Minich v. Gem State Developers, Inc.

BISTLINE, Justice,

specially concurring.

In holding that attorney fees for the appeal should not be allowed, I concur with *920 what Justice Donaldson has written, adding that the distinction which he has carefully drawn is but one reason for holding that attorney fees on appeal are not provided for in either I.C. § 12-120 or § 12-121.

The legislature, in three times addressing the awarding of attorney fees under those statutes, has not once mentioned the award of attorney fees in an appellate proceeding. Such can only mean that the legislature clearly had in mind that a civil action is generally understood as a lawsuit, a trial or proceeding wherein rights and remedies are tried and decided in our district courts. I.C. § 5-101.

An appeal is not a civil action in any sense of being a trial, but is a review of the final judgment or dispositive order which has been entered in a civil action. I.C. § 13-101. An appellate court reviews a written record of that action to ascertain if the parties have had a fair trial free from prejudicial error. While a plaintiff commences or brings an action, I.C. § 5-101 (now repealed) and I.C. § 5-409, an appeal is taken. I.C. § 13-201; 1 Rule 11, I.A.R. 2 The purpose of an appeal is to obtain a review, i. e., an examination for error. I.C. § 13-201; § 13-219, now repealed.

There simply is no language whatever in either I.C. § 12-120 or I.C. § 12-121 which would justify a conclusion that this Court has been empowered to award attorney fees on the appeal of any civil action which has been taken to this Court.

A conclusion that the legislature did not have in mind the awarding of attorney fees on an appeal is fortified by an examination of previous legislative enactments and decisions of this Court. In 1951, the legislature passed the first statute which made insurance carriers liable for non-payment of amounts justly due under insurance contracts. As noted in Molstead v. Reliance Natn’l Life Ins. Co., 83 Idaho 458, 465 , 364 P.2d 883, 887 (1961), I.C. § 41-1403 (now amended and recodified as I.C. § 41-1839) provided that “the surety ‘shall, in any action in any court in this state for recovery under the terms of such policy, * * *, pay such further amount as the court shall adjudge reasonable as attorneys’ fees in such action.’ ” (Emphasis in Molstead.) It was held in Molstead that “the phrase, ‘in any action in any court in this state,’ without definitive classification, includes the Supreme Court.” Id. Conversely, in I.C. §§ 12-120 and 121, the legislature did not use that language, “in any court.”

In yet another context, i. e., the legislature’s grant of attorney’s fees in a successful materialmen’s lien foreclosure action, this Court has ruled as it did in Molstead . In Hendrix v. Gold Ridge Mines, Inc., 56 Idaho 326, 337-38 , 54 P.2d 254, 258 (1936), a successful claimant was awarded attorney’s fees in a trial court action adjudicating the validity of and foreclosure of his lien. The defendant appealed to the Supreme Court, whereupon, the judgment being affirmed, the materialman requested attorney’s fees on the appeal, predicating his claim on the statute, I.C.A. § 44-513 (now I.C. § 45-513), which read: “The court shall also allow as part of the costs . reasonable attorney’s fees.” This Court denied attorney’s fees for the appeal, pointing out that the California legislature, in passing a similar statute, “specifically provided for the allowance of ‘reasonable attorney’s fees in the superior and supreme courts.’ ” Id. at 337, 54 P.2d at 258 (emphasis added). This holding was followed 6 years ago in Ivie v. Peck, 94 Idaho 625 , 495 P.2d 1110 (1972), and applied again in Haile v. Davis, 99 Idaho 853 , 590 P.2d 580 (1979). Obviously the Court continues to recognize legislative awareness to a distinction between Idaho district courts and the Idaho Supreme Court. No reason appears for doubting a like ability of legislators to distinguish between a trial court judge and appellate court justices. On the contrary, there is good reason to believe otherwise. For instance, see I.C. § 18-1802 and § 18-1803 where the distinction was observed beginning almost a century ago.

*921 In resolving this problem, we should also take note that this same Court in Molstead quoted approvingly from Johnson v. Prudential Life Ins. Co., 120 Or. 353 , 252 P. 556 (1927), for the very proposition which I mention, that “ ‘an appeal is a separate procedure from the trial . . . Molstead, 83 Idaho at 466 , 364 P.2d at 887 .

In those rare instances where an appeal has been taken solely for delay, perhaps there should be some remedy. Until just recently, when this Court prevailed upon the legislature to again repeal a number of statutes, I.C. § 13-220 specifically allowed for the assessment of damages to be added to the costs. This statute was in effect, and had been for over 90 years when the legislature enacted §§ 12-120 and 121. It is proper to assume that the legislature was aware of I.C. § 13-220 when it deliberately did not include in §§ 12-120 and 121 any provision for awarding attorney fees to the successful party on an appeal which might be taken. While the argument is advanced that the legislature could have specifically provided that attorney fees on appeals were not within the scope of I.C. § 12-121, it is more aptly said that the legislature could have resolved all doubt by saying that attorney fees on appeal were recoverable. To go the one way is to indulge in unwarranted surmise and conjecture; to go the other is to accept an unambiguous statute as written. It must be kept firmly in mind that the shifting of attorney fees so that the prevailing party is compensated for his fees at the expense of his losing adversary is a matter of substantive law. The making of substantive law is for the legislature, not for the Supreme Court. If attorney fees on appeals are to be awarded, the legislature has had, and continues to have, both the opportunity and the ability to say so, and its capability for doing so in clear and unequivocal language should not be doubted.

While touching upon the question of substantive law, this is an appropriate time to state my belief that the Court improvidently adopted Rule 54(e), promulgated on January 2, 1979, by which this Court severely limited the scope and effect of I.C. § 12-121. In a proper case, not by “procedural” rule of court, this Court could be called upon to determine the construction to be placed upon I.C. § 12-121, and very well might hold, as many many cases have, that “may” is a discretionary word, thereby invoking the discretionary powers of a trial judge. This Court might hold with the view that use of the word “may” granted the district courts the very broad power to award attorney’s fees when the award and amount of attorney’s fees seemed proper to the court. Or, the Court might conclude that it should declare and set out guidelines and bounds for the exercise of that discretion. Such is not the proposition which needs to be now addressed.

I doubt both the wisdom and the lawfulness of a Court rule which essentially amends a substantive statute. In State v. McCoy, 94 Idaho 236 , 486 P.2d 247 (1971), Justice McFadden, though dissenting in that case, expressed concern over a majority opinion which held a statute “unconstitutional as being a legislative encroachment on the inherent powers of the judiciary.” Id. at 241 , 486 P.2d at 252 . The concern of Justice McFadden in that case was separation of powers. In his words: “[T]his court must exercise special caution in this area.” Id. (emphasis supplied).

I recognize, of course, our concern in the matter under discussion is not the constitutionality of I.C. § 12-121, but rather the scope and effect of this statute. It cannot be gainsaid that the awarding of attorney’s fees is a matter of substantive law. In all of the discussion that has been had on the subject, no one has gone so far as to advocate for the view that the Court could have by rule accomplished that which the legislature did by statute. Yet, the rule clearly amends the statute, an important point which apparently escapes the observation of the other members of the Court. This is not too unexpected where the matter comes before the Court administratively rather than in a contested case, wherein we receive the benefit of the argument and authority of able counsel.

*922 It was the prerogative of the legislature, and the legislature alone, to create law whereby attorney’s fees may be awarded by district courts in all civil actions; where that sparsely worded statute has created confusion and proliferation of litigation, the legislature, not the Court, should amend its own statute, giving it such further definition and delimitation as it concludes to be necessary and desirable. Up until now it has not done so. It is not for the Court, however, but for the legislature to express the will of the people. Where, as Justice McFadden wrote in McCoy , the separation of power doctrine is a matter of great importance and delicacy, the Court should, in my opinion, act in an exercise of “special caution” before expanding I.C. § 12-121 to read that it encompasses appeals to this Court, and before amending the statute, purportedly under the guise of its rule-making power. I fear that a “special caution” has not been exercised.

Basically, the Court needs to keep in mind that while it is composed of experts in constitutional law, the legislature is not. The legislature does have its experts in many and varied fields, but it is not to be expected that educators, bankers, insurance brokers, ranchers, and those in other non-legal fields are properly cognizant of the doctrine of separation of powers, including the right in the legislature, and it alone, to create, modify or repeal substantive law. The Court bears the ultimate responsibility of safeguarding the integrity of our Constitution.

. I.C. 13-201 commences with this language: “An appeal may be taken to the Supreme Court from a district court.” (Emphasis added.)

. Rule 11 commences with this language: “An appeal as a matter of right may be taken to the Supreme Court . (Emphasis added.)