                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 41505

ALAN GOLUB and MARILYN GOLUB,           )
husband and wife,                       )
                                        )
    Plaintiffs-Respondents,             )
                                        )
v.
                                        )
KIRK-SCOTT, LTD., a Texas corporation,  )
                                        )
    Defendant-Appellant,                )
                                                             Boise, December 2014 Term
                                        )
and                                     )
                                                             2015 Opinion No. 12
KIRK-HUGHES DEVELOPMENT, LLC, a )
Delaware limited liability company;     )
                                                             Filed: January 30, 2015
INTERNAL REVENUE SERVICE;               )
TOMLINSON NORTH IDAHO, INC., an         )
                                                             Stephen W. Kenyon, Clerk
Idaho corporation; GERALDINE KIRK-      )
HUGHES and PETER SAMPSON, husband )
and wife; KIRK-HUGHES & ASSOCIATES, )
INC., a Nevada corporation; KELLY       )
POLATIS, an individual; DELANO D. and   )
LENORE J. PETERSON, husband and wife, )
                                        )
    Defendants.                         )
_______________________________________ )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.
       The district court’s orders are affirmed.
       Crotty & Son, PLLC, Spokane, Washington, for Appellant Kirk-Scott, Ltd.
       Matthew Z. Crotty argued.
       Winston & Cashatt, Lawyers, Coeur d’Alene, for Respondents. Michael T.
       Howard argued.
                              _____________________
J. JONES, Justice
       This case involves a dispute between two creditors as to whose claim against their
debtor’s property has priority. The respondents, Alan and Marilyn Golub (Golubs), recorded a
judgment in the amount of $941,000 against their judgment debtor, Kirk-Hughes Development,

                                                   1
LLC (KHD), giving Golubs a judgment lien on property owned by KHD in Kootenai County.
KHD now claims to have executed a deed of trust on the property in question several years
before Golubs acquired their lien. The beneficiary of the deed of trust is another defendant, Kirk-
Scott, Ltd. (KS). The district court granted summary judgment to Golubs, finding that Golubs’
duly recorded judgment lien had priority over KS’ prior, unrecorded deed of trust. KS timely
appealed.
                                         I.
                        FACTUAL AND PROCEDURAL BACKGROUND
        In 2004, Alan Golub was the listing real estate agent for properties then owned by Sloan
and Peterson, who each sought to sell their properties near Coeur d’Alene, Idaho. Golub worked
with other real estate agents to persuade Geraldine Kirk-Hughes and Geraldine’s sister, Balinda
Antoine, to participate in a development project potentially involving the purchase of the
Peterson and Sloan properties, among others. In July 2004, KS, a company owned by Balinda,
purchased the Sloan property.
        The Peterson property was the largest and most expensive of the properties, being 518
acres. Golub had an agreement with Peterson that would entitle Golub to a commission for the
sale of the Peterson property if Peterson closed on the sale of his property with one of the
potential buyers Golub had provided to Peterson by early November 2004. 1 Geraldine was one
of the potential buyers provided to Peterson by Golub. In July 2004, Geraldine became a party to
a purchase and sale agreement to acquire the Peterson property for $6 million. However, this
agreement lapsed in October or November 2004, and the sale was not closed.
        In October 2004, Geraldine formed KHD to develop this real estate project. KHD is
owned: 7% by Kirk-Hughes & Associates; 51.5% by KS; 3% by Balinda Antoine; and 5% by
Richard Polatis. 2 On November 18, 2004, KS granted the Sloan property to KHD by warranty
deed. The same day, KHD purportedly executed a deed of trust in favor of KS, covering a
portion of the Sloan property, though it is unclear from the record exactly what portion. KHD’s
warranty deed for the Sloan property was recorded on November 19, 2004, but the deed of trust
in favor of KS was not recorded at that time.
        In March 2005, Kelly Polatis, a business associate of Geraldine, purchased the Peterson
1
  There is some question as to whether there was an extension for this agreement to continue beyond November
2004, but the substance of the extension agreement, if any, is not clear from the record.
2
  It appears from the record that the remaining interests are owned in minor shares by persons who do not appear to
be relevant to this case.

                                                        2
property. Polatis then deeded the Peterson property to KHD, either the same day he acquired it or
very close in time. Golub believed these were straw-person transactions to deny him his
commission on the sale of the Peterson property. In order to recover the lost commission, Golubs
sued Geraldine, KHD, Kirk-Hughes & Associates, Polatis, and Peterson in 2007. Geraldine,
KHD, and Kirk-Hughes & Associates defended against the action for a year and a half, but on
March 11, 2009, Golubs obtained a default judgment in the amount of $941,000 against them.
Golubs believed that they were unable to immediately record this judgment because Peterson
remained in the action and that the judgment could not be considered final until there was a
judgment against all defendants in the action or the court issued an I.R.C.P. 54(b) certificate. For
an unknown reason, when the court entered the default judgment, it did not sign the 54(b)
certificate. Golub was in the process of seeking a Rule 54(b) certificate to pursue collection
against the defaulted defendants when KHD filed for Chapter 11 bankruptcy on April 6, 2009.
       Despite the purported deed of trust obligation from KHD to KS, KHD did not list on its
bankruptcy forms any secured claims regarding the property allegedly covered by that instrument
and did not list KS as a creditor. Additionally, KS did not file a creditor’s claim in the
bankruptcy proceeding. On September 17, 2010, while KHD’s bankruptcy was pending, KS
attempted for the first time to record its 2004 deed of trust. Golubs recorded their judgment a few
weeks later, after the bankruptcy case was dismissed without discharge.
       In early 2013, after a second bankruptcy by KHD was dismissed without discharge,
Golubs filed an action for declaratory judgment to establish the priority of their judgment lien
over KS’ purported prior, unrecorded deed of trust. In response, KS filed a motion to set aside
the $941,000 default judgment entered in 2009 and a motion for summary judgment on the 2013
priority action. Golubs also moved for summary judgment on the issue of priority. The district
court denied KS’ motions and granted Golubs’ motion for summary judgment. Following this
order, KS moved under I.R.C.P. 59(a) to amend/alter the order. The district court denied the
motion and ordered sanctions against KS. KS timely appealed.
                                             II.
                                     ISSUES ON APPEAL
1. Whether the district court erred in denying KS’ motion to vacate the 2009 default judgment.

2. Whether the district court erred in granting Golubs’ motion for summary judgment.

3. Whether the district court abused its discretion in ordering sanctions against KS.

                                                 3
4. Whether KS is entitled to attorney fees.
                                              III.
                                           ANALYSIS
A.     Standard of review.
       The standard of review on appeal from the district court’s grant of summary judgment is
well-settled.
               On appeal from the grant of a motion for summary judgment, this Court
       utilizes the same standard of review used by the district court originally ruling on
       the motion. Summary judgment is proper “if the pleadings, depositions, and
       admissions on file, together with the affidavits, if any, show that there is no
       genuine issue as to any material fact and that the moving party is entitled to a
       judgment as a matter of law.” I.R.C.P. 56(c). When considering whether the
       evidence in the record shows that there is no genuine issue of material fact, the
       trial court must liberally construe the facts, and draw all reasonable inferences, in
       favor of the nonmoving party. If the evidence reveals no disputed issues of
       material fact, then only a question of law remains, over which this Court exercises
       free review.
Conner v. Hodges, 157 Idaho 19, 23, 333 P.3d 130, 134 (2014) (internal case citations omitted).
“Statutory interpretation is a question of law subject to free review.” J & M Cattle Co., LLC v.
Farmers Nat’l. Bank, 156 Idaho 690, 692, 330 P.3d 1048, 1050 (2014). On discretionary matters,
“[a] district court does not abuse its discretion when it (1) correctly perceives the issue as
discretionary, (2) acts within the bounds of discretion and applies the correct legal standards, and
(3) reaches the decision through an exercise of reason.” Agrisource, Inc. v. Johnson, 156 Idaho
903, 914, 332 P.3d 815, 826 (2014) (internal citations omitted).
B.     The district court did not err in denying KS’ I.R.C.P. 60(b) motion to vacate
       Golubs’ 2009 default judgment.
       1.       Motion under I.R.C.P. 54(c) and 60(b)(4).
       In the 2013 action for declaratory judgment of priority, KS brought a motion to vacate
Golubs’ 2009 default judgment against KHD and other defendants, arguing that the judgment
was void under I.R.C.P. 54(c) and 60(b)(4) because the district court lacked jurisdiction to award
more than the amount prayed for in the 2007 complaint. KS was not one of the named defendants
in the 2007 action or a judgment debtor. The district court denied the motion, finding that KS
failed to show the court lacked personal jurisdiction over KHD or that the court lacked subject
matter jurisdiction to grant the judgment against KHD. We agree with the district court.
       It is within the discretion of the district court to decide whether to grant or deny a motion

                                                 4
under I.R.C.P. 60(b). Agrisource, 156 Idaho at 914, 332 P.3d at 826. Rule 60(b) allows a party to
move the court for relief from a final judgment where:
          . . . (4) the judgment is void; (5) the judgment has been satisfied, released, or
          discharged, . . . or it is no longer equitable that the judgment should have
          prospective application; or (6) any other reason justifying relief from the
          operation of the judgment. The motion shall be brought within a reasonable time.
Notwithstanding the timeliness requirements of Rule 60(b), void judgments can be attacked at
any time. See Meyers v. Hansen, 148 Idaho 283, 291, 221 P.3d 81, 89 (2009). “Generally, the
Court may declare a judgment void only for defects of personal jurisdiction or subject-matter
jurisdiction,” or where the “court’s action amounts to a plain usurpation of power constituting a
violation of due process.” Id. Although if “a default judgment exceeds the demand of the
complaint, the excess is void,” Hayes v. Towles, 95 Idaho 208, 211, 506 P.2d 105, 108 (1973),
we have previously stated that “[i]n the sound interest of finality, the concept of void judgment
must be narrowly restricted.” Gordon v. Gordon, 118 Idaho 804, 807, 800 P.2d 1018, 1021
(1990).
          Rule 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.” In Johnson v. Hartford, we stated
that one of the policy reasons for Rule 54(c) limiting the amount of the judgment is to ensure that
a party cannot provide notice to defendants of one amount and then seek a different amount if the
defendants decided not to defend, possibly based on the amount pleaded in the complaint. 99
Idaho 134, 138, 578 P.2d 676, 680 (1978). The amount awarded upon default will be the amount
“actually demanded somewhere in the complaint when considered in its entirety.” Id. at 139, 578
P.2d at 681 (emphasis added). The complaint should be sufficient in its prayer for relief to give
notice to the defendants as to the amount sought so the defendants can decide whether the action
is worth defending.
          Here, the district court determined that when considered in its entirety, the 2007
complaint shows Golubs claimed they were wrongfully and unlawfully deprived of $941,000 in
commission, plus interest, and therefore the default judgment did not differ from the relief sought
in the complaint. KS argues the default judgment is void under Rule 60(b)(4) because the amount
of the judgment was excessive under Rule 54(c), arguing: (1) the $941,000 amount is mentioned
in the complaint only in reference to Peterson’s failure to pay that amount due under their listing
agreement, and Golub does not allege any other party should be liable for this amount; (2) the

                                                 5
complaint did not specify an interest rate requested for pre-judgment interest and the 12% rate
ordered is higher than the default rate of 5%; and (3) the complaint did not request post-judgment
interest, which was awarded by the district court. KS’ arguments are unpersuasive.
       The complaint gave sufficient notice to the defendants that Golubs sought the $941,000
commission owing on the sale of the Peterson property. Golubs’ 2007 complaint states that
Golub was not paid “the $941,000 commission under the Listing Agreement.” Although Golubs
stated that “Peterson did not pay Golub the $941,000 commission,” they did not limit their
prayer for relief for that amount to payment from Peterson. (Emphasis added). Golubs assert that
each named defendant was responsible for the loss of that commission. They stated “Defendants
were aware of the Listing Agreement between Petersons and Golub” and that “Defendants
intentionally interfered with the contractual relationships and expectations of Golub when they
acted to frustrate and circumvent the purpose of the Listing Agreement.” In addition to the
preceding statement, there are several other statements in the complaint showing that Golubs
claimed each named defendant to be responsible for the lost commission. Indeed, Golubs’
complaint alleges that Polatis represented to Peterson that the Golub listing agreement was
illegal, that Peterson would benefit by selling the property to him, that Peterson was aware
Polatis would ultimately transfer the property to Geraldine Kirk-Hughes, that Polatis entered into
a written agreement with Peterson to purchase the property on March 1, 2005, and took title three
days later, and that Polatis transferred title to KHD on March 11, 2005.
       Notably, this was not a case where the defendants never appeared to defend. There was
discovery in this case and a great deal of litigation among the parties before entry of the default
judgment. Throughout that litigation, Golubs always maintained entitlement to at least the
$941,000 lost commission. Ultimately, when considered in its entirety, the complaint put each
defendant on notice that Golubs were claiming the $941,000 lost commission and that each
defendant was liable for that amount.
       KS’ interest arguments make little sense. Golubs’ complaint specifically prayed for pre-
judgment interest on the commission. The district court granted pre-judgment interest on the
$941,000 commission beginning March 11, 2005, the date that KHD acquired title from Polatis,
which would likely be the date the commission became payable. The court acted reasonably in
doing so. Idaho Code section 28-22-104(1)(2) provides for allowance of interest at the rate of
12% per annum on money after the same becomes due. Where a liquidated amount comes due at

                                                6
a specific date, the court may award pre-judgment interest at the rate of 12% on that amount.
That is what occurred here. And, of course the judgment properly bore interest at the legal rate
from the date of entry pursuant to the provisions of Idaho Code section 28-22-104(2). There is
absolutely no requirement that a plaintiff ask for post-judgment interest in his or her complaint.
         Because the amount of the default judgment was not more than was prayed for in the
complaint, and because both pre-judgment and post-judgment interest are warranted under the
circumstances, we hold that the default judgment complied with Rule 54(c). Therefore, KS’
arguments that the judgment should be vacated as void under Rule 60(b)(4) are without merit. 3
         2.       Motion under Rule 60(b)(6).
         KS also argues under Rule 60(b)(6) that the district court should have vacated the 2009
default judgment because the submissions to the court in support of that default judgment did not
comply with I.R.C.P. 55(b)(1). KS argues Golubs did not comply with Rule 55(b)(1) because:
(1) Golubs submitted an affidavit that sought relief only from Kelly Polatis and did not submit an
affidavit seeking relief from any other defendant; (2) the submitted affidavit does not set out the
means by which the $941,000 amount was reached; and (3) the affidavit does not include an
instrument evidencing the claim. These arguments must fail.
         Rule 60(b)(6) allows a court to grant relief from a judgment when there is “any other
reason justifying relief from the operation of the judgment” but only where the “party making the
Rule 60(b)(6) motion demonstrate[s] unique and compelling circumstances justifying relief.” In
re estate of Bagley, 117 Idaho 1091, 1094, 793 P.2d 1263, 1266 (Ct. App. 1990). Rule 55(b)(1)
provides:
         [w]hen the plaintiff’s claim against a defendant is for a sum certain or for a sum
         which can by computation be made certain, the court or the clerk thereof, upon
         request of the plaintiff, and upon the filing of an affidavit of the amount due
         showing the method of computation, together with any original instrument
         evidencing the claim unless otherwise permitted by the court, shall enter judgment
         for that amount and costs against the defendant.
         First, although the affidavit Golubs submitted with their motion for default judgment is

3
  KS also argues under Rule 60(b)(5) that the 2009 default judgment should be vacated because it is a prospective
judgment that is no longer equitable to enforce. It argues the judgment is prospective because there is some evidence
in the record that Golub had agreements with third persons to pay them part of Golub’s commission on the sale of
the Peterson property. However, none of the persons KS claims are entitled to part of the commission are mentioned
in Golub’s Listing Agreement with Peterson, and none are included as parties in this case. Any side-agreements
Golub may have had with third persons are irrelevant to resolving the dispute in this case and determining the
amount defendants owed Golub under the listing agreement. Therefore, we need not further analyze this argument.

                                                         7
titled “Affidavit of Alan Golub in Support of Motion for Default Judgment Against Kelly
Polatis,” the substance of the affidavit concerns all the defendants, and the title of a document
does not rigidly control its effect. (Emphasis added). In the affidavit, Golub states the
circumstances establishing liability of multiple defendants, finishing by swearing that “[n]either
Peterson nor Kirk-Hughes paid my realtor fees.” In fact, with the exception of the title of the
document, the affidavit is without reference to Kelly Polatis. It appears the title of the affidavit is
simply a shorthand way of referring to the actual motion for default judgment, which is titled
“Plaintiffs’ Motion and Memorandum for Default Judgment Re: Defendants Polatis and Kirk-
Hughes et al.” In the body of the motion for default judgment, the first sentence reads: “Pursuant
to I.R.C.P. 55(b)(1) Plaintiffs move the Court for Default Judgment against Defendants Kelly
Polatis (‘Polatis’), Geraldine Kirk-Hughes, Peter Sampson, [etc.].” Notably, both the title of the
motion and the first sentence of the motion state Polatis’ name first. Given that the substance of
the affidavit applies to multiple defendants and the other documents relevant to the motion list
Polatis’ name first, it is most likely that the affidavit in support of default judgment simply listed
Polatis in the title as a shorthand way of referring to all the parties but may have incidentally
omitted “et al” after “Polatis.” Regardless of whether the others’ names were left off incidentally,
it is clear the affidavit swore to the claim and amount due from all named defendants.
       Second, the affidavit sets out exactly how Golubs arrived at the $941,000 figure they
sought. Golub swears that, under his agreement, he was entitled to 100% of the amount of the
sale of the property between $4 million and $4.4 million. This means if the property sold for
more than $4.4 million, Golub was entitled to $400,000. He also swears he was entitled to 50%
of the sale price that exceeded $4.4 million. The amount by which the actual sale price of
$5,482,000 exceeded $4.4 million is $1,082,000. So, Golub was entitled to an additional
$541,000 (50% of the $1,082,000 amount over $4.4 million). The $541,000 and the $400,000 he
was owed under the agreement combine to equal the $941,000 amount Golub sought. Therefore,
KS fails in its argument that the affidavit does not set out the means by which the $941,000 was
computed.
       Third, KS argues “Golub’s affidavit does not contain a document ‘evidencing a claim,’ it
contains a hand-written document that does not even contain the $941,000 figure.” Despite this
argument, the document attached by Golub was the listing agreement between Peterson and
Golub, and the terms of that agreement provide the method of calculating the $941,000 amount

                                                  8
Golub sought. It would be impossible for the writing to have contained the $941,000 figure since
the parties’ method of calculating the commission was based on the sale price of the property, an
amount that could not be known until the sale was closed. KS fails to explain why this document
does not meet the requirements of Rule 55(b)(1). Because Golubs’ motion and affidavit for
default judgment did comply with Rule 55(b)(1), KS’ motion to vacate under Rule 60(b)(6) is
without merit. 4
C.       The district court did not err in granting the Golubs’ motion for summary
         judgment.
         1.       The requirements of good faith and giving of valuable consideration do not
                  apply to judgment lienholders under Idaho Code section 55-606.
         KS claims it has a priority claim to the property in question because Golubs perfected
their encumbrance while having actual and/or constructive knowledge of KS’ prior interest,
meaning Golubs could not take as good faith encumbrancers under Idaho Code section 55-606.
In response, Golubs propose an interpretation of section 55-606 in which the requirements of
good faith and valuable consideration do not apply to one who acquires a valid judgment lien.
Idaho Code section 55-606, which governs priorities of competing claims to interests in real
property, currently provides:
         Every grant or conveyance of an estate in real property is conclusive against the
         grantor, also against every one subsequently claiming under him, except a
         purchaser or encumbrancer, who in good faith, and for a valuable consideration,
         acquires a title or lien by an instrument or valid judgment lien that is first duly
         recorded.
I.C. § 55-606 (emphasis added).
         KS argues the plain reading of this statute means that one who is conveyed an interest in
real property (whether or not he/she records that interest) has priority against anyone else with a
subsequent claim to that property except one who, in good faith and for valuable consideration,
subsequently acquires an interest in that property by either an instrument or a valid judgment and

4
  The district court did not address the substance of KS’ motion to vacate under Rule 60(b)(6), instead denying the
motion as untimely. We do not today decide the timeliness issue. Instead we hold that the Rule 60(b)(6) motion is
without merit, meaning that any error that may or may not have occurred in finding the motion untimely was
harmless.
 KS makes a final attempt to challenge the amount of the judgment by arguing Golubs received a double recovery
from (1) a settlement between Golubs and Peterson and (2) Golubs’ judgment for the full amount sought in the
complaint. At the trial court, KS moved to compel discovery of the amount of the Peterson settlement, which motion
was determined by the trial court to be moot in light of the rest of its decision. Because this is not an argument that
the judgment is void for the court’s lack of personal or subject-matter jurisdiction, we find that KS, as a non-party to
the judgment, lacks standing to challenge the amount of the judgment.

                                                           9
records before the first interest is recorded. Golubs argue the plain reading of this statute means
that one who is conveyed an interest in real property has priority against anyone claiming a
subsequent right to the property except either (1) one who, in good faith and for valuable
consideration, subsequently acquires an interest in that property by instrument and records that
interest before the first interest is recorded, or (2) one who subsequently acquires a lien on that
property by valid judgment and recordation of that judgment before the first interest is recorded.
           The district court stated that “I.C. § 55-606 provides that a grant or conveyance of an
estate in real property is conclusive against the grantor, and every other person subsequently
claiming under him, except an encumbrancer who acquires a lien by valid judgment that is first
duly recorded.” (Emphasis added). Thus, though it did not expressly state so, by not addressing
the issues of good faith and payment of valuable consideration by the subsequent interest holder,
the district court appears to have accepted Golubs’ interpretation of the statute. This Court has
not had occasion, since a 1989 amendment, to construe the statutory language in question here.
           Prior to 1989, the statute read exactly the same except the phrase “or valid judgment
lien,” emphasized above, did not appear. 1989 Idaho Sess. Laws ch. 107, § 1, pp. 247–48. The
question of whether a judgment lienholder must acquire his/her interest in good faith and for
valuable consideration in order to have priority under Section 55-606 is a matter of first
impression for this Court. We hold that the requirements of good faith and valuable
consideration do not apply to one who acquired a lien by means of a valid judgment.
           In State v. Yzaguirre we stated the law regarding interpretation of statutes applicable to
this case:
                   The objective of statutory interpretation is to give effect to legislative
           intent. Because the best guide to legislative intent is the words of the statute itself,
           the interpretation of a statute must begin with the literal words of the statute.
           Where the statutory language is unambiguous, the Court does not construe it but
           simply follows the law as written. . . . In determining its ordinary meaning effect
           must be given to all the words of the statute if possible, so that none will be void,
           superfluous, or redundant.
144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007) (internal citations omitted).
           The issue in interpreting the statute is whether a “valid judgment lien” must have been
acquired “in good faith, and for valuable consideration.” A judgment lien is obtained by the act
of recording a judgment, 5 not by the act of obtaining a judgment. Thus, there is no issue of

5
    Idaho Code section 10-1110 provides insofar as is relevant:

                                                           10
whether one could or should give valuable consideration for obtaining the judgment. The issue is
whether a judgment creditor must record a judgment “in good faith, and for valuable
consideration” in order to take priority over a prior unrecorded grant or conveyance of real
estate.
          Because the good-faith and valuable-consideration requirements are connected by the
conjunction “and,” either they both apply to acquiring a judgment lien or neither applies to
acquiring the lien. There is no requirement that a judgment creditor give valuable consideration
in order to obtain a judgment lien. Obtaining the lien by recording the judgment is simply a step
in seeking to enforce payment of the judgment. Because the valuable-consideration requirement
obviously does not apply to the recording of a judgment in order to acquire a judgment lien,
neither does the good-faith requirement.
          If we were to accept KS’ interpretation of Section 55-606, the second instance of the
word “lien” would be superfluous and redundant. The Legislature chose to use the word “lien”
twice, indicating there were two clauses, and two classes of creditors, it intended to keep
separate. If the Legislature intended KS’ interpretation, the statute would merely have provided
that a subsequent encumbrancer has priority if he “in good faith, and for a valuable
consideration, acquires a title or lien by an instrument or valid judgment that is first duly
recorded.” Instead the Legislature provided that the subsequent encumbrancer has priority if he
“in good faith, and for a valuable consideration, acquires a title or lien by an instrument or valid
judgment lien that is first duly recorded.” I.C. § 55-606 (emphasis added). If the two protected
classes of subsequent encumbrancers are to be read as one, as KS argues, this reading would
state that one acquires a lien by means of a judgment lien, which is inaccurate. One acquires a
lien by means of a recorded judgment, not by means of a judgment lien. See I.C. § 10-1110.
          KS contends that the district court’s application of Section 55-606 gives judgment
lienholders a preferred position over other creditors. However, the only way for a subsequent
judgment lienholder to obtain priority over prior interests is if the subsequent judgment “is first

                    A transcript or abstract of any judgment or decree of any court of this state or any court of the
          United States the enforcement of which has not been stayed as provided by law, if rendered within this
          state, certified by the clerk having custody thereof, may be recorded with the recorder of any county of this
          state, who shall immediately record and docket the same as by law provided, and from the time of such
          recording, and not before, the judgment so recorded becomes a lien upon all real property of the judgment
          debtor in the county, not exempt from execution, owned by him at the time or acquired afterwards at any
          time prior to the expiration of the lien. . . .

                                                          11
duly recorded.” This final phrase in the statute, “that is first duly recorded,” must apply to both
judgment lienholders and those who acquired their lien in an instrument with good faith and for
valuable consideration. If this last phrase did not apply, the race component of the race-notice
statute would be lost because there would be no consideration of who recorded first. In this case,
had KS simply recorded its deed of trust when it was executed, there would likely be no question
that it had priority over Golubs’ judgment lien. This is true under either party’s interpretation of
the statute because, even though Golubs met the requirement of having a “valid judgment lien,”
they would not have met the requirement of that judgment lien being “first duly recorded.”
Anyone with a prior, validly recorded interest will maintain his/her priority over any subsequent
judgment lienholder.
        Because we hold that the good-faith and valuable-consideration requirements of Section
55-606 do not apply to valid judgment liens and because Golubs’ judgment was properly
recorded prior to the recording of KS’ deed of trust, the district court properly held that Golubs’
lien had priority.
        2.      Golubs’ default judgment did not require a Rule 54(b) certificate to be valid.
        KS argues Golubs’ interest does not have priority because the recorded default judgment
is not a “valid judgment lien” under Section 55-606. KS argues that Golubs’ default judgment
was not a valid judgment lien under Section 55-606 because, without a signed Rule 54(b)
certificate, the default judgment was not a “final judgment.” This argument is without merit. The
lack of a Rule 54(b) certificate is irrelevant to the validity of Golubs’ judgment, here. In its brief,
KS states the law relating to final judgments as follows: “A final judgment must be final as to all
parties and all claims and contain a signed I.R.C.P. 54(b) certificate.” (Emphasis added). This is
an incomplete reading of Rule 54. Rule 54(a) provides that “[a] judgment is final if either it has
been certified as final pursuant to subsection (b)(1) of this rule or judgment has been entered on
all claims for relief except costs and fees, asserted by or against all parties in the action.”
(Emphasis added).
        In this case, when the district court entered the default judgment in March 2009, the
claims against all but one of the named defendants were resolved. Because Golubs’ claim against
Peterson remained unresolved at the time, Golubs would have required a Rule 54(b) certificate to
enforce their judgment then. See I.R.C.P. 54(b). The judgment contained such a certificate, but,
for an unknown reason, the district court failed to sign it. KHD then went into bankruptcy, with

                                                  12
the automatic stay preventing any collection efforts by Golubs. During the bankruptcy stay, in
August 2009, the district court entered an order, dismissing the remaining claims against
Peterson. Because the automatic stay was still in effect in KHD’s bankruptcy action, the
judgment against KHD lacked finality for appeal purposes and the district court, therefore, issued
a Rule 54(b) certificate with respect to all the defendants in Golubs’ case except KHD. KS does
not argue or cite any authority for the proposition that the bankruptcy stay somehow invalidated
the default judgment that was entered against KHD prior to the bankruptcy. Therefore, after the
bankruptcy was dismissed in October 2010, that default judgment went back into enforceable
effect. Because there were no other defendants and no other claims at that point, the judgment
became final under Rule 54(a), and did not require any kind of a certificate. KHD’s argument is
therefore unavailing.
       3.      The district court did not err in finding that KS’ deed of trust was not
               properly acknowledged.
       The district court found that KS did not properly acknowledge its attempted recordation
of its deed of trust. KS argues the district court erred in deciding the deed of trust was not validly
recorded because: (1) the deed of trust was actually recorded by the Kootenai County Recorder’s
Office even if it contained defects under Idaho law; and (2) the deed of trust was properly
acknowledged under Nevada law where the instrument was executed and Idaho law recognizes
validly acknowledged foreign instruments. Neither of these arguments is persuasive.
       KS first cites Mollendorf v. Derry, 95 Idaho 1, 501 P.2d 199 (1972), and states, “Under
Mollendorf[,] deeds lacking both an acknowledgment and containing deficiencies in the legal
description have not been voided. . . . Thus, even if the Kirk-Scott Deed of Trust did not comply
with Idaho law its supposed deficiencies do not render it void.” KS appears to misunderstand the
district court’s decision with respect to KS’ deed of trust. The district court did not hold that the
deed of trust was void; it held that Golubs’ “judgment lien has priority over K-S’s deed of trust[,]
. . . and K-S’s September 17, 2010, recording of its deed of trust is void.” (Emphasis added).
Additionally, Golubs do not appear to argue that the deed of trust was void, merely that the
recording of that deed of trust was void, meaning it cannot impart constructive notice of the
encumbrance. Mollendorf, which KS cites, does not involve an attempted recording being
challenged. It involves a challenge to the validity of a deed based on a lack of acknowledgment,
in response to which, this Court stated, Idaho law does “not require such an acknowledgment,
except for the purpose of recording.” 95 Idaho at 4, 501 P.2d at 202 (emphasis added).

                                                 13
Therefore, this case actually supports the fact that a valid recording needs a valid
acknowledgment.
         Finally, KS states that Idaho Code section 55-805 recognizes as validly acknowledged in
Idaho, deeds that are acknowledged under the laws of foreign jurisdictions. Although in its
briefing KS states in conclusory fashion that its deed of trust was validly acknowledged in
Nevada where the deed of trust was executed, it provides no application of Nevada law to show
the deed of trust complied with Nevada law for acknowledgement. Additionally, KS conceded at
oral argument before this Court that there was no proper acknowledgment. Because KS has not
shown the district court erred in finding that KS’ deed of trust was not properly acknowledged,
and was therefore not validly recorded, we uphold the trial court’s decision on this matter.
         Here, Golubs validly recorded their interest before KS. Therefore, Golubs simply have
priority over any prior, unrecorded interests, including KS’ deed of trust. In light of our
interpretation of Section 55-606, it is unnecessary to analyze any issues regarding what
knowledge Golubs may or may not have had with respect to KS’ deed of trust. Because there are
no disputed facts with respect to who duly recorded first, the trial court did not err in ordering
that the Golubs were entitled to judgment as a matter of law. 6
D.       The district court did not abuse its discretion in ordering sanctions against KS.
         Following the district court’s order granting summary judgment to Golubs and denying
KS’ motion to dismiss and Rule 60(b) motion to vacate the default judgment, KS filed a motion
to amend/alter the court’s decision, under I.R.C.P. 59(a)(1), (6) & (7). The district court denied
the motion to amend/alter the judgment and sanctioned KS under I.R.C.P. 11(a)(1) for bringing
the motion. The court denied the motion to amend/alter because (1) Rule 59(a) applies only in a
case where there has been a trial, and (2) KS’ motion was, in substance, a motion to reconsider
the court’s decision on KS’ Rule 60(b) motion to vacate the 2009 default judgment, which is
expressly prohibited by Rule 11(a)(2)(B). In sanctioning KS, the court concluded that
         Kirk-Scott’s and Kirk-Hughes’ Motion to Amend/Alter Judgment and supporting
         briefing were not (1) grounded in fact, (2) warranted by existing law or a good
         faith argument for the extension, modification, or reversal of existing law, (3)
         were interposed for the improper purpose of unnecessary delay and (4) did cause
         needless increases in the cost of litigation.
6
  KS also argues the district court erred in finding KS’ recordation of its deed of trust violated the automatic
bankruptcy stay because KS argues Golubs lacked standing to challenge a stay violation. Because we agree with the
district court that the recordation of the deed of trust was not valid because it was not properly acknowledged, it is
unnecessary to address the issue regarding the validity of the recordation as affected by the bankruptcy stay.

                                                         14
KS argues the court erred in ordering sanctions against KS for three reasons: (1) KS’ assertion
that a summary judgment motion is equivalent to a directed verdict is warranted by both existing
law and a good faith argument for the extension thereof; (2) KS’ arguments in its motion fell
within the scope of Rule 59, not Rule 60 as the court decided; and (3) the court’s impartiality is
in question.
        Our standard when reviewing the trial court's imposition of sanctions pursuant to Rule 11
is one of abuse of discretion. Campbell v. Kildew, 141 Idaho 640, 649–50, 115 P.3d 731, 740–41
(2005). Rule 11(a)(1) provides that, when appearing on a filing with the court,
        [t]he signature of an attorney or party constitutes a certificate that the attorney or
        party has read the pleading, motion or other paper; that to the best of the signer’s
        knowledge, information, and belief after reasonable inquiry it is well grounded in
        fact and is warranted by existing law or a good faith argument for the extension,
        modification, or reversal of existing law, and that it is not interposed for any
        improper purpose, such as to harass or to cause unnecessary delay or needless
        increase in the cost of litigation.
I.R.C.P. 11(a)(1). If a filing is signed in violation of this rule,
        the court, upon motion or upon its own initiative, shall impose upon the person
        who signed it, a represented party, or both, an appropriate sanction, which may
        include an order to pay to the other party or parties the amount of the reasonable
        expenses incurred because of the filing of the pleading, motion, or other paper,
        including a reasonable attorney’s fee.
Id. In general, the question of whether to issue sanctions falls on “whether an attorney made a
proper investigation into the facts and legal theories before signing and filing a document.”
Campbell, 141 Idaho at 650, 115 P.3d at 741. Rule 59, under which KS claims to have brought
its motion to amend/alter, provides in relevant part:
        (a) New Trial—Amendment of Judgment—Grounds. A new trial may be granted
        to all or any of the parties and on all or part of the issues in an action for any of
        the following reasons:
                1. Irregularity in the proceedings of the court, jury or adverse party
                or any order of the court or abuse of discretion by which either
                party was prevented from having a fair trial.
                ...
                6. Insufficiency of the evidence to justify the verdict or other
                decision, or that it is against the law.
                7. Error in law, occurring at trial.
Rule 11(a)(2)(B) provides, in relevant part:

                                                    15
       A motion for reconsideration of any order of the trial court made after entry of
       final judgment may be filed within fourteen (14) days from the entry of such
       order; provided, there shall be no motion for reconsideration of an order of the
       trial court entered on any motion filed under . . . 60(b).
       Here, the district court ordered sanctions against KS under Rule 11(a)(1). The court cited
Slack v. Anderson, 140 Idaho 38, 89 P.3d 878 (2004), correctly recognizing that sanctions under
Rule 11(a)(1) are discretionary.
       The district court also acted within the scope of its discretion and consistently with the
applicable legal principles. In its Decision and Order Re: Sanctions, the district court first
concluded that there had been no trial in this case and that KS’ argument that a summary
judgment determination is equivalent to a directed verdict at trial “is not warranted by existing
law or a good faith argument for the extension of existing law.” By its plain language, Rule 59(a)
appears to apply only to cases where there has been a trial, and the district court noted this fact.
In its initial motion to amend/alter and supporting memorandum, KS provided no authority or
argument as to why Rule 59(a) should apply to the court’s rulings on a motion for summary
judgment, a motion to dismiss, or a Rule 60(b) motion to vacate. After Golubs raised this
problem in their response to KS’ motion, KS’ reply brief on its motion to amend/alter stated:
“Courts consistently hold that ‘a summary judgment motion is like a trial motion for a directed
verdict and that “genuine” allows some quantitative determination of the sufficiency of the
evidence.’” (Quoting McFeely v. United States, 700 F. Supp. 414, 417 (S.D. Ind. 1988)). Despite
its claim that courts consistently make this holding, McFeely is the only authority KS cited to
support its proposition. At oral argument on this matter, the district court asked KS to address
any Idaho authority to support its position that the equivalent of a trial had taken place, making
Rule 59(a) applicable. In response to the court’s inquiry on Idaho authority, the following
exchange took place:
       Mr. Crotty [(KS’ counsel)]: As to your question, your honor. No, I have not found
       any Idaho authority. I found analogous authority that I cited in the brief.
       Court: The Southern District of Indiana case?
       Mr. Crotty: Yes, your Honor. There’s additional authority from Washington. But,
       no, I have not found any from Idaho.
In its Decision Re: Sanctions, the district court stated that of all the Idaho case law addressing
Rule 59(a) none of it applies to a summary judgment. It also found the statement KS cited from
McFeely (from the Southern District of Indiana) was taken out of context and “does not stand for

                                                16
the proposition asserted, i.e., that a summary judgment decision is the equivalent of a trial.”
       On appeal, KS cites several other cases from non-controlling jurisdictions. These sources
were not provided to the district court to consider in making its decision, so we will not consider
the applicability of those cases in reviewing whether the district court abused its discretion.
       Additionally, for the first time on appeal, KS changes its position that there is no relevant
Idaho authority on the matter, citing two Idaho cases on appeal. In the first, Straub v. Smith, 145
Idaho 65, 70–71, 175 P.3d 754, 759–60 (2007), the Court reversed the trial court’s decision that
Rule 59(e) did not provide a basis to amend a judgment resulting from a stipulated motion to
dismiss prior to trial. The case does not anywhere discuss Rule 59(a), under which KS claims to
have brought its motion. KS secondly cites to a footnote in Johnston v. Pascoe that states:
“Although the motion was denominated as one for ‘New Trial’ no trial was had, the case being
resolved under summary judgment proceedings. However, it could properly be considered as a
motion in amendment of judgment, mentioned in I.R.C.P. 59(a).” 100 Idaho 414, 419 n.4, 599
P.2d 985, 990 n.4 (1979). Whether a summary judgment determination was equivalent to a trial
was not before the Court in Johnston, and the court resolved the issue before it by deciding the
motion in the case was untimely. Therefore, the Johnston Court’s footnote language cited by KS
is not binding on this Court. Because these two Idaho cases are not on point with the issue before
the Court, and because they were not presented to the trial court where KS took the position there
was no applicable Idaho authority on the matter, KS fails in its argument with respect to these
two Idaho cases.
       In addition to the fact that Rule 59(a) does not apply where there has not been a trial, the
district court found that, with its Rule 59(a) motion to amend/alter the 2013 judgment, KS was in
reality requesting that the district court reconsider its ruling on KS’ Rule 60(b) motion to vacate
the 2009 default judgment. KS argues its motion could not have been a motion for
reconsideration of its earlier Rule 60(b) arguments because KS withdrew the part of its motion to
amend/alter that applied to Rule 60(b)(4) and the district court never considered the substance of
KS’ Rule 60(b)(5) & (6) arguments, so it is not possible that KS asked the court to reconsider
those arguments.
       Rule 11(a)(2)(B) prohibits the filing of a motion to reconsider an order issued on a Rule
60(b) motion. Here, in support of its motion to amend/alter, KS filed a sixteen-page opening
memorandum. Under the guise of a Rule 59(a) motion, the vast majority of this memorandum

                                                 17
asked the district court to reconsider KS’ arguments that the Golubs’ 2009 default judgment
should have been vacated under Rule 60(b). The first argument section of KS’ memorandum
argued that the district court erred in finding that KS had the burden of proving the timeliness of
its Rule 60(b) motion. The next section argued the district court erred in finding the Rule 60(b)
motion was not brought timely. The next section argued that the district court did not sufficiently
address KS’ Rule 60(b)(5) & (6) arguments—because the court found them to be untimely. KS
argues on appeal that it was not asking the district court to reconsider its Rule 60(b) motion.
Although KS is careful not to use the word “reconsider” in its motion to amend/alter, statements
such as, “[t]he Court should [] amend its judgment, by vacating the 2009 default judgment, under
I.R.C.P. 60(b)(4)(5) & (6),” make it clear that KS was asking the district court to reconsider its
decision on the Rule 60(b) motion to vacate. This request of the court to reconsider its order on
the Rule 60(b) motion is clearly prohibited by Rule 11(a)(2)(B). The district court stated,
        this Court is left with the abiding belief that the defendants requested this Court to
        reconsider its August 9, 2013, order denying the defendants’ Rule 60(b) motions.
        Additionally this Court concludes that the defendants’ attempt to skirt around
        Rule 11(a)(2)(B)’s prohibition against reconsideration of Rule 60(b) orders is the
        exact litigative misconduct that Rule 11 sanctions was intended to address.
        As the district court found, a reasonable inquiry by KS would have revealed that it was
prohibited from bringing such a motion for reconsideration of its Rule 60(b) motion. 7 These
arguments, prohibited by Rule 11(a)(2)(B), came in the form of a number of documents signed
by KS’ attorney. The district court found KS “filed its Motion to Amend/Alter Judgment . . . and
a supporting brief. Both were signed by Kirk-Scott’s counsel Mr. Crotty.” KS also “filed its reply
brief; signed by Mr. Crotty.” In summary, based on the authority provided to the trial court in
deciding the motion, KS’ argument that a summary judgment disposition is equivalent to a trial
was not well-grounded in fact, existing law, or a good-faith argument for extension of the law.
Further, it was clear that KS was asking for the court to reconsider its order on the Rule 60(b)
motion. A reasonable inquiry should have led KS to realize these filings were inappropriate.
Nevertheless, KS signed and submitted the inappropriate filings to the court. Therefore, in
sanctioning KS the district court acted within the scope of its Rule 11(a)(1) discretion and
consistently with applicable legal theories.
        Finally, the district court also reached its decision by an exercise of reason. The court

7
 And, in fact, Golubs warned KS that it was bringing the motion in violation of Rule 11(a)(2)(B) and gave KS a
chance to withdraw the motion.

                                                     18
issued a well-reasoned, eight-page decision, concluding that it was ordering these sanctions upon
its own initiative because it found:
       Kirk-Scott’s and Kirk-Hughes’ Motion to Amend/Alter Judgment and supporting
       briefing were not (1) grounded in fact, (2) warranted by existing law or a good
       faith argument for the extension, modification, or reversal of existing law, (3)
       were interposed for the improper purpose of unnecessary delay and (4) did cause
       needless increases in the cost of litigation.
The court analyzed its power to order sanctions, the standard to apply when doing so, and the
specific conduct that made sanctions appropriate here. Therefore, it reached its decision by an
exercise of reason. Because the district court in this case (1) correctly recognized the order of
sanctions as a matter within its discretion, (2) acted within the scope of the court’s discretion and
consistently with applicable legal theories, and (3) reached its decision by an exercise of reason,
we hold that the district court did not abuse its discretion in ordering sanctions against KS.
       KS’ contention that the district court was biased against KS is unwarranted and
unsupported. KS does not provide any facts, authority or persuasive argument on this matter. It
merely points out what it believes to be weaknesses in Golubs’ case and suggests that the court
must not be impartial because it found in favor of Golubs despite these weaknesses. We will not
entertain such a groundless argument.
E.     KS is not entitled to attorney fees under Idaho Code section 12-120(3) or 12-121.
       Both Idaho Code sections 12-120(3) and 12-121 allow attorney fees only to the
prevailing party. Because we rule against KS today, it is not entitled to attorney fees.
                                             IV.
                                         CONCLUSION
       We affirm the district court in all respects. Costs to Golubs.

       Chief Justice BURDICK, and Justices EISMANN and HORTON, and Justice Pro Tem
WALTERS CONCUR.

                                                 19


693 So.2d 990 (1996)
Larry CHRISTIAN, Appellant,
v.
STATE of Florida, Appellee.
No. 95-67.
District Court of Appeal of Florida, First District.
August 15, 1996.
*991 Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
JOANOS, Justice.
Appellant, Larry Lee Christian, appeals his conviction of the crime of second-degree murder, and the consecutive mandatory minimum firearm sentences imposed in connection with offenses committed during the same criminal episode. The issues presented for review are: (1) the legal sufficiency of the evidence to sustain the conviction of seconddegree murder, (2) the limitation of expert testimony as to appellant's state of mind during the relevant time period, and (3) the imposition of consecutive mandatory minimum firearm sentences. We affirm in part and reverse in part.
The charges here at issue arose in the context of an altercation at the Inferno Club in Perry, Florida, on the evening of February 14, 1994. Appellant, then aged sixteen, accompanied his twenty-year-old brother, Wesley, to the club. While appellant was dancing, appellant's brother Wesley and victim Chad Ellis engaged in an argument which quickly escalated into physical violence. The evidence indicated that the victim, Chad Ellis, threw the first punch, and was getting the better of appellant's brother up until the point at which appellant intervened. At some point, appellant approached the combatants and shot Ellis three times in the back. Ellis died shortly thereafter.[1] Thereafter, Pedro Bishop, the second shooting victim, hit appellant. Appellant struck Bishop on the head with the gun butt, whereupon Bishop fell to his knees, and wrapped his arms around appellant's legs. At that point, appellant fired the gun downward two more times. Keith Hampton tussled with appellant for possession of the gun and Dennis August approached with an upraised chair. Hampton ducked as August threw the chair, releasing his grasp on appellant. Appellant then ran from the club, leaving the gun on the floor.
When these events occurred, neither appellant nor his brother had a criminal history. However, the other combatants, including both victims, had significant prior criminal records. A Perry police officer testified that he knew both victims, and that both young men had reputations for violence in the community.
The defense theory was that appellant feared Chad Ellis would kill or seriously injure his brother, and because of this fear, appellant used force to defend his brother from Ellis and to defend himself from Bishop. In his first issue, appellant contends the evidence presented at trial was legally insufficient to sustain his conviction of any offense more serious than manslaughter. We disagree. Second degree murder is defined in section 782.04(2), Florida Statutes, as:
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, ...
"An act is considered imminently dangerous to another and evincing a depraved mind if it is an act that (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, (2) is done from ill will, hatred, spite, or an evil intent, and (3) is of such a *992 nature that the act itself indicates an indifference to human life." Conyers v. State, 569 So.2d 1360, 1361 (Fla. 1st DCA 1990). See also Roberts v. State, 425 So.2d 70, 71 (Fla. 2d DCA 1982), review denied, 434 So.2d 888 (Fla.1983)("Depravity of mind means malice in the sense of ill will, hatred, spite or evil intent").
The use of force in defense of person is governed by section 776.012, Florida Statutes, which states:
A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.
The acts deemed to constitute the imminently dangerous and depraved mind elements of second-degree murder depend upon the circumstances of each case. See Andrews v. State, 577 So.2d 650 (Fla. 1st DCA), review denied, 587 So.2d 1329 (Fla. 1991); Brown v. State, 454 So.2d 596 (Fla. 5th DCA), review denied, 461 So.2d 116 (Fla. 1984); Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 640 (Fla. 1980); McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993).
We are cognizant that some of the facts of this case are somewhat similar to those involved in several of the cited cases in which second degree murder convictions have been reversed and remanded with directions to reduce the conviction to manslaughter. We also recognize that the evidence established Chad Ellis was the aggressor in the fight with appellant's brother, Wesley; Ellis was getting the better of Wesley; and that Ellis' friend, Pedro Bishop, moved toward the combatants before the shooting occurred, suggesting increased peril to appellant's brother.
However, evidence presented in support of the jury's verdict includes undisputed testimony that appellant was the only person involved in the altercation who used a weapon during the incident. Further, the evidence established that appellant shot Ellis three times in the back at close range. We believe these particular facts distinguish this case from those cases in which a second degree murder conviction was reduced to manslaughter or justifiable homicide. On the basis of these facts, the jurors were entitled to conclude that appellant used excessive force toward an unarmed aggressor, and that the act of firing three successive shots into the back of an individual engaged in a fist fight evinced the depraved mind regardless of human life essential to a conviction of second degree murder.
As his second issue, appellant contends the trial court improperly limited the expert testimony regarding appellant's state of mind at the time of the shooting. Again, we disagree. The trial court has broad discretion in determining the matters which are the proper subject of expert testimony. Johnson v. State, 393 So.2d 1069, 1072 (Fla. 1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). In the exercise of that discretion, the trial court in this case permitted appellant to offer evidence concerning the reason he feared Ellis, and the defense expert explained the degree and nature of fear appellant felt during the incident. Appellant's expert was permitted to testify that appellant functions at a marginal level of intelligence; he has a passive dependent personality; and he lacks self-confidence. The expert explained that the combination of these factors impairs appellant's ability to make quick and reasonable decisions when confronted with crisis situations. The expert further testified that appellant's inability to remember anything that happened immediately after the first shot was fired was consistent with the anxiety and panic he felt at the time.
It appears the expert testimony admitted at trial was sufficient for the jurors to evaluate the nature of appellant's fear at the time of the shooting, and to determine the effect of that fear in relation to appellant's use of force. The testimony appellant wished to elicit would have told jurors that *993 appellant was in a state of fear which caused him to believe that shooting Ellis was the only means available to him to prevent Ellis from killing or seriously injuring his brother. It is improper to permit an expert to express an opinion which applies a legal standard to a set of facts. See Gurganus v. State, 451 So.2d 817, 821 (Fla.1984); Shaw v. State, 557 So.2d 77 (Fla. 1st DCA 1990). See also Ehrhardt, Florida Evidence § 703.1 at 524 (1996 Edition).
As his third issue, appellant contends the trial court erred in imposing consecutive minimum mandatory sentences for use of a firearm for crimes which occurred during a single episode. We agree. It is improper to impose consecutive minimum mandatory sentences for use of a firearm in connection with multiple crimes committed in the course of one criminal episode. State v. Thomas, 487 So.2d 1043 (Fla.1986); Permenter v. State, 635 So.2d 1016, 1017 (Fla. 1st DCA 1994); Gardner v. State, 515 So.2d 408 (Fla. 1st DCA 1987). In Thomas, the supreme court carved an exception to the general rule announced in Palmer v. State, 438 So.2d 1 (Fla.1983), to hold that consecutive minimum mandatory sentences pursuant to section 775.087(2), Florida Statutes, may be imposed for offenses which arise from separate incidents occurring at separate times and places. See also Lifred v. State, 643 So.2d 94, 99 (Fla. 4th DCA 1994).
The evidence in this case shows the firearm was used in the commission of two separate offenses against two separate victims. However, there was no temporal break between the offenses, and the offenses were not committed in different locations. Thomas has been construed as prohibiting consecutive minimum mandatory sentences absent proof of separate offenses against separate victims, committed at separate times and places. Therefore, the consecutive firearm sentences imposed in this case must be reversed and remanded for resentencing.
Accordingly, we reverse the consecutive minimum mandatory firearm sentences, and remand for imposition of concurrent minimum mandatory sentences. We affirm as to the other issues raised by appellant.
BENTON, J., concurs.
BOOTH, J., specially concurring with written opinion.
BOOTH, Judge, specially concurring.
I concur with the majority that Appellant's consecutive minimum mandatory sentences require reversal under this court's decisions interpreting State v. Thomas, 487 So.2d 1043 (Fla.1986). Permenter v. State, 635 So.2d 1016 (Fla. 1st DCA 1994); Gates v. State, 633 So.2d 1158 (Fla. 1st DCA 1994); Gardner v. State, 515 So.2d 408 (Fla. 1st DCA 1987). However, I write to express my belief that the law on this issue is correctly stated in Lifred v. State, 643 So.2d 94 (Fla. 4th DCA 1994) (interpreting Thomas; en banc). In the absence of this court's prior decisions, I would follow Lifred and affirm Appellant's sentences.
NOTES
[1]  The medical examiner testified that only one of the shots was fatal, but it was impossible to determine the sequence of the fatal shot, i.e., it could not be determined whether the first, second, or third shot was the actual cause of Ellis's death.


485 F.2d 283
73-2 USTC  P 9685, 179 U.S.P.Q. 450
GEORATOR CORPORATION, Appellee,v.UNITED STATES of America, Appellant.
No. 73-1187.
United States Court of Appeals,Fourth Circuit.
Argued June 4, 1973.Decided Oct. 2, 1973.

Ann Belanger, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Crampton, Asst. U. S. Atty. Gen., Meyer Rothwacks and Ernest J. Brown, Attys., Tax Div., U. S. Dept. of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellant.
Mark P. Friedlander, Arlington, Va.  (Harry P. Friedlander, Friedlander, Friedlander & Brooks, Arlington, Va., on brief), for appellee.
Before WINTER, BUTZNER and FIELD, Circuit Judges.
FIELD, Circuit Judge:

1
This case presents the question whether for federal income tax purposes fees incurred while resisting a petition to cancel registration of a trademark may be deducted annually as an ordinary business expense or must be treated as a capital expenditure.

2
In 1964 Wincharger Corporation, a subsidiary of Zenith Corporation, filed a petition in the Patent Office to cancel Georator Corporation's (Georator) registration of the trademark "NOBRUSH" on the ground that the trademark had become the common descriptive name for certain types of electric generators and motors.  After four years of litigation the Patent Office dismissed the proceeding because of the petitioner's failure to present any substantial evidence to refute the presumptions afforded the trademark by virtue of its registration.

3
In the course of defending its trademark registration, Georator incurred legal fees in excess of $18,000.  These expenses were deducted annually as ordinary business expenses under Section 162(a) of the Internal Revenue Code, 26 U.S.C. Sec. 162(a).  Upon audit the Internal Revenue Service held the legal fees to be capital expenditures and determined an income tax deficiency for the years in question in the amount of $9,967.15.  Georator paid the deficiency, petitioned for a refund and upon denial thereof brought suit against the government in the district court to recover the amount paid on the deficiency assessment.  The district court agreed with Georator's contention that the legal fees were ordinary business expenses fully deductible in the years incurred and ordered that the deficiency, with interest, be refunded.  From that judgment the government has appealed.

4
Our analysis of this question begins with the principle of taxation reflected in Section 162(a) of the Internal Revenue Code that an expenditure securing benefits which are realized and exhausted in the same tax period is fully deductible in that tax period.  Conversely, an expenditure securing benefits beyond the taxable year must be capitalized.  Darlington-Hartsville Coca-Cola Bot.  Co. v. United States, 393 F.2d 494 (4 Cir. 1968); Richmond Television Corporation v. United States, 345 F.2d 901 (4 Cir. 1965).

5
It is clear that an expenditure need not be for a capital asset, as described in Section 1221 of the Code, 26 U.S.C. Sec. 1221, in order to be classified as a capital expenditure.  Expenditures for equipment used in a trade or business and qualifying for the depreciation allowances of Section 167 of the Code, 26 U.S.C. Sec. 167, while specifically excluded from the provisions of Section 1221, nonetheless constitute capital expenditures.  Nor is it necessary that an expenditure increase the value of an asset in order to be classified as a capital expenditure, as the district court apparently assumed.  Costs of defending title to property, although adding nothing to the value of the property, have been held to be capital expenditures.  Garrett v. Crenshaw, 196 F.2d 185 (4 Cir. 1952); Bowers v. Lumpkin, 140 F.2d 927 (4 Cir. 1944).  It is also clear that Section 263 of the Code, 26 U.S.C. Sec. 263, which disallows deductions for expenditures which increase the value of any property, does not provide a complete or exhaustive list of nondeductible expenditures.  Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345, 358, 91 S. Ct. 1893, 29 L.Ed.2d 519 (1971).

6
Registration of a trademark in the Patent Office, while not enlarging the common law rights of a trademark, does confer very real benefits upon the holder of such trademark.  Those benefits include: (1) constructive notice of the registrant's claim of ownership of the trademark; (2) prima facie evidence of the validity of the registration, of the registrant's ownership of the mark, and of his exclusive right to use the mark in commerce as specified in the certificate; (3) the possibility that, after five years, registration will become incontestible and constitute conclusive evidence of the registrant's right to use the mark; (4) the right to request customs officials to bar the importation of goods bearing infringing trademarks; (5) the right to institute trademark actions in federal courts without regard to diversity of citizenship or the amount in controversy; and (6) treble damage actions against infringing trademarks and other remedies. 15 U.S.C. Sec. 1051 et seq. Registration is effective initially for twenty years, but the possibility of renewal at the end of that time makes a determination of the effective life span impossible.  Since the benefits of trademark registration are of indeterminate duration and likely to extend over several tax periods, the costs of registration have been held to be capital expenditures.  Duesenberg, Inc. of Delaware, 31 B.T.A. 922 (1934), aff'd on other grounds, 84 F.2d 921 (7 Cir. 1936); see also our discussion of Section 177 of the Internal Revenue Code, 26 U.S.C. Sec. 177, infra.

7
In our view, legal costs incurred resisting cancellation of a trademark registration must be treated in the same manner as the costs of the original registration.  Plainly, successful opposition to a cancellation proceeding secures the benefits of registration as much as does the original registration of the trademark.  The fact that dismissal of a cancellation petition is not res judicata does not alter the fact that the benefits of registration have been protected and preserved at least temporarily.  If anything, successful opposition to a vigorous challenge will ordinarily deter all but the frivolous from future attempts at cancellation and, as appellee has noted, it is the realities rather than the formalities which must be given weight in tax litigation.  Of significance here is the fact that the benefits of successful opposition to the cancellation petition were likely to extend, and in fact did extend, beyond the tax period in which they were secured.

8
However, our decision does not depend entirely upon this analysis.  Under Section 177 of the Code, 26 U.S.C. Sec. 177, the owner of a trademark may elect to deduct over a period of not less than sixty months "any trademark or trade name expenditure."  The Senate Report1 accompanying Section 177 stated that

9
"Under present law, expenditures paid or incurred by smaller companies in connection with trademarks and trade names, such as legal fees, are not deductible but must be capitalized."

10
In Danskin, Inc. v. Commissioner, 331 F.2d 360 (2 Cir. 1964), in which the legal costs of an infringement action were held to be capital expenditures, the court noted the Congressional desire to effect a measure of equity between large corporations which could deduct the salaries of staff attorneys and smaller corporations which were required to capitalize such legal expenses, but also observed that "if the expenses of trademark infringement litigation were intended by Congress to be classified as ordinary business expenses under section 162(a) of the Code, it would [hardly] have been necessary to provide in section 177 a special rule covering them, a rule less advantageous to a taxpayer than section 162(a)" Id. at 362.  Thus, unless the legal expenses of trademark cancellation proceedings are excluded from Section 177, a strong inference may be drawn that such expenses are capital in nature.

11
"Trademark or trade name expenditures" are defined in Section 177(b) of the Code as "any expenditure which: (1) is directly connected with the acquisition, protection, expansion, registration (Federal, State or foreign), or defense of a trademark, trade name, (2) is chargeable to capital account; and (3) is not part of the consideration [or purchase price] paid for a trademark, trade name or business."  The district court held this section inapplicable to this case because "the expenditures here claimed were not connected with the acquisition of the registration or the validity of the trademark-they were incurred in defending a cancellation proceeding."  We find this to be an incorrect reading of Section 177.  That section does not refer to expenses incurred in connection with the "acquisition of registration;" rather, it refers to expenses incurred in connection with the "acquisition * * * of a trademark," or in connection with the "registration * * * of a trademark."  No reason appears in the language of the statute to distinguish between costs of the original registration and costs of a cancellation proceeding.  Assuredly, costs incurred resisting a cancellation petition are "directly connected with the * * * registration * * * of a trademark."

12
Concededly, some ambiguity as to the scope of Section 177 has been occasioned by the Treasury Regulations interpreting that section. 26 CFR 1.177-1(b)(1) provides that

13
"Generally, section 177 will apply to expenditures such as legal fees and other costs in connection with the acquisition of a certificate of registration of a trademark from the United States or other government, * * * litigation expenses connected with infringement proceedings, and costs in connection with the preparation and filing of an application for renewal of registration and continued use of a trademark."

14
Arguably, the failure to specifically include legal fees incurred in cancellation proceedings may be said to imply that such fees are not covered by Section 177 since, as appellee urges, they are not "chargeable to capital account."  As noted earlier, however, the express language of the statute does not require such a narrow reading.  Moreover, Revenue Ruling 55-1582 suggests the opposite construction.  In order to avoid automatic cancellation of a trademark registration after six years, 15 U.S.C. Sec. 1058 requires a registrant to file by the end of the fifth year an affidavit of use with the Patent Office.  Revenue Ruling 55-158 holds that amounts spent in preparation and filing of an affidavit of use may not be deducted under 162(a) of the Code, but must be capitalized.  Appellee has not suggested nor do we perceive any basis in logic or policy for treating legal fees incurred resisting a petition to cancel a trademark registration in a manner different from legal fees incurred avoiding the automatic cancellation under 15 U.S.C. Sec. 1058.  In both situations the benefits secured extend beyond the tax period during which the fees are paid out.  Thus, regardless of the type of trademark expenses which may fall outside the ambit of Section 177(b) (2), it is clear that the legal costs of cancellation proceedings are not among them.

15
We conclude that the Internal Revenue Service properly classified the fees incident to the cancellation proceeding as a capital expenditure and the deficiency assessed on that basis was correct.  Accordingly, the judgment of the district court is reversed and the case remanded with instructions to enter judgment in favor of the plaintiff/appellee herein in the sum of $1,111.60 in taxes and $116.98 as assessed interest, or a total of $1,228.58, under the stipulations filed in the court below, in lieu of the judgment entered below for $11,278.

16
Reversed.

1
 S.Rep.No.1941, 84th Cong., 2d Sess., p. 8, 1956 U.S.Code Cong. & Admin.News, p. 2918 (1956-2 Cum.Bull. 1227, 1232)

2
 1955-1 Cum.Bull. 319


940 A.2d 105 (2007)
In re Fredric D. LEFFLER, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 388671).
Nos. 05-BG-680, 05-BG-1104.
District of Columbia Court of Appeals.
Submitted November 7, 2007.
Decided November 21, 2007.
Before PRYOR, KERN, and NEBEKER, Senior Judges.
PER CURIAM:
On May 28, 2004, respondent, Fredric D. Leffler, was found guilty after a jury trial in the United States District Court for the District of Maryland of six counts of mail fraud and eleven counts of wire fraud. On April 29, 2005, respondent was sentenced to thirty-seven months imprisonment. On *106 May 10, 2005, the Court of Appeals of Maryland disbarred respondent by consent.[1] Bar Counsel filed a certified copy of that order of disbarment, and on July 25, 2005, we issued an order temporarily suspending respondent pursuant to D.C. Bar R. XI, § 11(d) and directing: (1) Bar Counsel to inform the Board on Professional Responsibility ("the Board") of his position regarding reciprocal discipline within thirty days; (2) respondent to show cause why identical, greater, or lesser discipline should not be imposed; and (3) the Board either to recommend discipline or proceed de novo. (Appeal No. 05-BG-680.)
Bar Counsel then filed a certified copy of respondent's District Court convictions, and on October 18, 2005, we suspended him pursuant to D.C. Bar R. XI, § 10(c) and directed the Board to institute a formal proceeding to determine the nature of the final discipline to be imposed and, specifically, to decide whether respondent's crimes involved moral' turpitude. (Appeal No. 05-BG-1104.) On December 28, 2005, this court sua sponte consolidated appeal Nos. 05-BG-680 and 05-BG-1104.[2] In the Board's report and recommendation, it concluded that respondent's convictions involve moral turpitude per se, In re Schainker, 871 A.2d 1206 (D.C.2005), and recommends disbarment pursuant to D.C.Code § 11-2503(a) (2001), and that the reciprocal action be dismissed as moot.
Bar Counsel has informed the court that he takes no exception to the Board's report and recommendation. Respondent has not filed any exceptions to the Board's report and recommendation, nor has he participated in the proceedings. We, therefore, accept the Board's findings and adopt its recommendation. See D.C. Bar R. XI, § 9(g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C.1997). It is well settled that mail fraud is a crime of moral turpitude per se. See, e.g., In re Schainker, supra, 871 A.2d at 1206; In re Firestone, 824 A.2d 47 (D.C.2003); In re Evans, 793 A.2d 468 (D.C.2002). D.C.Code § 11-2503(a) (2001) mandates disbarment when a bar member is convicted of an offense involving moral turpitude and a certified copy of the conviction is presented to the court. Accordingly, it is
ORDERED that Fredric D. Leffler is disbarred from the practice of law in the District of Columbia, We direct respondent's attention to the requirements of D.C. Bar R. XI, § 14(g), and their effect on his eligibility for reinstatement. It is
FURTHER ORDERED that the reciprocal action, appeal No. 05-BG-680, is hereby dismissed as moot.
So ordered.
NOTES
[1]  Respondent was subsequently disbarred by the United States Court of Federal Claims based on his disbarment in Maryland.
[2]  This matter had originally been placed on the April 6, 2006, calendar for consideration; however, it was removed from the calendar and stayed when the court was informed that respondent had appealed his convictions. The court has now been informed that respondent's appeal has been resolved and his convictions affirmed.