concurring and dissenting.
I concur in the majority opinion in all respects other than the award of attorney fees on the appeal. When this Court legislated into effect the award of attorney fees on appeals, Minich v. Gem State Developers, 99 Idaho 911, 591 P.2d 1078 (1979), I cast my vote with Justice Donaldson in opposition to such unwarranted usurpation of legislative authority. Today the Court “deems this to be an appropriate case to award attorneys fees” on the appeal. If the Court had constitutional authority to make such an award, then I, too, would find this case appropriate. But, fortunately, the only “authority” which the Court has is that which it conferred on itself ten years ago in the Minich case.
The Minich case on the issue of attorney fees was a three to two decision which once again established that three votes on this Court can do anything — whether right or wrong. Unlike questions of law for which there is ordinarily precedent, the issue in Minich was whether or not this Court would experiment by taking unto itself the power for awarding attorneys fees which the legislature had extended to the trial courts, of which this Court is not one. See discussions by Donaldson, J. and Bistline, J. in Minich, 99 Idaho 911, 591 P.2d 1078.
The Court membership presently includes only one of the three 1979 members who cast votes for awarding attorney fees on appeals. It is an appropriate time to reconsider. What we know now is that where attorney fees are awarded by a trial court, that same trial court also is the forum where a contest over the reasonableness of the fees will be decided; in essence there can be a separate trial on the issue whereat the parties can submit the testimony of expert witnesses either by affidavit or live in the courtroom.
An appellate court simply is not adaptable to converting itself into a trial court, nor should it be inclined to do so. Recently, when this Court held a losing party liable for attorney fees, the prevailing party submitted a billing in excess of $35,000 for defending a frivolous appeal. While a trial judge could bring the parties before the court and conduct a regular trial on the billable hours claimed, and the charges for those billable hours, this Court has no such machinery in place. Yet, it came up with an answer. The amount involved, $35,000, was undoubtedly greater than most actions instituted in the district courts. This Court sans any testimony by experts or by the attorneys involved, issued a ruling. How valid was it?
The Court was acting beyond its powers in 1979 in its Minich decision. Time and experience have proven the fallacy in the experiment. This Court is not able to competently and correctly deal with contested amounts where it has declared one party entitled to attorney fees to be paid by the other party.
As a result, when this Court passes judgment on the amount to be awarded, at least this one member of the Court presently believes that the Court is apt to be wrong as it is apt to be right. But, back of it all, ten years of reflection and experience have been convincing that the two justices who voted against the Court’s usurpation of legislative power made no mistake. The recent case which I mention, although not by name, is a good example of the morass into which the Court has fallen.
At one time, going on sheer recollection, the Court in remanding called upon the trial courts to conduct hearings on amount and reasonable expenditure of hours. That procedure would be an improvement. But, looking at the overall picture, it was a big mistake for the Court through a bare majority to place itself in the awkward position of assessing a parties’ appeal as frivolously taken or frivolously defended, and thereafter passing on the validity of the fee bill which is submitted.