Conner v. Dake

653 P.2d 1173, 103 Idaho 761, 1982 Ida. LEXIS 301

Opinions

BAKES, Chief Justice.

In the proceedings below, judgment was entered against the appellants, and included an award of attorney fees under I.C. § 12-121. The only issue raised by appellants on this appeal is whether the court below erred in awarding attorney fees against them.

I.R.C.P. 54(e)(6) states that “[a]ny objection to the allowance of attorney fees, or to the amount thereof, shall be made in the same manner as an objection to costs as provided by Rule 54(d)(6).” I.R.C.P. 54(d)(6) provides that “[a]ny party may object to the claimed costs of another party set forth in a memorandum of costs by filing and serving on adverse parties a motion to disallow part or all of such costs within ten days of service of the memorandum of costs.... Failure to timely object to the items in the memorandum of costs shall constitute a waiver of all objections to the costs claimed.”

Respondents assert and the record reflects that no objection to respondents’ memorandum of costs was ever filed.¹ Appellants thereby waived their right to further contest the award of attorney fees. I.R.C.P. 54(e)(6) and 54(d)(6).

The judgment is affirmed. Costs and attorney fees on appeal to respondents. I.C. § 12-121; Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).

McFADDEN, DONALDSON and SHEPARD, JJ., concur. McFADDEN, J., registered his vote prior to his retirement on August 31, 1982.

Footnotes

1

. The record reflects that respondents’ memorandum of costs, including attorney fees, was filed on July 28, 1980, the date that the amended judgment was entered, and that on August 11, 1980, more than ten days thereafter, the court heard oral argument on the allowance of costs. The record, however, does not disclose the nature of that argument, and specifically whether the waiver issue raised by respondent on appeal was argued before the trial court. In the absence of a showing in the record that respondents agreed not to assert the argument that appellants waived the right to object to costs and attorney fees by failing to timely object, the language of I.R.C.P. 54(d)(6), that “[flailure to timely object to the items in the memorandum of costs shall constitute a waiver of all objections to the costs claimed,” controls.