Odziemek v. Wesely

• Decision Date: 25 June 1981
• Docket Number: No. 13555,13555
• Citation: 102 Idaho 582,634 P.2d 623
• Parties: Frank ODZIEMEK, Plaintiff-Appellant, v. Dan Lee WESELY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 623

634 P.2d 623

102 Idaho 582

Frank ODZIEMEK, Plaintiff-Appellant, v. Dan Lee WESELY, Defendant-Respondent.

No. 13555.

Supreme Court of Idaho.

June 25, 1981.

Rehearing Denied Oct. 30, 1981.

Donald W. Lojek of Parkinson, Lojek & Penland, Boise, for plaintiff-appellant (on appeal only).

John L. King of King & Morris, Boise, for defendant-respondent.

SHEPARD, Justice.

This is an appeal from a judgment following a jury verdict. The verdict was in favor of plaintiff Odziemek, but awarded him only nominal damages of $1.00. Judgment was entered awarding defendant Wesely costs of $874.25 and attorney fees of $5,868. We affirm.

Odziemek alleged Wesely had assaulted and battered him and sought general damages of $200,000, punitive damages of $50,000, and special damages of approximately $1,000. Wesely answered denying the allegations and requested attorney fees pursuant to I.C. § 12-121. Wesely, approximately 47 days prior to trial, made an offer of judgment in the amount of $1,700, but that offer was refused.

Following the jury verdict, Wesely submitted a memorandum of costs and affidavit in support of reasonable attorney fees, to which Odziemek objected. Oral argument was held thereon, following which the court, under the provisions of I.R.C.P. 54(d)(1)(B), held that Wesely was the prevailing party and awarded him costs and attorney fees.

I.R.C.P. 54(d)(1)(B) provides that costs shall be allowed as a matter of right to the prevailing party or parties unless otherwise ordered by the court and further provides that in determining which party to an action is a prevailing party and therefore entitled to costs, "the trial court shall in its sound discretion consider the final judgment or result of the action in relation to the relief sought by the respective parties...." Here the trial court clearly held that pursuant to I.R.C.P. 54(d)(1)(B), Wesely was the prevailing party. In considering the relief sought by the respective parties and the relief received by each party, we find no abuse of discretion by the trial court in determining that Wesely was the prevailing party. Hence, the trial court's award of costs to Wesely was proper. I.R.C.P. 68 clearly provides that a party tendering offer of judgment is entitled to those costs accrued following his offer of judgment where, as here, the damages awarded are less than the offer of judgment. It is clear from the record that the award of attorney fees to Wesely was made pursuant to I.C. § 12-121. Wesely, in his answer, specifically sought attorney fees pursuant to I.C. § 12-121 and counsel for both parties in oral arguments and in written memoranda submitted to the trial court, submitted the matter of the award of attorney fees within the context of and pursuant to I.C. § 12-121.

The trial court here properly determined that Wesely was the prevailing party and I.C. § 12-121 authorizes the trial judge to award reasonable attorney fees to the prevailing party. The record before us discloses no indication of trial court abuse in either the award of or in the amount of attorney fees. 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).

The judgment is affirmed. Costs to respondents.

BAKES, C. J., and DONALDSON, J., concur.

McFADDEN, Justice, dissenting.

Appellant sets forth as an issue on appeal whether I.R.C.P. 54(d) has been violated by a trial court which fails to make any findings as to why costs and fees have been granted. Appellant points to the provisions of I.R.C.P. 54(e) as well, but I am in agreement with the majority that 54(e) is not applicable to this case. However, I.R.C.P. 54(d)(1)(B) does support what I believe to be appellant's contention.

I.R.C.P. 54(d)(1)(B) provides in part that the trial court may determine who "prevailed" in an action and "upon so finding," apportion costs. ¹ The conclusion which party in an action ultimately prevailed, or prevailed for the purposes of costs and fees, is not always as apparent as it might be thought. For example, 6 Moore's Federal Practice P 54.70(4) discusses at length the various problems possible in making this determination.

Clear, too, is the fact that the determination of prevailing party called for by I.R.C.P. 54(d)(1)(B) is committed to the sound discretion of the trial court. Thus, such a determination is subject to appellate review for abuse of that discretion. It is in this regard that I find the failure of the trial court to make findings concerning costs, fees, ² and the prevailing party troublesome.

In my view, the determination of which party prevailed, made by the court independent of the jury, comes within the parameters of I.R.C.P. 52(a) which states in pertinent part:

"Findings by the court Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct entry of the appropriate judgment ...."

The applicability and function of the rule has been stated as follows:

"Rule 52(a) requires findings of fact and conclusions of law to be made 'in all actions tried upon the facts without a jury' .... In brief, where the trial court must make a factual determination in arriving at a judgment there are to be findings of fact and conclusions of law in the civil actions to which Rule 52 is applicable .... In determining the applicability of Rule 52 two things should be borne in mind: the purposes of findings of fact and conclusions of law; and the civil actions to which the ... Rules are applicable in whole or in part.

The purpose of findings of fact and conclusions of law is to aid the trial court in making a correct factual decision and a reasoned application of the law to the facts; to define for the purposes of res judicata and estoppel by judgment the issues then adjudicated; and to aid the appellate court." 5A Moore's Federal Practice P 52.03(3).

The benefits of the rule are properly called for whenever the court is the finder of the relevant facts involved in a decision. That is, when a judgment turns in part upon a factual determination, the rule provides for explanation and clarification, not only to guide the decision of the trial court, but to afford to the reviewing appellate court a clear understanding of the grounds upon which the judgment is based.

Here the trial court merely held the defendant to be the prevailing party under I.R.C.P. 54(d)(1)(B). There is no amplification of the factual basis of that determination, and it is thus incapable of being reviewed by this court as to whether or not such determination was an abuse of discretion. ³ I would remand for sufficient findings.

BISTLINE, Justice, dissenting.

We have here a case where the jury found in favor of the plaintiff on the primary issue that of liability. Had the jury's decision on that issue gone for the defendant the secondary issue of damages would not have been reached. So it is with all such cases; the defendant will be said to have prevailed in the action when the jury decides the primary issue in the defendant's favor. That should be the beginning and the end of the Court's opinion. Unfortunately it is not. The Court, in addition to unconstitutionally entering into the field of allowing attorney's fees, which it did by attempting to improve upon the legislature's I.C. § 12-121, and which it did by allowing attorney's fees as punitive damages, Cox v. Stolworthy, 94 Idaho 683, 496 P.2d 682 (1972); Jolly v. Puregro, 94 Idaho 702, 496 P.2d 939 (1972) (see dissenting opinions of Justice McQuade), now opens up for more litigation the determination of "just who was the prevailing party?"

Believing that today's opinion is not supported in precedent or in logic, I am impelled to briefly state the authorities which bring me to dissent.

The Court's approach is observed as being a two-step analysis first, that the defendant was the prevailing party for the purpose of awarding costs and, secondly, that it thus follows that he was also the prevailing party for the purpose of awarding attorney's fees.

I. COSTS

The majority opinion takes a stand which is contrary to the immediately apparent result and, in fact, is also contrary to the relevant precedent. Under Federal Rule 54(d), which is representative of the usual approach to awarding costs, courts may not award costs to a party who does not obtain an affirmative judgment in its favor. As stated in Moore's Federal Practice, § 54.70(4), at 1306-07 (Supp. 1980-81), "(i)n general, a party in whose favor judgment is rendered by the district court is the prevailing party in that court.... Although a plaintiff may not sustain his entire claim, if judgment is rendered for him he is the prevailing party." (Citations omitted.) While the trial court under the federal rule has the discretion to deny costs to a prevailing party, and that discretion may well be exercised where the ultimate award is substantially less than the damages sought this does not give a court the authority to award costs to a party who does not have a judgment in its favor. See Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993, 998-99 (5th Cir. 1976) (district court does not have power to award costs to defendants even though plaintiffs won only nominal damages).

Similarly, the general rule governing cost awards as stated in 20 Am.Jur.2d Costs § 15 at 14 (1965) is:

"(T)...