EISMANN, Justice.
This is an appeal from Power County in which the appellants challenge a judgment ejecting them from real property purchased by the respondent at a mortgage foreclosure sale. The appellants' primary complaint is that the district court denied their claim for unjust enrichment under which they sought to recover damages for improvements they had made to the real property prior to the foreclosure sale. We affirm the judgment of the district court.
On July 2, 1996, Terry and Rosanna Andersen (the Andersens) and John and Julie Baker (the Bakers), contracted to purchase from D.M. and Shirley Thornhill (the Thornhills) real property known as Indian Springs Natatorium for the sum of $750,000. The buyers made a $100,000 down payment and signed a promissory note for the balance of the purchase price. The note was secured by a mortgage on the real property. Mr. Andersen, as trustee of the Andersen Living Revocable Trust (the Trust), later guaranteed the note. At closing, the property was deeded to the Bakers and to Terry Andersen as trustee of the Trust.
On September 30, 1997, AICO Recreational Properties, LLC, (AICO) and the Trust borrowed $149,720.69 from Everett and Ardis McKinney (the McKinneys) and gave them a real estate mortgage on the property to secure the debt. On January 23, 1998, the Bakers deeded their interest in the property to AICO, and on February 24, 1998, Mr. Andersen deeded the Trust's interest to AICO. On January 26, 1998, the McKinneys loaned an additional $40,000 and received another mortgage on the property as security for the loan.
In 2000, the McKinneys began making the payments owing to the Thornhills. They filed an action against AICO, the Andersens, and others to foreclose their mortgages, and on March 6, 2001, the court in that lawsuit entered a decree of foreclosure and order of sale. On March 29, 2001, AICO filed a petition under Chapter 11 of the bankruptcy code, and the petition was later converted to Chapter 7. On February 27, 2003, the real property was sold at a sheriff's sale pursuant to the McKinneys' judgment, and they were the purchasers. On May 14, 2004, the bankruptcy court ordered the real property, fixtures, and specific personal property of
On September 27, 2005, the Thornhills assigned their promissory note and mortgage to Indian Springs, LLC, (Indian Springs), and on October 21, 2005, it filed a lawsuit to foreclose the mortgage. It named as defendants numerous parties, including the Andersens, AICO, the McKinneys, and Indian Springs Land Investment, LLC. On November 19, 2007, the district court in that case entered a judgment, decree of foreclosure, and order of sale. The court: (a) granted Indian Springs a judgment in the total sum of $424,905.54 against the Andersens and certain other defendants; (b) decreed that the lien of Indian Springs's mortgage had priority over the liens or interests in the property of any of the named defendants; and (c) ordered the property sold to pay Indian Springs's lien. The Andersens appealed, and this Court affirmed the judgment on appeal. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 215 P.3d 457 (2009).
On January 14, 2008, the sheriff sold the real property at public auction, and Indian Springs made the highest bid. The sheriff gave Indian Springs a certificate of sale; the real property was not thereafter redeemed; and on January 15, 2009, the sheriff issued Indian Springs a sheriff's deed.
On March 3, 2009, Indian Springs filed this action seeking to evict the Andersens and Mrs. Andersen's parents from the real property pursuant to Idaho Code section 6-310, which applies to actions for forcible entry and unlawful detainer. The Andersens, representing themselves, filed an answer and counterclaim on March 31, 2009. Mrs. Andersen's parents also filed an answer and counterclaim, but they have not appealed the judgment.
On October 8, 2009, the district court held a court trial, but at the conclusion of the trial it stated that it needed additional evidence on one issue and additional authority on two other issues. It continued the matter until November 12, 2009, for further proceedings.
On October 14, 2009, the Andersens moved to dismiss the complaint on the ground that the complaint did not state a claim under section 6-310 because that statute only applies to actions seeking possession of land that does not exceed five acres in size and the complaint was not verified as required by Idaho Code section 6-318, which states that in actions for forcible entry or unlawful detainer, "[t]he complaint and answer must be verified."
On October 19, 2009, Indian Springs filed an amended complaint for eviction under Idaho Code section 6-310, which added a verification. Two weeks later it filed a motion seeking leave to file the amended complaint. On November 6, 2009, the Andersens filed an objection to that motion, a motion to strike the amended complaint, and a request for additional time if the court rejected their objection and denied their motion to strike. On November 12, 2009, the court continued the pending matters until December 10, 2009.
On November 20, 2009, the Andersens amended their motion by adding that "[t]here is no allegation that the defendants are in default of the payment of rent, or that the premises is being used for unlawful delivery, production or use of a controlled substance" and that "[t]here is no allegation that a landlord-tenant relationship exists between the parties." Another issue raised by the Andersens was whether a mobile home on the property was a fixture or their personal property.
During a hearing in open court on December 10, 2009, at which the Andersens and counsel for Indian Springs were present, the district court stated that it would give the parties its thinking regarding the case. While doing so, the court stated to counsel for Indian Springs: "I have a problem with the use of 6-310 as the legal basis for proceeding with this claim, and the reason I do is because I can't — it's like fitting a round peg into a square hole. The statute itself is
On December 15, 2009, the district court issued its memorandum decision. It granted the Andersens' motion to dismiss Indian Springs's claim based upon Idaho Code section 6-310, but it also granted Indian Springs's request to amend its complaint to assert a claim for ejectment. The court ruled that Indian Springs was entitled to a writ of ejectment and that under the evidence presented the mobile home in dispute was a fixture and therefore part of the real property purchased by Indian Springs. The court gave the Andersens 120 days to remove their personal property, but the court later extended that deadline several times at the Andersens' request, with the last deadline being December 16, 2010.
On July 8, 2010, counsel appeared for the Andersens by filing an answer to the amended complaint and counterclaims for unjust enrichment and conversion. On August 8, 2010, Indian Springs moved to dismiss the counterclaims. The motion was argued on October 13, 2010, and on November 12, 2010, the court entered an order dismissing the counterclaims. It held that any claim for conversion was barred by the statute of limitations and that there was no evidence that the Andersens conferred any benefit upon Indian Springs.
There were subsequent proceedings not relevant to this appeal, and on December 9, 2010, the district court entered a judgment dismissing the Andersens' counterclaims with prejudice and granting Indian Springs's claim "for Eviction."
The Andersens filed a counterclaim against Indian Springs for unjust enrichment. They alleged, "From 1996 up to and including 2009, the Andersens (a) made permanent improvements to the land ... which were substantial in relation to the value of said land, and (b) otherwise cared for and maintained the premises."
"The elements of unjust enrichment are that (1) a benefit is conferred on the defendant by the plaintiff; (2) the defendant appreciates the benefit; and (3) it would be inequitable for the defendant to accept the benefit without payment of the value of the benefit." Teton Peaks Inv. Co., LLC v. Ohme, 146 Idaho 394, 398, 195 P.3d 1207, 1211 (2008). In ruling that the Andersens did not have a claim for unjust enrichment against Indian Springs, the district court stated that there was no evidence that any of the Andersens' work on the property was done while Indian Springs was in possession. The Andersens do not cite to any evidence in the record that was presented to the district court showing that they made any improvements to the real property after the foreclosure sale. However, they do argue that "the continued operation of the recreational facilities of the property" shows that they conferred a benefit on Indian Springs.
Assuming that Indian Springs, as the purchaser at the foreclosure sale, obtained a benefit from improvements to the real property previously made by the Andersens, such
The Andersens also argue that Indian Springs, as assignee, should be liable for any claims that the Andersens had against the Thornhills, the assignor. The Andersens rely upon a statement in Mountain States Financial Resources Corp. v. Agrawal, 777 F.Supp. 1550 (W.D.Okl.1991), wherein the court, apparently applying Oklahoma law, said, "An assignee stands in the shoes of their assignor, and acquires all of the assignor's rights and liabilities in the assignment." Id. at 1552. The holding of the court in that case was that an assignee of the Federal Deposit Insurance Corporation (FDIC) was entitled to the six-year statute of limitations for enforcing promissory notes that would have been available to the FDIC had it brought the lawsuit.
Under Idaho law, an assignee is only liable for the obligations assumed under the contract of assignment. Klundt v. Carothers, 96 Idaho 782, 785, 537 P.2d 62, 65 (1975). "Idaho courts will not presume an obligation from the fact of an assignment. Instead, the party asserting such a personal obligation must prove the existence of an express assumption by clear and unequivocal proof." Chambers v. Thomas, 123 Idaho 69, 71, 844 P.2d 698, 700 (1992). The assignment
The Andersens also argue that they are entitled to be compensated for their improvements to the real property pursuant to Idaho Code section 6-414, which states:
We need not address this issue because there is nothing in the record indicating that the Andersens raised it in the district court. Their counterclaim does not include any reference to this statute. "This Court will not consider issues raised for the first time on appeal." Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 812, 252 P.3d 71, 93 (2011).
The Andersens state, "Sheriff's Deed does not transfer title." Although that statement is correct, it is not clear what relevance it has in this case. Title to the real property passed to Indian Springs when it received the certificate of sale. I.C. §§ 6-107, 11-309 & 11-310. As this Court explained in Northwestern & Pacific Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4 (1935):
Id. at 91-92, 50 P.2d at 6 (citations omitted). The Andersens are familiar with our decision in Northwestern & Pacific Hypotheekbank because in their opening brief they quoted the third paragraph above, although they neglected to mention the prior two paragraphs.
The Andersens assert: "Without Title Insurance, there can be no certainty that the Plaintiff/Respondent truly had the ability to foreclose. There is a possibility of several other parties who were not informed of the foreclosure and/or the opportunity to redeem the property." Again, the relevance of this statement is unclear. The Andersens were parties to the foreclosure action, and the judgment of foreclosure and order of sale were upheld on appeal. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 215 P.3d 457 (2009). In their answer to the amended complaint in the present case, they admitted that "they have not redeemed the premises within one year of the sheriff's sale," and they did not contend that some other person or entity had redeemed the property.
Finally, on February 24, 2005, the Thornhills gave notice of default to various persons, including the Andersens, for nonpayment of the sums due under the promissory note and mortgage. The note and mortgage were later assigned to Indian Springs on September 29, 2005. When Indian Springs filed the foreclosure action on October 21, 2005, it relied upon that notice of default. The Andersens contend, "If the Plaintiff on one hand can claim a Notice of Default from his Assignor as a right, then how can he refuse to honor the claims of these Defendants as to the charges in the Counterclaim?" The Andersens do not cite any authority or legal argument supporting their contention, nor are we aware of any.
The Andersens contend that the district judge may have had an agenda. They relate that he mediated a related case involving the McKinneys and the manager of Indian Springs, that the case involved equipment that was present on the real property, and that the Andersens intervened in that case but were dismissed from the mediation. They also point to the hearing on December 10, 2009, during which the court gave its view of the case and stated that Indian Springs's appropriate cause of action was ejectment, not eviction under Idaho Code section 6-310. Finally, they assert: "On several occassions [sic], [Indian Springs's manager] refused to obey court orders which the court subsequently overlooked. It was clear from the Judge's posthearing [sic] comments, that private case-related conversation had taken place between Plaintiff/Respondent's attorney and the judge excluding other parties in the case." The Andersens do not cite any facts supporting these allegations.
The Andersens did not file a motion asking the court to disqualify itself. "In the absence of a motion for disqualification, this Court will not review that issue on appeal." Idaho Dept. of Health & Welfare v. Doe, 150 Idaho 563, 568, 249 P.3d 362, 367 (2011). As we explained in Doe, "Because the question of a recusal under I.R.C.P. 40(d)(2) is committed to the discretion of the trial judge, absent some objection at trial, there was no decision by the trial court that can be reviewed and no factual record was developed from which grounds for disqualification can be discerned." Id.
In their reply brief, the Andersens seek to raise additional issues on appeal, including that the district court erred in holding that the mobile home was permanently affixed to the real property and was therefore part of the real property acquired by Indian Springs when it purchased the real property at the foreclosure sale and that the
Indian Springs seeks an award of attorney fees on appeal pursuant to Idaho Code section 12-121. Attorney fees can be awarded on appeal under that statute only if the appeal was brought or defended frivolously, unreasonably, or without foundation. Gustaves v. Gustaves, 138 Idaho 64, 71, 57 P.3d 775, 782 (2002). "Pro se litigants are not accorded any special consideration simply because they choose to represent themselves...." Woods v. Sanders, 150 Idaho 53, 57, 244 P.3d 197, 201 (2010). Thus, we have awarded attorney fees on appeal pursuant to Idaho Code section 12-121 when pro se litigants have brought or pursued their appeal frivolously, unreasonably, or without foundation. Id. at 61, 244 P.3d at 205; Michalk v. Michalk, 148 Idaho 224, 235, 220 P.3d 580, 591 (2009); and Jenkins v. Barsalou, 145 Idaho 202, 207-08, 177 P.3d 949, 954-55 (2008). As we stated in KEB Enterprises, L.P. v. Smedley, 140 Idaho 746, 754-55, 101 P.3d 690, 698-99 (2004), when awarding attorney fees on appeal against Jenkins, a pro se appellant, pursuant to Idaho Code section 12-121, "Jenkins's appeal consists simply of raising issues on appeal that were not presented to the trial court and asserting errors by the trial court without any reasoned argument or authority supporting such assertions." The same rationale applies here. We award Indian Springs attorney fees on appeal pursuant to Idaho Code section 12-121 because this appeal was brought without foundation. Because we award attorney fees under this statute, we do not address Indian Springs's request for an award of attorney fees under Idaho Appellate Rule 11.2.
We affirm the judgment of the district court, and we award costs, including attorney fees, to respondent.
Chief Justice BURDICK, Justices J. JONES and HORTON concur.
J. Pro Tem. KIDWELL concurs in Parts 1, 2 and 3 and dissents without opinion in Part 4.
Id. at 86-87, 114 S.Ct. at 2054-55, 129 L.Ed.2d at 75.