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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37965

CITY OF OSBURN,

 Plaintiff-Respondent,

v.

DAVID C. RANDEL and PAMELA L. 

RANDEL, husband and wife,

 Defendants-Appellants.

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Boise, April 2012 Term

2012 Opinion No. 72

Filed: April 26, 2012

Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District of the State of Idaho, 

Shoshone County. Hon. Fred M. Gibler, District Judge.

The decision of the district court is affirmed.

Madsen Law Office, P.C., Coeur d’Alene, for appellants. Henry D. Madsen 

argued.

Ramsden & Lyons, LLP, Coeur d’Alene, for respondent. Christopher D. Gabbert 

argued.

_____________________

J. JONES, Justice.

David and Pamela Randel appeal the denial of their request for attorney fees under I.C. § 

12-117, following the dismissal of a zoning enforcement action brought against them by the City 

of Osburn (City). The district court found the Randels to be the prevailing party but held they were 

not entitled to a fee award because the City had not pursued the action frivolously or without 

foundation. The Randels appeal to this Court and we affirm.

I.

BACKGROUND

On August 14, 2007, the City’s attorney wrote to the Randels to notify them they were in 

violation of City zoning ordinances. The City took issue with “two (2) storage sheds on the lot that 

[the Randels] own east of [their] home which is situated at 1263 East Larch, Osburn, Idaho.” The 

City noted that the Randels’ home was on “Lot 15 of Block 6, Dunkle’s Third Addition,” and their 
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“storage sheds are located on Lot 16 (a portion thereof, which [the Randels] own) of Block 6, 

Dunkle’s Third Addition.” According to the City, its zoning ordinances “do not allow for 

accessory uses, such as the storage sheds, without a primary building or residence also being 

constructed on the same lot.” The City demanded the Randels remove the sheds within two weeks 

of receiving the letter or the City would file a “criminal and/or civil action against [the Randels] to 

compel [the sheds’] removal.” 

The Randels promptly responded in a letter, that, “[y]es, [they] did add two (2) temporary 

storage buildings to the side yard of [their] property at 1263 East Larch Avenue, Osburn, ID.” 

But, the Randels explained: they understood their property to be a single parcel; they purchased the 

property as a single parcel; and the recorded deed to the property evidenced a single parcel. 

The City then filed this action, seeking to compel the Randels to remove the sheds. The 

City moved for summary judgment, supporting its motion with the affidavit of Nila Jurkovich, the 

City Clerk. The Randels opposed the City’s motion with several affidavits, including those of the 

Randels themselves, a land surveyor, and the Shoshone County Assessor. Neither the City nor the 

Randels submitted briefs in support of their positions. The district court denied the City’s motion 

because it determined there was a genuine issue of material fact. At a status conference several 

months later, the City moved to dismiss its action, and the court dismissed with prejudice. The 

Randels moved for costs and attorney fees under I.C. §§ 12-117, 12-120, 12-121, which the court 

denied. After the Randels’ motion for reconsideration, however, the court granted costs but still 

denied fees. In their motion for reconsideration, the Randels focused their argument for fees on I.C. 

§ 12-117 and a private attorney general theory. With respect to the Randels’ Section 12-117 

argument, the court determined they were the prevailing party, but concluded that the City did not 

pursue the action “frivolously or without foundation.” The court therefore denied the Randels’ fee 

request.1

 The Randels timely appealed from that decision.2

 

1 As for the Randels’ private attorney general theory, the district court concluded the Randels failed to prove this 

litigation benefited the public, and the court therefore denied fees on that basis. The private attorney general issue is 

not important to this Court’s analysis, however, because the Randels do not pursue that theory here. Moreover, “I.C. 

§ 12-117 is the exclusive means for awarding attorney fees for the entities to which it applies.” Potlatch Educ. 

Ass’n v. Potlatch Sch. Dist. No. 285, 148 Idaho 630, 635, 226 P.3d 1277, 1282 (2010).

2 The district court entered a judgment dismissing the case on March 16, 2011 nunc pro tunc June 29, 2010. 
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II.

ISSUES ON APPEAL

I. Were the Randels entitled to fees in district court?

II. Is either party entitled to fees on appeal?

III.

STANDARD OF REVIEW

This Court has considered and applied several different standards of review when 

considering appeals from a district court’s decisions applying I.C. § 12-117. See Rincover v. 

State, Dep’t of Fin., 132 Idaho 547, 548–49, 976 P.2d 473, 474–75 (1999) (explaining that the 

Court has variously applied an abuse of discretion standard, a clearly erroneous standard, and a

de novo standard in I.C. § 12-117 cases). In Rincover, the Court settled on the de novo or free 

review standard. Id. at 549, 976 P.2d at 475. We subsequently applied the free review standard 

in the cases where we considered the district courts’ application of I.C. § 12-117. 

However, in Halvorson v. N. Latah Cnty. Highway Dist., 151 Idaho 196, 254 P.3d 497 

(2011), we took a different tack. There, we reviewed the district court’s fee award for abuse of 

discretion. Id. at 208, 254 P.3d at 509. That approach is preferable to a de novo review because:

(1) the Legislature specifically provided that the court shall award Section 12-117 attorney fees 

“if it finds” the nonprevailing party acted without reasonable basis in fact or law, indicating the 

determinative finding was to be made by the trial court; and (2) Section 12-117 speaks in terms 

of the “reasonableness” of the losing party’s actions, which implies a measure of objectivity, and 

which is properly left to the district court’s reasoned judgment. We review decisions applying 

other attorney statutes for an abuse of discretion, see, e.g., Taylor v. McNichols, 149 Idaho 826, 

848, 243 P.3d 642, 664 (2010) (reviewing an award under I.C. § 12-121), and we now make 

clear that I.C. § 12-117 is subject to the same standard. Our prior holdings to the contrary in 

Rincover and its progeny are hereby overruled in this respect.

3 We therefore review the district 

court’s decision denying the Randels’ fee request for an abuse of discretion.

 

3 These cases include: Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley Cnty., 132 Idaho 551, 558, 

976 P.2d 477, 484 (1999); Treasure Valley Concrete, Inc. v. State, 132 Idaho 673, 678, 978 P.2d 233, 238 (1999); 

State, Dep’t of Fin. v. Res. Serv. Co., Inc., 134 Idaho 282, 283, 1 P.3d 783, 784 (2000); Stacey v. Dep’t of Labor, 

134 Idaho 727, 731, 9 P.3d 530, 534 (2000); Rogers v. Gooding Pub. Joint Sch. Dist. No. 231, 135 Idaho 480, 483, 

20 P.3d 16, 19 (2001); Farrell v. Bd. of Comm’rs, Lemhi Cnty., 138 Idaho 378, 383, 64 P.3d 304, 309 (2002); Eacret 

v. Bonner Cnty., 139 Idaho 780, 788, 86 P.3d 494, 502 (2004); Reardon v. Magic Valley Sand & Gravel, Inc., 140 

Idaho 115, 118, 90 P.3d 340, 343 (2004); In re Estate of Elliott, 141 Idaho 177, 183, 108 P.3d 324, 330 (2005); Ater 

v. Idaho Bureau of Occupational Licenses, 144 Idaho 281, 286, 160 P.3d 438, 443 (2007); Ralph Naylor Farms, 
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IV.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED THE 

RANDELS’ FEE REQUEST UNDER I.C. § 12-117.

Idaho Code § 12-117 provides:

[I]n any . . . civil judicial proceeding involving as adverse parties a . . . political 

subdivision and a person, the . . . court . . . shall award the prevailing party 

reasonable attorney’s fees, witness fees, and other reasonable expenses, if it finds 

that the nonprevailing party acted without a reasonable basis in fact or law. 

I.C. § 12-117(1). For purposes of this statute, a city is a “political subdivision.” I.C. § 12-

117(4)(a). 

It is important to highlight I.C. § 12-117’s requirement that a losing party must act “without 

a reasonable basis in fact or law” before fees can be awarded. See Lake CDA Investments LLC v. 

Idaho Dep’t of Lands, 149 Idaho 274, 284, 233 P.3d 721, 731 (2010) (explaining the requirement 

that a losing party act unreasonably in the litigation before I.C. § 12-117 applies). Furthermore, 

this Court interpreted I.C. § 12-117 to require a fee award where a government entity acts without 

a reasonable factual or legal basis. Rincover, 132 Idaho at 549, 976 P.2d at 475. In Rincover, the 

Court focused on the mandatory nature of the statute’s language: “the court shall award fees.” Id.

(emphasis in original). 

The Randels were the prevailing party so, if the City brought this action unreasonably, the 

Randels are entitled to fees. The City alleged that the Randels unlawfully added the sheds to a lot 

that was separate from the lot where the Randels’ house was located. According to the City, “[t]he 

[City’s] zoning ordinances do not allow for accessory uses, such as the storage sheds, without a 

primary building or residence also being constructed on the same lot.” In support of its summary 

judgment motion, the City relied on Nila Jurkovich’s affidavit, which asserted that the Randels’ 

house was built on one platted lot, while the sheds were built on an adjacent platted lot. According 

to the uncontroverted affidavits of the Randels and the Shoshone County Assessor: the Randels’ 

property was a single parcel composed of several lots and portions of lots; the Randels were 

granted their property via a single deed; and the Randels’ property is assessed for tax purposes as a 

single parcel. The record suggests that the City had previously taken the position that the Randels 

 

LLC v. Latah Cnty., 144 Idaho 806, 808, 172 P.3d 1081, 1083 (2007); Gardiner v. Boundary County Bd. of Com'rs, 

148 Idaho 764, 769, 229 P.3d 369, 374 (2010); Zingiber Inv., LLC v. Hagerman Highway Dist., 150 Idaho 675, 686, 

249 P.3d 868, 879 (2011).
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would have to subdivide their property if they wished to sell it in portions. 

The Randels contend the City pursued the litigation frivolously because its claim was based 

on an unreasonable reading of the City’s zoning ordinance. A fee award is appropriate under 

Section 12-117 where a political subdivision “ignore[s] the plain and unambiguous language of a 

statute or ordinance.” Gardiner v. Boundary County Bd. of Comm’rs, 148 Idaho 764, 769, 229 P.3d 

369, 774 (2010). On the other hand, the City cites Rincover for the proposition that a governmental 

agency does not act without a reasonable basis in fact or law when its interpretation of a statute that 

has not been previously construed by the courts is incorrect, but not unreasonable. 132 Idaho at 

550, 976 P.2d at 476. 

The question, then, is whether the City unreasonably construed the language of the zoning 

ordinance. The pertinent language of the ordinance reads:

“Lot” means the parcel of land on which a principal use or building and its 

accessory buildings are placed, together with the required open spaces. For the 

purposes of determining the location of required yards, a lot shall be considered to 

be as shown on the official recorded plat of the property.

This language and the surrounding circumstances lend support to both parties’ interpretation of the 

meaning of “lot.”

One can read the definition, as the Randels do, to mean that a parcel previously recognized 

by the City, even though it contains parts of two or more lots, may be considered a single lot. This 

is so because the language defining a lot is not entirely clear, the City’s Building Inspector 

apparently advised the Randels that they would not violate the zoning ordinance by placing the 

buildings on Lot 16, the City apparently made no objection to the combining of the portions of the 

two lots, the property was assessed for tax purposes as a single parcel, and the City had apparently 

taken the position that the Randels would have to subdivide their parcel if they wished to sell 

portions of it. On the other hand, the City’s interpretation is also reasonable, because the definition

refers to the recorded plat and there is nothing on the plat to indicate that a lot is equivalent to a 

parcel that may contain parts of more than one lot. And, just because the definition includes the 

word “parcel,” that does not necessarily mean a parcel extends beyond the boundaries of a platted 

lot. To remove any ambiguity, the ordinance definition might have simply stated that a “lot” means 

“a parcel of land as shown on the official recorded plat of the property.” Nevertheless, the City’s 

interpretation of the definition was certainly not unreasonable. The district court did not 

specifically address the interpretation of the ordinance in concluding that Section 12-117 fees were
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not appropriate, but the court did adequately analyze the fee issue. 

The district court did not abuse its discretion in this case. The court recognized that I.C. § 

12-117 requires a losing party to have acted frivolously or without foundation before fees may be 

awarded. The court discussed that, having considered the parties’ arguments and the issues raised, 

it “remain[ed] convinced that the action was not brought frivolously or without foundation.” That 

conclusion is eminently reasonable, especially since the City moved to dismiss the action when it 

failed to prevail on its motion for summary judgment. The court was presented with relatively 

little information about the merits of the action, and the arguments it did consider were fairly 

characterized as non-frivolous. The court acted within the bounds of its discretion and reached its 

decision through an exercise of reason. It, therefore, did not abuse its discretion when it denied the 

Randels’ fee request.

V.

NEITHER PARTY IS ENTITLED TO FEES ON APPEAL

Both parties request fees on appeal under I.C. § 12-117. The Randels alternatively seek 

fees on appeal under I.C. § 12-121. Section 12-117 authorizes fees to the prevailing party on 

appeal. Daw v. Schools Dist. 91 Bd. of Trustees, 136 Idaho 806, 808, 41 P.3d 234, 236 (2001). 

The Court employs a two-part test for I.C. § 12-117 on appeal: the party seeking fees must be the 

prevailing party and the losing party must have acted without a reasonable basis in fact or law. Id. 

Here, the City is the prevailing party, but the Randels did not pursue this appeal without a 

reasonable basis in fact or law. So, neither party is entitled to fees on appeal under I.C. § 12-117.

Furthermore, “I.C. § 12-117 is the exclusive means for awarding attorney fees for the entities to 

which it applies.” Potlatch Educ. Ass'n, 148 Idaho at 635, 226 P.3d at 1282. Thus, even if the 

Randels prevailed, they would not be entitled to fees under I.C. § 12-121.

VI.

CONCLUSION

We affirm the district court’s order denying the Randels attorney fee request, and we 

deny fees on appeal. Each party shall bear its own costs on appeal.

Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.