concurring in part and dissenting in part.
I concur with the decision in this case in all respects except Part IV which determines that VENT is not entitled to attorney Fees. I.C. § 12-120(3) provides the following:
In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of goods, wares, merchandise, or services and in any commercial transaction unless otherwise provided by law, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.
The term ‘commercial transaction’ is defined to mean all transactions except transactions for personal or household purposes. The term ‘party’ is defined to mean any person, partnership, corporation, association, private organization, the state of Idaho or political subdivision thereof.
I.C. § 12-120 was amended in 1986. 1986 Idaho Sess. Laws, ch. 205, p. 511. Prior to the amendment the prevailing party was entitled to recover attorney fees in a civil action “to recover on an open account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, merchandise ...” The amendment added to this list the term “guaranty,” and contract relating to “services” as well as attorney fees “in any commercial transaction.” “Commercial transaction” was “defined to mean all transactions except transactions for personal or household purposes.”
There is no legislative history that specifies the purpose of these amendments, but it is clear that the purpose of the legislation was to significantly expand the coverage of the attorney fee provisions of I.C. § 12-120 by the addition of guaranty, contracts relating to services, and commercial transactions, particularly considering the very broad definition of commercial transaction. Prior to the amendment the statute covered most types of contracts. The addition of “guaranty” and contracts relating to services left little in contracts uncovered, except real estate contracts. The addition of the language “in any commercial transaction” indicates a legislative purpose to broaden the applicability of I.C. § 12-120 beyond contract claims.
*246The Court’s decision denies Gumprecht’s claim for attorney fees because his “claim is based on the statutory penalties provided in I.C. § 30-1-52 for the corporation’s failure to provide access to the corporate records. The claim is not based on a contract.” The Court has determined that the gravamen of the suit is “the statutory provision and not a commercial transaction.” This unduly limits application of I.C. § 12-120(3). The array of business organizations that exist such as corporations, partnerships, limited partnerships, and professional associations, involve commercial ventures. Their rights and duties are commonly defined by statute. The fact that a litigant seeks a statutory remedy should not preclude an award of attorney fees when the essential activity at issue is commercial. The Court’s decision effectively limits the applicability of I.C. § 12-120(3) to contract actions. The purpose of the 1986 amendments to I.C. § 12-120 was to expand its application to a very broad segment of commercial activity that might not otherwise have been included.
The Court has previously limited applicability of the “commercial transaction” component of I.C. § 12-120(3) when the claim is stated as a tort, even though the action arose in a commercial context. See, e.g. Fuller v. Walters, 119 Idaho 415, 807 P.2d 633; Brower v. E.I. DuPont De Nemours and Co., 117 Idaho 780, 792 P.2d 345. Those limitations are part of our law, and though a different approach might have been taken, establish authority upon which parties may rely. However, the current interpretation unduly limits I.C. § 12-120(3) to contract actions and largely nullifies the effect of the addition of “in any commercial transaction” to the statute. This interpretation is not compelled by prior decisions and is contrary to the principle of statutory construction that the court should not construe an amendment in such a way as to render it a nullity, because we do not presume that the legislature has passed a superfluous amendment. See Davaz v. Priest River Glass Co., Inc. 125 Idaho 333, 870 P.2d 1292 (1994); Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990); Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978).
I would award Gumprecht attorney fees pursuant I.C. § 12-120(3).