Straub v. Smith

working day during the term of the per He day weekly rate. charge per than the $300 alleged trade would charge usage of that commercial lessors lease. The also stated equip- with, express supplement, not length of time rent based conflict Therefore, if actually even kept the customer parties’ ment is contract. terms of daily originally agreed pay holding customer in that court did not err the district assumption equipment upon the that the rate apply in case. it does not in one week. returned less than would be usage is a is no contention that there There Party to an Award Either Entitled D. Is among regarding of commercial lessors trade Attorney Appeal? Fees on of per day of in the percentage reduction on parties seek Both keeps the charge when the customer rental 12-120(3). They § to Idaho Code or equipment longer. one week to recov- is an action agree that because this 28-l-303(e) provides § that Idaho Code transaction, prevailing er in a commercial express agreement terms of an “the attorney fees. entitled to an award of party is usage con- ... of trade shall be applicable ap- on this prevail BECO did not Because consistent strued wherever reasonable as entitled an award of peal, it is not “usage A trade” is each other.” of prevailing party is the on this fees. Swanson dealing “any practice of defined as or method and he is entitled to an award of appeal, in a having regularity observance such of fees under statute. reasonable vocation, justify an place, as to trade it re- expectation that will observed with IV. CONCLUSION I.C.

spect question.” to the transaction in 28-l-303(e). usage § A relevant of trade “is judgment of court must be The the district ascertaining meaning parties’ in $13,058.65. We reducing modified it to may give particular meaning to agreement, modified and award affirm the as may agreement, specific terms costs, including attor- a reasonable Swanson qualify agree- supplement or the terms of the fee, ney ment,” 28-l-303(d), § but it cannot con- I.C. express agree- flict with the terms of the JONES, BURDICK, Justices J. W. 1—303(e)(1). ment, § I.C. 28— JONES and HORTON concur. argues usage of trade BECO

among commercial construction lessors of give a rental

equipment to discount in the day keeps charged per when the customer 175 P.3d 754 supple equipment longer for one week agreement ments the rental between Swan STRAUB, Plaintiff-Respondent, Cobi Assuming and BECO in this son case. usage trade lessors among commercial Smith, R. and Leslie Donald SMITH equipment apply construction would wife, Defendants- husband equip like his Swanson who leased someone Appellants. time,3 one the district court did not err ment holding usage that the trade did claimed No. 33348. case. trade can apply Usage Idaho, Supreme supplant express of a contract. Court of terms 28-l-303(e)(l). Boise, § April contract in this Term. I.C. provided, “Rent Bobcat 773 SkidSteer Nov. finished____rent until [of to start 8-27-04 per working day.” express to be $300] provide contract rent is

terms of the that the equipment ing equipment. No incentive lessor has an eco- similar financial 3. A commercial provide longer- business for someone is not in the nomic incentive discounts exists who leasing equipment seeking repeat repeat-customer cus- in order to and is not term rentals create among routinely who be rent- base those would tomers. Whelan, d’Alene,

John Patrick Coeur appellants. Poorman, LLC, Hayden,

&Beck for re- spondent.

SUBSTITUTE OPINION THE DATED JULY OPINION HEREBY IS WITHDRAWN. BURDICK, Justice.

Donald Leslie Smith from the district court’s denial of an award of fees and costs. We reverse and remand. I. FACTUAL AND PROCEDURAL

BACKGROUND Appellants, Donald Smith and Leslie Smith (the Smiths), sold a duplex located Post Falls, Respondent, Idaho to Cori Straub. transaction, relation Straub filed a complaint against Smiths. Smiths pro se answer in which filed a did not costs or fees. The Smiths Then, retained counsel November 2004. in December 2004 filed an Straub amended complaint request which contained for an punitive damages. The Smiths did respond complaint. to the amended trial, days Six before Straub sent a fax to stating she wished dismiss the asking sign stipula- case and day, tion to the dismissal. On that same prejudice, motion to dismiss the signed by attorney, stipulation and a signed by the dismissal Smiths’ attor- ney, were filed with the court. Neither the motion to dismiss nor the men- prepared then tioned costs fees. Straub court, dismissal for the district First, accepted. argues The order which court dis- the dismiss 41(a)(1) al and not missed the case with and stated I.R.C.P. 41(a)(2). 41(a)(1) fees or Under there would be no award of costs. may plaintiff “an action dismissed present proposed order to (ii) by filing order of ... without court submitting it to the Smiths before signed by all dismissal court. appeared who have in the If the action.” filed The Smiths then a motion recon- dismissal, stipulate defendant does sideration of the court’s order 41(a)(2) provides that the “action and a of costs with the district memorandum plaintiffs at the in shall not be dismissed motion, hearing court. After a on the upon order of the court and stance save court denied the Smiths’ motion for and as the deems such terms conditions court Ap- The reconsideration. Idaho Court proper.” peals the denial of the motion for reversed 2005, 15, the April upon “[biased On and to the district reconsideration remanded dismiss, plaintiffs motion to the defendants’ motion, Court, grant- on court. This its own good appearing,” the cause ed a review on the briefs.

district court an order of dismissal. entered prejudice That the case with order dismissed II. ANALYSIS “and an fees or without award party.” argues that costs to either Straub appeal The Smiths the district court’s deni after this has no effect because it came portion their to the al of reconsider 41(a)(l)(ii) by stipula the dismissal I.R.C.P. dismissing case the court’s order the without parties Although the failed parties. tion of fees.1 an costs stipulating the to same document to sign the right their to argues that the Smiths waived dismissal, were on the two documents filed the and fees and that Smiths claim costs the day stipulating same to the dismissal of to not be entitled costs or because would prejudice. case Straub filed a motion with they pleading. in their request did not them and the dismiss the Smiths ask stipulating filed document Smiths will address each issue below. We plaintiffs granting of an order the prejudice. the case with motion to dismiss right their A. The Smiths did not waive 12, April filed on These documents were both to claim costs fees. 2005; costs or document mentioned neither though two docu this an fees. Even argues that because was 41(a)(1) by phrasing use by stip- parties filed voluntary dismissal ments I.R.C.P. case,” to dismiss the in substance parties not an “order ulation of the I.R.C.P. 41(a)(2) order, an appear documents constitute by court these dismissal 41(a)(l)(ii) Therefore, be dismissal. right to claim costs and fees waived their form, In re over they cause we look substance expressly not reserve when did 178, Weiek, 182 142 Idaho first right stipulation. in their We will deter- by it a we will consider and then address type mine the of dismissal parties. argument. waiver Straub’s support propo- any authority to to cite the district court’s failed The Smiths also 1. complaint erroneously her allowed grant of motion to amend that because the court Straub’s sition However, damages. punitive a deci- pleading, they to include of their are relieved amended will affect the outcome on that issue not 15(a) sion duty respond. Farber See they appeal this case. The Smiths assert 59, 1067, Howell, 57, duty fail in their to show that issue (1983) argument appellants (rejecting the therefore, did to submit an amended answer responsibility to amend relieved their were plead forego opportunity to costs a second only pleading to for- when amendment went Regardless, our decision noting that matters mal or immaterial the Smiths had based the fact that 15(a) plead in clearly requires and fees but opportunity to costs second pleading). response amended Furthermore, the Smiths have so. failed do However, provision if as an question even we treat this tractual is a of law.” 41(a)(l)(ii) dismissal, sup- Maroun, no 611, 1.R.C.P. there is Idaho at P.3d at 981. port argument objective that the Smiths primary interpreting a Our when First, waived their claim to costs or fees. is to discover mutual intent of contract there was no actual waiver in case. A contract parties the time the is made. voluntary, relinquish- Ossewarde, waiver is a intentional Opportunity, L.L.C. v. right. ment of a known Frontier Fed. Sav. “If Douglass, & Loan Ass’n v. possible, the intent of the should be There is no language agree- ascertained from the voluntarily gave indication that the Smiths ment the best of their intent.” as indication up their to seek costs and fees. Straub against construe We the contract notified fax of the dismissal. person prepared the contract. Win who entirety The fax in its states: Michigan, 137 Idaho at 53 P.3d at My client has informed me that she no

longer pursue wishes to this matter. Our stipulation, prepared you

motion to dismiss is which attached. If Straub, objection, please sign stip- no is silent on the issue of costs the attached my nothing ulation and return office. Other- fees. There is to indicate that when wise, I a hearing signed stipulation, will schedule for the the the Smiths the silence motion. an indicated intent that the Smiths would forego opportunity pursue the an I to have the notified court. Furthermore, costs and fees. we have said Neither the to stipu- dismiss nor the attorney costs and collateral fees are issues lation mentions costs or in fees. Since go which not to do the merits of an action case the stipulat- Smiths were unaware that jurisdiction a district and that court retains ing they the dismissal of case also meant to make such an a suit award after has been agreeing pursue fees, were not or costs Cos., terminated. Inland Group Inc. v. there voluntary, was no intentional relin- 475, 473, 454, Obendorff, 131 Idaho quishment right. of a known (1998). Thus, the stipulation dismiss Second, argues there that is the interpreted case with must be implicit waiver of costs if a and fees any agreement regarding not to include costs signs defendant a to dismiss a fees, and which can after be awarded a suit is 41(a)(1)(h), pursuant to I.R.C.P. unless Hence, although terminated. we that hold in the parties the expressly re the dismissal was to I.R.C.P. right serve the to later determine an award 41(a)(1), the Smiths waive their claim fees, of costs and because a dismissal effec by failing and expressly for fees costs tively ends case for all purposes. the We stipulation. in reserve that issue their disagree. contract, A stipulation is a and we B. and Costs fees need not be apply will principles interpre contractual pleaded. tation reviewing stipulation. when a Mar Inc., Sys., 604, oun Wyreless The that Smiths assert their fail 611, 114 974, (2005); P.3d Win Michi ure to costs is not fatal to their claim United, gan, Inc., Inc. v. Yreka argues for costs. Straub both that 747, 750-51, P.3d pleaded 333-34 fees costs must in be order to be legal “The a con- determination effect of recovered.2 Additionally, argues parties. prevailing finding that if even costs the This was within pleaded, party fees need not be still discretion. We held that a court’s prevailing would not be entitled an award in this case. before a dismissed trial can be First, that Straub asserts would not it Smiths because was the most favorable outcome that Ranch, they Eighteen have been to an entitled award because could have been achieved. Mile Inc., par- prevailing Paving, could not Excavating have been considered LLC v. Nord & hearing Likewise, ties. In the on the motion for reconsid- in case, voluntary eration the district court found the were dismissal of her 54(e)(4) First, jurisdiction, in plain our decision a short and statement of Ranch, grounds upon juris- which the court’s Eighteen Mile Excavat- LLC Nord (2) plain a depends, diction short state- ing & Paving, pleader showing ment the claim that generally make it that it is clear (3) relief, is entitled to demand for necessary plead attorney not The judgment relief he for the to which deems appellants Eighteen appealed in Mile himself entitled. Relief in alternative post-trial court’s their re- denial of may types de- or several different be quest for and costs on its fees based manded. prevailing that determination were not parties. Nonetheless, Id. at 117 P.3d at 132. The the rules as whole respondents argued type contemplated in to be that indicate that the relief 8(a)(1) attorney fees, by appear does not to include prevailing party awarded defending bringing costs of lawsuit. pleadings in specific must state its code rales state fees explicitly The constituting section for award. the basis plead in the generally need not be included Id. at 117 P.3d at 134. The Court stating ing. There is no similar rale costs 54(e)(4), disagreed, relying on I.R.C.P. which pleading, need be asserted in a but action, provides generally, in a civil it is 54(d)(1) “[ejxcept provides necessary any party “for action a civil rales, by when limited these costs otherwise a claim assert for fees right as matter of to the shall allowed exception gen- pleading____” prevailing party parties, unless otherwise if eral rule is that the basis Thus, all are ordered the court.” 12-121, § something is other than I.C. attor- notice that costs shall be allowed as ney pleaded must be to be recovered prevailing party. matter of Eighteen when default. setting procedure a party rale out the Mile, 135; 721, 117 141 Idaho at 54(d)(5), costs,” I.R.C.P. does who “claims 54(e)(4). I.R.C.P. The case before us does only require pleaded costs and not that be thus, judgment; a default to re- involve requires party claiming that a costs serve quire pleaded be in this that fees memorandum of costs on adverse 54(e)(4). contrary case would be to I.R.C.P. judg days after the within fourteen Hence, necessary it for the we hold was not together taken lead us to ment. rales These to plead fees in order Smiths to that the “relief’ discussed conclude an award. receive 8(a)(1) include I.R.C.P. does not costs. Hence, plead we that the failure to costs Second, necessary hold plead it is not costs. preclude an award of costs. 8(a)(1) will not requires argues Straub that I.R.C.P. pleaded that be in order be awarded costs Therefore, Rules of we hold Idaho Civil according pleading to that rale a because party require that a must Procedure do not for for shall contain demand fees, the I.R.C.P. unless pleader relief he entitled believes is 54(e)(4) judg- default exception regarding put must be on notice because applies, or costs. ments I.R.C.P. that will claimed.3 be court abused its discretion C. 8(a)(1) states: by denying the motion for reconsider- A which sets forth a claim pleading ation. relief, claim, original counter- whether an claim, claim, cross-claim, third-party argue that the dis The Smiths (1) it their motion limited court when denied if the court trict erred shall contain be and we Idaho trial is most outcome before favorable Second, achieved. the Smiths could have decline to so now. do argues that the Smiths would be entitled basis their contract with fees on the 8(a)(1) argues re- 3. Straub also merged the war- that contract was into because precur- quires pleaded as fees be However, according ranty to the record deed. award; however, contrary sor to us, Gen- issue was not raised below. before 54(e)(4) generally at- which states that erally, for the we do not consider issues raised pleaded. torney fees need not Murray appeal, Spalding, first time on Thus, entered grant if the court A decision to to waive costs. for reconsideration. it generally denying costs and fees because deny a motion for reconsideration the order part the trial in the sound discretion of that to be rests understood Beeks, 586, 592, terms, it to the Smiths’ motion alerted court. Jordan it gave discretion and the motion Abuse of factual error Hence, part a three which asks to correct that error. opportunity is determined test “(1) correctly for the per- specified the district court a sufficient basis whether (2) discretion; Therefore, sought. be- the issue as one of relief ceived motion and given of its dis- acted within the outer boundaries of the reasons cause neither consistently legal supports with the stan- a denial of the Smiths’ cretion district court reconsideration, specific to the avail- the deni- applicable dards choices motion for we hold (3) discretion, it; by an reached al was an abuse of able its decision of that motion Valley of reason.” Potato exercise Sun and remand the matter we reverse Growers, Corp., Refinery proceedings Inc. v. Texas for further consis- district court (cita- (2004) opinion. Idaho tent with this omitted). tions D. are entitled to The Smiths court abused its be- The district discretion fees on decision

cause its was not consistent legal stated it standards. The district court request of at The Smiths an award denying the motion for reconsideration § on 12- torney appeal pursuant to I.C. 8(a)(1) required because I.R.C.P. that costs 120(3) any that in which states commercial pleading and fees be included in the to be prevailing party “the be al transaction shall fee____” recovered and the alternative reason that attorney’s lowed a reasonable the Smiths “failed to cite or basis rule govern mandatory provisions of this statute First, for the Motion for Reconsideration.” appeal appeal when the of an order on above, 8(a)(1) as discussed does not them fees concerns entitlement to require that costs or pleaded fees be Eighteen amount of an not the award. Hence, deny be recovered. the motion LLC, Ranch, 721, 117 Mile grounds legal on those was inconsistent with be the at 135. The Smiths were found to standards. below, prevailed on prevailing party appeal concerns entitlement As to the second reason for the fees; therefore, the to an award of we award denial, disagree that we the Smiths failed to attorney fees on Smiths cite a rule or basis for the motion. The made a motion Smiths to reconsider III. CONCLUSION 11(a). However, party may to I.R.C.P. a only a motion make to reconsider interlocu the their We hold Smiths did not waive tory orders orders entered the after right by signing costs and the to claim fees 11(a)(2). judgment. of final The dis stipulation dismiss to and that the Smiths’ thus, judgment a final missal was the by claim is defeated their failure to motion Smiths’ to reconsider be treat should attorney the costs or fees. We also hold modify to ed as a motion or amend the order by deny- abused district court its discretion of dismissal. The Court an order reviews ing the Smiths’ motion for reconsideration a motion denying to alter or amend Finally, we and remand district court. Slaathaug of for abuse discretion. v. All attorney fees on award to the Smiths. Co., 132 Idaho state Ins. Appellants. Costs to (1999). 107, 109 59(e), Pursuant to a legal court can correct factual concur. Justices W. JONES and HORTON occurring in before it. proceedings errors EISMANN, specially Chief Justice case, supported Id. In this their Smiths concurring. alerting motion with affidavit the court to though stipulated that majority opinion, the fact to I in the write concur but prejudice, agree with they simply following. dismissal did not add directly Eighteen indistinguish- This case is controlled our re- Mile Ranch case is in opinion Eighteen cent unanimous Mile from present able case. Ranch, Paving, Excavating LLC v. Nord & Eighteen opinion The Mile Ranch also an (2005). question a swers the of whether case, parties stipulated “[t]he that to dismiss prejudice dismiss a case with includes Casey days a from the suit few before [Nord] any right dismissal to recover court costs began.” at trial Id. P.3d at 132. attorney “A action is fees. civil com costs and mention complaint filing menced of a with attorney fees. The trial court refused 3(a); court.” accord Sanchez v. Casey and costs award Nord Correction, 239,141 State, Dept. ground defendants on the that and the other complaint, any prevailing parties, they

they were not pleading other forth a claim that sets noted, appealed. appeal, litiga- we “In On relief, plain must “a contain short state tion, liability good is as avoiding for a defen- showing pleader ment of the that the claim is money judgment winning a is for a dant as 8(a)(1); entitled to relief.” I.R.C.P. accord plaintiff.” Id. at 117 P.3d at 133. We Marts, Inc., Dept. Idaho Labor v. Sunset unanimously Casey that a held Nord was For the prevailing party and was entitled to an award right to fees to be included recover stated: We action, right in the dismissal of an prevail- Nords were The individual also relief1’ a “claim for that fees must be a ing parties. Darrin left suit required pleadings. included be for directed verdict. He incurred case, Eighteen In the Ranch we ad Mile liability. him that no For was “the most request a dressed this as to whether issue possibly outcome that could be favorable alleged must be the award Also, Reed himself achieved.” defended pleading, complaint or an an whether escaped trial all through the entire “Thus, it did not. swer. We held achieving liability again, most favor- — specific attorney party need not have listed a possibly could able outcome pleading in order provision fee in its ob must The same be said for achieved. provision tain a fee award under days Casey, dismissed who was a few 54(e)(4) in the upon prevailing liti [I.R.C.P. ] Darrin, Casey Reed, and before trial. P.3d at gation.” 141 at parties. clearly prevailing are attorney fees is recover not a Since 719-20, (emphasis 117 P.3d at 133-34 pleading, in a “claim for relief’ included added). concluded, “The individ- This Court pleading does Excavating pre- ual and Nord were Nords pre determination constitute adequately vailing below and vailing party’s right to recover fees.4 request their for fees and costs. supported Indeed, prevailing no re- there can be denying court’s order their The district have been until the the lawsuit quest case is merits of is therefore reversed and the judgment. a final How- decided there is appropri- for determination of an remanded 139, 721,117 106 P.3d 465 Perry, ard v. 141 Idaho P.3d at 135. The ate award.” 12-120(3).” Taylor § In v. many upheld, even under Idaho Code 4. We in instances have 308, ordered, Just, 137, 143, attorney award of fees where a case 314 138 Idaho prejudice. example, "reverse[dj in (2002), dismissed with For judgment was of the we dis- 232, McCann, 228, Idaho v. 138 McCann with court this case instruc- remand[ed] trict 585, (2002), the district dismissed the court dismissing judgment the com- a tions enter plaintiff's complaint prejudice” “with a plaint prejudice to award Trustee with “attorney fees and awarded the defendants Nampa attorney Charter fee.” In reasonable School, court on that the district costs.” We held DeLaPaz, 140 Idaho Inc. v. attorney awarding in abuse its discretion 863, granted (2004), court “the district Alphonsus Regional Medical v. St. fees. In Miller 12(b)(6) dismissed NCS’s motion and DeLaPaz’s Center, Inc., "awarded DeLa- prejudice.” with It also claims judgment "affirm[ed] we together requested attorney fees Paz 20% dismissing preju- this action with district court on with costs.” We affirmed Hospital awarding attorney fees dice 54(d)(1)(B). (2005); prejudice party A missed with meant that each prejudice” adju- an action simply “with an would their bear own court costs and attor- fees, dication plaintiffs ney on the merits of the claim. there would have been no need for King Lang, v. 136 Idaho provision P.3d 698 Straub’s counsel to add that to the (2002); Agricultural Corp., proposed Scott Prods. order. It unnec- would have been Inc., (1981); essary surplusage. 627 P.2d 326 Straub’s counsel obvious- Co., Sullivan Allstate ly language Ins. believed he needed to add that case, 792 P.2d 905 proposed the instant order in order to obtain the there was no final until Notably, the action result he wanted. he submitted prejudice. was dismissed proposed The dismissal order to the district court did but pre- Straub’s action with copy was a not send a to the Smiths’ counsel. condition to right the Smiths’ to recover Smiths’ counsel did not learn of the added attorney fees, court costs and not a language denial of until after the order had been right. signed by the district court. The district may initially court have assumed The district court erred when it denied the agreed proposed Smiths had right Smiths their to seek an award of attor- However, submitted Straub’s counsel. ney giving fees without them hearing upon being case, shown that such was not the the matter. The Smiths had the the district court should have acted to cor- seek an attorney award of filing injustice. rect the memorandum days of costs within fourteen after judgment. statutory right have a to an 54(d)(5) (e)(5). objected & If Straub attorney to Idaho 12-120(3). allowance of § fees or the amount agrees Code that “[t]he claimed, required she was to file a underlying transaction between the stating objection such days within clearly fourteen a commercial transaction under after 12-120(3).” service of the § memorandum of costs. Idaho Code The Smiths are 54(d)(6) (e)(6). & The district court clearly prevailing also parties in this process by short-circuited the entering litigation. Ranch, Eighteen Mile LLC v. judgment denying any right Excavating Paving, Nord & recover giving fees without them They 117 P.3d 130 could not opportunity request attorney fees in their litiga- obtained better outcome in the memorandum of Therefore, costs or to be heard on that tion. were entitled to an request. award of a reasonable fee. court, In fairness to the district JONES, W. J. concurs. counsel responsibility bears some for the short-circuiting procedures. Every JONES, J., concurring part J. attorney worth his or her salt knows that if dissenting part. you your want to complaint just dismiss be- I part concur in II.B. of opin- the Court’s fore trial and do your not want client to be ion, regard but dissent with to the remainder hable for the defendant’s court costs and thereof. I would affirm the district court’s fees, you had stipula- better seek a denial of fees and costs. stating tion that each will bear their own costs and H.A., regard part Straub’s coun- agree With I with the Instead, sel did not do inso this case. he Court’s conclusion that the Smiths did not agreement entry obtained the Smiths’ Rather, “to the “waive” a claim for fees. granting of an Order plaintiff’s the motion to the stipulation Smiths entered into a with prejudice” dismiss this case with they away then wherein any contracted submitted to the proposed district court a parties stipulated claim for fees. The adding provision order the entry that the dismissal dismissing of an order the case with was “without an prejudice. fees of prejudice” The words “with mean party.” Obviously, costs to either [sic] if the rights; way finally “[w]ith loss of all in a agreement Smiths’ disposes the case be dis- party’s of a claim and bars 74 express stipula parties’

future action that claim.” Black’s Law terms of the (7th Ed.1999). Dictionary agreement a firm tion establishes dismiss However, prejudice. with a review the case 41(a)(l)(ii) Idaho Rule of Civil Procedure any language fails to of the terms disclose permits plaintiff a dismiss his or her indicating parties that the to exclude wished filing stipulation signed a of dismissal stipula issue of fees and from the the costs by parties. the Given that dismissals under Smiths, Although tion of dismissal. the who 41(a)(l)(ii) require voluntary agree Rule a signing the stipulation admit to without ob parties, they ment of the are contractual jection, urge they now did .wish See, Sys e.g., Wyreless nature. Maroun v. subject their claim for fees and costs to the tems, Inc., 611, 974, 604, 141 Idaho 114 P.3d dismissal, from si this Court cannot divine contract.”). (2005) (“[a] stipulation 981 is a parties of to that lence a mutual assent the Thus, employ the same Court should 6, 9, Madden, Vogt v. 110 Idaho effect. Cf. if analysis interpreting it would it the were 442, (acceptance (Ct.App.1986) 713 P.2d 445 contract, a the “begins terms of which with generally be manifested of an offer cannot language Indepen the of contract itself.” inaction). Indeed, through par silence or “a Co., Mining Lead dence Mines Co. v. Hecla ty’s subjective, immate undisclosed intent is 22, (2006). 26, 409, 143 Idaho 137 P.3d 413 interpretation J.R. rial to the of a contract.” For a contract to be there must enforceable Bosen, 611, 614, 167 Simplot Co. v. understanding a “distinct to both common parties 751 the wished Had parties,” by meeting of the as evidenced the issue of fees from to reserve the parties. minds between Potts Constr. dismissal, stipulation purview of the Dist., v. N. Kootenai Co. Water ample expressly agree to opportunity had 678, 681, of a “Proof See, Daisy Mfg. v. provision. e.g., Co. such a meeting requires minds evidence 259, 260, Sports, Idaho Paintball understanding terms of the mutual as to the (parties (Ct.App.2000) parties.” agreement and assent of both stipulation reserved agreeing to of dismissal Id. costs); Barrios the issue fees and provides no this case Fed’n, 277 F.3d Interscholastic California understanding of a mutual between evidence (9th Cir.2002) entering (parties claim for parties to exclude the Smiths’ agreement expressly re into a settlement stipula- fees from purview costs fees and served issue April tion of dismissal. On determination). for future fax contacted the counsel via counsel Smiths’ Obendorff, Group Inland Cos. him that interested in to inform Straub was no provides P.2d 454 Idaho dismissing the case: special Obendorff, relief to the Smiths. no My client has informed me that she court, Perry appointed the district master pursue matter. Our longer wishes Obendorff, an order filed a motion for you have to dismiss attached. If motion Group Companies after Inland show cause stip- objection, please sign the attached no master special half of pay failed to its my and return to office. Other- ulation at 455. at fees.5 wise, hearing I will schedule after the s motion filed Obendorff motion. (which include Oben action I notified the court. dorff) the suit stipulated to dismissal of that once argued objection, signed prejudice. Inland counsel Without Smiths’ dismissed, appointing of dis- case was returned the attached “[djefendants special was dissolved missal, as master provided that the Obendorff which to his an with it Obendorffs hereby stipulate ... of Order disagreed there was because plaintiffs to dismiss this The Court granting the In- requiring court order outstanding district prejudice.” case with Obendorff, parties. equally it appointed borae 5. When the district court special P.2d at 455. that the master ordered costs of master special P.3d 764 pay one half of land to fees, master fees were special because Plaintiff-Respondent, Idaho, STATE costs, final dismissal because the fees in dealing with incorporated the order JOSLIN, Robert Alexander was to each side clearly stated that that it Defendant-Appellant. at costs. bear its own 32483. No. be noted Obendorff 456. It should calling for dismissal party to a contract not a Idaho, Supreme Court prejudice, as is the action with Boise, 2007 Term. December here. Dec. strong recognized the long has This Court litiga- favoring settlement of public policy Crane, Quick

tion. At the time the dismissal, stipulation of

parties executed the given justifiable expectation, had a language of the encompassing reservations, any express

and the absence of ease rights and claims related to the

that all dismissed, including the Smiths’

would be policy dic- for fees and costs. Public

claim protect expectations this Court

tates

reasonably induced. consideration case, agreement to dismiss

Smiths’ forgo pursue agreed to her ability relinquished to refile

the suit and her To allow the Smiths

her suit the future. to a pursue attorney stipulating fees after

general dismissal of the case would have discouraging stipulations and defeat-

effect expectations. Hefner, K.

ing See Caremark, Inc.,

Inc. v. (1996) (dismissing plaintiffs consequences is beneficial

without adverse encourage parties “it would tend to

because litigation

who do not ‘have the stomach’ dismissal”).

to seek a relinquished

I would hold that the Smiths fees and costs when

their claim for preju- of the case with

stipulated

dice, reserving the expressly without IWhile future determination.

issue for opinion, I part II.B. of the Court’s

agree with unnecessary deci- hold it to be

would the case.

sion of

Case Details

Case Name: Straub v. Smith

Court Name: Idaho Supreme Court

Date Published: Nov 27, 2007

Citation: 175 P.3d 754

Docket Number: 33348

Court Abbreviation: Idaho