IDCODE

Chapter 1 COSTS

Sec.

§ 12-101. Costs.

Costs shall be awarded by the court in a civil trial or proceeding to the parties in the manner and in the amount provided for by the Idaho Rules of Civil Procedure.

History.

I.C.,§ 12-101, as added by 1977, ch. 4, § 1, p. 9.

STATUTORY NOTES

Cross References.

Abstract of title, cost of,§ 6-547.

Arbitration costs to be provided for in award unless otherwise provided,§ 7-910.

Attachment, necessity of written undertaking by plaintiff,§ 8-503.

Attorney’s fees, lien,§ 3-205.

Change of venue, cost of filing papers anew,§ 5-408.

Civil arrest, undertaking for costs,§ 8-105.

Declaratory judgment proceedings, costs in,§ 10-1210.

Deposition, fee for taking to be taxed as costs, Idaho R. Civ. P. 54(d)(1).

Disclaimer in actions to quiet title,§ 6-402.

Divorce on ground of insanity, costs to be paid by plaintiff,§ 32-805.

Election contests, liability for costs,§ 34-2020.

Eminent domain proceedings, costs in,§ 7-718.

Expense of securing surety company bond may be taxed as costs,§ 41-2607.

Fees of witnesses voluntarily attending,§ 9-1601.

Garnishment, costs and allowances,§ 8-515.

Husband not chargeable with costs of wife’s suit,§ 5-304.

Interpreters’ fees not taxable costs,§ 9-1603.

Log liens, filing and attorney’s fees allowed as costs in suits to enforce,§ 45-413.

Lost papers, how supplied, Idaho R. Civ. P. 10(a)(2).

Mandate, costs in action for,§ 7-312.

Mechanic’s lien cases, recorder’s and attorney’s fees allowed as costs in,§ 45-513.

Offer of judgment rejected, costs limited, Idaho R. Civ. P. 68.

Partition, expenses of referees and surveyors,§ 6-517; apportionment of costs to parties,§ 6-545; cost of abstract to be taxed against parties,§ 6-547.

Procedures regarding costs, Idaho R. Civ. P. 54(d)(1) to 54(d)(6).

Quieting title, costs not allowed when defendant disclaims title,§ 6-402.

Railroad killing stock, recovery of attorney’s fees in actions against,§ 62-409.

Reporter’s fees as costs,§ 1-1105.

Rights of way for mining purposes, costs in actions to condemn,§ 47-912.

Usurpation of office, costs in action for,§ 6-608.

Witnesses and interpreters, fees,§§ 9-1601, 9-1603 to 9-1605.

Prior Laws.

Former§ 12-101 which comprised C.C.P. 1881, § 696; R.S. & R.C., § 4900; am. 1911, ch. 167, § 1, p. 563; reen. C.L., § 4900; C.S., § 7206; I.C.A.,§ 12-101 regarding parties entitled to costs was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Effective Dates.

Section 2 of S.L. 1977, ch. 4 declared an emergency. Approved February 15, 1977.

CASE NOTES

Action Against Barber Examiners.

Award Under Environmental Protection and Health Act.

The legislature has made it clear that an award of expenses under the Environmental Protection and Health Act (§ 39-101 et seq.) is mandatory and unqualified, stating that a person who violates the act “shall be liable for any expense.” By using the term “any expense” rather than “costs”, the legislature apparently intended a more extensive recovery of costs than is contemplated by this section and Idaho R. Civ. P. 54(d)(1). For this reason, the trial court should consider a request for costs according to§ 39-108(6), rather than Idaho R. Civ. P. 54(d)(1). Idaho Dep’t of Health & Welfare v. Southfork Lumber Co., 123 Idaho 146, 845 P.2d 564 (1993).

Special Masters.

State was not entitled to a writ of prohibition to enjoin a district court from assessing fees for a special master against the state because the appointment of special masters and the assessment of special master costs were matters within the discretion of the district courts. Clear statutory authority existed for the award of such fees, as well direction as to how costs awarded against the state were to be paid. State v. District Court, 143 Idaho 695, 152 P.3d 566 (2007).

Cited

Gem State Homes, Inc. v. Idaho Dep’t of Health & Welfare, 113 Idaho 23, 740 P.2d 65 (Ct. App. 1987); Agrodyne, Inc. v. Beard, 114 Idaho 342, 757 P.2d 205 (Ct. App. 1988); Caldwell v. Idaho Youth Ranch, Inc., 132 Idaho 120, 968 P.2d 215 (1998); Sanders v. Bd. of Trs. of the Mt. Home Sch. Dist. No. 193, 156 Idaho 269, 322 P.3d 1002 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 12-102. Allowance to plaintiff. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 698; R.S., R.C., & C.L., § 4901; C.S., § 7207; I.C.A.,§ 12-102, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(d)(1).

§ 12-103. Several actions on single cause. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 692; R.S., R.C., & C.L., § 4902; C.S., § 7208; I.C.A.,§ 12-103, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule. see Idaho R. Civ. P. 54(d)(2).

§ 12-104. Allowance to defendant. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 695; R.S., R.C., & C.L., § 4903; C.S., § 7209; I.C.A.,§ 12-104, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(d)(1).

§ 12-105. Discretionary allowance. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 696; R.S., R.C., & C.L., § 4904; C.S., § 7210; I.C.A.,§ 12-105, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(d)(1).

§ 12-106. Severance of costs. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 697; R.S., R.C., & C.L., § 4905; C.S., § 7211; I.C.A.,§ 12-106, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(d)(1).

§ 12-107. Costs on appeal.

In the following cases the costs of appeal are in the discretion of the courts:

When a new trial is ordered.
When a judgment is modified. In all other cases the prevailing party shall recover costs, including his costs below when the appeal is to the district court.

History.

C.C.P. 1881, § 698; R.S., R.C., & C.L., § 4906; C.S., § 7212; I.C.A.,§ 12-107.

STATUTORY NOTES

Cross References.

Appeals from district courts,§ 13-201 et seq.

Supreme court, costs of appeal to,§ 12-114.

Taxation of costs on appeal, Idaho App. R. 40.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

CASE NOTES

Application of this Section.

This section does not apply to actions involving the state. Chastain’s Inc. v. State Tax Comm’n, 72 Idaho 344, 241 P.2d 167 (1952).

Probate or Justice’s Court.

Where an action is commenced in probate or justices’ court, and judgment is given for plaintiff and defendant appeals to district court, even though the judgment of the lower court be reduced, it will carry costs against defendant. Lovel v. Joyce, 9 Idaho 386, 74 P. 1073 (1903) (probate and justices’ courts abolished by S.L. 1969, ch. 10).

State as a Party.

Worker’s Compensation.

This section does not apply to state where it is a party in its governmental capacity, as in railroad freight rate proceeding before public utilities commission. Chicago, M. & St. P. Ry. v. Public Utils. Comm’n, 47 Idaho 346, 275 P. 780 (1929). Worker’s Compensation.

Former§ 72-611 (repealed, see now§ 72-804) concerning costs in workmen’s [now worker’s] compensation cases, was not intended to supersede general provisions for taxation of costs. Brady v. Place, 41 Idaho 753, 243 P. 654 (1926).

Cited

Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010 (1961); Aero Serv. Corp. W. v. Benson, 84 Idaho 416, 374 P.2d 277 (1962); Gem State Homes, Inc. v. Idaho Dep’t of Health & Welfare, 113 Idaho 23, 740 P.2d 65 (Ct. App. 1987).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 12-108. Fees of referees. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 699; R.S., R.C., & C.L., § 4907; C.S., § 7213; I.C.A.,§ 12-108, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 53(a)(1).

§ 12-109. Costs of continuance. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 700; R.S., R.C., & C.L., § 4908; C.S., § 7214; I.C.A.,§ 12-109, was repealed be S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(d)(3).

§ 12-110. Costs in case of tender. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 701; R.S., R.C., & C.L., § 4909; C.S., § 7215; I.C.A.,§ 12-110, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-111. Actions by or against fiduciaries. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 702; R.S., R.C., & C.L., § 4910; C.S., § 7216; I.C.A.,§ 12-111, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-112. Costs on review of special proceedings. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised R.C., R.S., & C.L., § 4911; C.S., § 7217; I.C.A.,§ 12-112, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-113. Taxation of costs. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 703; R.S., § 4912; am. 1895, p. 6, § 1; reen. 1899, p. 231, § 1; reen. R.C. & C.L., § 4912; C.S., § 7218; I.C.A.,§ 12-113, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(d)(5).

§ 12-114. Taxation of costs on appeal in Supreme Court.

Whenever costs are awarded to a party by an appellate court, if he claims such costs he must tax the same before the clerk of the Supreme Court, subject to exception and review by the Supreme Court or the judges thereof, within such time and subject to such regulations as the Supreme Court shall by rule direct, and the same when taxed shall be certified by the clerk of the Supreme Court to the clerk of the court from which the appeal was taken, to be there entered as a judgment and to be enforced by execution as in the case of other judgments.

History.

C.C.P. 1881, § 704; R.S., & R.C., § 4913; am. 1911, ch. 204, § 1, p. 673; reen. C.L., § 4913; C.S., § 7219; I.C.A.,§ 12-114.

STATUTORY NOTES

Cross References.

Costs in the discretion of the court,§ 12-107.

Enforcement of judgments,§ 11-101 et seq.

Taxation of costs, Idaho App. R. 40.

Compiler’s Notes.

CASE NOTES

Costs Against State.

This section authorizes the allowance of costs to a successful plaintiff in an appeal by the former state tax collector and acting state tax collector to the supreme court from a judgment against them for refund of taxes paid by the plaintiff under protest as to their legality. American Oil Co. v. Neill, 90 Idaho 333, 414 P.2d 206 (1966), overruled on other grounds, County of Ada v. Red Steer Drive-Ins of Nev., Inc., 101 Idaho 94, 609 P.2d 161 (1980).

Judgment and Execution.

§ 12-114. Taxation of costs on appeal in Supreme Court.

History.

C.C.P. 1881, § 704; R.S., & R.C., § 4913; am. 1911, ch. 204, § 1, p. 673; reen. C.L., § 4913; C.S., § 7219; I.C.A.,§ 12-114.

STATUTORY NOTES

Cross References.

Costs in the discretion of the court,§ 12-107.

Enforcement of judgments,§ 11-101 et seq.

Taxation of costs, Idaho App. R. 40.

Compiler’s Notes.

CASE NOTES

Costs Against State.

Judgment and Execution.

Assignee of cost bill, on which execution may be issued, takes it subject to any right of offset against such cost bill existing at time of assignment. Northwestern & Pac. Hypotheek Bank v. Rauch, 8 Idaho 50, 66 P. 807 (1901). Costs taxed by the supreme court under this section become part of judgment, and lower court is without authority to modify them. Mountain Home Lumber Co. v. Swartwout, 33 Idaho 737, 197 P. 1027 (1921).

Supreme court having awarded costs to appellant on appeal from order denying motion to set aside execution sale, it became duty of clerk of district court to enter judgment against all adverse parties. Federal Land Bank v. Curts, 49 Idaho 624, 290 P. 402 (1930).

Printed Transcript.

Appellate court will allow costs to be taxed for a printed transcript at rate fixed by rule of court. Ulbright v. Baslington, 20 Idaho 546, 119 P. 294 (1911).

Rehearing Denied.

When rehearing is denied, former Supreme Court Rule 58 (see Idaho R. Civ. P. 59.1) required the remittitur to issue forthwith and the judgment of the district court carrying into effect the provisions for costs follows as a matter of course. Fite v. French, 54 Idaho 104, 30 P.2d 360 (1934).

Cited

Henderson v. Cominco Am., Inc., 95 Idaho 690, 518 P.2d 873 (1973); Gem State Homes, Inc. v. Idaho Dep’t of Health & Welfare, 113 Idaho 23, 740 P.2d 65 (Ct. App. 1987); State v. Stradley, 127 Idaho 203, 899 P.2d 416 (1995).

§ 12-115. Insertion of costs in judgment. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 705; R.S., R.C., & C.L., § 4914; C.S., § 7220; I.C.A.,§ 12-115, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule regarding entry of judgment, see Idaho R. Civ. P. 58(a).

§ 12-116. Assignment of jury costs.

If a civil action is settled by the parties involved therein within twenty-four (24) hours of the time for which the civil action is scheduled for trial, and/or notice of settlement is not given to the court at least twenty-four (24) hours before the scheduled trial time, the court may, based upon the circumstances of such settlement, assess and apportion as costs between and among the parties to the action, in the sound discretion of the court, all jury fees and expenses incurred by the county arising from impaneling or furnishing jurors for the civil action.
The costs provided for in subsection (1) of this section shall be in addition to any costs which may be assessed pursuant to the Idaho rules of civil procedure.
Moneys collected by the court pursuant to this section shall be deposited in the county treasury from which the jurors were paid.

History.

I.C.,§ 12-116, as added by 1985, ch. 217, § 1, p. 527.

STATUTORY NOTES

Prior Laws.

Former§ 12-116, which comprised C.C.P. 1881, § 706; R.S., R.C., & C.L., § 4915; C.S., § 7221; I.C.A.,§ 12-116, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present law, see Idaho R. Civ. P. 54(d)(4).

§ 12-117. Attorney’s fees, witness fees and expenses awarded in certain instances.

Unless otherwise provided by statute, in any proceeding involving as adverse parties a state agency or a political subdivision and a person, the state agency, political subdivision or the court hearing the proceeding, including on appeal, shall award the prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law.
If a party to a proceeding prevails on a portion of the case, and the state agency or political subdivision or the court hearing the proceeding, including on appeal, finds that the nonprevailing party acted without a reasonable basis in fact or law with respect to that portion of the case, it shall award the partially prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses with respect to that portion of the case on which it prevailed.
Expenses awarded against a state agency or political subdivision pursuant to this section shall be paid from funds in the regular operating budget of the state agency or political subdivision. If sufficient funds are not available in the budget of the state agency, the expenses shall be considered a claim governed by the provisions of section 67-2018, Idaho Code. If sufficient funds are not available in the budget of the political subdivision, the expenses shall be considered a claim pursuant to chapter 9, title 6, Idaho Code. Every state agency or political subdivision against which litigation expenses have been awarded under this act shall, at the time of submission of its proposed budget, submit a report to the governmental body which appropriates its funds in which the amount of expenses awarded and paid under this act during the fiscal year is stated.
In any civil judicial proceeding involving as adverse parties a governmental entity and another governmental entity, the court shall award the prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses. For purposes of this subsection, “governmental entity” means any state agency or political subdivision.
Notwithstanding any other provision of law, in any administrative proceeding or administrative judicial proceeding involving as adverse parties a licensing authority and a licensee, the prevailing party shall be entitled to recover its reasonable attorney’s fees and reasonable investigative or defense costs, as the case may be, necessarily and actually incurred. “Prevailing party,” for the purpose of this subsection, means a party that prevailed on the claims or allegations that constituted the gravamen of the claims and allegations as a whole. An assessment of fees and costs made pursuant to this section is subject to judicial review. Notwithstanding any other provision of law, the failure of a licensee to pay an award of costs or attorney’s fees awarded under this subsection shall not be deemed a violation of a licensure requirement, as long as the licensee is in compliance with a payment arrangement made with the licensing authority.
For purposes of this section:
1. “Licensee” means any person holding a license, registration, certificate, permit or other authorization to practice a profession or occupation.
2. “Licensing authority” means any agency, bureau, commission, department, division, or professional or occupational licensing board charged with granting, suspending or revoking the license, certificate, registration, permit or other authorization of any person to practice a profession or occupation. «Title 12»•Ch. 1»«§ 12-117»

§ 12-117. Attorney’s fees, witness fees and expenses awarded in certain instances.

Unless otherwise provided by statute, in any proceeding involving as adverse parties a state agency or a political subdivision and a person, the state agency, political subdivision or the court hearing the proceeding, including on appeal, shall award the prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law.
If a party to a proceeding prevails on a portion of the case, and the state agency or political subdivision or the court hearing the proceeding, including on appeal, finds that the nonprevailing party acted without a reasonable basis in fact or law with respect to that portion of the case, it shall award the partially prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses with respect to that portion of the case on which it prevailed.
Expenses awarded against a state agency or political subdivision pursuant to this section shall be paid from funds in the regular operating budget of the state agency or political subdivision. If sufficient funds are not available in the budget of the state agency, the expenses shall be considered a claim governed by the provisions of section 67-2018, Idaho Code. If sufficient funds are not available in the budget of the political subdivision, the expenses shall be considered a claim pursuant to chapter 9, title 6, Idaho Code. Every state agency or political subdivision against which litigation expenses have been awarded under this act shall, at the time of submission of its proposed budget, submit a report to the governmental body which appropriates its funds in which the amount of expenses awarded and paid under this act during the fiscal year is stated.
In any civil judicial proceeding involving as adverse parties a governmental entity and another governmental entity, the court shall award the prevailing party reasonable attorney’s fees, witness fees and other reasonable expenses. For purposes of this subsection, “governmental entity” means any state agency or political subdivision.
Notwithstanding any other provision of law, in any administrative proceeding or administrative judicial proceeding involving as adverse parties a licensing authority and a licensee, the prevailing party shall be entitled to recover its reasonable attorney’s fees and reasonable investigative or defense costs, as the case may be, necessarily and actually incurred. “Prevailing party,” for the purpose of this subsection, means a party that prevailed on the claims or allegations that constituted the gravamen of the claims and allegations as a whole. An assessment of fees and costs made pursuant to this section is subject to judicial review. Notwithstanding any other provision of law, the failure of a licensee to pay an award of costs or attorney’s fees awarded under this subsection shall not be deemed a violation of a licensure requirement, as long as the licensee is in compliance with a payment arrangement made with the licensing authority.
For purposes of this section:
1. “Licensee” means any person holding a license, registration, certificate, permit or other authorization to practice a profession or occupation.
2. “Licensing authority” means any agency, bureau, commission, department, division, or professional or occupational licensing board charged with granting, suspending or revoking the license, certificate, registration, permit or other authorization of any person to practice a profession or occupation.
3. “Person” means any individual, partnership, limited liability partnership, corporation, limited liability company, association or any other private organization.
4. “Political subdivision” means a city, a county, any taxing district or a health district.
5. “Proceeding” means any administrative proceeding, administrative judicial proceeding, civil judicial proceeding or petition for judicial review or any appeal from any administrative proceeding, administrative judicial proceeding, civil judicial proceeding or petition for judicial review.
6. “State agency” means any agency as defined in section 67-5201, Idaho Code.
If the amount pleaded in an action by a person is twenty-five thousand dollars ($25,000) or less, the person must satisfy the requirements of section 12-120, Idaho Code, as well as the requirements of this section before he or she may recover attorney’s fees, witness fees or expenses pursuant to this section.

History.

I.C.,§ 12-117, as added by 1984, ch. 204, § 1, p. 501; am. 1993, ch. 216, § 1, p. 587; am. 1994, ch. 36, § 1, p. 55; am. 2000, ch. 241, § 1, p. 675; am. 2010, ch. 29, § 1, p. 49; am. 2012, ch. 149, § 1, p. 419; am. 2018, ch. 348, § 1, p. 795; am. 2019, ch. 212, § 1, p. 643.

STATUTORY NOTES

Prior Laws.

Former§ 12-117, which comprised C.C.P. 1881, § 707; R.S., R.C., & C.L., § 4916; C.S., § 7222; I.C.A.,§ 12-117, regarding the effect of failure to give security for costs, was repealed by S.L. 1975, ch. 242, § 1. For present law, see Idaho R. Civ. P. 54(d)(4).

Amendments.

The 2010 amendment, by ch. 29, in subsection (1), inserted “proceeding” following “administrative”, substituted “or political subdivision and a person, the state agency or political subdivision or the court, as the case may be” for “a city, a county or other taxing district and a person, the court” and “and other reasonable expenses if it finds that the nonprevailing party” for “and reasonable expenses, if the court finds that the party against whom the judgment is rendered”; rewrote subsection (2), which formerly read: “If the prevailing party is awarded a partial judgment and the court finds the party against whom partial judgment is rendered acted without a reasonable basis in fact or law, the court shall allow the prevailing party’s attorney’s fees, witness fees and expenses in an amount which reflects the person’s partial recovery”; in subsection (3), substituted “or political subdivision” for “city, county or other taxing district” and for “the city, the county or the taxing district” in the first sentence, substituted “political subdivision” for “city, county or taxing district” and substituted “or political subdivision” for “city, county or taxing district” in the third sentence; added paragraph (4)(b); and redesignated former paragraph (4)(b) as paragraph (4)(c).

The 2012 amendment, by ch. 149, deleted “administrative proceeding or civil judicial” or similar language preceding “proceeding” near the beginning of subsections (2) and (3); substituted “hearing the proceeding, including on appeal” for “as the case may be” in subsections (2) and (3); added subsection (4), renumbering the subsequent subsections accordingly; in subsection (5), inserted “limited liability partnership” and “limited liability company” in paragraph (a), added “or a health district” in paragraph (b), added paragraph (c), and redesignated former paragraph (c) as paragraph (d); and substituted “twenty-five thousand dollars ($25,000)” for “two thousand five hundred dollars ($2,500)” in subsection (6). (c) “Person” means any individual, partnership, limited liability partnership, corporation, limited liability company, association or any other private organization.

(d) “Political subdivision” means a city, a county, any taxing district or a health district.

(e) “Proceeding” means any administrative proceeding, administrative judicial proceeding, civil judicial proceeding or petition for judicial review or any appeal from any administrative proceeding, administrative judicial proceeding, civil judicial proceeding or petition for judicial review.

(f) “State agency” means any agency as defined in section 67-5201, Idaho Code.

(7) If the amount pleaded in an action by a person is twenty-five thousand dollars ($25,000) or less, the person must satisfy the requirements of section 12-120, Idaho Code, as well as the requirements of this section before he or she may recover attorney’s fees, witness fees or expenses pursuant to this section.

History.

STATUTORY NOTES

Prior Laws.

Amendments.

The 2012 amendment, by ch. 149, deleted “administrative proceeding or civil judicial” or similar language preceding “proceeding” near the beginning of subsections (2) and (3); substituted “hearing the proceeding, including on appeal” for “as the case may be” in subsections (2) and (3); added subsection (4), renumbering the subsequent subsections accordingly; in subsection (5), inserted “limited liability partnership” and “limited liability company” in paragraph (a), added “or a health district” in paragraph (b), added paragraph (c), and redesignated former paragraph (c) as paragraph (d); and substituted “twenty-five thousand dollars ($25,000)” for “two thousand five hundred dollars ($2,500)” in subsection (6). The 2018 amendment, by ch. 348, inserted subsection (5), and redesignated the subsequent subsections accordingly; and, in present subsection (6), inserted present paragraphs (a) and (b), and redesignated the subsequent paragraphs accordingly.

The 2019 amendment, by ch. 212, inserted “agency, bureau, commission, department, division, or” in paragraph (6)(b).

Compiler’s Notes.

The words “this act” in subsection (3) refer to S.L. 1984, ch. 204, which is codified as this section.

S.L. 2018, Chapter 348 became law without the signature of the governor.

Effective Dates.

Section 2 of S.L. 2000, ch. 241 provided: “This act shall be in full force and effect on and after July 1, 2000, and shall apply to all administrative or civil actions filed on and after the effective date of this act.”

Section 2 of S.L. 2010, ch. 29 declared an emergency retroactively to May 31, 2009, and shall apply to all cases filed and pending as of June 1, 2009. Approved March 4, 2010.

Section 2 of S.L. 2012, ch. 149 declared an emergency. Approved March 27, 2012.

CASE NOTES

2010 Amendment.

Under the 2010 amendment of this section, courts may not award fees in a review of administrative decisions, but agencies may now award fees during administrative proceedings. Sopatyk v. Lemhi County, 151 Idaho 809, 264 P.3d 916 (2011) (see 2012 amendment).

Administrative Appeal.

In a nursing facility’s action seeking reimbursement for property costs when the department of health and welfare erroneously applied the occupancy adjustment factor to the nursing facility’s property taxes, because the department’s arguments were not without a reasonable basis in fact or law, the nursing facility’s request for attorney’s fees on appeal was denied. Hillcrest Haven Convalescent Ctr. v. Idaho Dep’t of Health & Welfare, 142 Idaho 123, 124 P.3d 999 (2005).

Subsection (1) does not allow a court to award attorney’s fees on judicial review of an administrative decision. St. Luke’s Magic Valley Reg’l Med. Ctr., Ltd v. Bd. of County Comm’rs, 150 Idaho 484, 248 P.3d 735 (2011).

Adverse Parties.

In a dispute involving an application to amend a county comprehensive plan, an applicant and two other parties were not entitled to attorney fees under this section, because they were not “adverse” to the county, as the county’s only involvement in the appeal was to waive any objection to a motion to dismiss and to waive any claim to attorney fees. Neighbors for Responsible Growth v. Kootenai County, 147 Idaho 173, 207 P.3d 149 (2009).

There is no statutory basis for a court to award attorney fees incurred during an administrative proceeding. A court may only make such an award for fees incurred in the judicial appeal of an administrative determination. Rammell v. Idaho State Dep’t of Agric., 147 Idaho 415, 210 P.3d 523 (2009) (superseded by 2010 and 2012 amendments).

Agency Action.

A petition for judicial review of an agency action is neither an administrative proceeding nor a civil judicial proceeding, so subsection (1) of this section does not enable the courts to award attorney fees to either party. Laughy v. Idaho DOT, 149 Idaho 867, 243 P.3d 1055 (2010) (see 2010, 2012, and 2019 amendments).

Applicability.

This section does not apply to actions in which the board of correction is a party. Needs v. Idaho State Dep’t of Cor., 115 Idaho 399, 766 P.2d 1280 (Ct. App. 1988).

The court may not award attorney fees and costs against the Idaho department of correction under this section. Idaho Dep’t of Corr. v. Anderson, 134 Idaho 680, 8 P.3d 675 (Ct. App. 2000).

School districts are “taxing districts” for purpose of this section. Potlatch Educ. Ass’n & Doug Richards v. Potlatch Sch. Dist., 148 Idaho 630, 226 P.3d 1277 (2010).

This section does not provide an exception to the exclusive scope of§ 6-918A. Block v. City of Lewiston, 156 Idaho 484, 328 P.3d 464 (2014).

Application.

This section provides statutory authority on which to base an award of attorney fees in a real property forfeiture action brought by the department of law enforcement pursuant to§ 37-2744A. Idaho Dep’t of Law Enforcement ex rel. Cade v. Kluss, 125 Idaho 682, 873 P.2d 1336 (1994).

Trial court abused its discretion in denying attorney fees pursuant to this section for a partial judgment declaring a conflict between a statute and an administrative rule. Roe v. Harris, 128 Idaho 569, 917 P.2d 403 (1996).

Comparing the private attorney general doctrine with this section, the private attorney general doctrine considers the value of the prevailing party’s contribution, while this section considers the character of the losing party’s case. This difference evidences a legislative intent to make the standard of this section the basis for an attorney fee award against a state agency, rather than the tests encompassed under the private attorney general doctrine. Idaho Watersheds Project, Inc. v. State Bd. of Land Comm’rs, 128 Idaho 761, 918 P.2d 1206 (1996).

The standard for awarding attorney fees under this section requires focusing on the overall action of the agency, not just preliminary matters; thus, where the district court appeared to have incorrectly focused on the initial stage of applicant’s denial of registration to sell securities and not the eventual denial, denial of attorney fees was vacated and remanded for application of the proper standard and with directions to consider awarding attorney fees for this appeal if they are awarded on remand. Rincover v. State, Dep’t of Fin., 129 Idaho 442, 926 P.2d 626 (1996).

County personnel hearing officer in administrative proceeding regarding termination of county paramedic who appealed the termination and was reinstated had authority to award attorney fees to paramedic under this section. Ockerman v. Ada County Bd. of Comm’rs, 130 Idaho 265, 939 P.2d 584 (Ct. App. 1997) (But see heading “Award by Court”).

Attorney’s Fees.

Landowners challenged a county’s designation of roadways as public on an officially-adopted map; on appeal, the landowners sought attorney fees. The trial court did not abuse its discretion in refusing to award attorney fees because, based on the record, it was impossible to conclude the commissioners’ decision was made without any reasonable support in fact. Homestead Farms, Inc. v. Bd. of Comm’rs, 141 Idaho 855, 119 P.3d 630 (2005).

Attorney fees were not awarded to a dairy or the Idaho department of water resources when property owners, who were opposed to the transfer of water to the proposed dairy, did not appeal the decision transferring the water without a basis in fact. Chisholm v. State Dep’t of Water Res. (In re Transfer No. 5639), 142 Idaho 159, 125 P.3d 515 (2005).

Employment service provider that offered a variety of services to small businesses, including insurance services, was a multiple employer welfare arrangement because it offered health benefits to two or more employers, and it violated the Idaho Code by transacting the business of insurance without a certificate of authority. On appeal, the Idaho department of insurance was entitled to costs only, and not attorney fees, because the case was one of first impression; therefore, it could not be said that the appeal was brought frivolously, unreasonably, and without foundation. Emplrs Res. Mgmt. Co. v. Dep’t of Ins., 143 Idaho 179, 141 P.3d 1048 (2006), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Attorney’s Fees.

Although the appellate court disagreed with the Idaho state board of medicine’s sanctions against the doctor, it could not say the board acted without a reasonable basis in law, given the lack of clarity or standards in the discipline statute; therefore, the court denied the doctor’s request for fees. Haw v. State Bd. of Med., 143 Idaho 51, 137 P.3d 438 (2006). In a case in which a city was the prevailing party in a challenge to a city council’s decision to deny a special use permit to erect a 120-foot-tall, lattice transmission tower, the city was entitled to attorney fees. Marcia T. Turner, L.L.C. v. City of Twin Falls, 144 Idaho 203, 159 P.3d 840 (2007).

Because adjoining landowners and their wildlife refuge landowners did not prevail on the appeal of their action seeking an injunction to require state land lessees to comply with local zoning ordinances, the landowners were not entitled to attorney fees. Fenwick v. Idaho Dep’t of Lands, 144 Idaho 318, 160 P.3d 757 (2007).

Neither appellee county nor appellee finance company were entitled to an award of attorney fees under either§ 12-121 or this section because, as to the former, neither appellee had prevailed on the issue that was appealed, i.e., standing, and, as to the latter, the issue that was appealed was not brought without a reasonable basis in law or fact since appellant taxpayers prevailed on it although, because the matter was moot, the appeal was dismissed. Koch v. Canyon County, 145 Idaho 158, 177 P.3d 372 (2008).

Corporation that sought review of a city’s annexation and zoning of property could not be awarded attorney fees because the corporation was not a prevailing party, there was no statute authorizing the corporation’s petition for judicial review, and the corporation acted without a reasonable basis in fact or law. Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 188 P.3d 900 (2008).

Because the issue of standing under the Medical Indigency Act,§ 31-3501, et seq., presented a question of first impression under the amended statutes, a county board of commissioners did not act without a reasonable basis in law when it determined that a medical provider lacked standing to appeal the denial of a homeless man’s application for benefit. As a result, the medical center was not entitled to attorney fees. Saint Alphonsus Reg’l Med. Cent. v. Ada County (In re Ferdig), 146 Idaho 862, 204 P.3d 502 (2009).

Property owner was not entitled to attorney fees in a suit brought by a husband and a wife challenging a board of county commissioner’s decision to authorize rezoning because, although the husband and the wife did not have a statutory right to judicial review of the board’s approval of the conditional rezone and corresponding development agreement, they did not pursue an appeal without a reasonable basis in fact or law. Taylor v. Canyon County Bd. of Comm’rs, 147 Idaho 424, 210 P.3d 532 (2009).

Landowner’s action against the county was not a civil judicial proceeding, Idaho R. Civ. P. 3(a)(1). Since it was a petition for judicial review of a county commission decision, a proceeding that did not commence with a complaint filed in court, the courts could not award fees. Smith v. Wash. County, 150 Idaho 388, 247 P.3d 615 (2010) (see 2010 and 2012 amendments).

Award by Court.

Award of attorney’s fees and costs to the department of agriculture by a presiding officer following an agency hearing was improper, as only a court, and not an administrative officer or agency, can award attorney fees under this section. Rammell v. Idaho State Dep’t of Agric., 147 Idaho 415, 210 P.3d 523 (2009) (superseded by 2010 and 2012 amendments).

Case of First Impression.

In a driver’s license suspension proceeding, where a father’s appeal involved the interpretation of the term “property interest” in§ 7-1402(5)(d), and where this issue had never been addressed by an Idaho appellate court, a request for attorney fees, on appeal, by the department of health and welfare was denied because the matter was one of first impression. Wheeler v. Idaho Dep’t of Health & Welfare, 147 Idaho 257, 207 P.3d 988 (2009).

Costs Not Recoverable.

Absent an explicit statutory authorization, costs of transcripts or briefs, incurred by a defendant who successfully prevails on an appeal in a criminal action, are not recoverable against the state. State v. Peterson, 113 Idaho 554, 746 P.2d 1013 (Ct. App. 1987).

Since the costs of a defendant who successfully prevails on an appeal in the criminal action are not recoverable as a matter of law, the state’s alleged failure to timely file a formal objection under subsection (d) of Idaho App. R. 40 did not create any right of recovery under a theory of waiver. State v. Peterson, 113 Idaho 554, 746 P.2d 1013 (Ct. App. 1987).

Where inmate’s petition alleged violations of due process at the correctional facility operated by the department of correction, it would have been error for the district court to have awarded fees and costs against the department under this section since the award could have been made only under§ 12-121. Needs v. Idaho State Dep’t of Cor., 115 Idaho 399, 766 P.2d 1280 (Ct. App. 1988).

Because of the decision that there was no statutory authority under§ 67-5279 for the district court to enter a money judgment against county on hospital’s indigency benefits claim, hospital could not assert a right to pre- or postjudgment interest, nor was it entitled to attorney fees under this section. University of Utah Hosp. v. Board of Comm’rs, 128 Idaho 517, 915 P.2d 1375 (Ct. App. 1996).

Fees Awarded.

This section requires an award of reasonable attorney fees merely upon a showing “that the agency acted without reasonable basis in fact or law.” Notwithstanding the state was defending a favorable judgment of the district court, the motion to dismiss for lack of jurisdiction was made without a reasonable basis in law or fact, and employee is entitled to an award of attorney fees. Lockhart v. Department of Fish & Game, 121 Idaho 894, 828 P.2d 1299 (1992).

Trial court did not abuse its discretion in awarding attorney fees pursuant to this section in a case where director of department of water resources was ordered by writ of mandate to comply with§ 42-602, and ordering that the fees and costs not come out of the Snake River Basin Adjudication account; the court ruled that there was no reasonable basis in law or fact for the director to have refused to comply with§ 42-602. Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994).

Plaintiff’s request for attorney fees was granted where the board of commissioners acted without a reasonable basis in fact when it granted approval of the preliminary plat after concluding that the plat proposal complied with the applicable ordinance requirements for common open space and proof of ownership, when in fact it did not so comply. Rural Kootenai Org., Inc. v. Board of Comm’rs, 133 Idaho 833, 993 P.2d 596 (1999).

Costs Not Recoverable.

Fees Awarded.

In appealing the trial court’s judgment dismissing his petition seeking judicial review of a school board’s decision disciplining his son, the father acted without a reasonable basis in law or in fact; therefore, the school board was awarded attorney fees on appeal pursuant to this section. Daw v. Sch. Dist. 91 Bd. of Trs., 136 Idaho 806, 41 P.3d 234 (2001). County did not act with a reasonable basis in fact or law where it simply dismissed the residents’ appeal with no basis under the ordinance for doing so; when it did, the award of attorney fees to the residents was proper. County Residents Against Pollution from Septage Sludge v. Bonner County, 138 Idaho 585, 67 P.3d 64 (2003).

Costs and attorney fees were awarded to a taxpayer in an appeal from a county assessor’s decision to assess property as non-operating after it had already been assessed as operating by the Idaho tax commission because there was no reasonable basis for the decision to include the real property on the tax rolls under§ 63-311. The assessment amounted to double taxation. Union Pac. Land Res. Corp. v. Shoshone County Assessor, 140 Idaho 528, 96 P.3d 629 (2004).

County was entitled to attorney fees pursuant to this section where the taxpayers were clearly aware of the statutory procedures, failed to appeal separate appraisals, and were well advised on the applicable law by the district court, but nevertheless chose to appeal. Castrigno v. McQuade, 141 Idaho 93, 106 P.3d 419 (2005).

When the Idaho department of health and welfare brought an action against an estate, in attempt to recover Medicaid benefits, it did not have a cause of action under§ 56-218. As such, the estate was entitled to recover attorneys fees under this section because the department acted without statutory authority in presenting its appeal. State, Dept. of Health & Welfare v. Estate of Elliott (In re Estate of Elliott), 141 Idaho 177, 108 P.3d 324 (2005), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Property owner, who opposed the granting of a conditional use permit to a builder, was entitled to attorney fees as the prevailing party; the city wholly ignored the provision of its avalanche zone district ordinance requiring certification by an Idaho-licensed engineer prior to the granting of a conditional use permit. Fischer v. City of Ketchum, 141 Idaho 349, 109 P.3d 1091 (2005).

Attorney fees were properly awarded to a nonprofit organization in a county’s action for an injunction requiring the organization to delete “Sheriff” from its corporate name, where the county did not provide any authority supporting its cause of action, nor could it even define what cause of action it was alleging. Bonner County v. Bonner County Sheriff Search & Rescue, Inc., 142 Idaho 788, 134 P.3d 639 (2006).

Where a county acted without a reasonable basis in denying a medical indigency application because it had no authority to do so without first fulfilling the procedural requirements regarding an investigation, attorney fees were awarded to several health care providers on appeal. University of Utah Hosp. v. Ada County Bd. of Comm’rs, 143 Idaho 808, 153 P.3d 1154 (2007).

District court did not err in awarding the therapist attorney fees where the board of occupational licenses had failed to define personal needs or explain how the therapist was serving such needs, it had ignored its hearing officer’s contrary finding, and, as a result, its decision was without basis in fact or law. Ater v. Idaho Bureau of Occupational Licenses, 144 Idaho 281, 160 P.3d 438 (2007), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Award of attorney fees to the city was appropriate where the Idaho supreme court believed the appeal was pursued without reasonable basis in fact or law; the trust’s counsel essentially conceded that the appeal was primarily for the purpose of making a point, that any claim for damages was rather tenuous, and the issue was conceded in the trust’s brief. Euclid Ave. Trust v. City of Boise, 146 Idaho 306, 193 P.3d 853 (2008). Highway district was entitled to attorney fees because it was a taxing district pursuant to§§ 40-1308, 63-3101, and property owners’ tort, takings, and due process claims arising from highway maintenance lacked a reasonable basis. Halvorson v. N. Latah County Highway Dist., 151 Idaho 196, 254 P.3d 497, cert. denied, 565 U.S. 826, 132 S. Ct. 118, 181 L. Ed. 2d 42 (2011).

Director of the Idaho department of water resources was granted attorney fees, where the owner of a fish research and propagation facility acted without a reasonable basis in fact or law in bringing an appeal: the owner asserted substantially the same arguments on appeal as he did before the district court on judicial review and he failed to add significant new analysis or authority to support his arguments. Rangen, Inc. v. Idaho Dep’t of Water Res. (In re Distrib. of Water to Water Right Nos. 36-02551 & 36-07694 (Rangen, Inc.) IDWR Docket CM-DC-2011-004), 159 Idaho 798, 367 P.3d 193 (2016).

Irrigation district was entitled to an award of attorney’s fees on appeal, because, despite the appellate court’s unambiguous instruction that the matter was limited to one issue on remand, a property owner attempted to argue numerous issues outside of the scope of the remand, and, when the district court correctly identified the scope of remand and limited its judgment to the appellate court’s instruction, the owner appealed and attempted to argue issues in front of the appellate court a second time. Morgan v. New Swed. Irrigation Dist., 160 Idaho 47, 368 P.3d 990 (2016).

Fees Not Allowed.

Fees are not allowed under this section unless the court finds in favor of the party seeking them and further determines that the agency acted without a reasonable basis in fact or law, thus where agency prevailed on appeal no fees were awarded. Department of Health & Welfare v. Sandoval, 113 Idaho 186, 742 P.2d 992 (Ct. App. 1987).

Hospital was not entitled to attorney fees and costs incurred in litigating to determine which of two counties was responsible for medical fees for an indigent patient. IHC Hosps. v. Board of Comm’rs, 117 Idaho 207, 786 P.2d 600 (Ct. App. 1990).

The district court’s award of costs and attorney fees was in error where the Idaho state department of Insurance’s action involved a reasonable, yet erroneous, interpretation of an ambiguous statute partially because no Idaho appellate cases had applied§ 41-1314, and the department had only the statute to guide it. Cox v. Department of Ins., 121 Idaho 143, 823 P.2d 177 (Ct. App. 1991).

Where state medical board did not act without a reasonable basis in law or fact in malpractice action against doctor for violations of§ 54-1814, no attorney fees were granted under this section. Krueger v. Board of Professional Discipline, 122 Idaho 577, 836 P.2d 523 (1992), cert. denied, 507 U.S. 918, 113 S. Ct. 1277, 122 L. Ed. 2d 672 (1993).

Where the state agency acted with a reasonable basis in denying Medicaid coverage for the otoplasty surgery for an eight year old child because the procedure was cosmetic and not medically necessary, there was no provision to award attorney fees to appellant under this section. Viveros v. State Dep’t of Health & Welfare, 126 Idaho 714, 889 P.2d 1104 (1995).

Potato commission lacked authority to award itself costs and fees in the administrative proceeding, as there was no separate provision for the award of attorney fees and costs within the chapters of the Idaho Code pertaining to the commission. Idaho Potato Comm’n v. Russet Valley Produce, Inc., 127 Idaho 654, 904 P.2d 566 (1995).

Commission’s license revocation action against licensee was warranted, as the hearing officer found violations of both the license agreement and the commission’s regulations, and issue of whether licensee’s violations were “continuing violations” was not free from doubt, and the commission’s interpretation regarding continuing violations was a reasonable, but erroneous, interpretation of an ambiguous statute; thus, award of attorney fees to licensee was improper. Idaho Potato Comm’n v. Russet Valley Produce, Inc., 127 Idaho 654, 904 P.2d 566 (1995). Highway district was entitled to attorney fees because it was a taxing district pursuant to§§ 40-1308, 63-3101, and property owners’ tort, takings, and due process claims arising from highway maintenance lacked a reasonable basis. Halvorson v. N. Latah County Highway Dist., 151 Idaho 196, 254 P.3d 497, cert. denied, 565 U.S. 826, 132 S. Ct. 118, 181 L. Ed. 2d 42 (2011).

Fees Not Allowed.

Commission’s license revocation action against licensee was warranted, as the hearing officer found violations of both the license agreement and the commission’s regulations, and issue of whether licensee’s violations were “continuing violations” was not free from doubt, and the commission’s interpretation regarding continuing violations was a reasonable, but erroneous, interpretation of an ambiguous statute; thus, award of attorney fees to licensee was improper. Idaho Potato Comm’n v. Russet Valley Produce, Inc., 127 Idaho 654, 904 P.2d 566 (1995). Where the department of health and welfare (department) defended its decision to deny Medicaid applicant’s surgery based solely upon the exclusion from coverage for all medical procedures for the treatment of obesity, although the department’s justification for denying coverage was in error, its defense of its position was certainly not so unreasonable as to justify the imposition of attorney fees under this section. McCoy v. State, Dep’t of Health & Welfare, 127 Idaho 792, 907 P.2d 110 (1995).

Because applicant, who was denied securities license, had failed to disclose the existence of a tax lien against her property, although she did not have actual notice of the lien, and the Idaho department of finance denied her application in the belief that the lien indicated she was insolvent and that she had obtained personal loans from clients in violation of national standards, the department’s conduct in denying her application was not “grossly negligent” under the standard of care set forth under§§ 6-904B and 6-904C; reversal of department’s decision by district court meant an award of attorney fees under this section was not required. Rincover v. State, Dep’t of Fin., 128 Idaho 653, 917 P.2d 1293 (1996).

Although court held that employer’s payment was not “final payment” under§ 72-1355A, it would go too far to rule that the department of employment acted without a reasonable basis in law or fact as to the definition of “final payment” under that section; thus, employer was not entitled to an award of attorney’s fees under this section. Northwest Pipeline Corp. v. State, Dep’t of Emp., 129 Idaho 548, 928 P.2d 898 (1996).

County employee who appealed hearing officer’s refusal to award him attorney fees was not entitled to attorney fees on appeal on ground that the action of the county commissioners’ position was reasonable in defending against the appellate issue as characterized by employee and because of failure of employee to clearly assert the actual holding in case as the controlling authority in addressing the erroneous conclusion reached by the hearing officer. Ockerman v. Ada County Bd. of Comm’rs, 130 Idaho 265, 939 P.2d 584 (Ct. App. 1997).

Where, at the time of the action which formed the basis of the lawsuit, the specific provisions upon which the state agency relied had not been construed by the courts, the fact that the court below disagreed with the agency’s interpretation and application of those provisions did not render the agency’s action unreasonable in the circumstances, and the district court did not err in denying the request for attorney fees. Rincover v. State, Dep’t of Fin., Sec. Bureau, 132 Idaho 547, 976 P.2d 473 (1999), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Although a zoning board erroneously interpreted an ordinance, where it examined that ordinance and determined that a subdivision would be beneficial to the county, it acted in a way that fairly and reasonably addressed the issue, and the district court did not err in denying the plaintiff’s request for attorney fees. Payette River Property Owners Ass’n v. Board of Comm’rs, 132 Idaho 551, 976 P.2d 477 (1999), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Since the interpretation of section 47-701 and whether sand, gravel and pumice were included in that section’s list of minerals presented a question of first impression before the court, the state did not act without a reasonable basis in fact or law in defending an action for quiet title, and the district court’s ruling that the plaintiffs were not entitled to an award of attorney fees was affirmed. Treasure Valley Concrete, Inc. v. State, 132 Idaho 673, 978 P.2d 233 (1999), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012). Where the appellate court held that a city council lawfully withheld a special use permit, thereby reversing the district court’s ruling, the losing party on appeal was not entitled to attorney fees. Lamar Corp. v. City of Twin Falls, 133 Idaho 36, 981 P.2d 1146 (1999).

No award of attorney fees on appeal was made where the plaintiff sought such an award as an additional claim in its issues on appeal, but failed to include any argument or authority in its opening brief. Sprenger, Grubb & Assocs. v. City of Hailey, 133 Idaho 320, 986 P.2d 343 (1999).

Denial of attorney fees was proper where the state agency was not without a reasonable basis in fact or law in bringing and maintaining the suit against defendant for violation of the Idaho Securities Act. State v. Resource Serv. Co., 134 Idaho 282, 1 P.3d 783 (2000), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Attorney fees were not awarded where it could not be shown that the parties acted without a reasonable basis in fact or law. Stacey v. Idaho Dep’t of Labor, 134 Idaho 727, 9 P.3d 530 (2000), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Property owners who challenged a board of county commissioners’ decision to grant a special use permit for the development of a gravel pit were not entitled to an award of attorney fees, where they failed to prove that the board’s decision should be overturned and, thus, were not prevailing parties and failed to prove that the board’s actions were without a reasonable basis in fact or law. Evans v. Bd. of Comm’rs, 137 Idaho 428, 50 P.3d 443 (2002).

Where the appellants failed to prove that the zoning board’s decision should be overturned and failed to prove that the Board’s actions were “without a reasonable basis in fact or law,” the residents were not the prevailing party and were not entitled to an award of attorney fees. Evans v. Bd. of Comm’rs, 137 Idaho 428, 50 P.3d 443 (2002).

Because an appeal required the court to interpret a statute for the first time within the context of this case, neither party was entitled to attorney fees under either§ 12-121 or this section. Sacred Heart Med. Ctr. v. Boundary County, 138 Idaho 534, 66 P.3d 238 (2003).

Because the employee did not prevail on his appeal from the denial of his claim for unemployment insurance benefits, he was not entitled to an award of attorney fees. Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 67 P.3d 1265 (2003).

Award of attorney fees was denied to the county where a legitimate question was presented by the hospital as to what constituted an application for reimbursement or delayed application. IHC Hosps., Inc. v. Teton County, 139 Idaho 188, 75 P.3d 1198 (2003).

No attorney fees were awarded to the county and the intervenors where they were not the prevailing parties nor did the state act without a reasonable basis in fact or law in pursuing the appeal, so as to meet the standard for an award of fees under this section. State ex rel. Kempthorne v. Blaine County, 139 Idaho 348, 79 P.3d 707 (2003).

Although respondents prevailed on appeal, respondents were not entitled to attorney fees on appeal, where the challenge appellant brought was reasonably founded in fact and law and was not brought frivolously, unreasonably, or without foundation. SE/Z Constr., L.L.C. v. Idaho State Univ., 140 Idaho 8, 89 P.3d 848 (2004).

While a school district was a taxing district within the meaning of this section and§ 33-5206(1) specifically provided that a charter school shall not levy taxes; thus, while the school was a charter school and part of the school district, it was not a taxing district and the district judge did not err in refusing to award the parent attorney fees. Nampa Charter Sch., Inc. v. Delapaz, 140 Idaho 23, 89 P.3d 863 (2004). Where the county did not act with a reasonable basis in fact or law, the trial court erred in denying the gravel company’s request for attorney fees. Reardon v. City of Burley, 140 Idaho 115, 90 P.3d 340 (2004), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Although the county claimed attorney fees on appeal pursuant to this section for defending an appeal brought without a reasonable basis in fact or law, because the landowners raised issues relating to the interpretation of the building code provisions which the appellate court had not previously addressed, the appeal was not brought without a reasonable basis in fact or law and the appellate court declined to award the county attorney fees on appeal. Ada County v. Fuhrman, 140 Idaho 230, 91 P.3d 1134 (2004).

Citizen lacked standing to challenge the cigarette tax since he had a “generalized grievance” shared by a large class of citizens, and his remedy was through the political process. Further, the sales and use tax bill originated in the Idaho House and although substantially amended in the Idaho Senate, it was constitutionally enacted; although the law was well settled that the Senate could amend a revenue bill, the appeal was not frivolous, so as to have justified an award of attorney’s fees for the state. Gallagher v. State, 141 Idaho 665, 115 P.3d 756 (2005).

In an appeal of a decision by the board of tax appeals, neither the counties or a company were entitled to attorney fees because both parties prevailed in part and lost in part. Canyon County Bd. of Equalization v. Amalgamated Sugar Co., 143 Idaho 58, 137 P.3d 445 (2006).

Although the Idaho industrial commission’s denial of unemployment benefits to a nurse who was discharged for misconduct was upheld because it was supported by substantial and competent evidence, her employer was not entitled to attorney’s fees because the nurse’s appeal was not pursued unreasonably. Gunter v. Magic Valley Reg’l Med. Ctr., 143 Idaho 63, 137 P.3d 450 (2006).

Where a city did not prevail in a declaratory judgment action against several presenters regarding a proposed marijuana initiative, it was not entitled to attorney fees; moreover, the presenters were not entitled to such fees on appeal either because the appeal had a reasonable basis since a pivotal case on the issue had not yet been decided. Davidson v. Wright, 143 Idaho 616, 151 P.3d 812 (2006).

Neither a board of county commissioners or a landowner, who challenged the issuance of a permit to build a subdivision, were entitled to attorney’s fees because, while the landowner was not the prevailing party, he did not act without a reasonable basis. Cowan v. Bd. of Comm’rs, 143 Idaho 501, 148 P.3d 1247 (2006).

In corrections officers’ suit based on the disclosure of personal information, where defendants were granted summary judgment, attorney fees were denied on appeal to the officers and defendants because the officers did not prevail on appeal and did not bring the appeal unreasonably or without foundation. Nation v. State, 144 Idaho 177, 158 P.3d 953 (2007).

In a farm’s challenge of a county ordinance creating an overlay zone, trial court properly denied fees to both parties, as the county did not act without a reasonable basis in fact or law in enacting the ordinance. Neither party was entitled to attorney fees on appeal as the farm was not the prevailing party and while the county prevailed on appeal, there was nothing unreasonable about the farm’s challenge to the district court’s decision. Ralph Naylor Farms, LLC v. Latah County, 144 Idaho 806, 172 P.3d 1081 (2007), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012). Since the neighboring landowners did not prevail on their claim against a developer, they were not entitled to attorney fees. Neighbors for a Healthy Gold Fork v. Valley County, 145 Idaho 121, 176 P.3d 126 (2007).

Where a developer filed suit for judicial review of the Idaho transportation department’s (ITD) action on an encroachment permit approved with conditions and the district court improperly dismissed the complaint for failure to exhaust administrative remedies, ITD was not a prevailing party entitled to recover attorney fees and costs on appeal pursuant to subsection (1) of this section. The developer was also denied fees and costs, because ITD did not act without a reasonable basis in fact or law. Lochsa Falls, L.L.C. v. State, 147 Idaho 232, 207 P.3d 963 (2009).

Property owners were denied attorney fees under§ 12-121 and this section where they lost on two of their three claims. Plaintiffs were not the prevailing party, and there was no indication that the state defended the claims against plaintiffs unreasonably or without foundation. Harris v. State Ex Rel. Kempthorne, 147 Idaho 401, 210 P.3d 86 (2009).

Employee was not entitled to fees under this section. Although she was the prevailing party, she failed to show that the Idaho department of labor acted without a reasonable basis in fact or law. Henderson v. Eclipse Traffic Control & Flagging, Inc., 147 Idaho 628, 213 P.3d 718 (2009).

Although victorious, Idaho department of labor was not entitled to recover attorney’s fees on appeal, because the issue of whether a postage-meter mark could substitute as a USPS postmark, when determining the filing date of an appeal of an Idaho industrial commission decision, was an issue of first impression in this state. Smith v. Idaho Dep’t of Labor, 148 Idaho 72, 218 P.3d 1133 (2009).

A petition for judicial review of an agency action is neither an administrative proceeding nor a civil judicial proceeding; thus, this section does not enable the courts to award attorney fees in such cases. Johnson v. State (In re Johnson), 153 Idaho 246, 280 P.3d 749 (Ct. App. 2012).

Property owner acted reasonably on appeal in a zoning case, conceding arguments where a decision unfavorable to him was res judicata and by not making frivolous arguments. Thus, although the owner lacked standing under§ 10-1202 because the zoning of his land had not been changed, the county was not entitled to attorney fees on appeal. Martin v. Smith, 154 Idaho 161, 296 P.3d 367 (2013).

Where an irrigation district claimed attorney fees under§ 12-121, which was inapplicable, rather than under this section, which applied to it as a government taxing entity, the district was not awarded fees under either section; however, the district was entitled to fees under Idaho App. R. 11.2, which alllows for attorney fees when an appeal is brought for an improper purpose. Bettwieser v. New York Irrigation Dist., 154 Idaho 317, 297 P.3d 1134 (2013).

Improper Award.

Award of attorney fees against the state of Idaho was improper where plaintiff organization failed to prevail on a substantive issue and organization’s interest was to protect private pecuniary interests, not to vindicate public interests. State v. Hagerman Water Right Owners, Inc., 130 Idaho 718, 947 P.2d 391 (1997).

Because the case was being remanded to the city in order for it to make reviewable findings of fact, it could no longer be said that the developer was the prevailing party; thus, the Idaho supreme court vacated the district court’s award of attorney fees to the developer. Crown Point Dev. v. City of Sun Valley, 144 Idaho 72, 156 P.3d 573 (2007). District court erred in awarding a city a portion of its attorney fees where its decision was based on an incorrect interpretation of an annexation agreement and neither party’s position with respect to the agreement was unreasonable. Lane Ranch P’ship v. City of Sun Valley, 144 Idaho 584, 166 P.3d 374 (2007).

Intervening Party.

Costs were levied against the county pursuant to subsection (1) of this section, and although the issue of whether costs may be levied against an intervening party pursuant to Idaho R. Civ. P. 54(d) had not previously been addressed by the court, because the intervening party was very active in the appeal of this case, the intervening party was required to share the burden of appellate costs with the county. Rural Kootenai Org., Inc. v. Board of Comm’rs, 133 Idaho 833, 993 P.2d 596 (1999).

Political Subdivision.

The Kootenai County joint board of commissioners, comprised of officials from both Kootenai County and the City of Hauser (non-voting members), is a political subdivision for the purposes of subsection (1). Hauser Lake Rod & Gun Club, Inc. v. City of Hauser, 162 Idaho 260, 396 P.3d 689 (2017).

Prevailing Party.

Because both parties prevailed in part on appeal, neither of them was a prevailing party entitled to attorney fees on appeal. Wright v. Bd. of Psychological Exam’rs (In re Bd. of Psychologist Examiners’ Final Order), 148 Idaho 542, 224 P.3d 1131 (2010).

Pro Se.

An attorney acting as a pro se litigant is not entitled to an award of attorney fees on appeal. Chavez v. Canyon County, 152 Idaho 297, 271 P.3d 695 (2012).

Purpose.

The purpose of this section is two-fold: (1) To serve as a deterrent to groundless or arbitrary agency action; and (2) to provide a remedy for persons who have borne unfair and unjustified financial burdens defending against groundless charges or attempting to correct mistakes agencies should never had made. Bogner v. State Dep’t of Revenue & Taxation, 107 Idaho 854, 693 P.2d 1056 (1984).

Remand.

Attorney fees were not awarded on appeal in a case involving a permit for a livestock confinement because there was a remand of the case for further action. Halper v. Jerome County, 143 Idaho 691, 152 P.3d 562 (2007).

An order remanding a case to an administrative agency for further consideration normally does not qualify as relief on the merits. Kaseburg v. State, 154 Idaho 570, 300 P.3d 1058 (2013).

Standard of Review.

An appellate court should review a district court’s award of attorney’s fees for abuse of discretion. That approach is preferable to a de novo review because: (1) the legislature specifically provided that the court shall award attorney fees under this section “if it finds” the nonprevailing party acted without reasonable basis in fact or law, indicating the determinative finding was to be made by the trial court; and (2) this section speaks in terms of the “reasonableness” of the losing party’s actions, which implies a measure of objectivity, and which is properly left to the district court’s reasoned judgment. Halvorson v. N. Latah County Highway Dist., 151 Idaho 196, 254 P.3d 497 (2011); City of Osborn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012). District court erred in awarding a city a portion of its attorney fees where its decision was based on an incorrect interpretation of an annexation agreement and neither party’s position with respect to the agreement was unreasonable. Lane Ranch P’ship v. City of Sun Valley, 144 Idaho 584, 166 P.3d 374 (2007).

Intervening Party.

Political Subdivision.

Prevailing Party.

Pro Se.

An attorney acting as a pro se litigant is not entitled to an award of attorney fees on appeal. Chavez v. Canyon County, 152 Idaho 297, 271 P.3d 695 (2012).

Purpose.

Remand.

An order remanding a case to an administrative agency for further consideration normally does not qualify as relief on the merits. Kaseburg v. State, 154 Idaho 570, 300 P.3d 1058 (2013).

Standard of Review.

State Agency.

A county is not a state agency subject to this section. Lowery v. Board of County Comm’rs, 115 Idaho 64, 764 P.2d 431 (Ct. App. 1988).

A county is not a “state agency” within the meaning of this section. IHC Hosps. v. Board of Comm’rs, 117 Idaho 207, 786 P.2d 600 (Ct. App. 1990).

Since the state building authority is a public instrumentality and not an agency within the meaning of this section, subsection (3) of§ 12-120 and not this section is the applicable section for the awarding of attorney fees in an action brought by architects against authority for architectural services performed under contract. Moreover, since the action was not brought, pursued or defended frivolously, unreasonably or without foundation, attorney fees cannot be awarded under§ 12-121. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992).

The state building authority’s function is to provide a specific service for the state at a lower cost than could be accomplished by a private entity. Its interaction with the public is of a different nature than that of a true “state agency” which “determines contested cases” or “prescribes law.” Accordingly, the authority is a public instrumentality and not an “agency” within the meaning of this section, making such section inapplicable in action by architects against authority. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992).

The Idaho public utilities commission is a legislative agency not falling within the definition of a “state” agency as defined by§ 67-5201(1). Owner-Operator Indep. Drivers Ass’n v. Idaho Pub. Utils. Comm’n, 125 Idaho 401, 871 P.2d 818 (1994), modified on other grounds, Roe v. Harris, 128 Idaho 569, 917 P.2d 403 (1996).

The private attorney general doctrine considers the value of the prevailing party’s contribution while this section considers the character of the losing party’s case: the difference evidences a legislative intent to make the standard of this section the basis for an attorney fee award against a state agency, rather than the tests encompassed under the private attorney general doctrine, which is not available as the basis for such an award in a case against a state agency. Roe v. Harris, 128 Idaho 569, 917 P.2d 403 (1996).

Idaho petroleum clean water trust fund (fund) was not a state agency within meaning of§ 67-5201 and Fund had no power to promulgate rules or decide contested cases and was not subject to attorney fees under this section. V-1 Oil Co. v. Idaho Petro. Clean Water Trust Fund, 128 Idaho 890, 920 P.2d 909, cert. denied, 519 U.S. 1009, 117 S. Ct. 514, 136 L. Ed. 2d 403 (1996).

This statute is not discretionary, but provides that the court must award attorney fees where a state agency did not act with a reasonable basis in fact or law in a proceeding involving a person who prevails in the action. Rincover v. State, Dep’t of Fin., Sec. Bureau, 132 Idaho 547, 976 P.2d 473 (1999), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012). In an employee’s appeal of a termination of employment case, a university was not entitled to attorney’s fees because the university was not a state agency. Horne v. Idaho State Univ., 138 Idaho 700, 69 P.3d 120 (2003).

A health district is not a state agency under the clear language of§ 39-401; therefore, attorney fees cannot be assessed against the district under this section. Sunnyside Indus. & Prof’l Park, LLC v. Eastern Idaho Pub. Health Dist., 147 Idaho 668, 214 P.3d 654 (Ct. App. 2009) (see 2012 amendment).

Subsection (1) is not the exclusive basis upon which to seek an award of attorney fees against a state agency or political subdivision, as attorney fees may be awarded under any other statute that expressly applies to a state agency or political subdivision, such as§ 12-120(3) or 12-121. Syringa Networks, LLC v. Idaho Dep’t of Admin., 155 Idaho 55, 305 P.3d 499 (2013).

Neither the state of Idaho nor the Idaho emergency communications commission was entitled to an award of attorney fees for defending against a wireless company’s appeal, as the state was neither a state agency nor a political subdivision, and the commission did not present any argument contending that it met the definition set forth in paragraph (5)(d) [now (f)]. Tracfone Wireless, Inc. v. State, 158 Idaho 671, 351 P.3d 599 (2015).

Cited

Crane Creek Country Club v. Idaho State Tax Comm’n, 117 Idaho 585, 790 P.2d 366 (1990); Moosman v. Idaho Horse Racing Comm’n, 117 Idaho 949, 793 P.2d 181 (1990); Fox v. Board of County Comm’rs, 121 Idaho 684, 827 P.2d 697 (1992); Rim View Trout Co. v. Higginson, 121 Idaho 819, 828 P.2d 848 (1992); Central Paving Co. v. Idaho Tax Comm’n, 126 Idaho 174, 879 P.2d 1107 (1994); D & D Trucking, Inc. v. Idaho Transp. Dep’t, 126 Idaho 417, 885 P.2d 376 (1994); Nelson v. Big Lost River Irrigation Dist., 133 Idaho 139, 983 P.2d 212 (1999); Blaha v. Board of Ada County Comm’rs, 134 Idaho 770, 9 P.3d 1236 (2000); Rogers v. Gooding Pub. Joint Sch. Dist. No. 231, 135 Idaho 480, 20 P.3d 16 (2001); Sacred Heart Med. Ctr. v. Nez Perce County, 136 Idaho 448, 35 P.3d 265 (2001); Canal/Norcrest/Columbus Action Comm. v. City of Boise, 136 Idaho 666, 39 P.3d 606 (2001); Friends of Farm to Mkt. v. Valley County, 137 Idaho 192, 46 P.3d 9 (2002); Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002); Canal/Norcrest/Columbus Action Comm. v. City of Boise, 137 Idaho 377, 48 P.3d 1266 (2002); Sanders Orchard v. Gem County, 137 Idaho 695, 52 P.3d 840 (2002); Laurino v. Bd. of Prof’l Discipline, 137 Idaho 596, 51 P.3d 410 (2002); Floyd v. Bd. of Comm’rs, 137 Idaho 718, 52 P.3d 863 (2002); Eacret v. Bonner County, 139 Idaho 780, 86 P.3d 494 (2004); E. Idaho Reg’l Med. Ctr. v. Minidoka County (In re Bermudes), 141 Idaho 157, 106 P.3d 1123 (2005); Karr v. Bermeosolo, 142 Idaho 444, 129 P.3d 88 (2005); Casi Found., Inc. v. Doe (In re Doe), 142 Idaho 397, 128 P.3d 934 (2006); Sanchez v. State, 143 Idaho 239, 141 P.3d 1108 (2006); Mercy Med. Ctr. v. Ada County, 143 Idaho 899, 155 P.3d 700 (2007); Baird Oil Co., Inc. v. Idaho State Tax Comm’n, 144 Idaho 229, 159 P.3d 866 (2007); Dorea Enters. v. City of Blackfoot, 144 Idaho 422, 163 P.3d 211 (2007); Blanton v. Canyon County, 144 Idaho 718, 170 P.3d 383 (2007); Lane Ranch P’ship v. City of Sun Valley, 145 Idaho 87, 175 P.3d 776 (2007); Jenkins v. Barsalou, 145 Idaho 202, 177 P.3d 949 (2008); Giltner, Inc. v. Idaho Dep’t of Commerce & Labor, 145 Idaho 415, 179 P.3d 1071 (2008); Spencer v. Kootenai County, 145 Idaho 448, 180 P.3d 487 (2008); Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008); Bonner County v. Kootenai Hosp. Dist. (In re Daniel W.), 145 Idaho 677, 183 P.3d 765 (2008); Excell Constr., Inc. v. Idaho Dep’t of Commerce & Labor, 145 Idaho 783, 186 P.3d 639 (2008); St. Alphonsus Reg’l Med. Ctr., Inc. v. Bd. of County Comm’rs, 146 Idaho 51, 190 P.3d 870 (2008); Cantwell v. City of Boise, 146 Idaho 127, 191 P.3d 205 (2008); Galli v. Idaho County, 146 Idaho 155, 191 P.3d 233 (2008); Mercy Med. Ctr. v. Ada County, 146 Idaho 226, 192 P.3d 1050 (2008); Waller v. Dep’t of Health & Welfare, 146 Idaho 234, 192 P.3d 1058 (2008); Euclid Ave. Trust v. City of Boise, 146 Idaho 306, 193 P.3d 853 (2008); State Dep’t of Health & Welfare v. Hudelson (In re Hudelson), 146 Idaho 439, 196 P.3d 905 (2008); Johnson v. Blaine County, 146 Idaho 916, 204 P.3d 1127 (2009); Black Labrador Investing, LLC v. Kuna City Council, 147 Idaho 92, 205 P.3d 1228 (2009); Gibson v. Ada County Sheriff’s Office, 147 Idaho 491, 211 P.3d 100 (2009); Idaho Dep’t of Health & Welfare v. Matey (In re Matey), 147 Idaho 604, 213 P.3d 389 (2009); Burns Holdings, LLC v. Madison County Bd., 147 Idaho 660, 214 P.3d 646 (2009); Dry Creek Partners, LLC v. Ada County Comm’rs Ex Rel. State, 148 Idaho 11, 217 P.3d 1282 (2009); Nelson v. Big Lost River Irrigation Dist., 148 Idaho 157, 219 P.3d 804 (2009); Wheeler v. Idaho Transp. Dep’t, 148 Idaho 378, 223 P.3d 761 (Ct. App. 2009); Sirius LC v. Erickson, 150 Idaho 80, 244 P.3d 224 (2010); Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011); Friends of Minidoka v. Jerome County (In re Jerome County Bd. of Comm’rs), 153 Idaho 298, 281 P.3d 1076 (2012); Sanders v. Bd. of Trs. of the Mt. Home Sch. Dist. No. 193, 156 Idaho 269, 322 P.3d 1002 (2014); Bonner County v. Cunningham, 156 Idaho 291, 323 P.3d 1252 (Ct. App. 2014); Hoffman v. Bd. of Local Improvement Dist. No. 1101, 163 Idaho 464, 415 P.3d 332 (2016); Arnold v. City of Stanley, 162 Idaho 115, 394 P.3d 1160 (2017); Christy v. Grasmick Produce, 162 Idaho 199, 395 P.3d 819 (2017); Schweitzer Basin Water Co. v. Schweitzer Fire Dist., 163 Idaho 186, 408 P.3d 1258 (Ct. App. 2017); Westover v. Idaho Counties Risk Mgmt. Program, 164 Idaho 385, 430 P.3d 1284 (2018); Galvin v. City of Middleton, 164 Idaho 642, 434 P.3d 817 (2019); SilverWing at Sandpoint, LLC v. Bonner Cty., 164 Idaho 786, 435 P.3d 1106 (2019); Hardy v. Phelps, — Idaho —, 443 P.3d 151 (2019); Sylte v. Idaho Dep’t of Water Res., — Idaho —, 443 P.3d 252 (2019). In an employee’s appeal of a termination of employment case, a university was not entitled to attorney’s fees because the university was not a state agency. Horne v. Idaho State Univ., 138 Idaho 700, 69 P.3d 120 (2003).

Cited

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Idaho Administrative Law: A Primer for Students and Practitioners, Richard Henry Seamon. 51 Idaho L. Rev. 421 (2015).

Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

ALR.

§ 12-118. Costs against the state — How paid.

When the state is a party and costs are awarded against it, they must be paid out of the state treasury, and the state controller shall draw his warrant therefor on the general fund.

History.

C.C.P. 1881, § 708; R.S., R.C., & C.L., § 4917; C.S., § 7223; I.C.A.,§ 12-118; am. 1994, ch. 180, § 9, p. 420.

STATUTORY NOTES

Cross References.

General fund,§ 67-1205.

State controller,§ 67-1001 et seq.

Compiler’s Notes.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 9 of S.L. 1994, ch. 180 became effective January 2, 1995.

CASE NOTES

Actions Against Tax Collectors.

Costs may be allowed against the state in favor of the plaintiff in a successful action against the former state tax collector and the acting state tax collector for refund of taxes paid by the plaintiff under protest as to their legality. American Oil Co. v. Neill, 90 Idaho 333, 414 P.2d 206 (1966), overruled on other grounds, County of Ada v. Red Steer Drive-Ins of Nev., Inc., 101 Idaho 94, 609 P.2d 161 (1980).

Application of Section.

This section does not authorize assessment of costs against the state, but only provides the source from which such costs are paid, if authorized by some other section. Chastain’s Inc. v. State Tax Comm’n, 72 Idaho 344, 241 P.2d 167 (1952).

§ 12-118. Costs against the state — How paid.

When the state is a party and costs are awarded against it, they must be paid out of the state treasury, and the state controller shall draw his warrant therefor on the general fund.

History.

C.C.P. 1881, § 708; R.S., R.C., & C.L., § 4917; C.S., § 7223; I.C.A.,§ 12-118; am. 1994, ch. 180, § 9, p. 420.

STATUTORY NOTES

Cross References.

General fund,§ 67-1205.

State controller,§ 67-1001 et seq.

Compiler’s Notes.

CASE NOTES

Actions Against Tax Collectors.

Application of Section.

The plaintiff foreign corporation was entitled to recover its costs from the state, it being entitled to payment of its claim for services rendered pursuant to contract with the Idaho state department for the preparation of certain maps. Aero Serv. Corp. W. v. Benson, 84 Idaho 416, 374 P.2d 277 (1962). State was not entitled to a writ of prohibition to enjoin a district court from assessing fees for a special master against the state because the appointment of special masters and the assessment of special master costs were matters within the discretion of the district courts. Clear statutory authority existed for the award of such fees, as well direction as to how costs awarded against the state were to be paid. State v. District Court, 143 Idaho 695, 152 P.3d 566 (2007).

Cited

Brady v. Place, 41 Idaho 747, 242 P. 314 (1925); Chicago, M. & St. P. Ry. v. Public Utils. Comm’n, 47 Idaho 346, 275 P. 780 (1929).

§ 12-119. Costs against a county — How paid.

When a county is a party and costs are awarded against it, they must be paid out of the county treasury.

History.

C.C.P. 1881, § 709; R.S., R.C., & C.L., § 4918; C.S., § 7224; I.C.A.,§ 12-119.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Cited

St. Alphonsus Regional Medical Ctr., Ltd. v. Killeen, 124 Idaho 197, 858 P.2d 736 (1993).

§ 12-120. Attorney’s fees in civil actions.

Except as provided in subsections (3) and (4) of this section, in any action where the amount pleaded is thirty-five thousand dollars ($35,000) or less, there shall be taxed and allowed to the prevailing party, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney’s fees. For the plaintiff to be awarded attorney’s fees, for the prosecution of the action, written demand for the payment of such claim must have been made on the defendant not less than ten (10) days before the commencement of the action; provided, that no attorney’s fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount at least equal to ninety-five percent (95%) of the amount awarded to the plaintiff.
The provisions of subsection (1) of this section shall also apply to any counterclaims, cross-claims or third party claims which may be filed after the initiation of the original action. Except that a ten (10) day written demand letter shall not be required in the case of a counterclaim.
In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of goods, wares, merchandise, or services and in any commercial transaction unless otherwise provided by law, the prevailing party shall be allowed a reasonable attorney’s fee to be set by the court, to be taxed and collected as costs.
In actions for personal injury, where the amount of plaintiff’s claim for damages does not exceed thirty-five thousand dollars ($35,000), there shall be taxed and allowed to the claimant, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney’s fees. For the plaintiff to be awarded attorney’s fees for the prosecution of the action, written demand for payment of the claim and a statement of claim must have been served on the defendant’s insurer, if known, or if there is no known insurer, then on the defendant, not less than sixty (60) days before the commencement of the action; provided that no attorney’s fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount at least equal to ninety percent (90%) of the amount awarded to the plaintiff.
1. An itemized statement of each and every item of damage claimed by the plaintiff including the amount claimed for general damages and the following items of special damages: (i) medical bills incurred up to the date of the plaintiff’s demand; (ii) a good faith estimate of future medical bills; (iii) lost income incurred up to the date of the plaintiff’s demand; (iv) a good faith estimate of future loss of income; and (v) property damage for which the plaintiff has not been paid. «Title 12»•Ch. 1»«§ 12-120»

The term “commercial transaction” is defined to mean all transactions except transactions for personal or household purposes. The term “party” is defined to mean any person, partnership, corporation, association, private organization, the state of Idaho or political subdivision thereof.

The term “statement of claim” shall mean a written statement signed by the plaintiff’s attorney, or if no attorney, by the plaintiff which includes:

§ 12-120. Attorney’s fees in civil actions.

Except as provided in subsections (3) and (4) of this section, in any action where the amount pleaded is thirty-five thousand dollars ($35,000) or less, there shall be taxed and allowed to the prevailing party, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney’s fees. For the plaintiff to be awarded attorney’s fees, for the prosecution of the action, written demand for the payment of such claim must have been made on the defendant not less than ten (10) days before the commencement of the action; provided, that no attorney’s fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount at least equal to ninety-five percent (95%) of the amount awarded to the plaintiff.
The provisions of subsection (1) of this section shall also apply to any counterclaims, cross-claims or third party claims which may be filed after the initiation of the original action. Except that a ten (10) day written demand letter shall not be required in the case of a counterclaim.
In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of goods, wares, merchandise, or services and in any commercial transaction unless otherwise provided by law, the prevailing party shall be allowed a reasonable attorney’s fee to be set by the court, to be taxed and collected as costs.
In actions for personal injury, where the amount of plaintiff’s claim for damages does not exceed thirty-five thousand dollars ($35,000), there shall be taxed and allowed to the claimant, as part of the costs of the action, a reasonable amount to be fixed by the court as attorney’s fees. For the plaintiff to be awarded attorney’s fees for the prosecution of the action, written demand for payment of the claim and a statement of claim must have been served on the defendant’s insurer, if known, or if there is no known insurer, then on the defendant, not less than sixty (60) days before the commencement of the action; provided that no attorney’s fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action, an amount at least equal to ninety percent (90%) of the amount awarded to the plaintiff.
1. An itemized statement of each and every item of damage claimed by the plaintiff including the amount claimed for general damages and the following items of special damages: (i) medical bills incurred up to the date of the plaintiff’s demand; (ii) a good faith estimate of future medical bills; (iii) lost income incurred up to the date of the plaintiff’s demand; (iv) a good faith estimate of future loss of income; and (v) property damage for which the plaintiff has not been paid. (b) Legible copies of all medical records, bills and other documentation pertinent to the plaintiff’s alleged damages.
In all instances where a party is entitled to reasonable attorney’s fees and costs under subsection (1), (2), (3) or (4) of this section, such party shall also be entitled to reasonable postjudgment attorney’s fees and costs incurred in attempting to collect on the judgment. Such attorney’s fees and costs shall be set by the court following the filing of a memorandum of attorney’s fees and costs with notice to all parties and hearing.
In any small claims case resulting in entry of a money judgment or judgment for recovery of specific property, the party in whose favor the judgment is entered shall be entitled to reasonable postjudgment attorney’s fees and costs incurred in attempting to collect on the judgment. Such attorney’s fees and costs shall be set by the court following the filing of a memorandum of attorney’s fees and costs with notice to all parties and an opportunity for hearing. The amount of such attorney’s fees shall be determined by the court after consideration of the factors set out in rule 54(e)(3) of the Idaho rules of civil procedure, or any future rule that the supreme court of the state of Idaho may promulgate, but the court shall not base its determination of such fees upon any contingent fees arrangement between attorney and client, or any arrangement setting such fees as a percentage of the judgment or the amount recovered. In no event shall postjudgment attorney’s fees exceed the principal amount of the judgment or value of property recovered.

The term “statement of claim” shall mean a written statement signed by the plaintiff’s attorney, or if no attorney, by the plaintiff which includes:

If the plaintiff includes in the complaint filed to commence the action, or in evidence offered at trial, a different alleged injury or a significant new item of damage not set forth in the statement of claim, the plaintiff shall be deemed to have waived any entitlement to attorney’s fees under this section.

History.

1970, ch. 44, § 1, p. 91; am. 1975, ch. 65, § 1, p. 131; am. 1986, ch. 205, § 1, p. 511; am. 1987, ch. 204, § 1, p. 430; am. 1988, ch. 343, § 1, p. 1020; am. 1994, ch. 353, § 1, p. 1113; am. 1996, ch. 383, § 1, p. 1305; am. 2001, ch. 161, § 1, p. 569; am. 2012, ch. 94, § 1, p. 257; am. 2018, ch. 244, § 2, p. 567.

STATUTORY NOTES

Amendments.

The 2012 amendment, by ch. 94, substituted “thirty-five thousand dollars ($35,000) or less” for “twenty-five thousand dollars ($25,000) or less” near the beginning of subsection (1).

The 2018 amendment, by ch. 244, substituted “thirty-five thousand dollars ($35,000)” for “twenty-five thousand dollars ($25,000)” in the first sentence of the first paragraph in subsection (4).

Effective Dates.

Section 2 of S.L. 1988, ch. 343 declared an emergency. Approved April 6, 1988.

CASE NOTES

Action for Quiet Title.

Where the basis for a request for attorney fees was an action to quiet title in real property, the outcome of which depended on the interpretation of section 47-701 and on whether sand, gravel and pumice were included in the minerals reserved by the state in that statute, the ruling that attorney fees were not awardable under the provision covering commercial transactions was affirmed. Treasure Valley Concrete, Inc. v. State, 132 Idaho 673, 978 P.2d 233 (1999), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Court properly denied creditors’ request for attorney fees in their quiet title action against a debtor because the action involved a determination of property rights and subsection (3) of this section did not support an award of attorney fees in such an action. Quiet title action involved the determination of rights to 20 acres; it did not involve the validity or breach of a commercial lease. Merrill v. Gibson, 139 Idaho 840, 87 P.3d 949, cert. denied, 543 U.S. 926, 125 S. Ct. 311, 160 L. Ed. 2d 225 (2004).

Action on Contract.

Action for Quiet Title.

Action on Contract.

For attorney fees to be recoverable under subsection (2) (now (3)) of this section, the action must be one to recover on a contract relating to the purchase or sale of goods, wares or merchandise. It is not enough that the transaction between the parties relate to the purchase or sale of goods; the action itself must be one to recover on the contract. Chenery v. Agri-Lines Corp., 106 Idaho 687, 682 P.2d 640 (Ct. App. 1984). District court was correct by not awarding defendant attorney fees; to recover attorney fees, action must be one to recover on the contract and not merely an action arising from a transaction relating to the purchase or sale of goods, and trial court twice ruled that there was no contract between defendant as manufacturer of a product and the plaintiffs as purchasers of the product from retailer. Day v. CIBA Geigy Corp., 115 Idaho 1015, 772 P.2d 222 (1989).

Where real estate contract between the parties provided for an award of attorney fees to the prevailing party and the vendors fully prevailed on issues raised in the appeal by the buyers, vendors were awarded costs and reasonable attorney fees; yet because vendors did not prevail on their cross-appeal, buyers were entitled to costs and attorney fees under subsection (3) of this section for the defense of the cross-appeal; cost bills to be submitted by vendors and buyers were required to separately show the amounts incurred for prosecuting the appeal and cross-appeal and defending against the cross-appeal respectively. Toews v. Funk, 129 Idaho 316, 924 P.2d 217 (Ct. App. 1994).

Since contract of farmer bringing action claiming a breach of contract to fertilize crops was not for “personal or household purposes,” a “commercial transaction” was the gravamen of the lawsuit and farmer was entitled to award of attorney fees incurred on appeal. Ward v. Puregro Co., 128 Idaho 366, 913 P.2d 582 (1996).

Actions on employment contracts are subject to the attorney fee provisions of this section; thus, employer was properly granted attorney fees it incurred in successfully defending against employee’s claims for breach of express and implied contract terms, including the claim for violation of the implied covenant of good faith. Atwood v. Western Constr. Inc., 129 Idaho 234, 923 P.2d 479 (Ct. App. 1996).

Because in arbitration proceedings on a written contract for rebar work performed by subcontractor, subcontractor chose to frame its claim as one arising under a separate structural steel contract for which it had received full payment, rather than as a claim under the rebar contract from which the contractor had withheld funds because of claimed deficiencies in the structural work, contractor’s obligation to subcontractor had been discharged and magistrate’s dismissal of the claim and award of attorney fees were upheld. Record Steel & Constr., Inc. v. Martel Constr., Inc., 129 Idaho 288, 923 P.2d 995 (Ct. App. 1996).

In an action brought to recover a debt incurred on a contract relating to the sale and purchase of goods, an award of attorney’s fees to the prevailing party is mandatory. Robertson Supply, Inc. v. Nicholls, 131 Idaho 99, 952 P.2d 914 (Ct. App. 1998).

The award of attorney fees was improper because, although there was ample evidence to show that the parties entered into the purchase and sale agreement for commercial purposes, the plaintiffs’ suit was based upon a tort claim of fraud rather than upon the contractual agreement between the parties. Sowards v. Rathbun, 134 Idaho 702, 8 P.3d 1245 (2000).

When a quasi-contract claim is presented in the alternative to a breach of contract cause of action as a fallback position in the event that the contract claim fails, and where the quasi-contract claim is based upon the same facts and circumstances as the breach of contract claim, and the alleged transaction is commercial in nature, the prevailing party is entitled to recover attorney fees under subsection (3). Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Used car dealership and its owners were entitled to attorney’s fees after prevailing at trial and on appeal in a buyer’s action to revoke acceptance of a sale contract. Haight v. Dale’s Used Cars, Inc., 139 Idaho 853, 87 P.3d 962 (Ct. App. 2003). Refusal to award attorney’s fees on appeal in the parties’ contract dispute action was appropriate because the lessee did not present any argument justifying an award of attorney’s fees. In fact, the lessee did not even state that it was entitled to attorney fees. Independence Lead Mines Co. v. Hecla Mining Co., 143 Idaho 22, 137 P.3d 409 (2006).

Because the amounts recovered by a trout hatchery that had breached a contract with a trout grower were offsets against the amounts that they were obligated to pay the grower, recognition of those amounts did not prevent the grower from being the prevailing party in their breach of contract action; therefore, the district court’s grant of attorney fees to the grower was affirmed. Griffith v. Clear Lakes Trout Co., 143 Idaho 733, 152 P.3d 604 (2007).

From a contractor’s suit to recover payment on a contract which ended in the homeowners’ favor, the homeowners were entitled to reasonable attorney fees relating to their defense of the contractor’s tort claim as the commercial transaction, the parties’ contract, initiated the presence of the contractor’s equipment on the homeowners’ property and was integral to the contractor’s claim. Lee v. Nickerson, 146 Idaho 5, 189 P.3d 467 (2008).

Implied-in-fact contract with an architect who was not yet licensed was illegal; in the case of an illegal contract, neither party may claim the benefit of this section. Farrell v. Whiteman, 146 Idaho 604, 200 P.3d 1153 (2009).

Action on Lease.

Subsection (2) (now (3)) of this section is inapplicable on its face to a lease of real property. Bastian v. Albertson’s, Inc., 102 Idaho 909, 643 P.2d 1079 (Ct. App. 1982).

Court, in a commercial lease dispute, erred by awarding attorney’s fees to a tenant on a landlord’s negligence claim where the lease and the statute did not provide for fees on the claims relating to a negligence cause of action. J. R. Simplot Co. v. Rycair, Inc., 138 Idaho 557, 67 P.3d 36 (2003).

Because both parties in a commercial lease suit prevailed in part, the court of appeals did not award attorney fees. J. R. Simplot Co. v. Rycair, Inc., 138 Idaho 557, 67 P.3d 36 (2003).

In a breach of contract and tortious interference with contract action based on a business lease, an award of attorney’s fees to plaintiff was proper, as the gravamen of the lawsuit was a commercial transaction. Gunter v. Murphy’s Lounge, L.L.C., 141 Idaho 16, 105 P.3d 676 (2005).

Lessee was entitled to attorney’s fees, even though the underlying action sounded in tort, where lessor had alleged that the lessee was obligated under a rental agreement to indemnify it for any costs incurred in defending against a tort claim, as the rental agreement, a lease for a commercial building, met the definition of a commercial transaction. Simono v. Turner House, 160 Idaho 788, 379 P.3d 1058 (2016).

Actions on Negotiable Instruments.

An action based on§ 28-4-302 for late return of an item is not an action “on a negotiable instrument” within the meaning of subsection (2) (now (3)) of this section. Idah-Best, Inc. v. First Sec. Bank, 99 Idaho 517, 584 P.2d 1242 (1978).

Action on Note.

Subsection (3) permits recovery of attorney’s fees by the prevailing party in a civil action to recover a note. Student Loan Fund of Idaho, Inc. v. Duerner, 131 Idaho 45, 951 P.2d 1272 (1997), cert. denied, 525 U.S. 816, 119 S. Ct. 53, 142 L. Ed. 2d 41 (1998). As the prevailing party in an action to collect on a promissory note and pursuant to subsection (3), defendant was entitled to attorney fees on appeal. Beard v. George, 135 Idaho 685, 23 P.3d 147 (2001).

Amended Judgment.

The district court attempted to reconcile the rule requiring a timely filing of a cost memorandum with the rule permitting a motion to amend the judgment by rigidly applying the strictures of Idaho R. Civ. P. 54(d)(5); the court’s view would have required claimant to perform a virtually useless act by filing a claim for attorney fees when the court already had ruled, by its earlier judgment, that claimant was not entitled to recover any such award; until the judgment was amended with respect to the attorney fees determination, a claim for that item under Idaho R. Civ. P. 54(d)(5) would be subject to objection, and likely stricken on the ground that the question of entitlement already had been adjudicated; it was not until the court granted the later motion to amend the judgment that claimant became entitled to an award for fees. Instead of the strict approach taken by the district court, the court should have recognized that the right to costs, and an award for attorney fees, would mature anew when an amended judgment under Idaho R. Civ. P. 59(a) was entered reflecting the court’s determination that claimant was entitled to an award for fees, under this section. Western World, Inc. v. Prater, 121 Idaho 870, 828 P.2d 899 (Ct. App. 1992).

Amount of Award.

In determining the amount of attorney fees awarded under this section in suit to collect a debt evidenced by a note, the court correctly considered the factors under Idaho R. Civ. P. 54(e)(3). Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

The district court’s denial of the school district’s request for attorney fees on the grounds that the school district failed to specifically plead an amount less than $25,000 [now $35,000] was erroneous because the school district was entitled to attorney fees as the prevailing party in the case. Loftus v. Snake River Sch. Dist., 130 Idaho 426, 942 P.2d 550 (1997).

Although the amount involved and the results obtained are factors to be used in determining the amount of attorney fees to be awarded, as set forth in Idaho R. Civ. P. 54(e)(3), the fact that the plaintiffs only recovered 23% of what their complaint sought did not require that the award of attorney fees to them should be reduced accordingly. Lunders v. Estate of Snyder, 131 Idaho 689, 963 P.2d 372 (1998).

A district court did not abuse its discretion in awarding litigants 75% of their attorney fees, where the court analyzed the litigation as a whole and determined which party had prevailed on the numerous claims presented and litigated. Freeman & Co. v. Bolt, 132 Idaho 152, 968 P.2d 247 (Ct. App. 1998).

Where a creditor was entitled to recover reasonable attorneys’ fees under subsection (3) as the prevailing party in an adversary proceeding against the debtor, the creditor was not entitled to the full amount sought because certain services performed were outside the scope of the adversary proceeding, certain services were lumped into single time entries, certain services were noncompensable clerical work, and the $300 hourly rate charged was higher than the rates the court had seen charged by skilled counsel in the area trying similar cases. Kilborn v. Haun (In re Haun), 396 B.R. 522 (Bankr. D. Idaho 2008).

Amended Judgment.

Amount of Award.

Court improperly awarded more in attorney fees than the party incurred in defending a contract suit. BECO Constr. Co. v. J-U-B Eng’rs, Inc., 149 Idaho 294, 233 P.3d 1216 (2010), overruled on other grounds, Keybank Nat’l Ass’n v. PAL I, LLC, 155 Idaho 287, 311 P.3d 299 (2013). Nothing under Idaho law equates “reasonable” attorney fees to “actual” attorney fees. Subsection (3) entitles the prevailing party to a “reasonable” attorney fee. Idaho Rule of Civil Procedure 54(e)(3) enumerates several factors to guide the reasonableness inquiry, all of which must be considered, but none of which emphasize the actual amount incurred. Inclusion, Inc. v. Idaho Dep’t of Health & Welfare, 161 Idaho 239, 385 P.3d 1 (2016).

Appeal of Award of Attorney’s Fees.

A party successful on an appeal defending the award to it of attorney’s fees in a civil action seeking to recover for services performed on open account is also entitled to the award of attorney’s fees on appeal under this section. Boise Truck & Equip., Inc. v. Hafer Logging, Inc., 107 Idaho 824, 693 P.2d 470 (Ct. App. 1984).

When an appeal concerns attorney fees alone, an award of attorney fees will be made to the prevailing party if the issue on appeal includes the entitlement to a fee award below and is not limited to the amount. Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

The amount of attorney fees awarded at trial is an appropriate factor in determining the award of attorney fees on appeal under this section. Phillips v. Miles, 116 Idaho 842, 780 P.2d 593 (Ct. App. 1989).

When reviewing a discretionary determination by the trial court regarding reasonable attorney’s fees, the appellate court conducts a multi-tiered inquiry, concerning (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of such discretion and consistent with legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason. Meldco, Inc. v. Hollytex Carpet Mills, Inc., 118 Idaho 265, 796 P.2d 142 (Ct. App. 1990).

Application.

In actions removed from state courts, a bankruptcy court must follow the state’s substantive law; since subsection (2) (now (3)) of this section grants fees, without any qualifications, to a prevailing party in specified kinds of litigation, it is a statement of state policy substantive in nature and must be applied in removed state litigation. Wetzel v. Goldsmith (In re Comstock), 16 Bankr. 206 (Bankr. D. Idaho 1981).

This section is inapplicable on its face to a contract for the sale of real estate. Bennett v. Bliss, 103 Idaho 358, 647 P.2d 814 (Ct. App. 1982).

Subsection (2) (now (3)) of this section should not be extended by judicial construction to mandate an attorney fee award on appeal where the sole issue is the reasonableness of an amount awarded below, however an award still may be allowed under§ 12-121 in such a case. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

Subsection (2) (now (3)) of this section does not apply to an appeal taken solely from the amount of an award below, but it does apply where the appeal is concerned with the entitlement to an award below. Cheney v. Smith, 108 Idaho 209, 697 P.2d 1223 (Ct. App. 1985).

This section, which mandates an attorney fee award rather than simply authorizing a discretionary award, produces a harsh result for the nonprevailing party whose claim or defense is meritorious but unsuccessful. Such a result can be deemed fair only if its operation is known in advance and the parties are able to guide their litigation decisions accordingly; thus, this section as amended in 1988 would not be applied retrospectively. Howard v. Blue Cross of Idaho Health Serv., Inc., 114 Idaho 485, 757 P.2d 1204 (Ct. App. 1987). Subsection (3) of this section was correctly applied in awarding attorney’s fees to an attorney against whom a third-party complaint for malpractice was filed by a real estate loan broker where, even though the cause of action arose prior to enactment of this subsection, the complaint was not commenced until after the effective date of this subsection. Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989).

In an action against an insurer for a breach of contract to provide coverage of medical and hospital expenses, an attorney fee award was authorized by subsection (3) of this section where although an insurance policy was issued prior to the 1986 amendment of this section, the application of the attorney fee provision was triggered only by the commencement of litigation after the amendment had become effective. Eriksen v. Blue Cross of Idaho Health Servs., Inc., 114 Idaho 485, 778 P.2d 815 (Ct. App. 1989).

Where a petition did not request a monetary judgment, rather, it sought a review of the decision of the board of county commissioners, and asked for declaratory and injunctive relief, and no written demand for payment of an amount less than $25,000 [now $35,000] was made, this section was, therefore, inapplicable. Boise Cent. Trades & Labor Council, Inc. v. Board of Ada County Comm’rs, 122 Idaho 67, 831 P.2d 535 (1992).

There must be a commercial transaction between the parties for attorney fees to be awarded. To the extent prior case law may be read to mandate an award of attorney fees to the prevailing party when the other party has claimed fees pursuant to paragraph (3), that interpretation is disavowed. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 136 Idaho 466, 36 P.3d 218 (2001).

Two stages of analysis are utilized to determine whether a prevailing party can avail itself of paragraph (3): (1) there must be a commercial transaction that is integral to the claim; and (2) the commercial transaction must be the basis upon which recovery is sought. It has long been held that the critical test is whether the commercial transaction comprises the gravamen of the lawsuit; the commercial transaction must be integral to the claim and constitute a basis on which the party is attempting to recover. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 136 Idaho 466, 36 P.3d 218 (2001).

In the context of a claim for attorney fees, if more than one claim is pled, there can be more than one “gravamen,” and attorney fees can still be awarded for a specific claim, if a claim is of the type covered by paragraph (3) of this section, even though a claim is covered by other theories that would not have triggered application of the statute. Moreover, paragraph (3) cannot be invoked if the commercial transaction is between parties only indirectly related. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 136 Idaho 466, 36 P.3d 218 (2001).

Paragraph (3) does not authorize the awarding of attorney fees every time a commercial transaction is connected with the case. The test is whether the commercial transaction constitutes the essential part of the lawsuit. Thus, although there were commercial transactions between the two parties and other individuals or companies, but not between the parties themselves, attorney fees could not be awarded. AG Servs. of Am., Inc. v. Kechter, 137 Idaho 62, 44 P.3d 1117 (2002).

Award of attorney’s fees was mandatory because a dispute between property purchasers and lenders involved a commercial transaction; the commercial transaction was integral to the claim. Grover v. Wadsworth, 147 Idaho 60, 205 P.3d 1196 (2009).

While a business company was not entitled to an award of attorney fees for the company’s defamation claim, the company was entitled to an award of attorneys fees for the company’s breach of contract claim, as the gravamen of that claim was the contract between the parties. However, because the district court did not allocate the attorney fees between the claims, remand for apportionment of the attorney fees was necessary. Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., 164 Idaho 669, 434 P.3d 1275 (2019). Subsection (3) of this section was correctly applied in awarding attorney’s fees to an attorney against whom a third-party complaint for malpractice was filed by a real estate loan broker where, even though the cause of action arose prior to enactment of this subsection, the complaint was not commenced until after the effective date of this subsection. Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989).

Assignment of Proceeds.

A cause of action founded solely upon the assignment of proceeds from a lawsuit was not an action covered by subsection (2) (now (3)) of this section. Bonanza Motors, Inc. v. Webb, 104 Idaho 234, 657 P.2d 1102 (Ct. App. 1983).

An action brought by a realtor for breach of a real estate listing contract was an action brought on a contract of employment and could not be “stretched” to fit under subsection (2) (now (3)) of this section, despite the defendant’s argument that her defense of the action was essentially the same as the defense of a civil action to recover upon a note, bill or negotiable instrument. Barnes v. Hinton, 103 Idaho 619, 651 P.2d 553 (Ct. App. 1982).

Award Improper.

In action by water authority against consumers for unpaid assessments, the award of costs and attorney fees to water authority was error where authority was not the prevailing party, since it had made an excessive demand although the proper amount due had been tendered by the consumers, and where authority was not allowed by its permit to sell water, but was only allowed to charge for maintenance of the water system, so that no sale of goods, wares or merchandise was involved within the meaning of subsection (2) (now (3)) of this section. Yellow Pine Water User’s Ass’n v. Imel, 105 Idaho 349, 670 P.2d 54 (1983).

Where third-party defendant offered no defense, called no witnesses, presented no supported legal argument in favor of its position, and it did not vigorously cross-examine any of the witnesses called by other parties in an attempt to support its defense, an award of attorney fees under subsection (2) (now (3)) of this section,§ 12-121, and Idaho R. Civ. P. 54(e)(1) was proper. Del Milam & Sons v. Bailey, 107 Idaho 587, 691 P.2d 1202 (1984).

Award of attorney fees under subsection (3) of this section was erroneous in an action to recover for alleged professional negligence of an architect. Smith v. David S. Shurtleff & Assocs., 124 Idaho 239, 858 P.2d 778 (1993).

District court order awarding attorney fees to plaintiff-respondent was vacated as this section was held to be inapplicable where action was based on claims of breach of fiduciary duty and reimbursement of funds defendant paid herself erroneously as a bonus upon her departure from plaintiff’s employ. Property Mgt. W., Inc. v. Hunt, 126 Idaho 897, 894 P.2d 130 (1995).

Where a contract claim, which is covered in subsection (3) of this section, is combined with a conversion claim, which is outside the scope of this section, and the two are not separable, the fact that the conversion claim arose out of a commercial transaction is not sufficient to apply this section and award attorney fees. Brooks v. Gigray Ranches, Inc., 128 Idaho 72, 910 P.2d 744 (1996).

Because on appeal it was determined that buyers had the right to revoke acceptance against automobile dealer, lower court’s judgment awarding attorney fees and costs to dealer was reversed, as dealer could no longer be considered a prevailing party. Griffith v. Latham Motors, Inc., 128 Idaho 356, 913 P.2d 572 (1996).

Award of attorney fees under Idaho Civil Procedure Rules 54(e)(1) through 54(e)(9) or§ 12-121 or this section to mother and state as prevailing parties in paternity action against defendant was improper as mother did not plead any specific amount of damages as required under subdivision (1) of this section and the magistrate made no findings that father’s defense of the action was frivolous or unreasonable as required under Idaho R. Civ. P. 54(e)(1). Henderson v. Smith, 128 Idaho 444, 915 P.2d 6 (1996). Because§ 41-1839 was amended to include subsection (4) which excludes award of attorney fees under this section in actions between insureds and insurers involving disputes arising under any policy of insurance, and the legislature expressly stated its intent that this act apply to all cases pending at the time of passage and approval, district court’s award of attorney fees in suit brought against insurer by seed cooperative was reversed and request for fees on appeal denied to seed cooperative and umbrella insurer. Union Whse. & Supply Co. v. Illinois R.B. Jones, Inc., 128 Idaho 660, 917 P.2d 1300 (1996).

An award of attorney fees to employer for defending against employee’s claims for breach of express and implied contract terms, including a claim for violation of the implied covenant of good faith, should not have included fees attributable to the defense of employee’s cause of action for age discrimination; that claim, though rooted in the employment relationship, sought recovery for infringement of rights created not by contract but by statutes. Atwood v. Western Constr. Inc., 129 Idaho 234, 923 P.2d 479 (Ct. App. 1996).

The trial court properly denied attorney fees because the plaintiff had not provided the trial court with a meaningful segregation of the attorney fees which were incurred in pursuing a commercial contract claim against the defendant. Weaver v. Searle Bros., 129 Idaho 497, 927 P.2d 887 (1996).

Attorney fees are not available when the claim is based on a statutory provision, even when the underlying action depends on contract. Shay v. Cesler, 132 Idaho 585, 977 P.2d 199 (1999).

Where an attorney fee award was made solely on a count relating to the plaintiff’s wage claim, and the gravamen of the suit was not violation of an employment contract but violation of a statute, this section did not apply, and the award of fees was reversed. Shay v. Cesler, 132 Idaho 585, 977 P.2d 199 (1999).

Where plaintiffs who claimed liens were not successful in their claims, and where neither out-of-state bond statutes nor the theory of unjust enrichment provided relief to any of them, awards of attorney fees to the plaintiffs were not appropriate. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Award of attorney fees was reversed because this section does not carry with it a reciprocal right to an award of attorney fees to a defendant who prevails in the suit, and the complaint did not recite any authority, either statute or rule, which would entitle the plaintiff to an award of fees. D.A.R., Inc. v. Sheffer, 134 Idaho 141, 997 P.2d 602 (2000).

Although attorney fees are awardable under subsection (3) of this section when a claim is initiated to recover on an open account, because plaintiff hospital’s claim against the estate was not founded upon a contractual open account, the award of attorney fees to plaintiff hospital was reversed. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).

Where defendant general contractor entered a joint venture with plaintiff unlicensed contractor to bid projects jointly as a public works contractor under the general contractor’s name pursuant to an oral agreement to divide all profits equally, the commercial transaction was illegal and neither party could claim the benefit of subsection (3) of this section; further, as the award of the district court was based upon the exception to the illegality doctrine for fraud which sounds in tort, no basis for the award existed under subsection (3) of this section. Trees v. Kersey, 138 Idaho 3, 56 P.3d 765 (2002). Attorney fees related to the teacher’s claim after his contract was not renewed, which related to public policy and the Idaho Constitution were improper; however he could recover fees to the extent they related to his other, breach of contract claim. Willie v. Bd. of Trs., 138 Idaho 131, 59 P.3d 302 (2002).

Because a farm’s action under the Commodity Indemnity Account Program (CIAP) was independent, as opposed to derivative, of a judgment entered in the district court against a bonded warehouse, the attorney fees the farm incurred in pursuing its CIAP claim were not “incurred in attempting to collect on the judgment”; therefore, the district court’s award of post-judgment attorney fees to the farm pursuant to subsection (5) of this section was reversed. Griff, Inc. v. Curry Bean Co., 138 Idaho 315, 63 P.3d 441 (2003).

In a lender’s suit against a funding company and its president, seeking to pierce the corporate veil and to collect from the president personally on a prior judgment, fees and costs were improperly awarded to the president where the suit on the judgment was not one of the enumerated actions identified in paragraph (3). Rahas v. Ver Mett, 141 Idaho 412, 111 P.3d 97 (2005), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., — Idaho —, 265 P.3d 502, 2011 Ida. LEXIS 149 (2011).

Arbitration panel did not have authority to award attorney fees pursuant to American Arbitration Association (AAA) rules incorporated into an asset purchase agreement and Idaho statutory law because the agreement clearly stated that AAA rules governed procedural rather than substantive issues. Idaho law, which included the Idaho Uniform Arbitration Act,§ 7-901 et seq., applied to interpretation of the parties’ contract terms under the agreement and the parties contracted for a zero dollar amount or claim with respect to an award of attorney’s fees. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Neither party was permitted to benefit from an award of attorney’s fees by statute or the attorney’s fees provision in a real estate purchase and sale agreement, because the agreement orchestrated by a real estate broker, and executed by the buyer and the seller, was fraudulent and violated public policy. Kosmann v. Gilbride, 161 Idaho 363, 386 P.3d 504 (2016).

Attorney fees cannot be awarded for in an action attempting to enforce an illegal agreement. Taylor v. Taylor, 163 Idaho 910, 422 P.3d 1116 (2018).

— Insurance Suit.

Section 41-1839 does not preclude an award of fees under subsection (3) of this section. Continental Cas. Co. v. Brady, 127 Idaho 830, 907 P.2d 807 (1995).

Where an insured effectively assigned to the plaintiff his right as an insured to collect money due under a policy and to sue the defendant insurance company for breach, the plaintiff stood in the shoes of the insured in a dispute arising under an insurance policy, and the trial court erred in awarding attorney fees under subsection (3) of this section. J.R. Simplot Co. v. Western Heritage Ins. Co., 132 Idaho 582, 977 P.2d 196 (1999).

Award of Fees, When.

Even though a complaint against an insurer was not amended to assert the plaintiff’s status as an assignee of the insured until after the enactment of an amendment to 41-1839(4), the fact that the legislature had expressly stated that the amendment was retroactive, applying to all cases pending at the time of its passage and approval, meant that the mandatory prevailing party fee award applicable under subsection (3) of this section to commercial transaction disputes would be barred in a case where the assignee could be characterized as an insured. J.R. Simplot Co. v. Western Heritage Ins. Co., 132 Idaho 582, 977 P.2d 196 (1999). Award of Fees, When.

This section is mandatory in its nature; the court is therefore compelled to award some attorney’s fees to the plaintiffs under the statute. Clement v. Franklin Inv. Group, Ltd., 689 F. Supp. 1575 (D. Idaho 1988).

Subsection (3) of this section generally mandates an award of attorney fees to the prevailing party on appeal as well as at trial. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992); Farm Credit Bank v. Stevenson, 125 Idaho 270, 869 P.2d 1365 (1994).

Defendant, initially awarded default judgment in his breach of contract counterclaim and prevailing on plaintiff’s appeal to set aside judgment on Idaho R. Civil P. 60(b) grounds, was awarded costs and attorney fees. In an action on a contract, subdivision (3) of this section generally mandates an award of attorney fees to the prevailing party on appeal as well as at trial. Tyler v. Keeney, 128 Idaho 524, 915 P.2d 1382 (Ct. App. 1996).

Attorney fees may be awarded under this section for appeals, as well as for trial work. Tentinger v. McPheters, 132 Idaho 620, 977 P.2d 234 (Ct. App. 1999).

Where neither party prevailed on the issues they respectively raised on appeal, neither was entitled to an award of attorney fees under this section. General Auto Parts Co. v. Genuine Parts Co., 132 Idaho 849, 979 P.2d 1207 (1999).

Where the most significant issue in the case was whether the plaintiff was entitled to the market price for rejectable potatoes, and where the plaintiff prevailed on that issue both below and on appeal, the plaintiff was entitled to fees below and fees and costs on appeal. Licklyey v. Max Herbold, Inc., 133 Idaho 209, 984 P.2d 697 (1999).

When a party requesting attorney fees on appeal cites the statutes but does not present argument, the court will not address the request. Carl H. Christensen Family Trust v. Christensen, 133 Idaho 866, 993 P.2d 1197 (1999).

Under subsection (3) of this section, the prevailing party in a civil action involving a commercial transaction is entitled to an award of reasonable attorney fees; there is a two-stage analysis necessary to determine whether a prevailing party is so entitled to an award: (1) the commercial transaction must be integral to the claim; and (2) the commercial transaction must provide the actual basis for recovery. Iron Eagle Dev. v. Quality Design Sys., Inc., 138 Idaho 487, 65 P.3d 509 (2003).

Where a trial court on remand was instructed to determine whether a broker forfeited any or all of his development commission because he was found under a general verdict to have breached a real estate agreement with landowners, on remand the trial court had discretion to consider whether the broker was entitled to attorney fees incidental to that claim because the attorney fee was a subsidiary issue fairly comprised within the broker’s substantive claim. Rockefeller v. Grabow, 139 Idaho 538, 82 P.3d 450 (2003).

In an breach of contract dispute between a bank and a livestock owner, the district court granted summary judgment for the bank, which judgment was affirmed on appeal; award of attorney fees on appeal to the bank was proper. Lettunich v. Key Bank Nat’l Ass’n, 141 Idaho 362, 109 P.3d 1104 (2005).

Award on Appeal.

Subsection (3) of this section mandates an award of attorney fees on appeal as well as in the trial court. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Award of Fees, When.

Litigant who prevailing on appeal in a breach of contract action was entitled to recovery appellate attorney fees. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002). Award of Fees, When.

Attorney fees may be awarded under this section for appeals, as well as for trial work. Tentinger v. McPheters, 132 Idaho 620, 977 P.2d 234 (Ct. App. 1999).

Award on Appeal.

Subsection (3) of this section mandates an award of attorney fees on appeal as well as in the trial court. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Litigant who prevailing on appeal in a breach of contract action was entitled to recovery appellate attorney fees. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002). Customers’ motion for attorney’s fees on appeal pursuant to subsection (3) of this section was denied pending a remand; although the customers prevailed on appeal and summary judgment in favor of a company was reversed, it remained to be determined which party would ultimately prevail on remand. Land O’Lakes, Inc. v. Bray, 138 Idaho 817, 69 P.3d 1078 (Ct. App. 2003).

Because a home health care consultant did not challenge the dismissal of the consultant’s breach of contract claim, subsection (3) of this section did not apply. Jensen v. State, 139 Idaho 57, 72 P.3d 897 (2003).

Where it remained to be seen whether the prevailing party on appeal would be the prevailing party in the action, and, therefore, entitled to attorney fees under subsection (3) of this section and Idaho App. R. 41, the district court, upon final resolution of the case, could consider fees incurred on appeal when it made an award to the prevailing party. As a matter of right, costs on appeal were awarded to the prevailing party on appeal under Idaho App. R. 40. Cox v. City of Sandpoint, 140 Idaho 127, 90 P.3d 352 (Ct. App. 2003).

In an action arising from a breach of a contract to design and construct a cabin, a wholesale supplier who prevailed on summary judgment was properly awarded costs and attorney fees pursuant to§ 12-121, and the supplier was not entitled to attorney fees on appeal under this section, because it only prevailed in part. Nelson v. Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004).

In a contract dispute, defendants were entitled to attorney fees on appeal because they prevailed on appeal and the appeal concerned entitlement to attorney fees and not the amount of the award. Eighteen Mile Ranch, LLC v. Nord Excavating & Paving, Inc., 141 Idaho 716, 117 P.3d 130 (2005).

While respondent prevailed on appeal, appellant presented a cogent challenge to the district court’s reading of Idaho R. Civ. P. 37(c) and presented legitimate arguments questioning the district court’s conclusion that her denial of respondents’ requests to admit was unreasonable. The appeal of the Idaho R. Civ. P. 37(c) award was not frivolous and, therefore, respondent was not entitled to attorney fees on appeal. Contreras v. Rubley, 142 Idaho 573, 130 P.3d 1111 (2006).

Because the corporation’s suit against the farmers was an action to recover on a commercial transaction and the corporation was the prevailing party on appeal, it was entitled to an award of attorney’s fees. J.R. Simplot Co. v. Bosen, 144 Idaho 611, 167 P.3d 748 (2006).

In corrections officers’ suit based on the disclosure of personal information, where defendants were granted summary judgment, attorney fees were denied on appeal to the officers and defendants because the amount pleaded far exceeded the $25,000 [now $35,000] limit. Nation v. State, 144 Idaho 177, 158 P.3d 953 (2007).

When a property seller challenged a contract, arguing that the contract’s property description did not satisfy the statute of frauds, the seller prevailed on appeal and was entitled to attorney fees on appeal. Ray v. Frasure, 146 Idaho 625, 200 P.3d 1174 (2009).

In the trout farmers’ breach of a commercial sales contract action against a fish hatchery, awarding the trout farmers attorney fees after remand pursuant to their contingency fee agreement, rather than on an hourly basis as they had previously been awarded, was reasonable considering the attorney fees as a whole, despite the late switch regarding the method of computation. Griffith v. Clear Lakes Trout Co., 146 Idaho 613, 200 P.3d 1162 (2009).

This section generally allows the Idaho supreme court to award reasonable attorney fees on appeal that are incurred in connection with the effort to secure a reasonable amount of attorney fees. However, for subsection (5) to apply, the attorney fees sought must have been “incurred in attempting to collect on the judgment.” When attempting to collect on a judgment, a party may receive attorney fees and costs pursuant to subsection (5), if that party would have been awarded attorney fees and costs under subsection (1), (2), (3), or (4) in the underlying proceeding. A request for postjudgment attorney fees under subsection (5) is not a proceeding that would satisfy the requirements of subsection (1), (2), (3), or (4) Med. Recovery Servs., LLC v. Siler, 162 Idaho 30, 394 P.3d 73 (2017). Customers’ motion for attorney’s fees on appeal pursuant to subsection (3) of this section was denied pending a remand; although the customers prevailed on appeal and summary judgment in favor of a company was reversed, it remained to be determined which party would ultimately prevail on remand. Land O’Lakes, Inc. v. Bray, 138 Idaho 817, 69 P.3d 1078 (Ct. App. 2003).

In corrections officers’ suit based on the disclosure of personal information, where defendants were granted summary judgment, attorney fees were denied on appeal to the officers and defendants because the amount pleaded far exceeded the $25,000 [now $35,000] limit. Nation v. State, 144 Idaho 177, 158 P.3d 953 (2007).

Award Proper.

When an order awarding attorney’s fees is correct, but has been entered upon an erroneous theory, it will be upheld upon the proper theory. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct. App. 1984).

Where the party successfully defended against the action for recovery on the note, he was entitled to reasonable attorney fees. Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

Where the city’s contract for the supplying and installing of the secondary treatment equipment in the sewage treatment plant was for the sale of goods, as defined by the UCC, the district court did not err in awarding the city attorney fees pursuant to subsection (2) (now subsection (3)) of this section. United States v. City of Twin Falls, 806 F.2d 862 (9th Cir. 1986), cert. denied, 482 U.S. 914, 107 S. Ct. 3185, 96 L. Ed. 2d 674 (1987).

Where the judge heard argument and received affidavits regarding a reasonable attorney fee and he determined that the fees requested were appropriate in light of extensive discovery work and pretrial hearings, the judge did not abuse his discretion. Davidson v. Beco Corp., 112 Idaho 560, 733 P.2d 781 (Ct. App. 1986), modified on other grounds, 114 Idaho 107, 753 P.2d 1253 (1987).

In a suit based upon an alleged contract for the sale of goods and one involving an alleged guaranty, the prevailing parties were entitled to awards of attorney fees, even though no liability under the contract or guaranty was established. Twin Falls Livestock Comm’n v. Mid-Century Ins. Co., 117 Idaho 176, 786 P.2d 567 (Ct. App. 1989).

Where lessee of farm failed to present a persuasive argument that the district court erred in ordering farm equipment contractor, instead of the lessor of farm, to pay the costs and attorney fees expended by lessee in successfully defending against the claims of contractor, the district court’s order that contractor pay lessee’s costs and attorney fees was affirmed. Tri-Circle, Inc. v. Brugger Corp., 121 Idaho 950, 829 P.2d 540 (Ct. App. 1992).

Where plaintiff pled actual damages, including a prayer for attorney fees, and where he prayed for leave to amend his complaint to seek punitive damages in addition to actual damages sought, defendant had sufficient notice of amount of plaintiff’s claim as well as his intent to seek attorney fees; thus award of attorney fees was proper. Downey Chiropractic Clinic v. Nampa Restaurant Corp., 127 Idaho 283, 900 P.2d 191 (1995).

The state made an adequate request for attorney fees under subsection (3), and since the state was the prevailing party in the appeal, the state was awarded reasonable attorney fees on appeal. Clark v. State, 134 Idaho 527, 5 P.3d 988 (2000).

Where a party alleged the existence of a contractual relationship of a type embraced by subsection (3), that claim triggered the application of the statute, and the prevailing party recovered fees even though no liability under a contract was established. Intermountain Forest Mgmt., Inc. v. Louisiana-Pacific Corp., 136 Idaho 233, 31 P.3d 921 (2001). Subsection (3) of this section applies to attorney fees incurred on appeal as well as at trial. Intermountain Forest Mgmt., Inc. v. Louisiana-Pacific Corp., 136 Idaho 233, 31 P.3d 921 (2001).

Bidder’s action against the trustee was to recover in a commercial transaction; as the prevailing party on the appeal, the trustee was entitled to an award of a reasonable attorney fee. Taylor v. Just, 138 Idaho 137, 59 P.3d 308 (2002).

Where a court stated it awarded an engineering firm attorney fees in the amount of $61,846, the record provided sufficient information to presume that the court had considered the pertinent factors of Idaho R. Civ. P. 54(e)(3); the writings submitted by the parties in connection with the claim for attorney fees addressed several of the factors listed in Idaho R. Civ. P. 54(e)(3), including the time and labor required, the novelty and difficulty of the questions, the prevailing charges for like work, that the fee was fixed, the amount involved and results obtained, and conduct that the parties alleged unreasonably increased the cost of the litigation. Pinnacle Eng’rs v. Heron Brook, LLC., 139 Idaho 756, 86 P.3d 470 (2004).

Property owners, as defendants in a personal injury action, were entitled to attorney fees under subsection (4) of this section where a “claimant” referred to a prevailing party (plaintiff or defendant) claiming attorney fees in an action meeting the other requirements of the statute; the legislature used the term “plaintiff” in (4) when modifying subsection (1) but when it addressed the right to an award it used the term “claimant” which in context may be either a plaintiff or a defendant. Gillihan v. Gump, 140 Idaho 264, 92 P.3d 514 (2004).

Plaintiff’s increase in the amount of damages over time did not constitute a waiver of attorney fees for purposes of subsection (4) of this section. The trial court did not abuse its discretion by awarding the victim her attorney fees. Johnson v. Sanchez, 140 Idaho 667, 99 P.3d 620 (Ct. App. 2004).

Where the employee sued his employer for breach of contract and tort claims arising from his termination, his employer, as the prevailing party upon summary judgment, was entitled to an award of $35,000 in attorney fees. The fees attributable to the defense of the contract-related claims were sufficiently isolated from fees attributable to the defense of the other claims to make the award of attorney fees calculable. Jenkins v. Boise Cascade Corp., 141 Idaho 233, 108 P.3d 380 (2005).

District court’s award of attorney’s fees to respondent was not in error because the district court did not abuse its discretion in concluding appellant had unreasonably denied certain requests to admit negligence in a vehicular accident. Contreras v. Rubley, 142 Idaho 573, 130 P.3d 1111 (2006).

In a dispute over a land sale contract, a district court did not abuse its discretion by awarding attorney fees under this section because the factors under Idaho R. Civ. P. 54(e)(3) were considered, itemized memoranda and affidavits of costs were analyzed, and items were removed if they were deemed excessive. P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 159 P.3d 870 (2007).

In a dispute involving the sale of a duplex, two sellers were entitled to attorney fees on appeal because they were the prevailing parties due to a stipulated dismissal, and they prevailed on appeal on the issue of entitlement to fees and costs. Straub v. Smith, 145 Idaho 65, 175 P.3d 754 (2007).

In a collection suit, a magistrate court did abuse its discretion by awarding a debt collector $200 in attorney fees, even though the magistrate initially acted prematurely and improperly by awarding a specific amount of fees before all of the required documents were filed. Medical Recovery Servs., LLC v. Jones, 145 Idaho 106, 175 P.3d 795 (Ct. App. 2007). Subsection (3) of this section applies to attorney fees incurred on appeal as well as at trial. Intermountain Forest Mgmt., Inc. v. Louisiana-Pacific Corp., 136 Idaho 233, 31 P.3d 921 (2001).

Civil Action.

After the court dismissed debtors’ complaint against a lender, which asserted violations of federal and state consumer protection and lending laws, the lender was not entitled to attorneys’ fees under subsection (3), because, while the debtors’ action was a civil action, it was not the type of civil action, i.e., a civil action to recover on a note or negotiable instrument, for which subsection (3) authorizes the recovery of attorneys’ fees. Beach v. Wells Fargo Bank, NA (In re Beach), 2011 Bankr. LEXIS 4027 (Bankr. D. Idaho Oct. 19, 2011).

Commercial Disputes.

Subsection (2) (now (3)) of this section creates no favored class and does not impose a penalty and the determination of a reasonable fee under this statute should not be colored by characterizing the award as a penalty. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

The function of subsection (2) (now (3)) of this section is to allocate attorney fees as an expense of resolving certain commercial disputes through the courts; it is not to allocate fees for resolving appellate disputes over fee amounts. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

By not specifically invoking subdivision (3) of this section, the prevailing party in a purchase agreement dispute, a commercial dispute, never gave the district court a fair opportunity to decide whether the attorney fees could be awarded under an Idaho fee-shifting statute, in a case governed by New York law. Van Nelson Corp. v. Westwood Mall Assocs., 126 Idaho 401, 884 P.2d 414 (1994).

Commercial Transaction.

An action for declaratory judgment, and a counter-claim for specific performance and damages, based on allegations of breach of contract constituted a commercial transaction under subsection (3) of this section, even though the court held there was no contract. Clement v. Franklin Inv. Group, Ltd., 689 F. Supp. 1575 (D. Idaho 1988).

Where landowners, whose irrigation water crossed certain property, filed a complaint against defendant seeking an adjudication of the respective parties’ water rights and a permanent restraining order prohibiting defendant from interfering with their diversion and use of water, where defendant was not the owner of the property in question, and where, as a result of this a temporary restraining order was vacated and the action brought against defendant was dismissed, such a legal action did not pertain to a commercial transaction as described under subsection (3) of this section and defendant was not entitled to fees thereunder. Durrant v. Christensen, 117 Idaho 70, 785 P.2d 634 (1990).

An award of attorney’s fees is not warranted every time a commercial transaction is remotely connected with a case. Rather, the test is whether the commercial transaction comprises the gravamen of the lawsuit. Attorney’s fees are not appropriate under subsection (3) of this section unless the commercial transaction is integral to the claim and constitutes the basis upon which the party is attempting to recover. Brower v. E.I. DuPont De Nemours & Co., 117 Idaho 780, 792 P.2d 345 (1990).

Civil Action.

Commercial Disputes.

Commercial Transaction.

Even though an action arose in 1985, where the action was filed on February 27, 1987, the 1986 amendment to subsection (3) of this section providing for recovery for prevailing party seeking recovery on a commercial transaction would be applicable. Ramco v. H-K Contractors, 118 Idaho 108, 794 P.2d 1381 (1990). Where the resolution sought by plaintiffs involved a dispute arising from a commercial transaction that had not taken place, there was no commercial transaction between the parties that could be the basis for an attorney fee award under this section. Idaho Branch, Inc. v. Nampa Hwy. Dist. No. 1, 123 Idaho 237, 846 P.2d 239 (Ct. App. 1993).

It is well settled that one who successfully defends against the enforcement of a contract, when the gravamen of the transaction is a commercial transaction, nevertheless may be entitled to attorney fees even though the court has ruled that no contract exists or it is unenforceable. Lawrence v. Jones, 124 Idaho 748, 864 P.2d 194 (Ct. App. 1993).

An action against the Idaho public utilities commission by interstate carriers challenging registration renewal fee did not fall within the meaning of “commercial transaction” as used in subsection (3) of this section. Owner-Operator Indep. Drivers Ass’n v. Idaho Pub. Utils. Comm’n, 125 Idaho 401, 871 P.2d 818 (1994), modified on other grounds, Roe v. Harris, 128 Idaho 569, 917 P.2d 403 (1996).

In action to recover on loan where plaintiff prevailed only on the equitable ground of unjust enrichment, the ground of “commercial transaction” between plaintiff and defendant, to which second defendant was not directly a party, did not serve as the basis for recovery because it could not be said that the case revolved around a commercial transaction sufficient to implicate the terms of subsection (3). Hausam v. Schnabl, 126 Idaho 569, 887 P.2d 1076 (Ct. App. 1994).

Nature of suit by party claiming that it was a third party beneficiary of a contract between contractor and subcontractor’s successor was construed by the court of appeals to be sufficiently based on a commercial transaction to warrant an award of fees under this section. Cannon Bldrs., Inc. v. Rice, 126 Idaho 616, 888 P.2d 790 (Ct. App. 1995).

The principle that where a party alleges the existence of a contractual relationship of a type embraced by subsection (3) of this section, that claim triggers the application of this section and a prevailing party may recover fees even though no liability under a contract was established, could be applied in the instant case, where the action was one to recover in a commercial transaction, regardless of the proof that the commercial transaction alleged, did, in fact occur. Magic Lantern Prods., Inc. v. Dolsot, 126 Idaho 805, 892 P.2d 480 (1995).

Because the case, which arose from a failed venture to develop a Christian retreat, did not involve a contract for the sale of goods or services, that part of this section was inapplicable, and that as to whether or not a commercial transaction was apparent in the instant case, the proper inquiry was whether or not the commercial transaction composed the gravamen of the lawsuit and was integral to the claim and constituted the basis upon which the party was attempting to recover; as the district court found the gravamen of the instant case was fraud, refusing to award fees was proper. Spence v. Howell, 126 Idaho 763, 890 P.2d 714 (1995).

A transaction for commercial farming operations was found to be a “commercial transaction” under this section, and the lease between parties allowed defendants to utilize the property for the purpose of operating a commercial cattle ranch; therefore, the lease was a commercial transaction, and the defendants were entitled to reasonable attorney’s fees. Herrick v. Leuzinger, 127 Idaho 293, 900 P.2d 201 (Ct. App. 1995).

An accounting, a winding up of the partnership affairs, and a distribution of the partnership assets did not constitute a “commercial transaction” under this section. Kelly v. Silverwood Estates, 127 Idaho 624, 903 P.2d 1321 (1995). An award of attorney fees is not warranted every time a commercial transaction is remotely connected with a case; rather, the test is whether the commercial transaction comprises the gravamen of the lawsuit, as attorney fees are not appropriate under this section unless the commercial transaction is integral to the claim and constitutes the basis upon which the party is attempting to recover. Kelly v. Silverwood Estates, 127 Idaho 624, 903 P.2d 1321 (1995).

Because the gravamen of action was a “commercial transaction,” insurer was entitled to an award of attorney fees and fact that insurer brought the action rather than waiting to be sued had no bearing on issue. Continental Cas. Co. v. Brady, 127 Idaho 830, 907 P.2d 807 (1995).

Where a party’s claim is based on the statutory penalties provided in former § 30-1-52 for the corporation’s failure to provide access to the corporate records, the gravamen of the suit is the statutory provision and not a commercial transaction, thus attorney fees should be denied under subdivision (3) of this section. Gumprecht v. Doyle, 128 Idaho 242, 912 P.2d 610 (1995).

In action where the gravamen was plaintiff’s enforcement of option to purchase commercial farming property, the basis of the action was a commercial transaction and, therefore, prevailing party was entitled to attorney’s fees under subsection (3) of this section. Dennett v. Kuenzli, 130 Idaho 21, 936 P.2d 219 (Ct. App. 1997).

Given that the breach of contract claim was redressed in the arbitration proceedings, the court properly found that the plaintiff’s complaint did not deal with a “commercial transaction,” as contemplated by this section. Storrer v. Kier Constr. Corp., 129 Idaho 745, 932 P.2d 373 (Ct. App. 1997).

The test for the application of allowing the prevailing party in a civil action to recover on “any commercial transaction” is whether the commercial transaction comprises the gravamen of the lawsuit; that is, whether the commercial transaction is integral to the claim and constitutes the basis upon which the party is attempting to recover. Dennett v. Kuenzli, 130 Idaho 21, 936 P.2d 219 (Ct. App. 1997); Clayson v. Zebe, 153 Idaho 228, 280 P.3d 731 (2012).

This section provides for attorney fees incurred if the suit involved a commercial transaction; the district court considered the stipulation of the parties to be a commercial contract and the action for recovery of damages for the negligent performance of the contract to be a “commercial transaction”. Powell v. Sellers, 130 Idaho 122, 937 P.2d 434 (Ct. App. 1997).

Where, in a case involving a commercial transaction, the supreme court reversed a jury verdict as to counts I and II, relieving defendant of liability, the question of attorney fees was a subsidiary issue fairly comprised therein and on remand the district court had the jurisdiction to consider whether defendant was the prevailing party and to make an award of costs and attorney fees. J.R. Simplot Co. v. Chemetics Int’l, Inc., 130 Idaho 255, 939 P.2d 574 (1997).

In case involving a commercial transaction, since subsection (3) of this section requires that a court hearing any action arising out of a commercial transaction shall award attorney fees to the prevailing party and such subsection has been interpreted to mandate the award of attorney fees on appeal as well as at trial, defendant, as the prevailing party on appeal, was entitled to be awarded costs and attorney fees. J.R. Simplot Co. v. Chemetics Int’l, Inc., 130 Idaho 255, 939 P.2d 574 (1997).

The present action was primarily a property dispute to determine ownership and easement rights and did not fall within the meaning of a commercial transaction under subsection (3) of this section; therefore attorney fees were properly denied. Sun Valley Hot Springs Ranch, Inc. v. Kelsey, 131 Idaho 657, 962 P.2d 1041 (1998).

A joint venture for the purpose of maximizing the value of certain real estate is a “commercial transaction” within the meaning of this section. Tri State Land Co. v. Roberts, 131 Idaho 835, 965 P.2d 195 (Ct. App. 1998). An award of attorney fees is not warranted every time a commercial transaction is remotely connected with a case; rather, the test is whether the commercial transaction comprises the gravamen of the lawsuit, as attorney fees are not appropriate under this section unless the commercial transaction is integral to the claim and constitutes the basis upon which the party is attempting to recover. Kelly v. Silverwood Estates, 127 Idaho 624, 903 P.2d 1321 (1995).

A joint venture for the purpose of maximizing the value of certain real estate is a “commercial transaction” within the meaning of this section. Tri State Land Co. v. Roberts, 131 Idaho 835, 965 P.2d 195 (Ct. App. 1998). An action by an unsuccessful bidder on a city contract is not a “commercial transaction” under this section, as the gravamen of the action was to contest a bid by the city and there was no contract between the plaintiff and the city. Andrea v. City of Coeur d’Alene, 132 Idaho 188, 968 P.2d 1097 (Ct. App. 1998).

Attorney fees are mandatory for actions to recover on a contract relating to the purchase of services or any commercial transaction. Tentinger v. McPheters, 132 Idaho 620, 977 P.2d 234 (Ct. App. 1999).

Where an underlying action was one to recover on an alleged exclusivity contract, the action involved a commercial transaction and this section was triggered. General Auto Parts Co. v. Genuine Parts Co., 132 Idaho 849, 979 P.2d 1207 (1999).

The fact that a commercial transaction is at an end does not preclude that transaction from being integral to a claim, and where plaintiff was seeking damages for defendant’s alleged breach of an agreement modifying the terms of a commercial loan, both the original loan and the alleged oral agreement were commercial transactions within the statutory definition in subsection (3) of this section. Rule Sales & Serv., Inc. v. U.S. Bank Nat’l Ass’n, 133 Idaho 669, 991 P.2d 857 (Ct. App. 1999).

Because the action was primarily a dispute over property ownership and easement rights, it did not fall within the meaning of a commercial transaction as defined in subsection (3) of this section and as applied by the courts. Baxter v. Craney, 135 Idaho 166, 16 P.3d 263 (2000).

This section did not apply where the action was primarily a dispute over whether the properties in question were conveyed in fee simple or as easements, because the question did not fall within the meaning of a commercial transaction as defined in subsection (3). C & G, Inc. v. Rule, 135 Idaho 763, 25 P.3d 76 (2001).

Test for determining whether subsection (3) of this section authorizes an award of attorney fees is whether the commercial transaction comprises the gravamen of the lawsuit. This requires that there be a commercial transaction that is integral to the claim, and that the commercial transaction is the basis upon which recovery is sought. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Attorney fees are not authorized under subsection (3) of this section, where a tort claim is involved, even if the claim is intimately associated with a commercial transaction. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

In a tort action, a painter and attorney were not entitled to attorney fees under subsection (3) of this section, despite the fact that the underlying action was based on a commercial transaction; that statute does not apply to a claim for attorney fees when the action involves a tort, even if the underlying action was a commercial transaction. McPheters v. Maile, 138 Idaho 391, 64 P.3d 317, cert. denied, 540 U.S. 888, 124 S. Ct. 269, 157 L. Ed. 2d 159 (2003).

Attorney fees were awardable to the witness under subsection (3) of this section for successfully defending an action to recover on a note; the appellate court would not consider whether the district court erred in holding that this was an action on a commercial transaction because, even if that was in error, the credit had not challenged the district court’s alternative holding that this was an action to recover on a note. Bream v. Benscoter, 139 Idaho 364, 79 P.3d 723 (2003).

Attorney’s fees are not appropriate under subsection (3) of this section unless the commercial transaction is integral to the claim and constitutes the basis upon which the party is attempting to recover. It is of no consequence that the underlying contractual obligation is unenforceable. A prevailing party may recover attorney fees even though no liability under a contract was established or where no contract was, in fact, ever formed. Garner v. Bartschi, 139 Idaho 430, 80 P.3d 1031 (2003). An action by an unsuccessful bidder on a city contract is not a “commercial transaction” under this section, as the gravamen of the action was to contest a bid by the city and there was no contract between the plaintiff and the city. Andrea v. City of Coeur d’Alene, 132 Idaho 188, 968 P.2d 1097 (Ct. App. 1998).

Attorney’s fees are not appropriate under subsection (3) of this section unless the commercial transaction is integral to the claim and constitutes the basis upon which the party is attempting to recover. It is of no consequence that the underlying contractual obligation is unenforceable. A prevailing party may recover attorney fees even though no liability under a contract was established or where no contract was, in fact, ever formed. Garner v. Bartschi, 139 Idaho 430, 80 P.3d 1031 (2003). Where a trial court on remand was instructed to determine whether a broker forfeited any or all of his development commission because he was found under a general verdict to have breached a real estate agreement with landowners, on remand the broker was properly awarded attorney fees as to his claim to recover his commission because such was a claim to recover in a commercial transaction as contemplated in subsection (3) of this section and the broker prevailed on that claim. Rockefeller v. Grabow, 139 Idaho 538, 82 P.3d 450 (2003).

Dismissal of the physician’s action against the hospital seeking to force the hospital to grant him medical staff privileges was proper where the physician was not denied due process and the tribunal was impartial; further, an award of attorney fees under subsection (3) of this section was also proper because the physician’s allegation of a contract between him and the hospital that was for other than personal or household purposes constituted the allegation of a commercial transaction. Miller v. St. Alphonsus Reg’l Med. Ctr., Inc., 139 Idaho 825, 87 P.3d 934 (2004).

Grant of summary judgment in favor of the company was proper where the company did not enter into any agreement or make any representation to pay the wife her community property interest in the husband’s shares in the event of divorce; further, the district court did not err in denying the company an award of attorney fees pursuant to subsection (3) of this section because the case did not implicate a commercial transaction. Tolley v. THI Co., 140 Idaho 253, 92 P.3d 503 (2004).

Prospective buyer was not entitled to an award of attorney fees under subsection (3) of this section because the complaint did not allege any commercial transaction between him and the developer, it simply alleged that by his conduct the buyer interfered with a commercial transaction between the developer and the landowners. With respect to the landowners, the complaint did allege a commercial transaction, and because the landowners’ counterclaim still remained to be resolved, the district court had not yet determined whether they were prevailing parties in the lawsuit, such that if the district court determined that they were the prevailing parties once their counterclaim was resolved, it may award them attorney fees. Lexington Heights Dev., LLC v. Crandlemire, 140 Idaho 276, 92 P.3d 526 (2004).

Attorney fees were properly awarded only against those defendants who were engaged in a commercial transaction with plaintiff; such award applied to both the trial and appellate attorney fees. Gunter v. Murphy’s Lounge, L.L.C., 141 Idaho 16, 105 P.3d 676 (2005).

Attorney fees were properly awarded under this section in an action to enforce a restrictive employment covenant; the employment contract was a commercial transaction pursuant to subsection (3), and the fact that this was a declaratory judgment action did not preclude awarding attorney fees. Freiburger v. J-U-B Eng’rs, Inc., 141 Idaho 415, 111 P.3d 100 (2005).

Homebuilder was not entitled to an award of attorney fees where the complaint did not plead damages of $25,000 [now $35,000] or less, but sought damages trebled in such amount as shown by the evidence but not less than $15,000; pleading damages in an amount that was not less than a specified sum was not the same as pleading damages in the amount of $25,000 [now $35,000] or less. Gillespie v. Mt. Park Estates, L.L.C., 142 Idaho 671, 132 P.3d 428 (2006).

Subsection (3) of this section did not provide a basis for awarding attorney fees in a case involving the validity and location of an easement where an agreement giving rise to the easement was not a “commercial transaction” and was not an integral aspect of the dispute nor the basis upon which recovery was sought. Bedke v. Pickett Ranch & Sheep Co., 143 Idaho 36, 137 P.3d 423 (2006). Customer was entitled to a fee award with respect to his fraud claim, as he was seeking recovery of damages sustained as a result of the commercial transaction involved in the case; a transaction involving the sale of 26,500 pairs of jeans was not made for personal or household purposes, but was a business or commercial transaction, as the customer obviously intended to market the jeans rather than wear them. Blimka v. My Web Wholesaler, LLC., 143 Idaho 723, 152 P.3d 594 (2007).

In a case involving a dispute over an oral contract for the sale of land between two tenants in common, attorney fees were awarded to a seller because the transaction was commercial in nature, since the property was acquired in part for logging. Watson v. Watson, 144 Idaho 214, 159 P.3d 851 (2007).

In an action to quiet title, neither party could receive attorney’s fees, because “any commercial transaction,” for the purposes of subsection (3), does not include real estate transactions or issues involving the ownership of property. Anderson v. Rex Hayes Family Trust, 145 Idaho 741, 185 P.3d 253 (2008).

The critical test in determining whether a civil action is for a commercial transaction is whether the commercial transaction comprises the gravamen of the lawsuit; it must be integral to the claim and constitute the basis upon which the party is attempting to recover. Johannsen v. Utterbeck, 146 Idaho 423, 196 P.3d 341 (2008).

Where a party alleges the existence of a contract that would be a commercial transaction under subsection (3), that claim triggers the application of this section, and the prevailing party may recover attorney fees, even if no liability under the contract is established. Peterson v. Shore, 146 Idaho 476, 197 P.3d 789 (Ct. App. 2008).

The commercial transaction ground in subsection (3) neither prohibits a fee award for a commercial transaction that involves tortious conduct, nor does it require that there be a contract. Kilborn v. Haun (In re Haun), 396 B.R. 522 (Bankr. D. Idaho 2008).

Subsection (3) does not require that there be a contract between the parties before this section is applied; subsection (3) only requires that there be a commercial transaction. Univ. of Idaho Found., Inc. v. Civic Partners, Inc. (In re Univ. Place/Idaho Water Ctr. Project), 146 Idaho 527, 199 P.3d 102 (2008); Farrell v. Whiteman, — Idaho —, 268 P.3d 458 (2012).

Case was brought by the mortgage company to eject the owners from their residence, and the owners counterclaim sought to contest the foreclosure sale of their residence; this was not an action to recover in a commercial transaction and the company could not recover attorney fees on appeal pursuant to this section, even if they were the prevailing party on appeal. PHH Mortg. Servs. Corp. v. Perreira, 146 Idaho 631, 200 P.3d 1180 (2009).

Respondents, who prevailed, were entitled to an award of attorney fees on appeal; the appeal arose from a dispute over the parties’ respective rights upon termination of a joint venture, which fell under the definition of a “commercial transaction.” Vreeken v. Lockwood Eng’g, B.V., 148 Idaho 89, 218 P.3d 1150 (2009).

Although§ 19-2518 authorizes a collector to pursue a money judgment, for a delinquent fine, against a defendant/debtor as though it were in a civil action, the basis for that action is a criminal judgment that resulted from a criminal proceeding, not a commercial transaction; thus, subsection (3) of this section is inapplicable. Collection Bureau, Inc. v. Dorsey, 150 Idaho 695, 249 P.3d 1150 (2011). In an adversary proceeding in a bankruptcy case, a creditor was not entitled to recover attorneys’ fees from another creditor under subsection (3). The parties had no relationship before the adversary proceeding; the fact that the debtors did business with both parties was insufficient to establish the existence of the type of commercial transaction warranting attorneys’ fees under the statute. J.D. Heiskell Holdings, L.L.C. v. Gerratt (In re Gerratt), 2011 Bankr. LEXIS 1690 (Bankr. D. Idaho May 9, 2011).

Bailment, whether express or implied, constitutes a commercial transaction which serves as the basis upon which a party may recover attorneys’ fees. Bridge Tower Dental, P.A. v. Meridian Computer Ctr., Inc,, 152 Idaho 569, 272 P.3d 541 (2012).

Hiring an attorney to negotiate the end of a marriage is a personal transaction, not a commercial transaction. McCormick Int’l USA, Inc. v. Shore, 152 Idaho 920, 277 P.3d 367 (2012).

The prevailing party is entitled to an award of attorney fees under subsection (3) where the action is one to recover in a commercial transaction, regardless of proof that the commercial transaction alleged did, in fact, occur. O’Shea v. High Mark Dev., LLC, 153 Idaho 119, 280 P.3d 146 (2012).

Following the reversal of a decision enforcing a German money judgment against the defendant, based on a promissory note, the defendant was not entitled to an award of attorney fees, as the proceeding was one seeking to grant recognition of the German judgment and was not an action based on a commercial transaction. Markin v. Grohmann, 153 Idaho 223, 280 P.3d 726 (2012).

District court properly denied a printing business costs and attorney’s fees pursuant to subsection (3), where testimony showed that there were no contracts between the business and the utility company that supplied septic services to the industrial park where the business leased space, and the third party beneficiary agreement upon which the business’s claims were based was not a commercial transaction between the parties, Printcraft Press, Inc. v. Sunnyside Park Utils., Inc., 153 Idaho 440, 283 P.3d 757 (2012).

Borrower was denied appellate attorney’s fees under this section, because a home loan modification is not a commercial transaction. Fannie Mae v. Hafer, 158 Idaho 694, 351 P.3d 622 (2015).

In a negligence case, an engineering company was able to recover attorney fees after prevailing on appeal, because the services provided were relating to a commercial transaction, not personal or household services. Am. Bank v. BRN Dev., Inc., 159 Idaho 201, 358 P.3d 762 (2015).

District court properly awarded attorney fees to a contractor as the prevailing party in a declaratory judgment action filed by the Idaho transportation department to determine rights of the parties with respect to a contract for highway construction services. The action qualified as a dispute involving a commercial transaction where it was based upon the enforceability of a covenant contained in a highway construction contract about resorting to arbitration without first exhausting a review process specified in the contractual provisions; the contractor was also entitled to an award of attorney fees and costs on appeal under the same section given the affirmation of the district court’s award Idaho Transp. Dep’t v. Ascorp, Inc., 159 Idaho 138, 357 P.3d 863 (2015).

District court properly awarded a purchaser attorneys fees, because a commercial transaction was the gravamen of the sellers’ cause of action. Without the commercial transaction to sell timber, a representative for the purchaser would have never visited the sellers’ property, and the sellers’ claim that he voluntarily assumed a duty to identify property lines would have never arisen. Stevens v. Eyer, 161 Idaho 407, 387 P.3d 75 (2016). In an adversary proceeding in a bankruptcy case, a creditor was not entitled to recover attorneys’ fees from another creditor under subsection (3). The parties had no relationship before the adversary proceeding; the fact that the debtors did business with both parties was insufficient to establish the existence of the type of commercial transaction warranting attorneys’ fees under the statute. J.D. Heiskell Holdings, L.L.C. v. Gerratt (In re Gerratt), 2011 Bankr. LEXIS 1690 (Bankr. D. Idaho May 9, 2011).

Hiring an attorney to negotiate the end of a marriage is a personal transaction, not a commercial transaction. McCormick Int’l USA, Inc. v. Shore, 152 Idaho 920, 277 P.3d 367 (2012).

Borrower was denied appellate attorney’s fees under this section, because a home loan modification is not a commercial transaction. Fannie Mae v. Hafer, 158 Idaho 694, 351 P.3d 622 (2015).

District court properly awarded a purchaser attorneys fees, because a commercial transaction was the gravamen of the sellers’ cause of action. Without the commercial transaction to sell timber, a representative for the purchaser would have never visited the sellers’ property, and the sellers’ claim that he voluntarily assumed a duty to identify property lines would have never arisen. Stevens v. Eyer, 161 Idaho 407, 387 P.3d 75 (2016). Title company unsuccessfully sued by a bank for negligence and breach of contract in the distribution of proceeds of a non-judicial foreclosure could not recover appellate attorney’s fees against the bank based on a commercial transaction because the bank was not a party to the underlying commercial transaction. First Bank of Lincoln v. Land Title of Nez Perce Cty., Inc., — Idaho —, — P.3d —, 2019 Ida. LEXIS 206 (Nov. 18, 2019).

In a suit based on a title company’s failure to distribute proceeds of a non-judicial foreclosure of a trust deed on a bank’s debtor’s property to the bank, involving parties from multiple states, Idaho law applied to an award of appellate attorney’s fees because (1) subsection (3) of§ 12-120 was substantive law, and (2) the parties who originally selected the title company as an escrow agent understood Idaho law would apply. First Bank of Lincoln v. Land Title of Nez Perce Cty., Inc., — Idaho —, — P.3d —, 2019 Ida. LEXIS 206 (Nov. 18, 2019).

Competitive Bidding.

Where unsuccessful bidder was not seeking relief upon the basis of a contract, but instead upon the basis of a competitive bidding statute, school district and successful bidder were not entitled to attorney fees on appeal pursuant to this section. Scott v. Buhl Joint Sch. Dist. No. 412, 123 Idaho 779, 852 P.2d 1376 (1993).

Constitutionality.

The terms of subsection (3) of this section are not unconstitutionally overbroad because it applies to a clearly discernible class of transactions. Clement v. Franklin Inv. Group, Ltd., 689 F. Supp. 1575 (D. Idaho 1988).

Construction With Other Law.

National Motor Service Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963), which held, in part, that attorney fees are not recoverable in a statutory claim and delivery action, was of no value in determining whether claim and delivery action in instant case came within the provisions of this section because this section was enacted since National Motor Service was decided. Building Concepts, Ltd. v. Pickering, 114 Idaho 640, 759 P.2d 931 (Ct. App. 1988).

Contingent Fee Basis.

District court was within its discretion to award attorney fees in an amount equivalent to the prevailing party’s contingent fee arrangement. Lake v. Purnell, 143 Idaho 818, 153 P.3d 1164 (2007).

Contract.

A dealer’s suit under§ 28-23-102 to recover the value of parts returned, upon termination of the dealership agreement, is an action to recover on a “contract” relating to the sale of goods within the meaning of subsection (2) (now (3)) of this section. MH & H Implement, Inc. v. Massey-Ferguson, Inc., 108 Idaho 879, 702 P.2d 917 (Ct. App. 1985).

Defendant’s action relating to the purchase or sale of services under this section was clearly one to recover on a contract and plaintiff, in successfully defeating defendant’s claim, was entitled to attorney fees pursuant to this section, even though liability under the contract was not established. Property Mgt. W., Inc. v. Hunt, 126 Idaho 897, 894 P.2d 130 (1995). Attorney fees were not awarded to borrowers in a breach of contract action filed against a lender and a broker based on the failure to abide by a lock-in agreement regarding a certain interest rate, because the transaction was not commercial in nature: it was clearly made for personal or household purposes. Bajrektarevic v. Lighthouse Home Loans, Inc., 143 Idaho 890, 155 P.3d 691 (2007).

— Action.

For attorney fees to be recoverable under subsection (2) (now (3)) of this section the action must be one to recover on a contract relating to the purchase or sale of goods, wares or merchandise. It is not enough that the transaction between the parties relate to the purchase or sale of goods; the action itself must be one to recover on the contract. Chenery v. Agri-Lines Corp., 106 Idaho 687, 682 P.2d 640 (Ct. App. 1984).

District court was correct by not awarding defendant attorney fees; to recover attorney fees, action must be one to recover on the contract and not merely an action arising from a transaction relating to the purchase or sale of goods, and trial court twice ruled that there was no contract between defendant as manufacturer of a product and the plaintiffs as purchasers of the product from retailer. Day v. CIBA Geigy Corp., 115 Idaho 1015, 772 P.2d 222 (1989).

Not all contracts are within the scope of the statute. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

In suit by architects against state building authority for breach of contract that provided for architectural and certain other services, subsection (3) of this section clearly could be applied to award attorney fees against the authority because such action involved contract for services as well as a commercial transaction; further the fact that the provisions of subsection (3) of this section regarding contracts relating to services were not added to the section until its 1986 amendment and the definition of party did not include the state or political subdivisions thereof until the 1987 amendment of the section. Since the suit was filed after the passage of either of these amendments, as the proper function is upon the time of the filing, not the time the cause of action arose. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992).

Since the state building authority is a public instrumentality and not an agency within the meaning of§ 12-117, subsection (3) of this section and not§ 12-117, is the applicable section for the awarding of attorney fees in an action brought by architects against authority for architectural services performed under contract. Since the action was not brought, pursued or defended frivolously, unreasonably or without foundation, attorney fees cannot be awarded under§ 12-121. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992).

Where a party alleges the existence of a contractual relationship of a type embraced by subsection (3) of this section, that claim triggers the application of the statute and a prevailing party may recover fees even though no liability under a contract was established. Farmers Nat’l Bank v. Shirey, 126 Idaho 63, 878 P.2d 762 (1994); Johnson v. McPhee, 147 Idaho 455, 210 P.3d 563 (Ct. App. 2009).

With respect to subsection (3) of this section, it is not enough that the relationship between the parties relates to the purchase or sale of goods or services, the action itself must be one to recover on the contract. Nelson v. Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004).

— Breach.

Where, in a claim and delivery action brought by the manufacturer to regain possession of a fabricated steel building it had shipped to the buyer, the acts of the buyer in taking possession of the merchandise without paying for it were in breach of the sales contract, and the language used in the complaint evidenced the manufacturer’s intent to recover possession of the shipment as a remedy to the buyer’s breach of the contract, the district court’s award of attorney fees under subsection (2) (now (3)) of this section was proper because the action was for breach of contract, not solely for claim and delivery. Building Concepts, Ltd. v. Pickering, 114 Idaho 640, 759 P.2d 931 (Ct. App. 1988). Attorney fees were not awarded to borrowers in a breach of contract action filed against a lender and a broker based on the failure to abide by a lock-in agreement regarding a certain interest rate, because the transaction was not commercial in nature: it was clearly made for personal or household purposes. Bajrektarevic v. Lighthouse Home Loans, Inc., 143 Idaho 890, 155 P.3d 691 (2007).

— Action.

Not all contracts are within the scope of the statute. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

— Breach.

Where, in a claim and delivery action brought by the manufacturer to regain possession of a fabricated steel building it had shipped to the buyer, the acts of the buyer in taking possession of the merchandise without paying for it were in breach of the sales contract, and the language used in the complaint evidenced the manufacturer’s intent to recover possession of the shipment as a remedy to the buyer’s breach of the contract, the district court’s award of attorney fees under subsection (2) (now (3)) of this section was proper because the action was for breach of contract, not solely for claim and delivery. Building Concepts, Ltd. v. Pickering, 114 Idaho 640, 759 P.2d 931 (Ct. App. 1988). Dairyman’s action against farmer for nondelivery of hay was based entirely upon the existence of a contract. Although court held no contract existed, the failure to show a contract did not insulate dairyman from having to pay a reasonable award of attorney fees to the prevailing party. Because farmer prevailed in an action brought to recover damages for the breach of contract for the sale of hay, he was entitled to a reasonable award for attorney fees incurred in bringing the appeal. Hilt v. Draper, 122 Idaho 612, 836 P.2d 558 (Ct. App. 1992).

Where a former employee unsuccessfully appealed a summary judgment in favor of a university in the employee’s action for breach of contract, where it was determined that no contract existed, the university was entitled to attorney fees per subsection (3) of this section. Huyett v. Idaho State Univ., 140 Idaho 904, 104 P.3d 946 (2004).

— Of Sale.

Although attorney fees, under subsection (2) (now (3)) of this section, could not be awarded in a claim and delivery action to recover a vehicle or its fair market value, where the defendant’s counterclaim asserted a right under a contract of sale, attorney fees could be awarded to the defendant on his counterclaim. McKinney v. Kirkness, 107 Idaho 740, 692 P.2d 384 (Ct. App. 1984).

Contract to Purchase Real Property.

Litigation regarding the existence of a contract to purchase real property for the purpose of a housing development falls under subsection (3) of this section; thus, as the prevailing party in such a lawsuit, a property owner may be awarded attorney fees. Heritage Excavation, Inc. v. Briscoe, 141 Idaho 40, 105 P.3d 700 (Ct. App. 2005).

Contractual Fee Provision.

The general rule that attorney’s fees cannot be recovered in an action unless authorized by statute or by express agreement of the parties precludes a court from implying a contract term allowing attorney fees to a party to the contract. Barnes v. Hinton, 103 Idaho 619, 651 P.2d 553 (Ct. App. 1982).

In an action for breach of a real estate listing contract, the court of appeals declined to convert an express provision for award of attorney fees to one party to an implied provision for an award of attorney fees to either party since Idaho courts are not free to imply a reciprocal meaning to attorney fees provisions in contract. Barnes v. Hinton, 103 Idaho 619, 651 P.2d 553 (Ct. App. 1982).

The terms of a valid contract between the parties may provide for the award of attorney’s fees and costs, even where the trial court has determined that the requesting party had not prevailed. Wash. Fed. v. Hulsey, 162 Idaho 742, 405 P.3d 1 (2017).

Counter-Claimants.

Where defendant’s counterclaim was an action on an open account for sums owed him for feeding and caring for plaintiff’s cattle, as prevailing party on that counterclaim, the defendant was entitled to attorney fees as a matter of statutory right and not merely in the court’s discretion. Torix v. Allred, 100 Idaho 905, 606 P.2d 1334 (1980).

Criminal Cases.

A successful criminal appellant cannot recover attorney fees under this section and§ 12-121 which apply to only civil actions or under Idaho App. R. 40 and 41, absent an explicit statutory authorization. State v. Roll, 118 Idaho 936, 801 P.2d 1287 (Ct. App. 1990).

Cross-Claim.

Attorney fees were awarded to prevailing codefendant in cross-claim where the original cause of action related to the purchase of grain and was an effort to recover on a “contract relating to the purchase or sale of goods.” Frieberger v. American Triticale, Inc., 120 Idaho 239, 815 P.2d 437 (1991).

Declaratory Judgment.

If defendant had initially filed a suit to collect on the promissory note, defendant would have been entitled to attorney fees pursuant to subsection (3) of this section, and defendant should not be denied those attorney fees simply because the plaintiffs filed a declaratory judgment action to reduce their liability on the note. Zener v. Velde, 135 Idaho 352, 17 P.3d 296 (Ct. App. 2000).

Demand for Payment.

Although a secured creditor was the prevailing party on appeal, making it eligible for fees, the creditor did not fulfill the necessary statutory requirements to obtain a fee award because it did not make a demand for payment between the time when collateral was sold and the time when the creditor commenced its suit. Keybank Nat’l Ass’n v. PAL I, LLC, 155 Idaho 287, 311 P.3d 299 (2013).

Denial of Award Proper.

Where the gravamen of the plaintiffs’ lawsuit did not involve a commercial transaction but rather the issue of title to logs and real property, the district judge properly denied attorney fees. Bingham v. Montane Resource Assocs., 133 Idaho 420, 987 P.2d 1035 (1999).

Where this case involved an easement, there was no basis for an award of fees under the statute, and the district judge correctly denied the request. Brown v. Miller, 140 Idaho 439, 95 P.3d 57 (2004).

Attorney fees were not warranted because the landowners’ written demand exceeded $25,000 [now $35,000] and, under subsection (1) of this section, in order to recover attorney fees, a written demand for the payment of the claim had to have been made at least 10 days before the commencement of the action, and a plaintiff had to plead under $25,000 [now $35,000]. Anderson v. Goodliffe, 140 Idaho 446, 95 P.3d 64 (2004).

Crop dusting business was not awarded attorney fees on its claims against the corporation because tortious interference with contract and economic prospective advantage were torts and not actions to recover on a contract. Bybee v. Isaac, 145 Idaho 251, 178 P.3d 616 (2008).

District court did not abuse its discretion in determining that there was no prevailing party, because the claimant did not prevail on the issue of dissociation, but he did prevail regarding the cost of the backhoe, and the partner did not prevail on his cross-appeal. Costa v. Borges, 145 Idaho 353, 179 P.3d 316 (2008). Where defendant’s counterclaim was an action on an open account for sums owed him for feeding and caring for plaintiff’s cattle, as prevailing party on that counterclaim, the defendant was entitled to attorney fees as a matter of statutory right and not merely in the court’s discretion. Torix v. Allred, 100 Idaho 905, 606 P.2d 1334 (1980).

Criminal Cases.

Cross-Claim.

Declaratory Judgment.

Demand for Payment.

Denial of Award Proper.

District court did not abuse its discretion in determining that there was no prevailing party, because the claimant did not prevail on the issue of dissociation, but he did prevail regarding the cost of the backhoe, and the partner did not prevail on his cross-appeal. Costa v. Borges, 145 Idaho 353, 179 P.3d 316 (2008). Trust beneficiaries claimed that they were entitled to an award of attorney fees under an earnest money agreement; however, the trial court properly determined that the beneficiaries could not receive attorney fees because the earnest money agreement was between the trust and a real estate broker and his wife, and, therefore, the beneficiaries were not parties to the transaction. Taylor v. Maile, 146 Idaho 705, 201 P.3d 1282 (2009).

Attorney fees were properly denied where the client’s complaint sought damages for breach of the settlement agreement wherein the parties agreed to settle for $37,500. The complaint did not state exactly how much money the client sought as damages against the attorney, and while it could have been inferred that the attorney’s share of the settlement agreement was in fact less than $25,000 [now $35,000], such an inference did not comply with this section. Lawrence v. Hutchinson, 146 Idaho 892, 204 P.3d 532 (Ct. App. 2009).

District court did not abuse its discretion when it found that there was no prevailing party where the defendant had successfully defended some claims, but was unsuccessful on other claims, and the claims and defenses in the case were so intermixed that it was virtually impossible to attempt to reasonably apportion fees. Green River Ranches, LLC v. Silva Land Co., LLC, 162 Idaho 184, 395 P.3d 804 (2017).

Discretion of Court.

A district court’s determination when awarding attorney’s fees that an action was frivolously defended will not be overturned absent an abuse of discretion; however, the district court must consider all relevant factors in exercising its sound discretion. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct. App. 1984).

In determining the amount of attorney fees to award under this section, a district court is vested with discretion. Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

Although the district court was vested with the discretion to determine the amount of attorney fees to award for the appeal from the magistrate’s division, the district court, sitting in its appellate capacity, was not the proper forum for determination of the amount of an award of attorney fees incurred during a trial before the magistrate, rather the magistrate conducting the trial should have heard any objection and argument in relation to attorney fees for the trial. Bettinger v. Idaho Auto Auction, Inc., 128 Idaho 327, 912 P.2d 695 (Ct. App. 1996).

Where district court concluded that gravamen of the law suit was a commercial transaction after determining that the nature of the underlying action was in contract and considering fact that award of attorney fees was a discretionary act, court acted within boundaries of its discretion in awarding attorney fees to architect. Bott v. Idaho State Bldg. Auth., 128 Idaho 580, 917 P.2d 737 (1996).

Where court, in awarding attorney fees, considered all the factors in Idaho R. Civ. P. 54(e)(3) in arriving at the amount of attorney fees and concluded that the case was not complex, that the recovery was relatively small, and that no novel questions were involved, the court did not abuse its discretion in its award of attorney fees. Beco Constr. Co. v. Harper Contracting, Inc., 130 Idaho 4, 936 P.2d 202 (Ct. App. 1997).

Attorney’s fees are not warranted under this section whenever a commercial transaction is remotely connected with the case; although the plaintiffs based their claims on two contractual theories, the main thrust of their suit clearly sounded in tort, and the court declined to award fees on that basis. Sammis v. MagneTek, Inc., 130 Idaho 342, 941 P.2d 314 (1997). The district court’s award and calculation of attorney fees was affirmed where that court recognized that the calculation was discretionary, where it acted within the outer boundaries of its discretion and consistent with the applicable legal standards, and where it arrived at its amount by an exercise of reason. Eastern Idaho Agric. Credit Ass’n v. Neibaur, 133 Idaho 402, 987 P.2d 314 (1999).

Although the prevailing party determination is discretionary in nature, this discretion must be exercised within the bounds of governing legal standards, and under some circumstances, application of these standards requires a holding that one party is the prevailing party on a particular claim as a matter of law. Sanders v. Lankford, 134 Idaho 322, 1 P.3d 823 (Ct. App. 2000).

Because the record did not establish that the district court applied the standards set forth in Sun Valley Shopping Center v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993, (1991) in exercising its discretion to award attorney fees, the case was remanded for the district court to consider the claim for attorney fees and to specify the basis of any award or denial of an award. Simons v. Simons, 134 Idaho 824, 11 P.3d 20 (2000).

Duplicitous.

Where the prevailing parties admitted to some duplicity in the attorney fees, although the court believed the duplicity was warranted given the complexity of the issues, the court reduced the requested fees award by the amount that the prevailing parties admitted was duplicitous. Clement v. Franklin Inv. Group, Ltd., 689 F. Supp. 1575 (D. Idaho 1988).

Ejectment Action.

A buyer of property at a foreclosure sale was not entitled to attorney fees under subsection (3) of this section, because the ejectment action was not an action to recover on a commercial transaction. Black Diamond Alliance, LLC v. Kimball, 148 Idaho 798, 229 P.3d 1160 (2010).

Employment Discrimination.

In employment discrimination claim under Idaho Human Rights Act, plaintiff was not entitled to attorney fees under this section because she prevailed only on her statutory claim, and not on her contract claim. Stout v. Key Training Corp., 144 Idaho 195, 158 P.3d 971 (2007).

Federal Courts.

Federal courts must follow state law as to attorney fees in diversity actions. United States v. City of Twin Falls, 806 F.2d 862 (9th Cir. 1986), cert. denied, 482 U.S. 914, 107 S. Ct. 3185, 96 L. Ed. 2d 674 (1987).

Broad attorney fee provision did not provide statutory authority for an award of attorney’s fees to an over-secured creditor in a federal bankruptcy case. In order to recover fees under a state statute, the creditor was required to show that its claim arose under a specific state statute that had provisions for attorney’s fees and costs. In re Astle, 364 B.R. 735 (Bankr. D. Idaho 2007).

Award of legal fees was authorized to a Chapter 7 debtor who, when sued by his former employer for violating a noncompetition agreement, had prevailed on the issue of whether his conduct justified nondischargeability, under 11 U.S.C.S. § 523(a)(6), even though the former employer had prevailed on the issue of whether employee had breached the agreement. The nondischargeability issue was the crux of the case. JB Constr., Inc. v. King (In re King), 2009 Bankr. LEXIS 660 (Bankr. D. Idaho Mar. 23, 2009). The district court’s award and calculation of attorney fees was affirmed where that court recognized that the calculation was discretionary, where it acted within the outer boundaries of its discretion and consistent with the applicable legal standards, and where it arrived at its amount by an exercise of reason. Eastern Idaho Agric. Credit Ass’n v. Neibaur, 133 Idaho 402, 987 P.2d 314 (1999).

Duplicitous.

Ejectment Action.

Employment Discrimination.

Federal Courts.

Frivolous Defense.

Attorney fees are not appropriate under§ 12-121 and Idaho R. Civ. P. 54 unless all claims brought or all defenses asserted are frivolous and without foundation. Where there are multiple claims and multiple defenses, it is not appropriate to segregate those claims and defenses to determine which were or were not frivolously defended or pursued. The total defense of plaintiff’s proceedings must be unreasonable or frivolous. Management Catalysts v. Turbo W. Corpac, Inc., 119 Idaho 626, 809 P.2d 487 (1991).

Future Commercial Ramifications.

Where the purpose of a suit was to compel a school district’s performance of a perceived public duty with regard to publishing notices of various actions, in order to create a possibility of future commercial transactions benefitting a newspaper, this constituted litigation on noncommercial issues that might have future commercial ramifications, and subsection (3) of this section is inapplicable to such a situation. Idaho Newspaper Found. v. City of Cascade, 117 Idaho 422, 788 P.2d 237 (Ct. App. 1990).

Genuine Issues.

In determining whether to award costs and attorney’s fees when procedural defenses raise genuine questions concerning the court’s jurisdiction or the propriety of granting relief upon the record then before the court, such defenses cannot be deemed frivolous, unreasonable or without foundation. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct. App. 1984).

Grounds.

A request for attorney fees can not be granted under this section when the underlying cause of action is a wage claim brought pursuant to§ 45-617. Hutchison v. Anderson, 130 Idaho 936, 950 P.2d 1275 (Ct. App. 1997).

In the context of costs and attorney fees awarded to a party under paragraph (1), the phrase “except as provided in subsections (3) and (4)” means: if it is not a commercial transaction (3) or a personal injury (4), paragraph (1) applies. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 136 Idaho 466, 36 P.3d 218 (2001).

Insufficiency of Claim.

Because the various subsections of the statute require different showings, it was not sufficient that the defendant made a claim for attorney fees based on this section generally. Bingham v. Montane Resource Assocs., 133 Idaho 420, 987 P.2d 1035 (1999).

No issue was preserved for the appellate court on appeal where the record revealed that the seafood company never filed a request in the district court to either modify the arbitration decision or to request fees for the confirmation proceeding. Pac. Alaska Seafoods, Inc. v. Vic Hoskins Trucking, Inc., 139 Idaho 472, 80 P.3d 1073 (2003).

Illegal Transaction.

In a dispute regarding a stock redemption agreement, attorney fees under subsection (3) were not available, because the transaction was illegal. Taylor v. AIA Servs. Corp., 151 Idaho 552, 261 P.3d 829 (2011). When the transaction at issue in a lawsuit is an illegal commercial transaction, no party to the transaction is entitled to fees under this section. Thus, a contractor could not claim the benefit of this section for fees for trial or on appeal where the contractor, a subcontractor, and a third party structured their agreements to circumvent the license requirements in§ 54-1902. Harris, Inc. v. Foxhollow Constr. & Trucking, 151 Idaho 761, 264 P.3d 400 (2011).

Interest.

No prejudgment interest would accrue upon the award of costs and attorney fees; the award simply bears the judgment rate of interest of 18% from its effective date. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct. App. 1984).

Interpretation of Terms.

“Services” and the other enumerated elements of subsection (3) of this section are not limited by the words “commercial transaction.” If the words preceding “commercial transaction” were treated merely as examples of the types of commercial transactions to which this section could apply, they would be no more than surplusage. Eriksen v. Blue Cross of Idaho Health Servs., Inc., 116 Idaho 693, 778 P.2d 815 (Ct. App. 1989).

Application of this section is not limited to contract actions because the latter portion of the statute does not contain any such limitation, but mandates the award of a reasonable attorney fees to the prevailing party “in any commercial transaction.” City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009).

Judgment.

Although materialmen who obtained a default judgment did not cite in the judgment the statutory authority under which attorney fees were granted, they were not thereby precluded from recovering fees because they specifically pled that their lien foreclosure action arose from a commercial transaction and it was evident that the parties had engaged in a commercial transaction. Magleby v. Garn, 154 Idaho 194, 296 P.3d 400 (2013).

Lease-Option Agreements.

Where a lease-option agreement involved the lease and purchase of a dwelling for residential purposes, attorney fees could not be awarded pursuant to this section. Karterman v. Jameson, 132 Idaho 910, 980 P.2d 574 (Ct. App. 1999).

Legislative Intent.

The legislature put the term “commercial transaction” in this section, not to narrow its scope, but to extend its coverage to litigation arising from commercial disputes as well as from certain non-commercial disputes. This intent is evinced by the legislature’s use of the conjunctive phrase “and in any commercial transaction.” Eriksen v. Blue Cross of Idaho Health Servs., Inc., 116 Idaho 693, 778 P.2d 815 (Ct. App. 1989).

The underlying intent of this section is to help litigants obtain counsel by providing a potential source of fees in meritorious cases. Swanson & Setzke v. Henning, 116 Idaho 199, 774 P.2d 909 (Ct. App. 1989).

Lien Foreclosures.

In light of the clear legislative intent to restrict the recovery of attorney fees in a lien foreclosure to those incurred in district court, the appellate court declined to award the prevailing party attorney fees for his prosecution of a cross-appeal. Fairfax v. Ramirez, 133 Idaho 72, 982 P.2d 375 (Ct. App. 1999).

Homeowner who prevailed on materialman’s foreclosure action was not entitled to award of attorney fees since the materialman did not plead an amount of $25,000 [now $35,000] or less. L & W Supply Corp. v. Chartrand Family Trust, 136 Idaho 738, 40 P.3d 96 (2002).

Malpractice Action.

An action for legal malpractice is a tort action, and even though the underlying transaction which resulted in the malpractice was a “commercial transaction,” attorney fees under subsection (3) of this section are not authorized. Fuller v. Wolters, 119 Idaho 415, 807 P.2d 633 (1991).

Even though the underlying transaction which leads to legal malpractice is a commercial transaction, attorney fees are not authorized under this section, because an action for legal malpractice is a tort action. Rice v. Litster, 132 Idaho 897, 980 P.2d 561 (1999); Bishop v. Owens, — Idaho —, 272 P.3d 1247 (2012).

“Miller Act” Suit.

Unless there is a separate state claim at the trial level, attorneys’ fees are not available in a Miller Act (40 U.S.C.S. § 2706) suit even when state law provides for such an award. United States ex rel. Leno v. Summit Constr. Co., 892 F.2d 788 (9th Cir. 1989).

Monetary Limitation.

The monetary limitation of subsection (1) of this section does not apply to subsection (2) (now (3)). Steiner v. Amalgamated Sugar Co., 106 Idaho 111, 675 P.2d 826 (Ct. App. 1984).

Sugar beet growers who successfully challenged sugar company’s computations of price formula under contract were entitled to award of attorney fees under subsection (2) (now (3)) of this section, regardless of fact that amount requested exceeded $2,500 (now $35,000), and were also entitled to award of attorney fees on appeal. Steiner v. Amalgamated Sugar Co., 106 Idaho 111, 675 P.2d 826 (Ct. App. 1984).

Where, in addition to his claim of $1,592 for return of the proceeds of the deposit check, the lessee asked for the sum of $1,400 damages per day because of the “lockout” and for $50,000 punitive damages, the amount pleaded exceeded $2,500 (now $35,000), and the lessee was not entitled to attorney fees under subsection (1) of this section. Santillanes v. Property Mgt. Servs., Inc., 110 Idaho 588, 716 P.2d 1360 (Ct. App. 1986).

This section simply gives the prevailing party a general entitlement to an award of reasonable attorney fees; it does not override a valid agreement between the parties specifically limiting the dollar amount that may be claimed and awarded. Chittenden & Eastman Co. v. Leasure, 116 Idaho 981, 783 P.2d 320 (Ct. App. 1989).

A trial court may not award attorney fees under this statute unless the amount “pleaded” in the procedural sense is $25,000 or less, even if the proof offered at trial indicates damages of $25,000 [now $35,000] or less. Pancoast v. Indian Cove Irrigation Dist., 121 Idaho 984, 829 P.2d 1333 (1992).

Malpractice Action.

“Miller Act” Suit.

Monetary Limitation.

The monetary limitation of subsection (1) of this section does not apply to subsection (2) (now (3)). Steiner v. Amalgamated Sugar Co., 106 Idaho 111, 675 P.2d 826 (Ct. App. 1984).

Because the court held that plaintiff was not entitled to attorney fees under subsection (1) of this section, and because she had asserted no other basis for an award of attorney fees, the district court did not err in refusing to include any “pre-offer” attorney fees in the determination of whether the offer of judgment exceeded the amount of recovery. Czerwinsky v. Lieske, 122 Idaho 96, 831 P.2d 564 (Ct. App. 1992). The district judge properly denied fees to the defendant where the plaintiffs pled an amount in excess of the minimum jurisdictional limits of the court and did not plead $25,000 [now $35,000] or less. Bingham v. Montane Resource Assocs., 133 Idaho 420, 987 P.2d 1035 (1999).

Negligence Action.

In a negligence action by a bailor against a bailee to recover damages caused when the bailee crashed an airplane rented from the bailor, subsection (1) of this section was inapplicable on the pleadings since the bailor’s complaint contained two counts, pleading damages of $2,000 and $4,000, respectively; subsection (2) (now (3)) of this section was inapplicable on its face because although there was a bailment agreement, the bailor’s underlying cause of action was grounded in negligence, not in contract. T-Craft Aero Club, Inc. v. Blough, 102 Idaho 833, 642 P.2d 70 (Ct. App. 1982).

Even though the contract between the defendant farm equipment company and the farm owner related to the purchase and sale of goods, the actions brought by the farm owner and his tenants were not to recover upon that contract, but to recover damages for breach of another legal duty, the duty to exercise reasonable care in installing the goods; accordingly, the farm owner and his tenants were not entitled to attorney fees under subsection (2) (now (3)) of this section. Chenery v. Agri-Lines Corp., 106 Idaho 687, 682 P.2d 640 (Ct. App. 1984).

New Item of Damage.

Even though evidence of $2,500 in property damage was not in respondent’s statement of claim, it was not significant enough to constitute a waiver of his right to attorney fees, compared to the $ 20,000 demand made in the statement of claim, and since appellant’s insurer disclaimed any liability for the accident, it was difficult to see how a lack of awareness of damage to the car played any part in insurer’s refusal to settle prior to the commencement of the suit. Contreras v. Rubley, 142 Idaho 573, 130 P.3d 1111 (2006).

Plaintiffs’ increased request for damages at trial did not constitute “a significant new item of damage” that precluded them from obtaining fees under subsection (4). Plaintiffs simply sought to recover greater amounts of damages for the items of damage listed in their respective statements of claim. Bennett v. Patrick, 152 Idaho 854, 276 P.3d 726 (2012).

Open Account.

The award of attorney’s fees in a civil action to recover on an open account for services performed was proper; this section does not limit awards of attorney’s fees to actions seeking to recover open accounts for the purchase of goods. Boise Truck & Equip., Inc. v. Hafer Logging, Inc., 107 Idaho 824, 693 P.2d 470 (Ct. App. 1984).

Billings submitted to a service corporation by various health care providers for services rendered did not constitute an open account under this section and did not provide a basis for awarding attorney fees against the service corporation. Howard v. Blue Cross of Idaho Health Serv., Inc., 114 Idaho 485, 757 P.2d 1204 (Ct. App. 1987).

Because subsection (3) of this section mandates the award of attorney fees to the prevailing party in any action arising out of civil action to recover on an open account, and the burden is on the person disputing the award to show an abuse of discretion, where plaintiffs failed to provide the court with any legal authority or argument establishing an abuse of discretion by the trial court, the district court or the court of appeals, the decisions awarding attorney fees were affirmed. Eagle Water Co. v. Roundy Pole Fence Co., 134 Idaho 626, 7 P.3d 1103 (2000). The district judge properly denied fees to the defendant where the plaintiffs pled an amount in excess of the minimum jurisdictional limits of the court and did not plead $25,000 [now $35,000] or less. Bingham v. Montane Resource Assocs., 133 Idaho 420, 987 P.2d 1035 (1999).

Negligence Action.

New Item of Damage.

Open Account.

Pleading.

Since the Idaho supreme court presumes that the state legislature understood the meaning of the term “pleading” in the procedural sense when it enacted this section, the court held that a prevailing party cannot claim an entitlement to attorney fees pursuant to this section unless damages of $25,000 [now $35,000] or less actually have been pled. Cox v. Mueller, 125 Idaho 734, 874 P.2d 545 (1994).

Because subdivision (1) of this section requires a party to specify the maximum amount of damages claimed and§ 5-335 forbids a personal injury plaintiff from claiming a specific amount of damages, the statutes admittedly are difficult to reconcile. Therefore, to invoke the entitlement to attorney fees pursuant to this section, the complaint should also allege that the plaintiff’s claim for damages does not exceed the limit established by this section and that the plaintiff is entitled to an award of attorney fees pursuant to this section; since this allegation will not specify the precise amount of damages claimed by the plaintiff, it will not violate§ 5-335. Cox v. Mueller, 125 Idaho 734, 874 P.2d 545 (1994).

The court could not award attorney fees to the department of health and welfare when it prevailed in seeking child support from a father; the department failed to indicate in its complaint whether the total reimbursement and support requested was $25,000 [now $35,000] or less and, therefore, attorney fees could not be awarded pursuant to this section. State, Bureau of Child Support v. Knowles, 128 Idaho 835, 919 P.2d 1036 (Ct. App. 1996).

Because the court places a “premium” on examining the pleadings when evaluating the applicability of this section, plaintiff was entitled to attorney fees only where it had clearly indicated that it sought to recover from the defendants an amount less than $25,000 [now $35,000] plus attorney fees. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Defendants adequately supported their request for fees by citing this section; they were not required to assert their request in their pleadings. Eighteen Mile Ranch, LLC v. Nord Excavating & Paving, Inc., 141 Idaho 716, 117 P.3d 130 (2005).

The pleading requirement of subsection (1) of this section does not apply to the awarding of attorney’s fees under subsections (3) or (4). Cox v. Mulligan, 142 Idaho 356, 128 P.3d 893 (2005).

Parties need not identify in the judgment the specific subsection of this section under which attorney fees are sought when the applicable provision has been clearly identified. The appropriate inquiry is whether attorney fees were recoverable under one of the subsections at the time of the entry of judgment. Magleby v. Garn, 154 Idaho 194, 296 P.3d 400 (2013).

Post-Judgment Award.

After judgment had been perfected in this case, plaintiff became a judgment creditor and no longer depended on the note as the basis of defendant’s obligation; accordingly, while an award of pre-judgment attorney fees was made to plaintiff without objection, subdivision (3) of this section does not provide for a post-judgment award of attorney fees; further, Idaho R. Civ. P. 54(d)(5) explicitly limits the time period in which a memorandum of costs can be filed to 14 days after the entry of judgment and in the instant action the judgment was entered on September 12, 1988, and the memorandum of costs seeking an additional award of post-judgment attorney fees was filed on June 21, 1990, nearly 21 months later. Allison v. John M. Biggs, Inc., 121 Idaho 567, 826 P.2d 916 (1992). Where creditor was awarded attorney’s fees and costs on an appeal to enforce a judgment, its remedy was exclusively under subsection (5); the less specific provisions of subsections (1) and (3) did not apply. Credit Bureau of E. Idaho, Inc. v. Lecheminant, 149 Idaho 468, 235 P.3d 1188 (2010).

Prevailing Party.

Subsection (A) of Idaho R. Civ. P. 54(d)(1), which authorizes costs to the prevailing party, and subsection (2) (now (3)) of this section, which authorizes attorney fees to a prevailing party, are not applicable where there is no prevailing party; accordingly, where two plaintiffs and defendant were awarded portion of claims, each had made against the other, the trial court did not err in ruling that all parties should pay their own costs and attorney fees since there was no overall prevailing party. International Eng’g Co. v. Daum Indus., Inc., 102 Idaho 363, 630 P.2d 155 (1981).

The prevailing party in an action for breach of contract for the sale of wheat was entitled to a reasonable attorney fee. D.R. Curtis Co. v. Mathews, 103 Idaho 776, 653 P.2d 1188 (Ct. App. 1982).

The identification of a prevailing party rests in the trial court’s sound discretion; however, a judge may not use the award or denial of attorney fees to vindicate his sense of justice beyond the judgment rendered on the underlying dispute between the parties. Evans v. Sawtooth Partners, 111 Idaho 381, 723 P.2d 925 (Ct. App. 1986).

Where the party who defaulted on the promissory note successfully resisted the recovery of a deficiency, and the district judge stated that he would not award attorney fees because he considered the case to be a “draw,” with no prevailing party, even though he acknowledged having no legal basis for doing what he was doing but his own sense of justice, the action was remanded to determine whether the party prevailed in district court. Evans v. Sawtooth Partners, 111 Idaho 381, 723 P.2d 925 (Ct. App. 1986).

In general, this section mandates an award of attorney fees to the prevailing party on an appeal as well as in the trial court. Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

Where the city’s contract was for the sale of goods, and the city substantially prevailed on appeal, the city was entitled to its reasonable attorney fees on appeal under this section. United States v. City of Twin Falls, 806 F.2d 862 (9th Cir. 1986), cert. denied, 482 U.S. 914, 107 S. Ct. 3185, 96 L. Ed. 2d 674 (1987).

Where accounting firm was successful in an action to recover on accounts stated and on appeal, attorney fees were properly awarded under this section in both cases. M.T. Deaton & Co. v. Leibrock, 114 Idaho 614, 759 P.2d 905 (Ct. App. 1988).

The determination of a prevailing party involves a three-part inquiry; the court must examine (1) the result obtained in relation to the relief sought; (2) whether there were multiple claims or issues; and (3) the extent to which either party prevailed on each issue or claim. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990). The determination of which party has prevailed is not a matter of a mechanical measurement of the size of each party’s respective recovery; instead, the trial court should analyze each claim separately, and where both parties have successfully asserted claims, the claims should be severed and costs analyzed separately for each. Ramco v. H-K Contractors, 118 Idaho 108, 794 P.2d 1381 (1990).

In a suit for breach of contract for provision of goods and services, the court did not abuse its discretion in finding that the defendant was the prevailing party on its counterclaim for the unpaid balance of the contract; even though the plaintiff had prevailed on breach of contract claim, it received less than 10% of damages it sought and the defendant received approximately 90% of the amount it sought in the counterclaim. Therefore, defendant was entitled to attorney fees. Shurtliff v. Northwest Pools, Inc., 120 Idaho 263, 815 P.2d 461 (Ct. App. 1991).

Plaintiffs were entitled to an award of fees for appeal even though defendant could ultimately be found to be the prevailing party after trial on his counterclaim. Bowen v. Heth, 120 Idaho 452, 816 P.2d 1009 (Ct. App. 1991).

The discretion given to the trial court in Idaho R. Civ. P. 41(a)(2) is not circumscribed by the prevailing party analysis that is mandated by this section and Idaho R. Civ. P. 54(d)(1)(B). Jones v. Berezay, 120 Idaho 332, 815 P.2d 1072 (1991).

Where partnership and contractor each prevailed on one of the two issues between them, but each received far less than the respective relief they sought, the court did not abuse its discretion in concluding that neither party prevailed against the other. Weaver v. Millard, 120 Idaho 692, 819 P.2d 110 (Ct. App. 1991).

In action against bank for payment of forged checks where jury found that, in all but one instance, bank used ordinary care in the payment of forged checks, the bank was the prevailing party and entitled to attorney fees under subsection (3) of this section; also, on appeal, where appellate court affirmed lower court judgment verdict, bank was the prevailing party and entitled to attorney fees under subsection (3) of this section. Basterrechea Distrib., Inc. v. Idaho State Bank, 122 Idaho 572, 836 P.2d 518 (1992).

Seller’s counterclaim was an action to recover on a contract for the sale of goods. Because the sellers prevailed on their claim below, and because the judgment of the district court on the contractual issue was affirmed, sellers were the prevailing parties on appeal and were, thus, entitled to an award of attorney fees and costs in both the lower court and on appeal. Christensen v. Ransom, 123 Idaho 99, 844 P.2d 1349 (Ct. App. 1992).

In action involving contract dispute which arose from remodeling project that plaintiff performed on a residential home for defendant where neither party prevailed on appeal, attorney fees under this section would not be awarded. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

In a contempt proceeding brought by a special master for failure to pay his fees, because the master was not a party to the underlying action, he was not entitled to attorney fees. Inland Group of Cos. v. Obendorff, 131 Idaho 473, 959 P.2d 454 (1998).

Where the appellate court vacated a judgment based on a directed verdict and remanded the case for a new trial, the plaintiff was not entitled to an award of attorney fees on appeal. J.R. Simplot Co. v. Enviro-Clear Co., 132 Idaho 251, 970 P.2d 980 (1998). The determination of which party has prevailed is not a matter of a mechanical measurement of the size of each party’s respective recovery; instead, the trial court should analyze each claim separately, and where both parties have successfully asserted claims, the claims should be severed and costs analyzed separately for each. Ramco v. H-K Contractors, 118 Idaho 108, 794 P.2d 1381 (1990).

Where the appellate court vacated a judgment based on a directed verdict and remanded the case for a new trial, the plaintiff was not entitled to an award of attorney fees on appeal. J.R. Simplot Co. v. Enviro-Clear Co., 132 Idaho 251, 970 P.2d 980 (1998). Under Idaho R. Civ. P. 54(d)(1)(B), there are three principal factors the trial court must consider when determining which party, if any, prevailed: (1) the final judgment or result obtained in relation to the relief sought; (2) whether there were multiple claims or issues between the parties; and (3) the extent to which each of the parties prevailed on each of the claims or issues. Sanders v. Lankford, 134 Idaho 322, 1 P.3d 823 (Ct. App. 2000).

The determination of a reasonable fee under this statute turns solely upon a determination of the prevailing party and should not be colored by characterizing the award as a penalty. Sanders v. Lankford, 134 Idaho 322, 1 P.3d 823 (Ct. App. 2000).

Because the court upheld the district court’s decision, defendant was not the prevailing party in the proceeding and was not entitled to attorney fees under subsection (3) of this section. City of Kellogg v. Mission Mt. Interests Ltd., 135 Idaho 239, 16 P.3d 915 (2000).

Because the appellate court remanded the case for further proceedings, neither party was the prevailing party and the issue of fees was remanded for consideration at the conclusion of the case. Thomas v. Med. Ctr. Physicians, P.A., 138 Idaho 200, 61 P.3d 557 (2002).

Attorney fees are to be awarded under subsection (3) of this section where the cause of action is for breach of a commercial contract. Where the claim is contractual, fees must be awarded to the prevailing party even though liability under the contract was not established. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Attorney fees related to the defense of a teacher’s claim for breach of contract were proper where the school district was the prevailing party because it received all relief sought in their answer. Willie v. Bd. of Trs., 138 Idaho 131, 59 P.3d 302 (2002).

Physician’s suit against medical center for wrongful termination, and retaliatory discharge involved a dispute relating to an employment relationship, which was inherently contractual in nature; however, because the appellate court remanded the matter for further proceedings, neither party was the prevailing party and the issue of fees was remanded for consideration at the conclusion of the case. Thomas v. Med. Ctr. Physicians, P.A., 138 Idaho 200, 61 P.3d 557 (2002).

District court did not abuse its discretion in concluding that the witness was the prevailing party and awarding attorney fees on the creditor’s complaint where the core issue was the creditor’s claim to collect on the alleged guaranty of the promissory note and the witness’s counterclaims for fraud and intentional infliction of emotional distress were based upon the creditor’s conduct in attempting to collect on the alleged guaranty. Bream v. Benscoter, 139 Idaho 364, 79 P.3d 723 (2003).

Pursuant to the terms of subsection (3) of this section, the refinery was entitled to attorney fees on appeal where it was the prevailing party and a commercial transaction was the underlying case. Sun Valley Potato Growers, Inc. v. Tex. Refinery Corp., 139 Idaho 761, 86 P.3d 475 (2004).

Even if subsection (3) of this section or§ 12-121 applied, the former member of a professional limited liability company was not the prevailing party and was not entitled to an award of attorney fees where the appellate court vacated the judgment, and where the member prevailed only in part on the appeal. Howard v. Perry, 141 Idaho 139, 106 P.3d 465 (2005).

Father and his wife attempted to recover attorney’s fees in a collection suit brought against their daughter-in-law and their deceased son’s estate; however, they were not entitled to attorney’s fees as they were not the prevailing party. The daughter-in-law and the estate were not entitled to recover attorney’s fees on appeal because the issues raised were not frivolous. Reding v. Reding, 141 Idaho 369, 109 P.3d 1111 (2005). In a contract dispute, where defendants sought attorney’s fees and costs, defendants were prevailing parties under Idaho R. Civ. P. 54(d)(1)(B) because defendants avoided all liability and defendant excavation company was successful on its counterclaim. Eighteen Mile Ranch, LLC v. Nord Excavating & Paving, Inc., 141 Idaho 716, 117 P.3d 130 (2005).

Grant of a JNOV or, in the alternative, a new trial, to the contractor was improper where uncontradicted testimony showed the contractor failed to verify field conditions prior to commencing work. Thus, the subcontractor was the prevailing party on appeal and was, thus, entitled to attorney’s fees pursuant to subsection (3). Gillingham Constr., Inc. v. Newby-Wiggins Constr., Inc., 142 Idaho 15, 121 P.3d 946 (2005).

In a dispute between a telephone company and paging companies arising out of the use of facilities, the award of attorney’s fees was not appropriate because the parties had each prevailed on some issues and lost on others. Ryder v. Idaho PUC (In re Ryder), 141 Idaho 918, 120 P.3d 736 (2005).

Because the Idaho supreme court was remanding the case for determination of the client’s remaining affirmative defenses, it declined to determine a prevailing party for purposes of a fee award. Sirius LC v. Erickson, 144 Idaho 38, 156 P.3d 539 (2007).

Grant of summary judgment in favor of lessor in his action seeking to recover unpaid rent for the rental of a Bobcat was appropriate because the term “working day” in the lease agreement was unambiguous. Because the lessor was the prevailing party on appeal, it was entitled to an award of reasonable attorney fees. Swanson v. BECO Constr. Co., 145 Idaho 59, 175 P.3d 748 (2007).

Where plaintiffs loaned defendant $20,000, plaintiffs later took over defendant’s farm repair business and agreed not to pursue the note if defendant would leave his tools and equipment on the business premises; in plaintiffs’ action to collect on the note, defendant was the prevailing party based on the defense of accord and satisfaction. Shore v. Peterson, 146 Idaho 903, 204 P.3d 1114 (2009).

Where a bankruptcy judgment determined that a debt to a creditor was nondischargeable based on the fraud of bankruptcy debtor, but not a co-debtor, and not on other asserted grounds, and that the creditor’s claim was completely unsecured and allowed in a substantially reduced amount, no award of attorney fees was warranted; since both the creditor and the debtor prevailed on some issues and failed on others, neither was the prevailing party and, while the co-debtor received nearly all of the relief sought, there was no showing of the fees incurred solely on behalf of the co-debtor. Morrarty v. Morton (In re Morton), 2009 Bankr. LEXIS 3260 (Bankr. D. Idaho Oct. 12, 2009).

In an action for breach of a contract to assemble a specialty car engine, the district court erred by awarding the parties all attorney fees incurred in the litigation. The court had a duty to apportion to each party only the attorney fees related to the claims upon which each party prevailed under subsection (3). Schroeder v. Partin, 151 Idaho 471, 259 P.3d 617 (2011).

Since each claim in an action must be resolved before a court may determine the prevailing party, the identity of the prevailing party cannot be known until proceedings at the trial level are complete. Steel Farms, Inc. v. Croft & Reed, Inc., 154 Idaho 259, 297 P.3d 222 (2012).

District court abused its discretion when it declined to find the employee to be the prevailing party where, although the employee received an award far smaller than that which he sought, he defeated the employer’s counterclaim and the award that he did receive was for more than a nominal amount. Oakes v. Boise Heart Clinic Physicians, PLLC, 152 Idaho 540, 272 P.3d 512 (2012). In a contract dispute, where defendants sought attorney’s fees and costs, defendants were prevailing parties under Idaho R. Civ. P. 54(d)(1)(B) because defendants avoided all liability and defendant excavation company was successful on its counterclaim. Eighteen Mile Ranch, LLC v. Nord Excavating & Paving, Inc., 141 Idaho 716, 117 P.3d 130 (2005).

District court abused its discretion when it declined to find the employee to be the prevailing party where, although the employee received an award far smaller than that which he sought, he defeated the employer’s counterclaim and the award that he did receive was for more than a nominal amount. Oakes v. Boise Heart Clinic Physicians, PLLC, 152 Idaho 540, 272 P.3d 512 (2012). Absent transcripts of the hearings at which the trial court denied plaintiffs’ motion for attorney fees under subsection (3) and denied their motion for reconsideration of the denial order, the record was inadequate for appellate review of plaintiffs’ claim that the trial court abused its discretion by ruling that no party prevailed in the multiclaim action in which a verdict was returned only in plaintiffs’ favor and only for one of their claims. Poole v. Davis, 153 Idaho 604, 288 P.3d 821 (2012).

— Reversal on Appeal.

Because trial court’s award, pursuant to subsection (3) of this section, of discretionary costs and attorney fees to city, which brought suit against other city for breach of contract for wastewater treatment, was based on holding that city was a prevailing party, the award was vacated upon reversing that decision on appeal. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 899 P.2d 411 (1995).

Where district court improperly concluded gravamen of claim was a commercial transaction rather than a claim in tort, reviewing court did not reverse the award of attorney fees where property owner’s argument on appeal attacked not the entitlement to the award itself, but the lower court’s finding that purchaser was prevailing party. Jahnke v. Mesa Equip., Inc., 128 Idaho 562, 916 P.2d 1287 (Ct. App. 1996).

The district court did not properly apply the criteria of Idaho R. Civ. P. 54(d)(1)(B) in holding that defendant was not the prevailing party where the “result obtained” was a dismissal of plaintiff’s action with prejudice, the most favorable outcome that could possibly be achieved by the defendant. Daisy Mfg. Co. v. Paintball Sports, Inc., 134 Idaho 259, 999 P.2d 914 (Ct. App. 2000).

Where there was a single claim by plaintiff for collection of an account receivable which was dismissed in favor of defendant, application of the Idaho R. Civ. P. 54(d)(1)(B) factors could lead only to a conclusion that defendant was the prevailing party. Sanders v. Lankford, 134 Idaho 322, 1 P.3d 823 (Ct. App. 2000).

Where district judge could not apportion those fees that were incurred in using the appellant’s breach of fiduciary duty issue as a contract defense from those incurred in using the breach issue as a tort counterclaim, fees were not apportioned between a claim that qualified under the statute and one that did not; therefore, fees were not appropriate. Rockefeller v. Grabow, 136 Idaho 637, 39 P.3d 577 (2001).

Promissory Note.

An obligation on a promissory note, like an obligation on an open account, is one of the enumerated causes of action under subsection (2) (now (3)) of this section which need not relate to the purchase or sale of goods in order to invoke an attorney fee award. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct. App. 1984). Where the promissory note stated that the holder of the note would be entitled to collect attorneys’ fees if suit were brought to collect the note, the obligees under a deed of trust were entitled to the award of such fees after foreclosure of the deed of trust and trustee’s sale. Farber v. Howell, 111 Idaho 132, 721 P.2d 731 (Ct. App. 1986).

Generally, a note is an instrument containing an express promise to pay a specified sum of money at a definite time or on demand to a named party, to order or to bearer; no particular form is necessary, provided the writing meets the minimum statutory requirements. Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

Even if a “note” may not contain an express condition, the instrument, under which one party promised to perform specified services and the other party promised to pay for those services, was a “note” where the instrument did not expressly excuse the payor’s promise if the performer failed to perform, and the payor did not expressly promise to pay only “if” the performer performed bringing the suit for recovery on the note within this section. Spidell v. Jenkins, 111 Idaho 857, 727 P.2d 1285 (Ct. App. 1986).

This section applies to an action on a promissory note and credit union, as the successful party on appeal, was entitled to an award of attorney fees as a result thereof. Pocatello R.R. Employees Fed. Credit Union v. Galloway, 117 Idaho 739, 791 P.2d 1318 (Ct. App. 1990).

Although plaintiff raised a genuine question of law and attorney fees were not awarded under§ 12-121 because plaintiff brought an action on a promissory note, this section was deemed to be applicable and attorney fees were awarded hereunder. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990).

Pro Se Litigants.

A rule of law proclaiming that pro se lawyer litigants are not entitled to attorney fee awards should be applied consistently; it should not turn on distinctions among proprietorships, partnerships, corporations or other modes of law practice. Swanson & Setzke v. Henning, 116 Idaho 199, 774 P.2d 909 (Ct. App. 1989).

Attorney fees may not be awarded to parties who appear pro se in civil litigation, and this general rule applies to litigators who appear pro se. Swanson & Setzke v. Henning, 116 Idaho 199, 774 P.2d 909 (Ct. App. 1989).

Pro se litigants may not recover attorney fees. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Proper Procedure.

Although the language of subsection (1) of this section seems to conflict with§ 5-335 and Idaho R. Civ. P. 9(g), these statutes and rule should be reconciled, if possible, so that the provisions of each will not be nullified. Rule 9(g) and§ 5-335 suggest a way to do this. According to the rule, “no dollar amount or figure shall be included in the complaint beyond a statement reciting that the jurisdictional amount established for filing the action is satisfied”; a similar general pleading should suffice to support a claim for attorney fees under subsection (1) of this section. For example, the complaint could contain an appropriate general allegation that the plaintiff’s claim is within the jurisdictional limits of the district court, or magistrate’s division thereof. The complaint could separately allege that “plaintiff’s claim for damages does not exceed the limit set by subsection (1) of this section and plaintiff is entitled to an award of attorney fees under this statute.” Such allegations would satisfy the jurisdictional pleading requirement and also afford a plaintiff — or defendant — an opportunity to recover attorney fees under subsection (1) of this section without contravening§ 5-335 or Idaho R. Civ. P. 9(g). Czerwinsky v. Lieske, 122 Idaho 96, 831 P.2d 564 (Ct. App. 1992). Where the promissory note stated that the holder of the note would be entitled to collect attorneys’ fees if suit were brought to collect the note, the obligees under a deed of trust were entitled to the award of such fees after foreclosure of the deed of trust and trustee’s sale. Farber v. Howell, 111 Idaho 132, 721 P.2d 731 (Ct. App. 1986).

Pro Se Litigants.

Pro se litigants may not recover attorney fees. Erickson v. Flynn, 138 Idaho 430, 64 P.3d 959 (Ct. App. 2002).

Proper Procedure.

Purchase or Sale of Goods, Wares or Merchandise.

Subsection (2) (now (3)) of this section was applicable to action by supplier against homeowner for unpaid balance on materials. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

The words “relating to the purchase or sale of goods, wares, merchandise” in subsection (2) (now (3)) of this section plainly modify only the words “or contract” which immediately precede that phrase and which are separated from the remainder of the sentence by a comma not otherwise required by modern English usage; consequently, the phrase does not modify the other types of action identified by the statute — actions on open account, account stated, note, bill or negotiable instrument. Boise Truck & Equip., Inc. v. Hafer Logging, Inc., 107 Idaho 824, 693 P.2d 470 (Ct. App. 1984).

Because this was a suit on a contract for the alleged sale of goods, the defendant is entitled to an award of attorney fees on appeal as the prevailing party, even though no liability under a contract was established. Konic Int’l Corp. v. Spokane Computer Servs., Inc., 109 Idaho 527, 708 P.2d 932 (Ct. App. 1985).

Quashing of Lis Pendens.

A party who loses on all substantive issues in a case cannot be said to prevail, even in part, because a lis pendens recorded with regard to their property, has been quashed. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

Real Estate Contract.

In a case involving a dispute over a real estate sale, a prospective seller was not entitled to fees under subsection (3) because those provisions do not apply to real estate contracts. Cristo Viene Pentecostal Church v. Paz, 144 Idaho 304, 160 P.3d 743 (2007).

Reasonableness.

A court is permitted to examine the reasonableness of the time and labor expended by the attorney and need not blindly accept the figures advanced by the attorney; such figures may be measured against a standard of reasonableness. An attorney cannot spend his time extravagantly and expect to be compensated by the party who loses at trial; thus, in an action to recover less than $2,000, where the claim for attorney fees amounted to $9,000, the district court did not err in allowing only $3,000. Craft Wall of Idaho, Inc. v. Stonebraker, 108 Idaho 704, 701 P.2d 324 (Ct. App. 1985).

An award of attorney fees in the lower court, based on a contingency agreement, may be enough to subsume any amount that might be awarded for attorney fees on appeal; ultimately, the determination of reasonableness will rest with the trial court after it has recalculated the interest award and reconsidered all the factors under Idaho R. Civ. P. 54(e)(3). Hoopes v. Hoopes, 124 Idaho 518, 861 P.2d 88 (Ct. App. 1993).

What constitutes a “reasonable” fee is a discretionary determination for the trial court, to be guided by the criteria of Idaho R. Civ. P. 54(e)(3), and a court may disallow fees that were unnecessarily and unreasonably incurred or that were the product of attorney churning. Daisy Mfg. Co. v. Paintball Sports, Inc., 134 Idaho 259, 999 P.2d 914 (Ct. App. 2000). What constitutes a reasonable fee is a discretionary determination for the trial court, to be guided by the criteria of Idaho R. Civ. P. 54(e)(3). Sanders v. Lankford, 134 Idaho 322, 1 P.3d 823 (Ct. App. 2000).

The reasonableness of an attorney fee award is based on the trial court’s consideration of the factors in Idaho R. Civ. P. 54(e)(3). The court need not specifically address all of the factors contained in that rule in writing, so long as the record clearly indicates that the court considered them all. Thomas v. Thomas, 150 Idaho 636, 249 P.3d 829 (2011).

Retroactive Effect of Amendment.

The 1986 amendment to this section, which enlarged the scope of entitlement to mandatory attorney fee awards, is more accurately classified as substantive than as merely remedial or procedural; consequently, the 1986 amendment should not be given retroactive effect. Myers v. Vermaas, 114 Idaho 85, 753 P.2d 296 (Ct. App. 1988).

State Agency.

Section 12-117(1) is not the exclusive basis upon which to seek an award of attorney fees against a state agency or political subdivision, as attorney fees may be awarded under any other statute that expressly applies to a state agency or political subdivision, such as§ 12-121 or this section. Syringa Networks, LLC v. Idaho Dep’t of Admin., 155 Idaho 55, 305 P.3d 499 (2013).

Summary Judgment.

Where summary judgment against the plaintiff was vacated, and the issue of improper termination of a limited partnership remanded, the lower court’s award of attorney fees to the defendant was no longer justified. Bushi v. Sage Health Care, PLLC, 146 Idaho 764, 203 P.3d 694 (2009).

Wage Claim.

Sections 45-615 and 45-617 are the exclusive code sections under which an employee can recover attorney fees whenever the underlying cause of action is a wage claim pursuant to§ 45-617(4), and an employee’s claim for attorney fees under this section in such a case was properly denied. Bilow v. Preco, Inc., 132 Idaho 23, 966 P.2d 23 (1998).

Section 45-612(2) is the exclusive remedy for attorney fees available to an employer when an employee has brought a claim for wages, and this section is not an appropriate source for awarding attorney fees in wage claim disputes. Polk v. Robert D. Larrabee Family Home Ctr., 135 Idaho 303, 17 P.3d 247 (2000).

Cited

Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977); Paloukos v. Intermountain Chevrolet Co., 99 Idaho 740, 588 P.2d 939 (1978); McKee Bros. v. Mesa Equip., Inc., 102 Idaho 202, 628 P.2d 1036 (1981); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981); Decker v. Homeguard Sys., 105 Idaho 158, 666 P.2d 1169 (Ct. App. 1983); Robinson v. Joint School Dist. No. 331, 105 Idaho 487, 670 P.2d 894 (1983); Wing v. Hulet, 106 Idaho 912, 684 P.2d 314 (Ct. App. 1984); Hartwell Corp. v. Smith, 107 Idaho 134, 686 P.2d 79 (Ct. App. 1984); Argonaut Ins. Cos. v. Tri-West Constr. Co., 107 Idaho 643, 691 P.2d 1258 (Ct. App. 1984); Robison v. State, Dep’t of Health & Welfare, 107 Idaho 1055, 695 P.2d 440 (Ct. App. 1985); Kulczyk v. Kehle, 108 Idaho 640, 701 P.2d 260 (Ct. App. 1985); Lawrance v. Elmore Bean Whse., Inc., 108 Idaho 892, 702 P.2d 930 (Ct. App. 1985); Western Seeds, Inc. v. Bartu, 109 Idaho 70, 704 P.2d 974 (Ct. App. 1985); Gro-Mor, Inc. v. Butts, 109 Idaho 1020, 712 P.2d 721 (Ct. App. 1985); Airstream, Inc. v. CIT Fin. Servs., Inc., 111 Idaho 307, 723 P.2d 851 (1986); Jones v. Whiteley, 112 Idaho 886, 736 P.2d 1340 (Ct. App. 1987); Jahnke v. Moore, 112 Idaho 944, 737 P.2d 465 (Ct. App. 1987); Gem State Homes, Inc. v. Idaho Dep’t of Health & Welfare, 113 Idaho 23, 740 P.2d 65 (Ct. App. 1987); Department of Health & Welfare v. Sandoval, 113 Idaho 186, 742 P.2d 992 (Ct. App. 1987); J.M.F. Trucking, Inc. v. Carburetor & Elec. of Lewiston, Inc., 113 Idaho 797, 748 P.2d 381 (1987); Waters v. Double L, Inc., 114 Idaho 256, 755 P.2d 1294 (Ct. App. 1987); Vanoski v. Thomson, 114 Idaho 381, 757 P.2d 244 (Ct. App. 1988); Christensen v. Rice, 114 Idaho 929, 763 P.2d 302 (Ct. App. 1988); Lowery v. Board of County Comm’rs, 115 Idaho 64, 764 P.2d 431 (Ct. App. 1988); Inland Title Co. v. Comstock, 116 Idaho 701, 779 P.2d 15 (1989); Valley Bank v. Monarch Inv. Co., 118 Idaho 747, 800 P.2d 634 (1990); Callenders, Inc. v. Beckman, 120 Idaho 169, 814 P.2d 429 (Ct. App. 1991); USA Fertilizer, Inc. v. Idaho First Nat’l Bank, 120 Idaho 271, 815 P.2d 469 (Ct. App. 1991); Perkins v. Highland Enters., Inc., 120 Idaho 511, 817 P.2d 177 (1991); Krommenhoek v. A-Mark Precious Metals, Inc., 945 F.2d 309 (9th Cir. 1991); Hoff Companies, Inc. v. Danner, 121 Idaho 39, 822 P.2d 558 (Ct. App. 1991); Cuddy Mt. Concrete, Inc. v. Citadel Constr., Inc., 121 Idaho 220, 824 P.2d 151 (Ct. App. 1992); Phillips Indus., Inc. v. Firkins, 121 Idaho 693, 827 P.2d 706 (Ct. App. 1992); Berning v. Drumwright, 122 Idaho 203, 832 P.2d 1138 (Ct. App. 1992); Farm Credit Bank v. Wissel, 122 Idaho 565, 836 P.2d 511 (1992); Idaho First Nat’l Bank v. LeMaster, 147 Bankr. 52 (Bankr. D. Idaho 1992); State, Dep’t of Health & Welfare ex rel. Osborn v. Altman, 122 Idaho 1004, 842 P.2d 683 (1992); Figueroa v. Kit-San Co., 123 Idaho 149, 845 P.2d 567 (Ct. App. 1992); McCandless v. Carpenter, 123 Idaho 386, 848 P.2d 444 (Ct. App. 1993); St. Alphonsus Regional Medical Ctr., Ltd. v. Killeen, 124 Idaho 197, 858 P.2d 736 (1993); Suitts v. First Sec. Bank of Idaho, N.A., 125 Idaho 27, 867 P.2d 260 (Ct. App. 1993); Christensen v. Nelson, 125 Idaho 663, 873 P.2d 917 (Ct. App. 1994); J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994); Graham Capital Corp. v. Simpson, 126 Idaho 749, 890 P.2d 335 (1995); Bell Rapids Mut. Irrigation Co. v. Hausner, 126 Idaho 752, 890 P.2d 338 (1995); Pocatello Auto Color, Inc. v. Akzo Coatings, Inc., 127 Idaho 41, 896 P.2d 949 (1995); Haley v. Clinton, 128 Idaho 123, 910 P.2d 795 (Ct. App. 1996); Nationsbanc Mtg. Corp. v. Cazier, 127 Idaho 879, 908 P.2d 572 (Ct. App. 1995), cert. denied, 519 U.S. 864, 117 S. Ct. 172, 136 L. Ed. 2d 113 (1996); Pocatello R.R. Fed. Credit Union v. Dairyland Ins. Co., 129 Idaho 444, 926 P.2d 628 (1996); Star Phoenix Mining Co. v. Hecla Mining Co., 130 Idaho 223, 939 P.2d 542 (1997); Walker v. American Cyanamid Co., 130 Idaho 824, 948 P.2d 1123 (1997); Weaver v. Searle Bros., 131 Idaho 610, 962 P.2d 381 (1998); Smith v. Smith, 131 Idaho 800, 964 P.2d 667 (Ct. App. 1998); Hummer v. Evans, 132 Idaho 830, 979 P.2d 1188 (1999); Magic Valley Truck Brokers, Inc. v. Meyer, 133 Idaho 110, 982 P.2d 945 (Ct. App. 1999); Ramerth v. Hart, 133 Idaho 194, 983 P.2d 848 (1999); Corder v. Idaho Farmway, Inc., 133 Idaho 353, 986 P.2d 1019 (Ct. App. 1999); Klaue v. Hern, 133 Idaho 437, 988 P.2d 211 (1999); U.S. Bank Nat’l Ass’n v. Kuenzli, 134 Idaho 222, 999 P.2d 877 (2000); Dennett v. Kuenzli, 134 Idaho 229, 999 P.2d 884 (2000); Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (2000); Treasure Valley Gastroenterology Specialists, P.A. v. Woods, 135 Idaho 485, 20 P.3d 21 (Ct. App. 2001); Post v. Idaho Farmway, Inc., 135 Idaho 475, 20 P.3d 11 (2001); Corliss v. Wenner, 136 Idaho 417, 34 P.3d 1100 (Ct. App. 2001); Ahles v. Tabor, 136 Idaho 393, 34 P.3d 1076 (2001); Cornerstone Bldrs., Inc. v. McReynolds, 136 Idaho 843, 41 P.3d 271 (Ct. App. 2001); Belk v. Martin, 136 Idaho 652, 39 P.3d 592 (2001); Northwest Bec-Corp v. Home Living Serv., 136 Idaho 835, 41 P.3d 263 (2002); Gillingham Constr., Inc. v. Newby-Wiggins Constr., Inc., 136 Idaho 887, 42 P.3d 680 (2002); Sainsbury Constr. Co. v. Quinn, 137 Idaho 269, 47 P.3d 772 (Ct. App. 2002); Jen-Rath Co. v. KIT Mfg. Co., 137 Idaho 330, 48 P.3d 659 (2002); Thomas v. Arkoosh Produce, Inc., 137 Idaho 352, 48 P.3d 1241 (2002); Fox v. Mt. W. Elec., Inc., 137 Idaho 703, 52 P.3d 848 (2002); Primary Health Network v. State, 137 Idaho 663, 52 P.3d 307 (2002); Action Collection Serv. v. Seele, 138 Idaho 753, 69 P.3d 173 (Ct. App. 2003); Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035 (2003); Meikle v. Watson, 138 Idaho 680, 69 P.3d 100 (2003); Keller v. Inland Metals All Weather Conditioning, Inc., 139 Idaho 233, 76 P.3d 977 (2003); Pinnacle Eng’rs v. Heron Brook, LLC., 139 Idaho 756, 86 P.3d 470 (2004); Bakker v. Thunder Spring-Wareham, LLC, 141 Idaho 185, 108 P.3d 332 (2005); Blahd v. Richard B. Smith, Inc., 141 Idaho 296, 108 P.3d 996 (2005); Oldcastle Precast, Inc. v. Parktowne Constr., Inc., 142 Idaho 376, 128 P.3d 913 (2005); Hogg v. Wolske, 142 Idaho 549, 130 P.3d 1087 (2006); Fenn v. Noah, 142 Idaho 775, 133 P.3d 1240 (2006); Thirsty’s L.L.C. v. Tolerico, 143 Idaho 48, 137 P.3d 435 (2006); State v. District Court, 143 Idaho 695, 152 P.3d 566 (2007); Mannos v. Moss, 143 Idaho 927, 155 P.3d 1166 (2007); Baird Oil Co., Inc. v. Idaho State Tax Comm’n, 144 Idaho 229, 159 P.3d 866 (2007); Cannon v. Perry, 144 Idaho 728, 170 P.3d 393 (2007); Crowley v. Critchfield, 145 Idaho 509, 181 P.3d 435 (2007); Commercial Ventures v. Lea Family Trust, 145 Idaho 208, 177 P.3d 955 (2008); Jorgensen v. Coppedge, 145 Idaho 524, 181 P.3d 450 (2008); Losser v. Bradstreet, 145 Idaho 670, 183 P.3d 758 (2008); Harger v. Teton Springs Golf & Casting, LLC, 145 Idaho 716, 184 P.3d 841 (2008); BECO Constr. Co. v. J-U-B Eng’rs, Inc., 145 Idaho 719, 184 P.3d 844 (2008); Esser Elec. v. Lost River Ballistics Techs., Inc., 145 Idaho 912, 188 P.3d 854 (2008); Action Collection Servs. v. Bigham, 146 Idaho 286, 192 P.3d 1110 (Ct. App. 2008); Cantwell v. City of Boise, 146 Idaho 127, 191 P.3d 205 (2008); Nguyen v. Bui, 146 Idaho 187, 191 P.3d 1107 (Ct. App. 2008); Action Collection Serv. v. Haught, 146 Idaho 300, 193 P.3d 460 (Ct. App. 2008); Chavez v. Barrus, 146 Idaho 212, 192 P.3d 1036 (2008); Rhino Metals, Inc. v. Craft, 146 Idaho 319, 193 P.3d 866 (2008); Univ. of Idaho Found., Inc. v. Civic Partners, Inc. (In re Univ. Place/Idaho Water Ctr. Project), 146 Idaho 527, 199 P.3d 102 (2008); Bates v. Seldin, 146 Idaho 772, 203 P.3d 702 (2009); Borah v. McCandless, 147 Idaho 73, 205 P.3d 1209 (2009); Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009); Justad v. Ward, 147 Idaho 509, 211 P.3d 118 (2009); Am. Pension Servs. v. Cornerstone Home Builders, Llc, 147 Idaho 638, 213 P.3d 1038 (2009); Scott Beckstead Real Estate Co. v. City of Preston, 147 Idaho 852, 216 P.3d 141 (2009); Troupis v. Summer, 148 Idaho 77, 218 P.3d 1138 (2009); Johnson v. Hunt (In re Hunt), 2009 Bankr. LEXIS 4621 (Bankr. D. Idaho 2009); Sirius LC v. Erickson, 150 Idaho 80, 244 P.3d 224 (2010); Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240, 245 P.3d 992 (2010); Fazzio v. Mason, 150 Idaho 591, 249 P.3d 390 (2011); Thomas v. Thomas, 150 Idaho 636, 249 P.3d 829 (2011); Knipe Land Co. v. Robertson, 151 Idaho 449, 259 P.3d 595 (2011); Garner v. Povey, 151 Idaho 462, 259 P.3d 608 (2011); Hopkins Northwest Fund, LLC v. Landscapes Unlimited, LLC, 151 Idaho 740, 264 P.3d 379 (2011); Noak v. Idaho Dep’t of Corr., 152 Idaho 305, 271 P.3d 703 (2012); Hurtado v. Land O’Lakes, Inc., 153 Idaho 13, 278 P.3d 415 (2012); Dorion v. Keane, 153 Idaho 371, 283 P.3d 118 (Ct. App. 2012); Vanderwal v. Albar, Inc., 154 Idaho 816, 303 P.3d 175 (2013); Goodspeed v. Shippen, 154 Idaho 866, 303 P.3d 225 (2013); Intermountain Real Props., LLC v. Draw, LLC, 155 Idaho 313, 311 P.3d 734 (2013); Sanders v. Bd. of Trs. of the Mt. Home Sch. Dist. No. 193, 156 Idaho 269, 322 P.3d 1002 (2014); De Groot v. Standley Trenching, Inc., 157 Idaho 557, 338 P.3d 536 (2014); Safaris Unlimited, LLC v. Jones, 158 Idaho 846, 353 P.3d 1080 (2015); Kugler v. Nelson, 160 Idaho 408, 374 P.3d 571 (2016); Smith v. Smith, 160 Idaho 778, 379 P.3d 1048 (2016); Med. Recovery Servs., LLC v. Olsen, 160 Idaho 836, 379 P.3d 1106 (2016); Watkins Co., LLC v. Estate of Storms, 161 Idaho 683, 390 P.3d 409 (2017); AgStar Fin. Servs., ACA v. Northwest Sand & Gravel, Inc., 161 Idaho 801, 391 P.3d 1271 (2017); AgStar Fin. Servs., ACA v. Gordon Paving Co., Inc., 161 Idaho 817, 391 P.3d 1287 (2017); Green River Ranches, LLC v. Silva Land Co., LLC, 162 Idaho 385, 397 P.3d 1144 (2017); Idaho Indep. Bank v. Frantz, 162 Idaho 509, 399 P.3d 836 (2017); Swafford v. Huntsman Springs, Inc., 163 Idaho 209, 409 P.3d 789 (2017); Medical Recovery Servs., LLC v. Lopez, 163 Idaho 281, 411 P.3d 1182 (2018); Med. Recovery Servs., LLC v. Merritt, 163 Idaho 699, 417 P.3d 1025 (Ct. App. 2018); Lee v. Willow Creek Ranch Estates, 164 Idaho 396, 431 P.3d 4 (2018); Mulberry v. Burns Concrete, Inc., 164 Idaho 729, 435 P.3d 509 (2019); SilverWing at Sandpoint, LLC v. Bonner Cty., 164 Idaho 786, 435 P.3d 1106 (2019); Sec. Inv’r Fund LLC v. Crumb, — Idaho —, 443 P.3d 1036 (2019); Trumble v. Farm Bureau Mut. Ins. Co., — Idaho —, 456 P.3d 201 (2019); Ciccarello v. Davies, — Idaho —, 456 P.3d 519 (2019). What constitutes a reasonable fee is a discretionary determination for the trial court, to be guided by the criteria of Idaho R. Civ. P. 54(e)(3). Sanders v. Lankford, 134 Idaho 322, 1 P.3d 823 (Ct. App. 2000).

Retroactive Effect of Amendment.

State Agency.

Summary Judgment.

Wage Claim.

Cited

Retroactive Effect of Amendment.

State Agency.

Summary Judgment.

Wage Claim.

Cited

Retroactive Effect of Amendment.

State Agency.

Summary Judgment.

Wage Claim.

Cited

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

Am. Jur. 2d.

C.J.S.

ALR.

Prevailing union member’s right to recover attorneys’ fees in action against union or union officers. 9 A.L.R.3d 1045.

Necessity and sufficiency of notice and hearing as to allowance of suit money or counsel fees in divorce or other marital action. 10 A.L.R.3d 280.

Personal liability of executor or administrator for fees of attorney employed by him for the benefit of the estate. 13 A.L.R.3d 518.

Attorneys’ fees or other expenses of litigation as element in measuring exemplary or punitive damages. 30 A.L.R.3d 1443.

Wife’s right to award of counsel fees in final divorce judgment of trial or appellate court as affected by the fact that judgment was rendered against her. 32 A.L.R.3d 1227.

Allowance of attorneys’ fees in shippers’ action against carrier for loss of, or damage to, interstate shipment. 37 A.L.R.3d 1125.

Attorneys’ fees in class actions. 38 A.L.R.3d 1384.

Validity and construction of statute or rule allowing attorneys’ fees to out-of-state defendant successfully defending suit brought in state. 51 A.L.R.3d 1336.

Amount of compensation of attorney for service in insurance matters in absence of contract or statute fixing amount. 56 A.L.R.3d 187.

Amount of attorney’s compensation in absence of contract or statute fixing amount. 57 A.L.R.3d 475.

Amount of attorney’s compensation in matters involving guardianship and trusts. 57 A.L.R.3d 550.

Amount of attorneys’ fees in tort action. 57 A.L.R.3d 584.

Excessiveness or inadequacy of attorney’s fees in matters involving commercial and general business activities. 23 A.L.R.5th 241.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates. 58 A.L.R.3d 317. Amount of attorneys’ compensation in matters involving real estate. 58 A.L.R.3d 1336.

Dismissal of plaintiff’s action as entitling defendant to recover attorney’s fees or costs as “prevailing party” or “successful party”. 66 A.L.R.3d 1087.

Who is the “successful party” or “prevailing party” for purposes of awarding costs where both parties prevail on affirmative claims. 66 A.L.R.3d 1115.

Validity of statute allowing attorneys’ fees to successful claimant but not to defendant, or vice-versa. 73 A.L.R.3d 515.

Right of party who is attorney and appears for himself to award of attorney’s fees against opposing party as element of costs. 78 A.L.R.3d 1119.

Insured’s right to recover attorneys’ fees incurred in declaratory judgment action to determine existence of coverage under liability policy. 87 A.L.R.3d 429.

Taxpayer’s action, allowance of counsel fees in. 89 A.L.R.3d 690.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases. 17 A.L.R.5th 366.

Application and construction of state offer of judgment rule — Determining whether offeror is entitled to award. 2 A.L.R.6th 279.

Amount of attorneys’ fees under Federal Tort Claims Act, 86 A.L.R. Fed. 866.

§ 12-121. Attorney’s fees.

In any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation. This section shall not alter, repeal or amend any statute that otherwise provides for the award of attorney’s fees. The term “party” or “parties” is defined to include any person, partnership, corporation, association, private organization, the state of Idaho or political subdivision thereof.

History.

I.C., 12-121, as added by 1976, ch. 349, § 1, p. 1158; am. 1987, ch. 263, § 2, p. 555; am. 2017, ch. 47, § 2, p. 75.

STATUTORY NOTES

Amendments.

The 2017 amendment, by ch. 47, substituted “parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation. This section shall not alter, repeal or amend any statute that” for “parties, provided that this section shall not alter, repeal or amend any statute which” in the former first sentence.

Legislative Intent.

Section 1 of S.L. 2017, ch. 47 provided: “Legislative Intent. It is the intent of the Legislature, by enactment of this legislation, to reinstate and make no change to Idaho law on attorney’s fees as it existed before the Idaho Supreme Court’s decision in Hoffer v. Shappard , 2016 Opinion No. 105 [160 Idaho 870, 380 P.3d 681], September 28, 2016. To accomplish that goal, it is the Legislature’s intent that this legislation be construed in harmony with Idaho Supreme Court decisions on attorney’s fees that were issued before Hoffer v. Shappard .”

Effective Dates.

Section 4 of S.L. 2017 declared an emergency. Approved March 1, 2017.

CASE NOTES

Actions on Contracts.

Even if a county’s contract with a construction company is not absolutely void as between the parties to it, the lowest responsible bidder may nevertheless be entitled to injunctive relief against the company’s continued performance without a public works contractor’s license, and the lowest responsible bidder should be awarded reasonable attorney’s fees for the original proceedings in the trial court and on appeal. McKay Constr. Co. v. Ada County Bd. of County Comm’rs, 99 Idaho 235, 580 P.2d 412 (1978).

Although the vendors’ action for money damages and judicial sale may not have been the specific form of action contemplated by this provision for attorney’s fees, when this provision is read together with the other contractual provisions on remedies, which provide that the forfeiture remedy is not exclusive but cumulative to other remedies, it becomes apparent that the parties intended that the vendors be entitled to an award of attorney’s fees in the event judicial action was necessary to enforce the terms of the real estate contract. Christensen v. Christensen, 100 Idaho 733, 605 P.2d 80 (1979).

Actions on Contracts.

The more restrictive criteria set forth in Idaho R. Civ. P. 54(e)(1), for determining entitlement to an award of attorney’s fees under this section, are not applicable where claim for attorney’s fees is based upon a contract. Bank of Idaho v. Colley, 103 Idaho 320, 647 P.2d 776 (Ct. App. 1982). In an insurance coverage case, in which the insurer sought a judicial declaration that under a homeowner’s insurance policy it was neither obligated to defend the insured nor to cover claims against him arising from injuries sustained by the insured’s son in a swimming pool accident and in which the insurer ultimately prevailed, the court determined that there was a clear enough question of the insurance policy’s proper interpretation such that the award of attorney’s fees should be denied. Mutual of Enumclaw Ins. Co. v. Roberts, 128 Idaho 232, 912 P.2d 119 (1996).

Defendant, initially awarded default judgment in his breach of contract counterclaim and prevailing on plaintiff’s appeal to set aside judgment on Idaho R. Civ. P. 60(b) grounds, was awarded costs and attorney’s fees. In an action on a contract,§ 12-120(3) generally mandates an award of attorney’s fees to the prevailing party on appeal as well as at trial. Tyler v. Keeney, 128 Idaho 524, 915 P.2d 1382 (Ct. App. 1996).

Where real estate contract between the parties provided for an award of attorney’s fees to the prevailing party and the vendors fully prevailed on issues raised in the appeal by the buyers, vendors were awarded costs and reasonable attorney’s fees; yet because vendors did not prevail on their cross-appeal, buyers were entitled to costs and attorney’s fees under§ 12-120(3) for the defense of the cross-appeal; cost bills to be submitted by vendors and buyers were required to separately show the amounts incurred for prosecuting the appeal and cross-appeal and defending against the cross-appeal respectively. Toews v. Funk, 129 Idaho 316, 924 P.2d 217 (Ct. App. 1994).

In an action arising from a breach of a contract to design and construct a cabin, a wholesale supplier who prevailed on summary judgment was properly awarded costs and attorney’s fees pursuant to this section. Nelson v. Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004).

Actions on Mechanic’s Liens.

Prior to the enactment of this section in 1976, there was no statute which authorized the award of attorney’s fees on appeal in mechanic’s lien foreclosure actions. Therefore, since there was no other “statute which otherwise provides for the award of attorney’s fees” in mechanic’s lien foreclosure actions, this section authorized the supreme court to award reasonable attorney’s fees to the prevailing party. Acoustic Specialties, Inc. v. Wright, 103 Idaho 595, 651 P.2d 529 (1982).

Where the narrow focus of appeal by landlord from judgment imposing materialman’s lien was upon the application of settled law to undisputed facts and the landlord made no substantial showing that the district court misapplied the law, the court concluded that the appeal was brought and pursued without foundation and attorney’s fees would be awarded to the contractor in an amount to be determined as provided by Idaho App. R. 41(d). Christensen v. Idaho Land Developers, Inc., 104 Idaho 458, 660 P.2d 70 (Ct. App. 1983).

This section is the only statute which authorizes an award of attorney’s fees, on appeal, in actions to foreclose liens for labor and materials. Such an award will be made if the appeal has been brought, pursued or defended frivolously, unreasonably or without foundation. Christensen v. Idaho Land Developers, Inc., 104 Idaho 458, 660 P.2d 70 (Ct. App. 1983).

Although attorney’s fees on appeal by materialman’s lien claimants are not available pursuant to§ 45-513, an award could be made under this section if the appeal was brought frivolously, unreasonably or without foundation. Franklin Bldg. Supply Co. v. Sumpter, 139 Idaho 846, 87 P.3d 955 (2004). Because§ 45-513 is a specific statute providing for the award of attorney fees in proceedings to foreclose a mechanic’s lien,§§ 12-120(3) and 12-121, which are general statutes, do not apply. First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, Inc, 154 Idaho 626, 301 P.3d 632 (2012).

Administrative Appeal.

Attorney’s fees under this section are not available to parties in an appeal from an agency decision since the process of such an appeal is not begun by a complaint filed in a court action, as required by this section. Knight v. Department of Ins., 119 Idaho 591, 808 P.2d 1336 (Ct. App. 1991).

Court refused to grant an association attorney’s fees because such were not recoverable under this section related to an appeal from an agency decision, and the landowner presented legitimate issues for consideration on appeal. Brett v. Eleventh St. Dockowner’s Ass’n, 141 Idaho 517, 112 P.3d 805 (2005).

Idaho industrial commission did not err by failing to award attorney’s fees to a former client in a legal fee dispute with an attorney because the claim was one of first impression; moreover, there was no basis for awarding attorney’s fees on appeal under this section. Cheung v. Pena, 143 Idaho 30, 137 P.3d 417 (2006).

After Refusing Offer of Judgment.

Where plaintiff filed an assault and battery suit seeking general damages of $200,000, punitive damages of $50,000 and special damages of $1,000, and defendant prior to trial made an offer of judgment of $1,700 which was refused, after which the jury found in plaintiff’s favor, but awarded him only nominal damages of $1.00, it was proper for the trial court to award the defendant costs exceeding $800 and attorney’s fees exceeding $5,800 pursuant to this section, since Idaho R. Civ. P. 68 clearly entitles a party tendering offer of judgment to those costs accrued following an offer of judgment where the damages awarded are less than the offer of judgment where the trial court found pursuant to subsection (B) of Idaho R. Civ. P. 54(d)(1) that the defendant was the prevailing party. Odziemek v. Wesely, 102 Idaho 582, 634 P.2d 623 (1981).

Against County or Municipality.

Attorney’s fees may, in a proper case be asserted against a county or municipality, and an attorney fee award made pursuant to this section may properly be included as costs. Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980).

Against Department of Correction.

Where inmate’s petition alleged violations of due process at the correctional facility operated by the department of correction, it would have been error for the district court to have awarded fees and costs against the department under§ 12-117 since the award could have been made only under this section. Needs v. Idaho State Dep’t of Cor., 115 Idaho 399, 766 P.2d 1280 (Ct. App. 1988).

Against State Licensing Board.

Where apprentice barber successfully brought suit against the state board of barber examiners and won the right to be reexamined without additional schooling after he had failed the practical portion of the barber examination due to severe chest pains, it was within the trial court’s discretion to award costs pursuant to§ 12-101 and attorney’s fees pursuant to this section. Rickel v. Board of Barber Exmrs., 102 Idaho 260, 629 P.2d 656 (1981). Because§ 45-513 is a specific statute providing for the award of attorney fees in proceedings to foreclose a mechanic’s lien,§§ 12-120(3) and 12-121, which are general statutes, do not apply. First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, Inc, 154 Idaho 626, 301 P.3d 632 (2012).

Administrative Appeal.

After Refusing Offer of Judgment.

Against County or Municipality.

Against Department of Correction.

Where inmate’s petition alleged violations of due process at the correctional facility operated by the department of correction, it would have been error for the district court to have awarded fees and costs against the department under§ 12-117 since the award could have been made only under this section. Needs v. Idaho State Dep’t of Cor., 115 Idaho 399, 766 P.2d 1280 (Ct. App. 1988).

Against State Licensing Board.

Alternative Theory as Basis for Award.

Although plaintiff raised a genuine question of law and attorney’s fees were not awarded under this section, because plaintiff brought an action on a promissory note,§ 12-120 was deemed to be applicable and attorney’s fees were awarded under that section. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990).

Appeal of Award.

Separate certification of finality was not required for the order awarding attorney’s fees to be appealable when entered. Wilsey v. Fielding, 115 Idaho 437, 767 P.2d 280 (Ct. App. 1989).

An award of attorney’s fees at trial under Idaho R. Civ. P. 54(e) and this section is subject to reversal only upon a showing that the district court abused its discretion; where the district court found that the defendants unreasonably defended and pursued frivolous claims against plaintiff, the court of appeals held that there was no abuse of discretion in awarding attorney’s fees to plaintiff. United States Nat’l Bank v. Cox, 126 Idaho 733, 889 P.2d 1123 (Ct. App. 1995).

Where magistrate summarily dismissed defendant’s petition for habeas corpus relief and where, on appeal, the district court did not remand to the magistrate for an evidentiary hearing, the full nature and extent of the state’s defense to defendant’s petition was unknown, and based on the current record it was not possible to determine if the state’s actions met the criteria necessary under this section and Idaho App. R. 41 for an award of attorney’s fees to defendant, as such, the district court did not abuse its discretion in denying defendant his attorney’s fees in the intermediate appeal. Rendon v. Paskett, 126 Idaho 944, 894 P.2d 775 (Ct. App. 1995).

Appeal Without Foundation.

Section 45-513 provides no basis for a successful lien claimant to receive attorney’s fees on appeal. However, that does not insulate lien foreclosure cases from discretionary awards of attorney’s fees on appeal under this section. Therefore, where the appellate court has left with the abiding belief that an appeal was brought without foundation, it appropriately awarded attorney’s fees on appeal to the appellee. W.F. Constr. Co. v. Kalik, 103 Idaho 713, 652 P.2d 661 (Ct. App. 1982).

Attorney’s fees would not be awarded on appeal of tort claim case where appeal was free of bad faith and judgment from which both sides appealed was upheld in its entirety. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

In appeal where appellant did not show any findings of facts that were supported by the evidence and appellate court was not asked to establish any new legal standards, nor to modify or clarify any existing legal standards but the focus of the appeal was the application of settled law to facts, attorney’s fees were awarded to appellee. Scott v. Castle, 104 Idaho 719, 662 P.2d 1163 (Ct. App. 1983).

An award of attorney’s fees on appeal is appropriate when the appeal is brought or defended frivolously, unreasonably, or without foundation. Gatchel v. Butler, 104 Idaho 876, 664 P.2d 783 (Ct. App. 1983).

Alternative Theory as Basis for Award.

Where appellants challenging order reducing attorney’s fees for administratrix of estate did not point to any findings of fact which were clearly, or even arguably, unsupported by substantial and competent evidence, presented no significant issue on a question of law, did not request that the court establish any new legal standards nor that the court modify or clarify any existing standards, and where the narrow focus of the appeal was the application of settled law to the facts and there was no showing that the magistrate misapplied the law, the appeal from the district court was brought unreasonably and without foundation; hence, attorney’s fees on appeal were awarded to the respondent heirs in an amount to be determined as provided in Idaho App. R. 41(d). Gatchel v. Butler, 104 Idaho 876, 664 P.2d 783 (Ct. App. 1983). Alternative Theory as Basis for Award.

Appeal of Award.

Separate certification of finality was not required for the order awarding attorney’s fees to be appealable when entered. Wilsey v. Fielding, 115 Idaho 437, 767 P.2d 280 (Ct. App. 1989).

Appeal Without Foundation.

How the trial court exercised his discretion below is not controlling on supreme court’s determination of whether or not appeal was brought frivolously, unreasonably, and without foundation. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

Where parents of man killed in accident brought separate action asserting that they were heirs within the meaning of the Idaho wrongful death statute when clearly they were not, and when they knew that a prior action had been brought by the wife and minor child who, under Idaho law, were clearly the proper persons to bring that action, such case was a proper case for the award of attorney’s fees on appeal. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

Although the defendant’s arguments to the supreme court superficially read reasonably, its contentions in fact were unreasonably grounded; therefore, the district court correctly awarded attorney’s fees to the plaintiff. O’Boskey v. First Fed. Sav. & Loan Ass’n, 112 Idaho 1002, 739 P.2d 301 (1987).

A taxpayer whose appeal from a decision awarding county payment of delinquent personal property taxes raised frivolous and nonfrivolous issues was liable for attorney’s fees only as to issues raised frivolously, unreasonably or without foundation. Childers v. Wolters, 115 Idaho 527, 768 P.2d 790 (Ct. App. 1988).

Where appellant failed on appeal to present any significant issue regarding a question of law, where no findings of fact made by the district court were clearly or arguably unsupported by substantial evidence, where the court was not asked to establish any new legal standards or modify existing ones, and where the focus of the case was the application of settled law to the facts, the appeal was deemed to be unreasonable and without foundation and attorney’s fees were awarded the appellee. Excel Leasing Co. v. Christensen, 115 Idaho 708, 769 P.2d 585 (Ct. App. 1989).

After plaintiff’s attorneys had lost on their lien claim for fees and costs in one county, the appropriate remedy would have been to perfect an appeal in that proceeding, and subjecting the defendants to further litigation in another county on the same issue was unreasonable; the court also decided that, once the res judicata defense became blatantly apparent, further litigation became frivolous and an award of fees was properly made under Idaho R. Civ. P. 54(e)(1) to defendants. Cole v. Kunzler, 115 Idaho 552, 768 P.2d 815 (Ct. App. 1989).

An award under this section will be made if the appellate court finds that an appeal was brought or pursued unreasonably or without foundation; namely, when an appeal turns on the application of settled law to undisputed facts, and the appellant has made no substantial showing that the lower court misapplied the law. Wolske Bros. v. Hudspeth Sawmill Co., 116 Idaho 714, 779 P.2d 28 (Ct. App. 1989). In an appeal by the defendant in a paternity suit where the state did not contend that the defendant was involved in any litigative misconduct, but it simply argued the defendant’s appeal was meritless, the state was awarded attorney’s fees under this section rather than under Idaho R. Civ. P. 11(a)(1). State of Alaska ex rel. Sweat v. Hansen, 116 Idaho 927, 782 P.2d 50 (Ct. App. 1989).

Where the appellant fails to present any significant issue on appeal regarding a question of law, where no findings of fact made by the trial court are clearly or arguably unsupported by substantial evidence, where the appellate court is not asked to establish any new legal standards or modify existing ones, and where the focus of the case is on the application of settled law to the facts, the appeal is deemed to be without foundation. Troche v. Gier, 118 Idaho 740, 800 P.2d 136 (Ct. App. 1990).

Where buyer of property challenged only the court’s factual findings, involving unjust enrichment and subrogation, upon which there was disputed evidence, and buyer made no convincing showing that the court misapplied the law, seller was entitled to an award of attorney’s fees on appeal. Cozzetto v. Wisman, 120 Idaho 721, 819 P.2d 575 (Ct. App. 1991).

Where the only serious question presented was whether the term “judicial proceeding” encompassed the letters written two weeks after the taking of a default judgment in which the attorney informed the trial court of a possible fraud and requested that the court inquire into the matter, in light of the case law and the clearly enunciated policy behind the rule granting immunity for such communications, the appeal was unreasonable and without adequate legal foundation. Therefore, attorney’s fees were proper for the respondents on appeal. Malmin v. Engler, 124 Idaho 733, 864 P.2d 179 (Ct. App. 1993).

Where appellee asked the court of appeals to award attorney’s fees on appeal under this section and Idaho R. Civ. P. 54(e) due to her claim that the appeal was brought “frivolously, unreasonably, and without foundation,” the court of appeals noted that, under Idaho App. R. 11.1, it could award fees against a party or the party’s attorney involved in the appeal of its own motion and held that by failing to appeal an Idaho R. Civ. P. 9(b) dismissal, the appellant could not have prevailed under any circumstances and awarded costs and attorney’s fees against appellant’s counsel, as it was the responsibility of the attorney, not the client, to recognize the legal basis upon which an order was granted and to properly evaluate whether or not good faith grounds existed for an appeal. MacLeod v. Reed, 126 Idaho 669, 889 P.2d 103 (Ct. App. 1995).

In action to quiet title, plaintiffs were entitled to attorney’s fees accrued on appeal of magistrate’s decision to district court where such appeal was unreasonable in that the defendants sought to have the district court reinterpret conflicting evidence. Shettel v. Bamesberger, 130 Idaho 217, 938 P.2d 1255 (Ct. App. 1997).

Where plaintiff failed to provide argument or authority in support of the only issues on appeal that were properly before the court, the appeal was brought and pursued frivolously, unreasonably, and without foundation; thus, defendants were entitled to attorney’s fees and costs on appeal pursuant to this section, Idaho R. Civ. P. 54(e)(1), and Idaho App. R. 41. Anson v. Les Bois Race Track, Inc., 130 Idaho 303, 939 P.2d 1382 (1997).

Where defendant’s appeal merely invited the appellate court to second-guess the trial court on conflicting evidence, the plaintiff was entitled to an award of reasonable attorney’s fees. DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999); Crowley v. Critchfield, 145 Idaho 509, 181 P.3d 435 (2007).

Attorney’s fees were properly awarded to the insurer on the grounds that the owner’s case was without foundation. Graham v. State Farm Mut. Auto. Ins. Co., 138 Idaho 611, 67 P.3d 90 (2003). In an appeal by the defendant in a paternity suit where the state did not contend that the defendant was involved in any litigative misconduct, but it simply argued the defendant’s appeal was meritless, the state was awarded attorney’s fees under this section rather than under Idaho R. Civ. P. 11(a)(1). State of Alaska ex rel. Sweat v. Hansen, 116 Idaho 927, 782 P.2d 50 (Ct. App. 1989).

Attorney’s fees were properly awarded to the insurer on the grounds that the owner’s case was without foundation. Graham v. State Farm Mut. Auto. Ins. Co., 138 Idaho 611, 67 P.3d 90 (2003). Appellate court awarded attorney’s fees to a cow owner, a pasture owner, and the state in a personal injury action brought by injured parties who struck a cow on a highway, as the injured parties’ arguments on appeal totally lacked foundation. Karlson v. Harris, 140 Idaho 561, 97 P.3d 428 (2004).

Because appellant provided absolutely no argument or authority that would even remotely support his assertion that he had standing to appeal, and all he did was increase the cost to the parties, the district court did not abuse its discretion in awarding the parents attorney fees on the ground that appellant brought the appeal unreasonably and without foundation. Abolafia v. Reeves, 152 Idaho 898, 277 P.3d 345 (2012).

— Well Settled Questions of Law.

Where an appeal turns on questions of law, attorney’s fees will be awarded under this section if the law is well settled and the appellant has made no substantial showing that the district court misapplied the law. Andrews v. Idaho Forest Indus., Inc., 117 Idaho 195, 786 P.2d 586 (Ct. App. 1990).

Where an appellant’s argument hinges on a question of law, attorney’s fees will be awarded under this section, if the question of law is clearly settled and the appellant makes no substantial showing that the district court misapplied the law. Hutchinson v. State, 134 Idaho 18, 995 P.2d 363 (Ct. App. 1999).

Appeals in Divorce Cases.

Where an appeal in a divorce a case is brought frivolously and without foundation, an appellate court may award fees under this section. In such case, the amount awarded is fixed by reference to Idaho R. Civ. P. 54(e)(3) which enables the judge to consider the factors listed in§ 32-705 and incorporated by reference into§ 32-704(2). In this way, this section plays a role in divorce cases without unduly encroaching upon the financial assistance scheme contemplated by§ 32-704(2). Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Where husband, appealing property division pursuant to divorce proceeding, attempted to reargue facts that he was unable to establish at trial, attempted to introduce new facts and evidence that were not in the record below, and made no cogent legal arguments or request for a repeal or modification of existing law, an award of attorney’s fees under this section and Idaho R. Civ. P. 54(e)(1) was appropriate. Huerta v. Huerta, 127 Idaho 77, 896 P.2d 985 (Ct. App. 1995).

Where record did not indicate that either party in modification proceeding brought, pursued, or responded unreasonably or frivolously to appeal, an award of attorney’s fees to either party would have been inappropriate in case. Jensen v. Jensen, 128 Idaho 600, 917 P.2d 757 (1996).

Because ex-husband, seeking attorney’s fees in appeal, which affirmed judgment denying ex-wife past spousal support payments, failed to include any argument to support the claim to attorney’s fees, his request was summarily denied. Toyama v. Toyama, 129 Idaho 142, 922 P.2d 1068 (1996).

Where former husband presented no argument or authority to show that the magistrate abused its discretion in dividing and valuing retirement benefits under the reserved jurisdiction method by utilizing established time rule instead of the accrued benefits method the district court properly awarded former wife attorney’s fees pursuant to the appeal. Moreover, the former wife was entitled to attorney’s fees pursuant to former husband’s appeal to the supreme court. Hunt v. Hunt, 137 Idaho 18, 43 P.3d 777 (2002). Appellate court awarded attorney’s fees to a cow owner, a pasture owner, and the state in a personal injury action brought by injured parties who struck a cow on a highway, as the injured parties’ arguments on appeal totally lacked foundation. Karlson v. Harris, 140 Idaho 561, 97 P.3d 428 (2004).

— Well Settled Questions of Law.

Appeals in Divorce Cases.

Where former husband presented no argument or authority to show that the magistrate abused its discretion in dividing and valuing retirement benefits under the reserved jurisdiction method by utilizing established time rule instead of the accrued benefits method the district court properly awarded former wife attorney’s fees pursuant to the appeal. Moreover, the former wife was entitled to attorney’s fees pursuant to former husband’s appeal to the supreme court. Hunt v. Hunt, 137 Idaho 18, 43 P.3d 777 (2002). Considering the almost eight years of litigation and the fact that the father acted as his own attorney repeatedly and brought the instant appeal without factual basis, the appeal was frivolous, unreasonable, and without foundation; as such, an award of attorney fees on appeal to the mother was appropriate. Nelson v. Nelson, 144 Idaho 710, 170 P.3d 375 (2007).

Applicability of § 6-918A.

To the extent of any conflict between this section and§ 6-918A, the court applies§ 6-918A. It is not only the later statute, but also a more specific statement of the legislature’s intent about the award of attorney’s fees in tort claims cases. Tomich v. City of Pocatello, 127 Idaho 394, 901 P.2d 501 (1995).

Applicability of Idaho R. Civ. P. 11(a)(1).

Idaho R. Civ. P. 11(a)(1) does not exist to duplicate this section, which has long been construed to authorize an attorney fee award in any civil case brought frivolously, unreasonably, or without foundation. Rather, the rule serves a separate, cognizable purpose, focusing upon discrete pleading abuses or other types of litigative misconduct within the overall course of a lawsuit. State of Alaska ex rel. Sweat v. Hansen, 116 Idaho 927, 782 P.2d 50 (Ct. App. 1989).

Idaho R. Civ. P. 11(a)(1) does not duplicate this section, and the circumstances that justify an award of fees under that statute do no necessarily call for imposition of Rule 11 sanctions. Landvik ex rel. Landvik v. Herbert, 130 Idaho 54, 936 P.2d 697 (Ct. App. 1997).

Applicability of Idaho R. Civ. P. 54(e)(1).

The application of this section to a claim for relief which arose prior to the enactment of that section, but tried after the section became law, is not an improper retroactive application of that section since it is remedial and procedural and does not affect the substantive claim for relief. Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978); Buckalew v. City of Grangeville, 100 Idaho 460, 600 P.2d 136 (1979).

This section’s general award of attorney’s fees is inconsistent with the more specific provision of§ 1-2311 in regard to awarding attorney’s fees to prevailing parties in an appeal from the small claims department, and this section is, therefore, not applicable to the award of attorney’s fees on such appeals. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Application of this section to a claim for relief which arose prior to the enactment of the section but was tried after the section became law was not an improper retroactive application of the section since the provisions of this section are remedial and procedural and do not affect the substantive claim for relief. Neilsen & Co. v. Cassia & Twin Falls County Joint Class A School Dist. 151, 103 Idaho 317, 647 P.2d 773 (Ct. App. 1982).

Where action was filed prior to effective date of Idaho R. Civ. P. 54(e)(1), but heard after that date, the standards imposed by that rule did not apply and the decision to award attorney’s fees rested in the sound discretion of the trial court pursuant to this section. Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982).

Where the trial judge incorrectly assumed that he was bound by the provisions of Idaho Civil Procedure 54(e)(1) and that he had no discretion to exercise under this section in the matter of the award of attorney’s fees, when in fact Idaho R. Civ. P. 54(e)(1) did not become effective until over a year after the case was filed, attorney’s fees were denied on improper grounds; therefore, the case should be remanded so that the trial court could decide, in the proper exercise of its discretion, whether to award attorney’s fees. Barnes v. Hinton, 103 Idaho 619, 651 P.2d 553 (Ct. App. 1982). Considering the almost eight years of litigation and the fact that the father acted as his own attorney repeatedly and brought the instant appeal without factual basis, the appeal was frivolous, unreasonable, and without foundation; as such, an award of attorney fees on appeal to the mother was appropriate. Nelson v. Nelson, 144 Idaho 710, 170 P.3d 375 (2007).

Applicability of § 6-918A.

Applicability of Idaho R. Civ. P. 11(a)(1).

Applicability of Idaho R. Civ. P. 54(e)(1).

Where the trial judge incorrectly assumed that he was bound by the provisions of Idaho Civil Procedure 54(e)(1) and that he had no discretion to exercise under this section in the matter of the award of attorney’s fees, when in fact Idaho R. Civ. P. 54(e)(1) did not become effective until over a year after the case was filed, attorney’s fees were denied on improper grounds; therefore, the case should be remanded so that the trial court could decide, in the proper exercise of its discretion, whether to award attorney’s fees. Barnes v. Hinton, 103 Idaho 619, 651 P.2d 553 (Ct. App. 1982). In case filed prior to adoption of Idaho R. Civ. P. 54(e)(1), a trial court could award attorney’s fees to the prevailing party in its discretion, without the limitations now stated in the rule. Briscoe v. Nishitani, 105 Idaho 175, 667 P.2d 278 (Ct. App. 1983).

Even if Idaho R. Civ. P. 54(e)(1) was inapplicable to case filed before effective date of rule, it was permissible for the district court to apply the conceptual principles of the rule; but where the court had the alternative of applying the principles of Idaho R. Civ. P. 54(e)(1), or of applying another principle, i.e., the “prevailing party” provision of this section, unfettered by the limitation subsequently imposed on the statute by Idaho R. Civ. P. 54(e)(1) on March 1, 1979, and the court chose the latter and stated reasons for that choice, there was no abuse of discretion in making that decision. Ladd v. Coats, 105 Idaho 250, 668 P.2d 126 (Ct. App. 1983).

In determining whether Idaho R. Civ. P. 54(e)(1) applies in a particular case, the relevant date is the date on which the cause of action was filed; therefore, the standard imposed by Idaho R. Civ. P. 54(e)(1) was not applicable to case filed prior to adoption of rule, even though attorney’s fees were awarded after effective date of rule, and the award of attorney’s fees under this section was within the discretion of the trial court. Cottonwood Elevator Co. v. Zenner, 105 Idaho 469, 670 P.2d 876 (1983).

Idaho R. Civ. P. 54(e)(1) applies only to actions filed after March 1, 1979; consequently, where action was filed in September, 1975, the trial judge incorrectly determined that he was bound by Idaho R. Civ. P. 54(e)(1) and denied attorney’s fees on improper grounds. Jones v. Mountain States Tel. & Tel. Co., 105 Idaho 520, 670 P.2d 1305 (Ct. App. 1983).

The award of attorney’s fees under this section and Idaho R. Civ. P. 54(e)(1) at the trial level is a matter within the trial court’s discretion. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

Section 12-120(2) should not be extended by judicial construction to mandate an attorney fee award on appeal where the sole issue is the reasonableness of an amount awarded below, however an award still may be allowed under this section in such a case. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

It was within the discretion of the district court to award attorney’s fees under this section without making findings as required by Idaho R. Civ. P. 54(e)(1), where the action was filed prior to the effective date of Idaho R. Civ. P. 54(e)(1). Pickering v. El Jay Equip. Co., 108 Idaho 512, 700 P.2d 134 (Ct. App. 1985).

Idaho R. Civ. P. 54(e)(1) creates no independent right to attorney’s fees, but merely establishes a framework for applying this section. Robison v. State, Dep’t of Health & Welfare, 107 Idaho 1055, 695 P.2d 440 (Ct. App. 1985).

Where the action was instituted prior to the effective date of Idaho R. Civ. P. 54(e)(1) the district court was not required to find that the case was brought or pursued “frivolously, unreasonably or without foundation,” prior to awarding fees under the provisions of this section. Curtis v. City of Ketchum, 111 Idaho 27, 720 P.2d 210 (1986).

Attorney’s fees should be awarded under this section only if the position advocated by the nonprevailing party is plainly fallacious and, therefore, not fairly debatable. Associates N.W. v. Beets, 112 Idaho 603, 733 P.2d 824 (Ct. App. 1987).

Where the action was filed before March 1, 1979, the effective date of Idaho R. Civ. P. 54(e)(1), an award of fees under this section was not contingent upon a finding that the action was defended frivolously, unreasonably or without foundation; standing alone this section gave the district court broad discretion to award attorney’s fees. R.T. Nahas Co. v. Hulet, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988). This section has been supplemented by Idaho R. Civ. P. 54(e)(1) and 54(e)(2). Rule 54(e)(1) provides that attorney’s fees under this section may be awarded only when the court finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation. Additionally, Rule 54(e)(2) requires the court — whenever an award of fees is made pursuant to this section — to make a written finding, either in the award or in a separate document, as to the basis and reasons for awarding such fees. The purpose of giving the reasons for such an award (as well as stating reasons when no award is made) is to provide the appellate court with a meaningful basis to review the trial court’s exercise of discretion. Needs v. Idaho State Dep’t of Cor., 115 Idaho 399, 766 P.2d 1280 (Ct. App. 1988).

Under Idaho R. Civ. P. 54(e)(1), an award of attorney’s fees under this section may be made only if the trial court finds that a claim was brought or defended frivolously, unreasonably or without foundation. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

Attorney’s fees may not be awarded under this section and Idaho R. Civ. P. 54(e)(1) when there is a legitimate, triable issue of fact to be submitted to a jury, but one (or perhaps both) of the parties assert legal or factual issues which have no support in the law or the facts. Turner v. Willis, 119 Idaho 1023, 812 P.2d 737 (1991).

Where wife argued that an award of attorney’s fees at trial and on appeal to the district court was proper under this section and under provisions of the parties settlement agreement, the supreme court held that an award of attorney’s fees could not be based on this section because Idaho R. Civ. P. 54(e)(1) supplemented this section and allowed attorney’s fees to be awarded by the court only if an action was brought frivolously, unreasonably or without foundation, which was not the situation in the instant case. Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995).

Where the magistrate found that the children of the deceased were the prevailing parties in an action to remove the personal representative of the estate and that they met the criteria for an award of attorney’s fees under this section and Idaho R. Civ. P. 54(d)(1)(B), and where the magistrate further found, pursuant to Rules 54(d)(1)(B) and 54(e)(1) that the personal representative’s bad faith misuse of estate funds supported the conclusion that her defense of the removal was unreasonable and frivolous, it was not an abuse of discretion for the magistrate to award attorney’s fees to the estate for the removal proceedings. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Where neither party pursued nor defended an appeal frivolously, unreasonably or without foundation, neither was entitled to an award of attorney’s fees on appeal. McAffee v. McAffee, 132 Idaho 281, 971 P.2d 734 (Ct. App. 1999).

Where the supreme court affirmed the lower court on the contractual issues in a case involving a lease, holding that the lease did not exempt the defendant from liability for fires it negligently caused, the plaintiff was entitled to an award of costs and attorney’s fees pursuant to the terms of the lease. Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., 132 Idaho 295, 971 P.2d 1119 (1998).

Appointment of Personal Representative.

Where the cross-claimant failed to specifically argue in any of her briefs that the magistrate erred, where she failed to provide any authority for reversal, and where the court found her cross-claim to be frivolously pursued and without foundation, the recognition by the magistrate that the issue of the award of attorney’s fees was one of discretion supported a finding that there was no abuse of discretion in the awarding of fees against the cross-claimant. Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 979 P.2d 605 (1999). Appointment of Personal Representative.

If the estate itself, as apart from the personal representative of the estate, was to be entitled to an award of attorney’s fees against the surviving spouse, it would be necessary for the estate to establish that the defense by the surviving spouse to an appeal from the order appointing a personal representative was being maintained frivolously, unreasonably or without foundation. Shaw v. Bowman, 101 Idaho 131, 609 P.2d 663 (1980).

Attorney’s Fees on Appeal.

Where a plaintiff wife brought an appeal to a district court from a magistrate’s determination of property issues in a divorce action, the wife’s failure to object to the memorandum of costs filed by the defendant husband in the district court did not constitute a waiver of all objections to the claimed attorney’s fees, because the district judge was sitting as an appellate court in this action and, therefore, the district judge was required to determine the appeal in the same manner and upon the same standards of review as an appeal from the district court to the supreme court; thus, Idaho App. R. 41 governed the procedure for applying for attorney’s fees on appeal. Griffin v. Griffin, 102 Idaho 858, 642 P.2d 949 (Ct. App. 1982).

Where plaintiffs presented no persuasive argument in support of the contention that the district court, in granting attorney’s fees to defendant, abused its discretion or misapplied the law, attorney’s fees on appeal were also awarded to defendant. Durrant v. Christensen, 117 Idaho 70, 785 P.2d 634 (1990).

Where judgment for plaintiffs was reversed on appeal, they were not entitled to costs or attorney’s fees. Erickson v. State, 132 Idaho 208, 970 P.2d 1 (1998).

The defendants were not entitled to fees on appeal where the plaintiff did not prevail, but the appeal was not frivolous, unreasonable or without foundation. Nerco Minerals Co. v. Morrison Knudsen Corp., 132 Idaho 531, 976 P.2d 457 (1999).

Where the record did not reflect that the plaintiffs’ claims were brought or pursued frivolously, but that their arguments had at least some foundation, attorney’s fees were not awarded on appeal. Baker v. Sullivan, 132 Idaho 746, 979 P.2d 619 (1999).

Where an appeal was not brought frivolously, the prevailing party was only entitled to costs on appeal, and not attorney’s fees. Schilling v. Allstate Ins. Co., 132 Idaho 927, 980 P.2d 1014 (1999), overruled on other grounds, Greenough v. Farm Bureau Mut. Ins. Co., 142 Idaho 589, 130 P.3d 1127 (2006) and Cranney v. Mutual of Enumclaw Ins. Co., 145 Idaho 6, 175 P.3d 168 (2007).

An appeal was not frivolously pursued where the question raised on appeal was the point at which there is objective proof that an individual has suffered some actual damage following a jury trial. Rice v. Litster, 132 Idaho 897, 980 P.2d 561 (1999).

Where the non-prevailing party presented legitimate issues to the reviewing court, no attorney’s fees were awarded to the prevailing party. Lamar Corp. v. City of Twin Falls, 133 Idaho 36, 981 P.2d 1146 (1999).

Where the defendants had asked the appellate court to reevaluate or second-guess the trial court’s findings based on conflicting evidence and had failed to present any substantial legal argument, the plaintiff was entitled to attorney’s fees on appeal. Rowley v. Fuhrman, 133 Idaho 105, 982 P.2d 940 (1999). The defendant’s request for attorney’s fees on appeal was denied where the plaintiff’s appeal was not brought or pursued frivolously, unreasonably or without foundation. Richard J. & Esther E. Wooley Trust v. DeBest Plumbing, Inc., 133 Idaho 180, 983 P.2d 834 (1999).

The reviewing court declined to award attorney’s fees on appeal where the defendant brought some legitimate issues before the court and did not pursue its appeal “frivolously, unreasonably, or without foundation.” Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000).

Defendant was awarded attorney’s fees on appeal where plaintiff argued numerous issues which he failed to preserve for appeal by proper objection, argued with findings of fact and invited the appellate court to substitute its own judgment for that of the trial court, and urged the court to ignore firmly-established law. Kirkman v. Stoker, 134 Idaho 541, 6 P.3d 397 (Ct. App. 2000).

Wife was denied an award of attorney’s fees on appeal pursuant to this section because the appeal by the husband had not been brought frivolously or without foundation. Perez v. Perez, 134 Idaho 555, 6 P.3d 411 (Ct. App. 2000).

Because the appeal involved an issue of law concerning the application of state or federal law on a federal law claim brought in state court and this issue had not been decided previously by the Idaho supreme court, the court refused to award attorney’s fees. Stanley v. McDaniel, 134 Idaho 630, 7 P.3d 1107 (2000).

Claims for the award of attorney’s fees under this section were denied because attorney’s fees are not available to a party on appeal from an agency decision under this section. Staff of State Real Estate Comm’n v. Nordling, 135 Idaho 630, 22 P.3d 105 (2001).

Wife’s claim for attorney’s fees was denied where she was not the prevailing party on appeal, and she failed to cite to a statute or other authority as a basis for her request. Brinkmeyer v. Brinkmeyer, 135 Idaho 596, 21 P.3d 918 (2001).

Where plaintiff’s challenge to the application of boundary by agreement was not brought or pursued frivolously, unreasonably, and without foundation, defendant was not entitled to his attorney’s fees on appeal. Stafford v. Weaver, 136 Idaho 223, 31 P.3d 245 (2001).

Court properly declined to award the father attorney’s fees on appeal because the mother’s argument that the father should have been found to be a habitual perpetrator of domestic violence was not frivolous, unreasonable, or without foundation. King v. King, 137 Idaho 438, 50 P.3d 453 (2002).

Party was not entitled to attorney’s fees under this section on the other party’s appeal to the district court because the appeal presented a legal question of first impression, and the other party was not entitled to attorney’s fees because of not being the prevailing party on appeal. Gustaves v. Gustaves, 138 Idaho 64, 57 P.3d 775 (2002).

Attorney’s fees were not awarded to the sister where the brother’s belief that he did not oust the sister from the parties’ house was not necessarily imprudent and there was no Idaho case law from which the brother could seek guidance on the issue; therefore, the brother’s appeal was not frivolous, unreasonable, and without merit. Cox v. Cox, 138 Idaho 881, 71 P.3d 1028 (2003).

No attorney’s fees were awarded to either party where neither party brought or defended an appeal frivolously, unreasonably, or without foundation. Pike v. Pike, 139 Idaho 406, 80 P.3d 342 (Ct. App. 2003).

Because parties intentionally chose not to obtain a marriage license and their purported marriage violated state law, summary judgment was properly awarded to defendant in plaintiff’s action for divorce, and defendant was entitled to an award of attorney’s fees on appeal. Dire v. Dire-Blodgett, 140 Idaho 777, 102 P.3d 1096 (2004). The defendant’s request for attorney’s fees on appeal was denied where the plaintiff’s appeal was not brought or pursued frivolously, unreasonably or without foundation. Richard J. & Esther E. Wooley Trust v. DeBest Plumbing, Inc., 133 Idaho 180, 983 P.2d 834 (1999).

Because parties intentionally chose not to obtain a marriage license and their purported marriage violated state law, summary judgment was properly awarded to defendant in plaintiff’s action for divorce, and defendant was entitled to an award of attorney’s fees on appeal. Dire v. Dire-Blodgett, 140 Idaho 777, 102 P.3d 1096 (2004). No award of attorney’s fees to the Idaho industrial commission was warranted where the issues raised by the workers were not frivolous; an award of attorney’s fees on appeal under this section is appropriate only when the appeal is brought or defended frivolously, unreasonably or without foundation. Owsley v. Idaho Indus. Comm’n, 141 Idaho 129, 106 P.3d 455 (2005).

In trespass case, reviewing court declined to award the owners attorney’s fees on appeal because the neighbors had raised valid issues necessitating remand to the district court. Akers v. D. L. White Constr., Inc., 142 Idaho 293, 127 P.3d 196 (2005).

While respondent prevailed on appeal, appellant presented a cogent challenge to the district court’s reading of Idaho R. Civ. P. 37(c) and presented legitimate arguments questioning the district court’s conclusion that her denial of respondents’ requests to admit was unreasonable. The appeal of the Rule 37(c) award was not frivolous and, therefore, respondent was not entitled to attorney’s fees on appeal. Contreras v. Rubley, 142 Idaho 573, 130 P.3d 1111 (2006).

District court erroneously characterized the father’s appeal as frivolous where, in view of the decisions of other jurisdictions, holding that questions of work schedules and daycare should not be determinative of child custody, and given that the appellate courts had never directly addressed the question, the father’s appeal was not frivolous; his appeal raised a substantive legal issue. Silva v. Silva, 142 Idaho 900, 136 P.3d 371 (Ct. App. 2006).

Respondents were entitled to attorney’s fees incurred on appeal, because the appellate court’s precedents clearly and repeatedly held that the grounds upon which a court could review an arbitrator’s decision were narrow and specifically delineated, and complaints about factual and legal rulings were not among them. Mumford v. Miller, 143 Idaho 99, 137 P.3d 1021 (2006).

Board of county commissioners was not entitled to attorney’s fees on appeal because the landowner, who challenged the issuance of a permit for a subdivision, did not bring the appeal frivolously. Cowan v. Bd. of Comm’rs, 143 Idaho 501, 148 P.3d 1247 (2006).

Because of a mixed result in an easement dispute alleging trespass, neither party was entitled to recover attorney’s fees on appeal. There was no basis for finding that the appeal was frivolous or unreasonable. Ransom v. Topaz Mktg., L.P., 143 Idaho 641, 152 P.3d 2 (2006).

Attorney fees were not awarded in an appeal involving an easement because neither party acted frivolously. Capstar Radio Operating Co. v. Lawrence, 143 Idaho 704, 152 P.3d 575 (2007).

Adverse summary judgment awarded in an action by an estate, on behalf of a limited liability company, to void allegedly fraudulent conveyances of property did not require an award of attorney fees on appeal because the appeal was not devoid of legitimate issues of law. Estate of E.A. Collins v. Geist, 143 Idaho 821, 153 P.3d 1167 (2007).

In a medical malpractice case, neither party was entitled to attorney fees on appeal; a patient and her husband were not the prevailing parties, and their appeal was not frivolous or unreasonable. McDaniel v. Inland Northwest Renal Care Group-Idaho, L.L.C., 144 Idaho 219, 159 P.3d 856 (2007).

In a collection suit, no attorney fees were awarded on appeal since there was no prevailing party; although a portion of the decision awarding only $200 in attorney fees to a debt collector was upheld, a portion of the decision relating to an award of paralegal fees was remanded for further consideration. Medical Recovery Servs., LLC v. Jones, 145 Idaho 106, 175 P.3d 795 (Ct. App. 2007). No award of attorney’s fees to the Idaho industrial commission was warranted where the issues raised by the workers were not frivolous; an award of attorney’s fees on appeal under this section is appropriate only when the appeal is brought or defended frivolously, unreasonably or without foundation. Owsley v. Idaho Indus. Comm’n, 141 Idaho 129, 106 P.3d 455 (2005).

While respondent prevailed on appeal, appellant presented a cogent challenge to the district court’s reading of Idaho R. Civ. P. 37(c) and presented legitimate arguments questioning the district court’s conclusion that her denial of respondents’ requests to admit was unreasonable. The appeal of the Rule 37(c) award was not frivolous and, therefore, respondent was not entitled to attorney’s fees on appeal. Contreras v. Rubley, 142 Idaho 573, 130 P.3d 1111 (2006).

Attorney fees were not awarded in an appeal involving an easement because neither party acted frivolously. Capstar Radio Operating Co. v. Lawrence, 143 Idaho 704, 152 P.3d 575 (2007).

In a collection suit, no attorney fees were awarded on appeal since there was no prevailing party; although a portion of the decision awarding only $200 in attorney fees to a debt collector was upheld, a portion of the decision relating to an award of paralegal fees was remanded for further consideration. Medical Recovery Servs., LLC v. Jones, 145 Idaho 106, 175 P.3d 795 (Ct. App. 2007). Real estate developer was not entitled to attorney fees on appeal where he did not explain how the architect’s defense of the appeal was frivolous; the architect’s arguments did not lack foundation in law or fact. Farrell v. Whiteman, 146 Idaho 604, 200 P.3d 1153 (2009).

Employee did not frivolously bring the appeal where the jury found in favor of the employee, awarded $700,000 in damages, and the district court thereafter entered directed verdict against the employee. Waterman v. Nationwide Mut. Ins. Co., 146 Idaho 667, 201 P.3d 640, cert. denied, — U.S. —, 129 S. Ct. 2838, 174 L. Ed. 2d 555 (2009).

Plaintiffs were not entitled to an award of attorney fees on appeal where defendants’ appeal was not brought frivolously, unreasonably, or without foundation. Cecil v. Gagnebin, 146 Idaho 714, 202 P.3d 1 (2009).

Mother was not entitled to an award of fees where the father did not bring his appeal frivolously, unreasonably, or without foundation. Instead, he raised legitimate questions of law relating to the standard governing relocation cases in Idaho. Danti v. Danti, 146 Idaho 929, 204 P.3d 1140 (2009).

When an appeal was not timely filed, and it was not well-grounded in fact or warranted by existing law, attorney fees were awarded to a respondent. Goodman Oil Co. v. Scotty’s Duro-Bilt Generator, Inc., 147 Idaho 56, 205 P.3d 1192 (2009).

Where the trial court properly excluded proposed exhibits, but did so on incorrect grounds, the appeal was not brought frivolously, unreasonably, or without foundation. Thomson v. Olsen, 147 Idaho 99, 205 P.3d 1235 (2009).

Although the landowners defendants prevailed on appeal, they did not do so based upon arguments they made on appeal, and they were declined attorney fees for the appeal. Mesenbrink v. Hosterman, 147 Idaho 408, 210 P.3d 516 (2009).

Where there was a genuine issue as to whether a driver had operated insured vehicle with the owner’s permission, and where the existence of that permission governed the insurers’ obligation, attorney fees were not awarded to respondent insurer, despite the fact that respondent prevailed on appeal. Or. Mut. Ins. Co. v. Farm Bureau Mut. Ins. Co., 148 Idaho 47, 218 P.3d 391 (2009).

Competitor was not entitled attorney fees on appeal based upon a sanitation company’s failure to appeal an alternative independent ground for the district court’s judgment because the ruling regarding estoppel could reasonably be read as applying only to the contention that the process was an invitation for bids and not a request for proposals and because that question is not an issue on appeal; thus, it was not an alternative independent ground as to whether the Trade Secrets Act was violated. Walco, Inc. v. County of Idaho, 159 Idaho 131, 357 P.3d 856 (2015).

— Award Not Proper.

Confusion in deciding what was proper compensation for trustee due to trustee’s inadequate recordkeeping made resort to legal proceedings and appeals nonfrivolous, thereby negating any award of attorney’s fees under this section and Idaho R. Civ. P. 54(e)(1). Grover v. Grover, 109 Idaho 687, 710 P.2d 597 (1985). Where it could not be said as a matter of law that defendant should have paid plaintiffs the amount of damages sought by the complaint, the award of attorney’s fees to plaintiff under Idaho R. Civ. P. 54(e)(1) and this section was improper. Davis v. Professional Bus. Servs., Inc., 109 Idaho 810, 712 P.2d 511 (1985).

Where neither the appeal nor the cross-appeal was brought, pursued, or defended frivolously, unreasonably, or without foundation, it was not a case where the focus of the appeal was the application of settled law to the facts, and there was no overall prevailing party on the appeal, attorney’s fees were not awarded to either party. Lewiston Pre-Mix Concrete, Inc. v. Rohde, 110 Idaho 640, 718 P.2d 551 (Ct. App. 1985).

Where in an action against a dairy by cattle owners who leased their cattle to the dairy, the cattle owner’s loss was clearly established, but the allocation of liability for the loss turned upon the application of agency principles to complex facts and to an unusual configuration of individual and corporate entities connected with the dairy operation, the defense was not so plainly fallacious as to be frivolous, and the district court abused its discretion by awarding attorney’s fees under this section. Herbst v. Bothof Dairies, Inc., 110 Idaho 971, 719 P.2d 1231 (Ct. App. 1986).

The district court improperly exercised its discretion in awarding attorney’s fees where the record failed to show that the judge considered the application of common facts to multiple theories, nor did the record contain a determination as to whether the plaintiffs’ evidence was sufficient to create a fairly debatable issue under the theories advanced. Associates N.W. v. Beets, 112 Idaho 603, 733 P.2d 824 (Ct. App. 1987).

The trial court did not abuse its discretion in denying an award of fees at trial, where the appeal was not brought, pursued or defended frivolously, unreasonably or without foundation. Thieme v. Worst, 113 Idaho 455, 745 P.2d 1076 (Ct. App. 1987).

Where the court of appeals was not left with the abiding belief that appeal was frivolously or unreasonably pursued, it would deny respondents request for attorney’s fees on appeal. Bischoff v. Quong-Watkins Properties, 113 Idaho 826, 748 P.2d 410 (Ct. App. 1987).

Where the appeal was not taken or pursued frivolously, unreasonably or without foundation, the court of appeals declined to award attorney’s fees to the prevailing party. Ada County Hwy. Dist. v. Smith, 113 Idaho 878, 749 P.2d 497 (Ct. App. 1988).

In an action brought by the wife to set aside a divorce property settlement agreement, the wife’s appeal was not brought or pursued frivolously, unreasonably or without foundation, and the husband was not entitled to attorney’s fees on appeal. Bodine v. Bodine, 114 Idaho 163, 754 P.2d 1200 (Ct. App. 1988).

The district court erred when it imposed costs and attorney’s fees for failure to engage in good faith settlement negotiations. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

Where the defendants were the prevailing parties in the jury trial, and the action was not defended frivolously or unreasonably, no award of attorney’s fees could be assessed under this section and Idaho R. Civ. P. 54(e)(1) through 54(e)(9) against the defendants, even assuming that the in limine order to prevent reference to the settlement agreement had viability and had only been violated by the defendants. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

An award of attorney’s fees to a defendant in a personal injury action was an abuse of discretion where the court based the award upon consideration of matters that were neither issues in the case nor part of the record. See Severson v. Hermann, 116 Idaho 497, 777 P.2d 269 (1989). Hospital was not entitled to attorney’s fees and costs incurred in litigating to determine which of two counties was responsible for medical fees for an indigent patient. IHC Hosps. v. Board of Comm’rs, 117 Idaho 207, 786 P.2d 600 (Ct. App. 1990).

Where, in case involving question of whether an equity buy-in method of determining connection fees of water and sewer system was reasonable and question whether the collection and use of those fees for replacement of system components constituted a revenue raising method not authorized by law, the district court’s decision in former similar case contained some dicta that inferred that the city’s collection and use of connection fees might be unauthorized and it was clear that this dicta resulted in some confusion for appellants, the case was not brought frivolously, unreasonably or without foundation and award of attorney’s fees was not justified. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Attorney’s fees were improperly awarded where plaintiffs’ attempt to define their rights as the owners of a servient estate, in case regarding property easement was not frivolous nor without basis. Hamilton v. Tax Commission, 119 Idaho 552, 808 P.2d 1297 (1991).

While this section allows fees to be awarded to a prevailing party, the prevailing party must show that the losing party brought, pursued or defended the action frivolously, unreasonably or without foundation; in action seeking to hold third party vicariously liable for plaintiff’s torts theory of joint enterprise, district court did not abuse its discretion in denying an award of fees at trial where district judge stated that he believed the joint enterprise theory of recovery “was incorrect but arguable,” and that he was “not able to say that this case was frivolous or that it was not in good faith.” Maselli v. Ginner, 119 Idaho 702, 809 P.2d 1181 (Ct. App. 1991).

Plaintiffs’ legal argument was not so plainly fallacious as to be deemed frivolous, nor was their case not supported by a good faith argument for the extension or modification of the law in Idaho, whether under this section or§ 12-123; accordingly, the trial court’s award of attorney’s fees under either§ 12-123 or this section and Idaho R. Civ. P. 54(e)(1) was not appropriate. Hanf v. Syringa Realty, Inc., 120 Idaho 364, 816 P.2d 320 (1991).

Judge, in making award of fees to defendants, improperly relied upon another judge’s instruction that the defendants submit an affidavit for their costs and fees since the directive was not an implicit “finding” that plaintiff’s action was brought or pursued unreasonably or without foundation, and since Idaho R. Civ. P. 54(e)(2) requires a written finding stating the basis and reasons for awarding attorney’s fees, and the defendants did not point to anything in the record of the trial court that satisfied this section. Bonaparte v. Neff, 116 Idaho 60, 773 P.2d 1147 (Ct. App. 1989).

Where appeal involving modification of child support was not entirely frivolous, an award of attorney’s fees was vacated. Mecham v. Mecham, 123 Idaho 219, 846 P.2d 221 (1993).

Appeal was not frivolous or unreasonable in light of the lack of authority regarding the standards an Idaho court should apply in deciding a motion to set aside the entry of default under Idaho R. Civ. P. 55(c); therefore, no attorney’s fees were awarded on appeal. McFarland v. Curtis, 123 Idaho 931, 854 P.2d 274 (Ct. App. 1993).

Where the language of federal law regulating individual retirement accounts and case law precedents raised issue of law as to whether such federal law preempted Idaho community property law, appeal was not frivolous and attorney’s fees would not be awarded on appeal. In re Estate of Mundell, 124 Idaho 152, 857 P.2d 631 (1993).

District court abused its discretion in dismissing law partner from a malpractice claim against legal partnership and, thus, incorrectly awarded attorney’s fees to the dismissed partner. Webster v. Hoopers, 126 Idaho 96, 878 P.2d 795 (Ct. App. 1994). Hospital was not entitled to attorney’s fees and costs incurred in litigating to determine which of two counties was responsible for medical fees for an indigent patient. IHC Hosps. v. Board of Comm’rs, 117 Idaho 207, 786 P.2d 600 (Ct. App. 1990).

Where appeal involving modification of child support was not entirely frivolous, an award of attorney’s fees was vacated. Mecham v. Mecham, 123 Idaho 219, 846 P.2d 221 (1993).

District court abused its discretion in dismissing law partner from a malpractice claim against legal partnership and, thus, incorrectly awarded attorney’s fees to the dismissed partner. Webster v. Hoopers, 126 Idaho 96, 878 P.2d 795 (Ct. App. 1994). Where the record and arguments made in a divorce action did not lead to a conclusion that the action was brought, pursued, or defended frivolously, nor was unreasonable or without foundation, attorney’s fees were inappropriate. Tisdale v. Tisdale, 127 Idaho 331, 900 P.2d 807 (Ct. App. 1995).

Commission lacked authority to award itself costs and fees in the administrative proceeding, as there was no separate provision for the award of attorney’s fees and costs within the chapters of the Idaho Code pertaining to the potato commission. Idaho Potato Comm’n v. Russet Valley Produce, Inc., 127 Idaho 654, 904 P.2d 566 (1995) (decision prior to 1984 amendment).

Where Medicaid applicant brought denial of Medicaid benefits before the District Court on appeal from the hearing officer’s decision, that proceeding did not constitute a “civil action” as defined by Idaho R. Civ. P. 3(a) and attorney’s fees were, therefore, not available under this section. McCoy v. State, Dep’t of Health & Welfare, 127 Idaho 792, 907 P.2d 110 (1995).

In a proceeding to modify a divorce decree, where it was determined that the defenses of the party objecting to the proposed modification were not pursued or defended frivolously, unreasonably or without foundation and where the magistrate’s decision did not apply the factors set forth in§ 32-705, the magistrate’s decision to award attorney’s fees was in error and could not be upheld. Rohr v. Rohr, 128 Idaho 137, 911 P.2d 133 (1996).

Award of attorney’s fees under Idaho R. Civ. P. 54(e)(1) through 54(e)(9) or§ 12-120 or this section to mother and state as prevailing parties in paternity action against defendant was improper, as mother did not plead any specific amount of damages as required under§ 12-120(1) and the magistrate made no findings that father’s defense of the action was frivolous or unreasonable as required under Idaho R. Civ. P. 54(e)(1). Henderson v. Smith, 128 Idaho 444, 915 P.2d 6 (1996).

There was not substantial and competent evidence to support a finding that power company acted with gross negligence, deviating from the reasonable standards of conduct of the industry and expected by their customers, to support an award of punitive damages when it relocated condominiums’ transformers from underground vaults to above ground locations; this award of punitive award damages was reversed and award of attorney’s fees was vacated. New Villager Condominium Ass’n v. Idaho Power Co., 129 Idaho 551, 928 P.2d 901 (1996).

Since an award under this section may only be made if the appellate court finds that the appeal was entirely frivolous, unreasonable or without foundation, where plaintiff raised a legitimate issue with respect to the amount of attorney’s fees awarded by the district court and obtained relief on appeal with respect to that award, the appeal was not frivolous or unreasonable in its entirety, and thus no fees could be awarded under this section. Landvik ex rel. Landvik v. Herbert, 130 Idaho 54, 936 P.2d 697 (Ct. App. 1997).

In action concerning selection of site for landfill, trial court should not have awarded landowners attorney’s fees on the issue of whether the county failed to provide a method of referendum and/or initiative on the issue, since Idaho R. Civ. P. 54(e)(1) provides that attorney’s fees can only be awarded under this section where the court finds that the action was brought, pursued or defended frivolously, unreasonably or without foundation and the district court did not make such finding and in fact the county did not defend against such claim but admitted it had failed to provide a method of initiative and/or referendum. Petersen v. Franklin County, 130 Idaho 176, 938 P.2d 1214 (1997). As the defendants prevailed on the summary judgment issue on appeal costs were awarded pursuant to Idaho App. R. 40, but the court declined to award attorney’s fees under this section because although the plaintiff’s argument urging error in the grant of summary judgment as to these particular defendants was not persuasive, it was not unreasonable or frivolous. Sammis v. MagneTek, Inc., 130 Idaho 342, 941 P.2d 314 (1997).

The defendant’s argument, that it should be awarded attorney’s fees because the plaintiff’s theory of causation was unreasonable and unfounded because they called no experts at trial and based their entire suit on the testimony of one witness, was erroneous and the trial court’s refusal to award fees was proper. Lanham v. Idaho Power Co., 130 Idaho 486, 943 P.2d 912 (1997).

Defendant failed to establish, and the record did not indicate, that plaintiff brought or pursued appeal in an unreasonable or frivolous manner, therefore fees were not awarded under this section. Wilson v. Wilson, 131 Idaho 533, 960 P.2d 1262 (1998).

A question of whether a release of an interest in real property necessarily included all appurtenant rights to the property or whether equitable estoppel should apply was a fairly debatable issue; accordingly, action could not be considered frivolous and without foundation and attorney’s fees were correctly denied. Sun Valley Hot Springs Ranch, Inc. v. Kelsey, 131 Idaho 657, 962 P.2d 1041 (1998).

Where defendants presented a sufficient issue of contract interpretation, attorney’s fees were not awarded to plaintiffs. Mutual of Enumclaw Ins. Co. v. Pedersen, 133 Idaho 135, 983 P.2d 208 (1999).

Plaintiffs’ request for fees was denied where the defendants raised serious issues about whether the district judge properly characterized the relationship between the defendants and the plaintiffs and whether the waiver and release provision of their rental agreement should have barred recovery. Hanks v. Sawtelle Rentals, Inc., 133 Idaho 199, 984 P.2d 122 (1999).

Attorney’s fees were not awarded for trial or appeal where the trial court noted that, while it believed the defendant’s defense was “nonmeritorious,” it did not find that it rose to the level of frivolity. Drew v. Sorensen, 133 Idaho 534, 989 P.2d 276 (1999).

Award of attorney’s fees was not awarded where plaintiff’s challenge to the discovery sanction imposed by the trial court, though unsuccessful, was not frivolous. Clark v. Raty, 137 Idaho 343, 48 P.3d 672 (Ct. App. 2002).

District court erred in characterizing the husband’s appeal as frivolous; in view of appellate decisions that had focused solely upon the financial resources of the party requesting attorney’s fees. The husband’s appeal was not unreasonable, and his appeal raised a substantive legal issue. Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

In a subdivision planning board’s breach of contract action, the homeowners’ appeal from summary judgment granted in favor of the board, in which the trial court determined that the restrictive covenants at issue barred the homeowners’ short-term rental of their home because it was a commercial use, was not brought, pursued, or defended frivolously or unreasonably; hence, neither party was entitled to attorney’s fees on appeal. Pinehaven Planning Bd. v. Brooks, 138 Idaho 826, 70 P.3d 664 (2003).

Because an appeal required the court to interpret a statute for the first time within the context of this case, neither party was entitled to attorney’s fees under either§ 12-117 or this section. Sacred Heart Med. Ctr. v. Boundary County, 138 Idaho 534, 66 P.3d 238 (2003).

Attorney’s fees were awarded under this section only when the appellate court was left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation; where the contractor prevailed in part on the appeal, it was not brought or pursued frivolously, unreasonably, or without foundation; as such, the county was not awarded attorney’s fees on appeal. Waters Garbage v. Shoshone County, 138 Idaho 648, 67 P.3d 1260 (2003). As the defendants prevailed on the summary judgment issue on appeal costs were awarded pursuant to Idaho App. R. 40, but the court declined to award attorney’s fees under this section because although the plaintiff’s argument urging error in the grant of summary judgment as to these particular defendants was not persuasive, it was not unreasonable or frivolous. Sammis v. MagneTek, Inc., 130 Idaho 342, 941 P.2d 314 (1997).

Attorney’s fees were awarded under this section only when the appellate court was left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation; where the contractor prevailed in part on the appeal, it was not brought or pursued frivolously, unreasonably, or without foundation; as such, the county was not awarded attorney’s fees on appeal. Waters Garbage v. Shoshone County, 138 Idaho 648, 67 P.3d 1260 (2003). Defendants were not awarded attorney’s fees on appeal, where plaintiffs’ appeal was not brought or pursued frivolously, unreasonably, or without foundation. Israel v. Leachman, 139 Idaho 24, 72 P.3d 864 (2003).

Where landowners appealed from a judgment awarding damages to an irrigation district on their complaint alleging negligence, interference with an easement, and negligence per se for excavation by the landowners that compromised the district’s water irrigation ditch and the district cross-appealed the denial of treble damages, attorney’s fees were denied to both parties because the position of each on appeal was neither brought nor defended frivolously, unreasonably, or without foundation. Nampa & Meridian Irrigation Dist. v. Mussell, 139 Idaho 28, 72 P.3d 868 (2003).

Although respondents prevailed on appeal, respondents were not entitled to attorney’s fees on appeal, where the challenge appellant brought was reasonably founded in fact and law and was not brought frivolously, unreasonably, or without foundation. SE/Z Constr., L.L.C. v. Idaho State Univ., 140 Idaho 8, 89 P.3d 848 (2004).

Supreme court of Idaho declined to award fees to either party because the appeal to the district court and to the supreme court raised issues of importance not previously decided. Lohman v. Flynn, 139 Idaho 312, 78 P.3d 379 (2003).

In an appeal of a trial court’s decision that granted plaintiff property owners a prescriptive easement over and through defendant property owners’ parcel to access federal lands, neither side was entitled to attorney’s fees under this section, because the appeal raised important issues and was not brought or defended frivolously or without foundation. Hodgins v. Sales, 139 Idaho 225, 76 P.3d 969 (2003).

Where the court awarded attorney’s fees as a sanction for frivolous or unreasonable conduct, because none of the required procedures for an award of attorney’s fees as a sanction under§ 12-123 had taken place, the fee award under this section was improper. Roe Family Servs. v. Doe (In re Baby Boy Doe), 139 Idaho 930, 88 P.3d 749 (2004).

Where two drivers collided at an uncontrolled intersection, plaintiff driver was not entitled to recover personal injury damages from defendant driver because each driver was 50 percent negligent for failing to keep a proper lookout, and defendant was not entitled to attorney’s fees on appeal; further, plaintiff’s appeal, though unsuccessful, was not frivolous or unreasonable. Vaughn v. Porter, 140 Idaho 470, 95 P.3d 88 (Ct. App. 2004).

Neither party was entitled to attorney’s fees on appeal under this section because the appeal was not pursued or defended frivolously, unreasonably, or without foundation. Anderson v. Goodliffe, 140 Idaho 446, 95 P.3d 64 (2004).

Award of attorney’s fees by the district court to neighboring property owners, who owned a servient estate, was not appropriate, as the neighboring property owners were not the prevailing parties in an easement dispute, and, further, neither the property owners nor the neighboring property owners were entitled to attorney’s fees on appeal, as the appeal was not frivolous. Walker v. Boozer, 140 Idaho 451, 95 P.3d 69 (2004).

Father and his wife attempted to recover attorney’s fees in a collection suit brought against their daughter-in-law and their deceased son’s estate; however, they were not entitled to attorney’s fees as they were not the prevailing party. The daughter-in-law and the estate were not entitled to recover attorney’s fees on appeal because the issues raised were not frivolous. Reding v. Reding, 141 Idaho 369, 109 P.3d 1111 (2005). Where a case involved a novel legal question, attorney’s fees should not be granted under this section; the case by respondents and the developers involved novel issues, including a matter of first impression, namely, whether a non-party had standing to challenge an order confirming an arbitration award under Idaho R. Civ. P. 60(b); therefore, attorney’s fees were properly not granted. Campbell v. Kildew, 141 Idaho 640, 115 P.3d 731 (2005).

Neighbors were not entitled to attorney’s fees on appeal pursuant to this section because the appellate court was not left with an abiding belief that the appeal had been brought or defended frivolously, unreasonably, or without foundation. The district judge’s order granting summary judgment in favor of the neighbors was reversed. Armand v. Opportunity Mgmt. Co., 141 Idaho 709, 117 P.3d 123 (2005).

This section permitted an award of attorney’s fees in a civil action to the prevailing party if the court determined the case was brought, pursued or defended frivolously, unreasonably or without foundation; the employer’s arguments, although unconvincing, were not frivolous, such that no attorney’s fees were awarded to the employee. Dominguez v. Evergreen Res., Inc., 142 Idaho 7, 121 P.3d 938 (2005).

District court erred by awarding attorney’s fees to the wife on intermediate appeal, because the magistrate’s award of attorney’s fees, which was affirmed by the district court, represented an abuse of its discretion when the husband’s child custody claim was not frivolous. Lieurance-Ross v. Ross, 142 Idaho 536, 129 P.3d 1285 (Ct. App. 2006).

In civil action by two sisters against prowler for tort claims of invasion of privacy and intentional infliction of emotional distress, award of appellate attorney’s fees to plaintiffs was denied where defendant prevailed on some issues and the appeal was not frivolous. Alderson v. Bonner, 142 Idaho 733, 132 P.3d 1261 (Ct. App. 2006).

After determining that the State of Idaho DOT properly denied plaintiff’s application to renew his driver’s license for failing to provide his social security number, an appellate court declined to award the state attorney’s fees because the state conceded that plaintiff’s religious beliefs and motivations were sincere. Lewis v. DOT, 143 Idaho 418, 146 P.3d 684 (Ct. App. 2006).

Where a city did not prevail in a declaratory judgment action against several presenters regarding a proposed marijuana initiative, it was not entitled to attorney’s fees; moreover, the presenters were not entitled to such fees on appeal either because the appeal had a reasonable basis since a pivotal case on the issue had not yet been decided. Davidson v. Wright, 143 Idaho 616, 151 P.3d 812 (2006).

In a defamation case, no attorney fees were awarded to a political party chairman because he was not the prevailing party on appeal. Clark v. Spokesman-Review, 144 Idaho 427, 163 P.3d 216 (2007).

Crop dusting business’s appeal involved issues of first impression and the arguments on appeal were not unreasonable or without foundation; thus, the Idaho supreme court declined to award attorney fees. Bybee v. Isaac, 145 Idaho 251, 178 P.3d 616 (2008).

Attorney fees were not awarded on appeal, because the supreme court had not before addressed the allocation of conveyance loss among water users in an irrigation district. Nelson v. Big Lost River Irrigation Dist., 148 Idaho 157, 219 P.3d 804 (2009).

— Award Proper.

Award of attorneys’ fees was not warranted with respect to dismissal of a third-party complaint in a bankruptcy case, because the nature of the matter presented was based on federal law, which meant that this state’s attorneys’ fees provisions would not apply. Reynard v. Karass (In re Saito Bros.), 560 B.R. 540 (Bankr. D. Idaho 2016). — Award Proper.

Where third-party defendant offered no defense, called no witnesses, presented no supported legal argument in favor of its position, and it did not vigorously cross-examine any of the witnesses called by other parties in an attempt to support its defense, an award of attorney’s fees under§ 12-120(2), this section, and Idaho R. Civ. P. 54(e) was proper. Del Milam & Sons v. Bailey, 107 Idaho 587, 691 P.2d 1202 (1984).

Under this section, which applies generally to any civil appeal, attorney’s fees will be awarded if the court is left with an abiding belief that the appeal was brought frivolously, unreasonably or without foundation; where both magistrate and district judge found that husband failed to establish the necessary elements for relief, his appeal was brought without foundation and wife was entitled to a reasonable attorney’s fee award. Simonovich v. Simonovich, 110 Idaho 9, 713 P.2d 445 (Ct. App. 1985).

Where the promissory note stated that the holder of the note would be entitled to collect attorney’s fees if suit were brought to collect the note, the obligees under a deed of trust were entitled to the award of such fees after foreclosure of the deed of trust and trustee’s sale. Farber v. Howell, 111 Idaho 132, 721 P.2d 731 (Ct. App. 1986).

The trial court did not err in awarding attorney’s fees to the defendant at trial pursuant to this section, where the trial court specifically found that the plaintiff initiated the lawsuit without any foundation for its claim. Sunshine Mining Co. v. Metropolitan Mines Corp., 111 Idaho 654, 726 P.2d 766 (1986).

Where the plaintiff’s appeal of her dismissal for failure to prosecute did not raise a genuine issue as to the legal standards governing the district judge’s discretion, nor did it present a cogent challenge to the judge’s reasoning powers in exercising that discretion, the appeal was brought without foundation, and the defendants were entitled to a reasonable award of attorney’s fees. Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct. App. 1986), disapproved as stated in Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Where the appellant presented neither a genuine legal issue nor a cogent challenge to the judge’s exercise of discretion, the appellees were awarded fees under this section. Evans v. Park, 112 Idaho 400, 732 P.2d 369 (Ct. App. 1987).

Where, in a divorce action, the husband presented neither a genuine legal issue nor a cogent challenge to the judge’s exercise of discretion, the wife was awarded fees under this section. McPherson v. McPherson, 112 Idaho 402, 732 P.2d 371 (Ct. App. 1987).

Landowner who brought an action against the sublessee, seed supplier, and tenant farmers to recover the value of its share of wheat harvested from landowner’s property by the tenant farmers, was entitled to reasonable attorney’s fees on appeal, to be determined by the trial court pursuant to Idaho App. R. 41, where the arguments forwarded by the seed supplier, although apparently sincere, were substantially without merit. NBC Leasing Co. v. R & T Farms, Inc., 114 Idaho 141, 754 P.2d 454 (Ct. App. 1988).

Judge did not err by deciding to award fees under this section without reviewing a transcript of the trial since sufficient facts were presented to the judge upon which he could determine that the action had been “pursued unreasonably” or “without foundation,” where the judge examined the entire district court file, where he considered the various legal theories advanced by plaintiff and the extent of discovery undertaken by the parties, and where the judge had court minutes of the trial and other documents. Bonaparte v. Neff, 116 Idaho 60, 773 P.2d 1147 (Ct. App. 1989). An award under this section is appropriate where an appeal presents no meaningful issue on a question of law but simply invites the appellate court to second-guess the trial judge on conflicting evidence. In such a case a reasonable attorney fee, to be determined under Idaho App. R. 41, may be awarded. Knowlton v. Mudd, 116 Idaho 262, 775 P.2d 154 (Ct. App. 1989).

A boundary dispute in which defendant’s conduct was held to have been outrageous, ill-founded and unreasonable was an appropriate case to award attorney’s fees. See Skelton v. Haney, 116 Idaho 511, 777 P.2d 733 (1989).

Where the trial court found that plaintiffs’ theory as to the source of a fire and the defendant’s responsibility was unreasonable and unfounded, based on (1) the improbability or inconsistency of the testimony of some of the plaintiffs’ witnesses, (2) evidence that the fire started before the condition the plaintiffs contended was the cause of the fire occurred, and (3) the inconsistency of the physical evidence with the cause advanced by the plaintiffs, and where these findings were supported by the record the award of attorney’s fees pursuant to this section and Idaho R. Civ. P. 54(e)(1) was proper. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993 (1991).

Where appeal was brought without any reasonable legal foundation, attorney’s fees and costs were properly awarded. Gage v. Harris, 119 Idaho 451, 807 P.2d 1289 (Ct. App. 1991).

Because plaintiff’s quiet title action was involuntarily dismissed, he was clearly a nonprevailing party. The district court awarded costs and attorney’s fees incurred by the defendant landowners to the extent the costs and attorney’s fees were incurred in preparing a defense against plaintiff’s claim of prescriptive easement. The district court reached its conclusion through the exercise of reason and did not abuse its discretion in awarding costs and attorney’s fees to the defendant landowners. Bonaparte v. Neff, 122 Idaho 714, 838 P.2d 317 (Ct. App. 1992).

Where the appeal was taken and pursued frivolously, unreasonably, and without foundation, and where the lease and option to purchase at issue provided for an award of attorney’s fees to the prevailing party in any action for enforcement, attorney’s fees in addition to costs were awarded on appeal. Clear Springs Trout Co. v. Anthony, 123 Idaho 141, 845 P.2d 559 (1992).

Where party had agreed in promissory note to pay all costs incurred in collecting the sums due, including attorney’s fees on appeal, and where the appeal merely presented an invitation to second-guess the trial court on conflicting evidence and issues not raised below, an award of attorney’s fees to the opposing party was appropriate. Saint Alphonsus Regional Medical Ctr., Inc. v. Krueger, 124 Idaho 501, 861 P.2d 71 (Ct. App. 1993).

The mere fact that an arbitrator’s interpretation of a prior case is unsatisfactory to a party is not, of itself, a valid basis for appeal; thus, where the nonprevailing party presented no cogent argument as to why settled law did not apply, the appeal was pursued frivolously and without foundation and attorney, prevailing in professional malpractice case, was entitled to attorney’s fees. Chicoine v. Bignall, 127 Idaho 225, 899 P.2d 438 (1995).

A district judge’s award of fees was affirmed where he perceived the issue as one of discretion, correctly set out and applied the standard for such an award, and reached his decision by an exercise of reason. Bingham v. Montane Resource Assocs., 133 Idaho 420, 987 P.2d 1035 (1999).

Where plaintiffs filed prescriptive easement suit after only two years, and they were on notice of the deficiency in their case, attorney’s fees were properly awarded after defendant’s prevailed in the action. Anderson v. Larsen, 136 Idaho 402, 34 P.3d 1085 (2001). An award of attorney’s fees on appeal pursuant to this section is proper only where the state’s supreme court is left with the abiding belief that the appeal was brought or pursued frivolously, unreasonably, and without foundation. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 41 P.3d 242 (2001).

On appeal, an award of attorney’s fees may be granted to the prevailing party pursuant to this section and Idaho App. R. 41; such an award is appropriate when the court is left with the abiding belief that the appeal has been brought, or defended frivolously, unreasonably, or without foundation. Hagy v. State, 137 Idaho 618, 51 P.3d 432 (Ct. App. 2002).

Finding in favor of the wife’s estate was proper where, pursuant to controlling Indiana law, the alleged agreement involving the division of marital property was not a valid enforceable contract because the agreement was not reduced to writing; further, the wife’s estate was entitled to attorney’s fees on appeal pursuant to this section and Idaho R. Civ. P. 54(e)(1) because the supreme court stated that the appeal was unreasonable. Sword v. Sweet, 140 Idaho 242, 92 P.3d 492 (2004).

The company was entitled to an award of attorney’s fees under this section in a judgment foreclosing a real estate mortgage and quieting title to a portion of the property subject to the mortgage because the individual’s appeal consisted 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. KEB Enters., L.P. v. Smedley, 140 Idaho 746, 101 P.3d 690 (2004).

Company was entitled to attorney’s fees in its defense of an employee’s appeal of the district court’s upholding of an arbitration award because§ 7-910, preventing attorney’s fees absent an express agreement by the parties, only applies to fees incurred in the conduct of the arbitration, not those incurred in proceedings to confirm an arbitration award. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

District court did not err in awarding attorney’s fees related to settlement negotiations because to hold otherwise would reward the plaintiff for pursuing a frivolous claim and punish the defendant property owner for attempting to settle a frivolous claim brought against it. Hughes v. Fisher, 142 Idaho 474, 129 P.3d 1223 (2006).

District court’s award of attorney fees was proper because the claimants had made no showing that they were record owners in fee simple or were successors in interest or met the elements of adverse possession of a parcel of land, and there was no foundation to pursue the action as against respondents since there was no showing on any of these claims; after taking into account the entire litigation, the district court held that the claimants pursued the litigation frivolously and without foundation. Kiebert v. Goss, 144 Idaho 225, 159 P.3d 862 (2007).

Attorney fees and costs on appeal were awarded to property owners in a boundary dispute, because the appellant/claimant simply asked the reviewing court to second guess the district court and, in doing so, had pursued the appeal unreasonably and without foundation in light of the long-standing law on issues of boundary by agreement. Teton Peaks Inv. Co., LLC v. Ohme, 146 Idaho 394, 195 P.3d 1207 (2008).

Basis for Award.

Since the statutory power is discretionary, attorney’s fees will not be awarded as a matter of right, nor will attorney’s fees be awarded where the losing party brought the appeal in good faith and where a genuine issue of law was presented; rather, attorney’s fees will only be awarded when the supreme court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979). An award of attorney’s fees on appeal pursuant to this section is proper only where the state’s supreme court is left with the abiding belief that the appeal was brought or pursued frivolously, unreasonably, and without foundation. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 41 P.3d 242 (2001).

Basis for Award.

Since the statutory power is discretionary, attorney’s fees will not be awarded as a matter of right, nor will attorney’s fees be awarded where the losing party brought the appeal in good faith and where a genuine issue of law was presented; rather, attorney’s fees will only be awarded when the supreme court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979). In normal circumstances, attorney’s fees will only be awarded when the court is left with the abiding belief that the appeal was brought, pursued, or defended frivolously, unreasonably or without foundation. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979); Johnson v. McPhee, 147 Idaho 455, 210 P.3d 563 (Ct. App. 2009).

Award of attorney’s fees under this section was proper where defendant’s counterclaim and defense to the original action were frivolous, and where the appeal pursued was without foundation. Nicholls v. Blaser, 102 Idaho 559, 633 P.2d 1137 (1981).

Where a dispassionate view of the record disclosed that there was no valid reason to anticipate reversal of the lower court’s judgment on the factual grounds urged, the record contained abundant evidence supporting the determination of the judge and jury, and the arguments and authorities advanced in support of the two legal issues presented on appeal failed to establish how the discretionary decisions of the district court not to bifurcate the issues involved in the trial or to act upon the motion for a view arose to the level of error, costs and attorney’s fees would be awarded to the appellees. Rueth v. State, 103 Idaho 74, 644 P.2d 1333 (1982).

Where an appeal presented no meaningful issue on a question of law and, in regard to the trial court’s findings, the appellant was unable to do more than dispute minor details and point to conflicts in the evidence, the appellate court was left with the abiding belief that the appeal was brought without foundation, and, thus, the prevailing appellee was entitled to an award of a reasonable attorney fee on appeal. T-Craft Aero Club, Inc. v. Blough, 102 Idaho 833, 642 P.2d 70 (Ct. App. 1982).

Where appeal lacked any significant legal question and the claim involved was of minimal value, the appeal was frivolous and unreasonably pursued, and attorney’s fees would be awarded to the respondent. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

An award of attorney’s fees on appeal is appropriate when appellate court is left with the abiding belief that an appeal has been brought or defended frivolously, unreasonably, or without foundation. Barlow’s, Inc. v. Bannock Cleaning Corp., 103 Idaho 310, 647 P.2d 766 (Ct. App. 1982).

The decision in Minich v. Gem State Developers, Inc. , 99 Idaho 911, 591 P.2d 1078 (1979), narrows the circumstances under which attorney’s fees can be awarded on appeal, under this section, even to a litigant who has successfully acted as a private attorney general. Neilsen & Co. v. Cassia & Twin Falls County Joint Class A School Dist. 151, 103 Idaho 317, 647 P.2d 773 (Ct. App. 1982).

An award of attorney’s fees on appeal will not be made where a decision is based upon legal authorities from other jurisdictions, and the appeal has helped to develop Idaho case law on the subject; thus, where a lawsuit was characterized by an interface of assignment law with the legal and ethical duties created by the attorney-client relationship, where it generated issues of first impression in Idaho, and where the court of appeals relied largely upon authorities from other jurisdictions to reach, and to support, its decision, no attorney’s fees would be awarded on appeal. Bonanza Motors, Inc. v. Webb, 104 Idaho 234, 657 P.2d 1102 (Ct. App. 1983).

Contention that§ 6-918A, when viewed in contrast to this section, discriminates impermissibly against those tort plaintiffs whose claims lie against a governmental entity rather than against private parties would not be addressed by court where attorney’s fees in particular case could not have been awarded under either statute because of failure to show that case was defended frivolously or without foundation. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983). One party’s failure to negotiate does not, by itself, establish the opposing party’s right to attorney’s fees under this section; an award of fees must be supported by a finding that one or more of the criteria prescribed by Idaho R. Civ. P. 54(e)(1) have been satisfied. Bosshardt v. Taylor, 104 Idaho 660, 662 P.2d 241 (Ct. App. 1983).

Where the trial judge observed that no meaningful negotiations to settle case had been entered into between the parties, but expressly declined to find that defendants had defended the case frivolously or in bad faith, the absence of such a finding required reversal of the award of attorney’s fees which had been based on judge’s desire to make plaintiff “whole.” Bosshardt v. Taylor, 104 Idaho 660, 662 P.2d 241 (Ct. App. 1983).

This section is permissive, not mandatory and it contains no subject matter limitation; it may be applied even if the appeal focuses not upon the subject of the underlying litigation but solely upon an award of attorney’s fees below. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

A misperception of law or of one’s interest under the law is not, by itself, unreasonable conduct; if it were, virtually every case controlled by a question of law would entail an attorney fee award against the losing party under this section. Rather, the question must be whether the position adopted by the losing party was not only incorrect but so plainly fallacious that it could be deemed frivolous, unreasonable or without foundation. Wing v. Amalgamated Sugar Co., 106 Idaho 905, 684 P.2d 307 (Ct. App. 1984).

Where trial court, in awarding attorney’s fees pursuant to this section, failed to find that the case was defended frivolously, unreasonably or without foundation and failed to make a written finding as to the basis and reasons for awarding attorney’s fees, such award was vacated. Kerr Land & Livestock, Inc. v. Glaus, 107 Idaho 767, 692 P.2d 1199 (1984).

A claim is not necessarily frivolous or lacking in merit simply because it ultimately fails as a matter of law; rather, the question is whether the claim, when made and pursued, is so plainly fallacious that it can be termed frivolous, unreasonable or without foundation. Gulf Chem. Employees Fed. Credit Union v. Williams, 107 Idaho 890, 693 P.2d 1092 (Ct. App. 1984).

Where the material facts in the case were not disputed, where the court was not confronted with a choice between reasonable inferences but rather was asked to draw inferences upon facts not shown in the record and the law governing the case was well settled, attorney’s fees were awarded. Lind v. Perkins, 107 Idaho 901, 693 P.2d 1103 (Ct. App. 1984).

An award under this section will not be made unless the appellate court is left with the abiding belief that the appeal was brought or pursued frivolously, unreasonably or without foundation. Rudy-Mai Farms v. Peterson, 109 Idaho 116, 705 P.2d 1071 (Ct. App. 1985).

Attorney’s fees are awardable if an appeal does no more than simply invite the appellate court to second-guess the trial court on conflicting evidence, or if the law is well settled and the appellants have made no substantial showing that the district court misapplied the law, or if the appeal has been frivolous, unreasonable or lacking in foundation. Davis v. Gage, 109 Idaho 1029, 712 P.2d 730 (Ct. App. 1985). The standard for determining whether an award under this section should be made is not whether the position urged by the nonprevailing party is ultimately found to be wrong, but whether it is so plainly fallacious as to be frivolous. Herbst v. Bothof Dairies, Inc., 110 Idaho 971, 719 P.2d 1231 (Ct. App. 1986).

An award of attorney’s fees is only proper when an action was either brought or defended frivolously, unreasonably, or without foundation. Soria v. Sierra Pac. Airlines, 111 Idaho 594, 726 P.2d 706 (1986).

An award of attorney’s fees under this section is discretionary; but it must be supported by findings and those findings, in turn, must be supported by the record. Sunshine Mining Co. v. Metropolitan Mines Corp., 111 Idaho 654, 726 P.2d 766 (1986).

An award under this section will be made if the appellate court is left with the abiding belief that the appeal was brought or pursued frivolously, unreasonably or without foundation. Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct. App. 1986).

It was inappropriate to award attorney’s fees under this section solely on the basis of pleading “alternative and contradictory facts”. Murr v. Odmark, 112 Idaho 606, 733 P.2d 827 (Ct. App. 1987).

Attorney’s fees are awardable if an appeal does no more than simply invite an appellate court to second-guess the trial court on conflicting evidence, or if the law is well settled and appellant has made no substantial showing that the district court misapplied the law. Johnson v. Edwards, 113 Idaho 660, 747 P.2d 69 (1987); Lower Payette Ditch Co. v. Harvey, — Idaho —, 271 P.3d 689 (2012).

Where, in an action brought by dissenting shareholders demanding payment for their shares at fair value, the corporation’s appeal was not brought frivolously, unreasonably, or without foundation, attorney’s fees were not awarded under this section. Waters v. Double L, Inc., 114 Idaho 256, 755 P.2d 1294 (Ct. App. 1987), aff’d, 115 Idaho 705, 769 P.2d 582 (1989).

Attorney’s fees will be awarded only when the appeal was brought, pursued, or defended frivolously, unreasonably or without foundation. Hales v. King, 114 Idaho 916, 762 P.2d 829 (Ct. App. 1988).

Attorney’s fees are permitted if the appeal was brought, pursued, or defended unreasonably or without foundation; a defense is not frivolous or groundless merely because the respondent loses. Lowery v. Board of County Comm’rs, 115 Idaho 64, 764 P.2d 431 (Ct. App. 1988).

Attorney’s fees should not be apportioned based upon prevailing theories of recovery, but rather should be awarded based upon application of appropriate standards and factors. Bubak v. Evans, 117 Idaho 510, 788 P.2d 1333 (Ct. App. 1989).

Where district court awarded attorney’s fees but did not articulate the reasons for the award, since in general, attorney’s fees will not be awarded on appeal under this section unless the appellate court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation, the issue of attorney’s fees would be remanded to the district court so that it might state its reasons under Minich v. Gem State Developers, Inc. , 99 Idaho 911, 591 P.2d 1078 (1979) for the award. Blanc v. Laritz, 119 Idaho 359, 806 P.2d 452 (Ct. App. 1991). Request for attorney’s fees in action on Idaho R. Civ. P. 60(b) motion alleging mistake in property settlement agreement would be resolved by such agreement which provided that absent a breach of the agreement, each party shall assume and pay their own costs, expenses, and attorney’s fees in connection with this action where neither party alleged that the agreement was breached. Thomas v. Thomas, 119 Idaho 709, 809 P.2d 1188 (Ct. App. 1991).

A trial court’s consideration of failed settlement negotiations or of a refusal to negotiate a settlement when deciding whether to award attorney’s fees is prohibited under Idaho law. Smith v. Angell, 122 Idaho 25, 830 P.2d 1163 (1992).

Attorney’s fees under this section may only be awarded by the court when it finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation. Hossner v. Idaho Forest Indus., Inc., 122 Idaho 413, 835 P.2d 648 (1992).

The trial court did not abuse its discretion when it determined that neither party prevailed, that the city had not acted frivolously, and that plaintiff was not entitled to costs and attorney’s fees, where plaintiff attempted to prevent city from leasing a former hospital to the state for use as a correctional facility. Foster v. City of St. Anthony, 122 Idaho 883, 841 P.2d 413 (1992).

Because an appeal to the district court under the Idaho Administrative Procedure Act does not constitute a “civil action” as defined by Idaho R. Civ. P. 3(a), attorney’s fees were not available under this section to county which had its denial of reimbursement to hospital for medical indigency benefits upheld on appeal. University of Utah Hosp. v. Board of Comm’rs, 128 Idaho 529, 915 P.2d 1387 (Ct. App. 1996).

The plaintiffs’ requested attorney’s fees resulting from the defense of appeal, arguing that the appeal was frivolous, presented no bona fide arguments and advanced no authority, but they did not identify any particular conduct or arguments that they deemed frivolous or unmeritorious, and, on the contrary, the defendants asserted issues that deserved determination on appeal. Thus, there was no basis for an award of attorney’s fees to the plaintiffs. Hughes v. State, Dep’t of Law Enforcement, 129 Idaho 558, 929 P.2d 120 (1996).

The plaintiff failed to demonstrate an abuse of discretion where the record showed that he maintained that the easement accorded him carte blanche to make such changes in the existing road as he saw fit and where the district court concluded that his position was so plainly fallacious and violative of the rights of the servient landowners that an award of fees to the respondents as the prevailing parties in the action was justified. Conley v. Whittlesey, 133 Idaho 265, 985 P.2d 1127 (1999).

Trial court properly awarded respondents attorney’s fees because it found plaintiff’s petition to be frivolous, unreasonable and without foundation, in claiming a violation of nonexistent constitutional and statutory rights. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004).

Where a party has asserted claims that are frivolous, unreasonable, or without foundation, the presence of a legitimate, triable issue of fact is not a complete bar to the assessment of attorney fees. Apportionment of attorney fees is appropriate for those elements of the case that were frivolous, unreasonable, and without foundation. Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 329 P.3d 1072 (2014).

Case of First Impression.

Attorney fee award was properly apportioned, because the fees were awarded only on a frivolous conspiracy-to-defraud claim and not on a breach of the warranty of habitability claim, which raised an issue of first impression as to applicable accrual rules and limitations periods. Petrus Family Trust v. Kirk, 163 Idaho 490, 415 P.3d 358 (2018). Case of First Impression.

Department of finance’s request for attorney’s fees on appeal was denied where the central issues on appeal were the interpretation of the word “claim,” as found in§ 26-2223(2), and whether the corporation’s agreement was an assignment for collection purposes or an assignment of the entire claim; there were issues of first impression and a case of first impression did not constitute an area of settled law. PurCo Fleet Servs. v. Idaho State Dep’t of Fin., 140 Idaho 121, 90 P.3d 346 (2004).

Land seller was not entitled to attorney fees in a suit brought by a title company to recover an overpayment because the title company had not pursued the action frivolously or without foundation. The issue presented, that of claim preclusion, was one of first impression. Ticor Title Co. v. Stanion, 144 Idaho 119, 157 P.3d 613 (2007).

City officials were not entitled to an award of attorney fees against a former employee who unsuccessfully sought to hold the officials individually liable under the Idaho protection of public employees act, because the issue of individual liability was previously unsettled. Hammer v. City of Sun Valley, 163 Idaho 439, 414 P.3d 1178 (2016).

Civil Action.

Where a matter before the district court stemmed from a decision of a county zoning commission pursuant to an application filed with said commission and brought before the district court by the filing of an appeal, this matter did not constitute a civil action commenced by the filing of a complaint as required by Idaho R. Civ. P. 3(a), and an award of attorney’s fees pursuant to this section was error as the proceeding in question was not a “civil action.” Lowery v. Board of County Comm’rs, 117 Idaho 1079, 793 P.2d 1251 (1990).

Where a claimant for unemployment benefits does not file a complaint pursuant to Idaho R. Civ. P. 3(a), but files the claim for benefits according to§ 72-1368, the unemployment benefits claim does not constitute a civil action for which attorney’s fees can be awarded pursuant to this section. Johnson v. Idaho Cent. Credit Union, 127 Idaho 867, 908 P.2d 560 (1995).

In an employee’s appeal of a termination of employment case, a university was not entitled to attorney’s fees because the appeal from the decision of the Idaho personnel commission was not a civil action. Horne v. Idaho State Univ., 138 Idaho 700, 69 P.3d 120 (2003).

Matter before the district court was a decision of the Idaho personnel commission (commission) made pursuant to the appeals provision of the Personnel System Act and brought before the district court by the filing of an appeal; these proceedings did not constitute a civil action commenced by the filing of a complaint as required by Idaho R. Civ. P. 3(a); thus, the commission correctly ruled it did not have authority under this section to award fees. Sanchez v. State, 143 Idaho 239, 141 P.3d 1108 (2006).

Former employer was entitled to attorney’s fees under this section, because the former at-will employee failed to produce evidence to show that a genuine issue of material fact existed that the employer committed acts violative of any specific provision of the Idaho Consumer Protection Act or that she engaged in protected activity in response. Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574, 329 P.3d 356 (2014).

Claim.

In action involving a contract dispute which arose from a remodeling project that plaintiffs performed for defendants where it was evident based on the record and the arguments made on appeal that court could not say that the appeal was brought frivolously or unreasonably or that it lacked foundation, no attorney’s fees were appropriate on appeal. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

Since the ultimate issue — whether a company was entitled to collect on a promissory note — was left unresolved at this stage, the company’s request for attorney fees was denied. Sirius LC v. Erickson, 144 Idaho 38, 156 P.3d 539 (2007).

Because the supreme court vacated the judgment of the district court, the property owners’ action was not brought frivolously, unreasonably, or without foundation, and the mortgage company was not entitled to an award of attorney fees. PHH Mortg. Servs. Corp. v. Perreira, 146 Idaho 631, 200 P.3d 1180 (2009).

— Not Frivolous.

Where court concluded that the partners did not pursue their claim frivolously and without foundation, the court did not abuse its discretion in denying the partnership’s claim for attorney’s fees. Kelly v. Silverwood Estates, 127 Idaho 624, 903 P.2d 1321 (1995).

Where the plaintiff’s argument before the supreme court regarding a district judge’s abuse of discretion in striking portions of an expert opinion and denying a motion to reconsider was not persuasive, but neither was it unreasonable or frivolous, the defendant was not entitled to an award of attorney’s fees. Smith v. USAA Property & Cas. Ins., 132 Idaho 466, 974 P.2d 1095 (1999).

Where a plaintiff presented legitimate issues relating to an insurer’s duty in calculating premiums, his appeal from summary judgment was not frivolous, and the defendants were not entitled to attorney’s fees on appeal. Simper v. Farm Bureau Mut. Ins. Co., 132 Idaho 471, 974 P.2d 1100 (1999).

Where the district court made no findings that the plaintiff brought, pursued or defended his case frivolously, unreasonably or without foundation, attorney’s fees were not awardable. Karterman v. Jameson, 132 Idaho 910, 980 P.2d 574 (Ct. App. 1999).

Where counsel readily acknowledged that the argument he made was an extension of existing state tort law, it was not a frivolous or unreasonable argument made without foundation. Turpen v. Granieri, 133 Idaho 244, 985 P.2d 669 (1999).

An appeal of the grant of summary judgment on the issue of an implied easement was not entirely frivolous or without merit as the trial court had not yet decided the issue of whether an implied easement by prior use could be extinguished if use of the disputed way was no longer reasonably necessary. Therefore, attorney’s fees were denied. Davis v. Peacock, 133 Idaho 637, 991 P.2d 362 (1999), cert. denied, 529 U.S. 1078, 120 S. Ct. 1697, 146 L. Ed. 2d 502 (2000).

Attorney’s fees were denied because the appeal was not frivolous. Williamson v. City of McCall, 135 Idaho 452, 19 P.3d 766 (2001).

Defendant city was denied its request for an award of attorney’s fees where the arguments raised by the plaintiff were not frivolous, unreasonable or without foundation. Sanchez v. City of Caldwell, 135 Idaho 465, 20 P.3d 1 (2001).

District court did not abuse its discretion in denying attorney’s fees to the individual appellants because the lawsuit was not frivolous or without foundation under the provisions of this section. Thorn Springs Ranch, Inc. v. Smith, 137 Idaho 480, 50 P.3d 975 (2002).

While property owners qualified as the prevailing party to the appeal under this section, the issues presented by the farm on the appeal did not leave the appellate court with the belief that the appeal was pursued frivolously, unreasonably or without foundation; the owners’ request for an award of attorney’s fees did not meet the standard and was, therefore, denied. Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, cert. denied, 540 U.S. 1004, 124 S. Ct. 535, 157 L. Ed. 2d 410 (2003). In action involving a contract dispute which arose from a remodeling project that plaintiffs performed for defendants where it was evident based on the record and the arguments made on appeal that court could not say that the appeal was brought frivolously or unreasonably or that it lacked foundation, no attorney’s fees were appropriate on appeal. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

— Not Frivolous.

Attorney’s fees were denied because the appeal was not frivolous. Williamson v. City of McCall, 135 Idaho 452, 19 P.3d 766 (2001).

While property owners qualified as the prevailing party to the appeal under this section, the issues presented by the farm on the appeal did not leave the appellate court with the belief that the appeal was pursued frivolously, unreasonably or without foundation; the owners’ request for an award of attorney’s fees did not meet the standard and was, therefore, denied. Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, cert. denied, 540 U.S. 1004, 124 S. Ct. 535, 157 L. Ed. 2d 410 (2003). Supreme court of Idaho declined to award attorney’s fees to a county where a county resident’s appeal of the application and interpretation of a county ordinance by the adopting county regarding its procedure for granting livestock confinement operation permits was not frivolous. Chisholm v. Twin Falls County (In re Twin Falls County Comm’rs Resolution No. 2001-4), 139 Idaho 131, 75 P.3d 185 (2003).

Property owners were not entitled to attorney’s fees in the appeal of a summary judgment granted for them in an easement dispute. It was apparent from their briefs that the property owners’ neighbors believed that the property owners’ parcel would not be subdivided and would always remain a single lot; although this argument was not persuasive in light of relevant easement law and the wording of the easement agreement, it was not frivolous. McFadden v. Sein, 139 Idaho 921, 88 P.3d 740 (2004).

Grant of summary judgment in favor of the company was proper where the company did not enter into any agreement or make any representation to pay the wife her community property interest in the husband’s shares in the event of divorce; further, the district court did not err in denying the company an award of attorney’s fees pursuant to this section because the language of the agreements was such that the wife’s arguments did not rise to the level of frivolous, unreasonable, or without foundation. Tolley v. THI Co., 140 Idaho 253, 92 P.3d 503 (2004).

In a subrogation case, a court did not err by denying attorney’s fees to plaintiffs where, at the time of the lawsuit the law was not settled whether an insurer would be required to pay a proportionate share of costs and attorney’s fees when the insurer did not consent to the insured taking action to collect the insurer’s claim, it was only after an applicable case was decided that plaintiffs amended their complaint seeking recovery under the common fund doctrine for punitive damages, and the trial court concluded that under the circumstances, it could not say that the insurer’s defense of the law suit was frivolous, unreasonable or without foundation. Boll v. State Farm Mut. Auto. Ins. Co., 140 Idaho 334, 92 P.3d 1081 (2004).

Insurer sought attorney’s fees in declaratory judgment matter brought by the insurer to determine its duty to defend an investment company, its insured, in the underlying suit. The argument advanced by the investment company that the complaint should be broadly construed to encompass non-excluded claims was not frivolous. AMCO Ins. Co. v. Tri-Spur Inv. Co., 140 Idaho 733, 101 P.3d 226 (2004).

Request for attorney’s fees on grounds that an estate’s claims were frivolous was denied because the estate’s arguments were based on the good faith belief that actions by an estate for personal injury damages could have survived. Estate of Shaw v. Dauphin Graphic Machs., Inc., 392 F. Supp. 2d 1230 (D. Idaho 2005), rev’d in part, 240 Fed. Appx. 177 (9th Cir. 2007).

Where health district reasonably, but erroneously, believed that it, and not the department of environmental quality, was the appropriate agency to re-impose sanitary restrictions on a developed, commercial property, attorney’s fees will not be awarded to the developer even though the health district was found to have acted beyond its statutory authority. Sunnyside Indus. & Prof’l Park, LLC v. Eastern Idaho Pub. Health Dist., 147 Idaho 668, 214 P.3d 654 (Ct. App. 2009).

Condemnation.

In condemnation proceeding, where landowners were entitled to award of attorney’s fees only if they could show entitlement under this section: trial judge did not err in finding that case was not pursued frivolously or unreasonably, as required by Idaho R. Civ. P. 54(e)(1), so as to warrant award of attorney’s fees. State ex rel. Moore v. Lawson, 105 Idaho 164, 667 P.2d 267 (Ct. App. 1983).

An award of reasonable attorney’s fees to the condemnee in an eminent domain proceeding is a matter for the trial court’s guided discretion and, as in other areas of the law, such award will be overturned only upon a showing of abuse. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Attorney’s fees and costs are allowable, in eminent domain proceedings, under Idaho R. Civ. P. 54(d)(1); however, such fees and costs are not mandatory as within the definition of just compensation. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

In condemnation actions, attorney’s fees may be awarded to the condemnee without a showing and finding that the action was brought and pursued “frivolously, unreasonably or without foundation.” Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Attorney’s fees and other expenses are not recoverable in a condemnation proceeding, except as authorized by statute. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

In determining award of attorney’s fees to a condemnee, the court should consider the following factors: whether the condemnor reasonably made a timely offer of settlement of at least 90 percent of the ultimate jury verdict and whether such offer was made within a reasonable period after the institution of the action; any controverting of the public use and necessity allegations; the outcome of any hearing thereon and any modification in the plans or design of the condemnor’s project resulting from the condemnee’s challenge; and whether the condemnee voluntarily granted possession of the property pending resolution of the just compensation issue. As to the amount of attorney’s fees awardable, the criteria outlined in Idaho R. Civ. P. 54(e)(3) are appropriate in condemnation, as in all other civil cases; however, the court should not automatically adopt any contingent fee or contractual arrangement, but rather the fee awarded may be more or less than that provided in the lawyer-client contract. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Contract Cases.

Costs.

When a contract is clear and unambiguous, the reviewing court uses the plain meaning of the words, not the intent of the parties. Thus, where city, as third-party beneficiary, did not demonstrate than any terms of the sublease were ambiguous and, as such, had failed to establish that there was a genuine issue of fact which would have made district court’s summary judgment award improper, city’s appeal was without foundation and respondent was entitled to an award of attorney’s fees on appeal. Navarrete v. City of Caldwell, 130 Idaho 849, 949 P.2d 597 (Ct. App. 1997). Costs.

An attorney fee award made pursuant to this section may properly be included as costs. Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980).

Counterclaim on Open Account.

Where defendant’s counterclaim was an action on an open account for sums owed him for feeding and caring for plaintiff’s cattle, as prevailing party on that counterclaim, the defendant was entitled to attorney’s fees as a matter of statutory right and not merely in the court’s discretion. Torix v. Allred, 100 Idaho 905, 606 P.2d 1334 (1980).

Criminal Cases.

A successful criminal appellant cannot recover attorney’s fees under§ 12-120 and this section which apply to only civil actions or under Idaho App. R. 40 and 41, absent an explicit statutory authorization. State v. Roll, 118 Idaho 936, 801 P.2d 1287 (Ct. App. 1990).

Default Judgment.

In an action brought by a musician to recover royalties on music, attorney’s fees, recoverable where a default judgment was entered, were limited to the amount stated in a complaint. Holladay v. Lindsay, 143 Idaho 767, 152 P.3d 638 (Ct. App. 2006).

Denial Proper.

District judge correctly determined that neither party prevailed and, therefore, he did not abuse his discretion in determining the parties were not entitled to fees. Brown v. Miller, 140 Idaho 439, 95 P.3d 57 (2004).

In a wrongful birth action, trial court did not abuse its discretion in denying the doctor attorney’s fees under this section because the patient presented a sufficient issue of statutory interpretation to preclude such an award. Vanvooren v. Astin, 141 Idaho 440, 111 P.3d 125 (2005).

District court declined to award attorney fees pursuant to this section where it found the real estate broker and his wife had not pursued their claims frivolously, unreasonably, or without foundation. Taylor v. Maile, 146 Idaho 705, 201 P.3d 1282 (2009).

District court did not abuse its discretion in failing to award attorney fees to defendants, because, even though much of plaintiff’s case was frivolous and she might have somewhat abused the process in the district court, she presented a novel issue related to the standard required to succeed on a 42 U.S.C.S. § 1983 claim for violations of her own rights resulting from the county’s interference with her relationship with her adult son who committed suicide while in jail. Hoagland v. Ada County, 154 Idaho 900, 303 P.3d 587 (2013), cert. denied, — U.S. — 134 S. Ct. 1024, 188 L. Ed. 2d 119 (2014).

Determination of Award.

Costs.

An attorney fee award made pursuant to this section may properly be included as costs. Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980).

Counterclaim on Open Account.

Where defendant’s counterclaim was an action on an open account for sums owed him for feeding and caring for plaintiff’s cattle, as prevailing party on that counterclaim, the defendant was entitled to attorney’s fees as a matter of statutory right and not merely in the court’s discretion. Torix v. Allred, 100 Idaho 905, 606 P.2d 1334 (1980).

Criminal Cases.

Default Judgment.

Denial Proper.

Determination of Award.

The trial court should have determined separately the amount of the total attorney’s fees which were attributable to the defense of the main action of plaintiffs and how much was attributable to the defense of the counterclaim, and then awarded those claims separately. Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978). Where trial court made no finding as to the time allocated to defending homeowners against claim by real estate broker but, rather, based its determination on what had been awarded to potential purchasers when they prevailed in dismissal of the third-party complaint by homeowners against them, the trial court failed to properly take into consideration the factors enumerated in Idaho R. Civ. P. 54(e)(3) and case must be remanded for redetermination of amount of attorney’s fees. Logosz v. Childers, 105 Idaho 173, 667 P.2d 276 (Ct. App. 1983).

The introduction of hourly time sheets into evidence is not a prerequisite to an award of reasonable attorney’s fees; however, an award of attorney’s fees must be supported by findings which must, in turn, be supported by the record. Hackett v. Streeter, 109 Idaho 261, 706 P.2d 1372 (Ct. App. 1985).

In determining whether or not to award attorney’s fees under this section, the trial courts may not consider the extent of any settlement negotiations which the parties may or may not have engaged in. Anderson v. Anderson, Kaufman, Ringert & Clark, 116 Idaho 359, 775 P.2d 1201 (1989).

The percentage of pages in an appellate opinion discussing defendant’s liability was not an appropriate factor to consider in allocating attorney’s fees. Davidson v. Beco Corp., 116 Idaho 696, 778 P.2d 818 (Ct. App. 1989).

Attorney’s fees incurred on appeal could not be awarded under this section since the case was remanded for a new trial and it had not yet been determined whether requester of fees was the prevailing party in the litigation; however, attorney’s fees incurred for the appeal could be taken into account by the trial court in determining the amount of fees which ultimately should be awarded to the prevailing party at the conclusion of the litigation. Quinto v. Millwood Forest Prods., Inc., 130 Idaho 162, 938 P.2d 189 (Ct. App. 1997).

Where neither a plaintiff nor a defendant was a prevailing party since both achieved partial success, but a co-defendant received nearly all of the relief sought, no award of fees to the co-defendant was warranted since there was no showing of the fees incurred solely on behalf of the co-defendant. Morrarty v. Morton (In re Morton), 2009 Bankr. LEXIS 3260 (Bankr. D. Idaho Oct. 12, 2009).

Effective March 1, 2017, the courts of this state will apply the standard originally expressed by the legislature in awarding attorney fees — prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred “when justice so requires.” Hoffer v. Shappard, 160 Idaho 868, 380 P.3d 681 (2016) (see 2017 amendment).

Discretion of Court.

Where final judgment was entered November 26, 1976, this section was applicable, and since the sum of $4250 was found to be reasonable by the trial judge, and the award was made so as to do complete justice between the litigants, the award was well within the trial court’s discretionary powers under this section. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).

Where the defendant’s defense, though unsuccessful was offered in good faith with no intent to delay or hinder justice, the trial court did not abuse its discretion in denying attorney’s fees. Cunningham v. Bundy, 100 Idaho 456, 600 P.2d 132 (1979).

Where the record reflected that, at a hearing held on the objection to the attorney’s fees, the parties stipulated to the effect In that each party would call as a witness an attorney who would testify as to his opinion of a reasonable charge; that the witness for defendants would testify to the effect that the fees set forth in the cost bill were reasonable, and that the witness for plaintiffs would testify to the effect that the fees should be charged at a lesser rate than those set forth in the affidavit as to attorney’s fees, under these circumstances the award of attorney’s fees by the trial court was within its discretionary power. Futrell v. Martin, 100 Idaho 473, 600 P.2d 777 (1979). Where trial court made no finding as to the time allocated to defending homeowners against claim by real estate broker but, rather, based its determination on what had been awarded to potential purchasers when they prevailed in dismissal of the third-party complaint by homeowners against them, the trial court failed to properly take into consideration the factors enumerated in Idaho R. Civ. P. 54(e)(3) and case must be remanded for redetermination of amount of attorney’s fees. Logosz v. Childers, 105 Idaho 173, 667 P.2d 276 (Ct. App. 1983).

Discretion of Court.

Where the record reflected that, at a hearing held on the objection to the attorney’s fees, the parties stipulated to the effect In that each party would call as a witness an attorney who would testify as to his opinion of a reasonable charge; that the witness for defendants would testify to the effect that the fees set forth in the cost bill were reasonable, and that the witness for plaintiffs would testify to the effect that the fees should be charged at a lesser rate than those set forth in the affidavit as to attorney’s fees, under these circumstances the award of attorney’s fees by the trial court was within its discretionary power. Futrell v. Martin, 100 Idaho 473, 600 P.2d 777 (1979). Where, as a grounds for providing it with attorney’s fees, a bank argued that a customer’s suit was “frivolous,” but where the lower court paid much attention to the fact that the customer appeared pro se and it could have properly concluded that he believed his suit was not “frivolous,” the lower court did not abuse its discretion in denying attorney’s fees to the bank. Palmer v. Idaho Bank & Trust, 100 Idaho 642, 603 P.2d 597 (1979).

Where there was no showing that the $300 attorney fee award made in a suit to recover on claim against estate constituted an abuse of the district court’s discretion, the award to the estate was affirmed. Tanner v. Estate of Cobb, 101 Idaho 444, 614 P.2d 984 (1980).

Where the state department of health and welfare failed to demonstrate, and the record did not reveal, that the district court abused its discretion when it denied an award of attorney’s fees to the department on an appeal from a hearing officer’s administrative decision which affirmed the termination of the recipients’ public assistance grants, the district court’s denial of attorney’s fees would not be disturbed. Tappen v. State, Dep’t of Health & Welfare, 102 Idaho 807, 641 P.2d 994 (1982).

Prior to the advent of Idaho R. Civ. P. 54(e)(1), this section, standing alone, gave the trial court broad discretion to award attorney’s fees to prevailing parties; therefore, where in an unlawful detainer action filed before the effective date of the rule, both parties partially prevailed, but one party prevailed on all the issues except one, the trial court did not abuse its discretion in awarding attorney’s fees to that party. Haskin v. Glass, 102 Idaho 785, 640 P.2d 1186 (Ct. App. 1982).

The award of attorney’s fees rests in the sound discretion of the trial court and the burden is on the person disputing the award to show an abuse of discretion. Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982).

While a genuine issue may appear on the face of the pleadings and affidavits, it does not necessarily follow that the evidence introduced at trial sustains that position; accordingly, where, at the end of the trial, the court concluded that a third-party complaint was without reasonable foundation, the fact that it had previously found for the party on summary judgment did not necessarily establish that the complaint was reasonable and well founded, and the award of attorney’s fees to the prevailing party was not an abuse of discretion. Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982).

Where there was no clear showing that the trial judge abused or failed to exercise his discretion in awarding attorney’s fees, the awards would not be set aside, and the assertion that a small portion of the trial court’s decision indicated a failure to exercise discretion was untenable in light of the remainder of the decision wherein the trial court reviewed all objections to the claimed costs and attorney’s fees and, clearly utilizing his discretion, disallowed some costs and substantially reduced the claimed attorney’s fees. City of Nampa v. McGee, 104 Idaho 63, 656 P.2d 124 (1982).

In those instances wherein attorney’s fees can properly be awarded, the award of attorney’s fees rests in the sound discretion of the trial court and the burden is on the person disputing the award to show an abuse of discretion. Hellar v. Cenarrusa, 106 Idaho 571, 682 P.2d 524 (1984). An award of attorney’s fees under this section is discretionary; but it must be supported by findings and those findings, in turn, must be supported by the record. Wing v. Amalgamated Sugar Co., 106 Idaho 905, 684 P.2d 307 (Ct. App. 1984).

An award of attorney’s fees under this section rests within the sound discretion of the district judge, but when a fairly debatable claim is deemed frivolous for no stated reason other than its ultimate failure upon a point of law, discretion has been abused. Gulf Chem. Employees Fed. Credit Union v. Williams, 107 Idaho 890, 693 P.2d 1092 (Ct. App. 1984).

Idaho R. Civ. P. 54(e)(1) only applies to actions filed after March 1, 1979; thus, where the action was filed well before Rule 54(e) became effective, the trial court incorrectly assumed that he was bound by the rule, when in fact his exercise of discretion in considering an award of fees under this section was not subject to the limitations of that rule. Due to the trial judge’s erroneous assumption, attorney’s fees were denied on improper grounds. Pichon v. L.J. Broekemeier, Inc., 108 Idaho 846, 702 P.2d 884 (Ct. App. 1985).

Objections to the memorandum of costs must be made within ten days of its service under Idaho R. Civ. P. 54(d)(6); however, a failure to timely object does not automatically entitle the prevailing party to the attorney’s fees requested. An award of attorney’s fees under this section is discretionary with the trial court; lack of an objection does not preclude the court from exercising its discretion in deciding whether to award attorney’s fees under Idaho R. Civ. P. 54(d)(1)(D). Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct. App. 1985).

The district court did not abuse its discretion in not awarding attorney’s fees in view of the large damage claims against the defendant and the complexity of the case. Soria v. Sierra Pac. Airlines, 111 Idaho 594, 726 P.2d 706 (1986).

The determination to award or not award attorney’s fees is committed to the discretion of the trial court. Soria v. Sierra Pac. Airlines, 111 Idaho 594, 726 P.2d 706 (1986).

Where issues of discretion are involved, an award of attorney’s fees is proper if the appellant fails to make a cogent challenge to the judge’s exercise of discretion. Andrews v. Idaho Forest Indus., Inc., 117 Idaho 195, 786 P.2d 586 (Ct. App. 1990).

Where the court was not left with the abiding belief that an appeal was pursued frivolously, unreasonably or without foundation, an award of attorney’s fees was properly withheld from the prevailing party in an action which sought to set aside a stipulated settlement. Artiach Trucking, Inc. v. Wolters, 118 Idaho 656, 798 P.2d 938 (Ct. App. 1990).

The court abused its discretion in holding a defendant equally liable with codefendant for costs and fees in a quiet title action where plaintiff named defendant as a defendant without alleging any acts of wrongdoing on her part and the plaintiff had stipulated to dismissal of the defendant prior to trial without making any claim against her for costs or fees. Platt v. Brown, 120 Idaho 41, 813 P.2d 380 (Ct. App. 1991).

When an exercise of discretion is involved, an appellate court conducts a three-step analysis: (1) whether the trial court properly perceived the issue as one of discretion; (2) whether that court acted within the outer boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by the exercise of reason. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994). Where the district court perceived that the awarding of attorney’s fees under this section was discretionary, and where the court acted within the boundaries of its discretion, reaching its decision to deny fees by an exercise of reason, the denial was affirmed. Treasure Valley Concrete, Inc. v. State, 132 Idaho 673, 978 P.2d 233 (1999), overruled on other grounds, City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012).

Because the record did not establish that the district court applied the standards set forth in Sun Valley Shopping Center v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993, (1991) in exercising its discretion to award attorney’s fees, the case was remanded for the district court to consider the claim for attorney’s fees and to specify the basis of any award or denial of an award. Simons v. Simons, 134 Idaho 824, 11 P.3d 20 (2000).

Awarding of attorney’s fees and costs under this section, and Idaho R. Civ. P. 54(e)(1) and 54(d)(1) is within the discretion of the trial court and subject to an abuse of discretion standard of review; the burden is on the party disputing the award of attorney’s fees to show an abuse of discretion. Burns v. Baldwin, 138 Idaho 480, 65 P.3d 502 (2003).

Claimant’s request for attorney’s fees under this section was denied even though the claimant was the prevailing party, because the trial court properly exercised its discretion consistent with the appropriate legal standards and reached the decision to deny attorney’s fees based upon the exercise of reason. Roark v. Bentley, 139 Idaho 793, 86 P.3d 507 (2004).

Trial court did not abuse its discretion in denying the parent attorney’s fees because the issue of whether the charter school could maintain an action for libel and slander was a debatable issue; the district judge had broad discretion to apportion the attorney’s fees the parent claimed, and no abuse of that discretion occurred. Nampa Charter Sch., Inc. v. Delapaz, 140 Idaho 23, 89 P.3d 863 (2004).

An award under this statute is not a matter of right to the prevailing party, but is appropriate only when the court, in its discretion, is left with the abiding belief that the case was brought, pursued, or defended frivolously, unreasonably, or without foundation. Kilborn v. Haun (In re Haun), 396 B.R. 522 (Bankr. D. Idaho 2008).

An award of attorney fees under this section is discretionary, but it must be supported by findings; and those findings, in turn, must be supported by the record. Westover v. Idaho Counties Risk Mgmt. Program, 164 Idaho 385, 430 P.3d 1284 (2018).

Divorce Actions.

Section 32-704(2) is not the exclusive avenue available to a party seeking attorney’s fees in a divorce action. A court may award fees based on financial need under§ 32-704, however, this section applies to all civil actions. Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Where a wife’s appeal of a divorce decree was unavailing, but was not frivolous, unreasonable or without foundation, the district judge abused his discretion in awarding attorney’s fees to husband under this section. Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App. 1988).

Where the husband’s appeal was driven by his dissatisfaction with the magistrate judge’s factual findings, and he had done little more than invite the appellate court to second-guess the magistrate’s findings, attorney’s fees were appropriately awarded to the wife on appeal. Reed v. Reed, 137 Idaho 53, 44 P.3d 1108 (2002). In divorce proceedings, magistrate erred in awarding attorney’s fees to wife on the basis that husband’s child custody claim was frivolous because he was subject to a guardianship and, therefore, was absolutely precluded from seeking custody, because a parent with a guardian is not absolutely precluded from exercising any level of custody of his or her child. Lieurance-Ross v. Ross, 142 Idaho 536, 129 P.3d 1285 (Ct. App. 2006).

In a property division action as part of a divorce, a former wife was not entitled to attorney’s fees because the previously unsettled state of the law on the characterization of professional goodwill made an award of attorneys fees inappropriate, and because the wife made no showing of necessity to the court. Stewart v. Stewart, 143 Idaho 673, 152 P.3d 544 (2007).

Failure to Award.

Where an appeal from an order refusing to set aside a default judgment afforded the court of appeals an important occasion to define the standards which should govern appellate review of decisions to grant or to deny relief from default judgments, and the appeal may well have been encouraged by the supreme court’s decisions in several prior cases, the court of appeals would not assess attorney’s fees against the appellant in favor of the respondents who were the prevailing parties. Avondale on Hayden, Inc. v. Hall, 104 Idaho 321, 658 P.2d 992 (Ct. App. 1983).

No attorney’s fees were awarded in a case that raised issues of first impression to the supreme court regarding whether, pursuant to signature requirements of Idaho R. Civ. P. 11(a)(1), an agent could sign a complaint on behalf of unrepresented parties and where the original complaint was thus signed was it in violation of rule, and where there was no consensus as to how other courts had treated those issues, so the arguments presented were reasonable and not frivolous. Black v. Ameritel Inns, Inc., 139 Idaho 511, 81 P.3d 416 (2003).

Failure to Negotiate.

The failure to enter into or conduct settlement negotiations is not a basis for awarding attorney’s fees under this section nor under Idaho R. Civ. P. 54(e)(1) through 54(e)(9). Anderson v. Anderson, Kaufman, Ringert & Clark, 116 Idaho 359, 775 P.2d 1201 (1989).

Failure to Raise Issue.

Plaintiff contended that the district court abused its discretion in awarding attorney’s fees because plaintiff offered a new argument which was not presented to the district court, either before or after remand. Because plaintiff raised the issue for the first time in a second appeal, the court of appeals would not address it. Bonaparte v. Neff, 122 Idaho 714, 838 P.2d 317 (Ct. App. 1992).

In a tort action, a painter and attorney were not entitled to attorney’s fees under§ 12-120(3), despite the fact that the underlying action was based on a commercial transaction; because the painter and the attorney did not offer argument in support of their claim for attorney’s fees under this section, an appellate court declined to consider the issue. McPheters v. Maile, 138 Idaho 391, 64 P.3d 317, cert. denied, 540 U.S. 888, 124 S. Ct. 269, 157 L. Ed. 2d 159 (2003).

Findings.

Where a personal injury action was initiated prior to March 1, 1979, the effective date of Idaho R. Civ. P. 54(e)(1), it was not necessary for the trial court to make the findings presently required by that rule before awarding attorney’s fees under this section. Quincy v. Joint Sch. Dist. No. 41, 102 Idaho 764, 640 P.2d 304 (1981). In divorce proceedings, magistrate erred in awarding attorney’s fees to wife on the basis that husband’s child custody claim was frivolous because he was subject to a guardianship and, therefore, was absolutely precluded from seeking custody, because a parent with a guardian is not absolutely precluded from exercising any level of custody of his or her child. Lieurance-Ross v. Ross, 142 Idaho 536, 129 P.3d 1285 (Ct. App. 2006).

Failure to Award.

Failure to Negotiate.

Failure to Raise Issue.

Findings.

Where a personal injury action was initiated prior to March 1, 1979, the effective date of Idaho R. Civ. P. 54(e)(1), it was not necessary for the trial court to make the findings presently required by that rule before awarding attorney’s fees under this section. Quincy v. Joint Sch. Dist. No. 41, 102 Idaho 764, 640 P.2d 304 (1981). If a prevailing party makes a specific contention that one or more of the criteria of Idaho R. Civ. P. 54(e)(1) through 54(e)(9) have been satisfied, the court should state its reasons for declining to award attorney’s fees. Otherwise, the appellate court has no meaningful basis to review the trial court’s exercise of discretion. First Sec. Bank v. Absco Whse., Inc., 104 Idaho 853, 664 P.2d 281 (Ct. App. 1983).

Findings are required under Idaho R. Civ. P. 54(e)(2) only when a court awards attorney’s fees pursuant to this section. Devine v. Cluff, 110 Idaho 1, 713 P.2d 437 (Ct. App. 1985).

The absence of specific findings of fact and conclusions of law providing a basis and reason for awarding attorney’s fees requires a reversal and remand for additional findings and conclusions. Thus, where district court’s findings in instant case did not explain its decision to award attorney’s fees, such reversal and remand was necessary. Snipes v. Schalo, 130 Idaho 890, 950 P.2d 262 (Ct. App. 1997).

Fraud.

Every party found to have committed fraud is not automatically required to pay the opposing party’s attorney’s fees for having unsuccessfully defended against the claim of fraud. It is possible for defendants to raise a reasonable, yet unsuccessful, defense against a claim of fraud. Haney v. Molko, 123 Idaho 132, 844 P.2d 1382 (Ct. App. 1992).

Frivolous and Unreasonable Defense.

Department of correction’s defense in habeas corpus proceeding was frivolous and unreasonable because the disciplinary report which the department continued to defend did not contain notice concerning the date and time of the hearing to be held with regard to a certain alleged violation, and it also lacked any description of the alleged violation. Needs v. State, 118 Idaho 207, 795 P.2d 912 (Ct. App. 1990).

Frivolous Appeal.

Where appellant did not point to any finding of fact, with one exception, which was not supported by substantial and competent evidence and that exception did not affect the trial court’s ultimate conclusions of law, nor did he ask the court to establish any new legal standards, nor to modify or clarify any existing standards, the appeal was brought frivolously, unreasonably and without foundation. Therefore, the court awarded attorney’s fees to the respondents. Fairchild v. Fairchild, 106 Idaho 147, 676 P.2d 722 (Ct. App. 1984).

Although, with one exception, the issues raised by the defendant on appeal were frivolous and without foundation, the only exception was settled by a decision issued after the defendant’s briefs had been filed; therefore, the defendant’s appeal was non-frivolous, and the court of appeals declined to award attorney’s fees on appeal to the state tax commission. Parsons v. Idaho State Tax Comm’n, 110 Idaho 572, 716 P.2d 1344 (Ct. App. 1986).

Where the appeal was brought frivolously, unreasonably and without foundation, attorney’s fees were awarded on appeal. Keller v. Rogstad, 112 Idaho 484, 733 P.2d 705 (1987).

Attorney’s fees will be awarded to the prevailing party on appeal when the court of appeals is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation. Sinclair & Co. v. Gurule, 114 Idaho 362, 757 P.2d 225 (Ct. App. 1988). Where the investor’s appeal was frivolous and without foundation, the court of appeals awarded attorney’s fees on appeal to a futures commission merchant. Sinclair & Co. v. Gurule, 114 Idaho 362, 757 P.2d 225 (Ct. App. 1988).

Where husband’s appeal was brought frivolously and without foundation and merely disputed the trial court’s factual findings by pointing to conflicts in the evidence, wife was entitled to an award of a reasonable attorney fee on appeal. Krebs v. Krebs, 114 Idaho 571, 759 P.2d 77 (Ct. App. 1988).

Where neither the board of county commissioners nor its counsel actively advocated the position found to be frivolous by the district court, but the board tried to maintain a passive, nonpartisan and removed posture on appeal, while at the same time explaining its decision below, the district court erred in deeming the board’s response to the appeal as frivolous and without foundation, and actions of this board and its counsel did not justify an award of fees. Lowery v. Board of County Comm’rs, 115 Idaho 64, 764 P.2d 431 (Ct. App. 1988).

A district court may award fees pursuant to this section against an administrative tribunal that undertakes a frivolous appeal. Lowery v. Board of County Comm’rs, 115 Idaho 64, 764 P.2d 431 (Ct. App. 1988).

Attorney’s fees are not recoverable on appeal under§ 45-513; however, an award could be made under this section, but only if the court of appeals found that defendant’s appeal was brought or pursued “frivolously, unreasonably or without foundation.” Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 115 Idaho 373, 766 P.2d 1254 (Ct. App. 1988).

Where, in connection with a motion to review an order for summary judgment, the movants offered no additional authority, theory, or reason for amending the original summary judgment, nor did they cite any error in the district court’s original ruling, the district court did not abuse its discretion by awarding reasonable attorney’s fees to the prevailing party, as it found from the facts presented to it that the case was brought, pursued or defended frivolously, unreasonably or without foundation. Zehm v. Associated Logging Contractors, 116 Idaho 349, 775 P.2d 1191 (1988).

Although defendants have submitted voluminous briefing to the court of appeals, much of this briefing deals with issues previously argued before the court and their additional arguments were without merit or foundation; thus, the appeal was brought unreasonably and without foundation. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

Because Idaho R. Civ. P. 54(e)(1) through 54(e)(9) are procedural in nature, the court of appeals was not bound by them or this section, and where standing arguments and state law claims were meritless because, as held by the district court, the failure to post the required bond precluded the appellants’ actions, the court awarded the appellees attorney’s fees for the frivolous appeal. Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991).

Respondents are entitled to an award of attorney’s fees on appeal where nonprevailing party invited the court of appeals to do no more than second-guess the trial court on conflicting evidence and, in addition, the law was well-settled. Blaser v. Cameron, 121 Idaho 1012, 829 P.2d 1361 (Ct. App. 1991).

Since the state building authority is a public instrumentality and not an agency within the meaning of§ 12-117, subsection (3) of§ 12-120, and not§ 12-117, is the applicable section for the awarding of attorney’s fees in an action brought by architects against authority for architectural services performed under contract. Moreover since the action was not brought, pursued or defended frivolously, unreasonably or without foundation, attorney’s fees cannot be awarded under this section. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992). Where the investor’s appeal was frivolous and without foundation, the court of appeals awarded attorney’s fees on appeal to a futures commission merchant. Sinclair & Co. v. Gurule, 114 Idaho 362, 757 P.2d 225 (Ct. App. 1988).

Since the state building authority is a public instrumentality and not an agency within the meaning of§ 12-117, subsection (3) of§ 12-120, and not§ 12-117, is the applicable section for the awarding of attorney’s fees in an action brought by architects against authority for architectural services performed under contract. Moreover since the action was not brought, pursued or defended frivolously, unreasonably or without foundation, attorney’s fees cannot be awarded under this section. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 835 P.2d 1282 (1992). In view of the magistrate’s finding, supported by substantial evidence, that wood stove was personal property and not a fixture, there was no merit to purchaser’s alternative contention that the stove was conveyed to him under the terms of the written real estate agreement. The appeal was brought frivolously, unreasonably, and without foundation and, accordingly, the sellers’ request for attorney’s fees under this section was granted. Everitt v. Higgins, 122 Idaho 708, 838 P.2d 311 (Ct. App. 1992).

Appeal was brought, pursued or defended frivolously, unreasonably or without foundation where plaintiff did not present any good faith arguments for reversing the judgment of the lower court awarding defendant’s costs and attorney’s fees, nor did he present any genuine issue of law. Therefore, the court of appeals awarded attorney’s fees on appeal as well to the defendants. Bonaparte v. Neff, 122 Idaho 714, 838 P.2d 317 (Ct. App. 1992).

Husband’s motion was frivolous and without basis where husband raised issues unrelated to a special clause in divorce decree allowing a motion to modify only in relation to items in the stipulation, and husband also raised additional new issues without facts to support a request for relief under Idaho R. Civ. P. 60(b). Lunn v. Lunn, 125 Idaho 193, 868 P.2d 521 (Ct. App. 1994).

In a prosecution by client against attorney for legal malpractice, it was an abuse of discretion for the trial court to award attorney’s fees against client under this section; client’s prosecution of his negligence claim on remand was neither unreasonable nor frivolous in light of Thompson v. Park , 122 Idaho 698, 838 P.2d 305 (1992); attorney’s submission of supplemental affidavits did not vitiate that holding and render prosecution frivolous. Thompson v. Pike, 125 Idaho 897, 876 P.2d 595 (1994).

When an appeal is decided by reference to legal authorities in other states, and therefore helps to develop Idaho law, the appeal is not frivolous. Klassert v. Wadley, 117 Idaho 424, 788 P.2d 239 (Ct. App. 1990).

Because the plaintiff’s appeal was not frivolous or without any reasonable basis in fact or law, the defendant’s request for attorney’s fees pursuant to this section was denied. Moser v. Coca-Cola N.W. Bottling Co., 129 Idaho 709, 931 P.2d 1227 (Ct. App. 1997).

Appeal was ruled frivolous where defendant argued that because jury verdict was one lump sum, the trial court could not have possibly known what damages the jury award covered; considering the jury verdict was less than the total amount of itemized medical bills, it was evident that the jury gave no award for lost wages or pain and suffering, and to argue otherwise was frivolous. Collins v. Jones, 131 Idaho 556, 961 P.2d 647 (1998).

Where appellants failed to present a meaningful question of law on appeal, and instead merely asked the court to second-guess the decisions of the trial court, attorney’s fees for his defense of the frivolous appeal were awarded to the appellee. Fairfax v. Ramirez, 133 Idaho 72, 982 P.2d 375 (Ct. App. 1999).

Defendant’s request for attorney’s fees on appeal pursuant to this section was denied where the appeal was not brought or pursued frivolously, unreasonably or without foundation. D.A.R., Inc. v. Sheffer, 134 Idaho 141, 997 P.2d 602 (2000).

Ground water district’s appeal of a decree granting a water right to claimants lacked foundation in law, was unreasonable, and justified an award of attorney’s fees to the claimants under this section. N. Snake Ground Water Dist. v. Gisler, 136 Idaho 747, 40 P.3d 105 (2002).

Award of attorney’s fees was appropriate where plaintiffs had numerous opportunities to correct the deficiencies in their case, and their arguments regarding an affidavit lacked foundation, and were based on U.S. supreme court cases that had not been adopted as the rule in Idaho. Carnell v. Barker Mgmt., Inc., 137 Idaho 322, 48 P.3d 651 (2002). No attorney’s fees were awarded in an appeal involving a dispute over a public roadway established by prescription because the appellate court was not left with the abiding belief that the appeal was brought, pursued, or defended frivolously, or without foundation. John W. Brown Props. v. Blaine County, 138 Idaho 171, 59 P.3d 976 (2002).

Appellate court refused to award attorney’s fees on appeal in a dispute involving a school district election because there was no evidence that the appeal was brought, pursued, or defended frivolously, unreasonably, or without foundation. Johnson v. Boundary Sch. Dist. # 101, 138 Idaho 331, 63 P.3d 457 (2003).

Once a defense of res judicata is blatantly apparent, further litigation is frivolous, warranting an award of attorney’s fees. Burns v. Baldwin, 138 Idaho 480, 65 P.3d 502 (2003).

Trial court did not err when it awarded attorney’s fees to a company that had fully paid an award of damages in California but was being sued in Idaho for payment of judgment interest that had been disallowed by the appellate court in California. Burns v. Baldwin, 138 Idaho 480, 65 P.3d 502 (2003).

Two clerks were awarded attorney’s fees in an appeal from the dismissal of an inmate’s 42 U.S.C.S. § 1983 claim based on access to the courts because the appeal was frivolous, unreasonable, or without foundation. Drennon v. Hales, 138 Idaho 850, 70 P.3d 688 (Ct. App. 2003).

An award of attorney’s fees on appeal in favor of the insurer was proper where the appeal was frivolous because the insured presented no substantial legal argument. Sprinkler Irrigation Co. v. John Deere Ins. Co., 139 Idaho 691, 85 P.3d 667 (2004).

Because a debtor’s appeal of an order denying a motion for disqualification of a judge in quiet title action was frivolous, invalid, and without foundation, creditors were entitled to attorney’s fees and costs on appeal. Merrill v. Gibson, 139 Idaho 840, 87 P.3d 949, cert. denied, 543 U.S. 926, 125 S. Ct. 311, 160 L. Ed. 2d 225 (2004).

Injured customer was entitled to recover attorney’s fees pursuant to this section because the store’s appeal was unreasonable where the store raised many issues, such as whether the jury’s award was excessive, that were not properly before the court on appeal because they were not raised before the trial court, and many claims that were not supported by the facts or had no basis in law. Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 95 P.3d 34 (2004).

County was entitled to attorney’s fees pursuant to this section where the taxpayers were clearly aware of the statutory procedures, failed to appeal separate appraisals, were well advised on the applicable law by the district court, but nevertheless chose to appeal. Castrigno v. McQuade, 141 Idaho 93, 106 P.3d 419 (2005).

Where appellant brought a frivolous appeal of a district court judgment declaring the existence of an easement, the respondents were awarded costs and attorney’s fees under this section. Turner v. Cold Springs Canyon Ltd. P’ship, 143 Idaho 227, 141 P.3d 1096 (2006).

In a case involving a dispute over a real estate sale, a prospective seller was not entitled to recover attorney fees because the case was not frivolous in nature. Cristo Viene Pentecostal Church v. Paz, 144 Idaho 304, 160 P.3d 743 (2007).

Respondents in a boundary-dispute case were entitled to an award of attorney fees on appeal because the appellants had simply invited the appellate court to second-guess the trial court on conflicting evidence. Downey v. Vavold, 144 Idaho 592, 166 P.3d 382 (2007). In a mother’s challenge to a child custody decision, as it was frivolous of her to argue on appeal that the father should not have been granted joint custody when it was the only request she properly made before the magistrate court. Father was entitled to attorney fees on appeal. Michalk v. Michalk, 148 Idaho 224, 220 P.3d 580 (2009).

Where plaintiff voluntarily dismissed some of his claims as to a defendant and then re-raised those claims on appeal, his appeal, as to those issues, was frivolous, and the defendant was entitled to an award of costs and attorney fees related to those claims. Davidson v. Davidson, 150 Idaho 455, 248 P.3d 242 (Ct. App. 2011).

In a quiet title action, appellee was entitled to appellate attorney fees because, based on the number of appellant’s claims and general inability to provide coherent argument or authority, the appeal could only be interpreted as a means to increase the cost of litigation and to harass. Mclean v. Cheyovich Family Trust, 153 Idaho 425, 283 P.3d 742 (2012).

On grantors’ third attempt to have the supreme court overturn a decision that quieted title in the grantees, and where issues were not properly addressed by argument or authority, the court awarded attorney fees to the grantees. Bagley v. Thomason, 155 Idaho 193, 307 P.3d 1219 (2013), cert. denied, 572 U.S. 1061, 134 S. Ct. 1889, 188 L. Ed. 2d 913 (2014).

Property owner was entitled to statutory attorney fees in an action involving dispute of his title to real property that he had deeded to an individual lender as security for his repayment of loans, as the lender’s claims on appeal were frivolous, unreasonable, or without foundation, and at times were directly and clearly rebutted by the district court’s findings, which the lender had accepted. Steuerer v. Richards, 155 Idaho 280, 311 P.3d 292 (2013).

Theater owner was entitled to costs and fees on appeal, because a consumer’s appeal was frivolous, unreasonable, and without foundation, where he simply invited the court to re-weigh the evidence presented to the district court, presented no evidence or law that an existing Idaho law was violated, and did not present a good faith argument for the extension of Idaho law. Doble v. Interstate Amusements, Inc., 160 Idaho 307, 372 P.3d 362 (2016), cert. denied, — U.S. —, 137 S. Ct. 343, 196 L. Ed. 2d 263 (2016).

Genuine Issue on Appeal.

On appeal from a judgment in an unlawful detainer action, the landlords were not entitled to an award of attorney’s fees where the matters raised by the renters on appeal presented genuine issues of law and the appeal was brought in good faith. Haskin v. Glass, 102 Idaho 785, 640 P.2d 1186 (Ct. App. 1982).

Where the evidence showed that a wife’s appeal to the district court, from a magistrate’s determination of property issues in a divorce action, seriously addressed the then unresolved and genuine issue of the transmutation of her husband’s property from separate to community property, the district judge improperly determined that the husband was entitled to attorney’s fees since the appeal was not brought or pursued frivolously, unreasonably or without foundation. Griffin v. Griffin, 102 Idaho 858, 642 P.2d 949 (Ct. App. 1982).

Where appeal presented genuine issues concerning the district court’s fee award, and appellee had not acted frivolously, unreasonably or without foundation in responding to the appeal, no attorney’s fees on appeal should be awarded. DeWils Interiors, Inc. v. Dines, 106 Idaho 288, 678 P.2d 80 (Ct. App. 1984).

Where an appeal presents a genuine issue of law for review, the court of appeals will not award attorney’s fees on appeal under this section. Gillingham v. Swan Falls Land & Cattle Co., 106 Idaho 859, 683 P.2d 895 (Ct. App. 1984). Where the appeal presents no meaningful issue on a question of law, but simply invites the appellate court to second-guess the trial judge on questions of fact, an award of attorney’s fees is appropriate. DeMarco v. Stewart, 107 Idaho 555, 691 P.2d 801 (Ct. App. 1984).

When a controlling decision on a point of law was decided after proceedings in a lower court but before the filing of an appeal to a higher court on that same point of law, an award of attorney’s fee was proper in the appellate court but not in the lower court since at the appellate level no genuine issue of law existed while at the trial court level the issues of law were still unsettled. Gulf Chem. Employees Fed. Credit Union v. Williams, 107 Idaho 890, 693 P.2d 1092 (Ct. App. 1984).

In denying the plaintiff’s motion for attorney’s fees, the court correctly ruled that the defendant’s defense of liability was not frivolous, unreasonable or without foundation even though the defendant abandoned it; the mere fact that the defendant’s able counsel made a tactical decision to admit liability prior to trial, without more, did not indicate that the defendant previously had defended the issue unreasonably. Spreader Specialists, Inc. v. Monroc, Inc., 114 Idaho 15, 752 P.2d 617 (Ct. App. 1987), overruled on other grounds, Walton, Inc. v. Jensen, 979 P.2d 118 (Ct. App. 1999).

Where the issues presented by the appellant were entirely justified, the respondents were not entitled to attorney’s fees on appeal. Ashe v. Hurt, 114 Idaho 70, 753 P.2d 281 (Ct. App. 1988), aff’d, 117 Idaho 266, 787 P.2d 252 (1990).

In an action by a niece challenging the instrument creating her uncle’s inter vivos trust which denied her any share of income from the principle, the court properly denied assessment of attorney’s fees against the niece; her contention presented a close legal question concerning the ambiguity of the trust, and her appeal was not frivolous. Allen v. Dennie, 116 Idaho 913, 782 P.2d 36 (Ct. App. 1989).

On appeal, property owners did not show the district court misapplied the law relating to their inverse condemnation claim; however, the property owners made some valid arguments relating to their claim for inverse condemnation, which demonstrate that the appeal was not frivolous or unreasonable and, accordingly, county was not entitled to attorney’s fees as the prevailing party. Covington v. Jefferson County, 137 Idaho 777, 53 P.3d 828 (2002).

Where the district court did not correctly apply the law with regard to the amount of credit to be paid to the other driver’s insurer, and the outcome of the case was mixed, attorney’s fees were inappropriate. Schaffer v. Curtis-Perrin, 141 Idaho 356, 109 P.3d 1098 (2005).

Neither appellee county nor appellee finance company were entitled to an award of attorney fees under either this section or under§ 12-117 because, as to the former, neither appellee had prevailed on the issue that was appealed, i.e., standing, and as to the latter, the issue that was appealed was not brought without a reasonable basis in law or fact since appellant taxpayers prevailed on it although, because the matter was moot, the appeal was dismissed. Koch v. Canyon County, 145 Idaho 158, 177 P.3d 372 (2008).

Respondents were entitled to an award of attorney fees on appeal because appellants’ arguments only asked the state supreme court to second-guess the district court’s determinations regarding a prescriptive driveway easement. Benninger v. Derifield, 145 Idaho 373, 179 P.3d 336 (2008).

Improper Award.

The district court abused its discretion in awarding attorney’s fees to the plaintiff where it was the plaintiff who filed the declaratory judgment action in which the award was rendered, and where defendant’s action for negligent supervision was supported by a good faith argument for the extension or modification of state law. Allstate Ins. Co. v. Mocaby, 133 Idaho 593, 990 P.2d 1204 (1999). Where the appeal presents no meaningful issue on a question of law, but simply invites the appellate court to second-guess the trial judge on questions of fact, an award of attorney’s fees is appropriate. DeMarco v. Stewart, 107 Idaho 555, 691 P.2d 801 (Ct. App. 1984).

Improper Award.

In General.

This section, as interpreted by Idaho R. Civ. P. 54(e)(1), is procedural in nature, and, unlike§ 12-120(2), it does not grant a substantive right for additional relief in specific actions; it deals instead with the inherent right of courts to control, when circumstances demand, vexatious practices before them. Wetzel v. Goldsmith (In re Comstock), 16 Bankr. 206 (Bankr. D. Idaho 1981).

Idaho R. Civ. P. 54(e)(1) creates no substantive right to attorney’s fees, but merely establishes a framework for applying this section. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

This section authorizes the court to award reasonable attorney’s fees to the prevailing party on appeal, not as a matter of right, but only where the court is left with the abiding belief that the appeal was brought, pursued or defended frivolously or without foundation. Thompson v. Pike, 125 Idaho 897, 876 P.2d 595 (1994).

Attorney’s fees on appeal are appropriate under Idaho R. Civ. P. 54(e)(1) and this section, if the appellate court is left without an abiding belief that the appeal has been brought or defended frivolously, unreasonably, or without foundation. United States Nat’l Bank v. Cox, 126 Idaho 733, 889 P.2d 1123 (Ct. App. 1995).

Attorney’s fees are not available in an appeal from an order of the Idaho public utilities commission because this type of case is not commenced by a complaint filed in a court action, as required by this section. Eagle Water Co. v. Idaho Pub. Utils. Comm’n, 130 Idaho 314, 940 P.2d 1133 (1997).

Attorney’s fees may be awarded pursuant to this section on appeal if the supreme court of Idaho is left with an abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation; an award of attorney’s fees is appropriate if the law is well-settled and the appellants have made no substantial showing that the district court misapplied the law. Burns v. Baldwin, 138 Idaho 480, 65 P.3d 502 (2003).

Trial court did not abuse its discretion in awarding fees to the insurer where the owner’s claim was unreasonable and without foundation; there was no indication that judgment creditors occupied some different status than the injured parties. Graham v. State Farm Mut. Auto. Ins. Co., 138 Idaho 611, 67 P.3d 90 (2003).

An award of attorney fees pursuant to this section is inappropriate where a party merely cites to the code section and fails to provide any argument as to why the party is entitled to the award. Marek v. Lawrence, 153 Idaho 50, 278 P.3d 920 (2012).

When deciding whether attorney fees should be awarded under this section, the entire course of the litigation must be taken into account; and, if there is at least one legitimate issue presented, attorney fees may not be awarded, even though the losing party has asserted other factual or legal claims that are frivolous, unreasonable, or without foundation. Phillips v. Blazier-Henry, 154 Idaho 724, 302 P.3d 349 (2013).

Interest.

If there is a legitimate, triable issue of fact or a legitimate issue of law, attorney fees may not be awarded under this section, even though the losing party has asserted some factual or legal claims that are frivolous, unreasonable, or without foundation. Eden v. State (In re SRBA Case No. 39576), 164 Idaho 241, 429 P.3d 129 (2018). Interest.

No prejudgment interest would accrue upon the award of costs and attorney’s fees; the award simply bears the judgment rate of interest of 18% from its effective date. Camp v. Jiminez, 107 Idaho 878, 693 P.2d 1080 (Ct. App. 1984).

Interlocutory Appeals.

Where an appeal is interlocutory in nature and the action will be remanded for further proceedings, neither party is the prevailing party on appeal and no attorney’s fees can be then awarded. However, when the district court makes its prevailing party determination on remand, any award of attorney fees made at that time may include attorney fees for the interlocutory appeal. Terra-West, Inc. v. Idaho Mut. Trust, LLC, 150 Idaho 393, 247 P.3d 620 (2010).

Malpractice Action.

An action for legal malpractice is a tort action, and even though the underlying transaction which resulted in the malpractice was a “commercial transaction,” attorney’s fees under§ 12-120(3) are not authorized. Fuller v. Wolters, 119 Idaho 415, 807 P.2d 633 (1991).

In a professional malpractice action against an insurance company and the law firm that it retained to represent its insured after the insured prevailed and the insurance company and law firm failed to pursue attorney fees, the law firm and the insurance company were entitled to recover attorney fees after receiving summary judgment in their favor; the insured failed to present legal authority in support of its claim that its reputation as an aggressive litigator was damaged by the failure to pursue attorney fees and because the insured misrepresented legal authority in support of its claim against the insurance company. J-U-B Eng’rs, Inc. v. Sec. Ins. Co., 146 Idaho 311, 193 P.3d 858 (2008).

Medical Malpractice.

Where evidence suggested strongly that plaintiff herself believed the accident was covered by§ 6-1012 and it was not until she was left without an expert to support her position that she developed the theory — a theory which goes against the clear and unambiguous language of the statute and a theory for which plaintiff cannot find support for in any language in the statute, its legislative history, or Idaho case law — that she now presents on appeal, the court found such appeal frivolous, unreasonable and without foundation and awarded reasonable attorney’s fees to the respondents. Hough v. Fry, 131 Idaho 230, 953 P.2d 980 (1998).

In a medical malpractice action, although the physician prevailed on count one regarding negligence during the actual surgery, he did not prevail on count two, regarding negligence during his postoperative treatment, meaning that he was not the prevailing party and was not entitled to an award of attorney’s fees. Conway v. Sonntag, 141 Idaho 144, 106 P.3d 470 (2005).

Where the physician’s arguments, while unpersuasive, raised issues concerning proximate cause that were not frivolous, unreasonable, or without foundation, the appellate court declined to award attorney’s fees to the patient. Newberry v. Martens, 142 Idaho 284, 127 P.3d 187 (2005).

“Miller Act” Suit.

Interest.

Unless there is a separate state claim at the trial level, attorney’s fees are not available in a Miller Act (40 U.S.C.S. § 270a) suit, even when state law provides for such an award. United States ex rel. Leno v. Summit Constr. Co., 892 F.2d 788 (9th Cir. 1989). Interest.

Interlocutory Appeals.

Malpractice Action.

Medical Malpractice.

“Miller Act” Suit.

Multiple Claims.

Attorney’s fees are not appropriate under this section and Idaho R. Civ. P. 54(e)(1) through 54(e)(9), unless all claims brought or all defenses asserted are frivolous and without foundation. Where there are multiple claims and multiple defenses, it is not appropriate to segregate those claims and defenses to determine which were or were not frivolously defended or pursued. The total defense of plaintiff’s proceedings must be unreasonable or frivolous. Management Catalysts v. Turbo W. Corpac, Inc., 119 Idaho 626, 809 P.2d 487 (1991).

Municipal Corporations.

It is within the district court’s discretion to make a cost award against a municipality to a prevailing party in an action brought in district court. Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980).

Attorney’s fees may, in a proper case, be asserted against a county or municipality. Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980).

District court properly granted summary judgment to the land owners where their property squarely fit into an exception in the city’s resolution for extension of water services outside its boundaries for properties under a refundable water extension contract; the imposition of attorney’s fees was proper, since the city’s denial was frivolous in light of its clearly expressed policy and exception. Albee v. Judy, 136 Idaho 226, 31 P.3d 248 (2001).

Not Frivolous.

Because the court was not left with an abiding belief that defendant’s appeal was brought frivolously, unreasonably, or without foundation, the court declined cross-claim defendants’ request for attorney’s fees, but allowed costs. Heritage Excavation, Inc. v. Briscoe, 141 Idaho 40, 105 P.3d 700 (Ct. App. 2005).

Where factual posture of the case was complex, no Idaho case law was clearly on point, and the intertwined role of the original owner and developer as both the prior owner and developer and mortgagee of the property, neither appeal was brought frivolously and no award of attorney’s fees was warranted. West Wood Invs. v. Acord, 141 Idaho 75, 106 P.3d 401 (2005).

In a water rights dispute between the United States and a livestock company, the district court properly denied the livestock company’s claim for attorney fees because the United States did not assert a claim or defense frivolously, unreasonably, or without foundation. Joyce Livestock Co. v. United States (In re SRBA Case No. 39576), 144 Idaho 1, 156 P.3d 502, cert. denied, 552 U.S. 990, 128 S. Ct. 487, 169 L. Ed. 2d 339 (2007).

In a condominium resident’s declaratory judgment action arguing that the condominium complex owners’ prior lease of his unit’s garage to a third party was invalid, neither party was entitled to attorney fees as the interpretation of the covenant was a matter of first impression, and neither party acted frivolously, unreasonably, or without foundation. Thompson v. Ebbert, 144 Idaho 315, 160 P.3d 754 (2007).

Mother was not entitled to attorney fees on the intermediate or current appeal because the father presented to the district court an issue never previously addressed by appellate courts and correctly challenged the computation of the mother’s income by the magistrate; thus, neither of his appeals was frivolous. Harris v. Carter, 146 Idaho 22, 189 P.3d 484 (Ct. App. 2008).

Multiple Claims.

Municipal Corporations.

Attorney’s fees may, in a proper case, be asserted against a county or municipality. Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980).

Not Frivolous.

Although the post-conviction petitioner’s arguments were unsuccessful, they did not warrant an award of attorney fees to the state. The standard for equitable tolling had never been clearly spelled out, and its application to many of the issues raised by the petitioner was a matter of first impression for the supreme court. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009). When a party pursues an action which contains fairly debatable issues, the action is not considered to be frivolous and without foundation. A claim is not necessarily frivolous simply because the district court concludes it fails as a matter of law. A misperception of the law, or of one’s interest under the law, is not, by itself, unreasonable. Rather, the question is whether the position adopted was not only incorrect, but also so plainly fallacious that it could be deemed frivolous, unreasonable, or without foundation Garner v. Povey, 151 Idaho 462, 259 P.3d 608 (2011).

Because the issue of whether filing an amended complaint restarted the time for serving the summons and complaint under Idaho R. Civ. P. 4(a)(2) had not been considered previously, the patient’s appeal was not entirely frivolous, unreasonable, or without foundation, and defendant’s request for attorney fees was denied. Elliott v. Verska, 152 Idaho 280, 271 P.3d 678 (2012).

Though respondents prevailed on appeal in a quiet title action, they were not entitled to appellate attorney fees. Although the foundation of appellants’ case was weak, because of ambiguous language in a plat, their case was not altogether without foundation. Ross v. Dorsey, 154 Idaho 836, 303 P.3d 195 (2013).

In a personal injury case, attorney fees were not awarded to a deceased landlord’s personal representative because an appeal relating to the duty of care owed by the landlord to a tenant’s social guest presented issues of unresolved law and a good faith request to extend existing law. Robinson v. Mueller, 156 Idaho 237, 322 P.3d 319 (Ct. App. 2014).

Title company unsuccessfully sued by a bank for negligence and breach of contract in the distribution of proceeds of a non-judicial foreclosure under Montana law could not recover bad faith appellate attorney’s fees against the bank, because the bank’s appeal was not in bad faith, given the uncertain state of applicable law. First Bank of Lincoln v. Land Title of Nez Perce Cty., Inc., — Idaho —, — P.3d —, 2019 Ida. LEXIS 206 (Nov. 18, 2019).

Objection Timely Filed.

Defendant’s objection to costs and fees was deemed timely where the court was unable to determine from the record when the memorandum of costs was filed. Allstate Ins. Co. v. Mocaby, 133 Idaho 593, 990 P.2d 1204 (1999).

Offset Against Child Support.

Where the court did not discuss the welfare of the children before offsetting father’s attorney’s fees against the child support payments and where the record showed mother had two children in need of support and could not provide for them on her own, it was not proper for the trial court to reduce child support payments in order to satisfy an award of attorney’s fees. Ireland v. Ireland, 123 Idaho 955, 855 P.2d 40 (1993), overruled on other grounds, Zenner v. Holcomb, 147 Idaho 444, 210 P.3d 552 (2009).

Parental Termination.

Considering the seriousness of the liberty interest affected in a parental termination case, the appeal to reexamine conflicting evidence was not frivolous. Doe v. Roe, 133 Idaho 805, 992 P.2d 1205 (1999). Although whether to award attorney fees was an admittedly close call in a termination of parental rights case brought by grandparents, because the bulk of the parent’s arguments essentially asked the court to reweigh the evidence, rather than address any legal errors by the trial court, and because of the profound and fundamental liberty interest at stake and the presence of some conflicting testimony at trial, the appellate court properly denied the grandparents’ request for attorney fees. Doe v. Doe (In re Doe), — Idaho —, 454 P.3d 1130 (2019).

Partition of Property.

Where the purchasers of property at a partition sale could not continue to effectively protect their interests absent involvement, as amicus curiae, in an appeal from a decision enforcing the partition judgment and finalizing the sale, the purchasers would be awarded costs and attorney’s fees. Mendenhall v. Caine, 101 Idaho 628, 619 P.2d 146 (1980).

Party Obtaining New Trial.

Where attorney misconduct resulted in a grant of a new trial, it was premature to determine whether the party obtaining the new trial should be allowed attorney’s fees and costs incurred during the first trial without waiting for a new trial to determine who ultimately prevails, and where the district court appropriately declined to award costs and fees but at plaintiffs’ request issued a certificate of finality under Idaho R. Civ. P. 54(b), so that the order could be appealed, the certificate was improvidently granted and constituted an abuse of that court’s discretion. Robertson v. Richards, 118 Idaho 791, 800 P.2d 678 (1990).

Personal Injury.

The district court did not err in giving due consideration to defendant’s refusal to make any advances on plaintiff’s sum-certain medical bills in awarding attorney’s fees to a prevailing personal injury plaintiff, especially given defendant’s belated admission of liability. Turner v. Willis, 116 Idaho 682, 778 P.2d 804 (1989).

In suit for personal injuries suffered at concert where, when complaint was filed, information as to who had sponsored the concert was in the exclusive possession of defendant and once plaintiff had the opportunity to explore the issue in discovery it should have been abundantly clear that defendant had engaged in no activity that would have imposed upon him any responsibility to concert attendees, the action should have been dismissed; therefore, defendant was entitled to attorney’s fees for that portion attributable to legal services after it was clear that it became frivolous and unreasonable for plaintiff to persist in pursuing the claim against defendant. Landvik ex rel. Landvik v. Herbert, 130 Idaho 54, 936 P.2d 697 (Ct. App. 1997).

Personal Injury Action.

In personal injury action, where the defendant made a settlement offer of $7,500 which the plaintiff refused, the plaintiff subsequently made a settlement offer of $55,000 which defendant refused and, following trial, a jury verdict awarded plaintiffs $18,821.95, the trial court abused its discretion in awarding plaintiffs’ attorney’s fees on ground that the matter had been unreasonably defended because defendant’s offer of $7,500 was neither a reasonable or good faith offer of settlement; it was clear that the trial court was attempting to penalize defendant for failing to submit a good faith offer of settlement or refusing to enter into good faith settlement negotiations, which it had no discretion to do; moreover, when contrasting plaintiff’s offer of $55,000 with the ultimate jury verdict of approximately $19,000 it could be seen that plaintiff was as much at fault as defendant with respect to the making of unreasonable offers since it is as incumbent upon one party as the other to enter into good faith negotiations or make a good faith offer of settlement. Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982). Although whether to award attorney fees was an admittedly close call in a termination of parental rights case brought by grandparents, because the bulk of the parent’s arguments essentially asked the court to reweigh the evidence, rather than address any legal errors by the trial court, and because of the profound and fundamental liberty interest at stake and the presence of some conflicting testimony at trial, the appellate court properly denied the grandparents’ request for attorney fees. Doe v. Doe (In re Doe), — Idaho —, 454 P.3d 1130 (2019).

Partition of Property.

Party Obtaining New Trial.

Personal Injury.

Personal Injury Action.

In personal injury action, where the defendant made a settlement offer of $7,500 which the plaintiff refused, the plaintiff subsequently made a settlement offer of $55,000 which defendant refused and, following trial, a jury verdict awarded plaintiffs $18,821.95, the trial court abused its discretion in awarding plaintiffs’ attorney’s fees on ground that the matter had been unreasonably defended because defendant’s offer of $7,500 was neither a reasonable or good faith offer of settlement; it was clear that the trial court was attempting to penalize defendant for failing to submit a good faith offer of settlement or refusing to enter into good faith settlement negotiations, which it had no discretion to do; moreover, when contrasting plaintiff’s offer of $55,000 with the ultimate jury verdict of approximately $19,000 it could be seen that plaintiff was as much at fault as defendant with respect to the making of unreasonable offers since it is as incumbent upon one party as the other to enter into good faith negotiations or make a good faith offer of settlement. Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982). A trial court may, in its discretion, and upon proper findings, award attorney’s fees in an action for personal injuries when the matter has been defended frivolously, unreasonably or without foundation; however, it is axiomatic that those findings of the trial court must be supported by the record, or any such award of attorney’s fees will constitute an abuse of discretion. Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982).

After remanding an insured’s suit against an insurer for arbitration, a court declined to award the insured attorney’s fees where there was no evidence that the insurer had acted unreasonably in the proceedings. Deeds v. Regence Blueshield of Idaho, 143 Idaho 210, 141 P.3d 1079 (2006).

Prevailing Party.

This section authorizes attorney fee awards only to prevailing parties. Barlow’s, Inc. v. Bannock Cleaning Corp., 103 Idaho 310, 647 P.2d 766 (Ct. App. 1982).

Plaintiff in quiet title action could not be awarded his attorney’s fees where he did not prevail on the merits. Fairchild v. Fairchild, 106 Idaho 147, 676 P.2d 722 (Ct. App. 1984).

Where, in a prescriptive easement action, extensive factual contentions were presented which were argued under fairly debatable legal principles, simply being a prevailing party was not sufficient for an award of attorney’s fees. French v. Sorensen, 113 Idaho 950, 751 P.2d 98 (1988), overruled on other grounds, Cardenas v. Kurpjuweit, 116 Idaho 739, 779 P.2d 414 (1989).

Where, in a personal injury action, the plaintiffs prevailed on the compensatory damage claim, but the defendant prevailed on the claims for loss of consortium and punitive damages, the judge’s decision that there was no overall prevailing party was not an abuse of discretion. Ruge v. Posey, 114 Idaho 890, 761 P.2d 1242 (Ct. App. 1988).

An award of attorney’s fees may be granted under this section and Idaho App. R. 41 on appeal to the prevailing party. Such an award is appropriate when the court is left with the abiding belief that the appeal has been brought or defended frivolously, unreasonably or without foundation. Excel Leasing Co. v. Christensen, 115 Idaho 708, 769 P.2d 585 (Ct. App. 1989).

While it is true that the district court did not provide relief to petitioner on every issue raised in her petition, she did prevail with regard to the contention upon which she went before the district court, and, after that proceeding, the district court specifically held that the department of correction had violated the notice requirements for a hearing on a disciplinary offense report and instructed the department to remove that report from petitioner’s records; by requiring the removal of the report from petitioner’s records, the district court granted petitioner the relief toward which the several issues were directed, and on this basis, she genuinely was the prevailing party. Needs v. State, 118 Idaho 207, 795 P.2d 912 (Ct. App. 1990).

Where neither party prevailed in appeal involving a divorce action, no costs or attorney’s fees were awarded. Desfosses v. Desfosses, 120 Idaho 354, 815 P.2d 1094 (Ct. App. 1991).

Where church was awarded an injunction against pastor preventing pastor from conducting any church business and from coming onto church premises, and pastor was awarded damages in his countersuit for wrongful termination, pastor was not a prevailing party for purposes of attorney’s fees under this section or§ 12-120. Fellowship Tabernacle, Inc. v. Baker, 125 Idaho 261, 869 P.2d 578 (Ct. App. 1994). Since county board of commissioners were not the prevailing party in appeal brought by county employee after his employment was terminated, they could not be awarded attorney’s fees. Ockerman v. Ada County Bd. of Comm’rs, 130 Idaho 265, 939 P.2d 584 (Ct. App. 1997).

When the court of appeals reversed in part a trial court’s grant of summary judgment, there was no longer a “prevailing party” who could be entitled to attorney’s fees under this section, and further because the court of appeals had concluded that the plaintiff had raised a legitimate issue that could not be disposed of on summary judgment, this inherently overturned the district court’s conclusion that the plaintiff’s claim was pursued frivolously or without foundation. John W. Brown Props. v. Blaine County, 132 Idaho 60, 966 P.2d 656 (Ct. App. 1998).

The plaintiff was not entitled to costs on appeal where it was the prevailing party on appeal but only prevailed partially on cross-appeal. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 982 P.2d 917 (1999).

Where a family’s medical malpractice suit against a hospital and doctors was properly dismissed for failing to timely serve process, the family was not entitled to an award of attorney’s fees on appeal, as they were not the prevailing party. Rudd v. Merritt (In re Estate of Rudd), 138 Idaho 526, 66 P.3d 230 (2003).

Even if§ 12-120(3) or this section applied, the former member of a professional limited liability company was not the prevailing party and was not entitled to an award of attorney’s fees where the appellate court vacated the judgment and where the member prevailed only in part on the appeal. Howard v. Perry, 141 Idaho 139, 106 P.3d 465 (2005).

Prevailing party is awarded attorney’s fees on appeal under this section when the appellate court believes that the appeal was brought or defended frivolously, unreasonably, or without foundation. Fisk v. Royal Caribbean Cruises, 141 Idaho 290, 108 P.3d 990 (2005).

Where there was a genuine issue as to which of three possible creeks constituted a property line, summary judgment could not be granted, the purchasers of the property were not the prevailing parties, and they were not entitled to attorney’s fees on appeal. Read v. Harvey, 141 Idaho 497, 112 P.3d 785 (2005).

Where a trial court erred in granting a city’s petition for judicial confirmation to allow it to enter into an agreement for the expansion of its airport parking facilities, the city was not entitled to attorney’s fees on appeal. However, because respondent prevailed on appeal against the city’s petition for judicial confirmation, he was entitled to attorney’s fees. City of Boise v. Frazier, 143 Idaho 1, 137 P.3d 388 (2006), overruled on other grounds, City of Challis v. Consent of the Governed Caucus, 159 Idaho 398, 361 P.3d 485 (2015).

Department of health and welfare and a social worker were not entitled to attorney’s fees because they did not prevail on appeal, as summary judgment in their favor in a wrongful death action was reversed. Rees v. State, 143 Idaho 10, 137 P.3d 397 (2006).

Where two insureds did not prevail on appeal in a dispute regarding coverage under a title insurance policy, they were not entitled to recover attorney’s fees. Point of Rocks Ranch, LLC v. Sun Valley Title Ins. Co., 143 Idaho 411, 146 P.3d 677 (2006).

District court did not abuse its discretion by failing to award the surgeon costs and attorney fees after the first medical malpractice trial ended with the jury being unable to reach a verdict, because the district court concluded that neither party prevailed after the first trial and that the patient’s dismissed claim was not brought frivolously. Puckett v. Verska, 144 Idaho 161, 158 P.3d 937 (2007). Property owners were denied attorney fees under§ 12-117 and this section, where they lost on two of their three claims. Plaintiffs were not the prevailing party, and there was no indication that the state defended the claims against plaintiffs unreasonably or without foundation. Harris v. State Ex Rel. Kempthorne, 147 Idaho 401, 210 P.3d 86 (2009).

Where mother of a child who died after extended sedation with Propofol presented evidence through an expert witness regarding the effects of that extended use, and this evidence was clearly influential in producing a jury verdict in favor of the mother, the trial court erred in rejecting that evidence and in entering a j.n.o.v. in favor of the child’s doctors, who were not entitled to attorney fees on appeal because they did not prevail. Coombs v. Curnow, 148 Idaho 129, 219 P.3d 453 (2009).

When deciding if an airplane owner was entitled to attorney fees against the airplane’s possessors, it was not error to find the owner was the prevailing party because (1) the main issue of possession was decided in the owner’s favor, (2) it was not an abuse of discretion to weigh the possessors’ invalid lien, and (3) the owner defeated the possessors’ counterclaims. Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 329 P.3d 1072 (2014).

It is not a matter of law that a plaintiff who recovers more than a nominal amount on its claim and defeats a counterclaim is the prevailing party in the litigation, for purposes of an award of attorney fees and costs Am. Semiconductor, Inc. v. Sage Silicon Solutions, LLC, 162 Idaho 119, 395 P.3d 338 (2017).

Private Attorney General Actions.

Attorney’s fees are to be awarded only where they are authorized by statute or contract. Since this section provides the trial court, with discretion, to award fees to the prevailing party, there is a statutory basis and the question then becomes whether the Idaho R. Civ. P. 54(e)(1) limitation, restricting the award to those cases which are “defended frivolously, unreasonably, or without foundation,” is applicable. Where the award of attorney’s fees is under the private attorney general doctrine, the limitation does not apply. Hellar v. Cenarrusa, 106 Idaho 571, 682 P.2d 524 (1984).

There is a three-factor test to determine the right to attorney’s fees under the private attorney general doctrine: (1) the strength or societal importance of the public policy vindicated by the litigation; (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision. State v. Hagerman Water Right Owners, Inc., 130 Idaho 718, 947 P.2d 391 (1997).

The private attorney general doctrine arises from the authority in this section for a court to award attorney’s fees to a prevailing party. State v. Hagerman Water Right Owners, Inc., 130 Idaho 718, 947 P.2d 391 (1997).

Products Liability Action.

The private attorney general doctrine is limited to cases brought by public interest litigants represented by private attorneys acting pro bono publico or members of public interest firms. Thus, if the plaintiff is protecting its own economic interests, it cannot claim that it is a public interest litigant. It is not enough that action results in benefits to the public; it must be pursued with the purpose of benefiting the public. State v. Hagerman Water Right Owners, Inc., 130 Idaho 718, 947 P.2d 391 (1997). Products Liability Action.

A retail seller could not recover its attorney’s fees and costs, which it incurred defending itself in a products liability action, from the manufacturer of the allegedly defective product on an indemnification theory, where only the manufacturer was required to pay damages and the retail seller was not found to be liable. Weston v. Globe Slicing Mach. Co., 621 F.2d 344 (9th Cir. 1980).

Proper Defense.

Where, in an action to correct a faulty description of land sold by the plaintiff to the defendant and to revoke an option to purchase more land previously granted, the defendant was legally entitled to refuse the request to give up his option to purchase the plaintiff’s real estate, the plaintiff was properly denied attorney’s fees. McLaughlin v. Robinson, 103 Idaho 211, 646 P.2d 453 (Ct. App. 1982).

Where widow was not entitled to such statutory rights as are provided for the benefit of surviving spouses because the slayer’s statute was applicable, the widow’s claims were properly contested by the personal representative, and widow was not entitled to recover attorney’s fees. Eliasen v. Fitzgerald, 105 Idaho 234, 668 P.2d 110 (1983).

The court of appeals could not say with certainty that the “total defense” presented by husband was unreasonable, frivolous or without foundation. Such a finding could only be made taking into account the entire course of the litigation. Accordingly, the court of appeals vacated that part of the fee award which was based solely upon this section. DesFosses v. DesFosses, 122 Idaho 634, 836 P.2d 1095 (Ct. App. 1992).

In an action by interstate carriers against the Idaho public utilities commission challenging registration renewal fees as excessively high, attorney’s fees were not awarded where the court made no findings that the commission defended the action frivolously, unreasonably or without foundation; there were difficult and complex constitutional issues presented. Owner-Operator Indep. Drivers Ass’n v. Idaho Pub. Utils. Comm’n, 125 Idaho 401, 871 P.2d 818 (1994), modified on other grounds, Roe v. Harris, 128 Idaho 569, 917 P.2d 403 (1996).

Quiet Title Action.

Where plaintiffs had benefit of court decision, released over two years before they brought their action to quiet title, concerning the essential elements and controlling law regarding the doctrine of boundary by agreement; the case law made it clear that two points in their complaint — payment of taxes and failure to actively use land — were not material elements in the doctrine of boundary by agreement; and fence in question had been in place since 1929 and considered the boundary until 1990, award of attorney’s fees to the opposing party for pursuit of an unreasonable action was upheld. Cameron v. Neal, 130 Idaho 898, 950 P.2d 1237 (1997).

Remand.

Representation Provided by Insurance Company.

The fact that defendants were represented by insurance companies and, thus, did not personally incur attorney’s fees did not preclude an award of attorney’s fees to the defendants pursuant to this section. Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 801 P.2d 37 (1990).

Sanctions.

The court awarded $16,000 for attorney’s fees earned by wife’s counsel on her claim to establish husband’s ownership of apartments. The primary basis for this award was to impose sanctions against husband under Idaho R. Civ. P. 37(c) for his unreasonable refusal to admit the truth of facts requested for his other attempts to prevent wife from obtaining evidence of husband’s ownership of the apartments. The award of fees for this purpose were not dependent upon this section, and, thus, these awards did not need to await the final outcome of the case. DesFosses v. DesFosses, 122 Idaho 634, 836 P.2d 1095 (Ct. App. 1992).

— Distinguished.

The reasons for which attorney’s fees may be awarded pursuant to this section and Idaho R. Civ. P. 54(e)(1) are not reasons that will support an award of sanctions pursuant to Idaho R. Civ. P. 11(a)(1). Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993 (1991).

Special Masters.

State Agency.

Section 12-117(1) is not the exclusive basis upon which to seek an award of attorney fees against a state agency or political subdivision, as attorney fees may be awarded under any other statute that expressly applies to a state agency or political subdivision, such as§ 12-120(3) or this section. Syringa Networks, LLC v. Idaho Dep’t of Admin., 155 Idaho 55, 305 P.3d 499 (2013).

Supreme Court.

The statutory power to award attorney’s fees applies to the members of the supreme court as well as to the district court judges throughout the state. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).

Where plaintiff was unprepared to proceed with proof on date of trial and on appeal failed to comply with a number of provisions of the Idaho Appellate Rules, supreme court of Idaho was justified in awarding attorney’s fees to defendant on appeal under Idaho App. R. 41 and this section. Jensen v. Doherty, 101 Idaho 910, 623 P.2d 1287 (1981). There is no authority for the award of attorney’s fees against a worker’s compensation claimant who unsuccessfully appeals to the supreme court of Idaho. Swanson v. Kraft, Inc., 116 Idaho 315, 775 P.2d 629 (1989).

Taxpayers’ Action.

Where the district court was unable to ascertain with any degree of certainty the benefit allegedly bestowed upon the general public as a result of a taxpayer’s action, but where it did find that a substantial benefit was bestowed upon the affected property owners, a paramount societal interest in the matter being litigated, one of the basic factors required for an award of attorney’s fees under the private attorney general theory was missing. County of Ada v. Red Steer Drive-Ins of Nev., Inc., 101 Idaho 94, 609 P.2d 161 (1980).

A taxpayer’s appeal to the district court is a civil action and, hence, within the purview of this section. Bogner v. State Dep’t of Revenue & Taxation, 107 Idaho 854, 693 P.2d 1056 (1984).

A taxpayer can be awarded attorney’s fees for costs incurred in pursuing an administrative remedy prior to instigating the very civil action which necessarily resulted when that effort failed. Bogner v. State Dep’t of Revenue & Taxation, 107 Idaho 854, 693 P.2d 1056 (1984).

Where the tax commission has defended its case without foundation and unreasonably in misreading and misinterpreting§§ 63-3002 and 63-3022 to its advantage, it can be assessed attorney’s fees under this section. Bogner v. State Dep’t of Revenue & Taxation, 107 Idaho 854, 693 P.2d 1056 (1984).

Tort Claims.

This section, which broadly authorizes a discretionary award of attorney’s fees “in any civil case,” could not be applied to case brought under Tort Claims Act since such case was governed by§ 6-918A, which specifically relates to tort claims. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

Plaintiff was not entitled to attorney’s fees under§ 41-1839, where a suit was not brought for the fire loss, but rather for the defendant’s negligence in settling that fire loss within a reasonable time, therefore§ 41-1839 was inapplicable; instead, to award attorney’s fees not would involve this section and Idaho R. Civ. P. 54(e)(1). Reynolds v. American Hdwe. Mut. Ins. Co., 115 Idaho 362, 766 P.2d 1243 (1988).

Treble Damages.

To allow attorney’s fees where respondent’s damages have already been trebled would constitute an unreasonable windfall to respondent and would punish appellant too harshly. Rodwell v. Serendipity, Inc., 99 Idaho 894, 591 P.2d 141 (1979).

Unemployment Benefits.

Because this section only pertains to civil actions which are commenced by the filing of a complaint and a claim for unemployment benefits is not such an action, claimant’s request for attorney’s fees on appeal was inappropriate. Scrivner v. Service IDA Corp., 126 Idaho 954, 895 P.2d 555 (1995); Chapman v. NYK Line North America, Inc., 147 Idaho 178, 207 P.3d 154 (2009).

Where unemployment claimant prevailed before industrial commission regarding her claim for benefits, fundamental fairness did not entitle her to award of attorney’s fees as a claim for unemployment benefits is not a civil action commenced by the filing of a complaint, and, as such, attorney’s fees cannot be awarded under this section. Reedy v. M.H. King Co., 128 Idaho 896, 920 P.2d 915 (1996).

Untimely Appeal.

Trial court did not err in awarding attorney’s fees to wife when husband’s appeal of contempt order was clearly untimely. Callaghan v. Callaghan, 142 Idaho 185, 125 P.3d 1061 (2005).

Voluntary Dismissal.

A party’s voluntary dismissal of a cause of action does not establish that a valid defense to the claim existed or was asserted. United States Nat’l Bank v. Cox, 126 Idaho 733, 889 P.2d 1123 (Ct. App. 1995).

Waiver.

In the absence of a showing in the record that defendants agreed not to assert the argument that plaintiffs waived the right to object to costs and attorney’s fees by failing to timely object, the language of Idaho R. Civ. P. 54(d)(6) that failure to object in ten days to the items in the memorandum of cost constitutes a waiver of all objections to the costs claimed controls. Conner v. Dake, 103 Idaho 761, 653 P.2d 1173 (1982).

Where the record reflected that no objection was ever filed to defendants’ memorandum of cost, as required by Idaho R. Civ. P. 54(d)(6), plaintiffs waived their right to further contest an award of attorney’s fees. Conner v. Dake, 103 Idaho 761, 653 P.2d 1173 (1982).

Where the plaintiff unions did not file any objection within ten days to any of the items listed in the memorandum of costs filed by the prevailing defendant employer, the unions waived their right to contest the amount of attorney’s fees listed in the memorandum. Operating Eng’rs Local Union 370 v. Goodwin Constr. Co., 104 Idaho 83, 656 P.2d 144 (Ct. App. 1982).

Worker’s Compensation.

Supreme court had no authority to award attorney’s fees against the industrial special indemnity fund on appeal under this section and Idaho R. Civ. P. 54(e)(1), since case was not a civil action, but an appeal for a worker’s compensation case; the legislation establishing the worker’s compensation system in Idaho specifically abolishes all civil actions and civil causes of action for personal injuries suffered by workers in industrial and public work. Garcia v. J.R. Simplot Co., 115 Idaho 966, 772 P.2d 173 (1989), overruled on other grounds, Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990); Bradford v. Roche Moving & Storage, Inc., 147 Idaho 733, 215 P.3d 453 (2009).

Because the action was not “commenced” by the filing of a “complaint”, but employer appealed an administrative ruling by the industrial commission, which is not “civil action” for purposes of this section, employer was not entitled to an award of attorney’s fees under this section. Northwest Pipeline Corp. v. State, Dep’t of Emp., 129 Idaho 548, 928 P.2d 898 (1996). Because this section only pertains to civil actions which are commenced by the filing of a complaint and a claim for unemployment benefits is not such an action, claimant’s request for attorney’s fees on appeal was inappropriate. Scrivner v. Service IDA Corp., 126 Idaho 954, 895 P.2d 555 (1995); Chapman v. NYK Line North America, Inc., 147 Idaho 178, 207 P.3d 154 (2009).

Untimely Appeal.

Trial court did not err in awarding attorney’s fees to wife when husband’s appeal of contempt order was clearly untimely. Callaghan v. Callaghan, 142 Idaho 185, 125 P.3d 1061 (2005).

Voluntary Dismissal.

Waiver.

Worker’s Compensation.

Because the action was not “commenced” by the filing of a “complaint”, but employer appealed an administrative ruling by the industrial commission, which is not “civil action” for purposes of this section, employer was not entitled to an award of attorney’s fees under this section. Northwest Pipeline Corp. v. State, Dep’t of Emp., 129 Idaho 548, 928 P.2d 898 (1996). This section did not provide authority for an award of attorney’s fees on appeals from administrative agency rulings, but an award of costs was appropriate. Curtis v. M. H. King Co., 142 Idaho 383, 128 P.3d 920 (2005).

Employer was denied attorney fees on appeal, because this section does not apply to worker’s compensation appeals. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Yielding to § 6-918A.

This section contains no express and specific language providing an exception to the exclusive scope of§ 6-918A. Therefore, this section yields to§ 6-918A in tort claim cases. Kent v. Pence, 116 Idaho 22, 773 P.2d 290 (Ct. App. 1989).

Zoning Matters.

Where a case was initiated when corporation filed an application with the city’s planning and zoning commission, and the case was later brought into district court through the process of review, no complaint was ever filed with a state court, and this section did not apply. World Cup Ski Shop, Inc. v. City of Ketchum, 118 Idaho 294, 796 P.2d 171 (Ct. App. 1990).

Cited

Meyer v. Skyline Mobile Homes, 99 Idaho 754, 589 P.2d 89 (1979); Levra v. National Union Fire Ins. Co., 99 Idaho 871, 590 P.2d 1017 (1979); State, Dep’t of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 595 P.2d 299 (1979); Smith Elec., Inc. v. Crandlemire, 100 Idaho 172, 595 P.2d 321 (1979); Wheeler v. McIntyre, 100 Idaho 286, 596 P.2d 798 (1979); Harbaugh v. Myron Harbaugh Motor, Inc., 100 Idaho 295, 597 P.2d 18 (1979); Potter v. Mulberry, 100 Idaho 429, 599 P.2d 1000 (1979); Large v. Mayes, 100 Idaho 450, 600 P.2d 126 (1979); McNeil v. Gisler, 100 Idaho 693, 604 P.2d 707 (1979); Fouser v. Paige, 101 Idaho 294, 612 P.2d 137 (1980); Lewis v. Fletcher, 101 Idaho 530, 617 P.2d 834 (1980); Yacht Club Sales & Serv., Inc. v. First Nat’l Bank, 101 Idaho 852, 623 P.2d 464 (1980); Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980); International Eng’g Co. v. Daum Indus., Inc., 102 Idaho 363, 630 P.2d 155 (1981); Makin v. Liddle, 102 Idaho 705, 639 P.2d 3 (1981); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981); White v. Rehn, 103 Idaho 1, 644 P.2d 323 (1982); Payette Farms Co. v. Conter, 103 Idaho 148, 645 P.2d 888 (1982); Bastian v. Albertson’s, Inc., 102 Idaho 909, 643 P.2d 1079 (Ct. App. 1982); Duff v. Bonner Bldg. Supply, Inc., 103 Idaho 432, 649 P.2d 391 (Ct. App. 1982); Biggers v. Biggers, 103 Idaho 550, 650 P.2d 692 (1982); Andre v. Morrow, 106 Idaho 455, 680 P.2d 1355 (1984); Chenery v. Agri-Lines Corp., 106 Idaho 687, 682 P.2d 640 (Ct. App. 1984); Sigdestad v. Gold, 106 Idaho 693, 682 P.2d 646 (Ct. App. 1984); Ace Realty, Inc. v. Anderson, 106 Idaho 742, 682 P.2d 1289 (Ct. App. 1984); Smith v. Idaho Peterbilt, Inc., 106 Idaho 846, 683 P.2d 882 (Ct. App. 1984); Wing v. Hulet, 106 Idaho 912, 684 P.2d 314 (Ct. App. 1984); Verbillis v. Dependable Appliance Co., 107 Idaho 335, 689 P.2d 227 (Ct. App. 1984); Goodwin v. Wulfenstein, 107 Idaho 492, 690 P.2d 947 (Ct. App. 1984); Argonaut Ins. Cos. v. Tri-West Constr. Co., 107 Idaho 643, 691 P.2d 1258 (Ct. App. 1984); Newman v. Associated Sys., 107 Idaho 922, 693 P.2d 1124 (Ct. App. 1985); Maxson v. Farmers Ins. of Idaho, Inc., 107 Idaho 1043, 695 P.2d 428 (Ct. App. 1985); Makin v. Liddle, 108 Idaho 67, 696 P.2d 918 (Ct. App. 1985); Miller Constr. Co. v. Stresstek, 108 Idaho 187, 697 P.2d 1201 (Ct. App. 1985); Laight v. Idaho First Nat’l Bank, 108 Idaho 211, 697 P.2d 1225 (Ct. App. 1985); Amlin v. Hamilton, 108 Idaho 320, 698 P.2d 838 (Ct. App. 1985); Jonasson v. Gibson, 108 Idaho 459, 700 P.2d 81 (Ct. App. 1985); Marriage v. Berriochoa, 108 Idaho 474, 700 P.2d 96 (Ct. App. 1985); Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct. App. 1985); Nenoff v. Graham, 108 Idaho 550, 700 P.2d 953 (Ct. App. 1985); Nelson v. Wagner, 108 Idaho 570, 700 P.2d 973 (Ct. App. 1985); Price v. Aztec Ltd., 108 Idaho 674, 701 P.2d 294 (Ct. App. 1985); Craft Wall of Idaho, Inc. v. Stonebraker, 108 Idaho 704, 701 P.2d 324 (Ct. App. 1985); LaGrand Steel Prods. Co. v. A.S.C. Constructors, Inc., 108 Idaho 817, 702 P.2d 855 (Ct. App. 1985); Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985); State v. Araiza, 109 Idaho 188, 706 P.2d 77 (Ct. App. 1985); Kunzler v. Kunzler, 109 Idaho 350, 707 P.2d 461 (Ct. App. 1985); Tudor Eng’g Co. v. Mouw, 109 Idaho 573, 709 P.2d 146 (1985); Lindstrom v. District Bd. of Health, 109 Idaho 956, 712 P.2d 657 (Ct. App. 1985); Pringle v. Pringle, 109 Idaho 1026, 712 P.2d 727 (Ct. App. 1985); Golder v. Golder, 110 Idaho 57, 714 P.2d 26 (1986); Steelman v. Mallory, 110 Idaho 510, 716 P.2d 1282 (1986); Wefco, Inc. v. Monsanto Co., 111 Idaho 55, 720 P.2d 643 (Ct. App. 1986); Sherry v. Sherry, 111 Idaho 185, 722 P.2d 494 (Ct. App. 1986); Carter v. Rich, 111 Idaho 684, 726 P.2d 1135 (1986); Harms Mem. Hosp. v. Morton, 112 Idaho 129, 730 P.2d 1049 (Ct. App. 1986); Jones v. Whiteley, 112 Idaho 886, 736 P.2d 1340 (Ct. App. 1987); Etcheverry Sheep Co. v. J.R. Simplot Co., 113 Idaho 15, 740 P.2d 57 (1987); Gem State Homes, Inc. v. Idaho Dep’t of Health & Welfare, 113 Idaho 23, 740 P.2d 65 (Ct. App. 1987); Nalen v. Jenkins, 113 Idaho 79, 741 P.2d 366 (Ct. App. 1987); Department of Health & Welfare v. Sandoval, 113 Idaho 186, 742 P.2d 992 (Ct. App. 1987); Schoonover v. Bonner County, 113 Idaho 916, 750 P.2d 95 (1988); Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988); Burrup v. Stanger, 114 Idaho 50, 753 P.2d 261 (Ct. App. 1988); Myers v. Vermaas, 114 Idaho 85, 753 P.2d 296 (Ct. App. 1988); Howard v. Blue Cross of Idaho Health Serv., Inc., 114 Idaho 485, 757 P.2d 1204 (Ct. App. 1988); M.T. Deaton & Co. v. Leibrock, 114 Idaho 614, 759 P.2d 905 (Ct. App. 1988); Chenery v. Agri-Lines Corp., 115 Idaho 281, 766 P.2d 751 (1988); Jennings v. Edmo, 115 Idaho 391, 766 P.2d 1272 (Ct. App. 1988); Jensen v. Westberg, 115 Idaho 1021, 772 P.2d 228 (Ct. App. 1988); Ortiz v. Reamy, 115 Idaho 1099, 772 P.2d 737 (Ct. App. 1989); Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989); Milliron v. Milliron, 116 Idaho 253, 775 P.2d 145 (Ct. App. 1989); Parsons v. Beebe, 116 Idaho 551, 777 P.2d 1224 (Ct. App. 1989); Chittenden & Eastman Co. v. Leasure, 116 Idaho 981, 783 P.2d 320 (Ct. App. 1989); Bell v. Golden Condor, Inc., 117 Idaho 21, 784 P.2d 351 (Ct. App. 1989); Cosgrove ex rel. Winfree v. Merrell Dow Pharmaceuticals, Inc., 117 Idaho 470, 788 P.2d 1293 (1990); Kinsela v. State, Dep’t of Fin., 117 Idaho 632, 790 P.2d 1388 (1990); Hoopes v. Bagley, 117 Idaho 1091, 793 P.2d 1263 (Ct. App. 1990); Wells v. Williamson, 118 Idaho 37, 794 P.2d 626 (1990); Ramco v. H-K Contractors, 118 Idaho 108, 794 P.2d 1381 (1990); Sun Valley Shamrock Resources, Inc. v. Travelers Leasing Corp., 118 Idaho 116, 794 P.2d 1389 (1990); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990); Stueve v. Northern Lights, Inc., 118 Idaho 422, 797 P.2d 130 (1990); Desfosses v. Desfosses, 120 Idaho 27, 813 P.2d 366 (Ct. App. 1991), aff’d, 122 Idaho 634, 836 P.2d 1095 (Ct. App 1992); Kukuruza v. Kukuruza, 120 Idaho 630, 818 P.2d 334 (Ct. App. 1991); Ellibee v. Ellibee, 121 Idaho 501, 826 P.2d 462 (1992); Treasure Valley Bank v. Butcher, 121 Idaho 534, 826 P.2d 492 (Ct. App. 1992); Fox v. Board of County Comm’rs, 121 Idaho 684, 827 P.2d 697 (1992); PFC, Inc. v. Rockland Tel. Co., 121 Idaho 1036, 829 P.2d 1385 (Ct. App. 1992); Curtis v. Canyon Hwy. Dist. No. 4, 122 Idaho 73, 831 P.2d 541 (1992); Idaho First Nat’l Bank v. LeMaster, 147 Bankr. 52 (Bankr. D. Idaho 1992); State ex rel. Johnson v. Niederer, 123 Idaho 282, 846 P.2d 933 (Ct. App. 1992); McCandless v. Carpenter, 123 Idaho 386, 848 P.2d 444 (Ct. App. 1993); Wulf v. Peralta, 123 Idaho 567, 850 P.2d 216 (Ct. App. 1993); Alcan Bldg. Prods. v. Peoples, 124 Idaho 338, 859 P.2d 374 (Ct. App. 1993); Higley v. Woodard, 124 Idaho 531, 861 P.2d 101 (Ct. App. 1993); McHugh v. McHugh, 124 Idaho 543, 861 P.2d 113 (Ct. App. 1993); St. Alphonsus Regional Medical Ctr., Ltd. v. Killeen, 124 Idaho 197, 858 P.2d 736 (1993); Automobile Club Ins. Co. v. Jackson, 124 Idaho 874, 865 P.2d 965 (1993); Suitts v. First Sec. Bank of Idaho, N.A., 125 Idaho 27, 867 P.2d 260 (Ct. App. 1993); Templeton v. Hogue, 125 Idaho 130, 867 P.2d 1004 (Ct. App. 1994); Flahiff Funeral Chapels, Inc. v. Roll, 125 Idaho 136, 867 P.2d 1010 (Ct. App. 1994); Mitchell v. Zilog, Inc., 125 Idaho 709, 874 P.2d 520 (1994); Central Paving Co. v. Idaho Tax Comm’n, 126 Idaho 174, 879 P.2d 1107 (1994); Keeven v. Estate of Keeven, 126 Idaho 290, 882 P.2d 457 (Ct. App. 1994); Dunnick v. Elder, 126 Idaho 308, 882 P.2d 475 (Ct. App. 1994); Bannock Bldg. Co. v. Sahlberg, 126 Idaho 545, 887 P.2d 1052 (1994); State v. Owen, 126 Idaho 871, 893 P.2d 818 (Ct. App. 1995); Western Stockgrowers Ass’n v. Edwards, 126 Idaho 939, 894 P.2d 172 (Ct. App. 1995); Weyyakin Ranch Property Owners’ Ass’n v. City of Ketchum, 127 Idaho 327, 896 P.2d 327 (1995); Balderson v. Balderson, 127 Idaho 48, 896 P.2d 956 (1995); Sutheimer v. Stoltenberg, 127 Idaho 81, 896 P.2d 989 (Ct. App. 1995); Dunham v. Dunham, 128 Idaho 55, 910 P.2d 169 (Ct. App. 1994); Haley v. Clinton, 128 Idaho 123, 910 P.2d 795 (Ct. App. 1996); McCuskey v. Canyon County Comm’rs, 128 Idaho 213, 912 P.2d 100 (1996); Branson v. Higginson, 128 Idaho 274, 912 P.2d 642 (1996); Jahnke v. Mesa Equip., Inc., 128 Idaho 562, 916 P.2d 1287 (Ct. App. 1996); Angstman v. City of Boise, 128 Idaho 575, 917 P.2d 409 (Ct. App. 1996); Idaho Watersheds Project, Inc. v. State Bd. of Land Comm’rs, 128 Idaho 761, 918 P.2d 1206 (1996); Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 923 P.2d 416 (1996); Hawks v. EPI Prods. USA, Inc., 129 Idaho 281, 923 P.2d 988 (1996); The Highlands, Inc. v. Hosac, 130 Idaho 67, 936 P.2d 1309 (1997); McKay v. Owens, 130 Idaho 148, 937 P.2d 1222 (1997); State ex rel. Smith v. Jardine, 130 Idaho 318, 940 P.2d 1137 (1997); Kolln v. Saint Luke’s Reg’l Med. Ctr., 130 Idaho 323, 940 P.2d 1142 (1997); Price v. Payette County Bd. of County Comm’rs, 131 Idaho 426, 958 P.2d 583 (1998); Idaho State Tax Comm’n v. Beacom, 131 Idaho 569, 961 P.2d 660 (Ct. App. 1998); Weaver v. Searle Bros., 131 Idaho 610, 962 P.2d 381 (1998); Pines, Inc. v. Bossingham, 131 Idaho 714, 963 P.2d 397 (Ct. App. 1998); Pro Indiviso, Inc. v. Holding Trust, 131 Idaho 741, 963 P.2d 1178 (1998); Smith v. Smith, 131 Idaho 800, 964 P.2d 667 (Ct. App. 1998); Cunningham v. Waford, 131 Idaho 841, 965 P.2d 201 (Ct. App. 1998); Chapple v. Madison County Officials, 132 Idaho 76, 967 P.2d 278 (1998); Danz v. Lockhart, 132 Idaho 113, 967 P.2d 1075 (Ct. App. 1998); Walker v. Hollinger, 132 Idaho 172, 968 P.2d 661 (1998); West v. Sonke, 132 Idaho 133, 968 P.2d 228 (1998); Thomas v. Worthington, 132 Idaho 825, 979 P.2d 1183 (1999); Meyers v. Lott, 133 Idaho 846, 993 P.2d 609 (2000); Vanwassenhove v. Vanwassenhove, 134 Idaho 198, 998 P.2d 505 (Ct. App. 2000); Farnworth v. Ratliff, 134 Idaho 237, 999 P.2d 892 (2000); State ex rel. Industrial Comm’n v. Quick Transp., Inc., 134 Idaho 240, 999 P.2d 895 (2000); Daisy Mfg. Co. v. Paintball Sports, Inc., 134 Idaho 259, 999 P.2d 914 (Ct. App. 2000); Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (2000); Roberts v. Board of Trustees, 134 Idaho 890, 11 P.3d 1108 (2000); Stevens v. Stevens, 135 Idaho 224, 16 P.3d 900 (2000); Post v. Idaho Farmway, Inc., 135 Idaho 475, 20 P.3d 11 (2001); Priest v. Landon, 135 Idaho 898, 26 P.3d 1235 (Ct. App. 2001); Sheridan v. Saint Luke’s Reg’l Med. Ctr., 135 Idaho 775, 25 P.3d 88 (2001); C & G, Inc. v. Rule, 135 Idaho 763, 25 P.3d 76 (2001); Noreen v. Price Dev. Co., 135 Idaho 816, 25 P.3d 129 (Ct. App. 2001); Sacred Heart Med. Ctr. v. Nez Perce County, 136 Idaho 448, 35 P.3d 265 (2001); Bramwell v. S. Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001); Wait v. Leavell Cattle, Inc., 136 Idaho 792, 41 P.3d 220 (2001); Northwest Bec-Corp v. Home Living Serv., 136 Idaho 835, 41 P.3d 263 (2002); Hardy v. McGill, 137 Idaho 280, 47 P.3d 1250 (2002); Wiggins v. Peachtree Settlement Funding, 273 B.R. 839 (Bankr. D. Idaho 2001); Suits v. Idaho Bd. of Prof’l Discipline, 138 Idaho 397, 64 P.3d 323 (2003); Swallow v. Emergency Med. of Idaho, P.A., 138 Idaho 589, 67 P.3d 68 (2003); Trinity Universal Ins. Co. v. Kirsling, 139 Idaho 89, 73 P.3d 102 (2003); Lamprecht v. Jordan, LLC, 139 Idaho 182, 75 P.3d 743 (2003); Garner v. Bartschi, 139 Idaho 430, 80 P.3d 1031 (2003); Bailey v. Sanford, 139 Idaho 744, 86 P.3d 458 (2004); Clear Lakes Trout Co. v. Clear Springs Foods, Inc., 141 Idaho 117, 106 P.3d 443 (2005); Gibson v. Bennett, 141 Idaho 270, 108 P.3d 417 (Ct. App. 2005); E. Idaho Reg’l Med. Ctr. v. Minidoka County (In re Bermudes), 141 Idaho 157, 106 P.3d 1123 (2005); Hartman v. United Heritage Prop. & Cas. Co., 141 Idaho 193, 108 P.3d 340 (2005); Lettunich v. Lettunich, 141 Idaho 425, 111 P.3d 110 (2005); Nat’l Union Fire Ins. Co. v. Dixon, 141 Idaho 537, 112 P.3d 825 (2005); Smith v. U.S.R.V. Properties, LC, 141 Idaho 795, 118 P.3d 127 (2005); Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 119 P.3d 624 (2005); Shoup v. Union Sec. Life Ins. Co., 142 Idaho 152, 124 P.3d 1028 (2005); Doe v. Roe (In re Doe), 142 Idaho 202, 127 P.3d 105 (2005); Oldcastle Precast, Inc. v. Parktowne Constr., Inc., 142 Idaho 376, 128 P.3d 913 (2005); Kolar v. Cassia County Idaho, 142 Idaho 346, 127 P.3d 962 (2005); Casi Found., Inc. v. Doe (In re Doe), 142 Idaho 397, 128 P.3d 934 (2006); Hogg v. Wolske, 142 Idaho 549, 130 P.3d 1087 (2006); Greenough v. Farm Bureau Mut. Ins. Co., 142 Idaho 589, 130 P.3d 1127 (2006); Beach Lateral Water Users Ass’n v. Harrison, 142 Idaho 600, 130 P.3d 1138 (2006); Schneider v. Howe, 142 Idaho 767, 133 P.3d 1232 (2006); Edmunds v. Kraner, 142 Idaho 867, 136 P.3d 338 (2006); Tungsten Holdings, Inc. v. Drake, 143 Idaho 69, 137 P.3d 456 (2006); Carter v. Carter (In re Carter JJC Trust), 143 Idaho 373, 146 P.3d 639 (2006); Foster v. Kootenai Med. Ctr., 143 Idaho 425, 146 P.3d 691 (Ct. App. 2006); Webb v. Webb, 143 Idaho 521, 148 P.3d 1267 (2006); Goodman v. Lothrop, 143 Idaho 622, 151 P.3d 818 (2007); Mannos v. Moss, 143 Idaho 927, 155 P.3d 1166 (2007); Rouse v. Household Fin. Corp., 144 Idaho 68, 156 P.3d 569 (2007); Baird Oil Co., Inc. v. Idaho State Tax Comm’n, 144 Idaho 229, 159 P.3d 866 (2007); Foley v. Grigg, 144 Idaho 530, 164 P.3d 810 (2007); Blanton v. Canyon County, 144 Idaho 718, 170 P.3d 383 (2007); Ross v. Ross, 145 Idaho 274, 178 P.3d 639 (Ct. App. 2007); Birdwood Subdivision Homeowners’ Ass’n v. Bulotti Constr., Inc., 145 Idaho 17, 175 P.3d 179 (2007); Commercial Ventures v. Lea Family Trust, 145 Idaho 208, 177 P.3d 955 (2008); Jenkins v. Barsalou, 145 Idaho 202, 177 P.3d 949 (2008); Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008); Losser v. Bradstreet, 145 Idaho 670, 183 P.3d 758 (2008); C Systems, Inc. v. McGee, 145 Idaho 559, 181 P.3d 485 (2008); Youngblood v. Higbee, 145 Idaho 665, 182 P.3d 1199 (2008); Partout v. Harper, 145 Idaho 683, 183 P.3d 771 (2008); Watkins v. Peacock, 145 Idaho 704, 184 P.3d 210 (2008); Winn v. Campbell, 145 Idaho 727, 184 P.3d 852 (2008); Cole v. Esquibel, 145 Idaho 652, 182 P.3d 709 (2008); Brewer v. Wash. RSA No. 8, L.P., 145 Idaho 735, 184 P.3d 860 (2008); Lettunich v. Lettunich, 145 Idaho 746, 185 P.3d 258 (2008); Andrus v. Nicholson, 145 Idaho 774, 186 P.3d 630 (2008); Rae v. Bunce, 145 Idaho 798, 186 P.3d 654 (2008); Schultz v. Schultz, 145 Idaho 859, 187 P.3d 1234 (2008); Beckstead v. Price, 146 Idaho 57, 190 P.3d 876 (2008); Todd v. Sullivan Constr. LLC, 146 Idaho 118, 191 P.3d 196 (2008); Chavez v. Barrus, 146 Idaho 212, 192 P.3d 1036 (2008); Rhino Metals, Inc. v. Craft, 146 Idaho 319, 193 P.3d 866 (2008); Univ. of Idaho Found., Inc. v. Civic Partners, Inc. (In re Univ. Place/Idaho Water Ctr. Project), 146 Idaho 527, 199 P.3d 102 (2008); Saddlehorn Ranch Landowner’s, Inc. v. Dyer, 146 Idaho 747, 203 P.3d 677 (2009); Lawrence v. Hutchinson, 146 Idaho 892, 204 P.3d 532 (Ct. App. 2009); Herrera v. Estay, 146 Idaho 674, 201 P.3d 647 (2009); Blake v. Starr, 146 Idaho 847, 203 P.3d 1246 (2009); Johnson v. Blaine County, 146 Idaho 916, 204 P.3d 1127 (2009); Neighbors for Responsible Growth v. Kootenai County, 147 Idaho 173, 207 P.3d 149 (2009); Bird v. Bidwell, 147 Idaho 350, 209 P.3d 647 (2009); Zenner v. Holcomb, 147 Idaho 444, 210 P.3d 552 (2009); Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009); Justad v. Ward, 147 Idaho 509, 211 P.3d 118 (2009); Burns Holdings, LLC v. Madison County Bd., 147 Idaho 660, 214 P.3d 646 (2009); Olson v. Montoya, 147 Idaho 833, 215 P.3d 553 (Ct. App. 2009); Schmechel v. Dille, 148 Idaho 176, 219 P.3d 1192 (2009); Craig v. Gellings, 148 Idaho 192, 219 P.3d 1208 (Ct. App. 2009); Page v. Pasquali, 150 Idaho 150, 244 P.3d 1236 (2010); Thomas v. Thomas, 150 Idaho 636, 249 P.3d 829 (2011); Hoover v. Hunter, 150 Idaho 658, 249 P.3d 851 (2011); Vanderford Co. v. Knudson, 150 Idaho 664, 249 P.3d 857 (2011); Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 249 P.3d 868 (2011); Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11 (2011); Hopkins Northwest Fund, LLC v. Landscapes Unlimited, LLC, 151 Idaho 740, 264 P.3d 379 (2011); Kepler-Fleenor v. Fremont County, 152 Idaho 207, 268 P.3d 1159 (2012); City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012); McCormick Int’l USA, Inc. v. Shore, 152 Idaho 920, 277 P.3d 367 (2012); Trunnell v. Fergel, 153 Idaho 68, 278 P.3d 938 (2012); Tapadeera, LLC v. Knowlton, 153 Idaho 182, 280 P.3d 685 (2012); Gerdon v. Rydalch, 153 Idaho 237, 280 P.3d 740 (2012); Sec. Fin. Fund, LLC v. Thomason, 153 Idaho 343, 282 P.3d 604 (2012); Indian Springs L.L.C. v. Andersen, 154 Idaho 708, 302 P.3d 333 (2012); Ravenscroft v. Boise County, 154 Idaho 613, 301 P.3d 271 (2013); Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013); Major v. Sec. Equip. Corp., 155 Idaho 199, 307 P.3d 1225 (2013); Doe v. Doe, 155 Idaho 660, 315 P.3d 848 (2013); Coeur d’Alene Tribe v. Denney (In re Verified Petition for Writ of Mandamus), 161 Idaho 508, 387 P.3d 761 (2015); Akers v. Mortensen, 160 Idaho 286, 371 P.3d 340 (2016); Thornton v. Pandrea, 161 Idaho 301, 385 P.3d 856 (2016); Frantz v. Hawley Troxell Ennis & Hawley LLP, 161 Idaho 60, 383 P.3d 1230 (2016); Smith v. Treasure Valley Seed Co., LLC, 161 Idaho 107, 383 P.3d 1277 (2016); David & Marvel Benton v. McCarty, 161 Idaho 145, 384 P.3d 392 (2016); Elliott v. Murdock, 161 Idaho 281, 385 P.3d 459 (2016); Griffith v. Jumptime Meridian, LLC, 161 Idaho 913, 393 P.3d 573 (2017); Joki v. State, 162 Idaho 5, 394 P.3d 48 (2017); Valentine v. Valentine, 162 Idaho 86, 394 P.3d 129 (Ct. App. 2017); Kempton-Baughman v. Wells Fargo Bank, N.A., 162 Idaho 174, 395 P.3d 393 (2017); Forbush v. Sagecrest Multi Family Prop. Owners’ Ass’n, 162 Idaho 317, 396 P.3d 1199 (2017); Fuquay v. Low, 162 Idaho 373, 397 P.3d 1132 (2017); Lincoln Land Co., LLC v. LP Broadband, Inc., 163 Idaho 105, 408 P.3d 465 (2017); Holden v. Weece (In re SRBA Case No. 39576), 163 Idaho 393, 414 P.3d 215 (2018); Farm Bureau Mut. Ins. Co. v. Cook, 163 Idaho 455, 414 P.3d 1194 (2018); Budget Truck Sales, LLC v. Tilley, 163 Idaho 841, 419 P.3d 1139 (2018); Seward v. Musick Auction, LLC, 164 Idaho 149, 426 P.3d 1249 (2018); Verity v. USA Today, 164 Idaho 832, 436 P.3d 653 (2019); Hardy v. Phelps, — Idaho —, 443 P.3d 151 (2019); Sec. Inv’r Fund LLC v. Crumb, — Idaho —, 443 P.3d 1036 (2019); Turcott v. Estate of Bates, — Idaho —, 443 P.3d 197 (2019); Papin v. Papin, — Idaho —, 454 P.3d 1092 (2019). This section did not provide authority for an award of attorney’s fees on appeals from administrative agency rulings, but an award of costs was appropriate. Curtis v. M. H. King Co., 142 Idaho 383, 128 P.3d 920 (2005).

Employer was denied attorney fees on appeal, because this section does not apply to worker’s compensation appeals. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Yielding to § 6-918A.

Zoning Matters.

Cited

Employer was denied attorney fees on appeal, because this section does not apply to worker’s compensation appeals. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Yielding to § 6-918A.

Zoning Matters.

Cited

Employer was denied attorney fees on appeal, because this section does not apply to worker’s compensation appeals. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Yielding to § 6-918A.

Zoning Matters.

Cited

Employer was denied attorney fees on appeal, because this section does not apply to worker’s compensation appeals. Oliveros v. Rule Steel Tanks, Inc., — Idaho —, 438 P.3d 291 (2019).

Yielding to § 6-918A.

Zoning Matters.

Cited

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

Am. Jur. 2d.

C.J.S.

ALR.

§ 12-122. Attorney’s fees in habeas corpus actions.

In any habeas corpus action brought by a state penitentiary or county jail inmate, the judge shall award reasonable attorney’s fees to the respondent, if, in the judgment of the court, the habeas corpus action was brought frivolously by the petitioner.

In all habeas corpus actions which result in a denial or dismissal of a writ of habeas corpus, the court shall make a specific finding whether or not the habeas corpus action was brought frivolously by the petitioner.

For purposes of this section, “brought frivolously,” shall mean that the petitioner petitioned the court for a writ of habeas corpus based upon claims which either had no basis in fact or, even if the factual allegations were true, they did not, as a matter of law, justify any relief to the petitioner; provided, however, that the court, in its discretion, may determine that the action was not brought frivolously when the action involves a material issue of law that has not been settled by statute or by supreme court decision in this state.

History.

I.C.,§ 12-122, as added by 1983, ch. 248, § 1, p. 669.

CASE NOTES

Award Denied.

Defendant’s appeal concerning probation violation charges from another jurisdiction involved material issues of law that had not heretofore been settled by statute or by decision of the Idaho supreme court. Thus, even if this section stood as authority to exercise discretion in determining whether to award attorney fees to the state on appeal, such an award should not have been made under the present facts. Swain v. State, 122 Idaho 918, 841 P.2d 448 (Ct. App. 1992).

Magistrate and district court erred in awarding costs and attorney fees to respondents, Idaho commission of pardons and parole, commissioners, and hearing officer, as the inmate’s petition may have had some valid points. Dopp v. Idaho Comm’n of Pardons & Parole, 139 Idaho 657, 84 P.3d 593 (Ct. App. 2004).

Award Upheld.

Where defendant inmate brought a writ of habeas corpus petition alleging that his due process rights were violated by the department of correction failure to provide him timely notice and to grant him a timely disciplinary hearing as provided by the department’s manual, defendant failed to show any adverse impact of the delay or any violation of due process; accordingly, magistrate’s award of attorney fees to the state was upheld. Waggoner v. State, 121 Idaho 758, 828 P.2d 321 (Ct. App. 1991).

Constitutionality.

Where prisoner raised the issue of the constitutionality of this section on appeal, but failed to provide court with argument or authority in support of issue, court would not address issue. Banks v. State, 128 Idaho 886, 920 P.2d 905 (1996).

Frivolousness.

Where questions of law are raised, the nonprevailing party’s position is not automatically frivolous simply because the court is unpersuaded; rather, the test is whether the nonprevailing party’s position is plainly fallacious and, therefore, not fairly debatable; where a magistrate held that a habeas corpus petition was frivolous because it was dismissed for failure to state a claim upon which relief could be granted, this was error. Werlinger v. State, 117 Idaho 47, 785 P.2d 172 (Ct. App. 1990).

Petition for habeas corpus alleging petitioner was denied adequate medical treatment had a basis in fact at the time it was filed where before the petition was filed, petitioner complained that lesion on his leg caused pain, itchiness and discomfort, and he insisted on being examined by a physician; however, it was not until after the petition had been filed that he was able to have the lesion examined by a doctor and petitioner’s request for a second medical opinion did not occur until the close of the evidentiary hearing; prior to that time, he was still seeking medical assistance from the prison’s medical staff; because petitioner did obtain some of the relief which he requested, the petition had a basis in fact at the time it was filed; moreover, since petitioner’s initial request to see a physician may indeed have been justified under the circumstances and his need for a second medical opinion raised a material issue of law that was fairly debatable and which had not yet been settled by supreme court decision in this state, his petition was not brought frivolously and state was not entitled to attorney’s fees. Vannatter v. State, 119 Idaho 507, 808 P.2d 426 (Ct. App. 1991).

There is no language in this section prohibiting the state from asserting its claim for fees on appeal independent from a request for attorney fees for defending a frivolous action in the lower court. The determinative question on appeal under this section is not whether the habeas corpus action brought by defendant presented frivolous matters or issues to the magistrate’s court, but whether the subsequent appeal which was taken from the magistrate’s decision was frivolous. Swain v. State, 122 Idaho 918, 841 P.2d 448 (Ct. App. 1992).

The prisoner did not bring the action and appeal frivolously, since the action involved a material issue regarding prison discipline that had not been settled by statute or supreme court decision in Idaho, and the state was denied attorney fees. Schevers v. State, 129 Idaho 573, 930 P.2d 603 (1996).

Cited

Sanchez v. Arave, 120 Idaho 321, 815 P.2d 1061 (1991).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

§ 12-123. Sanctions for frivolous conduct in a civil case.

As used in this section:
1. “Conduct” means filing a civil action, asserting a claim, defense, or other position in connection with a civil action, or taking any other action in connection with a civil action.
2. “Frivolous conduct” means conduct of a party to a civil action or of his counsel of record that satisfies either of the following:
  1. It obviously serves merely to harass or maliciously injure another party to the civil action;
  2. It is not supported in fact or warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.
1. In accordance with the provisions of this section, at any time prior to the commencement of the trial in a civil action or within twenty-one (21) days after the entry of judgment in a civil action, the court may award reasonable attorney’s fees to any party to that action adversely affected by frivolous conduct. (2)(a) In accordance with the provisions of this section, at any time prior to the commencement of the trial in a civil action or within twenty-one (21) days after the entry of judgment in a civil action, the court may award reasonable attorney’s fees to any party to that action adversely affected by frivolous conduct.
2. An award of reasonable attorney’s fees may be made by the court upon the motion of a party to a civil action, but only after the court does the following:
  1. Sets a date for a hearing to determine whether particular conduct was frivolous; and
  2. Gives notice of the date of the hearing to each party or counsel of record who allegedly engaged in frivolous conduct and to each party allegedly adversely affected by frivolous conduct; and
  3. Conducts the hearing to determine if the conduct was frivolous, whether any party was adversely affected by the conduct if it is found to be frivolous, and to determine if an award is to be made, the amount of that award. In connection with the hearing, the court may order each party who may be awarded reasonable attorney’s fees and his counsel of record to submit to the court, for consideration in determining the amount of any such award, an itemized list of the legal services necessitated by the alleged frivolous conduct, the time expended in rendering the services, and the attorney’s fees associated with those services. Additionally, the court shall allow the parties and counsel of record involved to present any other relevant evidence at the hearing.
3. The amount of an award that is made pursuant to this section shall not exceed the attorney’s fees that were both reasonably incurred by a party and necessitated by the frivolous conduct.
4. An award of reasonable attorney’s fees pursuant to this section may be made against a party, his counsel of record, or both.
An award of reasonable attorney’s fees pursuant to this section does not affect or determine the amount of or the manner of computation of attorney’s fees as between an attorney and the attorney’s client.
The provisions of this section do not affect or limit the application of any civil rule or another section of the Idaho Code to the extent that such a rule or section prohibits an award of attorney’s fees or authorizes an award of attorney’s fees in a specified manner, generally, or subject to limitations.

History.

I.C.,§ 12-123, as added by 1987, ch. 278, § 8, p. 571.

STATUTORY NOTES

Compiler’s Notes.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Section 19 of S.L. 1987, ch. 278 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

CASE NOTES

Award Not Proper.

Plaintiffs’ legal argument was not so plainly fallacious as to be deemed frivolous, nor was their case not supported by a good faith argument for the extension or modification of the law in Idaho, whether under§ 12-121 or this section; accordingly, the trial court’s award of attorney fees under either this section or§ 12-121 and Idaho R. Civ. P. 54(e)(1), was not appropriate. Hanf v. Syringa Realty, Inc., 120 Idaho 364, 816 P.2d 320 (1991).

District court abused its discretion in dismissing law partner from a malpractice claim against legal partnership and, thus, incorrectly awarded attorney fees to the dismissed partner. Webster v. Hoopers, 126 Idaho 96, 878 P.2d 795 (Ct. App. 1994).

District court did not err in denying an award of attorney fees pursuant to this section, which was found to be inapplicable, as case could not be considered frivolous where challenged statutes providing for foreclosure were held unconstitutional. Dufur v. Nampa & Meridian Irrigation Dist., 128 Idaho 319, 912 P.2d 687 (Ct. App. 1996).

The plaintiffs’ requested attorney fees resulting from the defense of appeal, arguing that the appeal was frivolous, presented no bona fide arguments and advanced no authority. The plaintiffs did not identify any particular conduct or arguments that they deemed frivolous or unmeritorious, and, on the contrary, the defendants asserted issues that deserved determination on appeal. Thus, there was no basis for an award of attorney’s fees to the plaintiffs. Hughes v. State, Dep’t of Law Enforcement, 129 Idaho 558, 929 P.2d 120 (1996).

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Award Not Proper.

Plaintiffs’ legal argument was not so plainly fallacious as to be deemed frivolous, nor was their case not supported by a good faith argument for the extension or modification of the law in Idaho, whether under§ 12-121 or this section; accordingly, the trial court’s award of attorney fees under either this section or§ 12-121 and Idaho R. Civ. P. 54(e)(1), was not appropriate. Hanf v. Syringa Realty, Inc., 120 Idaho 364, 816 P.2d 320 (1991).

Because insureds were not entitled to an award of attorney fees on an equitable basis, but were limited to exclusive statutory provisions regarding insurance coverage disputes, they were precluded from seeking an award for the cost of defending insurer’s declaratory judgment suit under general fee statutes or the fee provisions of the uniform declaratory judgment statute. Allstate Ins. Co. v. Mocaby, 133 Idaho 593, 990 P.2d 1204 (1999). Where the court awarded attorney fees as a sanction for frivolous or unreasonable conduct, because none of the required procedures for an award of attorney fees as a sanction under this section had taken place, the fee award under§ 12-121 was improper. Roe Family Servs. v. Doe (In re Baby Boy Doe), 139 Idaho 930, 88 P.3d 749 (2004).

The district court did not err in denying the company an award of attorney fees in the wife’s action claiming that the company was obligated to make a cash payment to her for her community property interest in the 80 shares of stock that the husband held in the company pursuant to this section and Idaho R. Civ. P. 11 because Idaho R. Civ. P. 11(a)(1) was not a basis for an overall award of attorney fees and the same analysis was applicable to claims based on§ 12-121 and Idaho R. Civ. P. 54(e); further, given the district court’s analysis under§ 12-121, the same result would follow under Idaho R. Civ. P. 11(a)(1) and this section if they were applicable. Tolley v. THI Co., 140 Idaho 253, 92 P.3d 503 (2004).

Insurer sought attorney fees in declaratory judgment matter brought by the insurer to determine its duty to defend an investment company, its insured, in the underlying suit. The argument advanced by the investment company that the complaint should be broadly construed to encompass non-excluded claims was not frivolous. AMCO Ins. Co. v. Tri-Spur Inv. Co., 140 Idaho 733, 101 P.3d 226 (2004).

This section sanctioned frivolous conduct designed to harass or maliciously injure another party in a civil case; respondents were non-parties to the developers arbitration award and, thus, ineligible for attorney fees under the statute. Campbell v. Kildew, 141 Idaho 640, 115 P.3d 731 (2005).

Trust beneficiary’s request for attorney’s fees was denied because she did not follow the required procedure of making a motion and having a hearing in the trial court within 21 days after the entry of judgment, and there is no provision for awarding attorney’s fees on appeal. Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Effective Date.

Where the action both accrued and was filed in the district court prior to July 1, 1987, this section by its terms was inapplicable. Hanf v. Syringa Realty, Inc., 120 Idaho 364, 816 P.2d 320 (1991).

Independent Action.

Where sister attempted to probate her mother’s alleged holographic will, and then later withdrew it, it was undisputed that brother could have sought attorney fees in the probate proceedings as a result of the sister’s conduct, but brother could not initiate an independent action to recover those attorney fees. Losser v. Bradstreet, 145 Idaho 670, 183 P.3d 758 (2008).

Insurance Action.

Prevailing Party.

This section and§ 41-1839 are the exclusive remedies for obtaining attorney fees in insurance disputes. The award of fees was proper where the insured never raised any triable issues of fact and did not attempt to offer any factual evidence to support his claims that the title company acted without diligence or in bad faith when it sought to obtain for him an ownership interest in an access road, even though he demanded that the title company do something to ensure he had an easement there. Mortensen v. Stewart Title Guar. Co., 149 Idaho 437, 235 P.3d 387 (2010). Prevailing Party.

Workers’ Compensation Proceedings.

This section is a civil statute and does not apply to workers’ compensation proceedings. Quintero v. Pillsbury Co., 119 Idaho 918, 811 P.2d 843 (1991), superseded on other grounds, Seward v. Pac. Hide & Fur Depot, 138 Idaho 509, 65 P.3d 531 (2003).

Cited

Pocatello Auto Color, Inc. v. Akzo Coatings, Inc., 127 Idaho 41, 896 P.2d 949 (1995); Folks v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 933 P.2d 642 (1997); Hoyle v. Utica Mut. Ins. Co., 137 Idaho 367, 48 P.3d 1256 (2002); Doe v. Roe (In re Doe), 142 Idaho 202, 127 P.3d 105 (2005); Carter v. Carter (In re Carter JJC Trust), 143 Idaho 373, 146 P.3d 639 (2006); Youngblood v. Higbee, 145 Idaho 665, 182 P.3d 1199 (2008); Bird v. Bidwell, 147 Idaho 350, 209 P.3d 647 (2009); Vreeken v. Lockwood Eng’g, B.V., 148 Idaho 89, 218 P.3d 1150 (2009); Berkshire Invs., LLC v. Taylor, 153 Idaho 73, 278 P.3d 943 (2012); Tapadeera, LLC v. Knowlton, 153 Idaho 182, 280 P.3d 685 (2012); Markin v. Grohmann, 153 Idaho 223, 280 P.3d 726 (2012); Lincoln Land Co., LLC v. LP Broadband, Inc., 163 Idaho 105, 408 P.3d 465 (2017).

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

ALR.

Chapter 2 PROCEEDINGS AGAINST JOINT DEBTORS

Sec.

§ 12-201 — 12-206. Proceedings against joint debtors — Pleadings — Trial and verdict. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 672-677; R.S., R.C., & C.L.§§ 4860-4865; C.S.,§§ 7186-7191; I.C.A.,§§ 12-201 — 12-206, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Chapter 3 INTEREST ON OFFERS OF SETTLEMENT

Sec.

§ 12-301. Interest on offers of settlement.

After commencement of any civil action based upon a claim for relief arising in tort, from property damage, personal injury or wrongful death, any claimant may at any time, no later than ten (10) days before the trial, serve upon an adverse party, a written offer of settlement, offering to settle his claim in such action and to stipulate to a judgment for a sum certain, including any attorney fees allowable by law and costs of litigation then accrued.
If the adverse party, at any time after service of such offer of settlement and prior to its revocation, serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance, together with proof of service thereof, and thereupon judgment shall be entered for the amount of the offer. In the event that an offer of settlement is revoked by a claimant or not accepted, evidence of the offer is not admissible except in a proceeding to determine costs or to award interest pursuant to this section.
If such offer of settlement is not accepted prior to trial pursuant to subsection (b) above, and the action reaches a final judgment by the court after trial, the court shall inquire as to whether any prevailing claimant made an offer of settlement, pursuant to subsection (a) of this section, which an adverse party failed to accept. If the court finds that such claimant has recovered an amount equal to or greater than his offer of settlement, the court shall add to the judgment, annual interest on the amount contained in such offer, computed from the date that the offer of settlement was served and shall enter judgment accordingly. For purposes of such computation, the last offer of settlement which was equal to or less than the damages awarded such claimant, together with the costs and attorney fees, if any, awarded to him shall be used. A subsequent offer made pursuant to subsection (a) revokes any previous offer.
For purposes of this section, “annual interest” shall mean the rate specified in section 28-22-104(2), Idaho Code.

History.

I.C.,§ 12-301, as added by 1987, ch. 278, § 11, p. 571.

STATUTORY NOTES

Compiler’s Notes.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

CASE NOTES

Examples.

In plaintiff’s personal injury suit for damages, where she won a more favorable verdict from the jury than defendant’s settlement offer, plaintiff was entitled to prejudgment interest on the settlement offer award computed from the date the offer of settlement was served. Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Cited

Van Brunt v. Stoddard, 136 Idaho 681, 39 P.3d 621 (2001).

§ 12-302. Effect on civil rules.

This chapter shall not amend rule 68 of the Idaho rules of civil procedure.

History.

I.C.,§ 12-302, as added by 1987, ch. 278, § 11, p. 571.

STATUTORY NOTES

Compiler’s Notes.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

§ 12-303. Short title.

This chapter shall be known as the “Interest on Offers of Settlement.”

History.

I.C.,§ 12-303, as added by 1987, ch. 278, § 11, p. 571.

STATUTORY NOTES

Compiler’s Notes.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Chapter 4 MOTIONS AND ORDERS

Sec.

§ 12-401. Orders and motions, defined. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 680; R.S., R.C., & C.L., § 4880; C.S., § 7194; I.C.A.,§ 12-401, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 7(b)(1), 12(b).

§ 12-402. Motions and orders

Where made. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 681; R.S., R.C., & C.L., § 4881; C.S., § 7195; I.C.A.,§ 12-402, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 7(b)(1).

§ 12-403. Notice of motion. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 682; R.S., R.C., & C.L., § 4882; C.S., § 7196; I.C.A.,§ 12-403, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 6(d), 6(e)(1).

§ 12-404. Continuance and transfer of motion. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 683; R.S., R.C., & C.L., § 4883; C.S., § 7197; I.C.A.,§ 12-404, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-405. Orders for payment of money

Enforcement. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 684; R.S., R.C., & C.L., § 4884; C.S., § 7198; I.C.A.,§ 12-405, was repealed by S.L. 1975, ch. 242, § 1.

Chapter 5 SERVICE OF PAPERS, NOTICE AND APPEARANCE

Sec.

§ 12-501. Service of notice and papers. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 685; R.S., R.C., & C.L., § 4889; C.S., § 7199; I.C.A.,§ 12-501, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 5(b).

§ 12-502, 12-503. Service by mail — When permitted — How made. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 686, 687; R.S., R.C., & C.L., §§ 4890, 4891; C.S., §§ 7200, 7201; am. 1929, ch. 86, § 1, p. 140; I.C.A.,§§ 12-502, 12-503, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 5(b).

§ 12-504. Appearance. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 688; R.S., R.C., & C.L., § 4892; C.S., § 7202; I.C.A.,§ 12-504, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 4(i), 5(a), 7(c).

§ 12-505. Service on nonresident. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 689; R.S., R.C., & C.L., § 4893; C.S., § 7203; I.C.A.,§ 12-505, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 5(a), 5(b).

§ 12-506. Limitation on foregoing provisions. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 690; R.S., R.C., & C.L., § 4894; C.S., § 7204; I.C.A.,§ 12-506, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 5(b).

§ 12-507. Service by telegraph. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 691; R.S., R.C., & C.L., § 4895; C.S., § 7205; I.C.A.,§ 12-507, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 4(c)(3), 4(g).

Chapter 6 GENERAL PROVISIONS

Sec.

§ 12-601. Civil and criminal remedies not merged. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 3801; C.S., § 6439; I.C.A.,§ 12-601, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-602. Lost papers

How supplied. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 710; R.S., R.C., & C.L., § 4923; C.S., § 7225; I.C.A.,§ 12-602, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 10(a)(2).

§ 12-603. Papers with defective titles

Validity. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 711; R.S., R.C., & C.L., § 4924; C.S., § 7226; I.C.A.,§ 12-603, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 61.

§ 12-604. Successive actions on same contract. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 712; R.S., R.C., & C.L., § 4925; C.S., § 7227; I.C.A.,§ 12-604, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-605. Consolidation of actions. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 713; R.S., R.C., & C.L., § 4926; C.S., § 7228; I.C.A.,§ 12-605, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 42(a).

§ 12-606. Action, when deemed pending. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 714; R.S., R.C., & C.L., § 4927; C.S., § 7229; I.C.A.,§ 12-606, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 3(a).

§ 12-607. Actions to determine adverse claims and by sureties. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 715; R.S., R.C., & C.L., § 4928; C.S., § 7230; I.C.A.,§ 12-607, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 57.

§ 12-608. Clerk to write testimony. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 716; R.S., R.C., & C.L., § 4929; C.S., § 7231; I.C.A.,§ 12-608, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-609. Register of actions. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 717; R.S., R.C., & C.L., § 4930; C.S., § 7232; I.C.A.,§ 12-609, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

§ 12-610. Majority of referees may act. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 718; R.S., R.C., & C.L., § 4931; C.S., § 7233; I.C.A.,§ 12-610, was repealed by S.L. 1975, ch. 242, § 1 effective March 31, 1975.

§ 12-611. Extension of time. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 719; R.S., R.C., & C.L., § 4932; C.S., § 7234; I.C.A.,§ 12-611, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 6(b).

§ 12-612. Actions against sheriffs — Notice to indemnitors.

If an action is brought against a sheriff for an act done by virtue of his office, and he gives written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein is conclusive evidence of his right to recover against such sureties; and the court, or judge in vacation, may, on motion, upon notice of five (5) days, order judgment to be entered up against them for the amount so recovered, including costs.

History.

C.C.P. 1881, § 720; R.S., R.C., & C.L., § 4933; C.S., § 7235; I.C.A.,§ 12-612.

STATUTORY NOTES

Compiler’s Notes.

§ 12-613. General form of undertaking.

Whenever a party to an action or proceeding desires to give an undertaking provided to be given by law, it shall be sufficient if the sureties sign an undertaking indicating that they are thereby bound to the obligations of the statute requiring the undertaking to be given. Such undertaking may be in form as follows:

(Title of court. Title of cause.)

Whereas, the .... desires to give an undertaking for (state what) ...., now, therefore, we the undersigned sureties, do hereby obligate ourselves jointly and severally, to (name who) .... under said statutory obligations in the sum of .... dollars.

The sureties so signing such undertaking are bound to the full statutory obligations of the statute requiring the undertaking.

History.

1895, p. 18,§§ 1-3; reen. 1899, p. 235,§§ 1-3; reen. R.C. & C.L., § 4933a; C.S., § 7236; I.C.A.,§ 12-613.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Dual Appeals.

Appellant may embrace more than one appeal in the same action in more than one undertaking conforming to this section. Aumock v. Kilborn, 52 Idaho 438, 16 P.2d 975 (1932).

Sufficiency of Undertaking.

Undertaking on attachment which recites that the “plff.” desires to give undertaking and obligating sureties to “deft.” is sufficient. Finney v. Moore, 9 Idaho 284, 74 P. 866 (1903).

When appeal is taken both from decree and order denying motion to reopen decree, and both are specifically referred to in undertaking on appeal, in form into which statute imports every condition required by law, and amount of penalty is sufficient for both appeals, legal effect is to comprise two bonds in one instrument, and it must be so construed. In re Blackinton’s Estate, 29 Idaho 310, 158 P. 492 (1916). «Title 12»«Ch. 6•«§ 12-613»

§ 12-613. General form of undertaking.

(Title of court. Title of cause.)

The sureties so signing such undertaking are bound to the full statutory obligations of the statute requiring the undertaking.

History.

1895, p. 18,§§ 1-3; reen. 1899, p. 235,§§ 1-3; reen. R.C. & C.L., § 4933a; C.S., § 7236; I.C.A.,§ 12-613.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Dual Appeals.

Appellant may embrace more than one appeal in the same action in more than one undertaking conforming to this section. Aumock v. Kilborn, 52 Idaho 438, 16 P.2d 975 (1932).

Sufficiency of Undertaking.

Undertaking on attachment which recites that the “plff.” desires to give undertaking and obligating sureties to “deft.” is sufficient. Finney v. Moore, 9 Idaho 284, 74 P. 866 (1903).

Undertaking being given on behalf of appellant, he is liable thereon, even though he did not sign it. Hoebel v. Utah-Idaho Livestock Loan Co., 39 Idaho 294, 227 P. 1048 (1924).

Where the undertaking in question specifically states that it is for an undertaking on appeal and the statutory obligations are entered into by the sureties, then the undertaking is sufficient to support the appeal from the probate court to the district court. Denman v. Martin, 79 Idaho 509, 321 P.2d 606 (1958).

Validity and Application.

This statute providing a form for undertakings in civil and criminal actions is constitutional. Smith v. Haner, 8 Idaho 370, 69 P. 109 (1902).

This section applies to appeals from probate court. In re Blackinton’s Estate, 29 Idaho 310, 158 P. 492 (1916).

Cited

Edminston v. Steele, 12 Idaho 613, 87 P. 677 (1906); Bain v. Olsen, 36 Idaho 130, 209 P. 721 (1922); Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785 (1926).

§ 12-614. Justification of sureties.

In all cases where an undertaking, with sureties, is required by the provisions of this code, the officer taking the same must require the sureties to accompany it with an affidavit that they are each residents and householders or freeholders within the state, and each are worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking exceeds $2000.00, and there are more than two (2) sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties.

History.

C.C.P. 1881, § 721; R.S., R.C., & C.L., § 4934; C.S., § 7237; I.C.A.,§ 12-614.

STATUTORY NOTES

Cross References.

Bonds of surety companies constitute a sufficient compliance with this section,§ 41-2604.

Certificate of authority of surety company constitutes a sufficient justification of such company as surety.§ 41-2605.

Proceedings for release of sureties from liability,§ 41-2609.

Compiler’s Notes.

CASE NOTES

Effect on Validity of Undertaking.

Justification of sureties constitutes no part of undertaking, but undertaking is complete without it. Miller v. Pine Mining Co., 3 Idaho 603, 32 P. 207 (1893).

Bond is valid although affidavit fails to state that bondsmen are householders or freeholders. Wilson v. Eagleson, 9 Idaho 17, 71 P. 613 (1903).

RESEARCH REFERENCES

C.J.S.

§ 12-615. Parties not required to give bond.

In any civil action or proceeding wherein the state or the people of the state is a party plaintiff, or any state officer, in his official capacity, or on behalf of the state, or any county or city, is a party plaintiff or defendant, no bond, written undertaking or security can be required of the state, or the people thereof, or any officer thereof, or any county or city; but on complying with the other provisions of this code the state, or the people thereof, or any state officer acting in his official capacity, or any county or city, have the same rights, remedies and benefits as if the bond, undertaking or security were given and approved as required by this code.

History.

C.C.P. 1881, § 722; R.S., R.C., & C.L., § 4935; C.S., § 7238; I.C.A.,§ 12-615.

STATUTORY NOTES

Compiler’s Notes.

The references in this section to “this code” are to the Code of Civil Procedure, a division of the Idaho Code, consisting of Titles 1 through 13.

CASE NOTES

Application.

This section applies to village organized under laws of this state governing organization of cities and villages. Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508 (1912).

This section applies to a county treasurer and ex-officio tax collector, against whom an action is brought, on behalf of a rural high school district, to enjoin collection of a school tax; and, if judgment goes against the officer, he is not required to furnish an undertaking on appeal; in such case he is acting on behalf of a legal subdivision of state government and not as agent of a rural high school district. Coon v. Sommercamp, 26 Idaho 776, 146 P. 728 (1915).

County is relieved of necessity of filing undertaking with its notice of appeal by provisions of this section. Washington County v. Weiser Nat’l Bank, 43 Idaho 618, 253 P. 838 (1927).

This section is not applicable on appeal to supreme court from judgment of district court sustaining board of county commissioner’s allowance of claims against county. Melquist v. Board of County Comm’rs, 45 Idaho 296, 261 P. 774 (1927). «Title 12»«Ch. 6•«§ 12-615»

§ 12-615. Parties not required to give bond.

History.

C.C.P. 1881, § 722; R.S., R.C., & C.L., § 4935; C.S., § 7238; I.C.A.,§ 12-615.

STATUTORY NOTES

Compiler’s Notes.

The references in this section to “this code” are to the Code of Civil Procedure, a division of the Idaho Code, consisting of Titles 1 through 13.

CASE NOTES

Application.

This section applies to village organized under laws of this state governing organization of cities and villages. Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508 (1912).

County is relieved of necessity of filing undertaking with its notice of appeal by provisions of this section. Washington County v. Weiser Nat’l Bank, 43 Idaho 618, 253 P. 838 (1927).

Construction.

Whenever an action is brought by or against state officers and such officers prosecute or defend in said action in their official capacity, acting for or defending rights of state, or any legal subdivision thereof, they are permitted to so act without furnishing costs or undertakings on appeal. This same rule applies to all state, county, district, and municipal officers, while engaged in protecting the rights of people in courts. Coon v. Sommercamp, 26 Idaho 776, 146 P. 728 (1915).

RESEARCH REFERENCES

C.J.S.

§ 12-616. Subrogation of sureties.

Whenever any surety on an undertaking on appeal, executed to stay proceedings upon a money judgment, pays the judgment, either with or without action, after its affirmation by the appellate court, he is substituted to the rights of the judgment creditor and is entitled to control, enforce and satisfy such judgments in all respects as if he had recovered the same.

History.

C.C.P. 1881, § 723; R.S., R.C., & C.L., § 4936; C.S., § 8239; I.C.A.,§ 12-616.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Construction.

This section is declaratory of equitable rule that where judgment is paid by one collaterally liable as surety, he is subrogated to all rights and liens of creditor with same position of priority occupied by him. Agren v. Staker, 46 Idaho 36, 267 P. 460 (1928).

The plaintiff to whom a debtor executed a bill of sale of debtor’s property which was subject to two prior liens of a bank, one being secured by a chattel mortgage and the other unsecured, and also taking an assignment of property under an agreement to pay the claims of the bank in full is not on a payment of the chattel mortgage debt entitled to be subrogated to the rights of the bank under the mortgage without paying the unsecured debt of the bank. Houghtelin v. Diehl, 47 Idaho 636, 277 P. 699 (1929).

Debtor Paid in Full.

Money Judgment.

The general and uniform rule is that a person cannot be subrogated to the rights or securities of the creditor until the claim of the creditor against the debtor has been paid in full. Houghtelin v. Diehl, 47 Idaho 636, 277 P. 699 (1929). Money Judgment.

Deficiency judgment entered after the foreclosure sale is a money judgment within the meaning of this section. Great Am. Indem. Co. v. Bisbee, 59 Idaho 18, 79 P.2d 1037 (1938).

Derivation of Right of Subrogation.

The common law is indebted to the civil law for the doctrine of subrogation which was imported into the common-law courts by the aid of courts of equity, and so imported has been considered as a creature of equity and so administered so as to secure real and essential justice without regard to form; and it will not be allowed to operate in any case where so to do would work an injustice to others, as where it would disturb priorities of liens or defeat fixed rights of others. Houghtelin v. Diehl, 47 Idaho 636, 277 P. 699 (1929).

Doctrine Not Contractual.

The doctrine of subrogation does not rest on contract and no general rule can be laid down which will afford a sure test in all cases for its application; but whether the doctrine is applicable to any particular case depends on the peculiar facts and circumstances of such case. Houghtelin v. Diehl, 47 Idaho 636, 277 P. 699 (1929).

Meaning of “Subrogate.”

“Subrogate” in its broadest sense is substitution of one person for another so that he may succeed to the rights of the creditor in respect to a debt or claim. Houghtelin v. Diehl, 47 Idaho 636, 277 P. 699 (1929).