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Hoskins v. Circle A Construction1/28/2003
nce supported the claim for time in excess of a forty hour week. This portion of the decision must be remanded for clarification of the Commission's decision.
VII. HOSKINS IS NOT ENTITLED TO ATTORNEY FEES ON APPEAL
Hoskins argues that Circle A is merely asking the Court to reweigh evidence submitted to the Commission and that, consequently, he is entitled to attorney fees. Circle A responds that the appeal is not frivolous on the basis that the initial referee who heard the case determined that Hoskins was not entitled to TTD's or medical benefits or attorney fees. Further, according to Circle A, there is no evidence to support the Commission's findings.
"Attorney fees and costs are properly awarded when an appeal asks this Court to do nothing more than reweigh the evidence submitted to the Commission." Duncan v. Navajo Trucking, 134 Idaho 202, 204, 998 P.2d 1115, 1117 (2000). Attorney fees and costs may be awarded pursuant to I.C. ยง 72-804. Id. Arguably, Circle A's appeal only asks the Court to re-examine the evidence relied on by the Commission. However, Hoskins has only prevailed in part in this appeal. He cross-appealed, and Circle A has prevailed on the cross-appeal. Both parties prevailed in part. Under these circumstances, Hoskins is not entitled to attorney fees.
VIII. CONCLUSION
The decision of the Industrial Commission is affirmed in part and remanded in part as set forth in part VI of this opinion. Both parties prevailed in part. Neither party is awarded costs or attorney fees.
Chief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN CONCUR.
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