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Gillingham Construction7/22/2005
ficiently proved causation and therefore the district court abused its discretion in finding Gillingham did not demonstrate the causation element of its claim. For all these reasons, the court abused its discretion in granting Newby-Wiggins' motion for new trial.
V. THE MOTION FOR DISQUALIFICATION
Gillingham argues that under Rule 40(d)(1)(F), if a new trial is ordered by a trial court after a trial has already been held, a party has a right to file a motion for disqualification without cause within 21 days of the service of the order specifying who will be the presiding judge. Gillingham filed a timely motion for disqualification pursuant to Rules 40(d)(1), 41(d)(5) and Jahake v. Moore, 112 Idaho 944, 737 P.2d 465 (Ct. App.1987). Gillingham argues the district court improperly denied its motion for disqualification and had no authority to act on the request for attorney fees. Gillingham asks that the order for attorney fees be held void.
The motion for disqualification is moot.
VI. THE AWARD OF ATTORNEY FEES TO NEWBY-WIGGINS IS REVERSED
The district court awarded attorney fees to Newby-Wiggins as the prevailing party under Idaho Code § 12-120(3). Newby-Wiggins is no longer the prevailing party. The award is reversed.
VII. GILLINGHAM IS ENTITLED TO AN AWARD OF ATTORNEY FEES ON APPEAL
Idaho Code 12-120(3) allows for the reasonable award of attorney fees to the prevailing party of a civil appeal involving a contract for services. I.C.§ 12-120(3)(2004). Gillingham is the prevailing party on appeal and was the prevailing party below. The gravaman of its claim involved breach of a contract for services, namely demolition, excavation and grading services. Pursuant to I.C. § 12-120(3) and its subcontract, Gillingham is entitled to a reasonable award of its attorney fees at trial. Costs and attorney fees on appeal are awarded to Gillingham.
VIII. CONCLUSION
Gillingham has standing to bring this appeal. The district court's grant of JNOV or in the alternative a new trial is reversed. The issue of whether the district court properly denied Gillingham's motion for disqualification without cause is moot. The award of attorney fees and costs to Newby-Wiggins is reversed. Gillingham is entitled to a reasonable award of attorney fees on appeal pursuant to I.C. § 12-120(3) and its subcontract agreement. Gillingham is awarded costs on appeal. The case is remanded to the district court to enter a judgment consistent with the jury verdict and this opinion and to determine any issues of costs and attorney fees to Gillingham. The district court indicated that it would grant remittitur if asked by the parties. That request was not made and there is no appealable ruling before this Court. Any request at this time is time-barred.
Justices TROUT, EISMANN, BURDICK and JONES CONCUR.
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