(concurring in part and dissenting in part).
The effect of the amended opinion of the majority is to vacate the award of attorneys’ fees under the private attorney general exception to the prevailing American rule disallowing attorneys’ fees to the successful party and the granting of attorneys’ fees under the bad faith exception to the general rule. I agree with the majority that the vacation of our prior allowance of attorneys’ fees on appeal under the private attorney general exception is required by Alyeska Pipeline Service Co. v. Wilderness Society, - U.S. -, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). I dissent from the award of attorneys’ fees on appeal and the remand to the district court with direction to award attorneys’ fees for services in the district court on the basis that the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. My dissent is based on several grounds.
I.
The plaintiffs have not met the burden resting upon them to demonstrate that they properly raised the issue of their right to attorneys’ fees on the basis of the bad faith exception to the general rule. It is well-settled law that issues not raised in the trial court or upon appeal cannot be considered by an appellate court as a basis for reversal. See Smith v. American Guild of Variety Artists, 368 F.2d 511, 514-515 (8th Cir. 1966), and cases there cited. Plaintiffs in their brief upon appeal state: “Appellants respectfully request that pursuant to the jurisdictional grounds of their ‘Complaint’, specifically set forth in paragraph 1 of same, this Honorable Court award to appellants a reasonable attorneys’ fees.” Paragraph 1 of the complaint merely sets out the jurisdictional basis for the action and makes no claim either in that paragraph or in the prayer for attorneys’ fees. Plaintiffs in brief argue that they are entitled to attorneys’ fees under the private attorney general exception to the general rule. No mention is made of the bad faith exception claim.
It is unfair to the trial court and the litigants to allow the recovery of attorneys’ fees on the basis of an issue not raised in the trial court or properly raised upon appeal. Under such circumstances, the litigants are not afforded a fair opportunity to meet the issue by evidence or briefs. Upon the original submission of the appeal the bad faith issue was not briefed.
II.
No fact finding on the bad faith issue was made by the trial court. No request for a Rule 52(b) amendment for a finding upon the issue was made.
Under Rule 52(a), in cases tried to the court the trial court is the appropriate fact finder. The trial court’s findings can be set aside only if clearly erroneous. We have no right to try cases de novo. Thus if contrary to what has heretofore been said, the bad faith exception is properly before us, the case should be remanded to the trial court for determination of such issue.
III.
The discretion for awarding attorneys’ fees under appropriate circumstances, absent statute or contract providing for such fees, rests in the trial court subject to review for abuse of discretion. We cannot substitute our discretion for that of the trial court.
IV.
Alyeska recognizes that upon a proper record attorneys’ fees can be granted in the court’s discretion for willful disobedience of a court order or bad faith. The Supreme Court in that case rejected the attorneys’ fees award granted on the basis of private attorney .general exception *550but did not proceed to determine whether such relief could be granted under another exception to the general rule nor did it remand the case for such determination.
Since I am of the view that the resolution of the attorneys’ fees on the bad faith issue is not properly before us, I express no view on the merits of such contention. I dissent from the award of attorneys’ fees on appeal and the remand to the district court for mandatory determination of attorneys’ fees in that court.