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VICTORIA SMITH v. TREASURE VALLEY SEED COMPANY LLC DON TOLMIE LLC

Supreme Court of Idaho.

VICTORIA H. SMITH, by and through her attorney in fact, Vernon K. Smith, by and through his Durable and Irrevocable Power of Attorney, Plaintiff-Appellant-Cross Respondent, v. TREASURE VALLEY SEED COMPANY, LLC, and DON TOLMIE, in his individual capacity, and as owner, representative and authorized agent of Treasure Valley Seed Co., LLC, Defendants-Respondents-Cross Appellants.

Docket No. 42596

Decided: November 03, 2016

Vernon K. Smith appeals the district court’s award of attorney fees to Treasure Valley Seed Company, LLC and its owner Don Tolmie (collectively TVSC). Because we conclude the district court erred in fashioning the award of attorney fees under Idaho Code section 12–121, we vacate and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a contract for the sale of lima beans between Victoria H. Smith and TVSC. On December 13, 2013, Victoria’s son, Vernon K. Smith, filed a complaint against TVSC. The complaint alleged claims for breach of the lima beans contract. As plaintiff, the complaint named “VICTORIA H. SMITH, by and through her attorney in fact, Vernon K. Smith, by and through his Durable and Irrevocable Power of Attorney.”

On March 3, 2014, TVSC learned Victoria had died on September 11, 2013—roughly three months before the complaint was filed. TVSC then moved to dismiss the complaint, contending there was no real party in interest. Vernon responded and argued he was the real party in interest because of his durable and irrevocable power of attorney. The district court concluded Vernon’s power of attorney had terminated at Victoria’s death. Further, the district court reasoned that because no personal representative had been appointed through probate, there was no real party in interest. Accordingly, the district court granted TVSC’s motion to dismiss.

TVSC filed a timely memorandum of costs and requested attorney fees under Idaho Code section 12–120(3), Idaho Code section 12–121, and Idaho Rule of Civil Procedure 11(a)(1). At the hearing, the district court reiterated that it granted TVSC’s motion to dismiss because Vernon’s power of attorney had terminated at Victoria’s death. The district court further reiterated that Victoria’s estate should have brought the action, but because no probate had been filed, there was no real party in interest to substitute or join. Although the district court indicated the case was not necessarily frivolous and may present “a genuine dispute of some variety,” the district court found that the complaint was unreasonable and without foundation. Thus, the district court awarded attorney fees to TVSC under Idaho Code section 12–121. The district court assessed the attorney fees jointly and severally against Victoria and Vernon, as counsel.

Initially, Vernon sought to appeal both the dismissal of the case and the award of attorney fees, but his appeal of the dismissal of the case was not timely filed. We therefore address only Vernon’s appeal of the award of attorney fees.

II. ISSUES ON APPEAL

1. Is there a real party in interest for this appeal?

2. Did the district court err in fashioning the award of attorney fees under Idaho Code section 12–121?

3. Is TVSC entitled to attorney fees on appeal?

III. STANDARD OF REVIEW

“An award of attorney fees pursuant to I.C. § 12–121 and I.R.C.P. 54(e)(1) will not be disturbed absent an abuse of discretion.” Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 629, 329 P.3d 1072, 1077 (2013). However, “the application of [a] procedural rule is a question of law on which we exercise free review.” Zenner v. Holcomb, 147 Idaho 444, 450, 210 P.3d 552, 558 (2009).

A. Is there a real party in interest for this appeal?

We address as a preliminary matter whether there is a real party in interest for this appeal. TVSC contends this appeal should be dismissed because Victoria is deceased, and consequently, there is no real party in interest for this appeal. We disagree.

On the one hand, TVSC correctly argues there is no real party in interest to appeal the dismissal of the case. Idaho Rule of Civil Procedure 17(a) requires that actions be prosecuted in “the name of the real party in interest.” An exception permits “a party authorized by statute” to sue in that capacity without joining the real party interest. I.R.C.P. 17(a)(1)(H). Vernon contends he is authorized to sue on Victoria’s behalf, citing his power of attorney. We are not persuaded. A power of attorney terminates once the principal dies. 1 I.C. § 15–12–110(1)(a). Vernon’s power of attorney, therefore, terminated at Victoria’s death—roughly three months before the complaint was filed. Even if Vernon had timely appealed the dismissal of the case, there would be no real party in interest for that issue.

On the other hand, TVSC incorrectly argues Victoria’s death affects whether there is a real party in interest to appeal the award of attorney fees. Idaho Appellate Rule 4 allows a “party aggrieved” by a judgment to file an appeal. We have long defined a party aggrieved “as any person injuriously affected by the judgment.” Roosma v. Moots, 62 Idaho 450, 455, 112 P.2d 1000, 1002 (1941) (citing In re Blades, 59 Idaho 682, 684, 86 P.2d 737, 738 (1939)). Because the district court assessed attorney fees jointly and severally against Victoria and Vernon, Vernon is an aggrieved party entitled to appeal the award of attorney fees. We conclude there is a real party in interest for this appeal.

Our dissenting colleagues maintain that dismissal is proper because the Notice of Appeal is insufficient under Idaho Appellate Rule 17. That rule requires a notice of appeal to “contain substantially” the information designated therein, including the appellant’s identity. I.A.R. 17(d). The dissent notes that the Notice of Appeal does not identify Vernon as appellant, but rather states Victoria H. Smith, “acting through Vernon K. Smith, at the time the cause of action arose, through his Durable and Irrevocable Power of Attorney, does appeal against the above-named respondents to the Idaho Supreme Court from that Judgment awarding attorney fees and costs in the above entitled action, as entered on August 28, 2014 ․” According to the dissent, the Notice of Appeal is insufficient because TVSC “had no way of knowing that [Vernon] was appealing on his own behalf.”

We disagree. As the dissent acknowledges, Idaho Appellate Rule 17 requires only substantial compliance. “Generally, substantial compliance does not require absolute conformity with the form prescribed in the statute, but does require a good faith attempt to comply, and that the general purpose detailed in the statute is accomplished.” In re Doe, 155 Idaho 896, 901, 318 P.3d 886, 891 (2014) (citation omitted). In this case, we conclude the Notice of Appeal substantially complies with Idaho Appellate Rule 17 because it identifies the parties and the attorney involved, and the issue raised. The Notice of Appeal clearly states one issue is raised: “Was the award of attorney fees and costs, as entered by the court, supported in fact, and law under the Statutes and Rules of Procedure in Idaho.” Contrary to the dissent’s position, the Notice of Appeal is sufficient because it represents a good faith attempt to comply with Idaho Appellate Rule 17 and, therefore, accomplishes the purposes of the rule—putting TVSC on notice of the issues raised on appeal.

Because we conclude there is a real party in interest and the Notice of Appeal is sufficient, this appeal is not subject to dismissal.

B. Did the district court err in fashioning the award of attorney fees under Idaho Code section 12–121?

We next address the district court’s award of attorney fees. We begin by deciding whether the district court erred by awarding attorney fees under Idaho Code section 12–121 without making written findings, as required under Idaho Rule of Civil Procedure 54(e)(2). “We have, in the past, applied rules of statutory construction in the interpretation of our rules of civil procedure.” Obendorf v. Terra Hug Spray Co., Inc., 145 Idaho 892, 900, 188 P.3d 834, 842 (2008). Idaho Rule of Civil Procedure 54(e)(2) provides: “Whenever the court awards attorney fees pursuant to section 12–121, Idaho Code, it shall make a written finding, either in the award or in a separate document, as to the basis and reasons for awarding such attorney fees.” (emphasis added). Clearly, the plain text of Rule 54(e)(2) unambiguously requires written findings for an award of attorney fees.

Even so, the absence of written findings does not constitute reversible error. The written findings requirement serves to create a clear record, “so that it might be determined whether the trial court applied the proper law to the appropriate facts.” See Pope v. Intermountain Gas Co., 103 Idaho 217, 225, 646 P.2d 988, 996 (1982). In this case, the purpose of the written findings requirement is met because the transcript clearly illustrates the district court’s reasoning and the basis for the award of attorney fees. The district court reasoned that attorney fees were proper because the complaint was unreasonable and without foundation. For example, the district court explained that “a power of attorney simply does not and cannot survive the grantor. That’s just so fundamental that it is hard to find even authority that says so.” The transcript, therefore, creates a clear record, illustrates the district court’s reasoning and the basis for the award of attorney fees, and meets the purpose of the written findings requirement. Accordingly, the absence of written findings in this case does not constitute reversible error because it does not affect Vernon’s substantial rights. See I.R.C.P. 61 (“At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”).

However, we hold that the district court committed reversible error by assessing attorney fees jointly and severally against Victoria and Vernon, as counsel. The district court awarded attorney fees under Idaho code section 12–121, which provides:

In any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties, provided that this section shall not alter, repeal or amend any statute which otherwise provides for the award of attorney’s fees. The term “party” or “parties” is defined to include any person, partnership, corporation, association, private organization, the state of Idaho or political subdivision thereof.

Nothing in Idaho Code section 12–121 permits attorney fees to be assessed against counsel. In contrast, Idaho Code section 12–123(d) specifically permits attorney fees to be assessed against counsel under certain circumstances, as it states: “An award of reasonable attorney’s fees pursuant to this section may be made against a party, his counsel of record, or both.” Similarly, Idaho Rule of Civil Procedure 11(a)(1) permits attorney fees to be assessed “upon the person who signed” a frivolous filing. 2 Therefore, we conclude the Legislature intended that Idaho Code section 12–121 not authorize an award of attorney fees assessed against counsel. See, e.g., City of Sandpoint v. Sandpoint Indep. Highway Dist., 139 Idaho 65, 69, 72 P.3d 905, 909 (2003) (“Where a statute with respect to one subject contains a certain provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.”).

We vacate the district court’s award of attorney fees. We remand this case to the district court for further proceedings consistent with this opinion, which in no way limits the district court from considering all legal bases for awarding attorney fees.

C. Is TVSC entitled to attorney fees on appeal?

TVSC seeks attorney fees on appeal under Idaho Code section 12–121. “Under I.C. § 12–121, attorney fees are awarded to the prevailing party if the court is left with the belief that the proceeding was brought, pursued or defended frivolously, unreasonably, or without foundation.” Harris v. State, ex rel. Kempthorne, 147 Idaho 401, 406, 210 P.3d 86, 91 (2009). TVSC is not the prevailing party on appeal. Vernon does not request attorney fees on appeal. Therefore, neither side will be awarded attorney fees on appeal.

We vacate the district court’s award of attorney fees to TVSC and remand for further proceedings consistent with this opinion.

I respectfully dissent from the majority’s holding that Vernon Smith (referred to by the majority as “Vernon”) is an appellant for purposes of this appeal. Vernon is not named as an appealing party in the notice of appeal. The only person referred to as an appellant in the notice of appeal is Victoria Smith, and even she is not explicitly named as an appellant. Rather, she is named as a plaintiff, but referred to as an appellant. Nonetheless, Vernon is only mentioned as “attorney in fact ․ by and through his Durable and Irrevocable Power of Attorney.” As noted by the majority, Vernon’s power of attorney terminated upon Victoria’s death, which occurred several months before the complaint was filed. 3 Additionally, the argument that Vernon and Victoria are both appellants is unavailing because throughout the notice of appeal “appellant” is used in the singular form. The bottom line is that there is absolutely no appellant in this case. Vernon did not even sign the notice of appeal as an appellant. His signature is only as “Attorney for Appellant.” (Emphasis added).

Idaho Appellate Rule 4 provides that any party aggrieved by an appealable judgment may appeal such decision to this Court. However, Rule 4 merely outlines which persons may appeal. Those persons must still substantially comply with notice of appeal requirements. Accordingly, the majority and I agree that Vernon could appeal the district court’s award of attorney’s fees—which were levied against him personally—under Rule 4. The majority and I differ, however, as to whether or not Vernon actually succeeded in filing an appeal—in his personal capacity—with respect to the district court’s award of attorney’s fees.

Idaho Appellate Rule 17 provides that a notice of appeal “shall contain substantially the following information.” I.A.R. 17. The name of the appealing party is among the required information. I.A.R. 17(d). Here, Vernon may have intended to appeal the award of attorney’s fees levied against him personally; yet, the notice of appeal only states: “The above-named Appellant[ 4 ], acting through Vernon K. Smith, at the time the cause of action arose, through his Durable and Irrevocable Power of Attorney, does appeal ․” (Emphasis added). The notice of appeal is signed by “Vernon K. Smith Attorney for Appellant.” (Emphasis added). Vernon is only identified as the attorney for the appellant. He is never personally named as an appellant, and he never signed the notice of appeal as an appellant. I cannot see how anyone could read the notice of appeal and conclude that Vernon is an appellant.

I recognize that Idaho Appellate Rule 17 does not require strict compliance: “A notice of appeal shall contain substantially the following information.” I.A.R. 17 (emphasis added). However, the presence of the qualifier “substantially” does not lower the bar such that any and all deficiencies must be overlooked. In fact, substantial compliance still requires “a good faith attempt to comply, and that the general purpose detailed in the statute is accomplished.” In re Doe (2013-17), 155 Idaho 896, 901, 318 P.3d 886, 891 (2014). It stands to reason that substantial compliance, at the very least, requires the name of the appellant. After all, the purpose of the notice statute is to inform opposing parties of the judgments on appeal in order to allow them a full and fair opportunity to represent their own legal interests. In this instance, because Vernon did not identify himself as an appellant—or sign as an appellant—TVSC had no way of knowing that he was appealing on his own behalf. The notice of appeal was insufficient to accomplish the general purpose of Appellate Rule 17 because it omitted arguably the most important piece of information that it was required to contain: the identity of the appellant.

In sum, this appeal was not properly filed because Vernon did not substantially comply with Appellate Rule 17. The majority fails to explain how the notice of appeal can substantially comply with Appellate Rule 17 without naming Vernon as an appellant. In my opinion, there is no real party in interest—in fact, there is no person at all—appealing the judgment of the district court. Victoria Smith is deceased, and Vernon, according to the notice of appeal, merely exists as an attorney pursuant to a void power of attorney. Accordingly, it was improper for this Court to consider the appeal. I would summarily dismiss the appeal and award TVSC attorney’s fees on appeal for having to waste its time and effort to respond to the alleged appeal.

1. At oral argument, Vernon contended Victoria’s death did not terminate his power of attorney because his power of attorney was coupled with an interest. See I.C. § 15-12-103(1). Because Vernon did not raise that argument below, we will not address it on appeal. See, e.g., Obenchain v. McAlvain Const., Inc., 143 Idaho 56, 57, 137 P.3d 443, 444 (2006) (“[A]ppellate courts will not consider new arguments raised for the first time on appeal.”).

2. Although the district court recognized Idaho Rule of Civil Procedure 11 permits attorney fees assessed against counsel, the district court erred in its Rule 11 analysis. The transcript indicates the district court declined to award attorney fees under Rule 11 because Vernon never received notice and an opportunity to respond. However, Rule 11 did not require notice and an opportunity to respond at the time of the hearing. The district court held the attorney fee hearing on July 28, 2014. But the amendment requiring notice and an opportunity to respond under Rule 11 did not become effective until July 1, 2016.

3. It is worth noting that Victoria is not an appellant to this appeal because she is deceased. Her estate could have appealed, but such action was not taken.

4. In the notice of appeal, Victoria Smith is not named as the appellant. She is only named as plaintiff.

Chief Justice J. JONES and Justice HORTON CONCUR. KIDWELL, Justice Pro tem, concurs.

Case opinion for ID Supreme Court VICTORIA SMITH v. TREASURE VALLEY SEED COMPANY LLC DON TOLMIE LLC. Read the Court's full decision on FindLaw.

Smith v. Treasure Valley Seed Co.

Opinion

Docket No. 45543

Victoria H. SMITH, BY AND THROUGH Her Attorney in Fact, Vernon K. SMITH, By and Through His Durable and Irrevocable Power of Attorney, Plaintiff-Appellant, v. TREASURE VALLEY SEED COMPANY, LLC, and Don Tolmie, in His Individual Capacity, and as Owner, Representative and Authorized Agent of Treasure Valley Seed Company, LLC, Defendants-Respondents.

Vernon K. Smith, Boise, attorney for appellant.

Vernon K. Smith, Boise, attorney for appellant .

Richard B. Eismann represented the Respondents in proceedings below; however, the Respondents took no part in this appeal and no brief was filed on their behalf.

I. NATURE OF THE CASE

Vernon K. Smith appeals from the district court’s award of sanctions. In a prior appeal in this case, we held that attorney fees could not be awarded against Smith under section 12-121 because Smith was counsel on the case, rather than a party to the case. We remanded this dispute for further proceedings to determine whether attorney fees should be awarded against Mr. Smith personally. On remand, the district court considered all options available to it and awarded attorney fees as a sanction under Idaho Rule of Civil Procedure 11, stating that the original case never should “have been brought in the fashion that it was,” and that “the harm to be avoided . is the unnecessary expense and inconvenience of dealing with litigation [having] no legal basis.” Thus, the district court found that the “conduct to be sanctioned was the fostering of litigation without legal grounds, by someone trained in the law.” Smith now appeals and we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case originally arose from a contract for the sale of lima beans between Victoria H. Smith (“Victoria”) and Treasure Valley Seed Company (“TVSC”). Smith by and through Smith v. Treasure Valley Seed Co. , LLC, 161 Idaho 107, 108, 383 P.3d 1277, 1278 (2016) ( Smith I ). On December 13, 2013, Victoria’s son, Vernon K. Smith (“Smith”) filed a complaint against TVSC for breach of contract. Id. The original complaint named, as plaintiff, Victoria H. Smith, by and through her attorney in fact, Vernon K. Smith, by and through his “Durable and Irrevocable Power of Attorney.” Id. at 108–09, 383 P.3d at 1278–79.

On March 3, 2014, TVSC learned that Victoria had died on September 11, 2013, about three months before Smith’s filing of the complaint. Id. at 109, 383 P.3d at 1279. Based on Victoria’s death, TVSC moved to dismiss the complaint, arguing that there was no longer a real party in interest. Id. Smith argued that he was a real party in interest because the power of attorney he drafted was irrevocable. Id. The district court held that Smith’s power of attorney terminated on Victoria’s death and held that there was no real party in interest and thus granted TVSC’s motion to dismiss. Id.

TVSC then filed a timely memorandum of costs and requested attorney fees under Idaho Code section 12-120(3), Idaho Code section 12-121, and Idaho Rule of Civil Procedure 11(a)(1). Id. At the hearing for costs and fees, the district court reiterated that it granted TVSC’s motion to dismiss because Smith’s power of attorney terminated because of Victoria’s death. Id. The court also stated that Victoria’s estate should have brought the action, but because no probate had been filed, there was no real party in interest able to substitute or join. Smith I , 161 Idaho at 109, 383 P.3d at 1279. After ruling that the complaint was unreasonable and without foundation, the district court awarded attorney fees to TVSC under Idaho Code section 12-121, to be assessed jointly and severally against Victoria and Smith, as counsel. Id.

Smith appealed both the dismissal of the case and the award of attorney fees, but his appeal of the dismissal was not filed timely, so this Court only addressed Smith’s appeal of the attorney fees. Id. After upholding the district court because Smith’s power of attorney for Victoria terminated upon her death, we determined that Smith was not authorized to sue on his mother’s behalf, and as such he was not a party in interest for the issue of dismissal, even if Smith’s appeal had been timely filed. Id. at 109–10, 383 P.3d at 1279–80. Even so, we held that since attorney fees had been awarded against Victoria and Smith jointly and severally, Smith was a “party aggrieved” by the judgment of the district court and was thus a real party in interest for the awarded attorney fees. Id. at 110, 383 P.3d at 1280. We then ruled that the district court erred in awarding attorney fees under Idaho Code section 12-121. Id. at 111, 383 P.3d at 1281. We so ruled because Smith was acting as counsel in pursuing the litigation; he was not a party to the case. Section 12-121 does “not authorize an award of attorney fees assessed against counsel.” Id. We thus vacated the judgment for attorney fees, but we specifically noted that upon remand, the district court would not be limited in considering all legal bases for an award of attorney fees against Smith personally. Id. We even suggested that the trial court reconsider the avenues originally sought by TVSC, including Idaho Rule of Civil Procedure 11, or Idaho Code section 12-123(d). Id. at n.2.

At the hearing on July 17, 2017, following remand, Smith argued that TVSC had to make a new request or motion for attorney fees, to which he could object before the matter moved forward. The district court disagreed, noting that requiring TVSC to file another motion seeking fees under the current iteration of Rule 11(a)(2)”would work an injustice.” The district court noted that TVSC “made a proper request for attorney fees based on Rule 11 as it existed at the time the request was made. It was the legal error of the [c]ourt that led to the fees not being granted on the grounds that counsel violated Rule 11 in bringing the case.” Thus, the district court decided the matter would go forward on the original motion and record, giving Smith fourteen days to file a brief setting forth any arguments he had regarding the request for fees as originally filed on April 17, 2014. Smith filed an untimely brief and affidavit on August 3, 2017. Even though the brief was untimely, the district court considered one of Smith’s arguments about the requested attorney fees. Ultimately, the district court ruled that attorney fees would be awarded against Smith personally in the amount of $15,826.50 (the amount awarded erroneously under section 12-121 ). The district court entered judgment accordingly on October 4, 2017. Smith timely filed an appeal on November 15, 2017.

III. ISSUES ON APPEAL

1. Did this Court establish the “law of the case” regarding the power of attorney which it stated in Smith I terminated upon the death of Victoria H. Smith?

2. Did the lower court err in awarding attorney fees under Rule 11 ?

IV. STANDARD OF REVIEW

The “law of the case” doctrine prevents consideration on a subsequent appeal of a challenge of factual findings that were affirmed in the earlier appeal. Rockefeller v. Grabow , 139 Idaho 538, 543, 82 P.3d 450, 455 (2003). However, whether the “law of the case” doctrine applies is a question of law upon which this Court exercises free review. See State v. Hawkins , 155 Idaho 69, 71, 305 P.3d 513, 515 (2013) (reviewing the law of the case doctrine with respect to retroactive application).

The standard of review for an appellate court reviewing a trial court’s imposition of sanctions under Idaho Rule of Civil Procedure 11 is one of abuse of discretion. Flying A Ranch, Inc. v. Bd. of Cnty. Comm’rs for Fremont Cnty. , 156 Idaho 449, 454, 328 P.3d 429, 434 (2014). In determining whether a trial court abused its discretion, this Court must review whether a four-prong standard has been met. Lunneborg v. My Fun Life , 163 Idaho 856, 867, 421 P.3d 187, 198 (2018). The standard asks whether the trial judge:

(1) Correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.

V. ANALYSIS

A. The “law of the case” doctrine prevents this Court from addressing the issue regarding the power of attorney relied on by Smith.

Smith argues that the trial court’s decision not to analyze his legal position on remand regarding the power of attorney was erroneous. He claims that neither the district court nor this Court viewed the power of attorney before deciding that it terminated upon his mother’s death. He alleges that this Court, in determining previously that fees under Idaho Code section 12-121 were inappropriate, simply mentioned the irrevocable power’s termination in passing and in a footnote, making it dicta not necessary to the decision in Smith I . He contends that since the irrevocability of the power of attorney was not before this Court on appeal, it cannot be held that it was necessary to this Court’s decision and as such, cannot be the “law of the case.” He asserts that had either the district court or this Court realized the power of attorney was, in fact, irrevocable, there would be no legal basis for a court to award attorney fees to TVSC under Rule 11, because such a claim, in Smith’s view, is neither frivolous nor without foundation.

Idaho adheres to the “law of the case” doctrine, which provides that when this Court,

in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal. This doctrine also prevents consideration on a subsequent appeal of alleged errors that might have been, but were not, raised in the earlier appeal.

PHH Mortg. v. Nickerson , 164 Idaho 33, 38, 423 P.3d 454, 459 (2018) (internal quotations and citations omitted).

Smith’s appeal seeks to revisit issues relative to the power of attorney that this Court decided in Smith I . Of the three issues presented in his opening brief, all three involve at least a partial attempt to relitigate the prior determination of this Court regarding “the irrevocable power of attorney.” In Smith I , we stated in the body of the opinion:

Vernon contends he is authorized to sue on Victoria’s behalf, citing his power of attorney. We are not persuaded. A power of attorney terminates once the principal dies. I.C. § 15-12-110(1)(a). Vernon’s power of attorney, therefore, terminated at Victoria’s death—roughly three months before the complaint was filed.

The determination that the power of attorney terminated at the death of Smith’s mother was necessary to reach the ultimate conclusion in Smith I that Smith was a real party in interest in the original case, at least for part of his appeal. To determine whether Smith was a real party in interest with regard to attorney fees, we had to analyze whether Victoria’s death affected Smith’s interest in the case at all. Although the Court determined that Smith was not a real party in interest regarding the original dismissal of the complaint, our determination that the power of attorney, irrevocable or not, had terminated upon Victoria’s death, was critical to this Court’s ultimate decision relative to the issue of attorney fees.

Since our holding relative to the power of attorney was necessary to the ultimate decision in Smith I , it is the law of the case. The “law of the case” doctrine therefore precludes Smith’s attempt to relitigate these issues anew in this second appeal. See PHH Mortg. , 164 Idaho at 38, 423 P.3d at 459.

Without something like it, an adverse judicial decision would become little more than an invitation to take a mulligan, encouraging lawyers and litigants alike to believe that if at first you don’t succeed, just try again.

Id . (quoting Entek GRB, LLC v. Stull Ranches, LLC , 840 F.3d 1239, 1240 (10th Cir. 2016) (internal quotation marks omitted) ).

We decline to offer Smith an opportunity for a mulligan on his arguments about the power of attorney. Thus, his attempt to relitigate the issues about the power of attorney is precluded by the law of the case.

B. The district court did not abuse its discretion when it awarded attorney fees under Rule 11.

Smith argues that the district court abused its discretion in making an award of attorney fees to TVSC through Rule 11 upon remand, since in the first hearing about awarding attorney fees before the appeal in Smith I , the court declined to award attorney fees under Rule 11. At the hearing before the first appeal, the district judge stated:

I am not comfortable that the procedure required by Rule 11, that is, the opportunity—the notice . to withdraw a pleading and get out from under the potential sanction was followed in this case . I’m going to decline to award fees under Rule 11.

Smith claims that this statement was binding upon TVSC and the district court in future actions because it was the “final decision of the lower court.”

Smith also argues that Rule 11 sanctions cannot be imposed against him because procedural prerequisites were not followed by TVSC or the district court in awarding fees. He alleges TVSC needed to file a new motion requesting Rule 11 sanctions, based on the wording of the Rule as of July 1, 2016. He claims the initial motion which the district court relied on is insufficient because the district court denied Rule 11 sanctions at the original hearing regarding attorney fees. We disagree with both assertions.

First, Smith seeks to rely on the district court’s erroneous reasoning in failing to award Rule 11 sanctions which was reversed by this Court in Smith I . We specifically noted that “the district court erred in its Rule 11 analysis” because

Rule 11 did not require notice and an opportunity to respond at the time of the hearing. The district court held the attorney fee hearing on July 28, 2014. But the amendment requiring notice and an opportunity to respond under Rule 11 did not become effective until July 1, 2016.

We note parenthetically that placement of this holding in a footnote does not make this statement dicta. It related directly to the district courts error in misapplying the wrong version of Rule 11.
——–

Thus, Smith’s claims are merely a regurgitation of what was argued and ruled upon by this Court previously. His attempts to relitigate this issue are therefore precluded by the “law of the case” doctrine.

Second, Smith’s claim that TVSC needed to file another motion under the 2016 version of Rule 11 after remand likewise fails. Upon remand the district court noted that TVSC made a proper request for attorney fees based on Rule 11 as it existed at the time the request was made in 2014. The only reason the Rule 11 request for attorney fees was not granted by the district court at that time was because the district court committed a legal error by applying the wrong version of Rule 11 to its analysis. See id . The district court also recognized that to require TVSC to serve a separate motion and not file it for 21 days, per the 2016 rule, would be an exercise in futility, where the complaint had long been dismissed, with that decision affirmed in Smith I . We agree.

In the present case, the district court articulated that the case “should not have been brought in the fashion it was.” The original filing (the complaint) was improper because the contentions contained within it were based on Smith’s belief that he could proceed with the suit through his power of attorney, despite Victoria’s death. Once the complaint was dismissed based on the termination of Smith’s power of attorney with the death of his mother, continued pursuit of the litigation had no legal basis. As the district court aptly stated, “[t]he conduct to be sanctioned is the fostering of litigation without legal grounds by a person trained in the law.”

Also, Smith’s persistence in this appeal regarding the Rule 11 sanctions imposed by the district court came despite this Court’s prior ruling that a new motion need not be filed to satisfy the notice requirement of Rule 11 as amended. We held that upon remand the district court was in no way limited “from considering all legal bases for awarding attorney fees.” 161 Idaho at 111, 383 P.3d at 1281.

Thus, the district court did not abuse its discretion in awarding attorney fees under Rule 11. The district court correctly perceived the issue as one within its discretion, acted within the boundaries of that discretion (as evidenced by this Court’s suggestion of Rule 11 sanctions in Smith 1 ), acted consistently with the legal standards provided by Rule 11 as it existed during the time the request for such was filed, and gave reasoning for doing so. We affirm the discretion of the district court in awarding attorney fees as Rule 11 sanctions.

C. Neither party is entitled to attorney fees on appeal.

Neither Smith nor TVSC are entitled to attorney fees on appeal. In order to be entitled to attorney fees on appeal, authority and argument establishing a right to fees must be presented in the first brief filed by a party with this Court. Kelley v. Yadon , 150 Idaho 334, 338, 247 P.3d 199, 203 (2011). Although it is the prevailing party, TVSC did not participate in this appeal, so no fees or costs may be awarded on that basis. Further, attorney fees can only be awarded to the prevailing party. Id. Since Smith is not the prevailing party on appeal, he is not entitled to an award of attorney fees.

VI. CONCLUSION

For the reasons set forth above, the judgment of the district court is affirmed. The district court did not abuse its discretion in awarding Rule 11 sanctions against Smith. We award no attorney fees or costs.

Chief Justice BURDICK, Justices BRODY, STEGNER and HORTON concur.

Read Smith v. Treasure Valley Seed Co., 434 P.3d 1260, see flags on bad law, and search Casetext’s comprehensive legal database