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Aberdeen-Springfield Canal Co. v. Peiper5/26/1999
naming a specific defendant, that ""as to all counts,"" ASCC prayed ""for an award of reasonable attorney fees in the amount sought herein, plus costs incurred in the prosecution of the action."" Only in Case No. 96-1395 does ASCC clearly indicate that it seeks to recover from the Peipers an amount less than $25,000, plus attorney fees under §12-120(1).
This Court has placed ""a premium"" on examining the pleadings when evaluating the applicability of I.C. § 12-120(1). Downey, 127 Idaho at 287, 900 P.2d at 195. Considering the narrow construction given the statute, we conclude that ASCC is entitled to attorney fees only in Case No. CV-96-1395.
V.
ATTORNEY FEES AND COSTS ON APPEAL
ASCC has requested attorney fees on appeal pursuant to I. A. R. 41 and I.C. § 12-121. An award of attorney's fees under I.C. § 12-121 is proper "' only where the Court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation. '" Lanham v. Idaho Power Co., 130 Idaho 486, 500, 943 P.2d 912, 926 (1997) (quoting Thompson v. Pike, 125 Idaho 897, 901, 876 P.2d 595, 599 (1994)). Because we are not so persuaded we do not award attorney fees on appeal. ASCC did not request attorney fees on cross-appeal.
Since ASCC is the prevailing party on appeal but only prevailed partially on cross-appeal, ASCC is not entitled to costs on appeal.
VI.
CONCLUSION
We hold that the lower courts did not err in granting summary judgment to ASCC. With respect to ASCC's request for attorney fees we hold that ASCC is not entitled to attorney fees under § 12-120(1), except in Case No. CV-96-1395. No attorney fees or costs are awarded on appeal.
Chief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL, CONCUR.
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