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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45010

KDN MANAGEMENT, INC., a Utah 

corporation dba KD CONCRETE DESIGN,

 Plaintiff-Appellant,

v.

WINCO FOODS, LLC, a Delaware limited 

liability company dba WINCO FOODS; 

WINCO HOLDINGS, INC., an Idaho 

corporation; 

 Defendants-Respondents,

and

ABC CORPORATIONS I-X, GHI LIMITED 

LIABILITY COMPANIES I-X, XYZ 

BUSINESS ENTITIES I-X, JOHN AND JANE 

DOES I-X,

 Defendants.

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WINCO FOODS, LLC, a Delaware limited 

liability company dba WINCO FOODS,

 Counterclaimant,

v.

KDN MANAGEMENT, INC., a Utah 

corporation dba KD CONCRETE DESIGN,

 Counterdefendant.

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WINCO FOODS, LLC, a Delaware limited 

liability company dba WINCO FOODS,

 Plaintiff-Respondent,

v.

KYM D. NELSON, an individual; KD3 

FLOORING LLC, a Utah limited liability 

company; and SEALSOURCE 

INTERNATIONAL, LLC, a Utah limited 

liability company,

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Rexburg, May 2018 Term

Filed: July 30, 2018

Karel A. Lehrman, Clerk
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 Defendants-Appellants.

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Appeal from the District Court of the Fourth Judicial District of the State of 

Idaho, Ada County. Hon. Steven Hippler, District Judge.

The judgment of the district court is affirmed.

Bennett Tueller Johnson & Deere, Salt Lake City, Utah, for appellant. Daniel K. 

Brough argued.

Holland & Hart, LLP, Boise, for respondent. A. Dean Bennett argued.

_____________________

BRODY, Justice. 

This appeal involves the district court’s denial of a jury trial under Rule 39(b) of the 

Idaho Rules of Civil Procedure and the decision to pierce the corporate veil. The dispute arises 

out of a transaction between Kym Nelson, who acted on behalf of KDN Management Inc., 

(“KDN”), and WinCo, Foods, LLC (“WinCo”), for concrete floor work that KDN performed in 

several WinCo stores. The district court found that KDN had overcharged WinCo for the work, 

and awarded WinCo $2,929,383.31 in damages, including attorney fees pursuant to Idaho Code 

section 12-120(3). The district court also held Nelson and two entities associated with her,

SealSource International, LLC (“SealSource”), and KD3 Flooring LLC (“KD3”), jointly and 

severally liable for WinCo’s damages. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

WinCo owns 107 grocery stores which are divided into three geographical divisions. In 

2008, Nelson and WinCo’s maintenance supervisor for the Portland Division discussed the 

possibility of KD3 performing concrete floor maintenance and repair work for the Portland 

Division stores. By January 2010, WinCo and Nelson (using the name “KD Concrete”) agreed to 

the following material terms: “removal and cleaning of current joint material; installation of joint 

sealant, SL75; price per linear foot at $5; and a five-year labor and material warranty.” KD 

Concrete was to begin work on three test stores in the Portland Division no later than January 

2010, and if WinCo was satisfied, KD Concrete would do the work in other stores on the same 

terms as WinCo needed. 
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On February 18, 2010, Nelson incorporated KDN to perform the WinCo contract that had 

been negotiated. Nelson registered “KD Concrete Design” as an assumed business name of KDN 

more than two years later. By March 26, 2010, work at the first three WinCo stores was 

complete. In April or May 2010, John Weber, the Portland Division maintenance supervisor,

suggested to Jim Douty, WinCo’s maintenance manager for the Boise Division, that he should 

contact Nelson about having KD Concrete Design do the floor work in some of the Boise

Division stores. Douty had no authority to negotiate a new agreement on behalf of WinCo, but he 

authorized KD Concrete Design to perform work at certain stores in the Boise Division under the 

same terms as the original contract. In November of 2011, WinCo refused to pay three invoices

over concerns that KDN had overcharged WinCo for the work done. 

On October 25, 2012, KDN filed a complaint against WinCo to recover the outstanding 

balance on the three invoices. WinCo filed counterclaims for breach of contract, breach of 

implied-in-fact contract, unjust enrichment, and violation of the Idaho Consumer Protection Act, 

alleging that KDN overstated the work performed in each store and that WinCo had actually 

overpaid KDN. Upon discovery that KDN was not a registered contractor in Idaho at the time 

work was performed, WinCo moved for judgment on the pleadings, which the district court 

granted. WinCo’s counterclaims remained. 

On February 7, 2014, WinCo filed a motion for summary judgment on its counterclaim 

for breach of contract. KDN did not oppose the motion, citing that it had no assets or financial 

resources to defend against WinCo’s claims. On April 1, 2014, WinCo filed a new complaint

against Nelson, KDN’s sole shareholder, as well as her two other business entities, SealSource 

and KD3 (collectively, the “Nelson Parties”), alleging fraud, breach of contract, breach of 

implied-in-fact contract, and violation of the Idaho Consumer Protection Act. The cases were 

consolidated. 

On November 12, 2014, the parties filed a stipulation for scheduling and planning. The 

stipulation contained a provision stating that the parties estimated the case would take five days 

to try and that it was to be tried by a 12 person jury. Subsequently, WinCo filed first and second

amended complaints which included allegations pertaining to piercing the corporate veil and 

alter ego theories. The Nelson Parties’ answer to the second amended complaint contained a 

section titled “RELIANCE UPON JURY TRIAL DEMAND.” It stated: “The Nelson Parties 

hereby rely upon all prior demands for jury trial submitted by any party to this lawsuit.” No party 
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had ever filed a pleading requesting a jury trial. Thereafter, WinCo filed an objection to a jury 

trial, citing that there was no proper demand under Idaho Rule of Civil Procedure 38(a). The

Nelson Parties filed a motion for jury trial under Idaho Rule of Civil Procedure 39(b), explaining 

that they did not know why a jury trial was not demanded but that the parties had all operated 

under the assumption that it was going to be a jury trial; indeed, the case had been set as a jury 

trial five times. The district court denied the Rule 39 motion, finding that the equitable issues in 

the case predominated the issues to be decided.

While the case was pending, the district court also dealt with serious discovery violations 

and spoliation issues committed by the Nelson Parties, both in the form of destruction or 

alteration of evidence and in the form of nonproduction of evidence. As a result of those 

violations, the district court imposed adverse inferences against the Nelson Parties at trial. After 

a nine-day bench trial, the district court issued its findings of fact and conclusions of law in favor 

of WinCo. The Nelson Parties filed a Rule 59 motion for a new trial or altered judgment, which 

the district court denied. The district court then entered an amended judgment awarding WinCo 

$2,929,383.31 against the Nelson Parties, jointly and severally. The Nelson Parties appealed. 

III. ISSUES ON APPEAL

1. Whether the district court abused its discretion by denying the Nelson Parties’ motion for 

jury trial under Idaho Rule of Civil Procedure 39(b).

2. Whether the district court erred when it imposed personal liability upon Nelson. 

3. Whether the district court abused its discretion when it found that the Nelson Parties were 

alter egos of one another. 

4. Whether WinCo is entitled to attorney fees on appeal. 

IV. STANDARD OF REVIEW

This Court reviews a district court’s refusal to grant a jury trial under Rule 39(b) under an 

abuse of discretion standard. City of Pocatello v. Anderton, 106 Idaho 370, 373, 679 P.2d 647, 

650 (1984). This Court also reviews a district court’s ruling on equitable remedies for abuse of 

discretion. Climax, LLC v. Snake River Oncology of E. Idaho, PLLC, 149 Idaho 791, 794, 241 

P.3d 964, 967 (2010). “[I]ssues of alter ego and veil-piercing claims are equitable decisions.” 

Wandering Trails, LLC v. Big Bite Excavation, Inc., 156 Idaho 586, 591, 329 P.3d 368, 373

(2014). The test for an abuse of discretion is “whether the trial court: (1) correctly perceived the 

issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted 

consistently with the legal standards applicable to the specific choices available to it; and (4) 
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reached its decision by the exercise of reason.” Lunneborg v. My Fun Life, No. 45200, 2018 WL 

3150964, at *7 (Idaho June 28, 2018).

The standard of review of a court’s findings of fact is set forth in Idaho Rule of Civil 

Procedure 52(a), which provides:

Findings of fact, whether based on oral or other evidence, must not be set aside 

unless clearly erroneous, and the reviewing court must give due regard to the trial 

court’s opportunity to judge the witnesses’ credibility.

I.R.C.P. 52(a)(7). “In determining whether a finding is clearly erroneous this Court does not 

weigh the evidence as the district court did. The Court inquires whether the findings of fact are 

supported by substantial and competent evidence.” Opportunity, L.L.C. v. Ossewarde, 136 Idaho 

602, 605, 38 P.3d 1258, 1261 (2002) (internal citation omitted). “Evidence is regarded as 

substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a 

disputed point of fact had been proven.” Id. On review, this Court “liberally construe[s] a trial 

court’s findings in favor of the judgment entered.” Harris, Inc. v. Foxhollow Const. & Trucking, 

Inc., 151 Idaho 761, 768, 264 P.3d 400, 407 (2011) (internal quotation omitted). However, a 

district court’s findings of law are subject to free review. State v. Schulz, 151 Idaho 863, 865, 

264 P.3d 970, 972 (2011).

V. ANALYSIS

A. The district court did not abuse its discretion when it denied the Nelson Parties’

motion for jury trial.

The Nelson Parties argue that the district court abused its discretion by denying their 

motion for jury trial. Generally, Idaho Rule of Civil Procedure 38(b) provides that any party may 

demand a jury trial of an issue triable by jury, by making a demand no later than fourteen days 

after the service of the final pleading directed to such an issue. I.R.C.P. 38(b). Failure to properly 

demand a jury trial under Rule 38 constitutes a waiver of that right. Id. at (d). Here, it was 

undisputed that neither the Nelson Parties nor WinCo filed a proper jury demand. However, 

when a jury trial is not properly demanded, Rule 39 permits the district court to order a jury trial 

upon a motion from either party. I.R.C.P. 39(b); See R. E. W. Const. Co. v. Dist. Court of Third 

Judicial Dist., 88 Idaho 426, 443, 400 P.2d 390, 401 (1965) (“Where a jury trial is desired after 

time to demand a jury as of right has expired, a motion to the [c]ourt under Rule 39, rather than 

service of a demand under Rule 38 is the proper course.”). This Court reviews a lower court’s 
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denial of such a request for abuse of discretion. City of Pocatello v. Anderton, 106 Idaho 370, 

373, 679 P.2d 647, 650 (1984). 

The district court did not abuse its discretion in denying the Nelson Parties’ Rule 39(b) 

motion. This Court has routinely found that there was no abuse of discretion under Rule 39(b) 

when the requesting party failed to give a reason for the untimely jury demand. See Anderton, 

106 Idaho at 373, 679 P.2d at 650 (this Court found that no abuse of discretion occurred after the 

Andertons gave no reason for their failure to make a timely demand); Hayden Lake Fire Prot. 

Dist. v. Alcorn, 141 Idaho 388, 398, 111 P.3d 73, 83 (2005), overruled on other grounds by

Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 467 (2012) (no abuse of discretion 

occurred when the Fire District failed to explain why it did not demand a jury trial in the first 

complaint it filed); See also Viehweg v. Thompson, 103 Idaho 265, 269, 647 P.2d 311, 315 (Ct. 

App. 1982) (The Court of Appeals found the lower court did not abuse its discretion after the 

defendant made no showing as to why his jury demand was untimely in the first place.).

Here, the explanation the Nelson Parties provided to the district court was that “none of 

the parties here, the Nelson Parties, know why it wasn’t demanded . . . and, wrongfully or not, 

assumed a demand had been made.” This assumption was based on the fact that (1) the case was 

scheduled as a jury trial approximately five times with no objection from WinCo; (2) the parties 

executed a stipulation for a 12-person jury trial; (3) local counsel for WinCo stated that a jury 

trial was likely acceptable to WinCo; and (4) the Nelson Parties made a jury demand in their 

answer to WinCo’s second amended complaint. However, none of these reasons account for why 

a jury demand was not made at the outset of the case. Indeed, Rule 38 only provides a party 

fourteen days to properly demand a jury trial. I.R.C.P. 38(b). 

While the Nelson Parties and WinCo executed a stipulation in which both parties agreed 

to a jury trial, the court was not bound by such a stipulation. See Clow v. Bd. of Cnty. Comm’rs 

of Payette Cnty., 105 Idaho 714, 719, 672 P.2d 1044, 1049 (1983) (Bistline, J., dissenting) 

(“While counsel truly cannot bind a court by counsel’s stipulation as to procedure, it is entirely 

up to the court whether or not to accept the stipulation”). Indeed, it appears that the court never 

confirmed the stipulation with an order. Stipulations of counsel do not bind the court, but 

scheduling orders do. Thus, it is incumbent upon counsel to insure that a stipulation for 

scheduling and planning is confirmed by the court signing an order to that effect which is then 

filed. Such an order confirms the parties’ understanding. See I.R.C.P. 16(1) (action taken by the 
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presiding judge pursuant to the parties’ stipulation should result “in the filing of a scheduling 

order as soon as practicable after the action taken by the court.”) (Emphasis added). In this case, 

such an order would have gone a long way to support the Nelson Parties’ belated request for a 

jury trial pursuant to I.R.C.P. 39(b). 

Ultimately, the district court considered the Nelson Parties’ arguments, and in its 

discretion, determined that based on: (1) the number and interweaving of complex equitable 

issues; (2) the discovery and spoliation issues; and (3) the number of motions in limine 

pertaining to those issues, that it would proceed as a court trial. Without a reasoned explanation 

as to why a proper demand was not made as required by Rule 38(a), we hold that the district

court acted within its discretion to deny the Nelson Parties’ request. 

B. The district court did not err when it imposed personal liability on Kym Nelson.

The Nelson Parties argue that the district court erred when it found that an indefinite 

quantities contract existed and held Nelson personally liable for the overbilling based on theories 

of pre-incorporation liability and undisclosed principal. Specifically, the Nelson Parties argue 

that three contracts existed, KDN was incorporated prior to the first contract, and Nelson 

disclosed the existence of KDN prior to the start of any work.

Whether a contract exists between the parties is a question for the trier of fact. Johnson v. 

Allied Stores Corp., 106 Idaho 363, 369, 679 P.2d 640, 646 (1984). We defer to findings of fact 

that are supported by substantial evidence:

[T]his Court must defer to findings of fact based upon substantial evidence but 

will review freely the conclusions of law reached by stating legal rules or 

principles and applying them to the facts found. Sun Valley Shamrock Resources, 

Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990). 

Accordingly, we exercise free review over the district court’s conclusions of law. 

Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 613, 826 P.2d 1322, 1325 

(1992).

Great Plains Equip., Inc. v. Nw. Pipeline Corp., 132 Idaho 754, 760, 979 P.2d 627, 633 (1999).

“Formation of a valid contract requires that there be a meeting of the minds as evidenced 

by a manifestation of mutual intent to contract. This manifestation takes the form of an offer and 

acceptance.” P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 238, 159 

P.3d 870, 875 (2007) (internal quotation marks omitted). An indefinite quantities contract is 

formed when a buyer agrees to purchase and the seller agrees to supply whatever quantity of 

services the buyer chooses to purchase from the seller, so long as the buyer agrees to purchase a 
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minimum quantity. Torncello v. United States, 681 F.2d 756, 761 (Ct. Cl. 1982). There must be 

an obligatory minimum so that the buyer is not permitted to order nothing, which would render 

its obligations illusory, and therefore, unenforceable. Id.

The district court found that WinCo and Nelson, acting on behalf of KD Concrete (the 

assumed business name of KDN), entered into a contract no later than January 2010, when they

agreed to the material terms of the contract: “removal and cleaning of current joint material; 

installation of joint sealant, SL75; price per linear foot at $5; and a five-year labor and material 

warranty.” Further, because WinCo agreed to pay KDN to do the work at three stores and, if 

WinCo was satisfied, work could continue on an as-needed basis, an indefinite quantity contract 

was formed. See Torncello, 681 F.2d at 761 (an indefinite quantities contract is formed when a 

buyer agrees to purchase and the seller agrees to supply whatever quantity of services the buyer 

chooses to purchase from the seller, so long as the buyer agrees to purchase a minimum 

quantity). This finding is supported by: (1) the fact that the regional maintenance supervisors for 

each store had no authority to negotiate new contracts, i.e., Douty testified he had no authority to 

enter into a new agreement with Nelson; rather, he merely gave Nelson authorization to have KD 

Concrete perform work on certain stores in the Boise Division under the same terms as the 

Portland Division; (2) there was no new offer and acceptance for each store; and (3) Nelson 

never negotiated subsequent contracts. There is substantial evidence to support the district 

court’s determination that an indefinite quantities contract was created in January of 2010, and 

that KDN breached this contract by substantially overcharging WinCo and overstating the 

amount of work that was performed. 

It is undisputed that Nelson did not incorporate KDN until February 18, 2010. “All 

persons purporting to act as or on behalf of a corporation, when there was no incorporation under 

this chapter, are jointly and severally liable for all liabilities created while so acting.” I.C. § 30-

29-204 (formerly cited as § 30-1-204). Liability is defined as the “condition of being legally 

obligated or accountable.” Black’s Law Dictionary (10th ed. 2014). Accordingly, “liabilities,” as 

that term is used in section 30-29-204, arise when a contract is executed, not when the contract is 

breached. Because KDN was not incorporated until after the contract with WinCo was formed, 

the district court’s holding that Nelson was jointly and severally liable with KDN under the 

theory of pre-incorporation liability is affirmed. Given this ruling, we do not reach the issue of 

whether Nelson could also be liable as an undisclosed principal. 
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C. The district court did not abuse its discretion when it found the Nelson Parties to be

alter egos of one another.

There is no dispute that Utah law governs the theories of veil-piercing and alter ego

liability because KDN is a Utah corporation and KD3 and SealSource are Utah limited liability 

companies. See Restatement (Second) of Conflicts § 307 (1971) (“The local law of the state of 

incorporation will be applied to determine the existence and extent of a shareholder’s liability to 

the corporation for assessments or contributions and to its creditors for corporate debts.”).

Generally, Utah law makes it difficult to pierce the corporate veil because “a corporation is 

regarded as a legal entity, separate and apart from its stockholders.” Jones & Trevor Mktg., Inc. 

v. Lowry, 284 P.3d 630, 635 (Utah 2012) (quoting Dockstader v. Walker, 510 P.2d 526, 528 

(Utah 1973)). However, under the alter ego doctrine a stockholder may be liable for the 

obligations of the corporation. Id. “If a party can prove its alter ego theory, then that party may 

‘pierce the corporate veil’ and obtain a judgment against the individual shareholders even when 

the original cause of action arose from a dispute with the corporate entity.” Id. (internal citation 

omitted).

To pierce the corporate veil, two requirements must be met: (1) there must be such unity 

of interest and ownership that the separate personalities of the corporation and the individual no 

longer exist; and (2) the observance of the corporate form would sanction a fraud, promote 

injustice, or an inequitable result would follow. Norman v. Murray First Thrift & Loan Co., 596 

P.2d 1028, 1030 (Utah 1979). “The first prong of the test is often termed the ‘formalities 

requirement,’ referring to the corporate formalities required by statute. It is established upon a 

showing of the corporation’s failure to observe said statutory formalities. The test’s second prong 

is addressed to the conscience of the court, and the circumstances under which it will be met will 

vary with each case.” Messick v. PHD Trucking Serv., Inc., 678 P.2d 791, 794 (Utah 1984) 

(internal citations omitted). To satisfy the second prong “it must be shown that the corporation 

itself played a role in the inequitable conduct at issue.” Transamerica Cash Reserve, Inc. v. Dixie 

Power & Water, Inc., 789 P.2d 24, 26 (Utah 1990) (internal quotation omitted). 

The Utah Supreme Court has adopted the following “Colman factors” to consider in 

piercing the corporate veil:

(1) undercapitalization of a one-man corporation; (2) failure to observe corporate 

formalities; (3) nonpayment of dividends; (4) siphoning of corporate funds by the 

dominant stockholder; (5) nonfunctioning of other officers or directors; (6) 
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absence of corporate records; (7) the use of the corporation as a facade for 

operations of the dominant stockholder or stockholders; and (8) the use of the

corporate entity in promoting injustice or fraud.

Jones, 284 P.3d at 636 (citing Colman v. Colman, 743 P.2d 782, 786 (Utah Ct. App. 1987)). 

These factors are helpful guidelines and not required elements. Id. at 637.

Issues of alter ego and veil-piercing claims are equitable questions. Wandering Trails, 

LLC v. Big Bite Excavation, Inc., 156 Idaho 586, 591, 329 P.3d 368, 373 (2014). A district 

court’s ruling on equitable remedies is reviewed for abuse of discretion. Climax, LLC v. Snake 

River Oncology of E. Idaho, PLLC, 149 Idaho 791, 794, 241 P.3d 964, 967 (2010). 

The Nelson Parties allege that the district court based its alter ego determination on its 

finding that the assets of KDN were meticulously siphoned off by Nelson and her other two 

companies, knowing that KDN had potential liability to WinCo. The Nelson Parties argue this 

was error because: (1) neither KDN nor Nelson knew of any liability to WinCo at the time the 

assets were depleted; and (2) KDN’s status as an S-Corporation permitted Nelson to spend the 

money as if it were her own personal income. 

First, the Nelson Parties contend that there was no evidence at trial that demonstrated 

Nelson knew that KDN, or any other Nelson Party, had any liability to WinCo. The Nelson 

Parties’ reliance on Nelson’s lack of knowledge is not persuasive. Instead, the district court’s 

findings fit squarely into the Colman factors. See Jones, 284 P.3d at 636 (citing Colman v. 

Colman, 743 P.2d 782, 786 (Utah Ct. App. 1987)). Specifically, the district court found that 

WinCo had presented “overwhelming evidence” that Nelson, KDN, KD3, and SealSource, were 

so intertwined in their interest and ownership that separate personalities no longer existed:

(1) KDN was a single-shareholder corporation which was capitalized by Ms. 

Nelson with only $250 and did not have its own credit cards; (2) Ms. Nelson 

disregarded corporate formalities—most notably with regard to finances—

essentially using all three companies interchangeably and in a manner that 

indicated that she did not view her entities as separate from herself; (3) KDN’s 

second board member, Tracey Christensen, was non-functioning; (4) there was no 

evidence that KDN maintained corporate records, such as meeting minutes and 

bylaws; (5) Ms. Nelson and KD3’s accountant, Joel Christenson, intentionally 

listed KDN as a holding company for KD3 until WinCo alerted Ms. Nelson of 

potential alter ego claims, at which point Ms. Nelson amended KDN’s tax returns 

and deleted entries in KDN and KD3’s Quickbooks to remove any trace of 

KDN’s interest in KD3; and (6) KD3 and SealSource shared the same employees 

and Ms. Nelson consistently referred to KD3 as a division of SealSource.
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The Nelson Parties’ argument regarding KDN’s status as an S-Corporation is equally 

unpersuasive. An S-Corporation is a pass-through tax entity, “meaning that all revenues, profits, 

expenses, and losses are passed through, pro rata, to the shareholders based upon their 

percentage of ownership.” MacFarlane v. Utah State Tax Comm’n, 134 P.3d 1116, 1117 (Utah 

2006) (citing 26 U.S.C. § 1366 (2000)). Here, Nelson was the sole shareholder of KDN. The 

Nelson Parties assert that Nelson was within her rights to spend the money KDN had been paid 

since the company’s only contract was with WinCo and the work had concluded in 2010. This 

argument does not account for the district court’s finding that that there was overwhelming 

evidence that the Nelson Parties’ withdrawal of KDN’s funds were not legitimate KDN 

expenses, and they were not properly accounted for in KDN, KD3, or SealSource’s accounting 

records. KDN’s status as an S-Corporation cannot insulate the Nelson Parties from alter ego 

liability when there is evidence that such disregard for the corporate form has occurred. Further, 

the district court’s finding highlights the fact that KDN, KD3, SealSource and Nelson were so 

intertwined in their interest and ownership that their separate personalities no longer existed, 

making alter ego liability appropriate. The district court’s holding is affirmed.

D. WinCo is awarded attorney fees and costs on appeal.

WinCo requests attorney fees on appeal under Idaho Code sections 12-120(3) and 12-

121. “When a party prevails at both trial and on appeal, and that party received an award of 

attorney fees under Idaho Code section 12-120(3) at the trial level and the award is affirmed on 

appeal, that party is also entitled to an award of attorney fees for the appeal pursuant to Idaho 

Code section 12-120(3).” Idaho Transp. Dep’t v. Ascorp, Inc., 159 Idaho 138, 142, 357 P.3d 863, 

867 (2015). As the prevailing party, WinCo is entitled to attorney fees under Idaho Code section 

12-120(3). 

VI. CONCLUSION

We affirm the district court’s judgment and award WinCo costs and attorney fees on 

appeal. 

Chief Justice BURDICK, Justices HORTON, BEVAN, and Justice Pro Tem DUNN 

CONCUR.