IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 33588

AUTUMN YOUNGBLOOD, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff-Appellant,

v.

JESSIE HIGBEE, BIG O TIRES, and DENNIS CLAUNCH TIRES, INC., an Idaho corporation,

Defendants-Respondents.

_______________________________________ AUTUMN YOUNGBLOOD,

Plaintiff-Appellant,

v.

JESSIE HIGBEE, BIG O TIRES, and DENNIS CLAUNCH TIRES, INC., an Idaho corporation,

Defendants-Respondents. Pocatello, October 2007

2008 Opinion No. 52

Filed: April 25, 2008

Stephen W. Kenyon, Clerk

SUBSTITUTE OPINION. THE PREVIOUS OPINION ISSUED FEBRUARY 19, 2008 IS HEREBY WITHDRAWN.

Docket No. 34259

Appeal from the District C ourt of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Richard T. St. Clair, District Judge.

District court grant of summary judgment, affirmed.

Curtis & Browning, Idaho Falls, for appe llant. Paul Tibbitts Curtis argued.

Merrill & Merrill, Pocatello, for responde nt Big O Tires. Thomas J. Lyons argued. Racine, Olson, Nye, Budge & Bailey, Chartered, Pocatello, for respondent Higbee. John A. Bailey, Jr. argued.

1__________________________________ Burdick, Justice This case arises from a negligence action brough t against a franchisor. The district court granted the franchisor’s motion for summary judgment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Appellant Autumn Youngblood wa s riding as a passenger in driver Jessie Higbee’s vehicle and was injured when Higbee’s vehicle rear -ended another vehicle in Idaho Falls on June 5, 2003. Respondent Big O Tires, Inc. is the fran chisor of the Idaho Fa lls Big O Tires store owned and operated by Dennis Claunch Tires, Inc. (Claunch). Claunch, who allegedly inspected and worked on Higbee’s brakes prior to the accide nt, was not initially named in the complaint, but was named as a defendant when the complaint was amended on September 11, 2006. On June 3, 2005, Youngblood filed a compla int against Higbee and “Big O Tires” alleging that “Big O Tires” failed to exercise due care when repairing Higbee’s brake system. Big O Tires, Inc. was served with the compla int on or about September 8, 2005. Big O Tires, Inc. moved for summary judgment arguing that it was not properly named in Youngblood’s complaint and that there is no entity named “Big O Tires.” Big O Tires, Inc. further argued that it was entitled to summary judgment because it was not involved in the brake work on Higbee’s vehicle. Youngblood opposed the motion for summa ry judgment and apparently also made a motion, which does not appear in the record, to amend her compla int to substitute Claunch for Big O Tires, Inc. The district court granted Bi g O Tires, Inc.’s motion for summary judgment and granted Youngblood’s motion to amend her complaint to substitute Claunch for Big O Tires, Inc. 1 Youngblood appeals the district c ourt’s grant of summary judgme nt to Big O Tires, Inc.

II. ANALYSIS Youngblood argues that it was an abuse of disc retion for the district court to grant summary judgment instead of amending the complain t, that Big O Tires, In c. should be estopped from moving for summary judgment based on the incorrect designation, and that the designation was sufficient under Idaho’s notice pleading system . Youngblood also ar gues there are genuine

1 The district court subsequently granted Claunch’s moti on to dismiss because the amended complaint did not “relate back.” Whether Claunch was properly dismissed is not at issue in this appeal.

2issues of material fact as to Big O Tires, Inc.’s vicarious liability. We will address each issue in

turn. A. Summary Judgment Youngblood argues that the district court abused its discreti on by granting the motion for summary judgment instead of ame nding the complaint to reflect Bi g O Tires Inc.’s legal name. A district court’s decision to gran t or refuse permission to ame nd a complaint after a responsive pleading is served is reviewed for an abuse of discretion. Hines v. Hines , 129 Idaho 847, 853, 934 P.2d 20, 26 (1997). However in this case, Youngblood never made a motion to amend the complaint to change “Big O Tires” to “Big O Tires, Inc.” 2 Here, this Court is reviewing the district court’s decision to gran t summary judgment. When reviewing a district court’ s grant of summary judgment, this Court uses the same standard a district court uses when it rules on a summary judgment motion. Jordan v. Beeks , 135 Idaho 586, 589, 21 P.3d 908, 911 (2001). Su mmary judgment shall be re ndered when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, s how that there is no genuine issue as to any material fact and that the moving party is entitle d to a judgment as a matter of law.” I.R.C.P. 56(c). When there is no question of material fact, only a question of law remains, over which this Court exercises free review. Kiebert v. Goss , 144 Idaho 225, __, 159 P.3d 862, 864 (2007). Youngblood asserts that Big O Tires, Inc. s hould be estopped from making a motion for summary judgment based on the incorrect designa tion and that the complaint was adequate under the standards of notice pleading. First, Youngblood argues that prior to moving for summary judgment, Big O Tires, Inc. admitted it was Claunch’s franchisor, which amount s to an admission that “Big O Tires” was its

2 Furthermore, it appears the district court did what Youngblood requested in a different motion, not appearing in the record. The affidavit submitted by Youngblood’s attorney in opposition to Big O Tires Inc.’s motion for summary judgment cont ains the following: 18. The purpose of this narrative is to support plaintiff’s contention that, in the alternative to summary judgment, the Court in it’s [sic] discre tion could merely grant plaintiff’s Rule 15c motion filed herewith, and substitute Dennis Claunch (or whoever Defendant Big O Tires claims is the proper party) into the action

. 19. Such an amendment should relate back to the filing of the original complaint . . . . (Emphasis added.)

3proper name; consequently, Youngblood never moved to amend the complaint to use a different name with which to identify the franchisor of Claunch. Youngblood concludes that this admission by Big O Tires, Inc. combined with her reliance on it, estops Big O Tires, Inc. from now claiming it should be dismissed from the ac tion because it was not properly named in the complaint. However, this argument was not made below. We do not consid er issues raised for the first time on appeal. Kirkman v. Stoker , 134 Idaho 541, 544, 6 P.3d 397, 400 (2000). Hence, we decline to address this issue on appeal. Youngblood next argues that because Idaho is a “notice pleading” state and because “[a]ll pleadings shall be so construed as to do substa ntial justice[,]” I.R.C.P. 8(f), naming “Big O Tires” and serving “Big O Tires, Inc.” with serv ice of process was adequate. We agree that Big O Tires, Inc. had adequate notice th at Youngblood brought a suit against it.

Our Rules of Civil Procedure estab lish a system of notice pleading. Cook v. Skyline Corp. , 135 Idaho 26, 33, 13 P.3d 857, 864 (2000). “A complaint need only contain a concise statement of the facts constituting the cause of action and a demand for relief.” Clark v. Olsen

, 110 Idaho 323, 325, 715 P.2d 993, 995 (1986); see also I.R.C.P. 8(a)(1). “A party’s pleadings should be liberally construed to secure a ‘just, speedy and inexpensive’ resolution of the case.” Gillespie v. Mountain Park Estates, L.L.C. , 138 Idaho 27, 30, 56 P.3d 1277, 1280 (2002) (quoting Christensen v. Rice , 114 Idaho 929, 931, 763 P.2d 302, 304 (Ct. App. 1988) (citing I.R.C.P. 1(a); M.T. Deaton & Co. v. Leibrock , 114 Idaho 614, 759 P.2d 905 (Ct. App. 1988))). While we “will make every intendment to sust ain a complaint that is defective, e.g., wrongly captioned or inartful, a comp laint cannot be sustained if it fa ils to make a short and plain statement of a claim upon whic h relief may be granted.” Gibson v. Ada County Sheriff’s Dep’t

, 139 Idaho 5, 9, 72 P.3d 845, 849 (2003). We look at whether the complaint puts the adverse party on notice of the claims brought against it. Id

. The complaint does not name Big O Tires, Inc. by its legal name and inaccurately described it as “an operating business located in Idaho Falls, Bonneville County, Idaho.” However, Big O Tires, Inc. was served, filed an answer, and moved for summary judgment. The motion for summary judgment indicates it understood Youngblood wa s bringing the negligence claim against it and argued that since it had no control over the brake work, it was not liable for

Though the motion does not appear in the record, apparently Youngblood made a motion to amend her complaint to substitute “Big O Tires” with “Dennis Cl aunch Tires, Inc., an Idaho Corporation[,]” which the district court granted.

4the actions of its franchisee. Thus, there is every indicati on Youngblood’s complaint put Big O Tires, Inc. on notice that Y oungblood brought a suit against it. Nonetheless, though in this case the complaint can be sustained despite its defect in misnaming a party, it still “fails to make a s hort and plain statement of a claim upon which relief may be granted.” See Gibson , 139 Idaho at 9, 72 P.3d at 849. Youngblood’s claim of relief against “Big O Tires” is for negligence based on the allegation that “Higbee’s brake system had r ecently been worked on by Defendant Big O Tires and Defendant Big O Tires failed to exercise due care when repairing [Higbee’s] brake system . . . .” However, the complaint lacks any allegation that through agency law the defendant, as the franchisor, could be held liable for the actions of its franchisee. It is undisputed that the franchisor did not actually perform the work on Higbee’s brakes. In this case, the combination of an inaccurate description of the party coupled w ith a lack of any allegation that the franchisor is responsible for the acts of its franchisee resulted in a failur e to state a claim against Big O Tires, Inc. 3 Thus, we hold Youngblood’s complaint faile d to meet notice pleading standards and affirm the district court’s grant of summary judgment. B. Attorney Fees Big O Tires, Inc. claims it is entitled to an award of attorney fees pursuant to I.A.R. 41 and I.C. §§ 12-121, 12-123(1)(b) (definition of “f rivolous conduct”). Idaho Code § 12-121 allows an award of “reasonable attorney’s fees to the prevailing party . . . .” Attorney fees are awarded to the prevailing party only if “the Court determines that the action was brought or pursued frivolously, unreasonably or without foundation.” Baker v. Sullivan , 132 Idaho 746, 751, 979 P.2d 619, 624 (1999). Where we affirm the district court’s opinion on different grounds, we cannot say the appeal is frivolous , unreasonable or without foundation. Therefore we decline to award Big O Tires, Inc. attorney fees on appeal.

III. CONCLUSION We affirm the district court’s grant of summar y judgment to Big O Tires, Inc. We award no attorney fees on appeal. Costs awarded to Respondent.

Chief Justice EISMANN and Justices J. JONES, HORTON and TROUT, J. Pro Tem,

CONCUR.

5 3 In any case, Youngblood failed to oppose summary judgme nt with sufficient evidence showing Big O Tires, Inc. as the franchisor, had any liability for the actions of its franchisee.