dissenting.
I concur fully in Parts I, II and IV of the Court’s decision, however, I respectfully dissent to Part III.
The rule set forth in J.M.F. Trucking, Inc. v. Lewiston Carburetor & Electric, 113 Idaho 797, 748 P.2d 381 (1987), is preferable to that established in the majority opinion. In addition, the circumstances of this case are significantly different from Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982), upon which the majority relies. In this case the trial court denied both a motion for summary judgment and a motion to dismiss at the end of plaintiffs case. The motion to dismiss in this case was made and denied after all of the plaintiff’s evidence had been received and heard by the court and jury at trial. Given the difference between the two motions, “[i]t is conceivable that a party may prevail on a motion for summary judgment and still have brought the claim without reasonable foundation,” Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923, 925 (1982), but to deny a motion to dismiss after all of plaintiff’s evidence has been heard is essentially a determination that a factual conflict exists sufficient to allow the case to be resolved by the jury. To thereafter make a post-trial determination that the case was brought frivolously and without foundation is inconsistent with this Court’s decision in J.M.F. Trucking, Inc. v. Lewiston Carburetor & Electric, 113 Idaho 797, 799, 748 P.2d 381, 383 (1987). The legal principle set forth in J.M.F. Trucking, provides a certain degree of uniformity and guidance to both the district courts and trial bar, and, in my opinion, is preferable to the rule established in Part III of the majority opinion. Thus, I respectfully dissent to Part III.