In April, 2001, Allied Bail Bonds, Inc. (Allied), the Kootenai County Sheriff (Sheriff), and the Kootenai County Board of Commissioners (Board) entered into a settlement agreement setting forth procedures for how inmates at the county jail would be informed of and obtain bail bonds. Allied brought this suit alleging several claims, including breach of the settlement agreement. The district court dismissed Allied’s claims. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2000, Allied brought suit against the Sheriff and Kootenai County, alleging that the Sheriffs practices interfered with its business. On April 19, 2001, Allied, the Sheriff, and the Board entered into a settlement agreement. The agreement outlined the process by which the Sheriff was required to inform inmates of their bail bond options. On October 9, 2007, Allied filed the instant action, alleging the Sheriff and the Board had breached the settlement agreement, failed to produce documents pursuant to a request for public records, and interfered with Allied’s ability to engage in its bail bonds business.
The following day, October 10, 2007, Allied filed a $700 surety bond with one surety in relation to its suit against the Sheriff. As an affirmative defense, the Sheriff asserted that Allied had “failed to comply with the bond requirement set forth in Idaho Code § 6-610.” The district court heard argument on the bond issue and ordered Allied to file a $25,000 bond with two sureties. Allied filed a $25,000 bond with one surety. The defendants objected that “Allied’s filing of a bond with the court after the complaint was filed is untimely and therefore does not satisfy the requirements of Idaho Code § 6-610. Additionally, the power of attorney filed by Allied does not satisfy the undertaking requirements required by the statute, in that the power of attorney has an expiration date and the court has not received adequate surety.” The district court held that because Allied failed to post a bond contemporaneously with its complaint against the Sheriff and because Allied failed to file an undertaking of two sureties, application of I.C. § 6-610 required dismissal of the action.
Allied filed a second amended complaint on December 9, 2008. The second amended complaint contained additional allegations that, by encouraging the use of credit card bond payments, the Sheriff had violated article VIII, section 4 of the Idaho Constitution. Allied also alleged that I.C. §§ 19-3947 and 31-878, statutes authorizing county commissioners to supervise adult misdemeanor probation, violated article X, section 5 of the Idaho Constitution.
The defendants filed a motion to dismiss Allied’s claims. The defendants argued that the district court lacked subject matter jurisdiction over Allied’s tort claims because Allied had not complied with the notice requirements of the Idaho Tort Claims Act (ITCA), I.C. §§ 6-901 through 6-929. They also argued that Allied’s complaint failed to state a claim under the public records request statutes and that the settlement agreement was void and unenforceable. The defendants asserted that Allied lacked standing to challenge I.C. §§ 19-3947 and 31-878, and that those statutes were constitutional. Further, the defendants argued that Allied did not have a protected property interest in its bail bond business.
The district court dismissed Allied’s claims, and entered judgment dismissing Allied’s second amended complaint on March 9,
Allied timely appealed the district court’s final judgment.
II. STANDARD OF REVIEW
This Court exercises free review over questions of law, including jurisdictional and constitutional issues.
Meisner v. Potlatch Corp.,
On review of a district court’s I.R.C.P. 12(b)(6) dismissal, this Court views all inferences in the light most favorable to the non-moving party.
Orthman v. Idaho Power Co.,
III. ANALYSIS
A. Allied waived its challenge to the constitutionality of I.C. §§ 19-3947 and 31-878.
At oral argument, Allied expressly waived its argument that I.C. §§ 19-3947 and 31-878, which vest power to manage adult misdemeanor probation in county commissioners, are unconstitutional because article X, section 5 of the Idaho Constitution vests all power to manage matters of adult probation and parole solely in the State Board of Correction. We therefore decline to address the issue.
B. The district court properly dismissed Allied’s article VIII, section 4 claim for lack of timely notice of the claim.
Allied asserts that the Sheriff granted preferential treatment to credit card providers and thereby violated Idaho Constitution article VIII, section 4. Allied contends that the Sheriffs conduct gives rise to a cause of action for tortious interference
Under the ITCA, government entities are liable for money damages arising out of most of their own, or their employees’, “negligent or otherwise wrongful aet[s] or omission[s].” I.C. §§ 6-902(7) & -903(a). The ITCA mandates that if a claimant does not provide the government with timely notice of its claim, it loses the right to assert the claim. I.C. § 6-908. Timely and adequate notice under the ITCA “is a mandatory condition precedent to bringing suit, the failure of which is fatal to a claim, no matter how legitimate.”
McQuillen,
Allied contends that article VIII, section 4 of the Idaho Constitution gives rise to a constitutional cause of action that is substantively similar to the tort of wrongful interference with economic relationship, but to which the ITCA does not apply. Article VIII, section 4 states:
County, etc., not to loan or give its credit.
No county, city, town, township, board of education, or school district, or other subdivision, shall lend, or pledge the credit or faith thereof directly or indirectly, in any manner, to, or in aid of any individual, association or corporation, for any amount or for any purpose whatever, or become responsible for any debt, contract or liability of any individual, association or corporation in or out of this state.
The tort of wrongful interference with economic relationship requires a showing that “intentional interference with a prospective economic advantage resulted] in injury to the plaintiff [and] is wrongful by some measure beyond the fact of the interference itself.”
Idaho First Nat’l Bank v. Bliss Valley Foods, Inc.,
We affirm the district courts holding that the essence of Allied’s claim is that the Sheriff wrongfully diverted Allied’s potential customers away from Allied, toward credit card companies, with the intent to harm Allied’s business. We thus hold that Allied’s decision to plead its claim under article VIII, section 4 does not alter the fact that the claim sounds in tort and therefore requires compliance with the ITCA. 2 The district court properly held that the failure to provide timely notice of the tort claim barred Allied’s claim.
C. The district court properly dismissed Allied’s claims against the Sheriff for failure to timely post bond.
Idaho Code § 6-610 applies to actions arising out of law enforcement officers’ official duties and requires a plaintiff to post bond “as a condition precedent” to initiating suit against, or serving process on, an officer. I.C. § 6-610(2). Allied contends first that I.C. §§ 6-610(4) and 6-610(5) do not permit an officer to object where bond is not timely filed, but merely permit objection to a plaintiffs complete failure to file a bond. Allied argues that since it filed a bond only one day after filing its complaint, Allied did not totally fail to file a bond and the Sheriff has no grounds for an objection. Idaho Code §§ 6-610(4) and 6-610(5) state:
(4) At any time during the course of a civil action against a law enforcement officer, the defendant or respondent may except to either the plaintiffs or petitioner’s failure to file a bond or to the sufficiency of the sureties or to the amount of the bond.
(5) When the defendant or respondent excepts to the plaintiffs or petitioner’s failure to post a bond under this section, the judge shall dismiss the case.
We hold that I.C. § 6-610(2) plainly requires a plaintiff to post bond before it initiates suit against a law enforcement officer, and also that I.C. §§ 6-610(4) and 6-610(5) permit an objection and dismissal where a plaintiff fails to do so. To overcome the “jurisdictional problem” noted in Rogers, a plaintiff may invoke the jurisdiction of a district court by filing with the court, located in the county where the law enforcement officer performs his or her official duties, a petition requesting an order fixing the amount of bond. The petition should show that the petitioner expects to be a party to an action against a law enforcement officer, the subject matter of the expected action and facts sufficient for the court to establish the amount of bond the plaintiff must post before it files suit or serves process. Cf. I.R.C.P. 27(a)(1) (establishing procedures governing depositions to perpetuate testimony).
Allied contends in the alternative, under the doctrine of
functus officio,
that the December 9, 2008 filing date of its second amended complaint is the date upon which Allied initiated suit against the Sheriff. However, I.R.C.P. 15(c) provides that “[wjhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” This “relation back doctrine” protects claims from expiration of the statute of limitations, provided the defendant has sufficient notice.
Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A.,
In the present ease, Allied filed its original complaint, containing claims arising out of the Sheriffs alleged breach of the settlement agreement, on October 9, 2007, and it filed a $700 bond the next day. Allied filed a second amended complaint, also with claims arising out of the Sheriffs alleged breach of the settlement agreement, on December 9, 2008. The second amended complaint thus relates back to October 9, 2007, and precedes the October 10, 2007 date of Allied’s bond filing. Since Allied initiated suit against the Sheriff before it filed the bond required by I.C. § 6-610, we hold that the district court properly dismissed Allied’s claims against the Sheriff.
D. The district court properly dismissed Allied’s public records claim.
The district court held that Allied failed to state a claim under Idaho’s public records statute because Allied sought only attorney fees in relation to the respondents’ alleged violation of the statute. Under that statute, “[t]he sole remedy for a person aggrieved by the denial of a request for disclosure [of public records] is to institute proceedings in the district court of the county where the records or some part thereof are located, to compel the public agency or independent public body corporate and politic to make the information available for public inspection ...” I.C. § 9-343(1). As the district court noted, Allied conceded in its July 16, 2008 response to the respondents’ motion to dismiss that it did “not seek damages for the violation of Idaho Code, Title 9, Chapter 3, other than for attorney fees.” Since the only
E. The district court properly held that the Board is not liable for the Sheriffs alleged breaches.
Allied contends that the Board is liable for the Sheriffs conduct, either under the doctrine of respondeat superior or by its endorsement of the settlement agreement. The Board responds that county commissioners are not liable for the breach of a county officer. The district court held that the Board “does not have the authority to perform or direct the statutory duties of the Sheriff.”
1. The Board’s limited powers do not include the power to control or manage the Sheriffs official conduct.
The Board is not authorized to control other constitutional officers and therefore is not vicariously liable for the Sheriffs alleged torts. Article XVIII, section 6 of the Idaho Constitution, titled “County officers,” provides for the election of both county commissioners and a sheriff. The distinct constitutional offices have distinct roles and obligations. “A board of county commissioners is a tribunal created by statute with limited jurisdiction and only quasi judicial powers, and can not proceed except in strict accordance with the mode provided by statute.”
Johnson v. Young,
Allied cites no statute that empowers the Board to control the process by which the Sheriff conducts bail proceedings at its jail. Although Allied points to I.C. §§ 20-622 and 31-1503 as statutes authorizing the Board to manage the process by which the Sheriff collects bail from prisoners, the first merely requires county commissioners to “take all necessary precaution against escape, sickness, or infection” at county jails, while the second requires commissioners to disallow the account of a county officer if the officer fails to perform his official duties. Since the provision of bail is not related to prisoner escape, sickness or infection, I.C. § 20-622 cannot be said to authorize county commissioners to control how sheriffs conduct the bail process. Similarly, I.C. § 31-1503’s mandate that county commissioners disallow an officer’s account if his or her duties are not satisfactorily performed does not empower county commissioners to direct sheriffs’ statutorily-authorized conduct regarding bail. Because no statute empowers county commissioners to control the constitutional office of sheriff, we affirm the district court’s holding that the Board was not vicariously liable for the Sheriffs official conduct.
2. Since the Board is not authorized to control the Sheriffs official conduct, any agreement requiring the Board to do so is ultra vires and unenforceable.
Allied next contends that the Board assumed the obligation to control the Sher
iffs
This Court has recognized that I.C. § 31-813, which authorizes county commissioners to direct litigation, empowers commissioners to enter settlement agreements to end county litigation.
Bd. of Cnty. Comm’rs v. Bassett,
F. We affirm the district court’s holding that Allied did not assert a protected property interest.
The Sheriff contends that Allied did not plead its claim of a constitutionally protected property interest with sufficient particularity and is therefore precluded on appeal from asserting such claim. However, it appears from the record before the Court that the Sheriff did not present this argument prior to this appeal. “Appellate court review is limited to the evidence, theories and arguments that were presented below.”
Nelson v. Nelson,
The Sheriff argues that Allied’s bonding license is merely a privilege, not a protected property right. The district court held that because Allied did not have existing contractual relationships with jail inmates, and because the Sheriff did not wholly exclude Allied from conducting its licensed business, Allied did not assert a property interest entitled to constitutional protections.
We agree with the district court. A license is a mere privilege and does not create a vested property right.
Yellow Cab Taxi Serv. v. City of Twin Falls,
We held in
Coeur d’Alene Garbage Service
that a licensee’s existing and active business relationships may rise to the level of a protected property interest.
Allied does not allege any facts that place this ease within the reach of
Coeur d’Alene Garbage Service.
That is, Allied does not contend that the Sheriff wholly excluded Allied from exercising its licensed right to do business in Kootenai County, nor that the Sheriff has prevented it from engaging in business with existing, active customers. In effect, Allied asserts that by accepting credit card bond payments, the Sheriff has introduced a new form of competition to
G. We affirm the district court’s award of attorney fees.
The district court awarded the respondents attorney fees based on a provision in the settlement agreement entitling the prevailing party in any dispute arising from the agreement to fees. We review a district court’s award of attorney fees for an abuse of discretion.
Appel v. LePage,
Allied asserts that a case must be decided on the merits in order for there to be a prevailing party entitled to attorney fees. This is a question of law over which this Court exercises free review.
Contreras v. Rubley,
Further, the district court’s award of attorney fees was not an abuse of discretion. Where a court holds a contract is unenforceable, the prevailing party may nonetheless be entitled to an award of attorney fees under the contract.
Garner v. Bartschi,
The district court had broad discretion to find the respondents, as the parties that prevailed as to each of Allied’s claims, were the prevailing parties. The court acted within the bounds of its discretion and the applicable law when it found that the respondents were entitled to attorney fees under the settlement agreement, and reached its decision by an exercise of reason. We hold the district court properly awarded attorney fees to
H. The Board and the Sheriff are entitled to attorney fees on appeal.
Allied requests attorney fees on appeal under the settlement agreement, I.C. § 12-120(3), and I.C. § 12-121. The respondents likewise request attorney fees on appeal under the settlement agreement, I.C. § 9-344, I.C. § 12-117, I.C. § 12-120(3), and I.C. § 12-121.
We hold that the respondents are the prevailing parties on appeal and are entitled to attorney fees pursuant to I.C. § 12-117. In a civil action between a political subdivision and a person, the prevailing party is entitled to reasonable attorney fees if “the nonprevailing party acted without a reasonable basis in fact or law.” I.C. § 12-117(1). For purposes of the statute, a private organization such as Allied is a person. I.C. § 12-117(4)(a). Allied misrepresented controlling precedent in its briefing, and also presented multiple arguments in its briefing that it abandoned at oral argument. Further, Allied unreasonably pursued this appeal even though it failed to comply with the notice requirement of the ITCA and the bond requirement of I.C. § 6-610.
Jenkins v. Barsalou,
IV. CONCLUSION
We affirm the district court’s judgment dismissing Allied’s claims and awarding attorney fees to respondents. Attorney fees and costs to respondents.
Notes
. In its briefing, Allied cited
McQuillen v. City of Ammon,
. We express doubt that article VIII, section 4, a violation of which consists of “the imposition of some monetary liability upon a municipal corporation in favor of a non-public entity,”
Hanson v. City of Idaho Falls,
. Allied also asserts that it has a protected property interest in performance of the settlement agreement. It is true that the subject matter of a contract may be protected from infringement by a state actor.
Curr v. Curr,