*1 BARBEE, assignee of as K. James Bentley, and John
Patricia
Plaintiff-Appellant,
and Bentley, husband & Patricia
John Golbeck, Roth, Arian
wife, Mark Diane Golbeck, law firm of and the
Colachis Colachis, PLLC, Assignees, &
Roth
Plaintiffs,
v. SECURITIES, Allen INC. and John
WMA Defendants-Respondents.
Kenas, James Barbee, assignee of Patricia
K. Plaintiff-Appellant-Cross Bentley,
John
Respondent, Bentley, & Patricia husband
John Roth,
wife, Golbeck, Mark Arian Diane Golbeck, the law firm
Colachis and Colachis, PLLC, Assignees,
Roth &
Plaintiffs, SECURITIES, INC. and Allen John
Kenas, Defendants-Respondents- Appellants.
Cross
No. 30131/31298. Idaho,
Supreme Court
Lewiston, April 2006 Term.
Sept. *2 Barbee, Seattle,
James K. appellant. Evans, Lackie, P.S., Craven & Sрokane, respondents. Amy C. argued. Clemmons TROUT, Justice. dispute
This is a about a claim for fees incurred arbitration. It is a consoli- (1) dated action involving an award confirma- proceeding, tion which included a fees; subsequent action filed to obtain (ISA). under the Idaho Securities Act pre-arbitration main issue is whether law- must be filed to obtain under I.C. 30-1446.1 I. AND FACTUAL PROCEDURAL
BACKGROUND dispute This arose after two Idaho resi- (the dents, Bentley John and Patricia Bent- leys), by Securities, were convinced WMA Inc., broker-dealer, a securities and James Kenas, one of its (collectively, brokers WMA), mortgage them purchase home to what alleged were later to be in- unsuitable provision vestments. The arbitration in the contract between the and WMA directs as follows:
[T]hat unless unenforceable due to federal law, any controversy arising or state out of ... related to the transactions with by WMA ... shall be settled accordance with arbi- [NASD rules]. Such repealed 1. Idaho Code section 30-1446 was ef- The current Uniform Securities Act is codified at September fective the Uniform Secu- through §§ 30-14-101 rities Act of 2004 Idaho Sess. Laws ch. 45. They asked award. procedures as set tion of the arbitration
tration shall follow the arbitration committee forth national the award the district court of the NASD. fees, claiming that be- respect рresented to the makes no mention had not been provision The arbitration cause issue attorney fees law. or Idaho direct improper for them to panel, was *3 attorney fees. their own contract, party each to bear Bentleys the Pursuant though with the that the NASD Bentleys argued filed a statement of claim National The Dealers, of Inc. Association Securities power attor- panel have the to award did not (NASD) WMA, seeking approximate- against fees, re- ney authorized the damages for of ly million in violations $2 covery through costs of fees and laws, federal Idaho securities emotional proceeding. confirmation distress, promise, breach of breach of fiducia- order, In its the district court concluded duty, a ry and violation of the Idaho Racke- teering Bentleys authority Act. not to The did initiate not have the the arbitrators did litigation prior their of to commencement § 7- attorney fees to I.C. deny award or due arbitration. the Consequently, 910.2 the court deleted attorney’s the “including fees” from words Bentleys sought attorney in
The fees their 7-913(2). dis- proceedings pursuant claim statement. In the before to I.C. The NASD, however, Bentleys apparently the the panel trict the did have the court determined request. attorney their fees Like- withdrew costs, however, authority deny to award wise, panel au- WMA asserted the was not grounds there were sufficient attorney thorized to award fees absent an change portion of the deci- that arbitrators’ express provision agree- in the arbitration v. Farm Ins. Citing sion. Bureau Wolfe contrary. ment to the WMA with- therefore (1996), the attorney claim fees drew its because attorney could district court concluded fees precluded believed such a claim was under through a not be awarded motion to confirm law and Idaho neither the NASD submission timely The an arbitration award. agreements applicable nor the code NASD appealed. provisions specifically provided the recov- ery attorney appeal: separate The The court ac- second place proceedings
The NASD took in Ore- tion $42,000 gon. The in аrbitrators awarded damages Bentleys, summarizing the the Bentleys proceeded separate a The file Bentleys’ in claims as “all violation of the attorney fees court action to obtain analogous Idaho Securities Law and federal argued under 30-1446. WMA provisions.” Damages against were awarded attorney law an action fees prohibits case Bentleys’] unsuitability “on [the Both after arbitration is concluded. issue, attorney Addressing claims.” fee summary judgment filed motions. party arbitration neither panel noted was seeking an award of fees. Under motions, ruling In those the district heading in the “Award” was not court noted the issue award, directed, panel “Each party shall judicata issue was by barred res because that costs, litigation including its own attor- bear been, not, litigated have could not paid the neys’ timely fees.” WMA amount of however, ruled, рanel. district The award. Bentleys’ claims for gravamen that the appeal: The The award were in arbi- the ISA resolved violations of confirmation first
proceedings of an tration the commencement such action for fees after the arbitration Bentleys sought fees and in the The As a supported no the ISA. through longer a motion for was district court confirma- fees, including in- provides, expenses, "Unless other counsel Idaho Code section 7-910 arbitration, arbitrate, shall be provided agreement curred conduct of in the otherwise in fees, paid together provided in the award." expenses and the arbitrators’ result, the granted district court necessary WMA’s mo- it is for the interpret Court to summary judgment. statute, tion for attempt then it will leg- to ascertain construing statute, islative intent. Id. In The assigned rights then their used, this Court examine language connection with their claims WMA to proposed interpre- reasonableness attorneys.3 them Bentleys appealed, The ar- tations, policy and the behind the statute. guing they bring separate were entitled to Id. action for fees under I.C. 30- appeals 1446. The two have been consolidat-
ed.
III. DISCUSSION
principal
appeal
issues on
include
II. STANDARD OF REVIEW
whether
be awarded
*4
The standard of review of the district
proceeding;
confirmatiоn
ruling
summary
court’s
on
judgment motions
may
any
whether an action
be filed without
is the same as that of the district court when
damages, simply
claim
to assert a
ruling on the
Foreign
motions. American
attorney
fees. We will also consider
Reichert,
394,
Insurance Co. v.
140 Idaho
whether the
properly
district court
refused
398,
699,
(2004).
94 P.3d
Summary judg-
703
modify
respect
to
the award with
to costs.
proper
ment is
“if
pleadings, depositions,
Lastly,
we will address
fees in-
file,
togеther
admissions on
with the
in
proceedings
curred
the district court
affidavits, if any,
genu-
show that there is no
appeal.
on
any
ine issue as to
material fact and that the
moving party is
judgment
entitled to a
as a
Attorney
A.
fees incurred in arbitration
56(c).
matter of law.” I.R.C.P.
outset,
At
we note that both
reviewing
When
the district court’s
address the issue of whether the arbitrators
award,
decision to vacate or
an
Bentleys prevailed
found the
оn their ISA
determining
Court is limited to
any
whether
opposed
claims as
to their common law
grounds for
in
relief stated
the Idaho Uni
provides
claims. The ISA
a basis for the
form Arbitration Act exist. Moore v. Omni
award of
fees in certain circum-
care, Inc.,
809, 813,
141,
141 Idaho
118 P.3d
stances,
while there
be no basis for such
(2005);
award);
146
I.C.
(vacating
7-912
an
an award for the common law claims. While
award).
(modifying
“An ar
Bentleys
the district court
determined
rulings
questions
bitrator’s
of lаw and fact
prevailed on their
ISA claims before the
binding,
erroneous,
are
even where
unless
arbitrators, given
interpretation
our
statutory grounds
one of the enumerated
is
ISA, we need not resolve the issue. As will
Moore,
815,
present.”
395 cir- attorney fees certain under pro- certain recover Any person who ISA [violates See person buying the insurers. cumstances suits visions] liable him, Co., Idaho security from shall be entitled Pac. 120 Emery who Ins. v. United equity (1991); at or in recover 244, Wolfe, either law 128 Idaho sue 442 815 P.2d security, paid for the to- 1168; the considerаtion 398, Farm v. State 913 P.2d Martin (6%) percent 244, at six gether with interest Ins. Mutual Automobile payment, per annum from the date (2002); Foreign Ins. 61 P.3d American 601 fees, attorneys’ less and reasonable Reichert, Co. received on the se- amount of income argue these While security, curity, upon the tender of separate party bring a cases indicate longer damages if he no owns simply to recover lawsuit after security____ fees, persuaded. we are added). 30-1446(1)(emphasis The dis 1.C. cases flowing through these common thread equity abol tinction between law and was were where is that awarded V, in Article of the Idaho ished section in a he involved lawsuit before insured was Likewise, Idaho Rules of Constitution. justly amount due—then- or she received be “[t]here Procedure declare that shall Civil damages company. insurance —from to be known as ‘civil one form actiоn Here, timely paid the arbitration ” *5 “sue,” Clearly, the term action.’ I.R.C.P. 2. in a Bentleys were not involved award. The “action,” “filing the requires the term of like damages they their lawsuit before received court, complaint with which be a the Consequently, the extent from to WMA. complaint, petition ap as a or denominated apply § interpreting I.C. 41-1839 cases Granted, plication.” 3. I.R.C.P. file analogy, Bentleys are entitled to the “upon application a confirmation occurs of solely separate lawsuit for Nevertheless, § party.” I.C. not all 7-911. Furthermore, § fair 30- reading of I.C. applications qualify before a court an “ac no cause independent 1446 there is indicates entitling pursue tion” the claimant to an at attorney fees. the stat- of action for Under torney fee award. v. Farm Bureau Wolfe ute, a for consider- claimant is entitled to sue Co., 398, 405, 1168, 913 Ins. interest, paid, together ation with costs (1996) (“An application seeking 1175 the con filing a simply no basis fees. There is for firmation of an arbitration award is not when the lawsuit to collect pur action in court recover to fully paid principal amount claimed has been 41-1839.”). plain’ § suant to I.C. The The in another proceeding. and resolved meaning “sue” obvious of the term contem in a only statute an award оf fees addresses type plates proceeding some of adversarial court for violation. suit filed the an ISA with beyond a mere confirm an motion to arbitra agree tion award. We with the district court Also, persuaded by Bent- are not the we proceeding that an award confirmation is not equitable preclud- ley’s arguments they were awarding attorney appropriate vehicle for filing pre-arbitration from suit then- ed fees under ISA. agree- contract with WMA. Subsequent parties waiving rights to ment states the “are in court.” waiver is seek remedies But this above, 30-1446(1) § I.C. As indicated 30-1446(4) provides, § void I.C. because for a provides suit to recover consideration condition, “Any bind- stipulation provision or ..., costs, paid, “together interest with any security to ing person acquiring any attorneys’ reasonable fees....” The issue any this provision compliance waive a suit for supports whether this statute chapter any rule or hereunder order fees filed after arbitration award policy public against public void as and in fully assigning damages paid is a has been provision, interest.” Because impression of first for Idaho courts. matter prevent likely powerless would be refer this guidance, For Court pre-arbitration lawsuit 41-1839, filing a many a some from involving cases I.C. necessary in for analogous allows a if that order that claimant were what statute 396 obtain relief WMA for their imperfect form, con- in a affecting matter of paid.
sideration
the merits of the controversy.
I.C.
7-913.
An
be vacated for various rea-
Moreover, even if Bentley’s had filed suit
sons, including where the arbitrators exceed-
prior
arbitration,
their
for
ed
powers.
their
7-912.4 Judicial
attorney fees would have
unavailing
been
review of arbitrаtors’ decisions is “limited to
once the ease was submitted to arbitration.
an examination of the award to
if any
discern
provides
that
fees can
grounds
for relief stated in the Uni-
be awarded in an arbitration proceeding only
form Arbitration Act exist.” Bingham
if provided
parties’
agreement to
County
Com’n v. Interstate Elec.
Omnicare,
arbitrate. See Moore v.
Inc. 141
36, 42,
(1983).
1046,
Idaho
665 P.2d
Thus, there would be no basis for fees relat-
Again, even аssuming
Bentleys pre-
ed to the arbitration absent
an agree-
such
vailed on their ISA claims before the arbitra-
ment.
tors,
Bentleys’ argument
the award
should be modified to include their costs does
B. Costs
not fit into
grounds
the enumerated
denying
Also,
In
Bentleys’ request
panel’s
relief.
directive that
costs, the district
party
court stated
each
litigation
the matter of
must bear its own
properly
arbitrators,
costs was
before the
should not be оverturned because the ISA
who had
grants
the discretion to
deny
right
award or
a claimant the
to sue to recover
costs,
costs,
and the court could find no basis
but does not
state an award of costs is
portion
mandatory.
facts,
of the award. The Bent
On these
the arbitrators
leys
panel
assert
disregarded
may very
the manda
well have concluded that the Bent-
tory
ISA,
leys
award of costs under the
so
were not
entitled to recover costs be-
award should be
they
vacated as a manifest
cause
portion
disre
won such a small
of their
*6
gard of the
law.
claims
WMA. We conclude the dis-
trict
properly
court
refused to
the
law,
Under Idaho
may modify
a court
an
portion of the
addressing
award
costs.
(1)
award where
there
anwas
evident miscal-
figures
culation of
an
or
evident
in
mistake
Attorney
C.
fees in the district court
description
any
thе
item referred to in the
(2)
award;
the arbitrators
Bentleys
have awarded
The
seek fees and costs
upon a matter not submitted to them and the
incurred in
proceed
the award confirmation
may
award
be corrected
affecting
ings
without
the
subsequent
and in the
court action in
(3)
decision;
merits of the
or
pursuant
the award is
the
§
district court
to I.C.
7-914.5
557,
scope
3,
861,
pursuant
(1980),
4. The
of review for awards made
561 n.
617 P.2d
865 n. 3
we
(FAA),
to the Federal
Arbitration Act
9
scope
U.S.C.
1
note the
of review under the two
so
acts is
seq., parallels
et
gov-
the review of arbitrations
similar as to constitute a distinction
without
Act,
by
erned
Idaho's Uniform Arbitration
parties
difference. Because the
did not raise the
seq.
likely
7-901 et
apply
The FAA would
applicability
issue of the
of the FAAto the district
properly
this arbitration —had
court,
the issue been
opinion
our
focuses on Idaho law. Seе
by
raised
it involves inter-
State,
573, 580,
895,
Row v.
135 Idaho
21 P.3d
—because
parties agreed
state commerce and because the
(2001) (stating appellate
902
court will not con-
to be bound
NASD rules.
Reece
See
v. U.S.
appeal).
sider issues raised for the first time on
Inc.,
487, 490,
Bancorp Piper Jaffray,
139 Idaho
1088,
(2003) (noting
pur-
80 P.3d
1091
for the
provides
Idaho Code section 7-914
as follows:
FAA,
poses of the
securities transactions involve
Upon
granting
сommerce).
FAA,
confirming,
of an order
interstate
Under the
award,
modifying
correcting
judgment
or
an
or
may be vacated if it reflects the arbitrator's
law,”
conformity
decree shall be entered in
disregard
there-
requires
"manifest
of the
which
"(1)
judgment
with and be enforced as
other
governing legal
arbitrators knew of the
application
principle
decree. Costs of the
apply
ignored
and
and of the
refused to
it or
thereto,
proceedings subsequent
altogether,
governing
and
and disburse-
law was well
defined,
explicit,
clearly applicable.”
ments
be
awarded
the court.
Moore
Omnicare, Inc.,
809, 819,
attorney
v.
The term
141 Idaho
118 P.3d
"disbursements” includes
141,
(2005);
423, 429-30,
Corp.,
9 U.S.C.
10. Like the Court
Driver v. SI
139 Idaho
80
1024,
(2003).
in Hecla Min. Co. v. Bunker Hill
101 Idaho
awards.
they
of arbitration
We
no
of review
Bentleys
The
concede
made
appeal
costs on
to WMA.
attorney
in the award сonfirmation
for
They
proceedings.
they
claim
“referenced”
SCHROEDER, Justice
Chief Justice
action,
subsequent
§ 7-914 in the
court
concur.
BURDICK
EISMANN
Justice
support
do not
to the record to
but
cite
Bentleys
appear
It
not
JONES,
claim.
does
concurring.
specially
Justice
sought attorney fees under
in either
the ISA
opinion, except
I
the Court’s
concur
proceedings
court.
before the district
III.D for
ground stated
Section
the seсond
Generally,
appeal
limited to
“review on
is
attorney
appeal.
denying
on
The Court
.fees
before
tribunal
those issues raised
the lower
appeal
fees on
correctly denied
...
court
decide
appellate
will not
they
not
Bentleys
ground
on
are
appeal.”
presented
issues
first time
opinion
prevailing party. The
should
County Bd.
ground
ser
v. Kootenai
it at that. The additional
have left
Bal
Com’rs,
6,
dеnying attorney
fees—that
110 Idaho
recovery
acting
pro
litigant
as a
se
Bentleys
prop
Because the
failed
unnecessary
fees —is
determina-
erly raise
the issue of
to the district court
disagree with the second
tion of the issue. I
incurred at
the district
ground.
level,
Bentleys
we conclude the
should
pro
Indiviso,
to those
receive fees and
related
opinion
The
cites Bowles
Pro
(1999),
ceedings.
Inc.,
371,
indicated that se do they make for time devote to IV. disbursements CONCLUSION However, litigation. ignores their own denying The district court’s decision lawyer’s that “a time advice is the fact Bentleys’ request for fees in the award con- trade,” put aptly as so that his stock firmation that proceeding affirmed because great lawyer, Lincoln. Abraham When qualify contem- proceeding does as a suit lawyer legal to a action of his devotes time plated by the ISA. We likewise affirm the account, own, either to to defend collect Bentleys may district court’s conclusion the action, otherwise, attorney may legal not seek an fee under the award funds, not make a but disbursement in post-arbitration ISA a for fees. mer does make a disbursement of Also, agree we with the court there is district that have been else chandise could sold modifying where, no basis with re- attorney prevails, for his If the i.e. time. statutory scope language is no of the spect to costs under court’s limited there provisions precludes fee an award of attorney. Appeals The Court of
in Swanson & Setzke went even so far as to
state that would make no if difference
entity seeking professional fees was a service
corporation, opposed to the individual law-
yer in corporation, thereby permitting a
de piercing professional corpora- facto apply public
tion veil in policy. order its holding
That public policy is bad and should perpetuated by
not be this Court.
In re Idaho Code 1-2218. COUNTY,
TWIN FALLS Petitioner-
Respondent, FILER,
CITIES OF AND TWIN FALLS
Idaho; Kimberly Hansen, Cities of Wakefield, Falls,
Idaho; City Buhl, Idaho, Respon Wonderlich & Twin Filer, appellants dents-Appellants. Cities of Twin Falls and argued. Idaho. Fritz A. Wonderlich Nos. 30889-30891. Office, Falls, ap- Hollifield Law Twin Hanson, pellants Kimberly Cities of Ida- Idaho, Supreme Court of argued. hо. R. William Hollifield Falls, Twin November 2005 Term. Janis, Chtd., Hepworth, Lezamiz & Twin 5,Oct. Falls, Buhl, City appellant Idaho. Wil- Nungester L. appeared. liam Loebs, County Grant P. Twin Falls Prose- *8 Falls, Attorney, cuting respondent. Twin argued. Jennifer R. Gose-Eells TROUT, Justice. County
This case arose after Twin Falls Falls, (County) Kim- asked the cities of Twin (Cities) Hansen, Filer, berly, and Buhl County their contributions to the increase County’s proportionate the Cities’ use of the judges courthouse facilities. The district or- pay portion of the costs dered the Cities to operating magistrate’s division located County’s Because we within the courthouse.