*1 70 The district court’s amended separate memoran- just estate of party one this—in dum decision and appeal, order on filed case the husband. 11, 1988, February is affirmed. Costs to And, Kathryn’s counsel appropriately
respondent. No attorney fees.
points out in their brief to this Court:
It is well established in
jurisdiction
this
JOHNSON,
McDEVITT,
BOYLE and
efforts,
community
labor,
when
in-
JJ., concur.
dustry or funds enhance the value of
BISTLINE, Justice, dissenting.
separate property, such enhancement is
community property for
I
which the com-
agree
magistrate’s
with the
determina-
munity is entitled to
reimbursement.
tion that Kathryn Wolford was entitled to
the decision of Gapsch
Gapsch, 76
adjudicated
v.
portion
post-marital
44,
(1954),
Idaho
factors when it awarded some of the in
creased value in Commtek stock to Ka determination,
thryn. Without such a appears
there
supplant
be no reason for
ing the trial court’s decision with a decision
Appellate courts sit to ascertain the ex- error, prejudicial istence of but that does encompass rendering of de novo CHRISTENSEN, on the merits decisions without first estab- Defendant-Respondent, lishing error. The record in case am- Cross-Appellant. ply sustains a conclusion that a most thor- No. 17678. oughly prepared ante-nuptial agreement preserve drawn so as to to each Supreme Court of Idaho. estate, pre-marital his/her increase Jan. 1990. therein —if it was attributable to the owner agreement anticipate did not thereof. community effort would result increase in the
substantial value of plan fringe paid. pension
CommTek benefits *2 Souza,
Whittier, Murray McDougall, & Clark, Ctd., Pocatello, appellants. John Souza, argued. Blackfoot, Kerr, Jr., for re- M.
Robert spondent.
BOYLE, Justice. Faye Dur-
Plaintiffs-appellants, Orvil and Sellers, (hereafter Kenneth rant and W. appeal Sellers”) bring this “Durrant and district court challenging an order awarding attorney fees and costs to defen- olously, unreasonably or without founda- defendant-respondent, tion, dant. The cross-ap- and Christensen was not entitled to an pellant, Christensen, (hereafter award of to I.C. “Christensen”) cross-appeals on issue 12-121. of denial of certain costs and All fees. appealed All the district parties are Bingham residents of County, court’s decision on fees and Idaho. *3 costs issues.
Durrant
and Sellers are landowners
irrigation
whose
I.
water crosses property
by L
owned
& R Christensen Investments
Prevailing Party
of
—Award
Limited. They
complaint against
filed a
Costs and Fees.
seeking
Christensen
adjudication
an
of the
argu
Durrant and
raise
Sellers
two
respective parties’
rights
per-
water
and a
First,
appeal.
they
ments on
contend that
restraining
prohibiting
manent
order
Chris-
prevailing party,
Christensen
not the
interfering
tensen from
with their diversion
second,
proceedings
that
amounted to
answer,
and use of water.
In her
Christen-
adjudication
an
on the merits and therefore
sen asserted that she was not the owner of
Christensen is not entitled to an
award
property,
allegations,
denied all
and the
costs and fees.
parties stipulated
entry
temporary
of a
54(d)(1)provides:
I.R.C.P.
restraining order to maintain the status
quo.
(A)
Except
Parties Entitled to Costs.
rules,
by
when otherwise limited
these
Thereafter,
produced
a certi-
costs shall be allowed as a matter of
copy
quitclaim
revealing
fied
of a
deed
that
right
prevailing
parties,
party
property
question
title to the
in
real
by
unless otherwise ordered
the court.
by L
held
& R Christensen Investments
(B) Prevailing Party.
determining
In
Limited and not
Christensen. This
party
prevailing
an
is a
restraining
being
resulted in the
order
va-
costs,
party and entitled to
the trial
complaint
cated and the
was dismissed
shall
con-
court
in its sound discretion
prejudice.
without
judgment
final
or result of the
sider the
Christensen’s memorandum costs
sought by
action in relation to the relief
$4,612.50
requested
attorney fees
a total of
respective parties,
(Emphasis
...
in
attorney
fees and
costs. The
$264.65
added.)
$1,000.00
district court awarded her
attor-
provides,
As the above rule
determina-
ney
dissolving
for her efforts in
fees
prevailing party
purposes
tion of the
order,
restraining
limited
cost
her
an award of costs is committed to the
filing
cop-
award to
fee and
$32.00
sound discretion of the trial court. Gilbert
of court documents. The district court
ies
Caldwell,
112 Idaho
City
denied Christensen’s other costs because
(Ct.App.1987). The
is on
required
P.2d 355
burden
they
by
not itemized as
I.R.
were
disputing
to show an
expenses
party
in-
the award
and the additional
C.P.
discretion,
necessary in
of this
Anderson v.
curred
her defense
abuse
were
658,
pleading, paper motion or other is rule, light foregoing sanctions in of the authori- signed in violation this the of court, plaintiffs determine the upon upon motion or its initia- ties and whether own tive, proper investigation upon impose upon person shall the who made a reason- it, both, signed represented party, or inquiry. Accordingly, we remand for able sanction, appropriate may an which in- and reconsideration the issue of Durrant pay clude an order to to the other compliance 11 Sellers’ with amended Rule parties or the amount of the reasonable possible imposition to and the of sanctions expenses incurred of the because be determined after further evaluation of motion, pleading, paper, or of the other by the facts the district court. including attorney’s a reasonable fee. added.) (Emphasis III. regarding Recent federal court decisions Attorney Appeal. Fees on 11 faith” Fed.R.Civ.P. hold that the “bad Rather, longer applicable. is no requested standard an has award Christensen apply objective courts an stan- the federal attorney on Durrant and of fees Sellers’ circum- of “reasonableness under the 41(a) dard provided by appeal direct I.A.R. City Angeles, Zaldivar v. Los stances”. ap 12-121. and I.C. Such award is of (9th Cir.1986); Rodgers 829 v. 780 F.2d abiding propriate when we are left with an Serv., Inc., 771 F.2d Towing Lincoln appeal brought or that the has been belief Cir.1985); (7th Eastway Corp. Constr. 205 frivolously, unreasonably, or defended (2d York, 762 F.2d City New without foundation. Minich v. Gem State Cir.1985). Inc., 911, 591 P.2d Developers, 99 Idaho (1979). opinion We are of the that the Zaldivar, Ninth the Circuit Court appeal by and Sellers falls direct Durrant subjective bad faith is Appeals held appel The the Minich standard. within proved to be under Rule not an element Sellers, lants, presented plead- if the Durrant and shall be assessed but sanctions only actually she was persuasive argument the district What contended no court, fees, in granting attorney its not her in abused the title record was vested law, misapplied name, we equivalent discretion the not which is the aver- attorney appeal on to Christen- award fees This not ring that was not an owner. she pro- in to be determined as sen an amount further dis- insignificant problem will be 41(d). by vided I.A.R. attorney fees award the $1000 cussed after questioned. award was is further That attorney district court’s award in- legal fees on Christensen’s bottomed is affirmed. fees and costs to Christensen dissolution obtaining curred in to for further We remand the district court or- temporary restraining above-mentioned proceedings on the issue of Durrant and 11 in fil- der. compliance with I.R.C.P. Sellers’
ing Christensen. Costs Durrant, spouse, his and Kenneth Orville appeal on to Christensen. fees plaintiffs; objective their Sellers are they"considered to was to obtain what be BAKES, C.J., and JOHNSON and irrigation which fair of the water share JJ., McDEVTTT, concur. property. to It was the was allocated their BISTLINE, Justice, dissenting. requested that quo the status plaintiffs who being join place My during reasons for be left unable of water allocation Al- opinion easily are stated. Court’s ensuing period litigation. offer- Without well, though opinion reads there are plaintiffs’ request ing contest presented certain facts which should order, it temporary restraining was coming a fair given full consideration stipu- who through counsel appellate determination. A district court’s order, entry requested lated judgment not be a reversal should dealt order entered the trial court’s absolutely required. is There unless such Supposedly stipulation. only aspect of case in one stipulation pur- the order were Judge may astray, led Herndon have been maintaining peace posed between toward awarding which is $1000 neighboring while evidence Nevertheless, al- Christensen. presented and the court resolved law was though today’s amount standards dispute. *6 the ordinarily appear not and would exorbitant However, Chris- it turned out otherwise. recompense proper to be amount to her a very to to set aside order tensen moved being probably charged by for she is what Conceded, stipulated! had she had which attorney, any justi- her award cannot be stipulated, not she could have moved she so award, monetary fied. Other than for However, of principles to have it vacated. Judge disposition it is clear that Herndon’s precluded stipulat- law should have her from presented of the to him was substan- issues ing entry to the of the maintaining order opinion, especially the tiated. This Court’s water, quo distribution of the status presents paragraph, second an inconsisten- moving turning and set and then around to justice not cy which the interests of should entry stipu- Presumably of the it aside. opin- is directed to the tolerate. Attention agreement resulted from an lated order that, “in accurately it is stated ion wherein litigation during pendency of the answer, that she her Christensen asserted from a court parties would benefit both property, and the was not the owner of interfer- prevented each from order which temporary a stipulated entry to of irrigation while ing flow of water with the restraining order to maintain status pending. It the action was was True, ownership, did disclaim quo.” she order owner, stipulation that the court’s true, to their al- equally she was an but may be more classic There a As was entered. though perhaps not the sole owner.1 estop- application judicial of example proper party defendant. of such she was a by saying only ingeniously that "Chris- factual circumstance opinion somewhat 1. The Court’s property." of coming grips not the owner wholly to with this actual tensen was avoids pel, well, equitable estoppel and/or having but input, times of benefit advice readily brought memory. analysis justices. it is not and from four other aspects Some other of the record which Moreover, has it to be remembered that review, apparently we bothersome to me at only was all times the alone, aggravation constitute additional named apparent defendant. As an over course justice here has tak- owner posses- of the entire title (being in en. learns forty years One after some of sion) definitely part a of owner participation law, most of which was property, ostensibly she had the consent of spent practitioner, as a somewhat her co-owners2 order to into the enter circumspect. Earlier herein mention was stipulation. Likewise, she later would have apparent authority made of Christensen’s had to obtain the consent of her co-owners enter stipulation both into the and to authorizing her move to the dis- vacate its authority later seek dissolution. Such plain- trict court order which she and the apparently upon was her by conferred her agreed. tiffs Forgetting had the mo- for of the property, co-owners title to which principles equitable judicial ment the upon apparently conferred supposedly estoppel, resorting vernacular, to the title to property, her co-owners of the her good there is suggest reason to what we partnership, in the name which was see pure, here is a case of unadulterated observing on the co-owners Chris- style bushwhacking. Today’s western ma- property (property which is tensen’s locat- jority such countenances conduct. Were it plaintiffs’ adjacent property), ed having not for the district court’s been Christensen, along with were the witnesses games- used as instrumentality of this plaintiffs. who testified That manship, might such conduct be tolerated. question: raised the behalf On whose did But, circumstances, under these I must re- they testify? so The record the tran- grettably opin- from the majority’s dissent scripts hearing are not voluminous. My regret being is not because of ion. moderately perusal On close thereof it is dissent, obliged to but rather flows from informative, surprising, to but not ascer- my inability to dissuade four members of tain cost therefrom Christensen’s bill placing (judicial) this Court from the Good expenses being included as witness Stamp Housekeeping Approval on the charged against plaintiffs, the follow- clearly Powell, $61.20; laid It days, scenario so before us. does ing: Neal three at Frasure, $40.30; highly days, the least at trouble me that a Charles two Bradford, at respected judge Brady days, three $61.20. district was misled into allowing attorney fees to Christensen. The record, an page appeal At 62 of the item judges district have a load formidable case April interest for considerable listed They cope act not in with with. concert entry chargeable is the 5.9 hours one or rath- judges, more other district but Bradford, conferring DeAnn with tele- *7 er The individually. time constraints phone Brady, to a “conference call and placed upon by this adminis- them Court’s client, Powell, research.” with Frasure and also 13, trative director constitute hazard a for April On an item is entered 1.5 hours, portion which has to considered. The individual a of which included “con- a however, client, comprise Court, justices who with and Powell.” ference Bradford 14, 0.4 advantage April charge at a of hours was enjoy the luxurious of all On entity supposedly ownership property to vest an which the was difficult in 2. The deed to exist, yet have been im- and it would transferred L & R Christensen Investments does not plaintiffs Partnership approximately years possible of the exist- to know Limited two partnership transpired. the of its exist- Code ence of if no record before these events Idaho Moreover, the documents at the on file. 53-213 mandates of the certificate ence was Ruby secretary secretary partnership of of state’s office list Christen- of with the the limited However, general secretary partner & R Christensen the has no sen Investments, in L state. state as the Christensen, Mary with Kit C. Sell- Christensen Investments before record of L & R as, ers, 16, 1988, DeAnn C. Bradford listed the limited a full four months the June after very Appendix partners. See A. complaint action was filed. It is in this
77 all of the action. With On the court to dismiss telephone for a call to Sousa. entered 15, properties in April entry 9.0 hours which owners both was the interested the time, action, with properly included court trial a conference in the the court appearing A item post-trial the client and witnesses. disregarded technicality the should have charge, was a 1.0 hour which included party3 was a named only Christensen that Brady call and conference with Fra- with as the merits proceeded to determine Bradford, Brady It sure. seems clear that rights. quantity of the water the use and Frasure, although Powell, and Charles Neal holds large body of law which There is a “witnesses”, as involved as were called a finan parties who have that non-named and, accordingly, Christensen’s co-owners property involved piece in a cial interest par- actuality in unnamed defendant were in participate the litigation, and who participating litigation. ap- ties It brought against one of defense of pears likely counsel himself that defense See, purposes. all are in court for them parties, did not consider them as even LaCompagnie des Sucr v. e.g., Souffront obviously co-own- though they were most Rico, 475, 217 30 S.Ct. Porto U.S. eries de ers, desig- simply they were so because Bros., (1910); v. 54 846 Inc. L.Ed. complaint. nated in the (5th Co., 428 261 F.2d Mfg. Grace W.E. par Cir.1958). are not named Persons who plaintiffs’ suit was beyond It is cavil can nevertheless be bound in an action ties rights as brought settle water between litigated in the issues determination pos- they property the which owned they or substantial action if controlled adjacent prop- of the and the owners sessed litiga of the ly participated the control of the involved It clear that all erty. defendants, they opportunity to control plaintiffs and had parties, both tion litigation participated presentation into court and all of a to the came U.S., defendants only did of the Not all v. trial. did not do so. Montana but proceedings participate in the courtroom 59 L.Ed.2d 99 S.Ct. U.S. Herndon, they partici- all Judge but Reuter, before (1979); Farm Fire & Cas. State pretrial with de- pated in the conferences (1985). In the P.2d 236 299 Or. non-party de- fense counsel. Whether case, if the suit had been instant even Ruby reimbursed C. fendants seemingly brought against partnership, directly paid charged fees directly or Christensen, fallen to would have it counsel, Ac- is of little moment. defense it. general to defend only partner, as the not the sole Christensen was cepting that academic, for other than All of accepting that property, and owner of the for hold good reason providing additional part whatever owned her “witnesses” were not entitled defendants ing that the seeing own, and as she did not property Judge Hern any award of fees. prop- meaningless fact title were not enti recognize they did don placed in the “witnesses” erty was not on the main prevailing tled to Christensen, name placed rather but to obtain a dismissal action—which it should have partnership, of an unknown delaying tactics the action. attorney that to Christensen’s been obvious worked, put off a decision defendants were collectively, persons those together, rights regarding the water on the merits to which property ones who owned properties' involved. appurtenant They appurtenant. rights were water adjudicated. nothing was Accordingly, conferring defense counsel with all were of action would preferred course A more be taken. action should course what *8 defendants to un-named have been parties and in as named voluntarily come open and in the come out than Rather Who, might it be issues resolved. the have the defen- meaningful adjudication, gain a from asked, of substance anything asking gained delaying tactic the dants chose gave affairs. some defense counsel that 3. This assumes (cid:127) true state of court as the intimation proceeding (9th court which Cir.1986). consumed Borrowing the an expression time, district time court’s that could which Shepard Justice appropriate used on put been resolving occasions, better other passing strange law- it comes as that suits? Apparently, only Christensen, the majority is of Judge who unaware Hern- did action, obtain don’s plaintiffs’ $1000 as fees not assessment of the for gaining action, dismissal the i.e. “that was pursued frivolously, main it not but solely unreasonably, obtaining for or tempo- vacation of the without foundation.” Tr. rary already 25. We restraining spe- have the trial court’s order. cific finding that plaintiffs the not were The district court percent was 100 cor- guilty 11, violating sanctity the of Rule rect, in view of these unusual circumstanc- as that rule was interpreted in Zaldivar. es, in awarding any attorney fees to seaboard, Reaching the the defendants, eastern unnamed, the named or for majority produces holding then obtaining underlying dismissal of the ac- Eastway case from the Circuit Second Nevertheless, Judge tion. Herndon be- Appeals Court of support its view it ing handed an undeserved reversal because attorney’s is an duty to conduct a reason- of majority’s perception wrong that the prior inquiry able an action. The applied rule denying was in his order attor- majority today attaches that onto clause ney taking fees to the defendants. On Judge Rule and directs Herndon to re- litigation, reasonable view of this no error consider his denial of sanctions. The ma- regard. was committed in that jority giving any thought eschew whatever majority’s The directions to the district thereby to the rather obvious fact that proceedings court for further on remand dictating applica- court is that a retroactive are by not substantiated the record. Like- tion be of today’s adoption made of East- wise, by major- the conclusions reached way. mischief, Compounding that the ma- ity reviewing are not In sustained. Chris- jority’s direction on remand includes recon- request tensen’s fees under light sideration in and both Zaldivar 54(b) 12-121, Rule 12-120, and I.C. §§ Eastway, Judge spe- whereas Herndon has under Rule that the Court states cifically already applied rule of Zaldi- plain- district court determined that neither By implication Judge var. Herndon was attorney proceeded tiffs nor their “bad existing aware of state facts known faith,” practically those same words plaintiffs to counsel for the when counsel spoken Judge were Herndon at oral action, i.e., [plaintiffs] “they filed the want- argument on Christensen’s motion for an they thought their ed their water and However, award of fees. Tr. 24. seconds neighbor had it.” Tr. 25. [Christensen] Judge later Herndon stated his belief Therefore, no reason to doubt there is plaintiffs pursue did not the case “friv- Judge application Herndon’s of the Zaldi- olously plainly or bad nor so falla- faith var standard. it cious as to frivolous or that was judges If the association of district were unreasonably, or frivolously, without foun- opinion, Court’s it would not review the probably prose- I think was dation ... it great surprise come as a were the associa- far good cuted in faith as as the opinion with- tion to rule the fallacious and They were concerned. wanted their water es- out foundation. Such an would thought they neigh- their the ditch expected pecially be from association bor had it.” Tr. 25. regard to the failure to majority’s with majority, what trial bench plaintiffs’ had no rea- consider that counsel may perceive improvident to be an bar well suspect plaintiffs were mis- son to recently apply negligent rush to amended and in their belief and taken or re-interpreted understanding neighbor, Rule cites to the Zaldi- Chris- their holding tensen, property Rule 11 on var instructs that the owner of the prop- pleading “sanctions shall be assessed if the resident on which which she was frivolous, unreasonable, erty some time. legally with- she had resided for fact, agreement partnership because out factual foundation.” F.2d *9 investigator, hiring private of a secretary filed with had not been judicial fine being assessed pain of on complaint, an filing of the prior to the state Rule 11. provisions under the inquiry would extremely diligent Clearly, it was yielded same result. Finally, ownership, and Christen- there no enchantment to behold apparent
case of in the Court's assessment of proper party defendant inasmuch sen awas appeal against ownership plaintiffs’ attorney in- on as continued to have she notwithstanding appealing solely challenge the award of property, terest attorneys 65(c). Only by fees under Rule entity created for in an placing of title sustaining that Most, if not award of fees the trial holding title. purpose sole majority court is the able enter addi- inconceivable attorneys find it all should tional, unjustified but For sanction. all of entitled attorney henceforth that an above, respectfully the reasons I dissent. his facts from client obtain A APPENDIX
STATE GAUNA,
Joseph R.
Defendant-Appellant.
No. 17366. Appeals of Idaho.
Court
Sept. 1989. 30, 1990. Denied Jan.
Petition Review