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,
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.
Opinion No. 128
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Richard D. Greenwood,
court award of attorney fees, vacated and remanded.
Office of Vernon K. Smith, Boise, for appellant. Vernon K.
Eismann Law Offices, Nampa, for respondents. Ryan L. Martinat
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.
FACTUAL AND PROCEDURAL BACKGROUND
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."
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
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
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.
ISSUES ON APPEAL
there a real party in interest for this appeal?
the district court err in fashioning the award of attorney