IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 43296

DAVID KOSMANN,

 Plaintiff- Respondent,

v.

LEO GILBRIDE,

 Defendant-Appellant.

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Boise, November 2016 Term

2016 Opinion No. 146

Filed: December 12, 2016

Stephen W. Kenyon, Clerk

 

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

of Idaho, Canyon County. Hon. Juneal Kerrick, District Judge.

The judgment of the district court is affirmed.

. 

Kaufman Reid, PLLC, Boise, attorneys for appellant. James G. Reid 

argued.

Greener Burke Shoemaker Oberrecht, PA, Boise, attorneys for respondent.

Loren K. Messerly argued.

_______________________________

W. JONES, Justice

I. NATURE OF THE CASE

Appellant, Leo Gilbride (“Gilbride”), contends that the district court erred by refusing his 

request for attorney’s fees. The underlying dispute arose out of a sale of real property between 

Respondent, David Kosmann (“Kosmann”), and Gilbride, which was executed with the alleged 

understanding that Gilbride would re-convey the property back to Kosmann at a later time. After 

purchasing the property, with down payment funds provided by Kosmann, Gilbride refused to reconvey the property to Kosmann. Accordingly, on January 25, 2013, Kosmann filed a complaint 

against Gilbride alleging, inter alia, unjust enrichment and demanding specific performance of 

Gilbride’s promise to re-convey the property. The district court dismissed the specific 

enforcement claim, awarded Kosmann $30,990 based on his unjust enrichment claim, and denied 

both parties’ claims for attorney’s fees. 
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On appeal, Gilbride argues that he was entitled to attorney’s fees pursuant to the Real 

Estate Purchase and Sale Agreement, or Idaho Code section 12-120(3). 

II. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Kosmann’s sale of real property to Gilbride and an alleged oral 

agreement for Gilbride to re-convey the property back to Kosmann at a later time. Kosmann

owned real property commonly known as 1020 W. Homedale Road, Caldwell, Idaho 83607 (the 

“Property”). The Property consists of a home, two shops, and an acre of open field. 

In the summer of 2011, Kosmann became unable to make his mortgage payments. He 

owed about $260,000 on the Property, but it only appraised for $130,000. After failed attempts to 

refinance his loan, Kosmann contacted Justin McCarthy, a real estate agent. McCarthy explained 

that there were investors who would be available to purchase the Property and rent it back to 

Kosmann. After two sale and lease back agreements fell through with separate parties, Kosmann 

introduced McCarthy to Gilbride.1 Gilbride and Kosmann first met in May 2012, and by “June or 

July . . . [Gilbride] offered to help [Kosmann] as a friend.” Kosmann and Gilbride had similar 

backgrounds in the military. Gilbride offered to help Kosmann with the understanding that 

Gilbride would obtain the loan, but Kosmann would pay the down payment, closing costs, and

also pay Gilbride “a couple hundred extra a month for his trouble until such time [Kosmann] 

could regain possession of the home.” 

Under this arrangement, Gilbride allegedly orally promised to help Kosmann obtain a 

short sale2of the Property and thereafter: (1) allow Kosmann to reside and operate his restoration

business at the Property, and (2) allow Kosmann an opportunity to buy the Property back at a 

later time. On September 24, 2012, Kosmann and Gilbride executed the Real Estate Purchase 

and Sale Agreement (the “REPSA”). The REPSA provided as follows: “Offer is contingent upon 

3rd party bank (GMAC) releasing the mortgage as paid in full, and releasing rights to pursuit of a 

deficiency judgment. Seller will rent the property back from the buyer for a term of not less than 

1 year.” A short sale was arranged with the lender, GMAC, but in order to get the short sale 

 

1 The specific facts regarding McCarthy’s role in this transaction are unclear. Nonetheless, his apparent willingness 

to be involved in this fraudulent transaction raises serious concerns regarding his professional ethics. 

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“A short sale occurs when a property is sold at a price lower than the amount the homeowner owes on the 

mortgage, and the homeowner's mortgage lender(s) agrees to the ‘short’ payoff. A lender might accept a short sale 

with the property worth less than the balance of the mortgage, if the borrower cannot continue to make the monthly 

loan payment, does not have enough money to pay back the full balance of loan and needs to move out of the 

property.” Buying a Short Sale Property, Freddie Mac, http://www.freddiemac.com/purchasemarket/ssfaq.html.
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approved, Kosmann and Gilbride were required to sign a Short Payoff Arms-Length Affidavit, 

which included the following: 

There are no agreements, understandings or contracts between the parties that the 

Borrower will remain in the Mortgage Premises as a tenant or later obtain title or 

ownership of the Mortgaged Premises, except to the extent that the Borrower is

permitted to remain as a tenant on the Mortgaged Premises for a short term, as is 

common and customary in the market, but no longer than ninety (90) days, in 

order to facilitate relocation. 

. . . 

There are no agreements, understandings or contracts relating to the current sale 

or subsequent sale of the Mortgage Premises that have not been disclosed to 

[GMAC].

. . . 

Each signatory understands, agrees and intends that the Servicer and Investor are 

relying upon the statements made in the affidavits as consideration for the 

reduction of the payoff amount of the Mortgage and agreement to the sale of the 

Mortgage Premises.

Before closing, Kosmann paid Gilbride $29,990 to cover the down payment and closing 

costs of the sale. When it came time to sign at closing, in late December 2012, Kosmann learned 

that the total closing costs were $31,600. Accordingly, he paid Gilbride an additional $1,000. 

The short sale resulted in GMAC being defrauded: GMAC was led to believe, according 

to the Short Payoff Arms-Length Affidavit, that no understanding existed between Kosmann and 

Gilbride relating to Kosmann later obtaining ownership of the Property or remaining in 

possession of the Property for more than 90 days. In fact, such an understanding existed. 

Apparently, Gilbride was not satisfied with only defrauding GMAC because after the 

transaction closed, Gilbride turned on his co-conspirator. On December 27, 2012, Kosmann 

received a Residential Rental Agreement (“Rental Agreement”) from Gilbride, which required a

rental payment of $1,733 per month. Kosmann testified that the Rental Agreement did not 

contain any of the terms that had been previously agreed upon, namely, that rent would be “a 

couple of hundred beyond the costs of the loan [and] insurance” and that they would enter a “90-

day lease option to buy.” Simply put, Gilbride was attempting to double-cross Kosmann.

Kosmann did not sign the Rental Agreement. Recognizing that Gilbride was “not going to honor 

any of his word and do any of the things that he said he was going to do,” Kosmann set up a 

meeting to talk with Gilbride. At the meeting, it became clear to Kosmann that Gilbride was 
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“changing the deal rapidly and . . . forcing [him] to sign [the Rental Agreement] within 24 

hours.” 

On January 25, 2013, Kosmann filed a complaint and demand for jury trial, which 

demanded specific performance and alleged: (1) breach of contract; (2) breach of implied 

covenant of good faith and fair dealing; and (3) unjust enrichment. On February 19, 2013,

Gilbride filed an answer and counterclaim alleging breach of contract and demanding the

ejectment of Kosmann from the Property. By order entered August 9, 2013, the district court 

granted Gilbride’s motion for summary judgment dismissing the breach of contract and breach of 

covenant of good faith and fair dealing claims. On August 14, 2013, Kosmann filed an amended 

complaint adding an allegation of fraud against Gilbride. On September 17, 2013, Gilbride filed 

an answer to the amended complaint and also amended his counterclaim to include an allegation 

of unlawful detainer. 

A four-day jury trial commenced on January 27, 2015. At the conclusion of Kosmann’s 

case-in-chief, Gilbride moved for an order dismissing the remaining claims against him. The 

district court: (1) reserved decision on the motion to dismiss as it related to Kosmann’s fraud 

claim against Gilbride; (2) denied the motion as to the unjust enrichment claim; and (3) granted 

Gilbride’s motion to dismiss the specific performance claim “because the evidence did not 

establish a contract sufficiently definite in its terms to be specifically enforced.” The parties 

stipulated to conduct the remainder of the trial as a bench trial. 

On March 30, 2015, the district court issued its Memorandum Decision Following Court 

Trial. Therein, the district court concluded as follows: (1) Kosmann was entitled to $30,990 for 

his unjust enrichment claim; (2) Kosmann’s remaining claims were dismissed; and (3) Gilbride 

was entitled to judgment regarding his counterclaim for ejectment. The district court issued a 

judgment consistent with its memorandum. 

On April 10, 2015, Gilbride filed a motion for attorney’s fees and costs. Therein, he 

argued, inter alia, that he was entitled to costs and attorney’s fees as the prevailing party under 

Idaho Rule of Civil Procedure 54 in conjunction with Idaho Code section 12-120(3) and the 

attorney’s fees provision of the REPSA.

On April 27, 2015, Kosmann filed a memorandum opposing Gilbride’s motion for 

attorney’s fees and costs. Therein, Kosmann argued, inter alia, that: (1) Gilbride was not a 
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prevailing party, and (2) Idaho Code section 12-120(3) was inapplicable to the case because a 

commercial transaction was not the gravamen of the lawsuit.

A hearing was held on the parties’ respective motions for attorney’s fees and costs on 

June 11, 2015. On June 18, 2015, the district court issued its Order on Motions to Disallow Costs 

and Fees. The district court held as follows: (1) Kosmann was not a prevailing party because 

Gilbride prevailed on the main issue in the litigation, that is, whether Kosmann was entitled to 

specific performance of, or damages for, Gilbride’s breach of the alleged oral agreement; (2) 

Gilbride prevailed on the primary issue in this litigation and was therefore entitled to $1,732.25 

for costs as a matter of right under Idaho Rule of Civil Procedure 54(d)(1); (3) Gilbride was not 

entitled to attorney’s fees under Idaho Code section 12-120(3) because he did not establish that 

the gravamen of the action involved a commercial transaction; and (4) Gilbride was not entitled 

to attorney’s fees pursuant to the terms of the REPSA because the main issue of the litigation 

was an alleged oral agreement that was “entirely separate and distinct from the [REPSA].” The 

district court issued an amended judgment reflecting its decision to award Gilbride costs as a 

matter of right. 

Gilbride timely appealed the district court’s decision regarding attorney’s fees. 

III. ISSUES ON APPEAL

1. Whether the district court erred when it concluded that neither the REPSA, nor Idaho 

Code section 12-120(3) supported an award of attorney’s fees.

2. Whether either party is entitled to attorney’s fees on appeal.

IV. STANDARD OF REVIEW

“The awarding of attorney fees and costs is within the discretion of the trial court and 

subject to review for an abuse of discretion.” Smith v. Mitton, 140 Idaho 893, 897, 104 P.3d 367, 

371 (2004). “When a judgment on appeal reaches the correct conclusion, but employs 

reasoning contrary to that of this Court, we may affirm the judgment on alternate grounds.” 

Martel v. Bulotti, 138 Idaho 451, 454–55, 65 P.3d 192, 195–96 (2003). 

V. ANALYSIS

A. We affirm the district court’s decision not to award attorney’s fees on alternate 

grounds.

Gilbride makes two arguments. First, he argues that the district court erred when it 

concluded that he was not entitled to attorney’s fees pursuant to the attorney’s fees provision in 

the REPSA. Second, Gilbride argues that the litigation “stemmed from a commercial 
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transaction;” thus, he contends that the district court erred in concluding that Idaho Code section 

12-120(3) did not apply. 

Kosmann characterizes Gilbride’s first argument as “an overly broad and erroneous 

interpretation of the [REPSA].” He argues that the district court correctly concluded that the 

REPSA did not support an award of attorney’s fees to Gilbride. Specifically, Kosmann notes that

the main issue of the litigation—the alleged oral agreement to re-convey the Property—was 

entirely separate from the REPSA. Kosmann also argues that the district court correctly 

concluded that Idaho Code section 12-120(3) was not applicable.

Both Kosmann and Gilbride encourage this Court to engage in an analysis of the

attorney’s fees provision in the REPSA and Idaho Code section 12-120(3). However, analyzing 

the REPSA and Idaho Code 12-120(3) is not necessary. Rather, the attorney’s fees issue 

presented by this appeal is resolved by our decision in Trees v. Kersey. 138 Idaho 3, 56 P.3d 765 

(2002). 

Trees involved two general contractors: (1) Kersey, who was able to bid on projects, and 

(2) Trees, who was unable to do so because he lost his public works license and bonding 

capacity. Id. at 5, 56 P.3d at 767. Kersey agreed to bid on projects, procure the bond, insurance, 

and pay the bills, and Trees would be responsible for everything else, including acting as the 

general contractor on the job. Id. Their relationship soured when Kersey refused Trees’ request 

for accounting on two jobs. Id. Trees filed a complaint alleging breach of contract and fraud. Id.

at 6, 56 P.3d at 768. The district court ruled in favor of Trees, and Kersey appealed. Id. This 

Court held that the agreement between the parties violated the provisions of Idaho’s Public 

Works Contractors License Act and was illegal and void. Id. at 8, 56 P.3d at 770. Further, this 

Court held that because the parties’ agreement was void, neither should be permitted to claim the 

benefit of Idaho Code section 12-120(3). Id. at 12, 56 P.3d at 774. In so holding, this Court cited 

Whitney v. Continental Life & Acc. Co., 89 Idaho 96, 105, 403 P.2d 573, 579 (1965), which 

stands for the proposition that “if a contract is void as against public policy, then the court will 

refuse to enforce it and will leave the parties in the identical situation in which it found them.”

Trees, at 12, 56 P.3d at 774. In sum, Trees demonstrates that parties who enter an agreement that 

is illegal or void against public policy are not permitted to benefit from a contractual attorney’s 

fees provision or an attorney’s fees statute. 
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The agreement orchestrated by McCarthy and executed by Kosmann and Gilbride was 

fraudulent and violated public policy. As noted above, by signing the Short Payoff Arms-Length 

Affidavit, both Kosmann and Gilbride represented to GMAC that there was no underlying 

agreement or understanding between them to re-convey title back to Kosmann; however, an 

underlying agreement—albeit an unenforceable agreement—in fact existed. Thus, the entire real 

estate transaction hinged on a misrepresentation to GMAC and violated public policy. Therefore, 

pursuant to Trees and the cases cited therein, neither party will be permitted to benefit from 

Idaho Code section 12-120(3) or the attorney’s fees provision in the REPSA. In conclusion, 

neither the law, nor this Court will offer assistance to parties engaging in conduct that is illegal 

or violative of public policy. 

B. Neither party is entitled to attorney’s fees on appeal. 

Gilbride argues that he is entitled to attorney’s fees on appeal pursuant to the REPSA and 

Idaho Code section 12-120(3). Kosmann argues that he is entitled to attorney’s fees according to 

Idaho Code section 12-121 because Gilbride’s appeal was frivolous, unreasonable and without 

foundation. Alternatively, Kosmann argues that Idaho Appellate Rule 11.2 supports an award of 

attorney’s fees because Gilbride brought the appeal with the improper purpose of “trying to 

benefit from his deceit and to further harm Kosmann financially.”

Neither party is entitled to attorney’s fees on appeal for the same reasons stated above—

this Court refuses to assist wrongdoers.

VI. CONCLUSION

The judgment of the district court is affirmed. 

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