*1 P.2d NAMPA, municipal The CITY OF
corporation, Plaintiff-Appellant, McGEE, Jr.,
Thomas J. McGee Air d/b/a Co.,
Conditioning Heating and Co., Inc.,
McKellip Engineering an Ida Defendants, corporation,
ho Co.,
McKellip Engineering Inc., an Idaho
corporation, Defendant-Respondent. NAMPA, municipal CITY OF
corporation, Plaintiff-Respondent, McGEE, Jr.,
Thomas Air d/b/a McGee
Conditioning Heating Co., Co., Inc.,
McKellip Engineering Ida corporation, Defendants,
ho McGee, Jr.,
Thomas d/b/a McGee Air Co.,
Conditioning Heating
Defendant-Appellant.
Nos. 13932.
Supreme Court of Idaho.
Dec. 1982. Gannon,
Stephen W. Beane and John L. Boise, City Nampa. for Caldwell, Rettig, H.W. for Thomas McGee Jr. Julian, Quane
Jeremiah A. and Brian K. Boise, McKellip Engineering for Co. SHEPARD, Justice. appeals
These are consolidated
from
judgments in which the sole issue is the
fees to the
trial court’s award
We
prevailing parties.
affirm.
City
Nampa
Plaintiff
negligence against
de-
principal action
damages
McKellip
fendants McGee
Follow-
resulting
explosion.
from a boiler
*2
trial,
ing
a verdict was
finding
awarding attorney’s
pursuant
returned
fees
to I.C.
negligent,
McGee 70%
City
Nampa
of
30%
12-121,
misinter-
in that
court
§
negligent,
and McKellip
negligent.
0%
preted the statute and concluded that he
Thereafter, counsel for
of
City Nampa filed
required
had no discretion but was
to award
meticulously detailed
accompany-
affidavits
prevailing parties.
fees to the
attorney’s
ing
fees,
his motion for costs and attorney
in which
novelty
was set forth the
12-121
provides
pertinent
I.C. §
difficulty of the questions presented in the
part:
judge may
“the
award reasonable
litigation, prevailing attorney
charges,
fees
attorney’s
prevailing
parties
fees to the
...
”
contingent
reasonableness of a
fee
City Nampa
....
and McGee seize
$10,650,
charge of
and concluded that a
upon
lengthy,
one small
meticu
attorney’s
reasonable
fee to be awarded to
of the trial
lous and well-reasoned decision
City
of Nampa “should be the sum of
court, i.e.,
“when the
were consider
* * * ($9,850.00), pursuant
12-
I.C. §
defend,
this
ing
bring,
whether to
or settle
Thereafter,
121.”
(emphasis
supplied)
case,
the state of the law was that
McGee filed its motion to disallow numer-
entitled
an award
prevailing party was
ous items of costs and the claimed attor-
argued
such
attorney’s
fees.”
is
that
ney’s
thereon,
hearing
fees. After
the trial
judge
the trial
indicates that he
language of
he,
court issued a decision in
in an
which
discretion,
fail
failed to exercise
that such
fashion,
equally meticulous
considered and
discretion,
was,
effect,
ure
an abuse of
ruled
all of the contested items of
disa
and therefore reversible error. We
disallowing
costs
or reducing certain of the
gree.
City
contested costs claimed
by both
Krasselt,
In
96 Idaho
Lisher
Nampa
McKellip.
The ultimate deci-
where
held that
$7,350
sion awarded Nampa against McGee
discretionary,
decision was
judge’s
a trial
(of
$9,850)
its claimed
fees
attorney’s
show
we will not set it aside absent a clear
$2,923
$10,273.
costs,
for a total of
also,
of discretion. See
Clear
ing of abuse
$10,-
McKellip
against Nampa
was awarded
(1963).
Marvin,
as a hands-off resolution of the issue sub-
(2)
subparagraph
“Without doubt
mitted,
words,
or in other
the majority will
54(e) requires findings
and that re-
choose to leave such matters to the district
quirement
sparse
is not fulfilled
Yet,
judges.
Ias have from time to
statement utilized
the trial court
in
out,
time pointed
legislature’s
under the
Court, however,
making the award. The
statute
such matters were for district
54(e)
applica-
declares that Rule
was not
judges until the Court involved
itself
ble, although promulgated. The Court
promulgation of rules which were not at all
notwithstanding
does this
able counsel’s
rules
procedure
but substantive amend-
representation
arguing
that the
ments to the statute.
I wrote as to this
agreed
outright?)
costs had
(implicitly?
unconstitutional encroachment “for
last
54(e)
apply
that Rule
would
to the re-
Payne
time” in
v. Foley, 102 Idaho
quests
fees. The Court
and therein
added
pays
appellant’s
also
little heed to
state-
Judge
well-stated view of
Cunningham
language
the Fifth Judicial
ment
District that
the Court’s
But,
ruling
nothing
54(e) provisions.
is
tracks Rule
clearly
less than an amendment to
(No
Appellants correctly point
12-121.
that is not all.
district
language
whom I have
out
trial court’s
clearly
conversed has viewed it
that the
I
differently.)
Payne
language
borrow from
tracks the
of Minich v. Gem
911, 918,
Developers, Inc.,
language
State
that time
the basis of the
P.2d
1085 (1979) (“brought
Minich,
...
In
supra.
other
contained
unreasonably
foundation”).
words,
we take
position
“Minich,
course,
54(e)(1) definitely
ap-
does not
initiated the award
to this
However
lan-
ply
action.
(see
supposed
dissents of Donaldson and
very
case
well
guage in the Minich
Bistline, JJ., Minich)
auspices of I.C.
Irrespective
could.
of what
Court
beyond cavil that
regard
this briefer
decides
also at that
applica-
time saddled
general
that the
stan-
frankly believes
tion of the statute with
re-
Court-made
virtually
to be
identi-
applied
dards
”
finements:
(Emphasis
and in origi-
cal’
added
“
is discre-
statutory power
‘Since
nal.)
tionary,
fees will not
Payne
Footnote 1 to
Court’s
right.
awarded as matter of
Nor will
P.2d at
102 Idaho at
Foley,
attorney fees be
where the
awarded
example
meandering
is an
the Court’s
*4
losing
in
party
appeal
good
the
contemporaneous
area confused
the
by
an
faith and where a
issue of law
genuine
delayed
of Minich
a
effective
case law
and
was presented.
In normal circumstanc-
covering
a
rule
the
promulgated
date of
es, attorney fees
will
be awarded
territory.
compares
The footnote
same
abiding
court is
when this
left with the
Foley
Realty
American
v.
Payne v.
to All
brought,
appeal
belief that
the
was
13323
Sweet,
Nos.
(Sup.Ct.
Idaho
unrea-
pursued
frivolously,
or defended
1981;
10,
13135,
September
opinion issued
sonably or
foundation.
See
without
rehearing)
on
for
pending
petition
54(d)(1).’
Idaho at
591
postured as
similarly
the two
finds
cases
P.2d at 1085.
rule,
the
non-effective date
to the
suggest
opinion
“The
did not in the least
the dis-
reverses
because
Payne
but
54(e)
inapplicability
by
the
reason
(also
Fifth Judicial
trict
subparagraph
setting
of its
the date of
as did
District)
Judge
believed
apparently
effectiveness. Limited research does not
imprimatur
Cunningham
judicial
that
the
54(e)
up
when Rule
showed
disclose
first
the
by
12-121
Mi-
on
placed
pocket parts
to the 1958 volume of
obedience.
required
nich court
lower
rules,’
Idaho’s ‘federal
but I would doubt
being of a like
judges
lawyers
With
attorney’s
that it was found therein when
the
view,
comprehend why
it
is difficult
being
by
fees were
considered
the trial
contrary—
so
being
as
Court comes across
Minich, however,
May
court in
of 1979.
consistent
certainly not in a manner
reported
a
bywas
then
case.
a
can be
jurisprudence
desire that
with
influ-
may,
“Be that as
I am more
virtue.
can be a
Consistency
science.
open
forthright
the
by
position
enced
recently
was confronted
More
the Court
City,
counsel for the
who seem
by
taken
sole issue on
the
with another case where
comprehend
subparagraph
that
v.
Conner
appeal
54(e),
ap-
while specifically
declared
Dake,
653 P.2d
actions
March
plicable to
filed after
held
one-page opinion
The Court
a
prohibition
does not
declare
grounds that
the
appellant on the
against
applicability
pending
its
to cases
against
objection in
timely
not
recogniz-
record did
show
Accordingly,
that date.
before
required by
law
trial court
Court’s
ing
by
that Rules
made
as
rules,
by promulgation,
City’s
notwithstanding
as
that
clerk’s
as well
own
with
furnishes
Court
much
indication
cause
transcript gave enough
brief
good advice:
justice
suggest
needed
that counsel
dissenting
“
stipulated
procedure
have
on a
might
the other
same stan-
‘On
hand [the]
paperwork
54(e)(1) may
thereby avoided the burdensome
set forth in Rule
dards as
petition
the rule
A
for
apply
requires.
filed
to which
very well
actions
Back
rehearing
to obvious error.
shut-eyed
was filed and
remains
summarily denied
opinion, notwithstanding
all,
largely responsible
majority
of it
the Court
litiga-
that a
opinion by
dissenting justice
nonproductive
second
such
the increase of
dispa-
disclosed that the district court clerk’s
for such
tion,
solely responsible
tran-
script
today,
had been
basis of
as
result achieved
rate results. The
—which
opinion
Court’s
not
Dake,
the entire
cata-
may properly be
with Conner v.
—was
record,
original appeal
and that
file
Ripling-
& Roberts
logued
Sherwood
office
Clerk
er,
650 P.2d
found
augmentation
to contain an
scales
justice
also the
where
only.
augmentation,
record —one copy
The
just tipped
tipped over
zealous
but
course,
was the all-important detailed
of the Court’s rules
application
erroneous
findings
fact and
conclusions
law
procedure.
required
issue of
However,
Justice,
HUNTLEY,
dissenting.
Court’s rule.
my
view the
same were not only inadequate,
predi-
but
affirms the
majority
cated in
on the same erroneous miscon-
concluding
ception of law which led
to reversal
abuse
discretion. The
trial court did not
its
Payne
Dake,
Foley.
See Conner v.
supra
premised
majority
entire
J.,
(Bistline,
on Denial of Petition for
assumption
the trial court understood
Rehearing).
(counsel
The counsel-prepared
discretion under I.C.
it could exercise
Dake,
who was awarded fees at Con-
expense) findings
ner’s
also contained the
court,
its memo-
The trial
as disclosed
recitation
counsel had indeed so stipu-
*5
decision,
no
apparently felt it had
randum
lated
the dissenting justice
as
had surmised.
to
discretion and was mandated
statute
While one would believe that counsel could
“prevailing
fees
party,”
to the
so stipulate and that a stipulation would
reading in part,
trial court’s decision
precedence
take
over
proce-
mere rules of
considering
“When the
dure, apparently the lesson
be
to
learned
bring, defend or settle this
whether to
from
contrary.
Conner v. Dake is
to
case, the state of the law was that
Being made full-well informed “that Coun-
to
prevailing party
entitled
an award
sel
stipulated
heretofore had
in the
should be held
attorneys’
They
event the Court determined to award attor-
to have known
law and to have made
ney
party
fees
either
the Court would
it.”
case conduct decisions with relation to
determine such reasonable fee without the
(Emphasis added.)
witnesses,”
necessity
calling
the Court
cling
nevertheless continued to
to an opin- The
of the
that time was
actual state
law at
ion
which
based
technical non-
dis-
attorney
fees rested in the sound
compliance
rules, leaving
with its
the Con-
I.C.
pursuant
cretion of the trial court
ners
having
had
resolution on
Developers,
12-121. Minich Gem State
§
appeal,
the merits of their
deciding
con-
99 Idaho
(1981); Rehn, White v. (1982); Ethington, Anderson v. 651 P.2d does, argue,
To as the majority
paragraph involved one of a ignores
meticulous memorandum decision fact that it is only portion dealing judge’s with the trial
understanding of the state of the law
the issue. deci- appears from the memorandum
sion this case that the trial court deter- discretion, rather
mined that had no but as a compelled
felt to award right parties.
matter of prevailing
Therefore, the district judgment of should be case re-
court vacated and the
manded to the district for a re-deter- fees, to its pursuant
mination of attorney issue
right to exercise its discretion on the
of whether need be attorney fees
awarded the prevailing party. *6 FISHER, Plaintiff-Respondent,
Francis
Cross-Appellant, FISHER, Defendant-Appellant,
Mervin
Cross-Respondent.
No. 13202.
Supreme Court of Idaho.
Dec. 1982.