Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bannock County. Hon. Peter D. McDermott, District Judge.
The opinion of the court was delivered by: Horton, Justice
The decision of the district court is vacated and the case is remanded for further proceedings.
This case arises out of a district court's decision, upon remand from this Court, awarding attorney fees to J-U-B Engineers, Inc. (J-U-B) and ordering that the Bannock County Auditor remit $41,140 to J-U-B from the $102,541.86 cash bond previously deposited with the auditor by BECO Construction Company, Inc. (BECO). We vacate those orders and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2005, BECO filed suit against J-U-B for breach of contract, negligence, and tortious interference with BECO's construction contract with the City of Pocatello. J-U-B filed motions for summary judgment on all three claims, and on August 15, 2005, BECO dismissed its breach of contract claim. The district court granted summary judgment in favor of J-U-B on the negligence and intentional interference with contract claims and awarded J-U-B attorney fees pursuant to I.C. § 12-120(3). BECO appealed the district court's grant of summary judgment on the intentional interference with contract claim and its award of attorney fees. At that time, BECO also moved the district court to stay execution upon the judgment awarding attorney fees to J-U-B pending the outcome of the appeal and deposited a cash bond in the amount of $102,541.86 with the clerk of the court.
In BECO Const. Co., Inc. v. J-U-B Engineers, Inc., this Court affirmed the district court's grant of summary judgment on the intentional interference with contract claim, albeit upon different grounds. 145 Idaho 719, 724-25, 184 P.3d 844, 849-50 (2008). We further held that I.C. § 12-120(3) does not provide the basis for a fee award to J-U-B after the point where the [breach of contract] claim was dismissed. Up to that point, J-U-B is entitled to its fees for defending against the contract claim. After that point, J-UB is not entitled to its fees because there is no commercial transaction between the parties. . . . . We therefore vacate the fee award and remand this case for determination and award of the amount of fees J-U-B incurred defending BECO's contract claim.
Id. at 726, 184 P.3d at 851.
Upon remand, BECO moved to have its cash bond released. The district court denied the motion. The court further ordered the parties to brief the attorney fees issue, and stated that it would determine the amount of fees due to J-U-B for defending against BECO's contract claim and award attorney fees to J-U-B for its time expended in preparing this latest brief. BECO thereafter filed a brief opposing an award of attorney fees, and J-U-B filed a memorandum in support of attorney fees, as well as a memorandum of fees that included an itemization of the hours billed by J-U-B's counsel in preparing the memorandum in support of attorney fees. Around this time, BECO unsuccessfully sought a writ of mandate from this Court for the release of the appeal bond.
The district court awarded J-U-B $35,600 in attorney fees incurred in defending against BECO's contract claim. The district court further found that ―[d]ue to the objections raised by counsel for BECO and their Petition for a Writ of Mandate,‖ it was necessary for J-U-B to incur additional attorney fees in seeking an award of attorney fees on the contract claim. The district court then awarded J-U-B $5,540 in attorney fees incurred in the effort to obtain the award of attorney fees on the contract claim, for a total award of $41,140. The court ordered the county auditor to pay the award to J-U-B from BECO's appeal bond and to remit the balance of the bond, with interest, to BECO. BECO appeals.
A trial court's findings of fact will not be set aside unless clearly erroneous. Bolger v. Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002). However, this Court exercises free review over questions of law. Id.
―The calculation of reasonable attorney fees is within the discretion of the trial court.‖ Bott v. Idaho State Bldg. [Auth.], 128 Idaho 580, 592, 917 P.2d 737, 749 (1996). ―The burden is on the party opposing the award to demonstrate that the district court abused its discretion.‖ [E.] Idaho [Agric.] Credit Ass'n v. Neibaur, 133 Idaho 402, 412, 987 P.2d 314, 324 (1999). To determine whether the trial court abused its discretion, we determine: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and ...