Cummings v. No Title Co of Idaho, 380 P.3d 168

Roger and Barbara Stephens owned two parcels; Northern Title prepared a faulty legal description that caused transfer of the 83-acre east parcel to Cummings by deed recorded at closing.
Northern Title later altered the recorded deed to exclude the east parcel and issued title insurance covering only the west parcel; Cummings sued the Stephenses and Northern Title.
The district court found Northern Title negligent and awarded Cummings $50,000 plus attorney fees and costs; this Court (Cummings I) reversed the judgment against Northern Title.
After remittitur Northern Title moved in district court for attorney fees and costs and for relief under I.R.C.P. 60(b) to vacate pre-appeal judgments; the district court vacated the pre-appeal award to Cummings and entered judgment awarding Northern Title fees of $162,363.30.
Cummings appealed, arguing the district court lacked jurisdiction to revisit pre-appeal fee awards and that Rule 60(b) relief was improper; the Supreme Court affirmed both the fee award to Northern Title and the grant of 60(b) relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court had post-appeal jurisdiction to vacate pre-appeal fee award and award fees to Northern Title	Cummings: Court’s silence in Cummings I did not change prevailing party or authorize reopening fee award	Northern Title: Reversal changed prevailing party; silence left subsidiary fee issue to trial court	Held: District court had jurisdiction; reversal changed prevailing party and trial court may decide pre-appeal fees
Whether district court abused discretion in granting I.R.C.P. 60(b) relief to Northern Title to vacate pre-appeal judgments	Cummings: Northern Title untimely, gave no good cause; Rule 60(b) relief inappropriate	Northern Title: Relief timely and supported under Rules 60(b)(4) and (5) and factual findings	Held: No abuse of discretion; Cummings failed to meaningfully challenge factual findings or apply standard
Whether Cummings is entitled to appellate attorney fees	Cummings: Requests fees under Idaho Code §12-120(3)	Northern Title: Requests fees under §12-120(3); prevailing party	Held: Denied to Cummings; awarded to Northern Title under §12-120(3) because Northern Title prevailed
Whether Cummings’ due process claim re: lack of opportunity to respond to 60(b) motion preserved	Cummings: Raised in reply brief that district court denied opportunity to respond	Northern Title: Procedure was proper; issues waived if not raised timely	Held: Due process argument waived for failure to raise in opening brief

Sky Canyon Properties, LLC v. Golf Club at Black Rock, LLC, 159 Idaho 162 (holding trial court may award pre-appeal fees when reversal changes prevailing party and appellate opinion is silent on fees)
Great Plains Equip., Inc. v. Nw. Pipeline Corp., 136 Idaho 466 (trial court may resolve subsidiary fee issues after appellate reversal changing prevailing party)
Hummer v. Evans, 132 Idaho 830 (limits trial court authority to award fees when appellate decision does not change prevailing party or leave fee issue subsidiary)
J.R. Simplot Co. v. Chemetics Int’l Inc., 130 Idaho 255 (trial court may determine prevailing party and fees where appellate court did not address fee entitlement)
Idaho State Police ex rel. Russell v. Real Property Situated in the County of Cassia, 144 Idaho 60 (Rule 60(b) factual findings reviewed for clear error)
Walker v. Boozer, 140 Idaho 451 (burden on appellant to show trial court abused discretion)
Bird v. Bidwell, 147 Idaho 350 (section 12-123 does not apply to appeals to the Idaho Supreme Court)
Cummings v. Stephens, 157 Idaho 348 (prior opinion reversing judgment against Northern Title)