April Fano and Right Way Publishing, LLC, appeal the district court’s judgment following a bench trial in which the district court found Fano liable for breaching a Release Agreement and entered judgment against Fano and Right Way Publishing, LLC, in favor of respondent, Vianna Stibal, for $56,250 in damages and punitive damages and $28,186 in attorney fees and costs. We reverse the judgment in part and affirm in part.
I. Nature of the Case
While Fano and Stibal were involved in prior litigation, they reached a settlement through mediation and signed a Releasе Agreement, which mutually released Stibal and Fano from liability to each other for their acts prior to the agreement. The Release Agreement further prohibited the parties from making any future negative or disparaging comments about the other. Prior to executing the Release Agreement, Fano had provided negative information about Stibal to a book author. Fano also formed a limited liability company and paid to print 500 books about Stibal. The bоoks were printed before the Release Agreement was executed. Stibal subsequently brought the present action, alleging that Fano had breached the Release Agreement.
II. Factual and Procedural Background
Vianna Stibal and April Fano were involved in previous litigation in Bonneville County. That litigation included claims by Stibal seeking damages for defamation, libel, slander, and intentional infliction of emotional distress. Fano counterclaimed for fraud, breach of contract, and unjust enrichment. Six days before their scheduled trial, the parties mediated and settled their dispute. As part of the settlement agreement, the parties signed and executed a Release Agreement on July 30, 2010. Stibal paid Fano $12,500 pursuant to the terms of the agreement. The Release Agreement included the following relevant provisions:
8. April and Vianna agree to keep confidential the terms of this Agreement, as well as all matters, documents, and medical records pertaining to thе lawsuit unless:
a. Ordered to do so by a court of law,
b. Upon the request of a law enforcement officer acting in his or her official capacity
c. Confidential disclosure to an accountant or tax adviser in connection with preparation of income tax returns or other financial documents as necessary;
d. Agreed to by the parties
*431 9. April and Vianna agree not to make any disparaging, defaming, or otherwise negative comment regarding each other to any third party as of the date of this Agreement fоrward unless:
a. Ordered to do so by a court of law
b. Upon the request of a law enforcement officer acting in his or her official capacity,
c. Agreed to by the parties.
10. April and Vianna agree to remove any comment regarding each other that is posted on the internet, for which each one of them has control, within 45 days of this agreement. April shall make a good faith effort to have the video of Vianna posted on www.youtube.com regarding USANA removed, and will provide Vianna’s attorney with a copy of any correspondence sent in an effort to remove said video.
11. The confidentiality and nondisclosure requirements of this mutual release and hold harmless agreement shall not apply to any statements, disclosures, or other communications to third parties made before the date of this Agreement, whether known or unknown.
12. The mutual release and hold harmless agreement shall apply to any statements, disclosures, or other communications to third parties madе before the date of this Agreement, whether known or unknown. Prior to executing the Release Agreement,
Fano provided statements and documents to Lindsay Stock, the former daughter-in-law of Stibal. These documents included emails and portions of depositions from the previous litigation between Fano and Stibal. Lindsay Stock wrote a book called Shady Healing, which sought to expose misconduct related to Stibal’s business known as ThetaHealing.
On March 1, 2011, Stibal and the Theta-Healing Institute of Knowledge brought this action against Fano and Right Way Publishing, LLC, for damages relating to Fano’s alleged breach of the Release Agreement. After Fano answered the complaint, Stibal filed a motion to add a claim for punitive damages, which the district court granted. Stibal amended her complaint to include claims for breach of the covenant of good faith, fraud in the inducement, fraud on the court, and intentional infliction of emotional distress. On June 1,2012, the parties agreed to withdraw certain claims and stipulated that the claims to be tried were breach of contract, intentional infliction of emotional distress, and punitive damages.
Fano admitted to having knowledge of the contents of Shady Healing at the time she executed the Release Agreement. Fano disclosed neither the existence of Shady Healing nor her involvement with it before executing the Release Agreement. Finally, Fano admitted that she knew that Shady Healing would be sold and intended for it to be read after she executed the Release Agreement. The district court found that the book contained negative and disparaging comments about Stibal.
Fоllowing a bench trial, the district court issued its decision, ruling that Fano had breached the Release Agreement with Stibal; that Stibal proved actual damages of $6,250, representing one-half of the amount paid by
The plaintiffs filed a Memorandum of Costs and Fеes on October 3, 2012 and Right Way Publishing, LLC filed a motion for attorney fees on October 12, 2012.
On October 25, 2012, April Fano filed an amended notice of appeal, still designating her as the appellant and Right Way Publishing, LLC, only as a defendant. This notice of appeal appears to differ from the first notice of appeal merely with regard to a request that the transcript be provided, in electronic form.
On November 29, 2012, the district court issued an opinion and order granting an аward to the plaintiffs for $28,186.70 for attorney fees and costs, concluding that the plaintiffs were the prevailing parties. The district court denied Right Way Publishing, LLC’s motion for attorney fees and costs.
On February 12, 2013, a document entitled “final judgment” was entered in favor of the plaintiffs and against defendants April Fano and Right Way Publishing, LLC, for damages in the amount of $56,250, attorney fees in the amount of $27,670 and costs in the amount of $516.70. A second amended notice of appeal was filed on February 14, 2013, showing both April Fano and Right Way Publishing, LLC, as appellants.
III. Issues on Appeal
1.Whether the district court erred when it ruled that Fano breached the Release Agreement between her and Stibal arising from the previous litigation.
2. Whether the district court’s finding that Stibal suffered actual damages in the amount of $6,250 is supported by substantial and competent evidence.
3. Whether the district court erred when it awarded Stibal $50,000 in punitive damages because Fano’s conduct was intentional, extreme, and outrageous.
4. Whether thе district court erred when it awarded attorney fees, to Stibal.
5. Whether the district court erred when it denied the motion by Right Way Publishing, LLC, for an award of attorney fees and costs.
6. Whether any party is entitled to attorney fees on appeal.
IV. Standard of Review
Review of a trial court’s conclusions following a bench trial is limited to ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law. Benninger v. Derifield,142 Idaho 486 , 488-89,129 P.3d 1235 , 1237-38 (2006) (citing Alumet v. Bear Lake Grazing Co.,119 Idaho 946 , 949,812 P.2d 253 , 256 (1991)). Since it is the province of the trial court to weigh conflicting evidence and testimony and to judge the credibility of witnesses, this Court will liberally construe the trial court’s findings of fact in favor of the judgment entered. Rowley v. Fuhrman,133 Idaho 105 , 107,982 P.2d 940 , 942 (1999). This Court will not set aside a trial court’s findings of fact unless the findings are clearly erroneous. Ransom v. Topaz Mktg., L.P.,143 Idaho 641 , 643,152 P.3d 2 , 4 (2006); I.R.C.P. 52(a). If the trial court based its findings on substantial evidence, even if the evidence is conflicting, this Court will not overturn those findings on appeal. Benninger,142 Idaho at 489 ,129 P.3d at 1238 . Additionally, this Court will not substitute its view of the facts for that of the trial court. Ransom,143 Idaho at 643 ,152 P.3d at 4 . This Court exercises free review over matters of law. Bolger v. Lance,137 Idaho 792 , 794,53 P.3d 1211 , 1213 (2002) (citing Bowten Constr. Co. v.*433 H.F. Magnuson Co.,133 Idaho 756 , 760,992 P.2d 751 , 755 (1999)).
Borah v. McCandless,
V. Appellate Procedure
Before reaching the merits of any of the issues raised on this appeal, it is necessary to consider the scope of the appeal. A timely notice of appeal is essential to vesting jurisdiction in the Supreme Court of Idaho. Neal v. Harris,
Idaho Appellate Rule 14(a) provides that
“Any appeal as a matter of right from the district court may be made only by physically filing a notice of appeal with the clerk оf the district court within 42 days from the date evidenced by the filing stamp of the clerk of the court on any judgment or order of the district court appealable as a matter of right in any civil or criminal action.”
This rule further provides that the time for appeal may be terminated by the filing of a timely motion which, if granted, could affect any findings of fact, conclusions of law or any judgment in the action except motions under Idaho Rule of Civil Procedure 60 or any motions regarding сosts or attorney fees.
Accordingly, April Fano’s notice of appeal on October 17, 2012, from the judgment for damages entered on September 20, 2012, was timely because it was filed within 42 days from the date the judgment was entered. That judgment was a final judgment under Idaho Rule of Civil Procedure 54(a) because it was a “judgment ... entered on all claims for relief, except costs and fees, asserted by or against all parties in the action.” The second amended notice оf appeal filed by April Fano on February 14, 2013, while it appears timely as to the “final judgment” which was entered on February 12, 2013, and which included the award of attorney fees and costs, was unnecessary. The original timely notice of appeal filed on October 17, 2012, is deemed to include all post-judgment orders, such as the order awarding costs or attorney fees to the prevailing party. See I.A.R. 17(e)(1)(C); Wilsey v. Fielding,
The appeal by Right Way Publishing, LLC, suffers from certain procedural infirmities. Right Wаy Publishing, LLC, did not timely file a notice of appeal from the judgment for damages which was entered on September 12, 2012. Consequently, that award is not reviewable on appeal with respect to Right Way Publishing, LLC. Right Way Publishing, LLC, also did not timely file a notice of appeal either from the post-judgment order denying its motion for attorney fees which was entered on November 29, 2012, or the order granting attorney fees and costs to the plaintiffs also entered on November 29, 2012. See Idaho Aрpellate Rule 11(a)(7). So, these orders also are not reviewable with respect to Right Way Publishing, LLC.
VI. Analysis
A. The District Court’s Breach of Contract Ruling Is Not Supported by Substantial and Competent Evidence.
The district court ruled that Fano was responsible for the comments and documents contained in Shady Healing, which it determined were obtained from the previous litigation. The district court also found that Fano was substantially involved in bringing Shady Healing to market, including providing Stock with information Fano obtained from the previous litigation with Stibal; paying to print 500 copies of Shady Healing; and being a manager of Right Way Publishing, LLC. The district court ruled that Shady Healing, which was sold, distributed, and read after the Release Agreement, would not have been published but for Fano’s involvement. The district court found these actions coupled with Fano’s failure to disclose the existence of the book constituted a breach of the Release Agreement.
Fano argues that the district court erred when it ruled that Fano breached thе Re
A court shall construe contracts according to the plain language used by the parties, and the court shall not substitute that to which it thinks the parties should have agreed for what the contract shows they did agree. E.g., Ohms v. Church of the Nazarene,
Here, Fano made statements that Stibal believed were libelous. Fano supplied emails, depositions, statements, and paid for a book that may be deemed negative and disparaging toward Stibal. However, it was not fraudulent for Fano to accept an agreement that would protect her from liability for her actions related to Shady Healing. There is nothing fraudulent about a party agreeing to an indemnity provision knowing that it will act to extinguish possible claims agаinst him or her. Indeed, the primary reason why someone would agree to such a provision is to limit his or her liability.
The Release Agreement could have but did not require the parties to disclose or warrant their conduct prior to executing the agreement. It is not uncommon in release agreements to also obtain warranties and representations regarding the conduct of the parties. Such warranties and representations are important because they provide a basis on which breach can be proved. In the absence of such warranties, a failure to disclose is not fraudulent. Because there were no warranties or representations required of the parties, Fano had no obligation to represent anything to Stibal. The parties had freedom of contract and such a provision could have been included. The parties also could have excluded the “known or unknown” language from thе Release Agreement or only indemnified “known” conduct. Quite simply, Fano made no misrepresentations because Stibal failed to ask about her prior conduct.
The only post-Release Agreement activity to which Stibal can point to justify her breach of contract claim is Fano’s continued management of Right Way Publishing, LLC, which was distributing Shady Healing after the Release Agreement. But Stibal did not demonstrate that Fano possessed any actual authority as a member-manager of Right Wаy Publishing, LLC, to stop the distribution of Shady Healing.
Stibal presented no evidence that Fano could have prevented the distribution of Shady Healing. Fano picked up the Shady Healing books from the printer before entering into the Release Agreement and mailed them to Stock, thereby divesting herself of control of the books, before entering into the Release Agreement. There is nothing in the Release Agreement that imposed on Fano an affirmative duty to mitigate her pre-Release Agreement activity or the activity of others. Shady Healing was written by Stock, not Fano. Presumably, Stock continues to own the manuscript and copyright to the book. Stibal presented no evidence to the contrary. There is no evidence demonstrating that Fano had any authority to prevent Stock or Right Way Publishing, LLC, from distributing this book.
Finally, Stibal identifies ministerial activities which Fano was engaged in as a member-manager of Right Way Publishing, LLC, to support her breach of contract claim. Those activities have not been demonstrated to bear on the distribution of Shady Healing.
As the plaintiff, Stibal carried the burden to produce evidence demonstrating that Fano breached the Release Agreement with post-Release Agreement activity. Stibal relies substantially on Fano’s pre-Release Agreement activity. The only possible post-Rеlease Agreement activity demonstrated by the evidence is Fano’s membership in Right Way Publishing, LLC. Stibal, however, failed to produce evidence as to the operations of Right Way Publishing, LLC, the structure of Right Way Publishing, LLC, and the actual authority of the members of Right Way Publishing, LLC. Stibal did not produce any evidence that Fano personally distributed or sold the Shady Healing book after the Release Agreement was executed. The uncontroverted evidence was that Fano did not sell, promote or distribute the book. Without evidence of a breach, the district court’s finding of a breach of the Release Agreement was clearly erroneous. It follows that Fano is not liable to Stibal for any damages, thus rendering unnecessary a discussion of the other issues raised on appeal with respect to damages. Accordingly, the judgment entered by the district court against Fano is reversed.
B. Attorney Fees Below.
Attorney fees may be awarded if authorized by statute or contract. Hellar v. Cenarrusa,
Right Way Publishing, LLC, did not timely appeal from the judgment against it for damages entered on September 20, 2012. Therefore, as between the plaintiffs and Right Way Publishing, LLC, the plaintiffs were the prevailing parties below. Right Way Publishing, LLC, did not timely appeal from the post-judgment order awarding attorney fees and costs to the plaintiffs, so the district court’s award of attorney fees and costs against Right Way Publishing, LLC, will be affirmed.
Because Right Way Publishing, LLC, did not timely appeal from the order denying its motion for attorney fees, that issue will not be reviewed.
This case is remanded to the district court to determine the award of attorney fees and costs to Fano for successfully defending against the action in the district court.
C. Attorney Fees on Appeal.
All parties have requested awards for their attorney fees incurred on appeal. With regard to the appellant Fano, Stibal is not the prevailing party and will not be awarded fees or costs on that appeal. Fano has requested an award for attorney fees under Idaho Code sections 12-120 and 12-121, and pursuant to the Release Agreement. Fano hаs prevailed on appeal and is entitled to an award for attorney fees by virtue of the Release Agreement.
As between Stibal and Right Way Publishing, LLC, Stibal is the prevailing party. Stibal requests an award of attorney fees and costs pursuant to the Release Agreement and Idaho Code section 12-121. The award cannot be made pursuant to the Release Agreement because Right Way Publishing, LLC, was not a party to the Release Agreement.
Because the apрeal by Right Way Publishing, LLC, was untimely in all respects, we hold that the appeal was pursued frivolously, unreasonably and without foundation. Pursuant to Idaho Code section 12-121, attorney fees and costs are awarded to Stibal against Right Way Publishing, LLC.
VII. Conclusion
For the foregoing reasons, the judgment against Fano is reversed. The judgment against Right Way Publishing, LLC, is affirmed. Fano is awarded attorney fees and costs on appeal. We remand this case for the award of costs and attorney fees to Fano for dеfending the action in the district court. Stibal is awarded attorney fees and costs against Right Way Publishing, LLC.
Notes
. Shady Healing was written "to show that the claims brought forth regarding ThetaHealing are bogus, the root of the Theta tree is lies, deceit, fraud and the proofs are exaggerated, claims of inconsistencies that have spread from teacher, respondent, to students, practitioners, and clients.” Shady Healing likens ThetaHealing to a cult. Some of the more oрprobrious allegations in Shady Healing are that Stibal does not pay her taxes, her program is illegal, Stibal sells fake doctorates, and Stibal is scamming people. Additionally, Shady Healing accuses Stibal of being a drug user and using heroin and massive amounts of cocaine. Furthermore, the book says that Stibal sleeps with people to pay for her cocaine. The book also calls ThetaHealing dangerous and alleges that Stibal's friends end up dead.
. As a general rule, a manager of a manager-managed LLC owes fiduciary duties to the limited liability company and its members. Ann K. Wooster, Construction and Application of Limited Liability Company Acts,