dissenting:
Just as a Pandora’s box once opened creates unending mischief, Volk v. Baldazo, 103 Idaho 870, 651 P.2d 11 (1982), Bakes, C.J., dissenting, the mischief wrought when this Court breathed life into the frail framework of I.C. § 12-121 by amending it through a procedural rule,1 is here at work in the form of a summary per curiam opinion which sees no necessity of setting out the underlying facts on which appellants rely in bringing what I am certain was taken as a good faith appeal. At the outset the Court’s opinion notes that “the record reflects that no objection to respondents’ memorandum of costs was ever filed,” from which follows the supposed sequitur that the appellants have no right to come before this Court and argue about attorney’s fees which were over one-half of the judgment recovered by respondents. But, the record contains court minutes showing that a contested hearing on respondents’ claim for attorney’s fees was heard before the trial court, where Mr. Douglas, for appellants here, presented argument against the motion for attorney’s fees.
It is reasonably clear that appellant made no item objection as contemplated by I.R. C.P. 54(d)(6), and that the argument made before the trial court was either a “prevailing party” argument, Odziemek v. Wesely, 102 Idaho 582, 634 P.2d 623 (1981), or an objection as to timeliness. In this Court appellants continue their argument, not at all on an item basis, but primarily relying on Hutchison v. Kelton, 99 Idaho 866, 590 P.2d 1012, 1013 (1979) where this Court did examine the record and held “that the trial court did not err in concluding that neither party prevailed.” (On that appeal, costs without mention of attorney’s fees on appeal were awarded.)
One would think the Court might see its treatment of the appellants a bit on the disparate side as compared to Hutchison. Until reading today’s opinion, most practitioners would have thought that where the district judge heard the argument and made his decision on the merits, that decision should be subject to review. One may be certain that the district judge did not simply deny the motion because appellants had waived their right to be heard by not filing an item objection to items to which they had no objection.
The Court’s opinion opens with the statement that “judgment was entered against the appellants, and included an award of attorney fees.” It isn’t really that simple, however. After a difficult trial, the district court entered its own findings of fact and conclusions of law, having dealt not only with each party’s claims against the other but also with the various credits and debits arising from a confusing farm lease. Final judgment was entered against the appellants on May 21, 1980, for $3,484.75. The court did not make the final computations of the net amount. Attorney for respondents made the computations and drew the judgment. The judgment prepared and signed made no mention of costs or attorney’s fees. The district court’s memorandum decision, findings and conclusions were equally silent in that regard. Neither party filed a Rule 59(e) motion to alter or amend the judgment with respect to attorney’s fees and costs. Upon timely motions filed by both parties objecting to certain findings involving the debits and credits, the trial court rewrote its memorandum decision and its included findings and conclusions. Although not computed by the court, the change in the findings reduced the total judgment from $3,485.75 to $3,377.30. The revised memorandum decision made no mention of court costs or attorney’s fees and again simply directed respondents’ counsel to “prepare the appropriate order of judgment.” The amended judgment assessed a monetary award of $3,377.30 against appellants, and this second time included a blank line for inserting costs. The amended judgment was filed on July 28th. At the same time, and constituting respondent’s first affirmative move for attorney’s *763fees, and being over sixty days after final judgment was entered, also filed was respondents’ motion for costs and attorney’s fees.
The court minutes reflect that this motion was heard at Gooding on the 11th of August and granted by a ruling from the bench. It is logical that the amount and the date were then inserted by the judge on the blank lines of the amended judgment. Able counsel being involved, it is extremely likely that on the filing of respondents’ motion, which was not noticed for hearing, counsel conferred and stipulated to submitting to the court the question as to which party, if either, was entitled to attorney’s fees, and likely that neither questioned the amount claimed by the other, leaving “reasonableness” to the court. While it may come as a shock to new members of the bar, and to some members of this Court, parties are entitled to agree to straightforward procedures which do not fall into the myriads of highly technical rules. Here, for instance, respondents without doubt knowingly agreed that appellants could orally present their objections to the awarding, not the amount, of attorney’s fees, and vice versa. See for instance, Cunningham v. Bundy, 100 Idaho 456, 600 P.2d 132 (1979). On the other hand, see Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982).
In sum, this is not simply a case where, as the Court’s opinion implies, there is a judgment which included attorney’s fees. There was a final judgment which did not include attorney’s fees and there was an amended judgment which left a blank for costs (and attorney’s fees). Attorney’s fees only became an issue on motion long after the first final judgment was entered, and at the same time as the amended judgment was entered. Respondents made no motion to alter or amend the first final judgment which was drawn by their counsel, but which provided for neither costs nor attorney’s fees and was based on findings of fact and conclusions of law which also provided for neither. Changes in the findings made after motions by both parties reduced the judgment by $107.45. An appropriate order would have allowed the judgment to stand but would have adjusted it downward to $3,777.30. Instead, an entirely new judgment was entered, drawn by the respondents, who had drawn the first final judgment. Respondents managed to bootstrap themselves into an award of costs and attorney’s fees by a motion made 60 days after having allowed the first judgment to become final. I doubt that this procedure is as envisioned by the rules.
At the least, appellants are entitled to a review of their “prevailing party” contention. Appellants might or might not convince the Court on the issue, were the Court to consider it. Gaining nothing by a unilateral dissertation, I refrain from discussion. For certain, I would not debase the appellants’ position by assessing attorney’s fees on the appeal.
. It is not unlikely that the court system will see as much if not more litigation over attorney’s fees than over the original controversies bringing litigants into court.