IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35138
RALPH J. HENDERSON, an individual, )
)
Appellant, ) Pocatello, September 2009 Term
v. )
) 2010 Opinion No. 18
HENDERSON INVESTMENT )
PROPERTIES, L.L.C., an Idaho Limited ) Filed: February 19, 2010
Liability Company, ROGER E. )
HENDERSON, an individual and LISA A. ) Stephen W. Kenyon, Clerk
HENDERSON, an individual, )
)
Respondents, )
)
Appeal from the Sixth Judicial District of the State of Idaho, Bannock County.
Hon. Ronald E. Bush, District Judge.
The decision of the district court is vacated. No attorney fees are awarded on
appeal.
Norman G. Reece, P.C., Chubbuck, for appellants. Norman Reece argued.
Cooper & Larsen, Chtd., Pocatello, for respondent. Ron Kerl argued.
___________________________________
W. JONES, Justice
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, Ralph Henderson (Ralph), his deceased wife, Lena Henderson (Lena), along
with Respondents, their son, Roger Henderson (Roger), and daughter-in-law, Lisa Henderson
(Lisa), created a business known as Henderson Investment Properties, L.L.C. (HIP). The sole
purpose of HIP was to operate a Jimmie John‟s Gourmet Sandwich Shop in Pocatello, Idaho.
When forming HIP, all four parties signed an Operating Agreement, which stipulated that Roger
and Lisa were to manage HIP. Lena died on August 28, 2001, and in January of 2002, an
amendment was made to the Operating Agreement, whereby Ralph obtained Lena‟s membership
interest in HIP.
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On July 27, 2005, Ralph filed a Complaint for Judicial Dissolution pursuant to I.C. § 53-
643(1)(a). In his complaint, Ralph asserted that the two requisite elements to obtain judicial
dissolution had been satisfied; the members were deadlocked in their management of HIP, and as
a result of the deadlock, irreparable injury was or would be suffered by HIP. Ralph also sought
judicial dissolution pursuant to I.C. § 53-643(1)(b). Ralph again claimed that the two necessary
elements had been satisfied because Roger and Lisa had committed illegal, oppressive, or
fraudulent acts, and consequently, irreparable injury had occurred or would occur to HIP.
On April 10, 2007, Ralph filed a complaint wherein he sought a declaratory judgment
under I.C. § 53-641(1)(e). Ralph asserted that since more than 120 days had elapsed from the
filing of the Complaint for Judicial Dissolution, pursuant to § 53-641(1)(e), Roger and Lisa were
dissociated from HIP. Subsequently, on May 21, 2007, the district court consolidated the above
actions. The trial began on July 6, 2007, and finished on July 8, 2007.
Shortly thereafter, on August 2, 2007, the district court issued its Memorandum Decision,
Findings of Fact and Conclusions of Law. In its decision, the district court denied Ralph‟s
request for judicial dissolution. The court held that under I.C. § 53-643(1)(a), there had been a
deadlock in the management of HIP, but that HIP had not suffered irreparable injury, nor was it
likely to occur. In addition, the district court held that under I.C. § 53-643(1)(b), there had been
no illegal, oppressive, or fraudulent acts on the part of Roger and Lisa. As a result of its ruling,
on November 7, 2007, the district court dismissed Ralph‟s claim for declaratory relief.
On February 12, 2008, the district court released its Memorandum Decision and Order on
Motion for Fees and Costs. The Court ruled that Roger and Lisa were not entitled to attorney
fees under I.C. §§ 12-120 or 12-121; however, the district court granted attorney fees and
expenses under Article XIV(G) of the Operating Agreement. The court awarded attorney fees to
Roger and Lisa for Ralph‟s dissolution action under I.C. §§ 53-643(1)(a) and (b), and Ralph‟s
declaratory judgment action under I.C. § 53-641(1)(e). The Court awarded a total of $21,552.00.
Following the award of fees, on March 21, 2008, Ralph filed an appeal.
ISSUES ON APPEAL
I. Whether the district court abused its discretion when awarding attorney fees under Article
XIV(G) of the Operating Agreement.
II. Whether attorney fees should be granted on appeal under Article XIV(G) of the
Operating Agreement.
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STANDARD OF REVIEW
When reviewing a trial court‟s award of attorney fees, this Court applies an abuse of
discretion standard. U.S. Bank Nat'l Ass'n v. Kuenzli, 134 Idaho 222, 228, 999 P.2d 877, 883
(2000) (citing Brinkman v. Aid Ins. Co., 115 Idaho 346, 350–51, 766 P.2d 1227, 1231–32
(1988)). “To determine whether there is an abuse of discretion this Court considers whether (1)
the court correctly perceived the issue as one of discretion; (2) the court acted within the
boundaries of such discretion and consistently with legal standards applicable to specific choices;
and (3) the court reached its decision by an exercise of reason.” Lee v. Nickerson, 146 Idaho 5,
9, 189 P.3d 467, 471 (2008).
ANALYSIS
I. The district court abused its discretion in awarding attorney fees under Article
XIV(G) of the Operating Agreement.
The district court concluded that Roger and Lisa were not entitled to an award of attorney
fees pursuant to either I.C. § 12-120(3) or I.C. § 12-121. Rather, relying on Idaho R. Civ. P.
54(e)(1), the district court concluded that Roger and Lisa, as prevailing parties, were entitled to
attorney fees under the terms of the Operating Agreement. This Court finds the award to be in
error.
A. The district court abused its discretion in awarding attorney fees for Ralph’s
judicial dissolution claim under I.C. §§ 53-643(1)(a) and (b).
The district court first awarded attorney fees to Roger and Lisa for their successful
defense of Ralph‟s dissolution action under I.C. §§ 53-643(1)(a) and (b). In awarding attorney
fees under Article XIV(G), the district court provided two justifications: first, Ralph “sought to
enforce a variety of Operating Agreement provisions;” and second, “But for the contract in the
form of the Operating Agreement, there would have been no reason nor opportunity for Ralph to
bring a lawsuit against the [sic] Roger and Lisa . . . .”
Ralph claims that Article XIV(G) of the Operating Agreement has not been satisfied
because had the district court granted the requested relief, the Operating Agreement would
govern a company that is no longer in existence. In addition, Ralph claims that evidence of
Operating Agreement violations was offered to establish “irreparable injury,” a required showing
to obtain judicial dissolution under I.C. §§ 53-643(1)(a) and (b). The Operating Agreement
stipulates that “irreparable injury” occurs when a provision of the Agreement is violated. Ralph
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argues, thus, the Agreement violations were presented simply to establish an element of a
statutory judicial dissolution action.
Roger and Lisa reiterate the district court‟s arguments and assert that the award of
attorney fees was proper because Ralph‟s allegation of Operating Agreement violations
amounted to an attempt to enforce provisions of the Agreement. Ralph and Lisa also repeat the
district court‟s reasoning, that even if there is a distinction between a contract right and a
statutory right, the statutory right would not exist but for the contract between the parties.
This Court finds that the district court abused its discretion in awarding attorney fees.
The court properly recognized the discretionary nature of its decision. The district court also
exercised reason; the court reasoned that Ralph alleged Operating Agreement violations as a
basis for judicial dissolution, and that the allegations amounted to an attempt to enforce the
Operating Agreement. The district court also reasoned that Article XIV(G) was implemented by
the fact that “but for” the Operating Agreement there would not have been a lawsuit. The district
court, however, did not satisfy the second prong of the test; the district court did not act
consistently with Article XIV(G) of the Operating Agreement, the legal standard at issue. See
Lee, 146 Idaho at 9, 189 P.3d at 471.
This appeal therefore demands interpretation of the Operating Agreement. Where the
language of the contract makes the intentions of the parties clear, the interpretation and legal
effect of the contract is simply a question of law. Panike & Sons Farms, Inc. v. Smith, 147 Idaho
562, 566, 212 P.3d 992, 996 (2009) (citing Lickley v. Max Herbold, Inc., 133 Idaho 209, 211,
984 P.2d 697, 699 (1999)). When interpreting a term of a contract, this Court is obligated to
view the entire agreement as a whole to discern the parties‟ intentions. Id.
Section XIV(G) of the Operating Agreement provides:
Attorneys’ Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision is validly asserted as a
defense,1 the successful party is entitled to recover reasonable attorneys‟ fees in
addition to any other available remedy.
This provision is found in Section XIV, captioned as “General Provisions.” Another provision of
Section XIV reveals the meaning of the phrase “action or proceeding brought to enforce any
provision of this Agreement.” Section XIV(B) of the Operating Agreement reads:
1
The district court did not find that Roger and Lisa “validly asserted” any provision of the Operating
Agreement as a defense. Rather, the district court concluded that this was an “action or proceeding brought to
enforce any provision of [the Operating Agreement].”
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Specific Performance. The parties to this Agreement agree that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with its specific terms or were otherwise breached.
The parties agree that they are entitled to an injunction or injunctions to prevent
breaches of this Agreement and to specifically enforce the terms and provisions in
any United States court or any state having jurisdiction, in addition to any other
remedy to which they are entitled at law or in equity.
(Emphasis added).
This provision of the Operating Agreement reflects the parties‟ intentions that an “action
or proceeding brought to enforce any provision of this Agreement” would be for the purpose of
promoting the continued existence of the business, not ending it. In the proceedings before the
district court, Ralph did not seek to enforce the provisions of the Operating Agreement. Instead,
he sought judicial dissolution which would terminate the Operating Agreement.
This is precisely how the district court interpreted these provisions when denying Ralph‟s
request for judicial dissolution. At trial, Ralph argued that Section XIV(B) required the district
court to find that violations of various provisions of the Operating Agreement satisfied the
“irreparable injury” requirement of I.C. § 53-643. The district court rejected his argument,
noting the incongruity of Ralph‟s reliance on this provision:
[T]he statute contemplates that dissolution will occur because some act has
caused “irreparable injury” or threatens to cause such injury, which therefore
necessarily has the result of threatening the ability of the Company to continue to
operate as a going-concern and, more significantly, threatens the existing value of
the Company for its owner-members. Accordingly, dissolution is appropriate in
such settings to protect the aggrieved members, who need to have some
mechanism to protect against the further wasting or threatened wasting of the
existing value of their ownership in the Company.
By contrast, the use of the term “irreparable damage” in the Agreement is
tied to actions that one or more aggrieved members might seek to enjoin or
compel as a means of preserving, maintaining or even increasing the value of their
ownership interest. Significantly, Article XIV(b) [sic] is titled “Specific
Performance,” not “Grounds for Dissolution.” The “irreparable damage” refers to
what might happen if “any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached.”
(Emphasis supplied.) The clause goes on to say that the parties agree “that they
are entitled to an injunction or injunctions to prevent breaches of this Agreement
and to specifically enforce the terms and provisions . . . .” (Emphasis supplied.)
The emphasis is unmistakably upon ensuring that appropriate actions are taken by
the parties to maintain the Company‟s business, not to end it. It is anomalous,
therefore, to assign the meaning of an alleged violation under Article XIV(b) [sic]
(which is deemed to be “irreparable damage” so as to expedite the availability of
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specific performance or injunctive relief as a means of continuing the business) to
the term “irreparable injury” under I.C. § 53-643, which is a mechanism for
terminating the business.
(Citation omitted.)
The parties‟ contract specifies the standard which must be satisfied before an award of
attorney fees is proper. The Operating Agreement unambiguously requires that the action must
be “brought to enforce any provision of [the] Agreement.” As Ralph‟s lawsuit did not seek to
“enforce any provision of this Agreement,” the standard agreed to by the parties was not
satisfied. Therefore, the district court erred in awarding Roger and Lisa attorney fees for the
dissolution action. Zenner v. Holcomb, 147 Idaho 444, 451, 210 P.3d 552, 559 (2009).
The district court also awarded attorney fees because it found that but for the Operating
Agreement, Ralph would not have had an opportunity to bring a lawsuit. This theory is clearly
incorrect, as it suggests that a prevailing party may be entitled to an award of attorney fees
simply because of the existence of a contractual relationship between the parties. Idaho R. Civ.
P. 54(e)(1) does not provide for an award of attorney fees in all cases involving a contract
between the parties. Rather, the rule states that attorney fees may be awarded “when provided
for by . . . contract.” This Court has made it clear that entitlement to attorney fees is defined by
the terms of the parties‟ contract:
[T]his Court has held that when a “contract provision limits the award of attorney
fees to a „prevailing party,‟ the I.R.C.P. 54(d)(1) definition of „prevailing party‟
[is] applicable. However, if the . . . contract sets forth a different standard, the
determination of the award of attorney fees [is] based upon the . . . contractual
standard, not the prevailing party standard of I.R.C.P. 54(d)(1).”
Zenner, 147 Idaho at 451, 210 P.3d at 559 (quoting Farm Credit Bank of Spokane v. Wissel, 122
Idaho 565, 569 n.4, 836 P.2d 511, 515 n.4 (1992)).
B. The district court abused its discretion in awarding attorney fees for Ralph’s
declaratory judgment claim under I.C. § 53-641(1)(e).
The district court also awarded attorney fees to Roger and Lisa for their successful
defense against Ralph‟s declaratory judgment claim under I.C. § 53-641(1)(e). Subsequent to
filing for judicial dissolution, Ralph filed an action to obtain a declaratory judgment under I.C. §
53-641(1)(e). In the action, Ralph argued that Roger and Lisa were dissociated from HIP
because a proceeding for dissolution had been commenced against Roger and Lisa more than 120
days earlier, and the proceeding had not been dismissed. As a result, Ralph argued that under
I.C. § 53-641(1)(e), Roger and Lisa should have been dissociated from HIP.
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Shortly after dismissing Ralph‟s judicial dissolution action, the district court dismissed
Ralph‟s declaratory judgment action, and the district court subsequently awarded Roger and Lisa
attorney fees for their defense of the claim.
On appeal, Ralph argues that the district court abused its discretion in granting Roger and
Lisa their attorney‟s fees. Ralph argues that an action for dissolution pursuant to I.C. § 53-
641(e), by its nature, is not an action to enforce the Operating Agreement. Ralph argues, under
I.C. § 53-641(e), if a proceeding for dissolution is commenced against a member of a limited
liability company and the proceeding has not been dismissed within 120 days, the member
ceases to be a member.
Roger and Lisa argue that under I.C. § 53-641(e)(1), the Complaint for Judicial
Dissolution was a “condition precedent” for Ralph to dissociate Roger and Lisa from HIP.
Roger and Lisa argue, thus, Ralph‟s attempt to enforce provisions of the Operating Agreement in
the Complaint for Judicial Dissolution was imputed into the Complaint for Declaratory
Judgment. Roger and Lisa also argue that the district court properly recognized the underlying
legal issues in the Complaint for Judicial Dissolution and the Complaint for Declaratory
Judgment to be the same. Consequently, for the same reason attorney fees were granted for their
successful defense of the dissolution action, Roger and Lisa argue that they were properly
awarded fees for their successful defense of the declaratory judgment action.
This Court vacates the district court‟s award of attorney fees for Ralph‟s judicial
declaration claim under I.C. § 53-641(e)(1), as the award amounted to an abuse of discretion.
See Lee, 146 Idaho at 9, 189 P.3d at 471. The district court appreciated the fact that the award of
attorney fees was within its discretion. The district court also exercised reason when it
analogized the declaratory judgment action to the judicial dissolution action. The district court
concluded that the legal issues in the declaratory judgment action were the same as those in the
dissolution action, and consequently, attorney fees were warranted for the same reason. Again,
however, the district court‟s award does not satisfy the second prong of the test because the court
acted inconsistently with Article XIV(G).
The district court granted attorney fees for the declaratory judgment action because it
believed the legal issues in the two actions, the dissolution action and the declaratory judgment
action, to be the same; yet, the claims need to be analyzed separately. Contrary to the district
court‟s belief, the actions do not contain similar legal issues. In awarding attorney fees for the
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judicial dissolution action, the court relied upon the fact that Ralph claimed an array of Operating
Agreement violations. The court reasoned that allegations of Operating Agreement violations
amounted to an attempt to enforce Operating Agreement provisions. However, the legal issues
within the declaratory judgment claim are different, negating the district court‟s reliance upon its
award for the judicial dissolution action. Ralph did not claim an Operating Agreement violation
in an attempt to obtain a declaratory judgment. Instead, Ralph merely sought to enforce his
statutory right under I.C. § 53-641(1)(e). Ralph wrote in his complaint, “More than 120 days
have elapsed from the filing of the „Complaint for Judicial Dissolution.‟ Therefore,” Ralph
argued, “pursuant to I.C. §53-641(1)(e), [Roger and Lisa] are dissociated from HIP.” Nowhere
in the Complaint for Declaratory Judgment does Ralph claim an Operating Agreement violation
as grounds to obtain relief. Accordingly, the district court‟s reliance upon its award of fees for
the judicial dissolution action is unfounded.
II. This Court does not award attorney fees to Roger and Lisa Henderson on appeal.
Roger and Lisa claim they should be awarded attorney fees on appeal. Yet, as Roger and
Lisa were not successful on appeal, attorney fees will not be awarded. Ralph did not ask for
attorney fees on appeal.
CONCLUSION
For the foregoing reasons, this Court vacates the district court‟s award of attorney fees to
Roger and Lisa for Ralph‟s judicial dissolution claim under I.C. §§ 53-643(1)(a) and (b) and
Ralph‟s declaratory judgment claim under I.C. § 53-641(1)(e). In addition, this Court does not
award attorney fees on appeal. Costs to Appellant.
Chief Justice EISMANN and Justice HORTON CONCUR.
J. JONES, J., concurring in part and dissenting in part.
While I concur in Part IB of the Court‟s analysis pertaining to attorney fees for the
declaratory judgment claim and Part II dealing with fees on appeal, I dissent with regard to the
Court‟s holding in Part IA of the analysis relating to attorney fees for the judicial dissolution
claim. My view is that the award of fees to Roger and Lisa was appropriate under the attorney
fee provision (Article XIV(G)) of the Operating Agreement (Agreement).
Article XIV(G) provides for the recovery of reasonable attorney fees by the successful
party in any action or proceeding either (1) brought to enforce any provision of the Agreement or
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(2) where any provision of the Agreement is validly asserted as a defense. Although the district
court placed more emphasis on the former ground, its decision on attorney fees did not ignore the
latter ground. In reciting the position of Roger and Lisa with regard to their fee claim, the court
first noted their request for fees under Idaho Code sections 12-120 and 12-121 and then noted,
“[a]lternatively, they contend that the Operating Agreement expressly provides for recovery of
attorney fees in any action brought to enforce a provision of the agreement or where the
agreement provides a successful defense to an action.” (emphasis added) Thus, the district court
recognized that Roger and Lisa were seeking fees under both grounds provided for in the
attorney fee provision. The court went on to conclude that fees were appropriate because “Ralph
sought to enforce a variety of Operating Agreement provisions, for the purpose of obtaining
dissolution of the business entity, and he was unsuccessful in that pursuit.” The fee award can be
supported under either or both of the Article XIV(G) grounds.
In order to comprehend what the district judge was saying in his order granting attorney
fees, one needs to refer to the memorandum decision wherein the judge made his determination
that Ralph had failed to prevail on his dissolution claim. Ralph‟s dissolution complaint alleged
that Roger and Lisa had violated a number of the provisions of the Agreement; that such acts
were illegal, oppressive or fraudulent; and that the LLC had thereby suffered or would suffer
irreparable injury. The claim alleged was in keeping with Idaho Code section 53-643(1)(b),
which allows a district court to decree dissolution of a limited liability company “when it is
established . . . [t]hat the acts of the managers or members in control of the limited liability
company are illegal, oppressive or fraudulent and that irreparable injury to the limited liability
company is being suffered or is threatened by reason thereof.” However, at trial, rather than
putting on proof to establish the statutory grounds for obtaining dissolution, Ralph utilized a
shortcut under the Agreement. Article XIV(B) of the Agreement provides in pertinent part, “The
parties to this Agreement agree that irreparable damage would occur if any of the provisions of
this Agreement were not performed in accordance with its specific terms or were otherwise
breached.” Ralph hinged his case on this provision, asserting that “irreparable injury,” as used in
the statute, was synonymous with “irreparable damage,” as provided in this provision. He sought
to establish his case by showing that Roger and Lisa had breached various provisions of the
Agreement, which under the language of this provision, would seem to automatically establish
irreparable damage to the limited liability company.
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The district court was initially swayed by this argument and, as a result, at the conclusion
of Ralph‟s trial presentation the court denied Roger and Lisa‟s motion for involuntary dismissal.
According to the court:
At that time, the Court ruled that there was sufficient evidence to establish the
prima facie elements of Ralph‟s claim and to rule in Ralph‟s favor, based on the
evidence presented by the close of [Ralph‟s] case. However, after having heard
the evidence presented in [Roger and Lisa‟s] case and having considered all the
evidence with an opportunity for analysis, review and in full context, the Court
has concluded that Ralph has not met his burden of proving a right to judicial
dissolution by a preponderance of the evidence.
At trial, and in argument both before and during trial, Ralph‟s counsel presented
evidence intended to show that there had been violations of the operating
agreement and that such violations were―under the specific language of Article
XIV(b) of the Agreement―actions causing or threatening irreparable injury to the
Company.
The court went on to find that Roger and Lisa had indeed committed violations of the
Agreement, but determined that such violations did not cause or threaten to cause irreparable
damage to the LLC. Rather, the court found that some of the violations of the Agreement had
results that were more beneficial than detrimental to the company. The court again focused on
the language of Article XIV(B), which Ralph had relied upon in his attempt to obtain dissolution,
and concluded that the contractual term “irreparable damage” did not have the same meaning as
the statutory term “irreparable injury.” The court stated:
As a matter of law, the Court concludes that the terms “irreparable damage” under
Article XIV(b) and “irreparable injury” under I.C. § 53-643 are not synonymous.
Accordingly, any actions alleged by Ralph to evidence alleged deadlock or illegal,
oppressive or fraudulent actions must be supported by proof independent of the
language of Article XIV(b) as to whether or not they have caused or threaten to
cause irreparable injury. For the reasons set out in this Decision the Court rules
that actions have not caused and do not threaten irreparable injury. (emphasis in
original).
In sum, Ralph sought to obtain dissolution, not by attempting to show that Roger and
Lisa had caused or threatened to cause irreparable injury to the limited liability company by
reason of engaging in illegal, oppressive or fraudulent actions but, rather, by invoking a specific
provision of the Operating Agreement in an attempt to show that they had caused irreparable
damage to the company simply by failing to observe several provisions of the Agreement. Thus,
Ralph invoked and asserted Article XIV(B) in hopes of establishing his dissolution claim by
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employing a reduced evidentiary showing. He was unsuccessful in doing so. He has not appealed
the district court‟s ruling on this critical issue and, therefore, this Court has no basis to review it.
Under Article XIV(G), Ralph is liable for attorney fees to the successful party in the
litigation―Roger and Lisa―because he invoked “any provision” of the Agreement in his
attempt to secure dissolution. Although he did not directly seek to enforce the provision in
question, he relied upon it, rather than the statutory standard of proof, in an attempt to obtain
dissolution. That is, he sought to obtain statutory dissolution by enforcing his interpretation of a
provision (Article XIV(B)) of the Agreement, rather than by relying upon the statutory language.
Article XIV(B) is “any provision” of the Agreement within the meaning of Article XIV(G).
Looking at the other side of the same coin, Roger and Lisa were successful in their
defensive effort to establish to the district court‟s satisfaction that they had not damaged the
company within the meaning of Article XIV(B). The court validated their interpretation of this
provision in light of the evidence they presented and, therefore, they validly and successfully
asserted their reading of Article XIV(B). Again, Ralph has not challenged the district court‟s
findings of fact, conclusions of law or decision on the merits of the dissolution claim and thus we
will not disturb them on appeal. It is true that the district court did not mention the words
“validly asserted” in its order regarding attorney fees, but all concerned were aware that this was
the ground upon which Roger and Lisa successfully defended against the dissolution claim. 2 The
district court‟s award of fees to Roger and Lisa on the dissolution claim is amply supported by
the record, either under the first ground of the fee provision or under the second.
I would hold that the district judge did not abuse his discretion in awarding fees to Roger
and Lisa for their successful defense of Ralph‟s judicial dissolution claim and affirm the fee
award made with regard to that claim.
Justice BURDICK CONCURS.
2
Even if the district court was required to specifically state that the fee award was based upon the valid assertion
ground, the Court can apply the “right result, wrong reason,” analysis we have often employed in such
circumstances. See Boise Tower Assoc., LLC. v. Hogland, 147 Idaho 774, 782, 215 P.3d 494, 502 (2009) (“Where
the lower court reaches the correct result by an erroneous theory, this Court will affirm the order on the correct
theory.”).
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