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Smith v. Treasure Valley Seed Co., LLC

Supreme Court of Idaho

November 3, 2016

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.

         2016 Opinion No. 128

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Richard D. Greenwood, District Judge.

         District court award of attorney fees, vacated and remanded.

          Law Office of Vernon K. Smith, Boise, for appellant. Vernon K. Smith argued.

          Eismann Law Offices, Nampa, for respondents. Ryan L. Martinat argued.

          BURDICK, Justice.

         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 ...


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