Taylor v. Riley

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43686-2015
REED J. TAYLOR, )
) Boise, August 2017 Term
Plaintiff-Appellant, )
) 2017 Opinion No. 100
v. )
) Filed: September 20, 2017
RICHARD A. RILEY and HAWLEY )
TROXELL ENNIS & HAWLEY, LLP, ) Karel A. Lehrman, Clerk
an Idaho limited liability partnership, )
)
Defendants-Respondents, )
)
and )
)
SHARON CUMMINGS, Personal )
Representative of the Estate of Robert M. )
Turnbow, and EBERLE BERLIN KADING )
TURNBOW & MCKLVEEN, CHTD., an )
Idaho Corporation. )
)
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, in and for Ada County. Hon. Richard D. Greenwood, District Judge.
The judgment of the district court is affirmed.
Roderick C. Bond, Roderick Bond Law Office PLLC, Bellevue, Washington,
argued for appellant.
Jeffrey A. Thomson, Elam & Burke PA, Boise, argued for respondents.
EISMANN, Justice.
This is an appeal from a judgment dismissing claims against an attorney and a law firm
that he later joined based upon an opinion letter issued by the attorney in his capacity as
corporate counsel regarding the legality of a stock redemption agreement. The Appellant
challenges the grant of summary judgment to the Respondents and the amount of attorney fees
awarded to them. We affirm the judgment dismissing the claims and the awards of attorney fees,
and we award attorney fees on appeal.
I.
Factual Background.
This case arises out of an opinion letter issued in August 1995 to Reed J. Taylor by
Messrs. Robert A. Riley and Robert M. Turnbow, as counsel for AIA Services Corporation
(“AIA Services”). Mr. Taylor held sixty-three percent of the corporation’s common stock and
served as the Chairman of the Board of Directors and the corporation’s Chief Executive Officer.
In July 1995, Mr. Taylor and AIA Services entered into a stock redemption agreement, in which
the corporation agreed to redeem Mr. Taylor’s stock for $7.5 million and other consideration.
Messrs. Riley and Turnbow represented the corporation in negotiating that agreement, and Mr.
Taylor was represented by his own counsel. The stock redemption agreement required an
opinion letter from the corporation’s legal counsel, and Messrs. Riley and Turnbow participated
in drafting and issuing that letter.
The letter was dated August 15, 1995, and signed “Eberle Berlin Kading Turbow &
McKlveen, Chtd.” (“Eberle Berlin”), which was the law firm of which Mr. Turnbow was a
partner and Mr. Riley was an employee. In the letter, they stated that AIA Services and its
subsidiaries “have full corporate power and authority to enter into, execute and deliver” the stock
redemption agreement and related documents; that the stock redemption agreement and related
documents “constitute the valid and binding obligation of Company and its Subsidiaries
enforceable against them in accordance with their respective terms”; and that neither the stock
redemption agreement nor the consummation of the transaction, “to the best of our knowledge,
violate any law.” The opinion letter was addressed to Mr. Taylor, and it concluded with the
statement, “This opinion is furnished by us solely for your benefit for use in connection with the
Transaction Documents and the transactions contemplated thereby; and it may not be furnished
or quoted to, or relied upon, by any other person.”
The stock redemption transaction closed in August 1995. Pursuant to agreement, AIA
Services gave Mr. Taylor a promissory note in the sum of $1.5 million payable within ninety
days and a promissory note in the sum of $6 million payable in ten years, with monthly interest-
only payments until the note was paid in full. The corporation failed to make the required
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payments, and Mr. Taylor and the corporation executed a restructured stock redemption
agreement dated July 1, 1996. When the corporation failed to make the payments due under that
agreement, Mr. Taylor filed a lawsuit on January 29, 2007, against the corporation, its
subsidiaries, Mr. Taylor’s brother, other officers and directors of AIA Services, and their spouses
(Taylor v. AIA Services Corp.). Before the lawsuit was resolved, Mr. Taylor filed two more
lawsuits against the attorneys who were representing or had represented defendants in the Taylor
v. AIA Services Corp. lawsuit.
In April 2008, defendants in Taylor v. AIA Services Corp. filed motions for a partial
summary judgment alleging that the stock redemption agreement was unenforceable because it
was an illegal contract. The hearing on those motions was held on April 23, 2008. In August
2008, Mr. Taylor filed a lawsuit against Michael E. McNichols and his firm, Clements, Brown
and McNichols, P.A. (Taylor v. McNichols), who initially represented Mr. Taylor’s brother, AIA
Services, and its subsidiary. In April 2007, Mr. McNichols had withdrawn from representing
AIA Services and its subsidiary, and Gary Babbitt and John Ashby, of the law firm Hawley
Troxell Ennis & Hawley, LLP (“Hawley Troxell”), appeared as counsel for those defendants. In
August 2008, Mr. Taylor also filed a lawsuit against Messrs. Babbitt and Ashby, Hawley
Troxell, and two other attorneys from that firm, Patrick Collins and Richard Riley, (Taylor v.
Babbitt). On March 1, 1999, Mr. Riley had left Eberle Berlin and had joined Hawley Troxell.
Mr. Taylor asserted claims against the attorneys for (1) aiding and abetting or assisting
others in the commission of tortious acts in Taylor v. AIA Services Corp.; (2) conversion and
misappropriation of the corporate assets of AIA Services and its subsidiary; (3) violations of
Idaho’s Consumer Protection Act, and (4) professional negligence and/or breach of fiduciary
duties for their conduct in representing AIA Services, including their failure to defend the
accuracy of the opinion letter. The defendants in these two cases filed motions to dismiss, and
the court entered orders granting those motions. The district judge presiding over these two
cases was also the district judge presiding over Taylor v. AIA Services Corp., and he took judicial
notice of that case in toto when deciding the motions. Mr. Taylor filed notices of appeal, but no
judgments had yet been entered in the cases. They were remanded for the entry of judgments,
which were then provided to this Court on March 24, 2010. The two cases were consolidated for
the appeal, and this Court upheld the judgments in favor of the defendants. Taylor v. McNichols,
149 Idaho 826, 243 P.3d 642 (2010).
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On June 17, 2009, the court in Taylor v. AIA Services Corp. held that the stock
redemption agreement was void because a statute in effect in 1995 prohibited a corporation from
redeeming its own shares unless either (a) the corporation had sufficient unreserved and
unrestricted earned surplus to do so or (b) it had sufficient unreserved and unrestricted capital
surplus to do so and the use of capital surplus for the redemption was authorized either by the
articles of incorporation or by the vote of the holders of a majority of all its shares. The court
found, based upon the evidence presented in connection with the motions for summary
judgment, that AIA Services had negative earned surplus in 1995 and that the use of capital
surplus had not been authorized by a vote of the shareholders. Mr. Taylor did not contend that
the use of capital surplus was authorized by the articles of incorporation.
On September 4, 2009, the court in Taylor v. AIA Services Corp. entered a partial
judgment dismissing as to all defendants Mr. Taylor’s claims alleging breach of contract,
misrepresentation, fraud, conversion, constructive trust, specific performance, and breach of the
implied covenants of good faith and fair dealing. That partial judgment was certified as final
pursuant to Rule 54(b) of the Idaho Rules of Civil Procedure. This Court affirmed the partial
judgment on appeal. Taylor v. AIA Servs. Corp., 151 Idaho 552, 261 P.3d 829 (2011).
On October 1, 2009, Mr. Taylor filed this lawsuit against Mr. Riley, Hawley Troxell, Mr.
Turnbow, and Eberle Berlin. In Mr. Taylor’s complaint, he sought to recover damages caused
by his reliance on the opinion letter issued by Messrs. Riley and Turnbow based upon the
theories of negligent misrepresentation, malpractice, consumer protection act violations, breach
of fiduciary duties, and fraud or constructive fraud. Mr. Turnbow passed away while the lawsuit
was pending, and the personal representative of his estate was substituted as a party in his place.
Mr. Taylor and the personal representative ultimately reached a settlement, and Mr. Taylor’s
claims against the estate were dismissed with prejudice.
Mr. Riley and Hawley Troxell filed motions for summary judgment seeking dismissal
with prejudice of all claims alleged against them in the complaint, and Mr. Taylor filed a motion
for partial summary judgment seeking an order that they were liable on all of his claims. After
briefing and argument, the district court entered orders denying Mr. Taylor’s motion, granting
Mr. Riley’s motion with respect to the claims of negligent misrepresentation and violation of the
Consumer Protection Act, and granting Hawley Troxell’s motion dismissing all claims against it.
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On September 7, 2011, this Court issued its opinion in Taylor v. AIA Services Corp.
upholding the judgment that the stock redemption agreement was illegal and therefore void. In
that case, Mr. Taylor argued that if the stock redemption agreement was illegal, it should still be
enforced because he was fraudulently induced to enter into the agreement by the opinion letter.
He also argued that the opinion letter included false assertions of fact. In rejecting those
arguments, this Court in Taylor v. AIA Services Corp. stated as follows:
Third, Reed Taylor argues that even if the Stock Redemption Agreement
is illegal, it should be enforced because he was fraudulently induced to enter into
the agreement by an opinion letter (the Opinion Letter), which offered the opinion
that the Stock Redemption Agreement was legal. The Opinion Letter was written
by a law firm, acting as general counsel for AIA Services in connection with the
agreement, and was addressed to Reed Taylor. Reed Taylor argues that the
district court erred in: (1) refusing to enforce the Stock Redemption Agreement
based upon fraud; (2) finding that the Opinion Letter did not provide factual
representations or mixed representations of fact and opinion; and (3) making these
decisions on fraud without ever permitting Reed Taylor to depose or conduct
discovery with the attorneys who rendered the opinions and factual
representations to him. Reed Taylor makes no argument and provides no
explanation on these claims; he merely states that the district court made these
errors. Furthermore, Reed Taylor cites nothing in the record except for the
district court’s Opinion and Order granting partial summary judgment and its
Opinion and Order on the motion for reconsideration.
Taylor v. AIA Servs. Corp., 151 Idaho at 566, 261 P.3d at 843 (emphasis added).
After quoting the district court’s conclusion that the opinion letter was not a statement of
fact, but merely a statement of opinion that cannot form the basis of a fraud claim, we held:
We affirm the district court in dismissing Reed Taylor’s fraud argument.
On appeal, Reed Taylor merely states the general proposition that an opinion can
form the basis for fraud when there is intent to mislead, but he does not actually
argue that anyone intended to mislead him in this case and points to nothing in
the record suggesting that anyone had such intent. As to Reed Taylor’s claim
that the district court erred in finding an absence of fraud without giving him the
opportunity to depose or conduct discovery with the lawyers who authored the
Opinion Letter, Reed Taylor again makes no argument in this section of his brief
concerning this issue.
Id. (emphasis added).
Based upon our opinion in Taylor v. AIA Services Corp., on December 15, 2011, Mr.
Riley moved for a partial summary judgment dismissing the claims against him for fraud and
constructive fraud. The motion was briefed by Mr. Riley and Mr. Taylor, and it was argued on
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January 30, 2012. Based upon the briefing and oral argument, the district court entered a
decision holding that the fraud and constructive fraud claims were barred by res judicata because
Messrs. Riley and Turnbow were in privity with AIA Services, based upon the fact that they
issued the opinion letter in the course of representing the corporation and, alternatively, that the
fraud and constructive fraud claims were barred by the doctrine of collateral estoppel. On April
30, 2012, the court entered an order dismissing the fraud and constructive fraud claims.
Mr. Riley again moved for summary judgment on several grounds, including that the
claim for malpractice was barred by res judicata based upon the judgment entered in Taylor v.
Babbitt. The district court denied the motion, and Mr. Riley sought a permissive appeal to this
Court on that issue, which this Court granted. On appeal, this Court held that Mr. Taylor’s
malpractice claim against Mr. Riley was barred by the doctrine of res judicata. Taylor v. Riley,
157 Idaho 323, 335, 336 P.3d 256, 268 (2014) (Taylor v. Riley I).
On remand, the district court entered judgments on July 8, 2015, dismissing with
prejudice all claims against Hawley Troxell and all claims against Mr. Riley. The court also
awarded Mr. Riley and Hawley Troxell court costs and attorney fees. Mr. Taylor and Sharon
Cummings, the personal representative of Mr. Turnbow’s estate, reached an agreement to settle
the claims against the estate, and on September 18, 2015, the court entered a judgment
dismissing all claims against the estate.
On October 23, 2015, Mr. Taylor filed a motion asking the district court to reconsider
various orders and decisions it had entered during the litigation and the judgments entered in
favor of Riley and Hawley Troxell. Mr. Taylor filed a notice of appeal on October 29, 2015, and
on January 5, 2016, the court entered an order denying his motion for reconsideration.
II.
Did the District Court Err in Dismissing Mr. Taylor’s Claim for Negligent
Misrepresentation?
As the first claim for relief in his complaint, Mr. Taylor alleged that Mr. Riley was liable
for alleged false representations made in the opinion letter based upon the tort of negligent
misrepresentation. Mr. Riley moved for summary judgment dismissing that claim, which the
district court granted based upon this Court’s opinions in Duffin v. Idaho Crop Improvement
Ass’n, 126 Idaho 1002, 895 P.2d 1195 (1995), and Mannos v. Moss, 143 Idaho 927, 155 P.3d
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1166 (2007). In Duffin, we held that, “except in the narrow confines of a professional
relationship involving an accountant, the tort of negligent misrepresentation is not recognized in
Idaho.” 126 Idaho at 1010, 895 P.2d at 1203. In Mannos, we reaffirmed that holding. 143
Idaho at 935, 155 P.3d at 1174. On appeal, Mr. Taylor asks us to expand the tort of negligent
misrepresentation to include attorneys. We need not address the arguments he makes in asking
us to do so, because any claim for negligent misrepresentation would be barred by res judicata,
based upon our opinion in Taylor v. Riley I. In that appeal, we held that Mr. Taylor’s claim,
which he alleged in his complaint as being for “professional negligence, malpractice, negligence
and/or negligent issuance of an opinion letter” was barred by the doctrine of res judicata. 157
Idaho at 335, 336 P.3d at 268. A claim for negligent misrepresentation based upon the content of
the opinion letter is the same cause of action under a different theory, and so it too would be
barred by the doctrine of res judicata. Therefore, we will not address this issue.
III.
Did the District Court Err in Dismissing Mr. Taylor’s Claim for Malpractice?
As the second claim for relief in his complaint, Mr. Taylor alleged that Mr. Riley
committed malpractice in drafting and issuing the opinion letter. Mr. Taylor contends on appeal
that the district court erred in holding that his malpractice claim was barred by the doctrine of res
judicata.
Mr. Riley moved for summary judgment seeking dismissal of the malpractice claim on
the ground that it was barred by the doctrine of res judicata based upon the judgment in Taylor v.
Babbitt, and the district court denied that motion. This Court granted Mr. Riley’s request for a
permissive appeal to decide that issue. On appeal, we held that Mr. Taylor’s malpractice claim
against Mr. Riley was barred by res judicata, and we remanded the case to the district court.
Taylor v. Riley I, 157 Idaho at 335, 340, 336 P.3d at 268, 273. Based upon the doctrine of “law
of the case,” the district court did not err in holding that Mr. Taylor’s malpractice claim was
barred by res judicata.
The doctrine of “law of the case” is well established in Idaho and provides
that “upon an appeal, the Supreme Court, in deciding a case presented states in its
opinion a principle or rule of law necessary to the decision, such pronouncement
becomes the law of the case, and must be adhered to throughout its subsequent
progress, both in the trial court and upon subsequent appeal . . . .”
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Swanson v. Swanson, 134 Idaho 512, 515, 5 P.3d 973, 976 (2000). Therefore, we will not revisit
our prior holding that Mr. Taylor’s malpractice claim is barred by res judicata.
IV.
Did the District Court Err in Dismissing Mr. Taylor’s Claims for Breach of Fiduciary
Duties?
As the fourth claim for relief in his complaint, Mr. Taylor alleged that Mr. Riley’s actions
in representing AIA Services in Taylor v. AIA Services Corp. violated fiduciary duties owed to
Mr. Taylor, including the duty of loyalty. In Taylor v. Riley I, we held that an attorney could
voluntarily assume a duty to a nonclient and that the statement in the opinion letter stating that
Mr. Taylor could rely upon it created a duty of care to Mr. Taylor with respect to the issuance of
the opinion letter. 157 Idaho at 339, 336 P.3d at 272. Mr. Taylor contends that Mr. Riley’s
representation of AIA Services in connection with the stock redemption agreement and in
drafting the opinion letter created a fiduciary duty owing to Mr. Taylor and that Mr. Riley
breached that duty when he “asserted arguments contrary to the Opinion Letter and engaged in
representation adverse to the Opinion Letter and the legal representation provided for the
redemption agreement and related agreements.” Because Mr. Riley became a partner in Hawley
Troxell on March 1, 1999, Mr. Taylor alleges that Hawley Troxell is also liable for the alleged
breach of fiduciary duties.
The material allegations in Mr. Taylor’s complaint are as follows:
55. Defendants Riley, Turnbow and Eberle Berlin owed Reed Taylor
fiduciary duties as the majority shareholder of AIA Services, the Chairman of the
Board of AIA Services, the Chief Executive Officer of AIA Services, and the
direct intended third-party beneficiary of the legal representation pertaining to the
redemption of his shares and the recipient of the Opinion Letter expressly drafted
for his reliance. They also owed additional fiduciary duties by the fact that
Defendants Eberle Berlin, Turnbow and Riley provided the Opinion Letter at the
request of AIA Services.
56. . . . . Defendant Riley, and, consequently, Defendant Hawley
Troxell owed Reed Taylor fiduciaries duties (including, without limitation, the
duty of loyalty) to not make arguments which are contrary to the Opinion Letter
and to not undertake any representations which were adverse to the Opinion
Letter or Reed Taylor, which pertain in any way to the redemption of his shares or
the redemption agreement and related agreements. Defendants have engaged in a
course of self-dealing, deception and/or misrepresentations which go beyond the
mere allegations of negligence.
8
....
59. Defendant Riley, and, consequently, Defendant Hawley Troxell,
breached their fiduciary duties and duties of good faith and fair dealing owed to
Reed Taylor when they asserted arguments contrary to the Opinion Letter and
engaged in representation adverse to the Opinion Letter and the legal
representation provided for the redemption agreement and related agreements,
which such arguments and adverse representations are a direct violation of
fiduciary duties owed to Reed Taylor, including the duty of loyalty.
Mr. Riley and Hawley Troxell filed a motion for summary judgment seeking dismissal of
Mr. Taylor’s complaint on the ground that it was barred by the doctrine of res judicata. Mr.
Turnbow and Eberle Berlin moved for summary judgment and argued with respect to this claim
that there was no attorney-client relationship between Mr. Turnbow and Mr. Taylor. In response
to Mr. Taylor’s motion for a partial summary judgment, Mr. Riley and Hawley Troxell also
argued that Mr. Riley did not have a fiduciary or attorney-client relationship with Mr. Taylor.
The district court granted summary judgment on this claim on the ground the acts of Messrs.
Turnbow and Riley in issuing the opinion letter did not create a fiduciary or attorney-client
relationship with Mr. Taylor.
On appeal, Mr. Riley and Hawley Troxell argue that the claim for breach of fiduciary
duty was barred by res judicata. We affirm the dismissal of this claim on that ground, but our
doing so should not be taken as an indication that we believe that the opinion letter created an
attorney-client or fiduciary relationship with Mr. Taylor.
On August 18, 2008, Mr. Taylor filed Taylor v. Babbitt against Mr. Riley, Hawley
Troxell, and others. In that lawsuit, Mr. Taylor alleged various claims against Mr. Riley and
Hawley Troxell based upon their conduct in representing AIA Services in the Taylor v. AIA
Services Corp. lawsuit, including that they breached fiduciary duties and the duty of loyalty
allegedly owing to Mr. Taylor. Mr. Taylor’s complaint in Taylor v. Babbitt alleged:
62. The Defendants owed AIA Services Corporation, AIA Insurance,
Inc. and/or Reed J. Taylor a duty of care to provide, including, but not limited to,
reasonable, prudent, ethical, unconflicted, loyal and professional legal advice and
legal representation in keeping with the standard of care in the legal profession
and as owed to the corporations (referred to herein and above as “duty of care”).
The Defendants breached their duty of care as a result of their acts and/or
omissions thereby damaging the corporations and Reed J. Taylor, to the detriment
of Reed J. Taylor.
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63. The Defendants breached their fiduciary duties owed to AIA
Services Corporation, AIA Insurance, Inc., and/or Plaintiff Reed J. Taylor,
including, without limitation, the duties of care and loyalty.
64. The Defendants’ acts constitute professional negligence and/or
breach of the Defendants’ fiduciary duties, and such conduct has damaged the
corporations and Reed J. Taylor, in an amount to be proven at trial or on summary
judgment.
Mr. Taylor’s complaint in Taylor v. Babbitt also alleged that Mr. Riley’s conduct, for
which Hawley Troxell was also liable, included asserting arguments in Taylor v. AIA Services
Corp. that were counter to representations made in the opinion letter. He alleged:
53. The Defendants were fully aware of Reed J. Taylor’s rights to
property in which he held a security interest and was pledged to him as collateral.
In fact, Defendant Richard A. Riley represented AIA Services Corporation in the
redemption of Reed J. Taylor’s shares and the drafting of the Amended and
Restated Stock Pledge Agreement and other applicable agreements. Defendants
were responsible for issuing opinion letters relating to the transaction, which
include various applicable representations and warranties. Defendants are now
asserting arguments counter to the representations made in the opinion letter
drafted by Defendants by and through Defendant Richard A. Riley. . . .
....
56. The Defendants’ conduct constitutes the willful interference with
property and money belonging to AIA Services Corporation, AIA Insurance, Inc.
and/or Reed J. Taylor and/or which such property and money should be under the
possession and/or control of Reed J. Taylor, as the person entitled to such money
and property as a creditor and pledgee. The Defendants deprived Reed J. Taylor
possession of such property and money. Despite Reed J. Taylor’s demands, the
Defendants have refused to return such property and money.
(Emphasis added.)
“Mr. Taylor’s cause of action against Mr. Riley based upon the issuance of the opinion
letter accrued in April 2008 when he was required to incur attorney fees to counter the claim that
the stock redemption agreement was an illegal contract.” Taylor v. Riley I, 157 Idaho at 333, 336
P.3d at 266. By August 18, 2008, Mr. Riley and Hawley Troxell had asserted arguments counter
to the representations made in the opinion letter, because Mr. Taylor so alleged in the complaint
he filed in Taylor v. Babbitt, and he also alleged that he had been damaged by such breach of
fiduciary duties. A plaintiff who files a lawsuit alleging that he had been damaged by the
defendant’s conduct cannot later claim that he had not suffered any damage when the judgment
in that lawsuit is subsequently asserted as the basis for a defense of res judicata in another
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lawsuit. Any cause of action he had with respect to the alleged breach of fiduciary duties had
arisen by that time.
On appeal in Taylor v. Babbitt, we upheld the dismissal of Mr. Taylor’s claims against
Hawley Troxell and the attorneys in that firm, including Mr. Riley, for malpractice and breach of
fiduciary duties in their representation of AIA Services in the Taylor v. AIA Services Corp.
lawsuit. With respect to the claim for legal malpractice, we stated, “It is clear that Reed
[Taylor], in his complaints, has failed to allege that he is in an attorney-client relationship with
Respondents, and therefore lacks the privity necessary to sue Respondents for legal malpractice.”
149 Idaho at 845, 243 P.3d at 661. With respect to the claim for breach of fiduciary duties, we
held, “Reed [Taylor] has failed to allege facts which can support a finding that Respondents
owed any fiduciary duty to Reed personally.” Id. Thus, Mr. Taylor’s claim of breach of
fiduciary duties alleged in this lawsuit is the same claim that he alleged in Taylor v. Babbitt, and
the claim here is barred under the doctrine of res judicata by the judgment entered in that case.
“In Taylor v. Babbitt, the district court had jurisdiction over the parties and the subject of
the litigation, and it entered a final judgment dismissing Mr. Taylor’s complaint with prejudice.”
Taylor v. Riley, 157 Idaho at 334, 336 P.3d at 267. “[T]he former adjudication concludes parties
and privies not only as to every matter offered and received to sustain or defeat the claim, but
also as to every matter which might and should have been litigated in the first suit.” Joyce v.
Murphy Land & Irrigation Co., 35 Idaho 549, 553, 208 P. 241, 242–43 (1922). Therefore, any
cause of action that Mr. Taylor allegedly had for breach of fiduciary duties is barred by the
doctrine of res judicata.
V.
Did the District Court Err in Dismissing Mr. Taylor’s Claim for Fraud or Constructive
Fraud?
As the fifth claim for relief in his complaint, Mr. Taylor alleged that Mr. Riley committed
fraud and constructive fraud and that Hawley Troxell was liable for his actions. In support of
those claims, Mr. Taylor alleged, at least in part, that the statements in the opinion letter
constituted fraud or constructive fraud. In Taylor v. AIA Services, Corp., the district court held
that the opinion letter “is, simply, an opinion based on one’s interpretation of law and cannot
form the basis for a fraud claim,” and we affirmed the district court’s rejection of Mr. Taylor’s
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fraud argument based upon the opinion letter. 151 Idaho at 566, 261 P.3d at 843. Based upon
that opinion, Mr. Riley moved on December 15, 2011, for a partial summary judgment
dismissing the claims for fraud and constructive fraud. After the motion was briefed, it was
argued on January 30, 2012. The district court later granted Mr. Riley’s motion, holding that the
claims of fraud and constructive fraud were barred by res judicata and, in the alternative,
collateral estoppel. In Taylor v. Babbitt, Mr. Taylor alleged a claim against Mr. Riley and
Hawley Troxell for fraud and constructive fraud. We upheld the dismissal of those claims,
stating as follows:
Reed [Taylor], also claims that his complaints and amended complaints
pled causes of action for fraud and constructive fraud. Pursuant to Idaho Rule of
Civil Procedure 9(b), fraud must be pled with particularity. As this Court wrote in
Glaze v. Deffenbaugh:
A party must establish nine elements to prove fraud: “1) a statement or a
representation of fact; 2) its falsity; 3) its materiality; 4) the speaker’s
knowledge of its falsity; 5) the speaker’s intent that there be reliance; 6)
the hearer’s ignorance of the falsity of the statement; 7) reliance by the
hearer; 8) justifiable reliance; and 9) resultant injury.”
Reed fails to plead these elements in a general sense, let alone with particularity
and, as such, has failed to state a claim upon which relief may be granted as to
fraud.
“An action in constructive fraud exists when there has been a breach of a
duty arising from a relationship of trust and confidence, as in a fiduciary duty.”
“Examples of relationships from which the law will impose fiduciary obligations
on the parties include when the parties are: members of the same family, partners,
attorney and client, executor and beneficiary of an estate, principal and agent,
insurer and insured, or close friends.” It is clear that Reed has not alleged facts
sufficient to support an inference that he is in an analogous relationship with
Respondents, and has therefore not pled a claim upon which relief may be granted
as to constructive fraud.
Taylor v. McNichols, 149 Idaho at 845–46, 243 P.3d at 661–62 (citations omitted).
On appeal, Mr. Taylor argues that “[t]he district court erred in holding that collateral
estoppel barred Taylor’s fraud claims because Riley did not establish all of the requisite elements
of collateral estoppel.” He asserts that there are two reasons why collateral estoppel does not
apply—“Taylor’s fraud and constructive fraud claims are not barred by collateral estoppel
because the current fraud claims are different than those litigated in AIA, and because Taylor did
not have an opportunity to fully and fairly litigate the current fraud claims AIA.”
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Mr. Taylor contends that his current fraud claims are different from those he asserted in
Taylor v. AIA Services Corp. because “Taylor’s current fraud claims against Riley are not based
upon the opinions set forth in the Opinion Letter, but rather on the material facts that Riley
intentionally omitted from the Opinion Letter.” He asserts, “If these facts had been made known
to Taylor before the Opinion Letter was delivered, then the Opinion letter would not have been
intentionally misleading” and “Reed Taylor or any other reasonable opinion recipient would
have elected to not sell his shares.” In essence, he is contending that he was fraudulently
induced to enter into the stock redemption agreement not based upon what was stated in the
opinion letter, but what was not stated in the opinion letter. In both instances, his claim is that he
was deceived by the contents of the opinion letter.
Mr. Taylor contends that he did not have a full and fair opportunity to litigate the issue of
fraud in Taylor v. AIA Services Corp. He argues that “[t]he AIA district court stayed general
discovery and prohibited Taylor from deposing Riley,” that the district court in this case stayed
discovery until after this Court’s decision in Taylor v. AIA Services Corp., and that he “did not
have a full and fair opportunity to litigate his current claims in AIA because it was not until
February/March of 2012 that Taylor learned that Riley had been concealing these material facts.”
In Taylor v. AIA Services Corp., Mr. Taylor raised the issue that the district court in that case
erred in “making these decisions on fraud without ever permitting Reed Taylor to depose or
conduct discovery with the attorneys who rendered the opinions and factual representations to
him.” Taylor v. AIA Services, Corp., 151 Idaho at 566, 261 P.3d at 843. However, he was
deemed to have waived that issue on appeal because he did not present any argument in support
of it. “As to Reed Taylor’s claim that the district court erred in finding an absence of fraud
without giving him the opportunity to depose or conduct discovery with the lawyers who
authored the Opinion Letter, Reed Taylor again makes no argument in this section of his brief
concerning this issue.” Id. We have long held, “Where a party raises an issue on appeal but fails
to support the alleged error with argument and authority, the party is deemed to have waived the
issue.” U.S. Bank Nat. Ass’n v. Kuenzli, 134 Idaho 222, 226, 999 P.2d 877, 881 (2000); accord
Harp v. Stonebraker, 57 Idaho 434, 65 P.2d 766, 767 (1937). Thus, in Taylor v. AIA Services
Corp., Mr. Taylor failed to properly raise on appeal the assertion that he should have been able to
conduct discovery from Mr. Riley regarding the opinion letter before his fraud claims were
decided.
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In Taylor v. AIA Services Corp., Mr. Taylor alleged that “he was fraudulently induced to
enter into the agreement by [the] opinion letter.” 151 Idaho at 566, 261 P.3d 843. We upheld
the rejection of Mr. Taylor’s claims of fraud because he “merely states the general proposition
that an opinion can form the basis for fraud when there is intent to mislead, but he does not
actually argue that anyone intended to mislead him in this case and points to nothing in the
record suggesting that anyone had such intent.” Id. In Taylor v. Babbitt, Mr. Taylor alleged that
Mr. Riley and others committed fraud and constructive fraud, but he failed “to plead [the]
elements in a general sense, let alone with particularity and, as such, has failed to state a claim
upon which relief may be granted as to fraud. Taylor v. McNichols, 149 Idaho at 846, 243 P.3d
at 662. Res judicata applies even if the prior lawsuit failed to state a claim, 47 Am. Jur. 2d
Judgments § 545 (2006), or was unsupported by evidence. Id. § 564.
In its decision entered on April 5, 2012, the district court in this case granted Mr. Riley’s
motion for partial summary judgment regarding the fraud claims on two independent grounds:
“Because Taylor v. AIA services constituted a final judgment, res judicata is appropriate to bar
Taylor’s claim for fraud. Alternatively, collateral estoppel applies to Taylor’s claim for fraud.”
With respect to his alleged fraud claims, Mr. Taylor only argues on appeal that the court erred in
granting summary judgment based upon collateral estoppel. He does not present argument and
authority in his opening brief that the court erred in granting summary judgment based upon res
judicata. He only argued that it was error to dismiss his claims for professional malpractice,
negligent misrepresentation, and breach of fiduciary duty based upon the doctrine of res judicata.
“Where a lower court makes a ruling based on two alternative grounds and only one of those
grounds is challenged on appeal, the appellate court must affirm on the uncontested basis.” State
v. Grazian, 144 Idaho 510, 517–18, 164 P.3d 790, 797–98 (2007). Therefore, we will not
address whether the district court erred in dismissing the fraud claims based upon collateral
estoppel because Mr. Taylor has not argued on appeal that the district court erred in dismissing
the fraud claims based upon res judicata.
Mr. Taylor contends that because he was prevented from taking Mr. Riley’s deposition
before the entry of judgment in Taylor v. Babbitt, he has new evidence that supports his claim of
fraud. He argues:
After the district court held that issue preclusion barred Taylor’s fraud
claims in this case, Riley supplemented written discovery answers and disclosed,
for the first time, the reasoning, explanation, and rationale that supported the
14
opinions contained in the Opinion Letter. Thereafter, on March 29-30, 2012,
Taylor finally had the opportunity to depose Riley. At Riley’s deposition, he
testified to the reasons that he believed his Opinion Letter was correct. Riley also
testified that he believed that Taylor did not engage in a preferential transaction.
Based on the substance of Riley’s February 2012 disclosures and March
2012 deposition, Taylor finally had concrete information that the Opinion Letter
improperly omitted material facts, thereby establishing facts needed to support
causes of action against Riley for fraud and constructive fraud, as well as reviving
claims for professional malpractice and breach of fiduciary duty, to the extent
such claims were related to these material omissions.
(Citations to record omitted.)
Res judicata precludes the relitigation of the same claim even if there is new evidence to
support it. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 403, 913 P.2d 1168, 1173 (1996).
However, with respect to a fraud claim, res judicata would not bar the claim if Mr. Taylor could
not have discovered the fraud by the exercise of due diligence. Kawai Farms, Inc. v. Longstreet,
121 Idaho 610, 614–15, 826 P.2d 1322, 1326–27 (1992). As stated above, Mr. Taylor failed to
properly appeal his assertion that the district court in Taylor v. AIA Services Corp. erred in
granting summary on his fraud claim without permitting him to depose Mr. Riley. We need not
decide whether this failure constitutes a lack of due diligence or whether the alleged new
evidence supports a claim for fraud because Mr. Taylor did not timely present the alleged new
evidence to the district court.
Mr. Riley supported his motion for reconsideration by filing on October 23, 2015, his
declaration, the declarations of his counsel, and the declaration of his expert, who opined that
Mr. Riley had “intentionally prepared and delivered the misleading Opinion Letter to Reed
Taylor” and that it was impossible “to ascertain that the Opinion Letter was intentionally
misleading when such disclosures and reasoning were omitted from the Opinion Letter until Mr.
Riley first disclosed that information on February 22, 2012.”
The partial judgments entered in this case became final judgments on September 18,
2015. On July 8, 2015, the district court entered an “Amended Judgment” stating that “[t]he
Plaintiff’s Complaint against Defendant Hawley Troxell Ennis & Hawley, LLP, is dismissed in
its entirety with prejudice” and awarding Hawley Troxell court costs and attorney fees. 1 On the
1
The judgment was titled “Amended Judgment” because on June 3, 2010, the district court had entered a document
titled “Judgment” purporting to dismiss Mr. Taylor’s claims against Hawley Troxell, but the document did not
constitute a judgment because it did not comply with Idaho Rule of Civil Procedure 54(a) (2009). That rule stated
15
same date, the district court entered an “Amended Judgment” stating that “[t]he Plaintiff’s
Complaint against Defendant Richard A. Riley is dismissed in its entirety with prejudice” and
awarding Mr. Riley court costs and attorney fees. 2 On September 18, 2015, the court entered a
“Judgment” stating, “Judgment is entered as to all claims against Defendants Sharon Cummings,
Personal Representative of the Estate of Robert M. Turnbow and Eberle, Berlin, Kading,
Turnbow & McKlveen, Chartered, which are dismissed with prejudice.” Upon the entry of this
judgment on September 18, 2015, the claims against all defendants in the action had been
dismissed with prejudice. “A judgment is final if . . . judgment has been entered on all claims for
relief, except costs and fees, asserted by or against all parties in the action.” I.R.C.P. 54(a)
(2015). Upon the entry of the judgment on September 18, 2015, all of the three judgments
became final judgments.
Rule 11(a)(2)(B) provides, “A motion for reconsideration of any interlocutory orders of
the trial court may be made at any time before the entry of final judgment but not later than
fourteen (14) days after the entry of the final judgment.” I.R.C.P. 11(a)(2)(B) (2015). The
motion for reconsideration had to be filed by October 2, 2015, but it was not filed until October
23, 2015, which was twenty-one days too late. Although the district court considered the motion
for reconsideration and denied it on January 5, 2016, it did not have jurisdiction to consider the
motion because it was not timely filed. See O’Neil v. Schuckardt, 116 Idaho 507, 509–10, 777
P.2d 729, 731–32 (1989) (trial court was without jurisdiction to decide an untimely motion for a
new trial); Vulk v. Haley, 112 Idaho 855, 860, 736 P.2d 1309, 1314 (1987) (trial court had no
jurisdiction to amend judgment where there was no timely motion to alter or amend the
judgment). Therefore, the denial of the motion for reconsideration is not an issue for
that “[a] judgment shall not contain . . . the record of prior proceedings,” and the document included a record of
prior proceedings.
2
On February 20, 2015, the court had entered a document titled “Judgment” purporting to dismiss Mr. Taylor’s
claims against Mr. Riley, but the document did not constitute a judgment because it did not comply with Idaho Rule
of Civil Procedure 54(a) (2014). That rule stated that “[a] judgment shall state the relief to which a party is entitled
on one or more claims for relief in the action,” and the document included a statement regarding the manner in
which the court would later assess and order costs and attorney fees. That statement did not constitute the granting
of relief to which any party was entitled on a claim for relief in the action. See Spokane Structures, Inc. v. Equitable
Inv., LLC, 148 Idaho 616, 619, 226 P.3d 1263, 1266 (2010) (“The ‘judgment sought’ is not an order granting a
motion for summary judgment. The judgment sought is a final determination of a claim or claims for relief in the
lawsuit.”).
16
consideration on appeal, nor can the documents submitted with that motion be considered on
appeal. 3
On October 9, 2015, the district court entered a “Final Amended Judgment” dismissing
Mr. Taylor’s claims against Mr. Riley and a “Final Amended Judgment” dismissing Mr. Taylor’s
claims against Hawley Troxell. Both of these judgments were identical to the respective prior
amended judgments dismissing with prejudice the claims against those parties, except that each
“Final Amended Judgment” included a Rule 54(b) certificate declaring the judgment to be final.
That certificate was meaningless because the judgments were already final.
On March 3, 2016, the district court entered an order awarding Mr. Riley and Hawley
Troxell each an additional $3,750.00 in attorney fees. Those fees were awarded for defending
against Mr. Taylor’s motion for reconsideration. On the same date the court entered a “Second
Amended Judgment” with respect to Hawley Troxell increasing its award of court costs and
attorney fees from $25,029.00 to $28,779.00 and a “Second Amended Judgment” with respect to
Mr. Riley increasing his award of court costs and attorney fees from $239,265.25 to
$243,015.25. Neither of these judgments amended the prior judgment with respect to the
dismissal of Mr. Taylor’s claims with prejudice. Therefore, those judgments did not alter the
time for filing his motion for reconsideration as to the interlocutory decisions upon which the
judgments were based.
We have held that an amended judgment that does not alter the material terms from
which a party might have appealed does not enlarge the time for filing an appeal. Vierstra v.
Vierstra, 153 Idaho 873, 880, 292 P.3d 264, 271 (2012). Similarly, the entry of the final
amended judgments and second amended judgments in this case did not extend the time for
filing a motion for reconsideration. The final amended judgments did not alter the material terms
of the respective amended judgments, and the addition of the Rule 54(b) certificates in the final
amended judgments were meaningless because the amended judgments were already final. The
second amended judgments only increased the amounts of the costs and attorney fees awarded,
they did not alter the prior judgments dismissing Mr. Taylor’s claims. “An attorney fee award
3
Mr. Taylor filed a notice of appeal on October 29, 2015, which was timely. Idaho Appellate Rule 13(b)(7) states
that the district court has the power and authority during the pendency of an appeal to “[r]ule upon any motion for
reconsideration filed pursuant to Rule 11(a)(2)(B), I.R.C.P.” Mr. Riley’s motion for reconsideration was not filed
pursuant to that rule because it was untimely.
17
made subsequent to entry of judgment in a case does not affect the finality of the original
judgment.” Tanner v. Cobb’s Estate, 101 Idaho 444, 446, 614 P.2d 984, 986 (1980).
The issue regarding the timeliness of the motion for reconsideration was raised by this
Court during oral argument, and the parties submitted supplemental briefs on that issue. Mr.
Taylor contends that the motion for reconsideration should be timely for various reasons. He
asserts that absent a Rule 54(b)(1) certificate, Rule 54(a)(1) requires one judgment adjudicating
all claims. That is not what the rule says. It states, “A judgment is final if either it is a partial
judgment that has been certified as final pursuant to subsection (b)(1) of this rule or judgment
has been entered on all claims for relief, except costs and fees, asserted by or against all parties
in the action.” Upon the entry of the partial judgment dismissing all claims against the Turnbow
estate and Eberle Berlin, “judgment ha[d] been entered on all claims for relief, except costs and
fees, asserted by or against all parties in the action.” I.R.C.P 54(a)(1). The rule does not state
that the judgment is final when “one” judgment has been entered dismissing all claims.
Relying upon Rule 54(b)(1) of the Idaho Rules of Civil Procedure, Mr. Taylor contends
that the partial judgment entered on September 18, 2015, dismissing all claims against the
Turnbow estate and Eberle Berlin was not a final judgment because it did not adjudicate all
claims in the lawsuit. He is correct that this partial judgment by itself did not adjudicate all
claims in the lawsuit. However, as a result of the entry of this partial judgment and the two prior
partial judgments, judgment was entered on all claims in the lawsuit and so all three of the partial
judgments became final judgments.
Mr. Taylor also argues, “In addition, technically speaking, while the Estate of Turnbow
was eventually substituted in as a defendant, there still is no judgment that specifically addresses
the claims assert [sic] against Turnbow individually in the complaint.” (Citation to record
omitted.) Mr. Turnbow died and the personal representive of his estate was substituted in his
place as a party to this lawsuit. Mr. Turnbow is no longer a party, and therefore a judgment
could not address him individually. The claims against him were asserted against his estate,
which settled those claims with Mr. Taylor.
Mr. Taylor next argues that the district court and the parties did not intend that the
judgments be final once partial judgments were entered on all claims. Decades ago, this Court
did consider intent in determining whether a document was a final judgment. McPheters v. Cent.
Mut. Ins. Co., 83 Idaho 472, 474, 365 P.2d 47, 48 (1961) (“Although in terms a final judgment,
18
the record shows that neither counsel for plaintiffs nor the district judge intended or regarded the
minute entry of February 2, 1961, as a final judgment, but rather regarded it as an order for
judgment. Thus, the minute entry was not a final judgment.”); Equal Water Rights Ass’n v. City
of Coeur d’Alene, 110 Idaho 247, 249, 715 P.2d 917, 919 (1985) (Appeal from document titled
“Final Judgment” entered on December 7, 1982, was untimely because “we perceive that the
judgment and order signed by the district court on June 17, 1982 was intended to be the final
judgment and order in the case.”). However, since then, Rule 54(a) has been amended to clearly
define what constitutes a final judgment, and it does not depend upon the intent of the trial court
or the parties. For example, in Wickel v. Chamberlain, 159 Idaho 532, 363 P.3d 854 (2015), the
trial court granted Dr. Chamberlain’s motion for summary judgment on the ground that Wickel
had failed to show the applicable standard of health care, and it “entered a document styled as a
‘Final Judgment’ on July 30, 2013 (July 2013 Judgment), dismissing Wickel’s complaint with
prejudice.” Id. at 534, 363 P.3d at 856. “Wickel timely appealed to this Court, and Dr.
Chamberlain cross-appealed.” Id. at 535, 363 P.3d at 857. Thus, the trial court obviously
intended and the parties believed that the “Final Judgment” was a final, appealable judgment.
“On October 28, 2013, this Court remanded the matter to the district court because the July 2013
Judgment was not a final judgment as defined by I.R.C.P. 54(a).” Id. While the case was on
remand to the trial court, Wickel filed a motion for reconsideration and submitted an additional
affidavit to establish the standard of care. Id. The trial court entered a judgment that complied
with Rule 54(a) and later held a hearing on whether it had jurisdiction to hear the motion for
reconsideration. Id. at 536, 363 P.3d at 856. The trial court held that it did not have jurisdiction
to hear the motion for reconsideration because “ ‘[t]he imperfections in the July 30, 2013 final
judgment were not a result of actions of the parties . . . it would be unjust for this Court to allow
the party to benefit from the error.’ ” Id. at 536, 363 P.3d at 858. We disagreed, holding that the
motion for reconsideration filed while the case was on remand for the entry of a final judgment
was timely, based upon the plain language of the applicable rule. We stated:
The July 2013 Judgment contained procedural history and, thus, was not a final
judgment. Based upon the plain language of the Idaho Rules of Civil Procedure,
the July 2013 Judgment was an interlocutory order and subject to reconsideration.
Wickel filed his Second Motion for Reconsideration prior to entry of a final
judgment on October, 31, 2013. Because I.R.C.P. 11(a)(2)(B) allows motions to
reconsider to be filed at any time before entry of a final judgment, and because
19
there was no final judgment at the time Wickel filed his Second Motion to
Reconsider, the motion was timely.
Id. at 537, 363 P.3d at 859. Thus, the intent of the trial court and the belief of the parties as to
whether the July 2013 Judgment was a final judgment did not make it a final judgment where it
was not final under the Rules of Civil Procedure.
Likewise, in Doe v. Doe, 155 Idaho 660, 315 P.3d 848 (2013), the petitioner, the
grandmother of a child born out of wedlock, had submitted a proposed judgment to the trial court
and it had signed the purported judgment terminating the parental rights of the child’s father and
granting the grandmother’s petition for adoption. Id. at 661, 315 P.3d at 849. When the father
learned of the court proceedings, he filed a motion for relief from proposed judgment pursuant to
Rule 60(b) of the Idaho Rules of Civil Procedure. Id. at 662, 315 P.3d at 850. Although the trial
court and the petitioner intended that the purported judgment was a final judgment and the father
believed it was a final judgment, it was not because it did not comply with Rule 54(a) of the
Idaho Rules of Civil Procedure. Id. at 663, 315 P.3d at 851. Thus, we have rejected the
contention that a judgment is or is not final if the trial court and/or parties intended it to be. The
issue is not intent, but rather. whether it is final under Rule 54(a)(1) of the Idaho Rules of Civil
Procedure. After Rule 54(a) was amended in 2010, whether a document constitutes a judgment
and whether that judgment is final are based upon an objective standard, not on a subjective
standard.
Finally, Mr. Taylor argues that any error in failing to make a timely motion for
reconsideration either was harmless and should be disregarded pursuant to Rule 61 of the Idaho
Rules of Civil Procedure or was waived by Riley and Hawley Troxell, because they did not
object in the district court to its consideration of the motion for reconsideration. As stated above,
the failure to make a timely motion for reconsideration was jurisdictional. The district court had
no jurisdiction to address an untimely motion for reconsideration. Neither Rule 61 nor the
failure to object can remedy the court’s lack of jurisdiction.
Rule 11(a)(2)(B) provided, “A motion for reconsideration of any interlocutory orders of
the trial court may be made at any time before the entry of final judgment but not later than
fourteen (14) days after the entry of the final judgment.” I.R.C.P. 11(a)(2)(B) (2015). The
motion for reconsideration had to be filed by October 2, 2015, but it was not filed until October
23, 2015, which was twenty-one days too late. Although the district court considered the motion
20
for reconsideration and denied it on January 5, 2016, it did not have jurisdiction to consider the
motion because it was not timely filed. Therefore, the denial of the motion is not an issue for
consideration on appeal and the documents submitted with the motion cannot be considered on
appeal. 4
Because the motion for reconsideration filed on October 23, 2015, was untimely, the only
issue regarding the dismissal of Mr. Taylor’s claims for fraud and constructive fraud was
whether the district court erred in granting Mr. Riley’s motion for partial summary judgment in
its decision and order entered on April 5, 2012. That motion was made on December 15, 2011; it
was briefed by Mr. Riley and Mr. Taylor; and it was argued on January 30, 2012. Based upon
the briefing, argument, and record at that time, the district court granted the motion. The district
court obviously did not have for consideration the briefing, the expert’s opinion, and the other
documents that were filed thereafter. “We have long held that ‘[a]ppellate court review is
limited to the evidence, theories and arguments that were presented below.’ ” State v. Garcia-
Rodriguez, 162 Idaho 271, 396 P.3d 700, 704 (2017). On appeal, Mr. Taylor has not argued that
the district court erred in granting Mr. Riley’s motion for partial summary judgment on April 5,
2012, based upon the arguments and evidence presented to the court in connection with that
motion. Instead, Mr. Riley argues that the dismissal of his claims for fraud and constructive
fraud was in error based upon the documents he filed in support of his untimely motion for
reconsideration. Because that motion was untimely, the supporting documents cannot be
considered on appeal to show error. We therefore affirm the district court’s dismissal of Mr.
Taylor’s claims for fraud and constructive fraud.
VI.
Did the District Court Abuse Its Discretion in Awarding Attorney Fees?
A. Attorney fees awarded to Hawley Troxell. Counsel for Hawley Troxell represented
both Mr. Riley and Hawley Troxell from the commencement until dismissal of the claims against
Hawley Troxell. The attorney fees charged by Hawley Troxell’s counsel for that joint defense
totaled $80,487.50. Hawley Troxell filed a memorandum of costs seeking an award of attorney
4
Mr. Taylor filed a notice of appeal on October 29, 2015. Idaho Appellate Rule 13(b)(7) states that the district
court has the power and authority during the pendency of an appeal to “[r]ule upon any motion for reconsideration
filed pursuant to Rule 11(a)(2)(B), I.R.C.P.” Mr. Riley’s motion for reconsideration was not filed pursuant to that
rule because it was untimely.
21
fees in the sum of $40,243.75. The district court determined that a reasonable attorney fee for
that joint defense was $50,000, and it awarded Hawley Troxell $25,000 as one-half of that
amount. The court awarded the fees under Idaho Code section 12-121 on the ground that the
claims against Hawley Troxell were pursued unreasonably and without foundation and under
Idaho Code section 12-120(3) on the ground that the claims were brought to recover in a
commercial transaction.
Mr. Riley’s counsel represented Hawley Troxell and Mr. Riley in defending against Mr.
Taylor’s motion for reconsideration that was filed on October 23, 2015. Mr. Riley’s counsel
charged $11,025 for that joint defense. The district court found that $7,500 was a reasonable
attorney fee for that joint defense, and it awarded Hawley Troxell $3,750 as one-half of that
amount.
Thus, Hawley Troxell was awarded a total of $28,750 in attorney fees for its defense in
this lawsuit. Mr. Taylor contends that such award is unreasonable.
First, he contends that the district court erred in awarding Hawley Troxell one-half of the
fees awarded for the joint defense without segregating the amount incurred for defending Mr.
Riley and the amount incurred for defending Hawley Troxell. Mr. Taylor asserts that Hawley
Troxell’s “failure to segregate fees is particularly significant because only two of Taylor’s six
claims were even asserted against HTEH.” That statement is incorrect. Hawley Troxell was
named in three of the five titled causes of action in Mr. Taylor’s complaint.
Mr. Taylor listed five titled “causes of action,” with the first two being titled “Negligent
Misrepresentations” and “Negligence/Malpractice.” Hawley Troxell was not expressly named in
those two, but it was expressly named in the other three. In his “Third Cause of Action—
Consumer Protection Act Violations,” Mr. Taylor alleged that “Defendant Riley and Hawley
Troxell’s acts constitute violations of the Idaho Consumer Protection Act (I.C. § 48-601, et
seq.).” In his “Fourth Cause of Action—Breach of Fiduciary Duties,” Mr. Taylor alleged that
“[a]s a direct and/or proximate result of Defendants Eberle Berlin, Riley, Turnbow and Hawley
Troxell’s breached fiduciary duties, Reed Taylor has been damaged in an amount to be proven at
the time of trial or on summary judgment.” In his “Fifth Cause of Action—Fraud/Constructive
Fraud,” Mr. Taylor alleged a fraudulent scheme to deprive him of his majority interest in AIA
Services by assisting the minority shareholders in drafting documents that have been held
unenforceable by the court, and that the corporation “refused to give him his shares back,
22
including, without limitation, by and through the acts of Defendant Riley’s firm, Defendant
Hawley Troxell.” Thus, Hawley Troxell was expressly alleged to have committed wrongful
conduct in three of the five alleged causes of action.
The district court did not award attorney fees regarding the alleged violation of the
Consumer Protection Act because Hawley Troxell did not identify in the twenty pages of single-
spaced time entries the fees incurred in defending that claim. Therefore, Hawley Troxell was
expressly alleged to have committed wrongful conduct in two of Mr. Taylor’s four causes of
action for which attorney fees were awarded. Mr. Taylor also asserted that Mr. Riley’s conduct
was imputed to Hawley Troxell. He alleged in his complaint: “The knowledge held and duties
owed by Defendant Richard A. Riley as asserted throughout this Complaint are imputed upon
Hawley Troxell and, consequently, Hawley Troxell owes the same duties. Hawley Troxell is
vicariously liable for certain acts and/or omissions of Defendant Riley.”
In support of this assertion that the attorney fees incurred in the joint defense of Mr. Riley
and Hawley Troxell must be segregated, Mr. Taylor relies upon Hackett v. Streeter, 109 Idaho
261, 706 P.2d 1372 (Ct. App. 1985). The reasoning in Hackett is not applicable to the facts in
this case. In Hackett, the plaintiffs sued a subdivision developer and a contractor for negligent
construction of a subdivision water system, and the same attorney represented both defendants.
Id. 262–63, 706 P.2d at 1373–74. The contractor was found liable for the negligent construction
of the water system, id. at 263, 706 P.2d at 1374, and the developer was found not liable because
he “did not have any actual authority or control over the installation and construction of the
water system and did not purport to have such authority,” id. at 264, 706 P.2d at 1375. The
attorney sought to recover the entire amount of attorney fees incurred in the lawsuit on the
ground that his prevailing and nonprevailing clients had agreed to be jointly and severally liable
for his attorney fees and there was no way to separate his time and costs for each client. Id. The
only information he provided in support of the requested award was his hourly rate and the total
number of hours he expended in the case. Id. at 264, 706 P.2d at 1375. The trial court was faced
with awarding fees to both the prevailing and nonprevailing defendants, or not awarding any
fees, and it declined to award fees. Id. On appeal, the Court of Appeals affirmed stating, “We
believe it is incumbent upon a party seeking attorney fees to present sufficient information for
the court to consider factors as they specifically relate to the prevailing party or parties seeking
fees.” Id. The court held that the prevailing party’s argument that he was entitled to an award of
23
the entire fees incurred because the parties had agreed to be jointly and severally liable for the
total attorney fees and costs was simply “a ‘boot strap’ argument which, if followed, would
permit a non-prevailing party to have all of its fees and costs paid by a prevailing party.” Id. at
265, 706 P.2d at 1376.
In this case, we do not have a prevailing defendant and a nonprevailing defendant. Both
Hawley Troxell and Mr. Riley were prevailing parties, and Hawley Troxell was alleged to be
liable for the conduct of Mr. Riley. Each of them was entitled to conduct a defense with separate
counsel, which would have increased the attorney fees incurred in defending against Mr.
Taylor’s claims. Their agreement to conduct a joint defense reduced the total amount of attorney
fees incurred. Each of Mr. Taylor’s four causes of action stated that he had been damaged in an
amount to be proved at trial, with no assertion that the damages claimed against Hawley Troxell
differed from the damages claimed against Mr. Riley. Mr. Taylor has failed to show that the
district court abused its discretion in apportioning the attorney fees awarded for the joint
defenses one-half to each party.
Mr. Taylor alleges that it was error to award any attorney fees for the Consumer
Protection Act claim, but he has not shown that any fees were awarded for that claim. The court
stated that it would not award fees for that claim, and there is no indication that it did. Mr.
Taylor alleges that “Riley was the overwhelming target of Taylor’s claims and discovery,” but
that assertion is meaningless where Mr. Taylor alleged that Hawley Troxell was liable for the
conduct of Mr. Riley. We affirm the award of attorney fees to Hawley Troxell.
B. Attorney fees awarded to Mr. Riley. Mr. Riley requested an award of attorney fees
totaling $302,328.75, which consisted of $40,243.75 as one-half of the attorney fees in the joint
defense provided by Hawley Troxell and $262,085 for his defense after the district court ordered
that the claim against Hawley Troxell be dismissed. The district court awarded Mr. Riley
$25,000 as his share of the attorney fees incurred in the joint defense and $175,000 for the
attorney fees thereafter incurred. The court also awarded him $3,750 for his share of the fees
incurred in the joint defense of Mr. Taylor’s motion for reconsideration filed on October 23,
2015. Thus, Mr. Riley requested an award of attorney fees totaling $307,841.25, and the trial
court awarded him attorney fees totaling $203,750.
Mr. Taylor contends that the district court abused its discretion in awarding Mr. Riley
attorney fees of $175,000 because “it included a substantial amount of fees that were not
24
‘reasonably incurred’ by Riley and because such fees were not reduced by the time Riley spent
defending the Consumer Protection Act claim, for which he was not entitled to fees.” Mr. Riley
requested $262,085 in attorney fees; the court awarded $175,000; and it stated that it was not
awarding any attorney fees for defending the claim based upon the Consumer Protection Act.
There is no showing that it did so.
Mr. Taylor next asserts, “Most significant to the case at bar is that many of the costs and
fees unreasonably incurred by Riley as he [sic] attempting to postpone certain actions in the
present litigation until the appeal in [Taylor v.] AIA [Services Corp.] was final. Notably, Riley
did not seek a permissive appeal after Judge Greenwood’s May 10, 2010 decision, but instead
waiting two years to address the same issues.” Mr. Taylor argued below that the district court
should reduce Mr. Riley’s requested attorney fees by $230,000 because he failed to seek a
permissive appeal of that decision. The court declined to do so stating, “Ongoing litigation
would be constantly interrupted by requests for interlocutory appeal by parties fearful of
forfeiting some later claim to attorney fees for having failed to seek interlocutory appeal.” Mr.
Taylor contends that such holding did not constitute the exercise of reason.
It was Mr. Taylor who chose to file Taylor v. Babbitt, which this Court upheld as being
brought frivolously, unreasonably and without foundation, Taylor v. McNichols, 149 Idaho at
848, 243 P.3d at 664, and it was he who then filed this action seeking to pursue claims that were
barred by res judicata based upon the judgment in Taylor v. Babbitt. It was Mr. Taylor who
was responsible for the amount of attorney fees awarded by the district court to Mr. Riley, not
Mr. Riley’s alleged failure to pursue an interlocutory appeal earlier. 5 Mr. Taylor criticizes
5
Although Mr. Taylor’s argument that Mr. Riley should have sought a permissive appeal from the district court’s
decision of May 10, 2010, is without merit, the district court did not even rule on Mr. Riley’s earlier motion to
dismiss on the ground of res judicata. Mr. Riley and Hawley Troxell moved for summary judgment contending that
all claims alleged against them were barred by the doctrine of res judicata based upon the judgment in Taylor v.
Babbitt. In its decision entered on May 10, 2010, the district court held, “To the extent Plaintiff seeks to make a
claim against Hawley Troxell for malpractice based on the allegations in the complaint, the same is barred by res
judicata.” It also held: “As to the remainder of the allegations [of breach of fiduciary duty] to the extent they apply
to Hawley Troxell, they are barred by res judicata. They are barred for the same reasons set forth above regarding
the malpractice.” The court did not address the argument that any claims against Mr. Riley were barred by res
judicata, although it did deny his argument that the claim of fraud was barred by the doctrine of collateral estoppel
based upon the trial court’s decision in Taylor v. AIA Services Corp. Mr. Riley was not a party to that litigation.
The district court declined to dismiss the fraud claim on that ground because the ruling in that case was not directed
to the claims made against Mr. Riley and the ruling was not a finding of specific fact. In its conclusion, the court
did not mention Mr. Riley’s assertion that the claims against him were barred by res judicata. The court stated:
In conclusion:
1) The Court grants summary judgment on Taylor’s claims against Hawley Troxell;
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certain actions taken by Mr. Riley in the litigation, contending that it was unreasonable to award
attorney fees for those actions. Since the district court awarded Mr. Riley $87,085 less than he
requested for attorney fees incurred in representing himself, there is no showing that the district
court awarded attorney fees for the actions that Mr. Riley claims were unreasonable. In addition,
the court awarded him attorney fees pursuant to Idaho Code section 12-120(3) upon the
determination that he was the prevailing party in an action to recover in a commercial
transaction. “Where one party has been determined to be the overall prevailing party in the
litigation and by statute or contract the prevailing party is entitled to an award of attorney fees on
all claims asserted in the litigation, the award of reasonable attorney fees is not required to be
limited to the claims upon which the prevailing party prevailed.” Advanced Med. Diagnostics,
LLC v. Imaging Ctr. of Idaho, LLC, 154 Idaho 812, 815–16, 303 P.3d 171, 174–75 (2013). We
affirm the award of attorney fees to Mr. Riley.
VII.
Is Either Party Entitled to an Award of Attorney Fees on Appeal?
Both parties seek an award of attorney fees on appeal, and they agree that the prevailing
party is entitled to attorney fees on appeal pursuant to Idaho Code section 12-120(3) on the
ground that this is an action to recover in a commercial transaction. Because Mr. Taylor is not
the prevailing party on appeal, he is not entitled to an award of attorney fees. Cummings v.
Stephens, 157 Idaho 348, 336 P.3d 281, 300 (2014). Because Mr. Riley and Hawley Troxell are
the prevailing parties, they are entitled to an award of attorney fees on appeal.
2) The Court will deny summary judgment, in part, on the claim for malpractice against
Riley, Turnbow, and Eberle Berlin so far as the claims arise from the issuance of the opinion
letter. The so-called derivative claims are dismissed;
3) The Court concludes that the Statute of Limitations on the malpractice cause of action
began to run when Taylor incurred attorney fees to defend against allegation that the Stock
Repurchase agreement was illegal;
4) The Court denies summary judgment on the claim of fraud against Riley, Turnbow,
and Eberle Berlin, both on the merits and on the statute of limitations on the basis of factual
disputes;
5) The Court grants summary judgment to all defendants as dismissing claims of breach
of fiduciary duty.
Mr. Riley would not have been granted an interlocutory appeal from the district court’s failure to address his
argument that all claims against him were barred by the doctrine of res judicata.
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VIII.
Conclusion.
We affirm the judgment of the district court, and we award the Respondents costs and
attorney fees on appeal.
Chief Justice BURDICK, Justice BRODY, and Justices Pro Tem TROUT and
KIDWELL CONCUR.
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