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Vanvooren v. Astin3/30/2005
Because the VanVoorens are not the prevailing party, their request for attorney fees on appeal is denied.
Dr. Smith requests attorney fees on appeal pursuant to I.C. ยง 12-121, I.R.C.P. 54 and I.A.R. 41. This Court may award attorney fees to the prevailing party only if we are left with the abiding belief that the appeal was brought or pursued frivolously, unreasonably, or without foundation. Durrant v. Christensen, 117 Idaho 70, 74, 785 P.2d 634, 638 (1990). However, we find the VanVoorens made a good faith argument on their claim for negligent infliction of emotional distress and that the pursuit of that claim was not frivolous, unreasonable or without foundation within the meaning of Durrant. Therefore, attorney fees are not awarded to Dr. Smith on appeal.
III. CONCLUSION
We hold the district court properly granted summary judgment in favor of Dr. Smith and the other defendants and did not abuse its discretion in denying Dr. Smith's request for attorney fees. Both parties' requests for attorney fees on appeal are denied.
Costs are awarded to the respondents.
Chief Justice SCHROEDER, and Justices TROUT, EISMANN and BURDICK, CONCUR.
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