Term 2016 Opinion No. 146
from the District Court of the Third Judicial District of the
State of Idaho, Canyon County. Hon. Juneal Kerrick, District
judgment of the district court is affirmed. .
Kaufman Reid, PLLC, Boise, attorneys for appellant. James G.
Greener Burke Shoemaker Oberrecht, PA, Boise, attorneys for
respondent. Loren K. Messerly argued.
Nature of the Case
Leo Gilbride ("Gilbride"), contends that the
district court erred by refusing his request for
attorney's fees. The underlying dispute arose out of a
sale of real property between Respondent, David Kosmann
("Kosmann"), and Gilbride, which was executed with
the alleged understanding that Gilbride would re-convey the
property back to Kosmann at a later time. After purchasing
the property, with down payment funds provided by Kosmann,
Gilbride refused to re-convey the property to Kosmann.
Accordingly, on January 25, 2013, Kosmann filed a complaint
against Gilbride alleging, inter alia, unjust
enrichment and demanding specific performance of
Gilbride's promise to re-convey the property. The
district court dismissed the specific enforcement claim,
awarded Kosmann $30, 990 based on his unjust enrichment
claim, and denied both parties' claims for attorney's
appeal, Gilbride argues that he was entitled to
attorney's fees pursuant to the Real Estate Purchase and
Sale Agreement, or Idaho Code section 12-120(3).
Factual and Procedural Background
case arises from Kosmann's sale of real property to
Gilbride and an alleged oral agreement for Gilbride to
re-convey the property back to Kosmann at a later time.
Kosmann owned real property commonly known as 1020 W.
Homedale Road, Caldwell, Idaho 83607 (the
"Property"). The Property consists of a home, two
shops, and an acre of open field.
summer of 2011, Kosmann became unable to make his mortgage
payments. He owed about $260, 000 on the Property, but it
only appraised for $130, 000. After failed attempts to
refinance his loan, Kosmann contacted Justin McCarthy, a real
estate agent. McCarthy explained that there were investors
who would be available to purchase the Property and rent it
back to Kosmann. After two sale and lease back agreements
fell through with separate parties, Kosmann introduced
McCarthy to Gilbride. Gilbride and Kosmann first met in May
2012, and by "June or July . . . [Gilbride] offered to
help [Kosmann] as a friend." Kosmann and Gilbride had
similar backgrounds in the military. Gilbride offered to help
Kosmann with the understanding that Gilbride would obtain the
loan, but Kosmann would pay the down payment, closing costs,
and also pay Gilbride "a couple hundred extra a month
for his trouble until such time [Kosmann] could regain
possession of the home."
this arrangement, Gilbride allegedly orally promised to help
Kosmann obtain a short sale of the Property and thereafter:
(1) allow Kosmann to reside and operate his restoration
business at the Property, and (2) allow Kosmann an
opportunity to buy the Property back at a later time. On
September 24, 2012, Kosmann and Gilbride executed the Real
Estate Purchase and Sale Agreement (the "REPSA").
The REPSA provided as follows: "Offer is contingent upon
3rd party bank (GMAC) releasing the mortgage as paid in full,
and releasing rights to pursuit of a deficiency judgment.
Seller will rent the property back from the buyer for a term
of not less than 1 year." A short sale was arranged with
the lender, GMAC, but in order to get the short sale
approved, Kosmann and Gilbride were required to sign a Short
Payoff Arms-Length Affidavit, which included the following:
There are no agreements, understandings or contracts between
the parties that the Borrower will remain in the Mortgage
Premises as a tenant or later obtain title or ownership of
the Mortgaged Premises, except to the extent that the
Borrower is permitted to remain as a tenant on the Mortgaged
Premises for a short term, as is common and customary in ...