IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34765
MIRIAM G. CARROLL, )
)
Plaintiff-Appellant, )
)
v. )
)
MBNA AMERICA BANK, )
Boise, November 2009 Term
)
Defendant-Respondent. )
2009 Opinion No. 140
----------------------------------------------------------- )
MBNA AMERICA BANK, )
Filed: November 25, 2009
)
Plaintiff-Respondent, )
Stephen W. Kenyon, Clerk
)
v. )
)
DAVID F. CAPPS, )
)
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the Second Judicial District of the State of
Idaho, Idaho County. Hon. John H. Bradbury, District Judge.
The judgment of the district court is affirmed.
Miriam G. Carroll and David F. Capps, Kamiah, appellants pro se.
Wilson & McColl, Boise, for respondents. Alec T. Pechota argued.
___________________
J. JONES, Justice.
This is an appeal from the district court’s confirmation of, and entry of judgment upon,
arbitration awards against Miriam Carroll and David Capps in favor of MBNA America Bank.
We affirm.
1
I.
Factual and Procedural Summary
In December 2004, Capps and Carroll each mailed a letter1 to MBNA, alleging that there
was an error in their most recently received billing statements. Capps disputed a debt of over
$21,000 and Carroll disputed a debt of over $24,000. MBNA did not respond to the letters or to
subsequent letters wherein Capps and Carroll claimed MBNA had improperly made adverse
credit report filings against them and demanded that it follow federal procedures for resolving
billing and reporting disputes. Instead, MBNA filed separate arbitration proceedings against
Capps and Carroll with the National Arbitration Forum (NAF).
In April 2005, the NAF received a letter from Carroll, urging that the arbitration be
dismissed because her agreement with MBNA did not contain an arbitration provision and she
did not receive notice of an amendment to the agreement, meaning that the NAF lacked
jurisdiction to arbitrate. Capps sent a similar letter to the NAF in July 2005. On August 3, 2005,
the NAF issued a decision, acknowledging that it may lack jurisdiction and requesting evidence
1
Each letter stated:
I am writing regarding the above account. I believe that my most recent
statement . . . is inaccurate.
I am disputing the above amount because I believe that you failed to
credit my account for prepayments you agreed to credit . . . . It was my
understanding that when I entered into the agreement with you that you would
accept my signed note(s) or other similar instrument(s) as money, credit or
payment for previous account transactions, and then reflect those credits in the
[December] statement . . . . They do not appear in the statement and I am
wondering why. The amount of the credits on the prepayments of money or
credit accepted by you should be the approximate amount that I list above
[referring to the total balance due on the last statement received by the debtor]. I
am making this billing inquiry because I am uncertain of all the dates of the
prepaid credits and also because there may be additional credits that I am
entitled to. Please provide me with a written explanation why these credits are
not showing. . . .
I am requesting that you provide me with an acknowledgment of this
billing error and complete a full investigation by sending me a written
explanation report related to the subject matter of this billing error. . . .
I am also requesting additional documentary evidence of indebtedness
of the account charges, which includes copies of the account charges and entries
that made you arrive at the recent balance shown on my statement. . . .
I am exercising my right to withhold the disputed amount until you
comply. . . .
2
on the issue of jurisdiction. Subsequently, the arbitrator found that the NAF did have jurisdiction
and issued an award against Carroll for $30,241.41. A different arbitrator made the same finding
against Capps and issued an award against him for $28,156.49.
On September 30, 2005, Carroll filed a complaint against MBNA in the Idaho County
District Court, alleging violations of the Truth in Lending Act, breach of contract and violation
of rights, and seeking injunctive relief to invalidate the arbitration award against her. MBNA
filed a collection suit against Capps, who answered, alleging the same claims and seeking the
same relief as Carroll. MBNA moved for summary judgment on all claims asserted by Capps and
Carroll and the cases were consolidated for hearing. The district court denied MBNA’s motions
for summary judgment, finding that MBNA’s answers to requests for admissions concerning the
billing dispute letters sent by Capps and Carroll were inconsistent and that it had failed to
produce agreements that provided for arbitration between the parties. The court held that these
issues created questions of fact precluding summary judgment.
The district court subsequently heard Capps’ and Carroll’s motions for injunctive relief,
following an evidentiary hearing on the applicability of the arbitration clauses. On September 14,
2006, the district court issued an opinion on Capps’ and Carroll’s claims for injunctive relief,
treating them as motions to vacate the arbitration awards. The court found that Delaware law
applied to the agreements, the agreements allowed unilateral modification with implied
acceptance, and the agreements had been properly modified to include arbitration clauses. On
that basis, the district court confirmed the arbitration awards of $28,156.49 against Capps and
$30,241.41 against Carroll.
Capps and Carroll moved for reconsideration, arguing for the first time that MBNA’s
claim was fraudulent, the arbitrators did not have jurisdiction to issue the awards, the NAF was
biased in favor of MBNA, the arbitrations were unconscionable because of bias on the part of
arbitrators, the arbitration agreements were illusory and deceptive, the application of Delaware
law was precluded by the Idaho Credit Code (ICC), and the district court should reopen
discovery on the issue of MBNA’s standing to collect the debts. The district court denied the
motions for reconsideration, finding that Capps and Carroll failed to present any new factual or
legal arguments that would warrant overturning the arbitration awards, and that their request to
reopen discovery was not timely. Capps and Carroll timely appealed to this Court.
3
II.
Issues on Appeal
The following issues are presented on appeal: (1) whether the agreements between the
parties are controlled by Delaware law; (2) whether the district court’s finding of valid
agreements to arbitrate is supported by substantial, competent evidence; and (3) whether MBNA
is entitled to attorney fees on appeal.
A.
Standard of Review
Choice-of-law analysis and the determination of the law governing a case are questions
of law over which this Court exercises free review. Grover v. Isom, 137 Idaho 770, 772, 53 P.3d
821, 823 (2002). Review of a district court’s decision to vacate or modify an arbitration award
uses the same standard as that used by the district court. Moore v. Omnicare, Inc., 141 Idaho
809, 814, 118 P.3d 141, 146 (2005). Review of an arbitration award is limited to determining
whether any of the grounds for relief stated in Idaho Code section 7-912 exist.2 Id. Under the
Uniform Arbitration Act (UAA), as adopted in Idaho, a district court may only vacate an
arbitrator’s award where:
(1) The award was procured by corruption, fraud or other undue
means;
(2) There was evident partiality by an arbitrator appointed as a
neutral, or corruption in any of the arbitrators, or misconduct
prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient
cause being shown therefor or refused to hear evidence material to
the controversy or otherwise so conducted the hearing, contrary to
2
We should note, as we did in Barbee v. WMA Securities, Inc., that the statute applicable to this matter is most
likely the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., because the contracts in question involve interstate
commerce. 143 Idaho 391, 396 n.4, 146 P.3d 657, 662 n.4 (2006). However, given the similarity of the review under
the FAA and the UAA, Idaho law can still be applied, particularly because the parties have only made passing
mention of the applicability of the FAA. Id. (noting that where an issue is not raised by the parties, it need not be
addressed on appeal). Further, the only difference in the standard of review between the FAA and UAA is that an
FAA award can be overturned on the basis of the arbitrator’s “manifest disregard of the law,” “which requires [that]
(1) the arbitrators’ knew of the governing legal principle and refused to apply it or ignored it altogether, and (2) the
governing law was well defined, explicit, and clearly applicable.” Id. (quoting 9 U.S.C. § 10 (2006)).
4
the provisions of section 7-905, Idaho Code, as to prejudice
substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not
adversely determined in proceedings under section 7-902, Idaho
Code, and the party did not participate in the arbitration hearing
without raising the objection.
I.C. §§ 7-912(a)(1)–(5). If the district court makes additional findings of fact in confirming or
denying the award, they must be supported by substantial and competent evidence. Moore, 141
Idaho at 815, 118 P.3d at 147. The district court’s findings of fact will not be set aside on appeal
unless they are clearly erroneous. MBNA America Bank, N.A. v. Fouché, 146 Idaho 1, 3, 189
P.3d 463, 465 (2008).
B.
Conflict of Laws
In this case, the agreements between MBNA and Capps and Carroll contain choice-of-
law clauses that purport to apply Delaware Law. MBNA is also a national bank, governed by the
National Banking Act (NBA), meaning several aspects of its operations are subject to federal
law.
The NBA invests nationally chartered banks with powers enumerated in the NBA, as well
as all incidental powers necessary to carry out the business of banking. Watters v. Wachovia
Bank, N.A., 550 U.S. 1, 11 (2007). This federal control shields national banks from duplicative
state acts and regulations. Id. However, federally chartered banks are subject to state laws of
general application in their day-to-day activities, so long as those laws are not inconsistent with
the NBA or regulations promulgated under the NBA by the Office of the Comptroller of the
Currency. Id. Accordingly, in this case, MBNA’s activities may be governed by state law where
the NBA does not speak on an issue, raising the question of which state’s law should apply.
MBNA argues that Watters automatically mandates the application of Delaware law because
MBNA is located in Delaware. However, the analysis is not quite that simple.
In determining the law applicable to a contract, this Court applies the Restatement
(Second) of Conflict of Laws. See Ward v. Puregro, 128 Idaho 366, 368–69, 913 P.2d 582, 584–
85 (1996); Cerami-Kote, Inc. v. Energywave Corp., 116 Idaho 56, 58 n.1, 773 P.2d 1143, 1145
n.1 (1989). The Restatement provides that “[t]he law of the state chosen by the parties to govern
their contractual rights and duties will be applied if the particular issue is one which the parties
5
could have resolved by an explicit provision in their agreement directed to that issue.”
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(1) (1971). Even if an issue could not be
resolved by an explicit provision in the contract, the chosen law will apply unless:
(a) the chosen state has no substantial relationship to the parties or
the transaction and there is no other reasonable basis for the
parties' choice, or
(b) application of the law of the chosen state would be contrary to
a fundamental policy of a state which has a materially greater
interest than the chosen state in the determination of the particular
issue and which, under the rule of § 188, would be the state of the
applicable law in the absence of an effective choice of law by the
parties.
Id. §187(2).
In Cerami-Kote, this Court applied Florida law after it determined that a substantial
relationship existed with the chosen state. 116 Idaho at 58, 773 P.2d at 1145. That relationship
was found because the defendants were incorporated in Florida and because the performance of
the contract in question would take place, at least in part, in Florida. Id. In Ward, this Court did
not analyze the relationship between the parties and the chosen law; it simply applied California
law because one of the parties was a California corporation and the parties had chosen California
law to govern their contract. 128 Idaho at 368–69, 913 P.2d at 584–85. The contracts between
the parties in this case purport to apply Delaware law. Delaware law has a substantial
relationship to the parties and is a reasonable basis for the parties’ choice of governing law.
Delaware is the place of incorporation and principal place of business of MBNA, and it is also,
arguably, the place where the agreements between the parties were executed and performed by
MBNA.3 Thus, there is a relationship between the chosen state law and the parties that supports
application of the choice-of-law clauses in the agreements.
The next step in the Cerami-Kote analysis is to determine whether the chosen state’s law
recognizes the choice-of-law clause. 116 Idaho at 58–59, 773 P.2d at 1145–46. “Delaware courts
will generally honor a contractually-designated choice of law provision so long as the
jurisdiction selected bears some material relationship to the transaction.” J.S. Alberici Constr.
Co. v. Mid-West Conveyor Co., 750 A.2d 518, 520 (Del. 2000). Because there is a demonstrated
3
See RESTATEMENT (SECOND) OF CONFLICTS OF LAW § 195, cmt. d. (1971) (noting that money lent by a bank is
considered repayable at the bank itself).
6
relationship between the transaction and Delaware, Delaware law should apply as long as there is
no contrary Idaho public policy.
The Restatement indicates that the key consideration in making a public policy
determination is whether some policy of the forum state is contravened by applying the rules of
the selected state. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 cmt. e. (1971). In this
case, Idaho’s public policy is expressed in the ICC. The ICC provides that one of its key
purposes is “[t]o protect debtors against unfair practices by some suppliers of credit.” I.C. § 28-
41-102(2)(c). With regard to regulated credit transactions, such as those involved here, the ICC
invalidates an agreement by a debtor that purports to apply the law of another state, unless the
debtor was not a resident of this state at the time of the credit transaction. I.C. §§ 28-41-201(1),
(7), & (8).
According to the testimony elicited from MBNA’s witness, Michael Milnes, during the
evidentiary hearing, Capps and Carroll were both residents of this state at the time their accounts
were modified. Thus, the ICC would apply to MBNA’s modification of their account terms
because the proposed modification was sent to parties in this state by mail, triggering the
application of the ICC according to section 28-41-201(1)(a). Because the ICC applies to the
transactions in question, the choice-of-law clauses provided by MBNA are inapplicable because
they are contrary to express statutory law and public policy in Idaho. This is because they apply
the law of another state to a covered credit transaction; thus, in absence of an effective choice of
law by the parties, analysis of the conflicts between Idaho and Delaware law must be analyzed
under section 188 of the Restatement.
Under section 188 of the Restatement, when the laws of two states might potentially
apply, the law of the state with the most significant relationship to the contract should apply.
Seubert Excavators, Inc. v. Anderson Logging Co., 126 Idaho 648, 651, 889 P.2d 82, 85 (1995)
(citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188 (1971)). The most significant
relationship is determined under the factors set forth in section 6 of the Restatement4 according
4
Those factors are:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of
7
to the following contacts: “(a) the place of contracting, (b) the place of negotiation of the
contract, (c) the place of performance, (d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation, and place of business of the
parties.” Id. (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188 (1971)).
Additionally, “because parties to a contract are likely to give advance thought to the legal
consequences of their actions, the policies of protecting justified expectations and increasing
predictability and uniformity of result take on greater importance in contract cases.” Id. at 652,
889 P.2d at 86. Furthermore, the Restatement specifically provides for contracts involving the
repayment of money, noting that the validity of those contracts and rights under them are usually
determined by the local law of the state where repayment is to be made unless some other state
has a more significant relationship. RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 188(3),
195 (1971). The Restatement also indicates that where the lender is a bank, the place of
repayment and the place with the most significant relationship to the contract will be the state
where the bank is located. Id. § 195, cmt. d.
In this case, we find that Delaware law has the most significant relationship to the
agreements. Despite the fact that Capps and Carroll are domiciled in Idaho, and MBNA has
advertised and solicited business within the state of Idaho, the contacts with Idaho end there.
Under the Restatement theory, repayment was to be made where MBNA was located, in
Delaware. MBNA is also incorporated and has its principal place of business in Delaware.
Finally, the formulation of the terms and conditions of the agreements took place in Delaware
under the assumption that they would be governed by Delaware law.
The application of the section 6 policies also favors the application of Delaware law. As
noted above, the policies of the forum are opposed to application of the laws of another state to a
credit transaction in this state, meaning that Idaho law should apply under that consideration;
those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 (1971).
8
however, all other considerations support the application of Delaware law. The needs of
interstate and international systems would implicate application of Delaware law because the
parties originally attempted to form the agreements under Delaware law, as indicated by the
inclusion of the choice-of-law clauses. As for the policies of Delaware, as shown by Delaware
case law, Delaware would apply the law that was in the contemplation of the parties when the
agreements were formed, meaning that Delaware law should apply. See, e.g., J.S. Alberici
Constr. Co., 750 A.2d at 520 (noting that Delaware will give effect to the parties’ choice of law).
The protection of expectations, the policies in the legal field, certainty, and ease of application
also favor application of Delaware law. Application of Delaware law would fulfill these policies
because the parties formed the agreements with the expectation that Delaware law would apply.
Further, the policies of the field of law favor giving effect to party intent, and application of the
chosen law advances certainty and ease of application because a contacts analysis, such as this
one, would not need to be undertaken if the policy of the forum had allowed application of the
choice-of-law clauses. Finally, given the factors above, the presumption that the place of
payment has the most significant relationship under section 195 applies in this case.
Accordingly, Delaware has the most significant relationship to the parties’ agreements and
Delaware law should apply.
Finally, despite the application of Delaware law to substantive issues, Idaho law applies
to all procedural matters in this action. Even where a court is applying the laws of another state,
the procedural law of the forum court will still apply. See Houston v. Whittier, 147 Idaho 900,
911–12, 216 P.3d 1272, 1283–84 (2009) (quoting 16 AM. JUR. 2D Conflict of Laws § 6 (1998));
RESTATEMENT (SECOND) CONFLICT OF LAWS § 122 (1971). The Restatement notes that
procedural matters to which forum law will be applied include forms of action, pleading and
conduct of proceedings before the court, allocation of burdens of proof, and admissibility and
sufficiency of evidence. See RESTATEMENT (SECOND) CONFLICT OF LAWS §§ 124, 127, 133–35,
& 138 (1971). Thus, Idaho law applies to all procedural matters.
C.
Arbitration Agreement
Capps and Carroll argue that the arbitrators’ awards should be vacated because there
were no agreements to arbitrate, robbing the arbitrators of jurisdiction and providing grounds to
vacate the awards under Idaho Code section 7-912(a)(5). MBNA argues that the original
9
agreements contained provisions that allowed for unilateral amendment of the agreements, and
that the unilateral amendment procedures were followed, adding an arbitration clause to both
Capps’ and Carroll’s agreements. MBNA also argues that it is entitled to relief under the
applicable Delaware law, even without introduction of the original agreements, because it has the
right to unilaterally amend the agreements under Delaware Code, title 5, section 952. Capps and
Carroll contend that there is no evidence to support MBNA’s unilateral right to amend their
agreements and that a unilateral amendment is contrary to Idaho and Delaware law and public
policy.
Although Capps and Carroll styled their claims for relief as injunctive in nature, they
were motions to vacate arbitration awards pursuant to Idaho Code section 7-912. An action under
section 7-912 is to be presented and decided as a motion. I.C. § 7-916. Here, despite the fact that
the motion was improperly presented as a complaint for injunctive relief, in any civil case, a
mislabeled claim may be treated according to its substance. See Freeman v. State, Dept. of Corr.,
115 Idaho 78, 79, 764 P.2d 445, 446 (Ct. App. 1988). Accordingly, we will review the action as
a motion to vacate an arbitration award. This Court, upon review of a motion to vacate an
arbitration award, is limited to a determination of whether the grounds for vacation provided by
statute exist and whether any findings of fact entered by the trial court in reviewing the award are
supported by substantial and competent evidence. Moore, 141 Idaho at 814, 118 P.3d at 146. The
review of arbitration awards is governed by Idaho law because, as noted above, forms of action,
burdens of proof, and competency and sufficiency of evidence are matters that are governed by
the law of the forum. See RESTATEMENT (SECOND) CONFLICT OF LAWS §§ 122, 124, 127, 133–
35, & 138 (1971).
We first consider whether the district court correctly found the parties had agreed to
arbitrate disputes. MBNA contends that both agreements were properly amended to include
arbitration provisions. The evidence in the record indicates that Capps opened his account in
February 1999, and that MBNA sent him a document in December 1999 purporting to amend the
agreement to include the arbitration provision. Carroll’s credit card account was opened in
March 1980 with another bank and converted to an MBNA account in July 2000. The evidence
shows that MBNA mailed an amendment to Carroll at that time purportedly incorporating the
arbitration provision. The question therefore is whether such unilateral amendments are
permissible under Delaware law.
10
Title 5, section 952 of the Delaware Code contemplates unilateral amendment of credit
agreements between parties; however, it also provides that unilateral amendments cannot be
made if the agreements specifically prohibit them.5 Del. Code Ann., tit. 5, § 952(a) (1999).
Consequently, in order to show that the NAF had jurisdiction, MBNA is required to demonstrate
that the original agreements between the parties did not contain a restriction on its ability to
modify the agreements. Thus, in order for this Court to uphold the district court’s finding of valid
agreements to arbitrate between the parties in this matter, the record must reflect substantial and
competent evidence of a valid agreement for both Capps and Carroll that either does not prohibit
unilateral amendments of the agreement or that contains a valid arbitration clause.
A very similar issue was addressed by this Court in MBNA America Bank, N.A. v.
Fouché; however, Fouché is distinguishable from this case based on the evidence presented and
the findings made. 146 Idaho 1, 189 P.3d 463. In Fouché, MBNA obtained an arbitration award
against Fouché and brought an action to have it confirmed in district court. Id. at 1–2, 189 P.3d at
463–64. Fouché, appearing pro se, argued that there was no agreement to arbitrate and,
consequently, the arbitration award should be vacated. Id. at 2, 189 P.3d at 464. After MBNA
produced an affidavit of one of its assistant vice-presidents that purported to contain a true and
correct copy of the cardholder agreement for Fouché’s account, and presented testimony from a
different vice-president that Fouché’s agreement was modified to allow for arbitration, the
district court confirmed the award and entered judgment for MBNA. Id.
Although there was also testimony in the record from MBNA’s witness that it had
complied with the amendment procedures to add an arbitration clause, this Court held that the
district court’s confirmation of the arbitration award was not supported by substantial and
competent evidence because “[t]here was no evidence admitted during trial that supported the
finding that MBNA had the right to change the agreement.” Id. at 4, 189 P.3d at 466. We reached
that result because, although some of the agreements between the parties were offered as part of
an affidavit early in the proceedings, they were never offered as exhibits at trial. Id. We noted
5
The relevant portion of the statute provides:
Unless the agreement governing a revolving credit plan otherwise expressly
provides, any amendment may, on and after the date upon which it becomes
effective as to a particular borrower, apply to all then outstanding unpaid
indebtedness in the borrower’s account under the plan . . . .
Del. Code. Ann., tit. 5, § 952(a) (emphasis added).
11
that in order to establish an agreement to arbitrate, based on a modification that was supported by
substantial and competent evidence, the district court must find, as an established fact, that the
cardholder agreement included a provision permitting MBNA to modify its terms. Id. at 4, 189
P.3d at 466. We also found that MBNA had failed to establish that Delaware law applied to the
agreement with Fouché. Id.
This case differs from Fouché because MBNA has placed sufficient evidence in the
record to allow a finding of an agreement to arbitrate and the district court made such a finding.
MBNA relied on the testimony of one of its vice-presidents, Michael Milnes, who identified
exhibits entered into the record as the amended agreements between MBNA and Carroll and
Capps. These exhibits contained agreements to arbitrate, as well as provisions allowing for
amendment of the cardholder agreements by MBNA. Further, MBNA pointed to applicable
provisions of Delaware law, specifically, title 5, section 952, that empowered MBNA to
unilaterally amend the agreements between the parties. Finally, the district judge made an
explicit finding that both Capps and Carroll had an agreement to arbitrate with MBNA, based on
the evidence in the record. Consequently, we find that, unlike the record presented in Fouché, the
record in this case adequately establishes MBNA’s ability to modify the agreements between the
parties, as well as the fact that the agreements had in fact been amended to provide for
arbitration.
Carroll’s and Capps’ other arguments against confirmation of the arbitration award are
unavailing. While a showing that the agreement to arbitrate itself was unconscionable or that the
arbitrator was influenced by bias or prejudice would be sufficient to allow a court to set aside an
arbitration award, those arguments were not raised or argued in front of the district court, nor
was any evidence presented to support them. While Carroll and Capps did argue on
reconsideration that the arbitration process itself was unconscionable because of arbitrator bias,
that is not a basis for vacating the awards. The district court found that, although Capps and
Carroll submitted affidavit and deposition testimony that NAF arbitrations were biased in favor
of the banking industry, they presented no evidence that the arbitrators presiding in their
arbitrations were biased. Neither Capps nor Carroll has demonstrated why the district court’s
findings should be disturbed. The other arguments raised by Carroll and Capps, including lack of
mutuality of obligation or a meeting of the minds, simply go back to the existence of an
12
agreement to arbitrate, which, as we noted above, was found as an established fact supported by
substantial and competent evidence.
Accordingly, because the district court found agreements to arbitrate between the parties
as an established fact, and Capps and Carroll have failed to show any grounds for setting aside
the arbitration awards entered under those agreements, the district court’s confirmation of the
arbitration awards against Capps and Carroll was proper.
D.
Attorney Fees
MBNA claims that it is entitled to attorney fees on appeal pursuant to Idaho Code
sections 12-120(3) and 12-121.6 When a choice-of-law clause is in play, this Court must
determine whether the award of attorney fees is procedural or substantive in order to establish
which state’s law applies. Houston, 147 Idaho at 911–12, 216 P.3d at 1283–84. If the award of
attorney fees is a discretionary matter governed by statute, then it is considered to be procedural,
requiring application of the forum law. Id. at 911, 216 P.3d at 1283. Further, in order to be
entitled to attorney fees on appeal, authority and argument establishing a right to fees must be
presented in the first brief filed by a party with this Court. Idaho App. R. 36(b)(5), 41; Goldman
v. Graham, 139 Idaho 945, 947–48, 88 P.3d 764, 766–67 (2004). A citation to statutes and rules
authorizing fees, without more, is insufficient. Goldman, 139 Idaho at 947–48, 88 P.3d at 766–
67. Although MBNA cited to the above statutory fees provisions, it submitted no argument in its
brief as to why fees should be awarded under either I.C. § 12-120(3) or I.C. § 12-121. Thus, we
decline to award attorneys fees to MBNA on appeal.
III.
Because the district court’s findings concerning the arbitration awards against Capps and
Carroll are supported by substantial and competent evidence, we affirm the district court’s order
confirming the awards and the judgment entered thereon. We award costs on appeal, but not
attorney fees, to MBNA.
Chief Justice EISMANN, and Justices BURDICK, W. JONES and HORTON CONCUR.
6
MBNA does not base its request for attorney fees on the provisions of the agreements between the parties, and,
therefore, we do not consider whether fees may have been awardable under the agreements.
13