Mcomber V Thompson
IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 50980
JONATHAN & ANGELA MCOMBER, )
husband and wife, )
)
Plaintiffs-Appellants, ) Boise, April 2025 Term
)
v. ) Opinion Filed: July 22, 2025
)
SHANE & KERI THOMPSON, ) Melanie Gagnepain, Clerk
husband and wife, )
)
Defendants-Respondents. )
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Madison
County. Steven W. Boyce, District Judge.
The decisions of the district court are affirmed in part, reversed in part, and remanded.
Beard St. Clair Gaffney, PA, Idaho Falls, for Appellants Jonathan & Angela McOmber.
John M. Avondet argued.
Kirton McConkie, Boise, for Respondents Shane and Keri Thompson. Jon T. Simmons
argued.
_____________________
MEYER, Justice.
This appeal arose after Jonathan McOmber 1 purchased a home that he later realized was in
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worse condition than he expected when he bought it. After Jonathan and his wife, Angela, began
remodeling their new home, they discovered dry rot, mold, and other damage from water intrusion
in various parts of the home, which caused them to spend more money on repairs than they
anticipated. When ice dams formed on the roof during the winter after they purchased the home,
the McOmbers discovered that the roof leaked and was not professionally installed. During a
kitchen remodel, Jonathan discovered that the previous owner had rewired parts of the kitchen, in
a way that was not up to his standards.
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As we discuss below, the McOmbers both initiated a lawsuit against the Thompsons; however, the district court
dismissed Angela McOmber from two of the claims. The McOmbers did not appeal that decision. For ease of
reference, when we discuss claims that involve only Jonathan McOmber, we will refer to “Jonathan,” and when we
discuss a claim that involves both Angela and Jonathan, we will refer to “the McOmbers.”
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When Jonathan purchased the home, he relied on the sellers’ disclosures about the home’s
condition and did not order an independent property inspection. As sellers, Shane and Keri
Thompson completed a disclosure form and answered “yes” to questions about damage from water
intrusion, with the explanation “drainage problem that was fixed.” They answered “no” in response
to questions about the roof leaking. Although the Thompsons indicated on the disclosure form that
there had been damage from mold, dry rot, and water intrusion in the home, the McOmbers felt
misled. The McOmbers filed an action against the Thompsons for breach of duty to disclose/fraud,
common law fraud, and breach of contract, among other claims. They later sought to add a claim
for constructive trust, which the district court denied. Both parties moved for summary judgment.
The district court granted summary judgment in the Thompsons’ favor and awarded attorney fees
to the Thompsons based on a provision in the Real Estate Purchase and Sale Agreement
(“REPSA”). The McOmbers filed a motion for reconsideration, which the district court denied.
The McOmbers now appeal the district court’s decisions to this Court. For the reasons
discussed below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 2019, Jonathan McOmber purchased a home in Rexburg, Idaho, from
Shane and Keri Thompson (the “Property”). As part of the sale, the Thompsons completed a
Seller’s Property Condition Disclosure Form (“disclosure form”). The disclosure form contained
various questions about the condition of the Property. In a section marked “Moisture & Drainage
Conditions,” the Thompsons marked “yes” in response to a question about past water intrusion or
moisture related damage to the Property, including inside the home. In the remarks section, they
wrote “[d]rainage problem that was fixed.” The Thompsons marked “yes” in response to a question
about whether they had remediated, repaired, or fixed any problems on the Property created by
water intrusion or mold, and wrote “drainage problem that was fixed” in the remarks section for
that question. The Thompsons marked “no” in response to questions about current mold-related
problems inside the Property. With respect to questions about the roof, they marked “no” to a
question about the roof leaking and indicated the roof had been installed in 2012. The disclosure
form did not ask questions about electrical work on the Property. Both parties signed and initialed
the disclosure form as part of the closing.
After closing, Jonathan and his wife began an extensive remodel of the Property. During
the first winter they owned the Property, in 2020, ice dams formed on the roof and caused water
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intrusion inside the home. When the McOmbers began remodeling the interior of the home, they
discovered mold, dry rot, and other damage from water intrusion in various parts of the home. The
McOmbers filed an action against the Thompsons, in which they alleged that the Thompsons failed
to disclose property defects before closing and, as a result, committed fraud and breached the
REPSA.
During the litigation, Angela McOmber was dismissed as a party plaintiff from the breach
of duty to disclose/fraud claim and the breach of contract claim because she was not a party to the
REPSA. The McOmbers’ claim for unjust enrichment was dismissed in its entirety. The district
court’s decision dismissing Angela McOmber from certain claims and dismissing the unjust
enrichment claim were not appealed by the McOmbers.
A. The McOmbers’ motion for leave to amend the complaint.
The McOmbers later sought leave to amend their complaint to add a claim for constructive
trust. The district court determined that a constructive trust claim was not applicable under the
circumstances of this case and denied the McOmbers’ motion. The McOmbers now appeal the
district court’s decision to deny their motion for leave to amend the complaint, arguing that the
district court erred when it denied their motion.
B. The motions for summary judgment.
Both parties then moved for summary judgment on the remaining claims. The district court
granted summary judgment in the Thompsons’ favor, finding that Idaho’s Property Condition
Disclosure Act (“Disclosure Act”) only requires sellers to disclose known property defects. The
district court determined that the Thompsons complied when they completed the disclosure form
and answered “yes” to questions related to damage from mold, dry rot, and water intrusion and
when they answered “yes” to questions related to remediation or repairs to property damaged by
mold, dry rot, and water intrusion. The district court rejected Jonathan’s argument that the
Thompsons’ answer stating “drainage problem that was fixed” was misleading because the
Thompsons still answered “yes” to questions about water intrusion. The court noted that the
Thompsons’ answers on the disclosure form put Jonathan on notice that more investigation may
be needed. Because the Thompsons answered “yes” on the disclosure form, the district court
determined that Jonathan could not establish a claim for duty to disclose/fraud, and the McOmbers
could not establish their common law fraud claim because they could not establish that the
Thompsons made a false statement of fact. As the breach of contract claim was also based on
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allegations that the Thompsons made false or misleading statements on the disclosure form, the
district court determined summary judgment on that claim was appropriate because Jonathan could
not establish that the Thompsons breached the REPSA.
The McOmbers filed a motion for reconsideration combined with a motion to alter or
amend the judgment, in which they asked the district court to correct its characterization of the
evidence and reverse its decision on summary judgment. The district court did correct an erroneous
statement that there was no evidence of ice dams before Jonathan purchased the Property but
determined that fact did not require reversal.
The McOmbers also objected to the Thompsons’ request for attorney fees under Idaho
Code section 12-120(3) and the attorney fee provision in the REPSA. They contended that the
REPSA merged into the deed and that attorney fees could not be awarded based on the REPSA.
The McOmbers also argued that attorney fees under Idaho Code section 12-120(3) were not
warranted because this case did not involve a commercial transaction. Alternatively, the
McOmbers argued that attorney fees were not appropriate because the Thompsons failed to
apportion their request between the claims that only involved Jonathan and the one claim that
involved both McOmbers. The Thompsons argued that the McOmbers had “triggered” attorney
fees under the REPSA and Idaho Code section 12-120(3) because they sought fees under those
same sections in their pleadings. They did not address the McOmbers’ apportionment argument.
The district court awarded attorney fees to the Thompsons under the attorney fee provision in the
REPSA over the McOmbers’ objections, finding that the REPSA provided a basis for an award
because the claims in this case were based on the REPSA and both sides had requested fees under
the attorney fee provision in the REPSA. The district court did not address the McOmbers’
apportionment argument in its decision.
On appeal, the McOmbers seek reversal of the district court’s summary judgment decision
and argue the district court erred when it denied their motion for reconsideration and their motion
to disallow attorney fees below. The Thompsons ask this Court to affirm the district court’s
decisions and seek an award of attorney fees on appeal under Idaho Code section 12-120(3) and
the attorney fee provision in the REPSA.
II. ISSUES ON APPEAL
1. Did the district court err when it denied the McOmbers’ motion to amend the complaint?
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2. Did the district court err when it granted the Thompsons’ second motion for summary
judgment?
3. Did the district court err when it denied the McOmbers’ motion for reconsideration?
4. Did the district court err when it denied the McOmbers’ motion to disallow attorney fees
and costs?
5. Are any of the parties entitled to attorney fees on appeal?
III. STANDARDS OF REVIEW
“The denial of a plaintiff’s motion to amend a complaint to add another cause of action is
governed by an abuse of discretion standard of review.” Est. of Becker v. Callahan, 140 Idaho 522,
527, 96 P.3d 623, 628 (2004) (quoting Thomas v. Med. Ctr. Physicians, P.A., 138 Idaho 200, 210,
61 P.3d 557, 567 (2002)). A district court does not abuse its discretion if it: “(1) correctly perceived
the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted
consistently with the legal standards applicable to the specific choices available to it; and (4)
reached its decision by the exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 863,
421 P.3d 187, 194 (2018) (citation omitted).
“On appeal from the grant of a motion for summary judgment, this Court utilizes the same
standard of review used by the district court originally ruling on the motion.” Fragnella v.
Petrovich, 153 Idaho 266, 271, 281 P.3d 103, 108 (2012) (citation omitted). Summary judgment
is appropriate when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). “If the evidence reveals no
genuine issue as to any material fact, then all that remains is a question of law over which this
Court exercises free review.” Partout v. Harper, 145 Idaho 683, 685–86, 183 P.3d 771, 773–74
(2008) (citation omitted). “The fact that the parties have filed cross-motions for summary judgment
does not change the applicable standard of review, and this Court must evaluate each party’s
motion on its own merits.” Intermountain Forest Mgmt., Inc. v. La. Pac. Corp., 136 Idaho 233,
235, 31 P.3d 921, 923 (2001). “When considering whether the evidence shows a genuine issue of
material fact, the trial court must liberally construe the facts, and draw all reasonable inferences in
favor of the nonmoving party.” Fragnella, 153 Idaho at 271, 281 P.3d at 108. “[A] mere scintilla
of evidence or merely casting a slight doubt of the facts will not defeat summary judgment.” Id.
Moreover, “to create a genuine issue, there must be evidence upon which a jury may rely.” Id.
(citation omitted).
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Similarly, “when reviewing a trial court’s decision to grant or deny a motion for
reconsideration, this Court utilizes the same standard of review used by the lower court in deciding
the motion for reconsideration.” Id. at 276, 281 P.3d at 113. “[W]hen reviewing the grant or denial
of a motion for reconsideration following the grant of summary judgment, this Court must
determine whether the evidence presented a genuine issue of material fact to defeat summary
judgment.” Id. Finally, a district court’s decision to award attorney fees is reviewed for an abuse
of discretion; however, ‘“when an award of attorney fees depends on the interpretation of a statute,
the standard of review for statutory interpretation applies,’ which is ‘a question of law over which
this Court exercises free review.’” Knudsen v. J.R. Simplot Co., 168 Idaho 256, 265, 483 P.3d 313,
322 (2021) (quoting Med. Recovery Servs., LLC v. Lopez, 163 Idaho 281, 282–83, 411 P.3d 1182,
1183–84 (2018)).
IV. ANALYSIS
A. The district court did not err when it denied the McOmbers’ motion to amend the
complaint under Idaho Rule of Civil Procedure 15.
In this case, the McOmbers sought leave to amend their complaint to add a claim for
constructive trust. The district court denied the McOmbers’ motion to amend their complaint to
add a claim for constructive trust, determining that such a claim was not valid under the
circumstances. The proposed amended complaint set forth the following:
61. All prior paragraphs are incorporated by reference.
62. The Defendants sold the Property to Plaintiff, Jonathan McOmber, in
December 2019.
63. The Plaintiff paid the Defendants $410,000.00 for the Property.
64. On information and belief, the Defendants used the proceeds from the sale
of the Property to pay, in part, for their new residence that is also located in
Rexburg, Idaho.
65. The Defendants’ receipt of monies from the Plaintiff was fraudulently and
wrongfully obtained.
66. Accordingly, in equity, a constructive trust should be impressed upon the
asset acquired with the Plaintiff’s monies, i.e., the Defendants’ residence.
67. The Plaintiff is entitled to a lien in order to recover against the Defendants’
residence in an amount to be established at trial.
In making its determination that a claim for constructive trust was not valid under the
circumstances of this case, the district court looked to the definition of a constructive trust and the
facts as pleaded. The court explained that a constructive trust arises when “legal title to property
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has been obtained through actual fraud, misrepresentations, concealments, taking advantage of
one’s necessities, or under circumstances otherwise rendering it unconscionable for the holder of
legal title to retain beneficial interest in property.” (Quoting Snider v. Arnold, 153 Idaho 641, 643,
289 P.3d 43, 45 (2012)). It noted that the McOmbers’ proposed amended complaint did not contain
allegations that the Thompsons “obtained title to their new property through actual fraud,
misrepresentations, concealments, or taking advantage.” The district court considered that the
McOmbers were not involved in the purchase of the Thompsons’ new home, and their claim was
one step removed from the standard claim for a constructive trust. As a result, the court determined
that “the equitable remedy of a constructive trust is inapplicable” in this case.
The McOmbers argue that the district court “did not apply the applicable law and failed to
exercise reason” when it denied the McOmbers’ motion and “prejudiced their substantial rights.”
In the McOmbers’ view, the district court “fundamentally misunderstood” their request for relief.
They claim the court’s ruling “elides the whole purpose of constructive trust as a remedy” and
“essentially created a way for a tortfeasor to avoid the imposition of a constructive trust when the
ill-obtained property is fungible.” The Thompsons counter that “there is no evidence of fraud in
the transaction by which [the Thompsons] gained title to their current home, and no evidence that
[the McOmbers] were, in any way, involved in that transaction.” The Thompsons argue in the
alternative that the district court did not err when it denied the McOmbers’ motion to add a claim
for constructive trust because equitable remedies are available only when there is no adequate
remedy at law.
We agree with the district court that a claim for constructive trust does not apply under the
circumstances of this case. The McOmbers have failed to show how the district court abused its
discretion by denying their motion to amend. The district court’s written decision reflects that it
understood whether to grant leave to amend a complaint is a discretionary decision. The court
considered Snider v. Arnold, 153 Idaho 641, 289 P.3d 43 (2012), a case that dealt with the
formation of a constructive trust, and it determined the constructive trust theory did not apply in
this case by an exercise of reason. The district court concluded the claim was not appropriate
because the McOmbers were one step removed from the transaction, and they failed to allege that
the Thompsons had obtained their new home by fraudulent means. The district court acted within
the outer boundaries of its discretion and consistent with the legal standards applicable to a motion
for leave to amend a complaint.
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A constructive trust arises when “legal title to property has been obtained through
actual fraud, misrepresentations, concealments, taking advantage of one’s
necessities, or under circumstances otherwise rendering it unconscionable for the
holder of legal title to retain beneficial interest in property.” [Hettinga v. Sybrandy,
126 Idaho 467, 470, 886 P.2d 772, 775 (1994)] (quoting Witt v. Jones, 111 Idaho
165, 168, 722 P.2d 474, 477 (1986)). Imposition of a constructive trust is an
equitable remedy and does not require that the holder of legal title intend to create
a trust interest in another. Davenport v. Burke, 30 Idaho 599, 608, 167 P. 481, 483
(1917). Indeed, a constructive trust arises from the legal title holder’s wrongful
actions and not from any intent to create a trust. Id.
Snider, 153 Idaho at 643–44, 289 P.3d at 45–46.
The McOmbers claim that the Thompsons’ new home should be impressed with a
constructive trust. The McOmbers failed to establish below, however, that the Thompsons’ new
home was “obtained through actual fraud, misrepresentations, concealments, taking advantage of
one’s necessities, or under circumstances otherwise rendering it unconscionable.” Thus, the
McOmbers failed to establish that the Thompsons’ property should be subject to a constructive
trust. In sum, the McOmbers had nothing to do with the purchase of the Thompsons’ new home;
thus, they never had a right to a constructive trust in the home. Instead, they are essentially
attempting to obtain a prejudgment writ of attachment against the home to secure collection of a
potential judgment against the Thompsons. As a result, we hold the district court did not err when
it denied the McOmbers’ motion.
B. Summary judgment in favor of the Thompsons is appropriate.
The McOmbers argue that the district court erred when it applied a clear and convincing
evidentiary standard to the McOmbers’ motion in opposition to summary judgment. We agree.
This Court has “consistently rejected the invitation to depart from our traditional summary
judgment principles—even when at trial a plaintiff would have to prove their case by clear and
convincing evidence.” Kelso v. Applington, 173 Idaho 738, 749, 548 P.3d 363, 374 (2024). We
recently “reaffirm[ed] that the traditional summary judgment principles and standards govern
when deciding a motion for summary judgment, even where there is a heightened evidentiary
standard—such as ‘clear and convincing evidence’—that must be met at trial.” Id. Although the
district court erred because it applied the wrong standard, this error does not necessarily require
immediate reversal because this Court reviews summary judgment decisions de novo.
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The McOmbers argue that the district court erred when it granted summary judgment in
favor of the Thompsons. The McOmbers’ fraud and breach of contract claims relate to the
Thompsons’ statements on the disclosure form. We will discuss each claim below.
1. The Thompsons are entitled to summary judgment on the breach of the duty to
disclose/fraud claim because Jonathan did not raise a genuine dispute of material fact
regarding the disclosures.
Generally, the Disclosure Act governs what information sellers are required to disclose to
potential buyers about a residential property that is for sale. Sellers are required to “disclose certain
defects in the residential real property to a prospective buyer.” I.C. § 55-2502. Sellers must
“complete all applicable items in a property disclosure form,” including “material matters relating
to the physical condition of the property” such as “the source of water supply to the property; the
nature of the sewer system serving the property; the condition of the structure of the property
including the roof, foundation, walls and floors; the known presence of hazardous materials or
substances.” I.C. §§ 55-2504, 55-2506. Sellers are not held liable, however, for errors,
inaccuracies, or omissions made on the disclosure form that are “not within the personal
knowledge of the transferor[.]” I.C. § 55-2511(1). Sellers are only required to amend the disclosure
form if they become aware before closing that “any of the . . . information on the original statement
has changed.” I.C. § 55-2513.
In this case, Jonathan contends that the Thompsons’ deposition testimony shows that they
intentionally omitted information about water damage from previous ice dams, that they failed to
disclose that the roof leaked, and failed to identify other defects in the Property related to mold
and dry rot. Jonathan’s argument is not supported by the record. The disclosure form asked about
damage from water intrusion:
Has there been any water intrusion or moisture related damage to any portion of the
property, including, but not limited to, the crawlspace, floors, walls, ceilings,
siding, or basement, based on flooding; moisture seepage, moisture condensation,
sewer overflow/backup, or leaking pipes, plumbing fixtures, appliances, or
moisture related damage from other causes?
The Thompsons marked “Yes” with an X on the form. In the remarks section, they wrote
“[d]rainage problem that was fixed.” The disclosure form then asked about any repairs related to
water intrusion:
Have you ever had any water intrusion, moisture related damage, mold or mold-
related problems on the property remediated, repaired, fixed or replaced?
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The Thompsons marked “Yes” with an X on the form. In the remarks section, they wrote “drainage
problem that was fixed.” The disclosure form also asked about any mold related problems on the
property:
Are you aware of the existence of any mold-related problems on any interior portion
of the property, including but not limited to, floors, walls, ceilings, basement,
crawlspaces, and attics, or any mold-related structural damage?
The Thompsons marked “No” with an X on the form. They also marked “No” in response to
questions about whether they had the Property inspected for mold.
Keri Thompson testified in her deposition about the disclosures the Thompsons made on
the disclosure form:
[McOmbers’ attorney]. On page 2 [of the disclosure form] we’ve talked
about the remarks, the drainage problem that was fixed that’s in two spaces there.
Do you recognize that writing?
[Ms. Thompson]. That is my writing.
[McOmbers’ attorney]. Do you recall what you talked about with [the real
estate agent] when you got to that first question: Has there been any water intrusion
or moisture related damage—et cetera, et cetera—that you marked yes, and then
explained with “drainage problem that was fixed”?
[Ms. Thompson]. Yes.
[McOmbers’ attorney]. What did you talk about?
[Ms. Thompson]. We talked about the problems we had had with moisture
damage and so we marked yes. And then we wrote down “drainage problem that
was fixed.”
[McOmbers’ attorney]. Why was that all that was written in the remarks?
[Ms. Thompson]. Because we—that’s what we were advised to write down.
[McOmbers’ attorney]. Advised by [the real estate agent]?
[Ms. Thompson]. Yeah. We discussed with [the real estate agent] the
problems we had and that’s what we wrote down.
Keri Thompson’s testimony does not show that she intentionally omitted facts regarding additional
moisture-related damage to the Property. Her testimony indicates that the Thompsons completed
the disclosure form and described known property defects related to water intrusion. Shane
Thompson also testified in his deposition about the disclosures on the form:
[McOmbers’ attorney]. As you sit here today, do you believe that you
disclosed everything that should have been disclosed to potential buyers or
recipients of this document when you filled out [the disclosure form]?
[Mr. Thompson] Yes.
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[McOmbers’ attorney]. As you reflect back on the transaction with the
McOmbers is there anything that you think you could have added to [the disclosure
form]?
[Thompsons’ attorney]. Object as to form.
[Mr. Thompson]. Is there anything I could have added? I don’t—the form
is written in such a general notion that I think that you could say that there’s—I
don’t know. I think—yeah it’s a very general form so I guess I would have to say—
is there anything that I could have added? Potentially.
[McOmbers’ attorney]. What potentially could you have added?
[Thompsons’ attorney]. Objection as to form.
[Mr. Thompson]. We probably could have added more details about this
drainage problem that was fixed.
[McOmbers’ attorney]. Anything else?
[Mr. Thompson]. I don’t know that I would have added anything else.
Again, the form in itself is asking a yes-or-no question. And so while, yes, I guess
“could” is a pretty broad term. We feel like we satisfied the purpose of the form by
marking—by answering the yes-or-no question accurately.
Shane Thompson discussed his experience with ice dams, mold, dry rot, and other
moisture-related damage extensively at his deposition. He explained that he had discovered mold
and dry rot in the upstairs kitchen during the Thompsons’ previous remodel. Shane Thompson was
clear, however, that the moisture-related damage had been remediated:
[Mr. Thompson]. When we tore out the original kitchen, we found mold.
[McOmbers’ attorney]. And this is upstairs?
[Mr. Thompson]. This is upstairs.
[McOmbers’ attorney]. When did you tear out the kitchen?
[Mr. Thompson]. September of 2012, I believe.
....
[McOmbers’ attorney]. Mold in the kitchen. What did you do to remediate
it?
[Mr. Thompson]. We removed all of the affected drywall and then sprayed
a—kind of a fungicide, a mold killer on the remaining—we didn’t see any visible
mold but we just wanted to be sure.
Shane Thompson discussed mold that he discovered in the laundry room in 2019, which was also
remediated:
[McOmbers’ attorney]. Laundry room, what did you do to remediate the
mold?
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[Mr. Thompson]. Again, removed all the affected drywall. Any visible mold
that we could see we removed and then sprayed it—something to kill it.
....
[McOmbers’ attorney]. Anything else related to mold or moisture-related
issues, dry rot, that we haven’t talked about?
[Mr. Thompson]. No.
With respect to water intrusion related to ice dams, Shane Thompson explained that he was
familiar with ice dams in general because “[t]hey are a pretty common part of life in eastern Idaho.”
When asked by the McOmbers’ counsel, “Were you aware that water infiltration is one of the risks
or dangers associated with the formation of ice dams?” Shane Thompson answered “yes.” Shane
Thompson testified that he only experienced one ice dam in the winter of 2016. Shane Thompson
described how he dealt with the ice dam:
[Mr. Thompson]. Right. The first time we had an ice dam was in 2016.
Hadn’t had one before that. And because it hadn’t been there before, we were
concerned about it. And so we got up and removed the snow and ice.
[Thompsons’ attorney]. Shoveled the roof?
[Mr. Thompson]. Yes.
[Thompsons’ attorney]. Broke apart the ice?
[Mr. Thompson]. Most of it. Got it down to at least where it was just on the
edge. Yeah. Made sure there was some channels through so the water could get out.
....
[Thompsons’ attorney]. Where was it located on the house?
[Mr. Thompson]. Above the front door.
....
[Thompsons’ attorney]. . . . And there was heat tape, correct—
[Mr. Thompson]. Yes.
[Thompsons’ attorney]. —located there? In 2016 or prior to 2016 was there
heat tape there?
[Mr. Thompson]. No.
[Thompsons’ attorney]. There was not. In 2016—or following this ice dam
that formed in 2016, did you install the heat tape?
[Mr. Thompson]. Yes.
[Thompsons’ attorney]. When did you install the heat tape?
[Mr. Thompson]. It would have been the spring or early summer after that
incident.
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....
[Thompsons’ attorney]. So the heat tape that was there in 2019 was the heat
tape you bought after the ‘15/‘16 winter; is that correct?
[Mr. Thompson]. Yes.
[Thompsons’s attorney]. Okay. We talked a little bit about how ice dams
form and you encountered them in 2016. Did you encounter ice dams at any point
afterwards?
[Mr. Thompson]. No.
He also clarified that the disclosure form did not ask about any electrical work done on the
Property.
Shane Thompson’s testimony indicates that he was aware of past water intrusion and past
remediation. The Thompsons marked “yes” in response to questions about past problems with
mold, dry rot, and water intrusion. They also marked “yes” on the disclosure form to the question
related to past remediation and repairs made due to moisture-related damage, mold, and dry rot.
Although Shane Thompson conceded he could have included more detail in the response, the fact
remains that the Thompsons did disclose the past water intrusion. The record does not support
Jonathan’s allegation that the Thompsons were aware of on-going problems due to water intrusion
that they failed to disclose.
We agree with the district court that the Thompsons complied with the Disclosure Act
when they marked “yes” in response to questions about water intrusion. We note that, even if the
statement “[d]rainage problem that was fixed” was not as descriptive as Jonathan would have liked,
the fact that it is on the form does not undermine the Thompsons’ affirmative disclosure. With
respect to Jonathan’s allegations related to Shane Thompson’s electrical work, we note that the
disclosure form did not ask about electrical work. The allegations regarding the failure to disclose
a leaky roof are likewise not supported by the record. The disclosure form provides that, unless
the buyer is informed otherwise, the seller “has not conducted any inspection of generally
inaccessible areas such as the foundation or the roof.” The disclosure form provides that “[o]ther
than having lived at or owning the property, the SELLER possesses no greater knowledge than
that which could be obtained upon careful inspection of the property by the potential BUYER.”
The record is clear that Jonathan did not order an independent property inspection.
The fact that the Thompsons experienced one ice dam several years before the sale of the
Property does not mean that the Thompsons concealed evidence of a leaky roof. Given that the ice
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dam was remediated, the Thompsons’ awareness in general of the risk of water intrusion from ice
dams does not mean that they could have predicted water intrusion from ice dams that formed on
the roof after the Property was sold. Jonathan did not introduce other evidence that would raise a
factual dispute as to whether the Thompsons were aware of additional property defects that they
failed to disclose. As a result, we hold that summary judgment in favor of the Thompsons with
respect to this claim is appropriate.
2. The Thompsons are entitled to summary judgment on the McOmbers’ common law
fraud claim because the McOmbers failed to introduce evidence that the Thompsons’
statements were false.
The district court determined that the McOmbers’ common law fraud claim failed because
they could not establish fraud by clear and convincing evidence. Although the district court erred
when it applied the clear and convincing standard to the evidence the McOmbers presented at
summary judgment, the McOmbers’ fraud claim still fails under the summary judgment standard
because they did not introduce evidence that the Thompsons’ statements were false.
Generally, common law fraud consists of nine elements:
(1) a statement of fact; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge
of its falsity; (5) the speaker’s intent to induce reliance; (6) the hearer’s ignorance
of the falsity of the statement; (7) reliance by the hearer; (8) the hearer’s right to
rely; and (9) consequent and proximate injury.
Humphries v. Becker, 159 Idaho 728, 736, 366 P.3d 1088, 1096 (2016) (quoting Country Cove
Dev., Inc. v. May, 143 Idaho 595, 600, 150 P.3d 288, 293 (2006)). The element that is relevant to
our analysis is the falsity of a statement.
In their complaint, the McOmbers alleged that the “substance of the disclosure was false
due to it omitting certain information pertaining to water leaks, water damage, and electrical
work;” that the Thompsons “were aware of the falsity of the disclosure;” and the McOmbers were
not. The McOmbers argue that the Thompsons made false statements on the disclosure form by
omitting certain information that was material to Jonathan’s decision to purchase the Property, and
that the Thompsons’ disclosures amounted to fraud.
The McOmbers rely on Humphries, 159 Idaho at 736, 366 P.3d at 1096, and Sowards v.
Rathbun, 134 Idaho 702, 707, 8 P.3d 1245, 1250 (2000), two cases that dealt with fraud based on
a breach of the duty to disclose. Generally, a duty to disclose arises under the following
circumstances:
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(1) If there is a fiduciary or other similar relation of trust and confidence between
the two parties; (2) in order to prevent a partial statement of the facts from being
misleading; or (3) if a fact known by one party and not the other is so vital that if
the mistake were mutual the contract would be voidable, and the party knowing the
fact also knows that the other does not know it.
Sowards, 134 Idaho at 707, 8 P.3d at 1250. Although there are instances where “[f]raud may be
established by silence where the defendant has a duty to speak,” James v. Mercea, 152 Idaho 914,
918, 227 P.3d 361, 365 (2012) (quoting G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 521,
808 P.2d 851, 858 (1991)), this theory of fraud does not apply in this case.
As an example, this Court has found that cotenancy gives rise to a “duty to disclose,”
which, when breached, may support a claim for fraud. Watts v. Krebs, 131 Idaho 616, 620–21, 962
P.2d 387, 391–92 (1998). The Watts case involved a fraud by nondisclosure claim after former
spouses agreed to partition property they had previously held as cotenants. Id. at 619, 962 P.2d at
390. The ex-husband failed to disclose that he had logged a significant portion of the property that
his ex-wife would receive in the partition. Id. at 618–19, 962 P.2d at 389–90. We explained that
cotenancy creates a “duty to hold property for all of the cotenants [and] necessarily gives rise to a
relationship of trust and confidence between the cotenants, which in turn gives rise to a duty to
disclose.” Id. at 620–21, 962 P.2d at 391–92. We determined that the ex-husband breached the
duty to disclose because “it seems clear that a reasonable person under the circumstances would
find the existence or nonexistence of standing timber with a worth in excess of $28,000 on rural
property an important fact in determining whether to enter into an agreement to acquire the
property.” Id. at 620, 962 P.2d at 391. As a result, the ex-husband’s “nondisclosure of the fact that
he had harvested the timber on the property was nondisclosure of a material fact which supports a
claim for fraud.” Id. We noted that the ex-wife “had a right to rely on [her ex-husband’s] duty to
disclose all material facts within his knowledge that may have been important to her decision to
partition the property, including the fact that he had logged the property she would receive under
the partition agreement.” Id. at 621, 962 P.2d at 392.
In this case, the McOmbers’ reliance on these cases is unavailing. Although the McOmbers
reference omissions on the disclosure form in their pleadings, their claim for fraud does not allege
a fiduciary relationship between the McOmbers and the Thompsons that would give rise to a duty
to disclose. The claim, as pleaded, is more akin to a standard fraud claim than a claim based on the
breach of a duty to disclose. In their complaint, the McOmbers allege that the Thompsons made
false statements on the disclosure form, knew the statements were false, and intended to induce
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the McOmbers’ reliance on those statements. On summary judgment, the McOmbers did not
submit any evidence of a fiduciary relationship between the parties, which is an essential element
of such a claim. Further, these cases do not help the McOmbers establish the falsity of the
Thompsons’ statements
With respect to fraud by misrepresentation, this Court has reversed a grant of summary
judgment when there were factual issues that required a trial related to the seller’s representations
of the quality of the building’s construction and foundation and whether those statements
constituted fraud by misrepresentation. See Tusch Enters. v. Coffin, 113 Idaho 37, 43, 51, 740 P.2d
1022, 1028, 1036 (1987). Tusch Enterprises involved the sale of an apartment complex by the
developer-owner to a buyer. During construction, part of the apartment complex was built on fill
dirt, which years later resulted in cracks in the foundation that were not discovered until after the
buyer had purchased the complex. Id. at 40, 740 P.2d at 1025. The buyer claimed that it had
“expended a great deal of money remedying the problems” resulting from the structural defect
which “caused damage to the duplexes themselves and to the parking lot, and . . . losses in rental
income.” Id. The seller in Tusch Enterprises became aware that part of the complex was built on
fill dirt after a conversation with the contractor. Id. at 43, 740 P.2d at 1028. We explained that a
person with the seller’s knowledge of construction (as the seller was also the property’s developer),
would know that problems with the foundation were likely if part of the apartment complex was
built on fill dirt. Id. The seller “did not disclose the fill dirt problems, and, instead, assured [the
buyer] that the duplexes were quality dwellings.” Id. We also noted the buyer and seller were not
dealing with each other “at arms’ length,” and that the buyer was entitled to rely on the seller’s
representations that the apartment complex was well-constructed. We held that “it was error to
dispose of [the buyer’s] misrepresentation claim against [the seller] at the summary judgment
stage” because genuine disputes of material fact existed as to whether the seller’s statements
amounted to misrepresentations. Id.
In contrast to the seller in Tusch Enterprises, there is no evidence that the Thompsons were
aware of property defects that they failed to disclose. While Shane Thompson testified that he
potentially could have provided more detailed answers on the remarks section of the disclosure
form, the Thompsons disclosed known past issues with moisture-related damage, dry rot, and mold
and indicated that the damage was remediated. Even if this Court were to consider “drainage
problem that was fixed” to be a vague or incomplete statement, the fact that the Thompsons marked
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“yes” to the question regarding water intrusion still provides adequate notice that there was prior
damage from water intrusion. The McOmbers failed to introduce any evidence that the Thompsons
made false statements because there was no evidence in the record that they were aware that the
roof they installed leaked. The Thompsons’ deposition testimony shows that the other disclosures
they made on the form were accurate at the time they completed the form. There was no evidence
that the Thompsons were aware of any on-going damage from water intrusion when they
completed the disclosure form. Likewise, the Thompsons’ responses regarding damage and
remediation due to mold were not misleading because they disclosed that there had been mold-
related damage in the past and that, as far as they knew, it had been remediated. As a result,
summary judgment in the Thompsons’ favor is appropriate on this claim because the McOmbers
failed to raise a genuine dispute of material fact as to the falsity of the Thompsons’ statements on
the disclosure form.
3. The Thompsons are entitled to summary judgment on the breach of contract claim
because Jonathan failed to identify any provision of the REPSA that was breached.
Generally, to prevail on a breach of contract claim, a party must show: (1) that a contract
exists; (2) a breach of the contract; (3) that the breach caused damages; and (4) the amount of
damages. Path to Health, LLP v. Long, 161 Idaho 50, 57, 383 P.3d 1220, 1227 (2016).
A violation of the implied covenant [of good faith and fair dealing] is a breach of
contract. It does not result in a cause of action separate from the breach of contract
claims, nor does it result in separate contract damages unless such damages
specifically relate to the breach of the good faith covenant.
St. Alphonsus Diversified Care, Inc. v. MRI Assocs., LLP, 157 Idaho 106, 120, 334 P.3d 780, 794
(2014) (quoting Idaho First Nat’l Bank v. Bliss Valley Foods, Inc., 121 Idaho 266, 289, 824 P.2d
841, 864 (1991)). The covenant of good faith and fair dealing “is only violated when ‘action by
either party . . . violates, nullifies or significantly impairs any benefit of the . . . contract.’” Bliss
Valley Foods, Inc., 121 Idaho at 289, 824 P.2d at 864 (alteration in original) (quoting Metcalf v.
Intermountain Gas Co., 116 Idaho 622, 627, 778 P.2d 744, 749 (1989)).
In this case, Jonathan’s breach of contract claim is based on allegations that the Thompsons
failed to accurately disclose all known property defects on the disclosure form. Jonathan contends
that, as a result, the Thompsons breached the covenant of good faith and fair dealing and materially
breached the REPSA. Jonathan’s deposition testimony shows, however, that he was unable to
identify which part of the contract was breached by the Thompsons:
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[Thompsons’ attorney]. All right. If you would turn to . . . the purchase and
sale agreement. Can you identify for me in that contract where the Thompsons
breached their obligation by failing to disclose all problems, including legal,
physical, or otherwise?
....
[Mr. McOmber]. I would probably need to take more time to go through
this to find specifically a spot if there is.
[Thompsons’ attorney]. You haven’t found one as you’ve looked through it
this morning— -- or this afternoon; is that right?
[Mr. McOmber]. I don’t find it on this unless there’s the— -- the disclosure
was in the other document, I think right? The one we just talked about.
[McOmbers’ attorney]. The disclosure form is a different document, yes.
....
[Mr. Thompson] I’m not sure—so I understand your question to be that
you’re asking on this form—
[McOmbers’ attorney]. Yes.
[Mr. Thompson]. —what on this form would support my claim—
[McOmbers’ attorney]. Correct.
[Mr. McOmber]. —against [the] Thompsons. On this specific form?
[McOmbers’ attorney]. Yes.
[Mr. McOmber]. At this time I can’t—I don’t know what—I don’t have
something to point to specifically in the papers that I’m holding.
It is well established that “[s]ummary judgment is appropriate when the nonmoving party
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case on which that party will bear the burden of proof at trial.” Hatheway v. Bd. of Regents of Univ.
of Idaho, 155 Idaho 255, 262, 310 P.3d 315, 322 (2013). Although Jonathan argues that the
Thompsons breached the covenant of good faith and fair dealing, the record shows he was unable
to point to a provision of the REPSA that was breached. Breach is an essential element of a breach
of contract claim. Jonathan’s claim for breach was based on allegations that the Thompsons “did
not disclose all known defects” with the Property, and since this Court has determined that
summary judgment was properly entered on Jonathan’s claim that the Thompsons made false
disclosures on the disclosure form, Jonathan’s breach of contract claim fails. As the district court
noted, Jonathan did not introduce evidence of an independent basis for a breach of contract claim,
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and he did not raise genuine disputes of material fact related to all the other elements of a breach
of contract claim.
C. The district court did not err when it denied the McOmbers’ motion for
reconsideration.
The district court denied the McOmbers’ motion for reconsideration after it found no basis
to reconsider its order. Although the McOmbers did alert the district court to a factual error in its
analysis, the court determined that it did not require reversal. The district court acknowledged that
it erred when it characterized the record as being devoid of evidence of ice dam formation prior to
when Jonathan purchased the Property. It corrected the error, noting that Shane Thompson did
testify to ice dam formation in 2016. The district court determined that “this factual clarification
does not necessitate a different outcome” with respect to the summary judgment motion. It noted
“[t]he mere possibility of damage is not the same as demonstrable causation or evidence of willful
omission on the Property Disclosure Form.” It explained that there was no evidence that “ice dams
ever damaged the property prior to the sale, requiring a disclosure, and that the Thompsons
fraudulently withheld that information.”
Although the McOmbers contend that the district court erred when it denied their motion
for reconsideration, we disagree. The McOmbers’ motion for reconsideration did not raise a
genuine dispute of material fact sufficient to defeat summary judgment on their claims. Shane
Thompson’s deposition testimony shows that he experienced an ice dam in 2016. He did not testify
to any water intrusion or damage to the Property resulting from that one ice dam. His deposition
testimony reflects that the Thompsons promptly dealt with the ice dam by removing snow from
the roof and by installing heat tape on the roof. The record shows that, after the heat tape was
installed, the Thompsons did not experience further ice dams while they owned the Property. The
fact that the Thompsons experienced an ice dam in 2016 that they promptly remediated, does not
indicate that they were aware of the possibility of future damage from ice dams that formed in
2020 and 2021 after they sold the Property. The evidence offered by the McOmbers, even with the
correction to the district court’s decision, does not support the inference that the Thompsons were
aware of additional property defects that they failed to disclose. As a result, we hold that the district
court did not err when it denied the McOmbers’ motion for reconsideration because the McOmbers
still failed to raise a genuine dispute of material fact to defeat the Thompsons’ summary judgment
motion.
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D. The district court did not err when it awarded attorney fees to the Thompsons under
the attorney fee provision in the REPSA; however, the failure to apportion the fees
between the McOmbers requires reversal.
The Thompsons sought attorney fees below under Idaho Code section 12-120(3) and the
attorney fee provision of the REPSA. The district court awarded attorney fees to the Thompsons
based on the attorney fee provision in the REPSA and did not address their request for fees under
Idaho Code section 12-120(3). The REPSA attorney fee provision provided, “[i]f either party
initiates or defends any arbitration or legal action or proceedings which are in any way connected
with this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party
reasonable costs and attorney’s fees, including such costs and fees on appeal.” (Emphasis added).
The court determined that attorney fees were appropriate under the attorney fees provision in the
REPSA because the parties’ claims were based on the REPSA and the disclosure form. The district
court found that was sufficient to “trigger” an award of fees under the provision.
On appeal, the McOmbers argue the district court erred when it awarded attorney fees
because the court previously ruled the REPSA had merged into the deed and could no longer be
used as a basis for an attorney fee award. Alternatively, the McOmbers maintain that the
Thompsons are judicially estopped from relying on the REPSA as a basis for an award of attorney
fees because they argued the REPSA merged into the deed in response to the breach of contract
claim. The McOmbers also argue that the district court abused its discretion because it failed to
apportion the attorney fee award between the McOmbers, given that Angela McOmber was only
a party to one of the three claims. The Thompsons counter that the district court did not err in
awarding attorney fees under the REPSA because the McOmbers invoked the REPSA as a basis
for fees in their complaint, and the McOmbers’ causes of action are all based on the REPSA. The
Thompsons did not respond to the McOmbers’ argument related to the apportionment of fees.
Generally, “[a]ttorney fees are allowed when they are provided for by a contract.” Gangi
v. Debolt, 168 Idaho 815, 819, 488 P.3d 483, 487 (2021). “Where a valid contract between the
parties contains a provision for an award of attorney fees, the terms of the contract establish a right
to attorney fees.” Id. (quoting Primera Beef, LLC v. Ward, 166 Idaho 180, 189, 457 P.3d 161, 170
(2020)). The question presented here is whether the attorney fees provision in the REPSA merged
into the warranty deed when the sale was closed. Under the merger doctrine, in most cases, the
terms of a REPSA are absorbed or merged into the final deed once the transaction is complete:
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[T]he acceptance of a deed to premises generally is considered as a merger of the
agreements of an antecedent contract into the terms of the deed, and any claim for
relief must be based on the covenants or agreements contained in the deed, not the
covenants or agreements as contained in the prior agreement.
Fuller v. Callister, 150 Idaho 848, 853, 252 P.3d 1266, 1271 (2011) (quoting Jolley v. Idaho Sec.,
Inc., 90 Idaho 373, 382, 414 P.2d 879, 884 (1966)). “There is a generally recognized exception to
the foregoing rule which exception relates to collateral stipulations of the contract, which are not
incorporated in the deed.” Jolley, 90 Idaho at 382, 414 P.2d at 884. The Court has explained that
provisions related to title, possession, parcel size, and agricultural crops (i.e., emblements)
generally merge into a deed upon closing, but “collateral” provisions do not:
If a stipulation makes reference to title, possession, quantity or emblements of land
it will generally be considered to inhere to the subject matter of a warranty deed,
and shall be considered merged and, thus, not a collateral stipulation.
Fuller, 150 Idaho at 853, 252 P.3d at 1271 (citing Jolley, 90 Idaho at 383, 414 P.2d at 885).
Acceptance of a deed does not mean that a party has given up the benefit of collateral
contract provisions:
Although a grantee may accept a delivery of deed as a full performance of a prior
contract, even where not all of the prior contract’s provisions were complied with,
where those contractual provisions are collateral stipulations there is no
presumption that any party intended to give up the benefit of such covenants, and
this is a question of intent.
Id. (citing Jolley, 90 Idaho at 384, 414 P.2d at 885). In fact, the Court in Jolley ultimately concluded
that because a contractual provision requiring a party to provide a title abstract did not relate to
title, possession, quantity or emblements of land, it was a “collateral” stipulation that was not
merged through the acceptance of the warranty deed. Jolley, 90 Idaho at 383–84, 414 P.2d at 885.
This Court has not yet addressed whether the merger doctrine precludes an award under an
attorney fee provision in a REPSA when the parties’ claims do not involve claims related to the
deed. The Court of Appeals, however, did address this very question earlier this year in Yates v.
Hull Farms, Inc., in which it determined that the attorney fee provision “may be invoked in a case
. . . where the claims are based on the [REPSA], not the deeds.” ___ Idaho ___, ___, 563 P.3d
1246, 1251–52 (2025). We adopt the Court of Appeals’ reasoning in Yates and determine that the
attorney fees provision of the REPSA is a collateral agreement that did not merge into the warranty
deed because it does not involve title, possession, size of the parcel or emblements. Thus, we hold
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that the district court did not err when it determined that the attorney fee provision in the REPSA
was an appropriate basis for fees.
The McOmbers claim on appeal that the district court erred because it failed to apportion
the attorney fee award between “the fees incurred by the Thompsons in defending against the
contract claim as opposed to the tort claims.” Jonathan’s claims and the McOmbers’ common law
fraud claim were based on alleged false disclosures or misstatements on the disclosure form. The
attorney fees provision in the REPSA is very broad and applies to “any arbitration or legal action
or proceedings” which is “in any way connected with” the REPSA. The alleged false disclosures
were “connected” with the REPSA. While the Thompsons’ failure to apportion their attorney fees
based on the type of claim was not disqualifying, the district court erred when it awarded fees
against Angela McOmber. As the McOmbers argued below, Angela McOmber did not sign the
REPSA, and she was not a party to the contract. Given that the attorney fees award was predicated
on a contract provision to which she was not a party, the award against Angela McOmber was not
appropriate. As a result, the district court’s attorney fee award is reversed and remanded, with
instructions for the district court to issue an amended judgment that does not include an award of
attorney fees against Angela McOmber.
E. Neither party is entitled to an award of attorney fees on appeal.
The McOmbers did not seek an award of attorney fees on appeal. The Thompsons seek an
award of attorney fees on appeal under Idaho Code section 12-120(3) and the attorney fee
provision of the REPSA. We note that Idaho Code section 12-120(3) does not apply in this case
because the sale was for residential property and did not involve a commercial transaction, which
includes “all transactions except transactions for personal or household purposes.” I.C. § 12-
120(3).
“Attorney fees on appeal may be awarded to the prevailing party when the parties
contemplated such fees in the underlying contract.” Burns Concrete, Inc. v. Teton County, 172
Idaho 82, 95, 529 P.3d 747, 760 (2023) (quoting Gordon v. U.S. Bank Nat’l Ass’n, 166 Idaho 105,
123, 455 P.3d 374, 392 (2019)). “Where both parties prevail in part on appeal, this Court does not
award attorney fees to either party.” Id. (quoting AgStar Fin. Servs., ACA v. Nw. Sand & Gravel,
Inc., 168 Idaho 358, 374, 483 P.3d 415, 431 (2021)).
In this case, the McOmbers did not request attorney fees on appeal. The Thompsons seek
attorney fees on appeal under the attorney fee provision in the REPSA. Although the Thompsons
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prevailed on most of the issues on appeal, the McOmbers prevailed on the issue of apportionment
of attorney fees below. The attorney fee provision in the REPSA is very broad, and includes
attorney fees on appeal, but it only awards attorney fees to the prevailing party. As a result, the
Thompsons are not entitled to an award of attorney fees on appeal because they did not prevail on
all the issues. Thus, we decline to award attorney fees on appeal to the Thompsons.
V. CONCLUSION
For the above-stated reasons, the district court’s grant of summary judgment in favor of
the Thompsons is affirmed. The district court’s denial of the McOmbers’ motion for leave to
amend the complaint and its denial of their motion for reconsideration are affirmed. The district
court’s decision on attorney fees is reversed and remanded to vacate the award with respect to
attorney fees awarded against Angela McOmber. We decline to award either party costs or attorney
fees on appeal.
Chief Justice BEVAN and Justices BRODY, MOELLER and ZAHN CONCUR.
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