Anderson v. Ethington

• Decision Date: 29 September 1982
• Docket Number: No. 13446,13446
• Citation: Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (Idaho 1982)
• Parties: Herbert ANDERSON and Darlene Anderson, Plaintiffs, v. Eric ETHINGTON, Robert Ethington, Eldon Ethington, and Jane Roe Ethington, Defendants-Appellants, Defendants-Third Party Plaintiffs-Appellants, v. CITY OF HANSEN FIRE DEPARTMENT, Third Party Defendant-Respondent. Marybell HOWARD, Plaintiff, v. Eric ETHINGTON, Robert Ethington, Eldon Ethington, and Jane Roe Ethington, Defendants-Third Party Plaintiffs-Appellants, v. CITY OF HANSEN FIRE DEPARTMENT, Third Party Defendant-Respondent.
• Court: Idaho Supreme Court

Page 923

651 P.2d 923

103 Idaho 658

Herbert ANDERSON and Darlene Anderson, Plaintiffs, v. Eric ETHINGTON, Robert Ethington, Eldon Ethington, and Jane Roe Ethington, Defendants-Appellants, Defendants-Third Party Plaintiffs-Appellants, v. CITY OF HANSEN FIRE DEPARTMENT, Third Party Defendant-Respondent.

Marybell HOWARD, Plaintiff, v. Eric ETHINGTON, Robert Ethington, Eldon Ethington, and Jane Roe Ethington, Defendants-Third Party Plaintiffs-Appellants, v. CITY OF HANSEN FIRE DEPARTMENT, Third Party Defendant-Respondent.

No. 13446.

Supreme Court of Idaho.

Sept. 29, 1982.

Robert M. Tyler, Jr., of Elam, Burke, Evans, Boyd & Koontz, Boise, for appellants.

Frederick F. Plankey, of Plankey & Greenwood, Twin Falls, for plaintiff.

McFADDEN, Justice.

On May 21, 1976 appellants were burning weeds located in an irrigation ditch near the highway. A small fire broke out and ignited a shed and a tree. The fire burned out of control, the City of Hanson Fire Department was summoned and the fire was extinguished. The fire department left after which a second fire broke out at the nearby Towne Tavern. The original plaintiffs below alleged that the Towne Tavern fire was started by a burning ember from the original fire.

Complaints were filed against appellants by the owner of the tavern, Marybell Howard, and by the lessees and operators of the tavern, the Andersons. The original plaintiffs are not parties to this appeal. Answers were filed and on May 30, 1978, appellants filed a third party complaint for indemnity and contribution against respondent, City of Hanson Fire Department. The third party complaint was based on respondent's breach of duty in failing to inspect nearby buildings in order to control the spread of fire. An answer to the third party complaint was filed and the original and third party actions were consolidated for trial.

On June 20, 1978, respondent filed a motion to dismiss and in the alternative for summary judgment on the third party complaint. This motion was denied.

Trial was held on April 25, 1979, on the issues presented by the original complaint of the plaintiffs against the defendants and third party plaintiffs-appellants Ethingtons, and also on the issues presented by the Ethingtons' third party complaint against respondent City of Hansen Fire Department. After appellants' counsel had rested, respondent City of Hansen moved for a directed verdict. This was taken under advisement. After the trial the jury returned its special verdict in favor of the Ethingtons and appellants, finding the Ethingtons to be not guilty of negligence which proximately caused the Towne Tavern fire. On May 18, 1979, the motion for directed verdict was granted in favor of respondent City of Hansen Fire Department. An amended judgment was entered June 13, 1979, denying the plaintiffs Howard and Andersons any recovery on their complaint against the defendants Ethingtons, but this judgment awarded respondent City of Hansen Fire Department $4,516 attorney fees and costs in defense of the Ethingtons' third party complaint against the fire department. This appeal by the Ethingtons followed.

This case involves a situation in which the action was filed prior to March 1, 1979 ¹ but heard after that date. The issue on appeal is whether the trial court abused its discretion in awarding attorney fees to respondents. Appellant argues that the trial court's discretion is limited by I.R.C.P. 54(e). This issue was resolved in Odziemek v. Wesely, 102 Idaho 582, 634 P.2d 623 (1981), and reaffirmed in White v. Rehn, 103 Idaho 1, 644 P.2d 323 (1982). In Odziemek we stated:

"This Court in Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979), and in Futrell v. Martin, 100 Idaho 473, 600 P.2d 777 (1979), held that attorney fees on appeal would only be awarded when the Court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation. However, that standard was not imposed upon the trial courts for causes of action filed prior to the effective date of I.R.C.P. 54(e) (March 1, 1979), and in fact, in both Minich and Futrell the trial court's award of attorney fees was affirmed without imposing the standard now contained in I.R.C.P. 54(e)(1)."

Consequently, the decision to award attorney fees rests in the sound discretion of the trial court pursuant to I.C. § 12-121, which provides:

"In any civil action, the judge may award reasonable attorney's fees to the prevailing party or parties, provided that this section shall not alter, repeal or amend any statute which otherwise provides for the award of attorney's fees."

The award of attorney fees resting in the sound discretion of the trial court, the burden is on the person disputing the award to show an abuse of discretion. Palmer v. Idaho Bank and Trust, 100 Idaho 642, 603 P.2d 597 (1979). The trial court found that "the evidence in the case discloses that the third party complaint was without reasonable foundation" and awarded attorney fees to respondents.

Appellant argues that the trial court abused its discretion in awarding the fees in that appellants had demonstrated genuine issues as to material facts when they were successful in opposing respondents' summary judgment motion to their third party complaint. It is conceivable that a party may prevail on a motion for summary judgment and still have brought the claim without reasonable foundation. This situation can occur because of the rules governing summary judgment motions. Summary judgment should be granted only when the pleadings, depositions and admissions, together with affidavits, if any, show that there is no genuine issue as to any material fact. The facts are to be liberally construed in favor of the party opposing the motion, who is also to be given the benefit of all favorable inferences which might be reasonably drawn from the evidence. Huyck v. Hecla Min. Co., 101 Idaho 299, 612 P.2d 142 (1980). Palmer v. Idaho Bank & Trust, supra; I.R.C.P. 56(c). While a genuine issue may appear on the face of the pleadings and affidavits, it does not necessarily follow that the evidence introduced at trial sustains that position. At the end of the trial the court concluded that the third party complaint was without reasonable foundation. The fact that it had previously found for the party on summary judgment does not necessarily establish that the complaint was reasonable and well founded.

Appellants' second argument is that the testimony at trial indicated that respondent had in fact breached its duty of care. The trial court had the opportunity to observe the witnesses and the evidence which was introduced. The court concluded that the testimony did not support such a contention when it stated that the claim was without reasonable foundation and when it entered a directed verdict in favor of respondent. Our review of the record does not indicate that the trial court abused its discretion. There is no contention that the amount of fees awarded is unreasonable. The judgment is affirmed.

Costs to respondent.

BAKES, C. J., and BISTLINE, DONALDSON and SHEPARD, JJ., concur.

Submitted by McFADDEN, J., prior to his retirement on August 31, 1982.

BISTLINE, Justice, concurring.

The Ethingtons, charged with negligence, by their third-party complaint sought to pass off all or part of it to the City of Hansen fire department, premising this action on the fire department's alleged negligence and on a theory of indemnity. The Howards and the Andersons, plaintiffs who suffered losses when the Town Tavern caught on fire, stipulated to the allowance of the third-party complaint, but did not accept the City as a defendant in their suits against the Ethingtons. After a three-day trial the jury was handed a special verdict (by whom submitted not appearing) the first question of which asked the jury's determination of whether the Ethingtons were "guilty of negligence which was a proximate cause of the Town Tavern fire." The jury answered "no," and the direction of the verdict form was that upon such negative answer the remaining questions were not to be answered. Unanswered, then, were questions which would have declared any causative negligence on the part of the City fire department and of the plaintiffs and made an allocation of the total negligence in percentages.

It is at once obvious that under this particular form of special verdict the Ethingtons, in successfully defending the action against themselves, at the same time established a defense for the City fire department which they were suing. Whether the jury might have determined that the City fire department was negligent will forever be unknown. ¹ On appeal from the award of attorney's fees against them, the Ethingtons contend that the record contains evidence tending to establish such liability, the main premise of their third-party complaint having been aimed at the "intervening and superceding negligence of the fire department."

After the verdict was in, the Ethingtons in their cost bill sought "discretionary" attorney's fees of $4,535 against the plaintiffs, and the City in its cost bill sought "discretionary" attorney's fees from the Ethingtons in the sum of $5,330. In its order awarding the sum of $4,500 to the City the trial court stated that "the evidence in the case discloses that the Third Party Complaint was without reasonable foundation," and nothing more. On appeal the Ethingtons (1) specify as error the failure of the trial court to make the findings required by Rule 54(e), and (2) challenge the trial court's terse finding that the third-party complaint was "without reasonable foundation," characterizing that finding as conclusionary, unreasonable, untenable, and hence an abuse of discretion.

Without doubt subparagraph (2) of Rule 54(e) requires findings and that requirement is not fulfilled by the sparse statement utilized by the trial court in making the award. The Court,...