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Dominguez v. Evergreen Resources7/21/2005
e conclusive "judgment by default." Id. But the same logic used in Economic Development Council for entries of default applies with equal force to judgments by default.
Although a judgment by default is a final judgment, no appeal lies directly from such a ruling. The central function of the appeals process is the correction of error. If a matter was abandoned by the defaulting party and never properly presented to the trial court, there can be no error by the trial court on a question it was never asked to consider. A defaulting party may only be heard on appeal after it has filed a post-judgment motion to set aside the default and then invoked an adverse ruling on the motion. Only then has the trial court been granted the opportunity to correct any errors in its grant of judgment by default, and only then is the appellate court reviewing a trial court ruling weighing the competing arguments of the parties. Therefore, the Employer's failure to move the trial court to set aside the judgment by default bars his appeal to this Court.
C. Indemnity
The Employer challenges the district court's grant of summary judgment in favor of Kerr-McGee on its cross-claim for common law indemnity against Elias. The Employer argues the district court's award to Kerr-McGee was in violation of the requirement found in I.C. § 72-209(2) that the liability of an employer to indemnify a third party "shall be limited to the amount of compensation for which the employer is liable" under the worker's compensation law. Review of the record reveals the Employer did not raise this argument with the district court. We will not consider arguments raised for the first time on appeal. Combs v. Kelly Logging, 115 Idaho 695, 698, 769 P.2d 572, 575 (1989). Consequently, we find no error in the district court's grant of summary judgment to Kerr-McGee on its common law indemnity cross-claim against Elias.
D. Attorney Fees
The Employer requests attorney fees on appeal but presented no argument or authority in its opening brief in support of this request. As a result, the Employer cannot be awarded attorney fees on appeal. Myers v. Workmen's Auto Ins. Co., 140 Idaho 495, 511, 95 P.3d 977, 993 (2004).
Kerr-McGee also requests attorney fees on appeal, pursuant to I.A.R. 41. Idaho Appellate Rule 41 provides the procedure for requesting attorney fees on appeal, but is not authority alone for awarding fees. Shawver v. Huckleberry Estates, 140 Idaho 354, 365, 93 P.3d 685, 696 (2004). Because of its failure to cite to appropriate authority, Kerr-McGee is not granted attorney fees on appeal. See Lovelass v. Sword, 140 Idaho 105, 109, 90 P.3d 330, 334 (2004).
Dominguez requests attorney fees on appeal pursuant to I.C. § 12-121 and I.R.C.P. 54(e). Idaho Code § 12-121 permits an award of attorney fees in a civil action to the prevailing party if the court determines the case was brought, pursued or defended frivolously, unreasonably or without foundation. Mutual of Enumclaw Ins. Co. v Pederson, 133 Idaho 135, 139, 983 P.2d 208, 212 (1999). The Employer's arguments, although unconvincing, are not frivolous. Accordingly, no attorney fees are awarded to Dominguez.
VII. CONCLUSION
This Court affirms the rulings from which the Employer appeals in all respects. Costs, but not attorney fees on appeal, are awarded to Kerr-McGee and Dominguez.
Chief Justice SCHROEDER, and Justices TROUT, EISMANN AND JONES CONCUR.
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