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Carnell v. Barker Management6/3/2002
espondents cite to Pass v. Kenny, 118 Idaho 445, 797 P.2d 153 (Ct. App. 1990), for the precedent that attorney fees on appeal may be awarded when the appellants have presented no cogent challenge to the trial judge's exercise of discretion.
"An award of attorney fees under I.C. § 12-121 is appropriate where the appeal is 'frivolous, unreasonable, or without foundation.'" Albee v. Judy, 136 Idaho 226, 231, 31 P.3d 248, 253 (2001) (citations omitted).
In the present case, appellants' arguments lack merit. The district court allowed appellants numerous opportunities to correct the deficiencies in their case. On appeal, appellants' arguments regarding Bidstrup's second affidavit lacked foundation and were based on U.S. Supreme Court cases that have not been adopted as the rule in Idaho, as well as a sampling of federal cases that were not controlling law. They also failed to address in their opening brief the fact that Bidstrup's second affidavit was stricken because appellants failed to disclose him as an expert witness within the time frame established by the district court's scheduling order.
This Court awards respondents Barker, Barker Realty, and the Smiths attorney fees on appeal pursuant to I.C. § 12-121. This Court finds that the IDHW's one-sentence request for attorney fees on appeal is insufficient under I.A.R. 41, and declines to award the IDHW attorney fees on appeal.
IV. CONCLUSION
The evidence in the record establishes that the fire was not caused by faulty electrical wiring, but was caused by children playing with a lighter. The district court did not err in striking Bidstrup's second affidavit because he was not timely disclosed as an expert, and the affidavit did not meet the requirements of I.R.E. 104 and 702. Without Bidstrup's second affidavit before the district court, the grants of summary judgment as to all defendants were proper. The district court did not abuse its discretion by granting Barker and Barker Realty's motion for reconsideration or by denying appellants' motion for reconsideration. This Court's decision renders the IDHW's cross appeal moot. This Court affirms the district court's findings. Attorney fees on appeal are awarded to respondents Barker, Barker Realty, and the Smiths. Costs to all respondents.
Chief Justice TROUT, Justices SCHROEDER, WALTERS, and EISMANN CONCUR.
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