USA – IDAHO Trends and Developments Contributed by: Tyler Anderson, Carsten Peterson, Tracy Wright and Christian Moak, Hawley Troxell
extreme and outrageous conduct required for IIED claims; • there was no evidence that the defendants intend - ed to cause family members emotional distress, precluding IIED claims; • the defendants did not owe a duty to family mem- bers, precluding NIED claims; and • the family members’ appeal of summary judgment on IIED and NIED claims was frivolous, and thus the defendants were entitled to partial attorney fees. In ruling on the respondents’ request for attorney fees under IC Section 12-121, the Court used slightly dif - ferent language in detailing the analysis that the Court undertakes in considering an award under IC Sec - tion 12-121. The Court may award reasonable attor - ney fees to the prevailing party upon finding that “the case was brought, pursued or defended frivolously, unreasonably or without foundation”. See IC Section 12-121. In evaluating such a request, the Court con - siders “[t]he entire course of the litigation”. See Tel- ford Lands LLC v Cain , 154 Idaho 981, 993, 303 P3d 1237, 1249 (2013). “Apportionment of attorney fees is appropriate for those elements of the case that were frivolous, unreasonable, and without foundation”. See Idaho Mil Hist Soc ’ y , Inc v Maslen , 156 Idaho 624, 632, 329 P3d 1072, 1080 (2014). See also Spears , 585 P3d at 329. The Court, while acknowledging that “awarding attorney fees against a tort plaintiff carries the risk of disincentivizing victims and their heirs from vindicating their compensatory rights, deterring future negligence, and punishing tort - feasors”, still found that the respondents were enti - tled to a partial award of attorney fees. Id. The Court noted that the “NIED and IIED claims lacked a sound legal basis”, and that the Court did not believe “the
district court’s grant of summary judgment to Mary Russel on those claims is fairly debatable”. Id. How - ever, the Court did find “the Flaget heirs’ arguments on appeal concerning the district court’s treatment of the special-relationship and assumed-duty theories to be more plausible, even if unartfully presented in the briefs and at oral argument” and did not award attor - ney’s fees for that specific portion of the appeal. Id. In light of the decisions in Hyde , Spears and Bick- erstaff , potential appellants should consider whether their appeals raise legitimate questions of law in dis - puting the decision of a lower court; otherwise, they may face significant fees under IC Section 12-121 for essentially asking the Idaho Supreme Court for a second opinion. More recently, the Idaho Court of Appeals awarded attorney’s fees under IC Section 12-121 against a pro se litigant serving a unified life prison sentence for first-degree murder. See Randall v Miller et al , Docket No 63670, Slip Op (13 May 2026). Randall, the plaintiff, sued his former attorney, who handled a majority of the criminal defence for legal malpractice. The defence moved for summary judg - ment and received a favourable ruling from the district court, which was upheld on appeal. In awarding attorney’s fees, the Idaho Court of Appeals recited the language referenced above, including the statement that appellate courts do not second- guess decisions of the trial court. It is significant that the Idaho Court of Appeals is awarding fees under 12-121, and particularly more significant that it issued an award against a pro se plaintiff serving a life prison sentence. If your clients are thinking that taking up an appeal to get a second opinion is in their best interest, reasonable attorneys should have a discussion about the fee risks associated with that strategy.
1125 CHAMBERS.COM
Powered by FlippingBook