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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 38561

BUKU PROPERTIES, LLC, an Idaho limited 

liability company,

 Plaintiff-Respondent,

v.

RAOEL H. CLARK and JANET C. CLARK, 

husband and wife; ANGUS JERRY 

PETERSON and BETTY JEAN PETERSON, 

husband and wife,

 Defendants-Appellants.

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Rexburg, November 2012 Term

2012 Opinion No. 152

Filed: December 21, 2012

Stephen W. Kenyon, Clerk

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

Idaho, Jefferson County. The Honorable Dane H. Watkins, Jr., District Judge.

The judgment of the district court is affirmed.

Dunn Law Offices, PLLC, Rigby, for appellants. Robin D. Dunn argued.

Holden, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, for respondent. DeAnne 

Casperson argued.

_____________________

J. JONES, Justice.

This is an appeal from the district court’s grant of summary judgment in favor of Buku 

Properties, LLC. Buku initiated this lawsuit to recover earnest money deposits from Raoel and 

Janet Clark and Jerry and Betty Peterson (collectively “Appellants”), after two codependent land 

sale contracts involving Buku and Appellants failed to close. We affirm. 

I.

FACTUAL AND PROCEDURAL HISTORY

In 2007, Buku entered into two separate but codependent1 land sale contracts with the 

Clarks and the Petersons for the purchase of adjacent real properties. The Clark contract was 

executed on August 30, 2007 and provided that Buku would pay $1,044,075.18 for the Clarks’ 

 1 The Clark contract expressly conditions the sale on the Petersons also selling to Buku. Likewise, the Peterson 

contract expressly conditions the sale on the Clarks selling to Buku. 
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80.17 acres. The Clark contract required Buku to deposit $25,000 in earnest money, which was to 

“be refundable until closing.” The Peterson contract was also executed on August 30, 2007, and

provided that Buku would pay $980,000 for the Petersons’ 73.0 acres. The Peterson contract 

required Buku to deposit $327,000 in earnest money, of which $317,000 was “fully refundable 

until closing.” Closing for both properties was to be on or before December 21, 2007. 

At the time the parties entered into the land sale contracts, the properties were zoned R-1, 

which allowed for a minimum density of one acre lots. However, after the contracts were executed,

but prior to closing, the Jefferson County Planning and Zoning Commission began discussions to 

change the R-1 designation of the properties to R-5, which mandates a five acre minimum density.

While conducting its due diligence, Buku discovered the County’s plan to change the zoning 

designation of the properties. Aware of the potential re-zoning, Buku sent Appellants proposed 

addenda to the land sale contracts on December 18, 2007, seeking to extend the review period and 

closing date due to concerns about zoning and financing. 

Attorney Robin Dunn, representing Appellants, responded to the proposed addenda in a 

letter dated December 19, 2007. The letter stated that Appellants “expect performance on this 

contract and desire to complete the sale pursuant to the terms of the agreement” and that if Buku 

did not close on December 21, Appellants would “declare the contract in default, keep the proceeds 

placed as earnest money and either sue for the balance or sue for specific performance.” The 

closing date passed without any further action by either Buku or Appellants.

The bank financing Buku’s purchase of the properties, The Bank of Commerce, also 

became aware of the potential re-zoning of the properties. On January 3, 2008, the Bank sent Buku 

a letter stating that Buku’s loan was only “conditionally approved,” and that, if the property were 

re-zoned R-5, the property value would be decreased. The bank stated that in order to fund the loan 

it “must receive verification from Jefferson County that this property will remain zoned R-1 

Residential.”

Buku sent Appellants’ counsel a letter on June 17, 2008, demanding that all of the earnest 

money, except for the non-refundable $10,000 from the Peterson contract, be returned. When none 

of the earnest money was returned, Buku brought suit on November 6, 2008, alleging three causes 

of action: (1) return of earnest money under contract; (2) conversion; and, (3) unjust enrichment. 

Additionally, Buku requested prejudgment interest on the earnest money and attorney fees.

Appellants filed a counterclaim with their answer, asserting seven claims: (1) specific 
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performance; (2) breach of contract; (3) unjust enrichment; (4) estoppel; (5) promissory 

estoppel/unjust enrichment; (6) Consumer Protection Act violations; and, (7) attorney fees.

In the latter part of 2009, the parties filed cross-motions for summary judgment. On 

January 27, 2010, the district court issued its Memorandum Decision, concluding that the sale 

contracts were unambiguous and enforceable but declining to grant summary judgment on the 

complaint or equitable counterclaims because of conflicting evidence as to the post-closing actions 

of the parties. The court did grant summary judgment against Appellants on their Idaho Consumer 

Protection Act claim.

Following the conduct of discovery by the parties, Buku again moved for summary 

judgment in November of 2010. The district court issued a Memorandum Decision on February 3, 

2011 (Second Memorandum Decision), finding the sale contracts unambiguous and enforceable 

and determining that Buku was entitled to summary judgment. Concurrently, the court issued a 

judgment stating, “Buku’s Motion for Summary Judgment is granted. Buku’s Motion to Strike is 

denied.” Appellants filed an appeal to this Court on February 17, 2011, but we issued an order 

suspending the appeal on the basis that it was premature since the district court had not yet issued a 

final judgment complying with the requirements of I.R.C.P. 54(a). 

On February 22, 2008, Buku filed a cost memorandum, seeking $ 27,093.61 in attorney

fees and $724.82 in costs, which the district court granted. On April 29, 2011, the district court 

entered its final judgment. Thereafter, Appellants timely filed an Amended Notice of Appeal. 

II.

ISSUES ON REVIEW

I. Is the Buyer’s Obligations clause of the land sale contracts ambiguous?

II. Did Buku breach the terms of the land sale contracts?

III. Did the district court err by improperly considering parol evidence?

IV. Did the district court improperly dismiss Appellants’ counterclaims?

V. Did the district court improperly rely on I.C. § 9-503?

VI. Did the district court err by granting Buku attorney fees and costs?

VII. Is either party entitled to attorney fees and costs on appeal?
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III.

DISCUSSION

A. Standard of Review. 

In reviewing a grant of summary judgment, this Court employs the same standard as the 

district court. Cnty. of Boise v. Idaho Cntys. Risk Mgmt. Program, Underwriters, 151 Idaho 901, 

904, 265 P.3d 514, 517 (2011). Summary judgment is proper when “the pleadings, depositions, 

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 

56(c). “Whether a contract is ambiguous is a question of law over which we exercise free 

review.” Swanson v. Beco Const. Co., Inc., 145 Idaho 59, 62, 175 P.3d 748, 751 (2007).

“Whether a district court has correctly determined that a case is based on a commercial 

transaction for the purpose of I.C. § 12–120(3) is a question of law over which this Court 

exercises free review.” Garner v. Povey, 151 Idaho 462, 469, 259 P.3d 608, 615 (2011).

B. The Buyer’s Obligations clause of the land sale contracts is not ambiguous.

On appeal, Appellants argue that the “Buyer’s Obligations” clause, present in both 

contracts, is ambiguous. The Buyer’s Obligation clause provides:

Prior to closing, it is Buyer’s obligation to make sure that they are fully satisfied 

with the condition of the property, also any requirements, environmental 

requirements, and all the requirements that the Buyer needs to make for its due 

diligence purposes. Buyer will have four months to perform the due diligence 

inspections to satisfy Buyer’s interests and concerns regarding the purchase.

In its Second Memorandum Decision the district court stated, “[n]either party asserts the 

Agreements are ambiguous.” Therefore, the court concluded that the contracts were unambiguous 

and enforceable. 

Appellants assert that the district court incorrectly found that neither party argued that the 

contract language was ambiguous. Rather, Appellants contend that they only stated a portion of the 

Buyer’s Obligations clause was unambiguous, but that the phrase “and all of the requirements that 

the buyer needs...” was overly broad, ambiguous and capable of multiple meanings.”2 Appellants

also argue that the contract language should be construed against Buku, as the drafter. In response, 

Buku argues that the district court correctly ruled that the contracts were both patently and latently 

 2 In reality, however, Appellants’ counsel never argued that the Buyer’s Obligations clause was “ambiguous.” In fact, 

the term “ambiguous” is not present at all in the Appellants’ opposition briefing. Appellants only argued that the 

Buyer’s Obligations clause was “non-artfully drafted” and “vague.” 
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unambiguous.

“When interpreting a contract, this Court begins with the document’s language.” Potlatch 

Educ. Ass'n v. Potlatch Sch. Dist. No. 285, 148 Idaho 630, 633, 226 P.3d 1277, 1280 (2010). “In 

the absence of ambiguity, the document must be construed in its plain, ordinary and proper 

sense, according to the meaning derived from the plain wording of the instrument.” C & G, Inc. 

v. Rule, 135 Idaho 763, 765, 25 P.3d 76, 78 (2001). Contract ambiguities can be either patent or 

latent. Swanson, 145 Idaho at 62, 175 P.3d at 751. No claim of latent ambiguity has been made 

by Appellants.

“To determine whether a contract is patently ambiguous, a court looks at the face of the 

document and gives the words or phrases used their established definitions in common use or 

settled legal meanings.” Id. In determining patent ambiguity, the contract as a whole is 

considered. Pinehaven Planning Bd. v. Brooks, 138 Idaho 826, 829, 70 P.3d 664, 667 (2003). A 

contract phrase is patently ambiguous when there are “two different reasonable interpretations or 

the language is nonsensical.” Potlatch, 148 Idaho at 633, 226 P.3d at 1280.

The Buyer’s Obligations clause at issue in this case is not patently ambiguous because the 

language is not subject to two reasonable interpretations, nor is it nonsensical. Appellants

specifically take issue with the phrase “all of the requirements that the Buyer needs to make for 

its due diligence purposes.” Despite Appellants’ contentions, when read as a whole, the Buyer’s 

Obligations clause expressly and unambiguously grants Buku the right to refuse to close, in the 

event that Buku is not “fully satisfied with the condition of the property.” Although the wording of 

this provision is a bit awkward, it is what is sometimes referred by real estate law practitioners a 

“free look” provision, granting the buyer the ability to decline the purchase for virtually any 

reason, without losing the earnest money deposit (except for the non-refundable $10,000 under the 

Peterson contract). However, inartful wording does not make the provision ambiguous. The 

language is clear and not subject to multiple interpretations―thus, it is not patently ambiguous. 

C. Buku did not breach the terms of the land sale contracts by refusing to close.

In its Second Memorandum Decision, the district court found that Buku did not breach the 

terms of the land sale contracts by failing to close on December 21, 2007. The district court stated 

that the language of the land sale contracts “clearly allowed Buku to ensure it was ‘fully satisfied’ 

with the condition of the Property and ‘all the requirements’ it needed to satisfy its ‘interests and 

concerns.’” 
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On appeal, Appellants contend that Buku’s failure to close on December 21, 2007 resulted 

in a breach of the contracts. Appellants assert that no reasonable explanation for Buku’s failure to 

close existed because the contracts did not explicitly provide that potential zoning concerns

permitted its refusal to close. Furthermore, Appellants argue that even if zoning concerns were an 

appropriate ground for refusing to close, no such grounds existed in this case because all parties 

knew the property was zoned R-1 at the time of contracting, and all parties knew the property was 

zoned R-1 at the time of closing. 

Buku argues that the district court correctly found that it did not breach the contracts. Buku 

premises its argument on the fact that the unambiguous terms of the Buyer’s Obligations clause 

allowed Buku to ensure that the condition of the property fully satisfied its interests and concerns. 

Buku argues that the uncertainty surrounding the re-zoning of the land, and the financial 

ramifications resulting therefrom, were legitimate and warranted Buku’s decision not to close.

“A breach of contract is non-performance of any contractual duty of immediate 

performance.” Independence Lead Mines v. Hecla Mining Co., 143 Idaho 22, 28, 137 P.3d 409, 

415 (2006). More specifically, a breach of contract consists of a “failure, without legal excuse, to 

perform any promise which forms the whole or part of a contract.” Id. 

Under both the Clark and the Peterson contracts, Buku had four months to “make sure that 

they [were] fully satisfied with the condition of the property.” If Buku was not satisfied, the 

Buyer’s Obligations clause allowed Buku to refuse to close and to have all $25,000 of its earnest 

money returned under the Clark contract and $317,000 of its earnest money returned under the 

Peterson contract. In this case, rather than simply asserting dissatisfaction with the property and 

refusing to close, Buku sent proposed addenda to Appellants, which provided:

[W]ith the recent county zone change, both parties need additional time to review 

the contract. Because of the County Commissioner’s recent proposed county-wide 

zone change, resulting in this property potentially being zoned R-5. The appraiser 

and the bank dealing with Buku ... have legitimate concerns with financing. We 

agree to move our closing date back from December 21, 2007, to March 1, 2008. 

We will continue to talk and cooperate with each other. 

Although the proposed addenda do not expressly assert dissatisfaction with the condition of the 

properties, it is clear from the language that Buku was exercising its right to decline the December 

21 closing, while making an offer to extend the review period and closing date. The refusal to close 

was in compliance with the Buyer’s Obligations clause because the clause gave Buku four months 
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to perform its due diligence and ensure that it was “fully satisfied with the condition of the 

property.” Because the Buyer’s Obligations clause gave Buku the discretionary right to refuse to 

close, it did not fail to perform a contractual duty. 

D. The district court did not improperly consider parol evidence.

The district court specifically found that the contracts allowed Buku to look into potential 

zoning changes that would affect its interests and concerns. Thus, the court concluded that the 

Buyer’s Obligations clause, teamed with the potential of the property to be re-zoned, provided 

sufficient grounds for Buku to refuse to close without breaching the land sale contracts. 

Appellants argue that because the district court found that the land sale contracts were 

unambiguous, it was improper for the court to consider any evidence outside the four corners of the 

contracts. Appellants point specifically to affidavit testimony related to potential re-zoning of the 

property as evidence considered by the court, but outside the four corners of the land sale contracts. 

Buku asserts that Appellants fundamentally misunderstand the law regarding the use of extrinsic 

evidence in contract interpretation. Buku argues that the district court did not accept any extrinsic 

evidence to interpret the contract terms. We agree with Buku. 

“When a written instrument is complete on its face and is unambiguous, extrinsic 

evidence of prior or contemporaneous representations or negotiations are inadmissible to 

contradict, vary, alter, add to, or detract from the instrument’s terms.” Kepler-Fleenor v. 

Fremont Cnty., 152 Idaho 207, 211, 268 P.3d 1159, 1163 (2012). Only when a document is 

ambiguous is parol evidence admissible to discover the drafter’s intent. Id. 

In this case, the district court did not improperly consider parol evidence because the 

court did not consider any extrinsic evidence to contradict, vary, alter, add to, or detract from the 

terms of the land sale contracts. The court was merely observing that Buku had declined to proceed 

with the closing because of its concerns about the zoning status of the property. This was merely a 

gratuitous observation, which has no bearing on the interpretation of the contract. Buku was not 

obligated to furnish any reason for declining to proceed with the purchase. Under the contract 

language, it was only necessary that it provide notice that it was not going to close the transaction 

on December 21. It did so by providing Appellants with the addenda on December 18. Appellants’ 

parol evidence argument is without merit. 
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E. The district court properly dismissed Appellants’ counterclaims.

The district court determined that Buku was entitled to summary judgment on Appellants’ 

equitable counterclaims. In its Second Memorandum Decision the court stated, “[b]ecause this 

Court has found the Agreements enforceable, Clarks and Petersons cannot rely on their equitable 

claims.” In dismissing Appellants’ claims, the district court relied on case law that precludes 

equitable claims where an enforceable contract exists. 

In their brief to this Court, Appellants argue that their equitable claims (specific 

performance, unjust enrichment, estoppel and detrimental reliance) were improperly dismissed 

because they had no adequate legal remedy after the district court found the land sale contracts 

unenforceable. Buku counters that the district court’s dismissal of the Appellants’ equitable claims 

was proper. Buku reiterates the district court’s analysis and asserts that the existence of the valid 

and enforceable contracts precluded Appellants’ equitable counterclaims. 

Generally, “[e]quitable claims will not be considered when an adequate legal remedy is 

available.” Iron Eagle Dev., LLC v. Quality Design Sys., Inc., 138 Idaho 487, 492, 65 P.3d 509, 

514 (2003). Thus, when “parties enter into an express contract, a claim based in equity is not 

allowed because the express contract precludes enforcement of equitable claims.” Id. However, 

in some instances “[a]n award for unjust enrichment may be proper even though an agreement 

exists.” Bates v. Seldin, 146 Idaho 772, 776, 203 P.3d 702, 706 (2009). This occurs when the 

express agreement is found to be unenforceable. Id. at 776–77, 203 P.3d at 706–07. 

In this case, the district court expressly found that the land sale contracts were 

enforceable. Any argument to the contrary is without merit. Furthermore, no argument was ever 

raised by the Appellants in opposition to Buku’s second summary judgment motion that the 

contracts were unenforceable, and no cogent argument has been presented to this Court that the 

contracts are unenforceable. Just because the contracts were enforceable to the detriment of 

Appellants, does not mean that they were not enforceable.

Based on the record, it appears that the district court’s dismissal of the Appellants’

equitable counterclaims was proper. It was proper because the parties executed valid and 

enforceable contracts that provided a basis for adequate legal claims to be raised by Buku, the 

Clarks, and the Petersons. Because the land sale contracts at issue in this case are valid, 

enforceable, and provide for an adequate legal remedy, the district court did not err in dismissing

the Appellants’ equitable counterclaims. 
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F. The district court’s citation to I.C. § 9-503 was irrelevant.

The contracts at issue in this case contain a provision entitled “Amendments and Waivers,” 

which provides, “[n]o amendment of any provisions of this agreement will be valid unless the 

same shall be in writing and signed by the parties.” In support of its second motion for summary 

judgment, Buku argued that the Amendments and Waivers clause rendered all of the Appellants’

testimony regarding alleged post-closing communications between the parties irrelevant. The 

district court agreed that the terms of the contracts precluded the introduction of post-closing oral 

communications. Additionally, the court cited to I.C. § 9-5033 for the proposition that, even if there 

were no Amendments and Waivers provision, any oral agreements made by Buku post-closing 

would be inadmissible. 

Appellants’ briefing, asserting that the district court’s citation to I.C. § 9-503 was in error,

consists of long inapplicable block quotes accompanied by sparse cogent analysis. At no point do 

Appellants indicate the grounds for their assertion that the district court improperly relied on I.C. § 

9-503. Rather, Appellants merely state that the doctrine of part performance, as it relates to the 

statute of frauds, creates equitable remedies. 

Buku asserts that Appellants’ part performance argument is “nonsensical.” Buku argues 

that where a written and enforceable contract is in place, the doctrine of part performance, and the 

statute of frauds in general, have no applicability. We agree. 

In this case, the statute of frauds does not come into play. The contracts are integrated, 

they have not been extended, modified, or renewed by any writing conforming with the 

Amendments and Waivers provision, and any argument to the contrary is without merit. The 

district court’s citation to I.C. § 9-503 was not improper, merely irrelevant. 

G. The district court’s award of attorney fees and costs was proper. 

In its Order Re: Motion for Attorney’s Fees and Costs, the district court granted Buku 

$27,093.61 in attorney fees and $724.82 in costs. Buku’s cost memorandum claimed that it was 

entitled to fees on the basis of language within the contracts themselves, I.C. §§ 12-120(3), and I.C. 

§ 12-121. However, the district court relied solely on I.C. § 12-120(3) in awarding Buku attorney 

 3 I.C. § 9-503 provides: 

No estate or interest in real property, other than for leases for a term not exceeding one (1) year, 

nor any trust or power over or concerning it, or in any manner relating thereto, can be created, 

granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance 

or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering 

or declaring the same, or by his lawful agent thereunto authorized by writing.
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fees. The district court also awarded costs in the amount of $724.82.

Appellants argue that the district court’s award of attorney fees and costs to Buku was 

improper because Buku’s motion seeking costs and fees was untimely and the contracts with Buku 

were “rescinded,” resulting in no contract and no commercial transaction upon which to base an 

award.

Buku argues that its motion seeking fees and costs was timely because it was submitted to 

the court before the entry of a valid final judgment. Additionally, Buku maintains that Appellants’

belief that Buku sought and was granted rescission of the contracts is nonsensical. Buku argues that 

it never sought rescission and that the district court at no time ruled that the contracts were 

rescinded. Buku is correct on this point–the contracts were not “rescinded.” The transactions did 

not close because Buku properly exercised its right to decline to proceed under the Buyer’s 

Obligations clause.

1. Buku’s request for costs was timely.

The district court initially granted judgment to Buku on February 3, 2011. On February 22, 

2011 Buku filed its Memorandum of Attorneys Fees and Costs, alleging that it was entitled to fees 

and costs. Just prior, on February 17, 2011, Appellants filed a Notice of Appeal. The appeal was 

suspended because the district court had yet to enter a final judgment complying with the 

requirements of I.R.C.P. 54(a). Responding to this Court’s Order Suspending Appeal, the district 

court entered its Final Judgment on April 29, 2011. 

Appellants premise their untimeliness argument on I.R.C.P. 54(d)(5), which provides:

At any time after ... a decision of the court, any party who claims costs may file 

and serve on adverse parties a memorandum of costs, itemizing each claimed 

expense, but such memorandum of costs may not be filed later than fourteen (14) 

days after entry of judgment .... A memorandum of costs prematurely filed shall 

be considered as timely.

Buku’s requests for costs was timely and complied with I.R.C.P 54(d)(5).4 Rule 54(d)(5) 

expressly provides that “[a] memorandum of costs prematurely filed shall be considered as 

timely,” and that is precisely what Buku did in this case. Buku’s Memorandum of Attorneys Fees 

and Costs was filed on February 22, 2011, sixty-six days premature of the district court’s entry of a 

 4 Had the February 3, 2011, judgment been a final judgment, complying with I.R.C.P. 54(a), the cost memorandum 

would likely have been barred as untimely. However, that judgment was noncompliant with Rule 54(a). The 

subsequent judgment entered on April 29, 2011, complied with Rule 54(a) and was therefore the final judgment. 

Thus, the cost bill would have been due within fourteen days of April 29, 2011. 
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final judgment on April 29, 2011. Thus, it was timely. 

2. The district court’s grant of attorney fees under I.C. § 12-120(3) was proper.

Idaho Code § 12-120(3) allows for an award of attorney fees to a prevailing party in a 

civil action to recover on any commercial transaction. Garner, 151 Idaho at 469, 259 P.3d at

615. “A commercial transaction includes all transactions except those for personal or household 

purposes.” Id. For a commercial transaction to be present for the purposes for I.C. § 12-120(3) 

“each party to the transaction must enter the transaction for a commercial purpose.” Carrillo v. 

Boise Tire Co., Inc., 152 Idaho 741, 756, 274 P.3d 1256, 1271 (2012).

This Court has employed a two-step analysis to determine whether fees under I.C. § 12-

120(3) are warranted. Garner, 151 Idaho at 469, 259 P.3d at 615. “[First], there must be a 

commercial transaction that is integral to the claim; and [second], the commercial transaction 

must be the basis upon which recovery is sought.” Id. Thus, the commercial transaction must 

constitute the gravamen of the lawsuit and form the basis upon which the complaining party 

seeks recovery. Id. Whether the district court properly awarded attorney fees under I.C. § 12-

120(3) is a question of law over which this Court exercises free review. Id.

Here, under this Court’s two-part framework for granting fees under I.C. § 12-120(3), the 

district court’s award of attorney fees was proper. First, was there a commercial transaction that 

was integral to Buku’s claim? Part one of the framework has two subparts: one, was there a 

commercial transaction, and two, if so, was the commercial transaction integral to Buku’s claim?

The contracts between Buku and Appellants were commercial transactions because neither party 

entered into the transaction for personal or household purposes. Buku explicitly sought the land 

for commercial development. Similarly, the sale of the land by the Clarks and Petersons was not 

performed for a personal or household purpose, considering the large acreage sold and the fact 

that both parcels of land were historically used for commercial farming purposes. Furthermore, 

the commercial transaction between Buku and Appellants was integral to Buku’s claim because 

it was the sole basis upon which recovery was sought by Buku in its Complaint. 

Second, the commercial transaction was the actual basis for Buku’s suit and constituted 

the gravamen of Buku’s claims. Buku sought to have its earnest money returned based on the 

contract terms. Thus, the transactions at issue in this case were commercial transactions and they 

satisfied this Court’s two-part test to invoke I.C. § 12-120(3), making the district court’s award 

of attorney fees proper. 
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H. Buku is entitled to attorney fees on appeal.

Both parties request fees on appeal. Appellants assert that they are entitled to fees under the 

attorney fees provision of the land sale contracts, I.C. § 12-120, and I.C. § 12-121. Buku relies on 

the attorney fees provision of the contracts and I.C. §12-120(3) in arguing that it is entitled to fees 

on appeal. 

Buku is entitled to fees on appeal under the terms of the contracts. Paragraph twenty-three 

of the land sale contracts provides that “[t]he prevailing party in any action to enforce the 

agreement shall be entitled to recover its reasonable attorneys fees and costs.” Because the district 

court’s grant of summary judgment is affirmed, Buku is the prevailing party in this appeal. 

Furthermore, this action was initiated to enforce the agreement between the parties, i.e. to recover 

the refundable earnest money deposits made by Buku pursuant to the contracts. Thus, Buku is 

entitled to its fees and costs on appeal. 

IV.

CONCLUSION

The district court’s judgment is affirmed. Additionally, Buku is awarded its attorney fees 

and costs on appeal. 

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

CONCUR.