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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48455

TODD ALLEN TULLETT and TODD 

TULLETT, LLC, an Oregon limited 

liability company,

Plaintiffs-CounterdefendantsRespondents,

v.

BRIAN PEARCE and SUSAN PEARCE, 

husband and wife; PORTER PEARCE 

and AURORA PEARCE, husband and 

wife,

Defendants-CounterclaimantsAppellants.

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Filed: August 27, 2021

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, Payette

County. Hon. Susan E. Wiebe, District Judge. 

Order denying attorney fees and costs, affirmed in part and reversed in part; and 

case remanded. 

Olsen Taggart PLLC; Nathan M. Olsen, Idaho Falls, for defendant-appellant. 

Nathan M. Olsen, argued.

Intermountain Law, PC; David R. Auxier, Fruitland, for plaintiffs-respondents. 

David R. Auxier, argued.

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HUSKEY, Chief Judge

Appellants, Brian, Susan, Porter, and Aurora Pearce, appeal from the district court’s denial 

of their request for attorney fees and costs from respondents, Todd Tullett and Todd Tullett, LLC

(“the LLC”). The district court denied the Pearces’ request for attorney fees and costs after finding 

that neither the Pearces nor Todd Tullett and the LLC were prevailing parties. For the reasons set 

forth below, we affirm in part, and reverse in part, the order denying attorney fees and costs and 

remand the case for further proceedings. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2018, Todd Tullett and the LLC filed a complaint against Brian, Susan, Porter, and 

Aurora Pearce alleging breach of contract, negligence, and unfair trade practices in relation to the 

boarding, injury, and subsequent death of a horse. The Pearces filed an answer to the complaint

and filed a counterclaim for general tort; Brian and Susan Pearce filed a counterclaim against Todd 

Tullett for trespass; and Aurora Pearce filed a counterclaim against Todd Tullett for emotional 

distress.

The counterclaim for general tort stated:

CAUSE OF ACTION I --- GENERAL TORT

16. Counter-defendant Tullett did unlawfully and illegally transport a mare 

to Counterclaimants Brian and Susan’s property, which caused Counterclaimants 

to incur substantial damages and costs as well as suffer distress.

17. Tullett failed to remove the mare from Brian and Susan’s property when 

asked to do so, causing Counterclaimants to incur substantial costs to care for the 

mare, property damage caused by the mare, and efforts to protect other animals on 

the property.

18. Tullett’s threatening conduct and extortive behavior over a severalmonth period has caused Counterclaimants to incur substantial costs and suffer 

grief. 

19. Counterclaimants are entitled to special and general damages as a result 

of Tullett’s wrongful conduct in an amount to be determined by the trier of fact.

The additional counterclaims were titled “CAUSE OF ACTION II --- TRESPASS (Brian 

and Susan against Tullettt)” and “CAUSE OF ACTION III --- EMOTIONAL DISTRESS (Aurora 

against Tullett).” 

Todd Tullett and the LLC filed a motion for summary judgment on all claims and 

counterclaims, and the Pearces filed a cross-motion for summary judgment on all claims and 

counterclaims. The district court issued an order dismissing all of Todd Tullett and the LLC’s 

claims against Brian and Susan Pearce, leaving for trial Todd Tullett’s and the LLC’s breach of 

contract and negligence claims against Porter and Aurora Pearce. The district court also dismissed 

the Pearces’ general tort claim and Aurora Pearce’s claim for emotional distress, leaving for trial

Brian and Susan Pearce’s trespass claim against Todd Tullett. 

At trial, following the close of Todd Tullett and the LLC’s case, Porter and Aurora Pearce 

moved for a directed verdict rejecting the remaining claims against them, which was apparently 
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granted as to the claims brought by Todd Tullett.

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 The jury found Porter and Aurora Pearce were 

not negligent as the LLC alleged. The jury also found that Todd Tullett did not trespass against 

Brian and Susan Pearce as the Pearces alleged. Subsequently, Todd Tullett filed a memorandum 

of costs seeking $10,661.44 in attorney fees from Brian and Susan Pearce, $1,184.60 from Porter 

Pearce, and $2,369.21 from Aurora Pearce. The Pearces filed a memorandum of attorney fees and 

costs seeking $78,621.00 in attorney fees and $1,054.60 in costs from Todd Tullett and the LLC. 

Porter and Aurora Pearce incurred $65,983.00 in attorney fees, and Brian and Susan Pearce 

incurred the remaining $12,638.00 in attorney fees. Todd Tullett, the LLC, and the Pearces filed 

respective motions to disallow the opposing parties’ requested attorney fees and costs. 

The district court found none of the parties were prevailing parties and denied the requests

for attorney fees and costs. In holding that there was no prevailing party, the district court found:

[T]he parties both prevailed and lost their respective pre-trial motions in fairly equal 

fashion. Overall, the summary judgment limited claims, defense, and damages for 

trial for both sides.

The Court also ruled against the Defendants on the majority of the other 

motions brought before trial. While the Court did grant several of Plaintiffs’ 

requests in their motion in limine, most were simply a reiteration and/or 

clarification of the court’s rulings in its summary judgment order and previous incourt admonishments to the parties. 

The Court having considered (a) the final judgment or result obtained in the 

action in relation to the relief sought by the respective parties; (b) whether there 

were multiple claims or issues between the parties; and (c) the extent to which each 

of the parties prevailed on each of the issues or claims, finds that there was no 

prevailing party as defined by I.R.C.P. 54(d)(1)(B).

Final judgment was entered on July 23, 2020. The Pearces timely appealed. 

II.

STANDARD OF REVIEW

A district court’s determination of prevailing party status is left to the sound discretion of 

that court and will not be disturbed absent an abuse of discretion. Radford v. Van Orden, 168 

Idaho 287, 306, 483 P.3d 344, 363 (2021). Similarly, an award of attorney fees and costs is within 

 1 The Pearces assert the minutes are incorrect and that the district court granted the motion. 

In support of their claim, the Pearces cite to the jury verdict form, which does not include Todd 

Tullett’s claims against Porter and Aurora Pearce and reflects only claims brought by the LLC. 

There is no transcript of the hearing in the record. Neither Tullett nor the LLC challenge the 

Pearces’ assertion that the minutes are incorrect. Based on the minutes and the special verdict 

form, it appears the district court granted the motion for directed verdict with respect to Todd 

Tullett’s claims and denied the motion with respect to the LLC’s claims. 
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the discretion of the trial court and subject to an abuse of discretion standard of review. Id. When 

a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multitiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of 

discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal 

standards applicable to the specific choices before it; and (4) reached its decision by an exercise 

of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

III.

ANALYSIS

A. The District Court Abused Its Discretion by Failing to Consider the Extent to Which 

the Pearces Prevailed Against the LLC 

The Pearces argue the district court erred when it failed to distinguish the results achieved 

by the respective parties against each other and found that none of the Pearces were prevailing 

parties. The Pearces assert that each member of the Pearce family was a prevailing party against 

Todd Tullett and the LLC. Todd Tullett and the LLC assert that the Pearces are not prevailing 

parties because they did not successfully prosecute their counterclaims. 

A prevailing party in an action is entitled to certain costs as a matter of right and may, in 

some cases, also be awarded discretionary attorney fees. I.R.C.P. 54(e)(1). Idaho Rule of Civil 

Procedure 54(d)(1)(B) guides the court’s inquiry on the prevailing party question as follows:

In determining which party to an action is a prevailing party and entitled to costs, 

the trial court must, in its sound discretion, consider the final judgment or result of 

the action in relation to the relief sought by the respective parties. The trial court 

may determine that a party to an action prevailed in part and did not prevail in part, 

and on so finding may apportion the costs between and among the parties in a fair 

and equitable manner after considering all of the issues and claims involved in the 

action and the resultant judgment or judgments obtained.

Rule 54(d)(1)(B) requires the court to consider: (a) the final judgment or result obtained in the 

action in relation to the relief sought by the respective parties; (b) whether there were multiple

claims or issues between the parties; and (c) the extent to which each of the parties prevailed on 

each of the issues or claims. Nguyen v. Bui, 146 Idaho 187, 192, 191 P.3d 1107, 1112 (Ct. App. 

2008). “[W]here there are claims and counterclaims between opposing parties, the court 

determines who prevailed ‘in the action.’ That is, the prevailing party question is examined and 

determined from an overall view, not a claim-by-claim analysis.” Eighteen Mile Ranch, LLC v. 

Nord Excavating & Paving, Inc., 141 Idaho 716, 719, 117 P.3d 130, 133 (2005). When multiple
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parties are partially successful, it is within the district court’s discretion to decline an award of 

attorney fees to either side. Israel v. Leachman, 139 Idaho 24, 27, 72 P.3d 864, 867 (2003).

The Idaho Supreme Court’s analyses in Eighteen Mile Ranch and Wandering Trails, LLC 

v. Big Bite Excavation, Inc., 156 Idaho 586, 329 P.3d 368 (2014), instruct that when there are 

multiple plaintiffs and defendants, neither the plaintiffs nor the defendants can be aggregated when 

determining the prevailing party pursuant to I.R.C.P. 54(d)(1)(B). See Eighteen Mile Ranch, 141 

Idaho at 719-20, 117 P.3d at 133-34; Wandering Trails, 156 Idaho at 598, 329 P.3d at 380. Instead, 

the trial court must consider the extent to which each individual party prevailed. See Eighteen

Mile Ranch, 141 Idaho at 719-20, 117 P.3d at 133-34; Wandering Trails, 156 Idaho at 598, 329 

P.3d at 380.

In Eighteen Mile Ranch, multiple plaintiffs (Eighteen Mile Ranch, LLC, T.R. Shelby, and 

Emily Shelby) sued multiple defendants (Nord Excavating & Paving, Inc., Darrin Nord, Reed 

Nord, and Casey Nord). Eighteen Mile Ranch, 141 Idaho at 718, 117 P.3d at 132. The defendants

filed an answer and Nord Excavating filed a counterclaim. Id. Casey Nord was dismissed as a 

party prior to trial. Id. Following a jury trial, Darrin Nord was dismissed pursuant to a directed 

verdict. Id. The jury found the Shelbys had not performed the contract, but Nord Excavating had 

performed the contract. Id. Reed Nord was ultimately determined to have no liability to the 

Shelbys. Id. The jury awarded Nord Excavating a portion of the amount requested on the 

counterclaim. Id. The Nords (individually) and Nord Excavating filed a memorandum of attorney 

fees and costs. Id. The district court found that neither the Nords nor Nord Excavating were 

prevailing parties and denied their request. Id. On appeal, the Idaho Supreme Court analyzed the 

success of each defendant individually, stating:

In litigation, avoiding liability is as good for a defendant as winning a money 

judgment is for a plaintiff. . . . [A] verdict in Nord Excavating’s favor and a victory 

on its counterclaim (albeit, a relatively small one), by definition, makes it a 

prevailing party. 

The individual Nords were also prevailing parties. Darrin left the suit upon 

a motion for directed verdict. He incurred no liability. For him that was “the most 

favorable outcome that could possibly be achieved.” Also, Reed defended himself 

through the entire trial and escaped all liability--again, achieving the most favorable 

outcome that could possibly be achieved. The same must be said for Casey, who 

was dismissed a few days before trial. Darrin, Reed, and Casey are clearly 

prevailing parties.

Id. at 719-20, 117 P.3d at 133-34 (citation omitted). 
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Similarly, in Wandering Trails, the Idaho Supreme Court held that the district court erred 

when it denied attorney fees and costs to parties who successfully defended the sole claim brought 

against them. Wandering Trails, 156 Idaho at 597, 329 P.3d at 379. In that case, Wandering Trails

and Liquid Realty sued Big Bite Excavation, Inc., Piper Ranch, LLC, and Tim and Julie Schelhorn. 

Id. at 589, 329 P.3d at 371. The district court granted summary judgment dismissing the 

Schelhorns from the action, and the Schelhorns filed a motion for attorney fees and costs. Id. at 

597, 329 P.3d at 379. The district court held that the Schelhorns could not be considered prevailing 

parties in the litigation because it was a highly contested case with multiple parties, numerous 

claims, and numerous defenses, and aside from Big Bite Excavation, no party had prevailed on a 

multitude of their claims. Id. On appeal, the Idaho Supreme Court found that the district court 

erred when it found the Schelhorns were not prevailing parties because they had prevailed on the 

only action against them. Id. at 598, 329 P.3d at 380. 

Here, although the district court recognized that I.R.C.P. 54(d)(1)(B) requires the court to 

consider the extent to which each of the parties prevailed, the district court aggregated the parties 

as “Plaintiffs” and “Defendants,” rather than considering the success of Todd Tullett, the LLC, 

and each member of the Pearce family individually. Because the district court aggregated the 

parties, it did not correctly analyze the overall success or failure of each party and, therefore, did 

not act consistently with the legal standards set forth in Rule 54(d)(1)(B). 

By aggregating the parties, the district court was unable to consider the success of each of 

the Pearces against the LLC. Each member of the Pearce family successfully defended the claims 

brought against them by the LLC, and the district court appears to have found that none of the

Pearces raised a counterclaim against the LLC. Because the district court aggregated Todd Tullett 

and the LLC together as plaintiffs, we cannot discern if the district court properly accounted for 

each member of the Pearce family’s success against the LLC and, thus, reached its overall 

conclusion that there were no prevailing parties by an exercise of reason. Therefore, the district 

court’s order denying attorney fees is reversed, in part, to allow the district court to consider the 

Pearces’ success in defending the claims brought against them by the LLC.

Although aggregating the parties amounted to error in the district court’s overall 

determination that there were no prevailing parties, the district court did not err when it concluded 

that as between the Pearces and Todd Tullett, there were no prevailing parties. Todd Tullett filed 

three claims against each member of the Pearce family: breach of contract, negligence, and unfair 
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trade practices. Brian and Susan Pearce filed a counterclaim against Todd Tullett for trespass; and 

Aurora Pearce filed a counterclaim against Todd Tullett for emotional distress. The district court 

treated Brian, Susan, Porter, and Aurora Pearce as parties to the general tort counterclaim. The 

district court’s order granting summary judgment and dismissing the general tort counterclaim 

refers to the claim as “Defendants’ counterclaim for general tort,” and the district court’s order 

denying attorney fees and costs states that “Defendants countersued” Todd Tullett for general tort. 

Substantial and competent evidence in the record supports the district court’s conclusion 

finding that each member of the Pearce family was a party to the general tort counterclaim. In 

their answer to the complaint, the Pearces identified which members of the family were bringing 

each allegation in the headings for the counterclaims; no such limiting language is included in the 

general tort claim heading. The factual allegation in the general tort claim read: “Tullett sent a 

text to Porter and Aurora . . . . The tone and tenor of Mr. Tullet[t]’s text was clearly one of 

extortion, and was followed up by numerous threatening, baseless and hostile demands over a 

several month period.” The general tort counterclaim refers to “Tullett’s threatening conduct and 

extortive behavior over a several-month period,” which references the text and other exchanges 

Todd Tullett had with Porter and Aurora, as the Pearces did not allege that Todd Tullett exhibited 

extortive behavior towards Brian or Susan Pearce. Further, the language of the general tort either 

lists the parties by name (Brian and Susan) or includes them by reference (Porter and Aurora) and 

the heading did not limit the parties to the claim as other headings did. Thus, the district court’s 

conclusion that each member of the Pearce family was a party to the general tort counterclaim is 

supported by substantial and competent evidence in the record, and the district court did not err in 

finding that the Pearces were not the prevailing parties against Todd Tullett. Therefore, we affirm 

the district court’s order denying attorney fees and costs as it relates to the claims between the 

Pearces and Todd Tullett, but reverse the district court’s order denying attorney fees for the claims 

between the Pearces and the LLC and remand the case for further proceedings. 

B. Attorney Fees and Costs on Appeal

The Pearces request attorney fees incurred on appeal pursuant to Idaho Code § 12-120(1) 

and I.C. § 12-120(3). Todd Tullett and the LLC also request attorney fees incurred on appeal 

pursuant to I.C. § 12-121 and Idaho Appellate Rule 41. Under I.C. § 12-120(1) and I.C. § 12-

120(3), this Court shall award reasonable attorney fees to a prevailing party. The LLC is not a 

prevailing party and therefore, is not entitled to attorney fees. Brian, Susan, Porter, and Aurora 
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Pearce are prevailing parties on appeal against the LLC and pursuant to I.C. § 12-120(1) and (3), 

shall be awarded attorney fees on appeal. 

Although Todd Tullett is also a prevailing party on appeal, he requested attorney fees 

pursuant to I.C. § 12-121 and I.A.R. 41. An award of attorney fees may be granted under I.C. 

§ 12-121 and I.A.R. 41 to the prevailing party when the court finds that the case was brought, 

pursued, or defended frivolously, unreasonably, or without foundation. Because the Pearces 

prevailed against the LLC, we cannot say this case was pursued frivolously, unreasonably, or 

without foundation. Therefore, Todd Tullett’s request for attorney fees is denied. 

IV.

CONCLUSION

The district court abused its discretion by failing to considering the extent that the Pearces

prevailed against the LLC. Therefore, the district court’s order denying attorney fees and costs is 

affirmed in part and reversed in part, and the case is remanded for further proceedings consistent 

with this opinion. Attorney fees against the LLC are awarded to the Pearces on appeal. 

Judge BRAILSFORD and Justice Pro Tem HORTON CONCUR.