Odziemek v. Wesely

634 P.2d 623, 102 Idaho 582, 1981 Ida. LEXIS 383

• Court: Idaho Supreme Court
• Decided: June 25, 1981
• Docket: 13555
• Status: Published

Opinions

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.