal. Mallett pursued an appeal without a basis or foundation in law, failed to support
his arguments with facts or authority, and failed to address TLC’s request for attorney fees. As a
result, TLC is entitled to its attorney fees and costs on appeal pursuant to I.C. § 12-121 and
I.A.R. 41.
IV.
CONCLUSION
Mallett failed to provide adequate authority and argument for his claims. He further
pursued this appeal frivolously and without a foundation in law. Therefore, we affirm the final
judgment of the district court. Attorney fees and costs on appeal are awarded to TLC.
Chief Judge GRATTON and Judge TRIBE CONCUR.

5