Keith A. Sims v. Dan S. Jacobson , 157 Idaho 980 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 40474
KEITH A. SIMS, dba KASCO OF IDAHO, )
LLC, an Idaho limited liability company, )
)
Plaintiff-Counterdefendant-Appellant, )
)
v. )
)
DAN S. JACOBSON, an individual; SAGE )
HOLDINGS, LLC, an Idaho limited liability )
company; STEVEN G. LAZAR, an )
individual, THE MITCHELL A. MARTIN )
AND KAREN C. MARTIN FAMILY TRUST )
DATED AUGUST 9, 2005; DEVON )
CHAPMAN, an individual, )
)
Defendants-Counterclaimants- )
Respondents, )
)
Coeur d’Alene, September 2014
and )
)
2015 Opinion No. 13
MONUMENT HEIGHTS, LLC; an Idaho )
limited liability company; ACI )
Filed: February 2, 2015
NORTHWEST, INC., an Idaho corporation; )
CHARLES R. DEAN, Successor Trustee; and )
Stephen W. Kenyon, Clerk
JOHN and JANE DOES 1-100, )
)
Defendants. )
_____________________________________ )
ACI NORTHWEST, INC., an Idaho )
corporation, )
)
Plaintiff, )
)
v. )
)
MONUMENT HEIGHTS, LLC, an Idaho )
limited liability company; DAN S. )
JACOBSON, an individual; SAGE )
HOLDINGS, LLC, an Idaho limited liability )
company; STEVEN G. LAZAR, an )
individual; THE MITCHELL A. MARTIN )
AND KAREN C. MARTIN FAMILY TRUST )
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DATED AUGUST 9, 2005; DEVON )
CHAPMAN, an individual; KEITH SIMS )
dba KASCO OF IDAHO, LLC an Idaho )
limited liability company, )
)
Defendants. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Benjamin R. Simpson, District Judge.
District court order granting attorney fees, affirmed.
Madsen Law Offices, Coeur d’Alene, for appellant. Henry D. Madsen argued.
Lukins & Annis, PS, Coeur d’Alene, for respondents. Jonathon D. Hallin argued.
____________________________________
BURDICK, Chief Justice
This appeal arose from three mechanic’s liens that Keith A. Sims, dba Kasco of Idaho,
LLC (“Sims”) filed on property that Dan S. Jacobson, Sage Holdings, LLC, Steven G. Lazar, the
Mitchell A. Martin and Karen C. Martin Family Trust, and Devon Chapman (collectively “the
Jacobson group”) had an interest in. The Kootenai County district court granted summary
judgment to the Jacobson group on Sims’s lien foreclosure and quantum meruit claims. The
court also awarded the Jacobson group their attorney fees and costs. Sims appealed the district
court’s (1) grant of summary judgment on the lien foreclosure; (2) denial of a continuance at the
quantum meruit hearing; and (3) award of attorney fees. Sims later withdrew his appeal on the
lien foreclosure and continuance issues, so the only issue remaining is the district court’s grant of
attorney fees to the Jacobson group. We affirm the district court’s award.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case began with a contract between Sims and Monument Heights, LLC. On June 20,
2008, Monument Heights entered into an express contract with Sims to blast rock for road
construction on real property Monument Heights owned in Post Falls, Idaho. The property was
made up of three contiguous parcels. On June 20, 2008, Sims began work on the property.
Because Sims was not paid, he stopped work on September 13, 2008. On November 25,
2008, Sims recorded three mechanic’s liens with Kootenai County on Monument Heights’s
property. On May 11, 2009, Sims claimed (1) foreclosure of materialman’s lien; (2) breach of
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contract; and (3) quantum meruit. The complaint named as defendants Monument Heights and
“John and Jane Doe 1–100 et al., individually, as owners, or agents of owners.”
Sims did not include the Jacobson group as defendants until he amended his complaint on
December 18, 2009. The amended complaint asserted the same three claims. Sims alleged a
breach of contract between Sims and “all defendants.” Sims amended his pleadings several more
times, but his three claims against the Jacobson group stayed the same. 1
The Jacobson group moved for summary judgment against Sims’s lien foreclosure claim.
The district court granted that motion at a hearing on January 18, 2011. The court reasoned that
because Sims did not make the Jacobson group a party within six months of filing the lien, the
group was not bound under Idaho Code section 45-510’s six-month statute of limitations for lien
enforcement. The district court also granted the Jacobson group summary judgment on Sims’s
quantum meruit claim at a February 22, 2011 hearing. Sims’s attorney had filed a motion to
continue that motion for summary judgment. The court denied the motion to continue at the
quantum meruit hearing.
Sims timely appealed. The Jacobson group then asked the district court for costs, fees,
and sanctions for defending against the breach of contract and quantum meruit claims. The
Jacobson group expressly stated that they did not claim fees for Sims’s lien foreclosure claim.
The district court awarded the Jacobson group $608.25 in costs and $33,306 in attorney fees
under Idaho Code sections 12-120(3) and 12-121. The court awarded fees under Idaho Code
section 12-120(3) because it found the Jacobson group was the prevailing party in an action
arising from a commercial transaction. The district court also concluded that Sims brought and
pursued his action frivolously, unreasonably, and without foundation under section 12-121. The
court found the Jacobson group’s requested attorney fees and costs were appropriate as to
charge, reasonable as to time, and necessary.
On December 7, 2012, Sims timely filed his amended notice of appeal. Sims appealed the
district court’s (1) grant of summary judgment on the lien foreclosure claim; (2) denial of Sims’s
continuance motion at the quantum meruit hearing; and (3) award of attorney fees. After Sims
submitted his opening brief and the Jacobson group submitted their response, Sims filed an Idaho
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During a December 15, 2010 hearing, Sims withdrew the breach of contract claim against the Jacobson group.
Despite this withdrawal, on February 22, 2011, Sims f i l e d another motion to amend. In that proposed sixth
amended complaint, Sims claimed breach of contract against the Jacobson group again. On March 1,
2011, Sims withdrew his motion to amend and his proposed sixth amended complaint.
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Appellate Rule (“I.A.R.”) 32(b) Partial Voluntary Dismissal Motion asking this Court to dismiss
his lien foreclosure and continuance issues. The Jacobson group agreed that the Court could
dismiss Sims’s lien foreclosure and continuance issues, but asked that the Court condition that
dismissal upon Sims paying the Jacobson group’s fees for those issues. The Jacobson group
asked for sanctions to recover fees on the lien foreclosure issue and asked for fees under Idaho
Code sections 12-120(3) and 12-121 on the continuance issue. On February 13, 2014, this Court
allowed Sims to withdraw those issues. However, this Court noted that “[the Jacobson group’s]
request for attorney fees will be addressed in the Court’s opinion.” This Court did not make a
decision on the attorney fees issues at that time.
II. ISSUES ON APPEAL
1. Whether the district court properly awarded reasonable attorney fees under Idaho Code
sections 12-120(3) and 12-121.
2. Whether either party is entitled to attorney fees on appeal.
III. STANDARD OF REVIEW
The trial court has discretion to award attorney fees and costs; that award is subject to
review for an abuse of discretion. Magleby v. Garn, 154 Idaho 194, 196, 296 P.3d 400, 402
(2013). When we consider whether a trial court abused its discretion, the standard is whether the
court perceived the issue as discretionary, acted within the outer boundaries of its discretion and
consistently with the legal standards applicable to the specific choices available, and reached its
decision by an exercise of reason. Id. at 196–97, 296 P.3d at 402–03.
IV. ANALYSIS
Sims asserted three claims against the Jacobson group in the district court: (1) lien
foreclosure; (2) breach of contract; and (3) quantum meruit. The court awarded the Jacobson
group attorney fees for the breach of contract and quantum meruit issues under Idaho Code
sections 12-120(3) and 12-121. Sims appealed the court’s grant of summary judgment on the lien
foreclosure, denial of a continuance at the quantum meruit hearing, and award of attorney fees.
Under I.A.R. 32(b), Sims withdrew his appeal on the lien foreclosure and continuance issues.
The remaining issue is the district court’s award of attorney fees to the Jacobson group.
A. The district court properly awarded reasonable attorney fees under Idaho Code section
12-120(3).
The district court awarded attorney fees under Idaho Code section 12-120(3) because it
found that the Jacobson group was the prevailing party in an action arising from a commercial
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transaction. Whether an action is based on a commercial transaction is a question of law that this
Court exercises free review over. Intermountain Real Props., LLC v. Draw, LLC, 155 Idaho 313,
320, 311 P.3d 734, 741 (2013).
Idaho Code section 12-120(3) provides:
In any civil action to recover on an open account, account stated, note,
bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of
goods, wares, merchandise, or services and in any commercial transaction unless
otherwise provided by law, the prevailing party shall be allowed a reasonable
attorney’s fee to be set by the court, to be taxed and collected as costs.
A commercial transaction is defined as “all transactions except transactions for personal or
household purposes.” I.C. § 12-120(3).
Sims argues that there was no commercial transaction because the lawsuit’s gravamen
was not a commercial transaction and was instead a statutory lien priority question. Thus, Sims
essentially argues that because the gravamen of the entire lawsuit was not a commercial
transaction, the Jacobson group cannot recover their fees for individual claims that were based
on commercial transactions.
Sims’s argument shows a misunderstanding of our past decisions about section 12-
120(3). This Court has stated that Idaho Code section 12-120(3) applies when “the commercial
transaction comprises the gravamen of the lawsuit.” Brower v. E.I. DuPont De Nemours & Co.,
117 Idaho 780, 784, 792 P.2d 345, 349 (1990). However, we have interpreted that rule to require
courts to consider the gravamen of each claim within the lawsuit. Willie v. Bd. of Trs., 138 Idaho
131, 136, 59 P.3d 302, 307 (2002) (“When various statutory and common law claims are
separable, a court should bifurcate the claims and award fees pursuant to § 12-120(3) only on the
commercial transaction.”); Brooks v. Gigray Ranches, Inc., 128 Idaho 72, 79, 910 P.2d 744, 751
(1996) (“The allegation of a contract of the type covered in I.C. § 12-120(3) was sufficient to
award fees, even though the claim was combined with other theories that would not have
triggered application of the statute.”). When a lawsuit has multiple claims, courts look at each
individual claim to determine what statutory basis allows attorney fees recovery on that claim.
Willie, 138 Idaho at 136, 59 P.3d at 307.
Thus, whether a party can recover attorney fees under Idaho Code section 12-120(3)
depends on whether the gravamen of a claim is a commercial transaction. Great Plains Equip.,
Inc. v. Nw. Pipeline Corp., 136 Idaho 466, 472, 36 P.3d 218, 224 (2001). In other words, courts
analyze the gravamen claim by claim. Id.; See also Esser Elec. v. Lost River Ballistics Techs.,
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Inc., 145 Idaho 912, 921, 188 P.3d 854, 863 (2008). A gravamen is “the material or significant
part of a grievance or complaint.” Merriam Webster’s Collegiate Dictionary 509 (10th ed. 1993).
To determine whether the significant part of a claim is a commercial transaction, the court must
analyze whether a commercial transaction (1) is integral to the claim and (2) constitutes the basis
of the party’s theory of recovery on that claim. Great Plains, 136 Idaho at 471, 36 P.3d at 223.
Here, Sims alleged three claims against the Jacobson group to recover the amount due on
his 2008 contract. He claimed lien foreclosure, breach of contract, and quantum meruit. A lien
foreclosure does not have a commercial transaction as its significant part because the basis of
recovery is the in rem enforcement of a statutory claim. L & W Supply Corp. v. Chartrand
Family Trust, 136 Idaho 738, 747, 40 P.3d 96, 105 (2002). Accordingly, attorney fees for the lien
foreclosure claim are not recoverable under Idaho Code section 12-120(3). However, the district
court in this case did not award fees for the lien foreclosure claim because the Jacobson group
requested attorney fees only for the breach of contract and quantum meruit claims.
Breach of contract and quantum meruit are different claims that Sims presented as
alternatives to the lien foreclosure claim. Thus, the district court needed to evaluate section 12-
120(3)’s applicability to these claims separately. The district court did this, holding that these
claims were based on a commercial transaction. This conclusion was correct because “when a
plaintiff alleges a commercial contract exists and the defendant successfully defends by showing
that the commercial contract never existed, the court awards the defendant attorney fees.”
Intermountain Real Props., 155 Idaho at 320, 311 P.3d at 741. The Jacobson group successfully
defended Sims’s allegation that Sims and the Jacobson group had a contract. Therefore, the
Jacobson group was entitled to attorney fees for breach of contract under section 12-120(3).
Further, Sims based his quantum meruit claim on the same commercial transaction, so the
Jacobson group is entitled to attorney fees on that issue under Idaho Code section 12-120(3).
Quantum meruit is not a contract claim, but “Idaho Code § 12-120(3) does not require that there
be a contract between the parties before the statute is applied.” Great Plains, 136 Idaho at 472,
36 P.3d at 224. The statute only requires a commercial transaction. Id. Indeed, the Court of
Appeals accurately followed this language and held that a prevailing party is entitled to attorney
fees under section 12-120(3) when a quasi-contract claim is an alternative to a breach of contract
claim and is based on the same facts and commercial transaction as the contract claim. Erickson
v. Flynn, 138 Idaho 430, 436–37, 64 P.3d 959, 965–66 (Ct. App. 2002). Here, Sims used
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quantum meruit as a breach of contract claim alternative based on the same commercial
transaction. Accordingly, the Jacobson group was entitled to fees under section 12-120(3).
Sims also argues the district court’s award was unreasonable because the Jacobson group
only should have claimed fees that related to answering the complaint, preparing summary
judgment motions, and obtaining the Rule 54(b) certificate. This Court reviews how the trial
court calculates attorney fees for an abuse of discretion. Lettunich v. Lettunich, 145 Idaho 746,
749, 185 P.3d 258, 261 (2008). The district court determined the Jacobson group’s fees were
reasonable. The court considered the Rule 54 factors and found “nothing to indicate any of the
amounts claimed were not necessary or unreasonable under the rule.”
Sims provides little, if any, argument that articulates why the district court abused its
discretion. We have repeatedly held that when the claim involves discretionary issues, “an award
of attorney fees is proper if the appellant fails to make a cogent challenge to the judge’s exercise
of discretion.” J-U-B Engineers, Inc. v. Sec. Ins. Co. of Hartford, 146 Idaho 311, 318, 193 P.3d
858, 865 (2008) (quoting Utter v. Gibbins, 137 Idaho 361, 367, 48 P.3d 1250, 1256 (2002)).
Here, Sims’s opening brief fails to make a cogent challenge to the district court’s discretion.
Sims makes generalized statements without record cites. The law he cites only refers to the
court’s general discretion to award reasonable fees. Sims did not point out the exact fees in
dispute. Thus, Sims did not make a cogent individualized challenge to the court’s exercise of
discretion in his opening brief.
Sims’s reply brief specifically takes issue with the district court’s finding that the
Jacobson group’s fees were not related to the lien foreclosure defense. However, this is a new
issue raised in Sims’s reply brief. The appellant is required to identify legal issues and provide
authority supporting his arguments in the opening brief. Hogg v. Wolske, 142 Idaho 549, 557,
130 P.3d 1087, 1095 (2006). The appellant cannot raise new issues in the reply brief. Id. At the
district court and in his opening brief, Sims argued the fees were unreasonable because they were
unrelated to the lien foreclosure claim. In his reply brief, Sims argues that the district court erred
by allowing fees related to the lien foreclosure defense. These arguments are inconsistent.
Because Sims did not properly raise the issue of whether the district court’s fee award
unreasonably included fees related to lien foreclosure and because Sims did not cogently
challenge the reasonableness of the district court’s award in his opening brief, we affirm the
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district court’s award of reasonable attorney fees and costs to the Jacobson group under section
12-120(3).
B. The Jacobson group is entitled to attorney fees on appeal.
Initially, the Jacobson group requested attorney fees on appeal under Idaho Code sections
12-120(3) and 12-121. After Sims asked for an I.A.R. 32 voluntary dismissal of the lien
foreclosure and continuance issues, the Jacobson group specified that they requested fees on
appeal for defending both of those issues. They claimed sanctions for the lien foreclosure issue.
After this Court allowed Sims to withdraw the lien foreclosure and continuance issues, we noted
our decision on the appeal would address the Jacobson group’s fees request. Thus, we address
those fees here.
The Jacobson group acknowledged that they cannot recover attorney fees for the lien
foreclosure issue on appeal. Indeed, “section 45-513 does not provide for the award of attorney
fees on appeal because the legislature deleted that provision from the statute prior to adopting it.”
First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, Inc., 154 Idaho 626, 632, 301 P.3d 632,
638 (2012) (internal citations omitted). However, the Jacobson group contends they were entitled
to sanctions on the lien foreclosure issue under I.A.R. 11.2 because Sims’s presentation was
“woefully deficient” and the purpose of his dismissal was to “avoid a near-certain adverse
ruling.”
This Court recently clarified that we construe I.A.R. 11.2 the same way as I.R.C.P.
11(a)(1) because the rules have virtually identical wording. Flying A Ranch, Inc. v. Bd. of Cnty.
Comm’rs for Fremont Cnty., 156 Idaho 449, 454, 328 P.3d 429, 434 (2014). We have construed
both I.R.C.P. 11(a)(1) and I.A.R. 11.2 as follows:
The attorney’s or party’s signature on a document constitutes two substantive
certifications: (a) that to the best of the signer’s knowledge, information, and
belief after reasonable inquiry it is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification, or reversal
of existing law, and (b) that it [the document] is not interposed for any improper
purpose. Both certifications must be accurate in order to comply with the rule. If
either of them is not accurate, then the document would be signed in violation of
the rule.
Id. at 453, 328 P.3d at 433 (emphasis in original) (internal citations and quotations omitted). In
other words, attorney fees can be awarded as sanctions when a party or attorney violates either
(a) the frivolous filings clause, or (b) the improper purpose clause. Previously we imposed
sanctions under I.A.R. 11.2 only if the requesting party violated both clauses. Fonseca v. Corral
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Agric., Inc., 156 Idaho 142, 152, 321 P.3d 692, 702 (2014) (“[W]e impose sanctions under I.A.R.
11.2 only if the ‘party requesting them proves: (1) the other party’s arguments are not well
grounded in fact, warranted by existing law, or made in good faith, and (2) the claims were
brought for an improper purpose, such as unnecessary delay or increase in the costs of
litigation.’”). Therefore, we have departed from the test in Fonseca and previous opinions.
Sanctions are now awardable independently under either clause in I.A.R. 11.2.
A party becomes subject to the rule the moment they sign a notice of appeal. I.A.R. 11.2;
Flying A Ranch, Inc., 156 Idaho at 453, 328 P.3d at 433. There is no evidence Sims brought the
appeal for an improper purpose when he signed the notice of appeal and subsequent appellate
documents. The issue then becomes whether Sims’s counsel believed or knew after reasonable
inquiry that his appeal was not grounded in fact and not warranted by existing law or a good faith
argument for the extension of existing law.
Here, Sims argued that his failure to timely comply with Idaho Code section 45-510 was
because he had no notice of the Jacobson group’s interests in the property. Sims argued the
documents in the chain of title made him “confused” and that the policy that materialmen should
get paid for their work should extend when lenders have control over payments.
While the series of documents executed and recorded between Monument Heights and
the Jacobson group may have made Sims “confused,” that confusion is not a legal reason to
relieve Sims from Idaho Code section 45-510’s six-month statute of limitations for lien
enforcement. No legal authority excuses a lien claimant from Idaho Code section 45-510 when
he lacks actual knowledge of each interest in the property. Further, Sims’s confusion could have
been cleared up had he taken the simple step of obtaining a title report or litigation guaranty from
a title company. Sims’s argument that materialmen should be paid is also not a reason to relieve
Sims from the statute of limitations. Sims also argued that I.R.C.P. 17(d) tolled operation of
Idaho Code section 45-510 and listing John and Jane Doe 1–100 gave everyone adequate notice.
Rule 17 is a procedural rule that cannot trump the statute of limitations required in a substantive
statutory law. When Sims’s attorney signed the notice of appeal and his appellate brief, he
should have known after reasonable inquiry that the appeal had no basis in law or fact and was
not warranted by a good faith extension of the existing law. Thus, the Jacobson group is entitled
to sanctions for the lien foreclosure issue.
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The Jacobson group claims they are entitled to fees on appeal under Idaho Code section
12-120(3) for defending the continuance and attorney fees issues because those issues arose from
a commercial transaction. As discussed, the district court based its attorney fees award on an
alleged commercial transaction. The continuance was a procedural claim within Sims’s quantum
meruit claim, which was also the result of an alleged commercial transaction. Idaho Code section
12–120(3) generally mandates an award of attorney fees to the prevailing party on appeal as well
as at trial. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 481, 835 P.2d 1282, 1292 (1992). We
therefore award the Jacobson group their attorney fees and costs for defending the attorney fee
and quantum meruit continuance issues on appeal. Because Sims never withdrew the attorney
fees issue, the Jacobson group recovers fees for that issue from the time Sims filed the notice of
appeal until this decision. However, we limit the Jacobson group’s fees for the quantum meruit
continuance issue to those incurred in defending the appeal until February 13, 2014––the date the
court allowed Sims to withdraw that issue.
V. CONCLUSION
We affirm the district court’s grant of attorney fees and costs. We award the Jacobson
group sanctions and attorney fees on appeal as set forth above. Costs to the Jacobson group.
Justices EISMANN, J. JONES, HORTON and WALTERS, J., Pro tem, CONCUR.
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