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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 34763/35154

SCOTT BERG, as Guardian Ad Litem, for 

TRACEY BERG, a minor, 

 

 Plaintiffs, 

 

and 

 

STACEY BERG, as next friend for TRACEY 

BERG, a minor, 

 

 Aggrieved Party-Appellant, 

 

v. 

 

ALYSSA KENDALL, individually and J. 

DOE, individually, 

 

 Defendants-Respondents.

 

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Boise June 2009 Terms

2009 Opinion No. 97

Filed: July 9, 2009

Stephen W. Kenyon, Clerk

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

Minidoka County. Hon. John K. Butler, District Judge.

District courts dismissal of motion for relief under Rule 60(b)(6) and dismissal 

with prejudice based on claim preclusion, reversed and remanded.

Seiniger Law Offices, Boise, for appellants. William Breck Seiniger argued.

Carty Law, Boise, for appellant. Stuart Waller Carty appeared.

Merrill & Merrill, Pocatello, for respondents. Thomas J. Lyons argued.

__________________________________

BURDICK, Justice

This appeal involves the claims of Appellant Tracey Berg, a minor child, who sustained 

injuries when she was struck by a vehicle driven by Respondent Alyssa Kendall. In Berg I, Scott 

Berg, Tracey‟s father, filed a complaint on Tracey‟s behalf as her guardian ad litem. The district 

court dismissed this complaint with prejudice. Tracey and her mother Stacey Berg, appearing as 

Tracey‟s next friend (collectively Appellants), filed an I.R.C.P. 60(b) motion for relief, 

requesting the district court to modify its dismissal to one without prejudice. The district court 
2

denied their motion. The Appellants then filed a complaint against Kendall in Berg II, which the 

district court dismissed with prejudice on the basis of claim preclusion. Appellants now appeal 

from the district court‟s denial of their Rule 60(b) motion for relief in Berg I, and from the 

district court dismissal of their complaint with prejudice in Berg II. We reverse the district 

court‟s denial of Appellants‟ motion for relief under I.R.C.P. 60(b)(6) in Berg I, and accordingly 

reverse the district court‟s denial in Berg II. We remand for further proceedings in these cases. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 6, 2003, Tracey Berg, a minor child eleven years old at the time, was walking 

alongside a public highway in Hailey, Idaho, when she was struck from behind by a vehicle 

driven by Kendall. As a result of the accident, Tracey sustained multiple fractures to her left leg 

and fractured her lower back. 

On June 30, 2005, Scott Berg filed a complaint against Kendall on behalf of his daughter 

Tracey as her guardian ad litem (Berg I). At all times relevant to this action, Mr. Berg and his

family have resided in Nebraska. Mr. Berg hired Elizabeth Burr-Jones, an Idaho attorney, to 

represent Tracey‟s interests in the litigation. Over the following year, Ms. Burr-Jones was 

unable to remain in contact with Mr. Berg. On January 5, 2007, Ms. Burr-Jones filed a motion to 

withdraw1as the plaintiffs‟ attorney of record, which contained notice of a telephone hearing on 

the motion scheduled for January 9, 2007. A copy of this motion was mailed to Mr. Berg. 

During the January 9, 2007 hearing, the district court informed Ms. Burr-Jones that Mr. Berg 

was entitled to fourteen days notice of the hearing on her motion to withdraw.2 Accordingly, the 

district court rescheduled the hearing for January 23, 2007, exactly fourteen days later, and the 

clerk‟s entry in the Register of Actions indicates that an amended notice of hearing was sent to 

Mr. Berg. However, there is no evidence of the notice in the record.

During the January 23, 2007 hearing, Ms. Burr-Jones stated that she had no contact with 

Mr. Berg. Ms. Burr-Jones also indicated that she had received calls from a law firm in Boise 

interested in taking the case, but that there had been no substitution of counsel as of yet. Based 

on the information presented at the hearing, the district court granted Ms. Burr-Jones‟s motion to 

 

1

Although in this motion and other court filings Ms. Burr-Jones referred to Scott and Tracey Berg as “plaintiffs,” 

Mr. Berg filed suit solely on behalf of Tracey in a representative capacity. Mr. Berg did not seek damages on his 

own behalf in Berg I, nor did Mrs. Berg seek damages on her own behalf in Berg II. Therefore, this opinion does 

not address any claims either of the parents may have personally had against Kendall.

2

The Honorable John K. Butler presided over Berg I. 
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withdraw. On February 2, 2007, the district court entered an order permitting Ms. Burr-Jones 

leave to withdraw as the plaintiffs‟ counsel of record. 

Ms. Burr-Jones sent a copy of the court‟s order to Mr. Berg via certified mail on February 

9, 2007. The order stated that the plaintiffs had twenty days from the date of service to file a 

notice of appearance or other pleading identifying themselves or substitute counsel, and that 

failure to comply with this requirement would be sufficient grounds for dismissal of the action 

with prejudice. Despite the warning, no written appearance was made. Accordingly, on March 

6, 2007, the district court entered an order dismissing the complaint with prejudice. 

On August 22, 2007, Tracey, through her mother Stacey Berg as Tracey‟s next friend, 

filed a motion for relief under Idaho Rule of Civil Procedure 60(b)(1), (5) and (6), requesting that 

the district court modify its dismissal to one without prejudice. A hearing on Appellants‟ motion 

was held on September 25, 2007. On October 5, 2007, the district court entered its memorandum 

decision, denying Appellants‟ motion on all grounds. 

On December 2, 2007, Mrs. Berg, on behalf of Tracey as her next friend, filed a 

complaint against Kendall (Berg II). In response, Kendall filed a motion to dismiss based on the 

doctrine of res judicata. On March 5, 2008, the district court granted Kendall‟s motion to 

dismiss, holding the elements for claim preclusion were met and, therefore, Appellants were 

barred from filing a claim in Berg II.

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 The district court subsequently entered an order 

dismissing the matter with prejudice. 

Appellants now appeal from the district court‟s denial of their motion for relief in Berg I

under I.R.C.P. 60(b)(1) and (6). Appellants also request relief on appeal under I.R.C.P. 60(b)(4), 

arguing the district court‟s dismissal with prejudice is void. In addition, Appellants appeal from 

the district court‟s dismissal of their complaint with prejudice in Berg II based on res judicata. 

II. ANALYSIS

Appellants argue the district court abused its discretion in Berg I by denying their motion 

for relief under Rule 60(b)(1) and (6). Appellants also argue that they are entitled to relief as a 

matter of law under Rule 60(b)(4) because the district court‟s dismissal with prejudice is void. 

Appellants argue the judgment is void because the court did not appoint Mr. Berg as Tracey‟s 

 

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The Honorable Michael R. Crabtree presided over Berg II. 
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guardian ad litem as required by I.R.C.P. 17(c)4and I.C. § 5-306,5and because Tracey‟s parents 

did not sue together on her behalf as required by I.C. § 5-310.6 

In addition, Appellants argue the district court abused its discretion in Berg II by 

dismissing their complaint with prejudice on the basis of claim preclusion. Appellants argue that

under Idaho law, a minor is not bound by a judgment where no guardian ad litem has been 

appointed. Appellants also urge this Court to adopt section 42 of the Restatement (Second) of 

Judgments, under which a person is not bound by a judgment for or against a party who purports 

to represent him if “[t]he representative failed to prosecute or defend the action with due 

diligence and reasonable prudence, and the opposing party was on notice of facts making that 

failure apparent.” Restatement (Second) of Judgments § 42(1)(e). 

We hold that the district court did not abuse its discretion in denying Appellants‟ motion 

for relief under Rule 60(b)(1), but that the court did abuse its discretion in denying relief under 

 

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Idaho Rule of Civil Procedure 17(c) states:

Whenever an infant or incompetent person has a representative, such as a general guardian, 

committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of 

the infant or incompetent person. If an infant or incompetent person does not have a duly 

appointed representative the person may sue by a next friend or by a guardian ad litem. The court 

shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in 

an action or shall make such other order as it deems proper for the protection of the infant or 

incompetent person.

 (Emphasis added). 

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Idaho Code § 5-306 states:

When an infant or an insane or incompetent person is a party, he must appear either by his general 

guardian or by a guardian ad litem appointed by the court in which the action is pending in each 

case, or by a judge thereof, or a probate judge. A guardian ad litem may be appointed in any case 

when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge 

thereof, expedient, to represent the infant, insane or incompetent person in the action or 

proceeding, notwithstanding he may have a general guardian and may have appeared by him.

(Emphasis added).

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Idaho Code § 5-310 states:

The parents may maintain an action for the injury of an unmarried minor child, and for the injury 

of a minor child who was married at the time of his injury and whose spouse died as a result of the 

same occurrence and who leaves no issue, and a guardian for the injury of his ward, when such 

injury is caused by the wrongful act or neglect of another, but if either the father or mother be 

dead or has abandoned his or her family, the other is entitled to sue alone. Such action may be 

maintained against the person causing the injury, or if such person be employed by another person, 

who is responsible for his conduct, also against such other person. 

(Emphasis added). 
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Rule 60(b)(6).7 As such, there is no need for us to address whether Appellants are entitled to 

relief as a matter of law under Rule 60(b)(4). Furthermore, because this Court has reversed the 

dismissal of Berg I, there is no basis for claim preclusion, and Berg II is reinstated as a cause of 

action.8 

A. Appellants’ Motion for Relief under Rule 60(b). 

Appellants argue the district court abused its discretion in Berg I by denying their Rule 

60(b) motion for relief under various grounds. In determining the appropriate standard of review 

for a motion for relief under Rule 60(b), the Court must consider what subsection of the rule is 

being invoked. “Where discretionary grounds are invoked, the standard of review is abuse of 

discretion.” Knight Ins., Inc. v. Knight, 109 Idaho 56, 59, 704 P.2d 960, 963 (Ct. App. 1985). 

Accordingly, the Court must examine: “(1) whether the trial court correctly perceived the issue 

as one of discretion; (2) whether the trial court acted within the boundaries of its discretion and 

consistently with the legal standards applicable to the specific choices available to it; and (3) 

whether the trial court reached its decision by an exercise of reason.” Win of Michigan, Inc. v. 

Yreka United, Inc., 137 Idaho 747, 753, 53 P.3d 330, 336 (2002). However, where 

nondiscretionary grounds are asserted, the question presented is one of law, upon which the 

Court exercises free review. Knight Ins., 109 Idaho at 59, 704 P.2d at 963. 

1. The district court did not abuse its discretion in denying Appellants’ motion 

 for relief under Rule 60(b)(1). 

First, Appellants argue the district court abused its discretion in denying their motion for 

relief under I.R.C.P. 60(b)(1), which provides that a judgment may be set aside on the grounds of 

“mistake, inadvertence, surprise, or excusable neglect.” This Court reviews the district court‟s 

 

7 We note that in fairness to the district court, this Court has infrequently found reason to grant relief under Rule 

60(b)(6). See, e.g., Campbell v. Kildew, 141 Idaho 640, 646-48, 115 P.3d 731, 737-39 (2005) (Court affirming the 

district court‟s decision to set aside a judgment confirming a sham arbitration award under Rule 60(b)(6) because it 

constituted fraud upon the court); Hopkins v. Troutner, 134 Idaho 445, 447-48, 4 P.3d 537, 559-60 (2000) (Court 

affirming the district court‟s decision to grant Hopkins relief under Rule 60(b)(6) from the Release of All Claims 

and Indemnity Agreement and Stipulation for Dismissal with Prejudice based on counsel‟s representations to

Hopkins that constituted overreaching); Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 856, 555 P.2d 393, 396 (1976) 

(Court affirming the district court‟s order granting relief from the default judgment entered against the defendant 

under Rule 60(b)(6) where the defendant raised serious questions regarding whether the court had jurisdiction to 

enter the judgment against him); Radioear Corp. v. Crouse, 97 Idaho 501, 503, 547 P.2d 546, 548 (1975) (Court 

affirming the magistrate court‟s order to set aside the default judgment against Crouse in part under Rule 60(b)(6) 

because Crouse did not have notice of the application for the default judgment nor did he have notice of the entry of 

the default judgment). 
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dismissal of Appellants‟ Rule 60(b)(1) motion for relief for abuse of discretion. See Knight Ins.,

109 Idaho at 58-59, 704 P.2d at 962-63. Mistake or inadvertence referred to in Rule 60(b)(1) 

applies primarily to errors or omissions committed by an attorney or by the court that are not 

apparent in the record. Silsby v. Kepner, 140 Idaho 410, 411, 95 P.3d 28, 29 (2004). Any claim 

of mistake must be a mistake of fact and not a mistake of law. Gro-Mor, Inc. v. Butts, 109 Idaho 

1020, 1023, 712 P.2d 721, 724 (Ct. App. 1985). “The conduct constituting excusable neglect 

must be that which would be expected of a reasonably prudent person under the same 

circumstances.” Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005). 

Appellants argue the district court‟s failure to give Mr. Berg notice of the January 23rd 

hearing on Ms. Burr-Jones‟s motion to withdraw was a mistake of fact, which made Mr. Berg‟s 

failure to appear at that hearing excusable as a matter of law. Idaho Rule of Civil Procedure 

11(b), which governs the procedure an attorney must follow to withdraw, states in pertinent part: 

“[N]o attorney may withdraw as an attorney of record for any party to an action without first 

obtaining leave and order of the court upon a motion filed with the court, and a hearing on the 

motion after notice to all parties to the action, including the client of the withdrawing attorney.” 

I.R.C.P. 11(b)(2). The notice of the hearing on the motion to withdraw must be served in 

compliance with I.R.C.P. 7(b)(3)(A), which requires that notice be served so as to be received by 

the parties no later than fourteen days before the hearing. McClure Eng’g, Inc. v. Channel 5 

KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006); see also Parkside Sch., Inc. v. 

Bronco Elite Arts & Athletics, LLC, 145 Idaho 176, 178, 177 P.3d 390, 392 (2008). 

 Appellants are correct that Mr. Berg did not receive adequate notice of the January 23rd 

hearing on Ms. Burr-Jones‟s motion to withdraw. Although notice of the January 9th hearing 

was mailed to Mr. Berg on January 5, 2007, there is no evidence in the record that notice of the 

January 23rd hearing was mailed to Mr. Berg. Even if we were to assume that the district court 

mailed the amended notice of the January 23rd hearing to Mr. Berg based on the clerk‟s entry in 

the Register of Actions, the notice was sent on January 9th—exactly fourteen days before the 

hearing. As set forth above, the notice must be served so as to be received by the parties no later 

than fourteen days before the hearing. I.R.C.P. 7(b)(3)(A). Seeing that Mr. Berg lives in 

Nebraska, we can reasonably presume that notice was inadequate. Furthermore, there is no 

 

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Although Appellants filed their claim in Berg II over four years from the date of the accident, the statute of 

limitations issue was not raised before this Court and, therefore, will not be addressed on appeal.
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evidence that Ms. Burr-Jones made an ex parte application to shorten time for the hearing on her 

motion to withdraw to get around the fourteen days notice requirement under I.R.C.P. 

7(b)(3)(A). See id. 

However, Appellants have failed to demonstrate Mr. Berg‟s inadequate notice of the 

January 23rd hearing on the motion to withdraw was the cause of the claimed prejudice. Idaho 

Rule of Civil Procedure 61 requires that the Court, at every stage of the proceeding, “must 

disregard any error or defect in the proceeding which does not affect the substantial rights of the 

parties.” “Accordingly, untimely notice of a hearing requires no relief on appeal unless the 

aggrieved parties show that the untimeliness of the notice prejudiced them in some way.” 

McClure Eng’g, 143 Idaho at 955, 155 P.3d at 1194. The record in this case demonstrates that 

Mr. Berg did not participate in the litigation—he failed to remain in contact with his counsel, he 

did not respond to Kendall‟s written discovery requests along with two court orders compelling 

him to respond, and he did not appear for his deposition. There is nothing in the record to 

suggest that if Mr. Berg had received proper notice he would have participated in the January 

23rd hearing on Ms. Burr-Jones‟s motion to withdraw. 

Furthermore, the requirements of I.R.C.P. 11(b)(3) were strictly complied with in this 

case. Idaho Rule of Civil Procedure 11(b)(3) provides in pertinent part that if an attorney is 

permitted to withdraw, the court must enter an order permitting the attorney to withdraw and 

directing the attorney‟s client to make a notice of appearance within twenty days from the date of 

service or mailing or else the action may be dismissed with prejudice without any further notice. 

This Court has held that strict compliance with Rule 11(b)(3) is required to obtain a valid 

judgment. Wright v. Wright, 130 Idaho 918, 921, 950 P.2d 1257, 1260 (1998). This rule ensures 

that a party is adequately protected from the harsh result that his or her case be dismissed with 

prejudice, not because the party has failed to prosecute or defend the claim, but because the party 

has failed to take the additional step of making a written appearance to prosecute or defend the 

claim. Here, a copy of the order permitting Ms. Burr-Jones‟s withdrawal was mailed to Mr. Berg 

via certified mail on February 9, 2007. The order clearly stated that Mr. Berg had twenty days 

from the date of service to make a written appearance or else the case could be dismissed with 

prejudice without any further notice. However, Mr. Berg did not respond. Accordingly, the 

district court dismissed the case with prejudice on March 6, 2007, twenty-five days later. We 

find that strict compliance with I.R.C.P. 11(b)(3) was met in this case. Therefore, because 
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Appellants failed to demonstrate prejudice stemming from inadequate notice of the January 23rd 

hearing on Ms. Burr-Jones‟s motion to withdraw, we hold the district court did not abuse its 

discretion in denying Appellants‟ Rule 60(b)(1) motion for relief. 

Appellants also argue the district court abused its discretion in failing to recognize that 

relief should be granted in doubtful cases. In the district court‟s memorandum decision denying 

Appellants‟ motion for relief, the court took notice of the fact that judgments by default are not 

favored and that relief should be granted in doubtful cases in order to decide the case on the 

merits. The district court then considered the Appellants‟ arguments, including the evidence 

presented in Mr. Berg‟s affidavit explaining why he did not respond to the court‟s order

permitting Ms. Burr-Jones‟s withdrawal. Mr. Berg stated that he “did not remember ever getting 

any notice that [his] attorney was withdrawing because either [his] rural mail was mixed up and 

sent to a neighbor or because [he] got so many legal papers [he] did not know what any of them 

meant.” In applying the criteria set forth in Rule 60(b)(1), the district court appropriately 

determined that Mr. Berg‟s conduct was not legally excusable and was not inadvertent, and 

accordingly denied Appellants‟ Rule 60(b)(1) motion for relief. This Court has held that “[i]f the 

trial court applies the facts in a logical manner to the criteria set forth in Rule 60(b), while 

keeping in mind the policy favoring relief in doubtful cases, the court will be deemed to have 

acted within its discretion.” Waller v. State, Dept. of Health & Welfare, 146 Idaho 234, __, 192 

P.3d 1058, 1062 (2008) (quoting Idaho State Police ex rel. Russell v. Real Prop. Situated in the 

County of Cassia, 144 Idaho 60, 62, 156 P.3d 561, 563 (2007)). Therefore, we hold the district 

court acted within the bounds of its discretion in denying Appellants‟ motion for relief under 

Rule 60(b)(1). 

2. The district court abused its discretion in denying Appellants’ motion for relief 

 under Rule 60(b)(6). 

Next, Appellants argue the district court abused its discretion in denying their motion for 

relief under I.R.C.P. 60(b)(6). This rule authorizes modification of a judgment for “any other 

reason justifying relief from the operation of the judgment.” I.R.C.P. 60(b)(6)). This Court 

reviews a trial court‟s dismissal of a Rule 60(b)(6) motion for relief for abuse of discretion. See 

Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 856, 555 P.2d 393, 396 (1976). “[A]lthough the 

court is vested with broad discretion in determining whether to grant or deny a Rule 60(b)[(6)]

motion, its discretion is limited and may be granted only on a showing of „unique and 
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compelling circumstances‟ justifying relief.” Miller v. Haller, 129 Idaho 345, 349, 924 P.2d 

607, 611 (1996) (quoting Matter of Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 

(Ct. App. 1990)). The appellate courts of this state have infrequently granted relief under Rule 

60(b)(6). 

Appellants argue they are entitled to relief under Rule 60(b)(6) based on Mr. Berg‟s 

failure to comply with the provisions under I.R.C.P. 17(c) and I.C. § 5-306 that he be appointed 

as Tracey‟s guardian ad litem. However, we find that this reason does not constitute a unique 

and compelling circumstance justifying relief. In the instant case, Mr. Berg chose to initiate suit 

on Tracey‟s behalf as her guardian ad litem rather than as her parent; however, Mr. Berg did not 

follow the procedural requirements under I.R.C.P. 17(c) and I.C. § 5-306 that he be appointed

by the court.9 Rather than placing the burden on the trial court to ensure that a guardian ad litem 

is appointed, we find that the better rule is to place the burden on the parent seeking to represent 

his or her minor child in the capacity as a guardian ad litem. Thus, where a parent fails to apply 

for court appointment as his or her minor child‟s guardian ad litem, the Court will not grant relief 

under Rule 60(b)(6) based on this technical error. 

Appellants also argue that a parent‟s failure to prosecute an action on behalf of a minor 

child is a reason justifying relief under Rule 60(b)(6).10 The record demonstrates that Mr. Berg 

ignored discovery requirements, motions, notices of hearing, and multiple court orders. His 

failure to prosecute the action on behalf of his daughter caused Tracey the loss of an opportunity 

to present her claim in Berg I and Berg II. Importantly, as the district court found, Tracey had a 

meritorious claim at the time of dismissal. She was a pedestrian struck from behind by a vehicle 

operated by Kendall. The accident allegedly left her with serious injuries and approximately 

$95,000 in medical bills. Thus, at no fault of her own, Tracey was deprived of a meaningful 

opportunity to present this claim. Therefore, we hold that in cases such as this where a person 

 

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This Court has held that the failure to appoint a guardian ad litem for a minor before the bringing of an action is a 

matter of procedure and not of jurisdiction. See Trask et al. v. Boise King Placers Co., 26 Idaho 290, 299, 142 P. 

1073, 1075 (1914); see also Trolinger v. Cluff, 56 Idaho 570, 576, 57 P.2d 332, 334 (1936) (quoting 14 R.C.L. p. 

286, § 54). 

10 Kendall asserts that this argument was not raised below. Although it was not formally raised, it was implicitly 

raised in the affidavits attached to Appellants‟ Memorandum in Support of Motion for Relief from Order Dismissing 

Case with Prejudice. In fact, the district court found in pertinent part that Appellants‟ argument under Rule 60(b)(6) 

could “only be construed to mean that any time a parent or natural guardian fails . . . to prosecute an action on behalf 

of the minor child for any reason relief should be granted.” Although we agree that this standard would be too broad 

to grant relief under Rule 60(b)(6), we find the facts of this case present a much narrower circumstance. 
10

lacking the capacity to sue or be sued is represented in an action, whether by a natural guardian, 

guardian ad litem, or next friend, and the representative completely fails to prosecute a 

meritorious claim that results in the claim being dismissed with prejudice, relief may be granted 

under Rule 60(b)(6). Accordingly, we reverse the district court‟s dismissal of Appellants‟ 

motion for relief under Rule 60(b)(6). 

B. Attorney Fees on Appeal 

Kendall requests attorney fees on appeal pursuant to I.C. §§ 12-121 and 12-123. Under 

I.C. § 12-121, the Court may award reasonable attorney fees to the prevailing party in a civil 

action if we are left with the abiding belief that the appeal was brought or defended frivolously, 

unreasonably or without foundation. Cramer v. Slater, 146 Idaho 868, __, 204 P.3d 508, 521 

(2009). Because Kendall did not prevail in this case, we deny her request for fees under I.C. § 

12-121. Furthermore, attorney fees are not available in appellate cases under I.C. § 12-123. Bird 

v. Bidwell, 2009 WL 149264126 *3 (2009). Therefore, we deny Kendall‟s request for fees under 

this provision as well. 

III. CONCLUSION

For the reasons set forth above, we reverse the district court‟s dismissal of Appellants‟ 

motion for relief under Rule 60(b)(6) in Berg I and the district court‟s dismissal of Appellants‟ 

complaint in Berg II, and remand for further proceedings in these cases. We also deny Kendall‟s 

request for attorney fees on appeal under I.C. §§ 12-121 and 12-123. Costs to appellants.

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