concurring in part and dissenting in part:
I concur with the result reached by the majority opinion except for the award of attorney fees on appeal. The appellant raised on appeal a debatable question concerning whether or not the district court denied him his constitutional right to a jury trial when the district court ruled that whether or not there was probable cause to file the original action was a question of law for the court, not for the jury. That is hardly a frivolous legal issue and, although appellant loses on that issue, it does not justify the award of attorney fees under I.C. § 12-121, I.R.C.P. 54(e), and Minich v. *105Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).