                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44594
TODD J. PHILLIPS, in his capacity as                )
Trustee of Trust “A” of the Elliott Family          )
Testamentary Trust,                                 )          Boise, September 2017 Term
                                                    )
       Plaintiff-Appellant,                         )          2017 Opinion No. 113
                                                    )
v.                                                  )
                                                    )          Filed: November 8, 2017
RICHARD D. GOMEZ,                                   )
                                                    )          Karel A. Lehrman, Clerk.
       Defendant-Respondent.                        )


       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       District court denial of request to recover actual damages, affirmed.

       Nicholas Law Offices, Boise, for appellant. Charles J. Nicholas argued.

       Fisher Law Office, PLLC, Meridian, for respondent. Steven Fisher argued.

                           _________________________________
BURDICK, Chief Justice.
       This case arises from Richard Gomez’s breach of a real estate agreement for the sale and
purchase of residential real estate from Todd Phillips in his capacity as Trustee of Trust “A” of
the Elliott Family Trust. Phillips appeals the Ada County district court’s denial of Phillips’s
request to recover actual damages. After a bench trial, the district court held that Phillips’s claim
for breach of contract had been fully satisfied by Phillips’s retention of the non-refundable
earnest money as liquidated damages as provided by the agreement. We affirm.
                    I.   FACTUAL AND PROCEDURAL BACKGROUND
       Todd J. Phillips, Appellant, is the trustee of Trust “A” of the Elliott Family Trust
(“Trust”). In the spring of 2008, Phillips listed the Trust’s real property (located at 1372 W.
Wickshire Ct., Eagle, Idaho) for sale with a real estate agency. In the fall of 2008, Richard
Gomez, Respondent, submitted several offers to purchase the property. The second offer, with
amendments, was accepted on October 30, 2008.
        The agreement was set forth in several documents, 1 the first being the RE-21 Real Estate
Purchase and Sale Agreement (“RE-21”), which provided for the deal to be as follows: The sale
of the described real property was to be for $660,000. With $66,000 earnest money to be
deposited into the listing broker’s trust account to be applied to the purchase price at closing, or,
in the event Gomez could not close, Phillips would have the option of accepting the earnest
money as liquidated damages, which would be Phillips’s sole and exclusive remedy, or pursuing
any other legal right or remedy.
        The remaining documents in the agreement were amendments to RE-21. The
amendments provided that the earnest money deposit of $66,000 was to be non-refundable
following the inspection of the property and Gomez’s attorney’s review and acceptance of the
contract documents. Gomez was to take possession of the house promptly after the deal was
accepted under the terms of a Residential Lease, but the sale was not required to close until
December 15, 2009, about a year after Gomez took possession.
        When the agreement was accepted by both parties, Gomez paid the $66,000 non-
refundable earnest money into the broker’s trust account, and Gomez moved into the property
under the Residential Lease provisions. The entire $66,000 was released from the broker’s trust
account and paid to Phillips, with a portion ($3,960) going to the real estate agent’s commission,
and the balance ($62,040) going to Phillips. The release of the earnest money was without
restriction.
        Around December 1, 2009, Gomez advised Phillips that he would not be able to close on
time, and the parties began negotiating. Those negotiations resulted in Addendum #2 under
which Phillips agreed to carry a $100,000 note from Gomez, with closing still set for December
15, 2009. On the day of closing, Gomez emailed Phillips explaining that due to the “drop in the
value of the home, the real estate market and the lending crunch” he was unable to close on the
loan for the property in time.
        In January 2010, an agreement was reached for Gomez to remain in possession of the
property under a month-to-month rental agreement. Gomez remained in possession until
approximately May 31, 2010, thirty days after Gomez gave written notice to Phillips that he



1
  The agreement at issue consists of five documents: (1) an RE-21 Real Estate Purchase and Sale Agreement form;
(2) an RE-11 Addendum form, marked #1; (3) an RE-11 Addendum form, marked #2; (4) a manuscript document
titled “Counter-Offer #3”; and (5) Exhibit A to Counter-Offer #3, marked “Residential Lease.”
would be vacating the property. Gomez vacated the premises in a timely manner without
incident.
        On February 4, 2010, Phillips sent Gomez a letter demanding that Gomez perform under
RE-21 or Phillips would pursue a claim against Gomez for any deficiency after the house re-sold.
Gomez did not respond. Phillips relisted the property for sale in the spring of 2010. An appraisal
was obtained indicating the value of the property in the spring of 2010 to be $540,000. In June
2010, Phillips received and accepted an offer to sell the property to an unrelated third party for
$530,000. The sale closed on June 21, 2010, with a purchase price of $527,500.
        On August 13, 2012, Phillips sent Gomez another letter demanding payment for the lost
“benefit of the bargain” damages sustained as a result of Gomez’s failure to purchase the
property as agreed. Phillips sought the difference between the proceeds of the sale ($527,500)
and the price agreed upon by Gomez ($660,000), less the earnest money received ($62,040—
$66,000 minus the $3,960 commission), for a total damage claim of $70,460 plus interest.
Gomez did not respond and did not pay any of the amounts claimed in the demand.
        On November 6, 2013, Phillips filed his complaint against Gomez for breach of contract.
Phillips claimed damages in the amount of $60,143.66 after giving Gomez credit for the $66,000
earnest money. 2 The case was tried as a bench trial on September 1, 2015. On September 23,
2015, the district court entered its judgment in favor of Gomez and against Phillips.
        On September 6, 2016, this Court entered its order dismissing the appeal without
prejudice because this Court did not timely receive a copy of a final judgment that conformed
with Idaho Rule of Civil Procedure 54(a). On October 6, 2016, this Court dismissed Docket
#43678 without prejudice because the conforming judgment was not timely entered. On October
7, 2016, Phillips filed his second notice of appeal, which initiated the instant appeal, and,
pursuant to this Court’s November 9, 2016, order augmenting the prior appeal, this matter came
before the Court.
                                        II.     ISSUES ON APPEAL




2
  This damage claim consists of: (1) the $51,620.50 difference between what the sale proceeds would have been if
Gomez had closed and what the sale proceeds were upon closing with the third-party buyer; (2) $3,960 commission
paid to Coldwell Banker; (3) $1,776 trustees fees associated with the closing of the sale to Gomez; (4) $2,187.90
attorney fees associated with the closing of the sale to Gomez; and (5) $1,000 as the cost of the appraisal obtained
after Gomez’s breach.
   1. Did Phillips pre-elect the earnest money as liquidated damages when the parties
      contracted to make the earnest money non-refundable and immediately transferrable to
      Phillips’s account without restrictions?
   2. Did the language in the agreement give Phillips the option of accepting the non-
      refundable earnest money and pursuing actual damages?
   3. Is either party entitled to attorney fees on appeal?
                               III.    STANDARD OF REVIEW
       “[T]his Court exercises free review over the district court’s conclusions of law.”
Opportunity, LLC v. Ossewarde, 136 Idaho 602, 605, 38 P.3d 1258, 1261 (2002) (citing J.R.
Simplot Co. v. W. Heritage Ins. Co., 132 Idaho 582, 584, 977 P.2d 196, 198 (1999)). “The
standard of review of a non-jury trial court’s findings of fact is set forth in Idaho Rule of Civil
Procedure 52(a).” Id. (citing I.R.C.P. 52(a)). Idaho Rule of Civil Procedure 52(a) provides in
pertinent part:
       In all actions tried upon the facts without a jury . . . the court shall find the facts
       specifically and state separately its conclusions of law thereon and direct the entry
       of the appropriate judgment. Findings of fact shall not be set aside unless clearly
       erroneous. In application of this principle regard shall be given to the special
       opportunity of the trial court to judge the credibility of those witnesses that appear
       before it.
       “In determining whether a finding is clearly erroneous this Court does not weigh the
evidence as the district court did. The Court inquires whether the findings of fact are supported
by substantial and competent evidence.” In re Williamson, 135 Idaho 452, 454, 19 P.3d 766, 768
(2001) (citing I.R.C.P. 52(a)). “This Court will not substitute its view of the facts for the view of
the district judge.” Id. (citing Carney v. Heinson, 133 Idaho 275, 281, 985 P.2d 1137, 1143
(1999)). “Evidence is regarded as substantial if a reasonable trier of fact would accept it and rely
upon it in determining whether a disputed point of fact had been proven.” Id. (citing Carney, 133
Idaho at 281, 985 P.2d at 1143).
                                        IV.    ANALYSIS
   A. The district court did not err in concluding that Phillips made an advance election
      of remedies to accept the earnest money as liquidated damages.
       Phillips contends he never accepted, elected, or agreed to accept the earnest money as
liquidated damages in lieu of his actual damages when he contracted to make the earnest money
non-refundable. Rather, Phillips maintains that he “elected to proceed with an action to recover
the Trust’s actual damages of approximately $60,000.00 over and above the amount of the
earnest money Gomez released to Phillips.” Thus, Phillips contends, although he accepted the
earnest money, he never accepted the earnest money as liquidated damages.
       The district court, on the other hand, found that the amendments to RE-21, making the
“earnest money deposit non-refundable and immediately available to [Phillips] without
restriction was, to work, an advance election of remedies . . . to accept the earnest money deposit
as liquidated damages.” As such, “the damages for this breach are, by contract, the liquidated
damages, which damages have been fully paid and satisfied by [Gomez] by the provisions
pertaining to the earnest money deposit.” The district court’s conclusion is supported by
competent and substantial evidence.
       Phillips maintains that there is no “language anywhere in the agreement between the
parties suggesting” Phillips accepted, elected, or agreed to accept the non-refundable earnest
money as liquidated damages, or that Phillips “had conceded or given up [his] right to make an
election to accept earnest money as liquidated damages, seek specific performance or seek to
recover its actual damages.” Phillips’s argument is unavailing.
       As provided by this Court in Potlatch Education Association v. Potlatch School District
Number 285:
               When interpreting a contract, this Court begins with the document’s
       language. In the absence of ambiguity, the document must be construed in its
       plain, ordinary and proper sense, according to the meaning derived from the plain
       wording of the instrument. Interpreting an unambiguous contract and determining
       whether there has been a violation of that contract is an issue of law subject to
       free review. A contract term is ambiguous when there are two different reasonable
       interpretations or the language is nonsensical. Whether a contract is ambiguous is
       a question of law, but interpreting an ambiguous term is an issue of fact.
148 Idaho 630, 633, 226 P.3d 1277, 1280 (2010) (internal citations and quotations omitted).
       Of the documents forming the agreement, the following provisions are particularly
relevant to the issues on appeal: (1) RE-21, paragraphs 3(A) and 28; (2) Addendum #1, item #2;
and (3) Counter-Offer #3, paragraph 2.
       Paragraph 3(A) of RE-21 provides,
       $66,000.00 EARNEST MONEY: BUYER hereby deposits Sixty-Six Thousand
       and Zero/100 DOLLARS as Earnest Money evidenced by: personal check and a
       receipt is hereby acknowledged. Earnest Money to be deposited in trust account
       upon acceptance by all parties and shall be held by: Listing Broker . . . for the
       benefit of the parties hereto.
Paragraph 28 of RE-21 provides,
        DEFAULT: If BUYER defaults in the performance of this Agreement, SELLER
        has the option of: (1) accepting the Earnest Money as liquidated damages or (2)
        pursuing any other lawful right and/or remedy to which SELLER may be entitled
        . . . . SELLER and BUYER specifically acknowledge and agree that if SELLER
        elects to accept the Earnest Money as liquidated damages, such shall be
        SELLER’s sole and exclusive remedy.
(emphasis added). Addendum #1, item #2 provides,
        The $66,000.00 down payment is non-refundable and will be released to seller
        upon buyer’s written acceptance of the inspection and credited to buyer at closing.
(emphasis added). Finally, paragraph 2 of Counter-Offer #3 provides,
        The Buyer shall pay earnest money in the $66,000.00 which earnest money shall
        become non-refundable and shall be paid directly to Seller immediately on the
        satisfaction of Buyer’s inspection contingency and the contingency of the Buyer’s
        attorney’s review of this document and the attached lease . . . . The earnest money
        shall be credited to buyer toward the purchase price at closing.
(emphasis added).
        “The amended agreements should be construed together with the original agreements
where possible.” Opportunity, LLC, 136 Idaho at 607, 38 P.3d at 1263 (citing Silver Syndicate,
Inc. v. Sunshine Min. Co., 101 Idaho 226, 235, 611 P.2d 1011, 1020 (1979)). However, “addenda
are controlling over any inconsistent provisions in a pre-printed, fill-in-the-blank agreement.”
Johnson v. Lambros, 143 Idaho 468, 474, 147 P.3d 100, 106 (Ct. App. 2006) (citing I.C. § 29-
109).
        Further, a party’s subjective intent is immaterial to the interpretation of the contract. J.R.
Simplot Co. v. Bosen, 144 Idaho 611, 614, 167 P.3d 748, 751 (2006). Instead, courts will give
full “force and effect to the words of the contract without regard to what the parties of the
contract thought it meant or what they actually intended it to mean.” Id. (quoting 17 Am. Jur. 2d
Contracts § 347 (2004)).
        Although “courts in some states have held that the presence of an option to choose
between liquidated damages and actual damages renders a liquidated damages provision
unenforceable,” Ravenstar LLC v. One Ski Hill Place LLC, No. 14CA2401, 2016 WL 335142,
*1–9 (Colo. App. Jan. 28, 2016), Idaho is one of several states that have upheld provisions
allowing sellers to choose between liquidated and actual damages. See, e.g., Margaret H. Wayne
Trust v. Lipsky, 123 Idaho 253, 258, 846 P.2d 904, 909 (1993).
        Here, the rights of the parties were defined by the agreement. Under the terms of RE-21,
the amount of liquidated damages for this agreement was to consist of the $66,000 earnest
money paid by Gomez and held in the broker’s trust account. In the event Gomez defaulted,
paragraph 28 of RE-21 gave Phillips the option of either accepting the earnest money as
liquidated damages or pursuing any other lawful right or remedy to which Phillips was entitled.
Thus, before the addendum amending the form agreement, the earnest money would not be
turned over to Phillips until or unless one of the following events occurred: (1) it was credited
against the purchase price at closing, (2) the broker turned it over to Phillips as liquidated
damages in the event of a default if Phillips so elected, or (3) in the event Phillips elected “any
other lawful right and/or remedy” to which Phillips may be entitled, it was to be separately held
pending resolution of the matter.
       However, the parties amended and added terms to RE-21, making the earnest money non-
refundable and immediately available to Phillips without any restrictions. The amendments did
not make any mention of what would happen if Gomez defaulted and Phillips decided to pursue
actual damages instead of liquidated damages, being that Phillips had already transferred and
retained the earnest money thirteen months prior to the scheduled closing date. The parties could
have stipulated that such retention of the earnest money is not an acceptance or election of
liquidated damages; however, the parties did not do so. Therefore, a plain reading of the
agreement indicates that Phillips pre-elected his remedy for Gomez’s breach of the contract.
       Moreover, there is language in three other provisions in Counter-Offer #3 supporting the
district court’s conclusion that Phillips pre-elected the earnest money as liquidated damages.
Each provision similarly addresses a material breach and similarly makes no mention of actual
damages.
       For example, paragraph 5 of Counter-Offer #3 provides,
       [B]uyer/Lessee’s failure to make any lease payment when the same is due and
       payable shall constitute a material breach of Buyer’s obligations the terms of this
       Real Estate Purchase and Sale Agreement and . . . Seller may, at its sole election,
       terminate this Agreement and the said lease and retain Buyer’s earnest money
       payment, together with any lease payments Buyer may have made, as liquidated
       damages and Buyer shall have no further right or claim of interest in the subject
       premises . . . . Buyer will remain responsible to Seller for any damages Seller may
       cause to the premises while occupying the same and Seller may recover any such
       damages in addition to the liquidated damages hereinabove provided for.
(emphasis added).
       Paragraph 13 of Counter-Offer #3 provides in relevant part, “[i]n the event this sale does
not close, Coldwell Banker Tomlinson Group may retain the $3960.00 being paid to it as its sole
compensation for its services as an agent in this matter.” Although this provision does not
address a remedy specifically available to Phillips, this provision shows that the parties
contemplated the realtor’s remedy being a portion of the earnest money.
        Finally, paragraph 14 of Counter-offer #3 provides,
        If Buyer should file for bankruptcy at any time prior to the closing of this
        transaction, Buyer agrees that such filing shall constitute a material breach of the
        terms of both this Purchase and Sale Agreement and its lease with Seller and
        Seller may . . . retain any and all monies paid to it by Buyer, whether in the form
        of earnest money or lease payments, as liquidated damages which sum Buyer and
        Seller agree would be fair and reasonable liquidated damages to Seller for such
        breach of this Agreement . . . .
        Thus, although the amendments to RE-21 did not specifically state that making the
earnest money non-refundable was an advance election of remedies, when Phillips availed
himself of the earnest money, he foreclosed his ability to pursue actual damages. See, e.g.,
McMullin v. Shimmin, 349 P.2d 720, 720–21 (Utah 1960) (holding that the seller’s retention of
the deposit evidenced an election of liquidated damages by the seller). Further, the parties’ intent
is supported by other similar provisions in the amendments. In effect, Phillips was entitled to the
full measure of the liquidated damage remedy from the outset. To conclude otherwise would
permit recovery of both liquidated and actual damages, a result contrary to the language of the
agreement and the decisions of this Court. See, e.g., Lipsky, 123 Idaho at 257–58, 846 P.2d at
908–09.
        Phillips offers outside evidence 3 for this Court to consider in ascertaining the parties’
intent. However, because the parties’ intent can be determined from the agreement itself, this
Court will not consider this evidence.
        “In the absence of ambiguity, a document must be construed by the meaning derived
from the plain wording of the instrument.” Brown v. Greenheart, 157 Idaho 156, 166, 335 P.3d
1, 11 (2014) (citing C & G, Inc. v. Rule, 135 Idaho 763, 765, 25 P.3d 76, 78 (2001)). The
language of the agreement is free from conflicting interpretations by reasonable persons. It is
clear that Phillips initially, under the terms of RE-21, had the option of accepting the earnest
money as liquidated damages or bringing an action for recovery of actual damages. However,
when the parties amended RE-21, thereby making the earnest money non-refundable and


3
  A Memorandum of Understanding Re: Terms of Month to Month Lease, and two demand letters from Phillips’s
attorney.
immediately transferable to Phillips, Phillips pre-elected the earnest money as liquidated
damages, regardless of what Phillips subjectively intended.
       B. The damages award Phillips seeks is not permitted either by the terms of the
          agreement or by law.
       Phillips contends that the agreement gave Phillips the “option of either accepting the non-
refundable earnest money [he] had received as liquidated damages or, giving [Gomez] full credit
for the non-refundable earnest money, instituting an action to recover its actual damages.”
Phillips’s argument is unavailing.
       As the district court correctly found, the agreement gave Phillips an option between
liquidated damages or actual damages, but it did not permit Phillips to choose both. Specifically,
paragraph 28 of RE-21 states in relevant part, “SELLER has the option of: (1) accepting the
Earnest Money as liquidated damages or (2) pursuing any other lawful right and/or remedy to
which SELLER may be entitled. . . . If SELLER elects to accept the Earnest Money as liquidated
damages, such shall be SELLER’s sole and exclusive remedy . . . .” (emphasis added). The word
“or” is “a disjunctive particle used to express an alternative or to give a choice of one among two
or more things.” City of Blackfoot v. Spackman, 162 Idaho 302, __, 396 P.3d 1184, 1189 (2017)
(quoting Markel Int’l Ins. Co., Ltd v. Erekson, 153 Idaho 107, 110, 279 P.3d 93, 96 (2012). Thus,
the RE-21 agreement gave Phillips the choice to elect either liquidated damages or actual
damages, but did not provide Phillips both remedies without an actual election.
       Phillips cites this Court to Lipsky to support his argument that the agreement itself
permitted Phillips to retain the non-refundable earnest money as partial satisfaction and pursue
actual damages for the remaining balance. However, as Gomez correctly contends, Lipsky does
not stand for that proposition. And more importantly, Lipsky did not involve a non-refundable
earnest money deposit.
       In Lipsky, this Court held that the presence of a liquidated damages clause in an earnest
money agreement did not preclude the non-defaulting seller from recovery of actual damages
suffered when the buyer breached the agreement. 123 Idaho at 257, 846 P.2d at 908. The
standard printed real-estate purchase and sale agreement form provided for the purchaser to pay
$1,000 in earnest money and contained a liquidated damages clause. Id. at 255, 846 P.2d at 906.
Specifically, the form provided in relevant part, that in the event of the buyer’s breach,
       [t]he earnest money shall be forfeited and considered as liquidated damages to
       Seller, and Buyer’s interest in the premises shall be immediately terminated . . . .
         Such forfeiture and acceptance by Seller or Broker of the earnest money as
         liquidated damages does not constitute a waiver of other remedies available to
         Seller or Broker.
Id. at 257, 846 P.2d at 908. The buyer informed the seller that he did not intend to close and
would forfeit the earnest money he had paid. Id. at 255, 846 P.2d at 906. The seller refused to
accept the earnest money as liquidated damages and brought suit for actual damages. Id. at 256,
846 P.2d at 907.
         This Court reasoned that the contractual provision that allowed the non-defaulting seller
to retain the earnest money as liquidated damages without “a waiver of other remedies indicated
that the seller’s acceptance of earnest money as liquidated damages would be optional, with the
seller preserving her right to seek any other remedies available to her.” Id. at 257, 846 P.2d at
908. This Court further explained that, “In spite of the fact that the clause is poorly written, it is
clear from a reading of the agreement as a whole that the seller has the option of accepting the
forfeited earnest money as liquidated damages, bringing an action for recovery of actual
damages, or seeking specific performance.” Id. at 257–58, 846 P.2d at 908–09 (emphasis added);
see also Noble v. Ogborn, 717 P.2d 285, 287 (Wash. Ct. App. 1986) (explaining that a
“liquidated damages clause does not preclude a party from suing for actual damages if that right
is preserved in the contract between the parties.”).
         In this case, it is undisputed per RE-21, that Phillips had the option of either accepting the
earnest money as liquidated damages or pursuing any other lawful right or remedy (actual
damages). The plain language of RE-21 supports these two different legal choices. However,
Phillips essentially contends that the language of the agreement does not confine Phillips to
liquidated damages; rather, he may retain the earnest money as partial satisfaction for his actual
damages, whatever they may be. Lipsky did not address this issue.
         Idaho has no case construing whether the “or” language contained in the default
provision—paragraph 28 of RE-21—permits a non-defaulting seller the option of retaining an
earnest money deposit and pursuing actual damages for any remainder not covered by the earnest
money. However, in 1962, the Wisconsin Supreme Court held, on facts almost identical to these,
that the seller, who retained the down payment under a provision of the contract, exercised the
option to treat the down payment as liquidated damages and therefore, no cause of action for
actual damages remained to him. Zimmerman v. Thompson, 114 N.W.2d 116, 117–18 (Wis.
1962).
       In Zimmerman, the seller and the buyer entered into a real estate contract whereby the
buyer agreed to pay $500 down and thereafter the remaining balance of $43,000. Id. at 116. The
buyer defaulted, causing the seller to re-sell the property to a third party. Id. The seller retained
the $500 down payment and brought a lawsuit “against the buyer for $2,000 which the seller
alleges was the actual damage caused by the buyer’s default after crediting the $500 kept by the
seller.” Id. at 117. The provision in the contract recited:
       Should the undersigned Buyer fail to carry out this agreement, all money paid
       hereunder shall, at the option of the Seller, be forfeited as liquidated damages and
       shall be paid to or retained by the Seller, subject to deduction of broker’s
       commission and disbursements, if any.
Id. at 116–17. The court held that this specific provision in the contract
       [g]ives the seller an option to take liquidated damages or to take whatever actual
       damages he can prove, but it does not give him the right to both. If he chooses
       liquidated damages he may retain the down payment without further fuss or
       bother. If he chooses actual damages the contract gives him no additional present,
       simultaneous, right to retain the down payment. He has retained it and is now
       trying to expand the limited right of retention into a right to keep the money and
       apply it on whatever larger damages he can establish. The contract does not so
       provide.
Id. at 117; see also Osborn v. Dennison, 768 N.W.2d 20, 30 (Wis. 2009) (explaining that “[t]he
overriding principle in this commonplace consumer transaction is that, when the buyer defaults
and the seller wants damages (not specific performance), the seller has the option to seek either
liquidated damages or actual damages, but not both”) (citing Galatowitsch v. Wanat, 620 N.W.2d
618, 622–25 (Wis. Ct. App. 2000)).
       Here, Phillips retained the $66,000 earnest money deposit as he rightfully could do, but
then brought action against Gomez for the remaining actual damages after “crediting” Gomez the
$66,000 kept by Phillips. Phillips is trying to expand the limited right of retention into a right to
keep the deposit and apply it to whatever larger damages he can establish. The contract does not
so provide. Though Phillips contends the earnest money was a down payment toward actual
damages, there is no plain language in any of the five documents showing that this was the
parties’ intent. Such a clause that allowed Phillips to keep the earnest money and pursue actual
damages would have been easy to include, and should have been included if that was what the
parties so intended. The default clause in this agreement gave Phillips the option of accepting the
earnest money as liquidated damages or pursuing any other legal right or remedy, but it did not
give him the right to both. Because the parties did not expressly reserve such a right, the earnest
money as liquidated damages is Phillips’s exclusive remedy. Accordingly, no cause of action for
actual damages remains to him.
   C. Neither party is entitled to attorney fees on appeal.
       Phillips and Gomez both request attorney fees and costs on appeal in their statements of
issues in their briefs. However, neither party has presented any argument on this issue in their
briefs as required under Idaho Appellate Rules 35(a)(6) and 35(b)(6).
       “Where a party requesting attorney fees on appeal cites the applicable statutes but does
not present argument ‘with respect to the issues presented on appeal, the reasons therefor, with
citations to the authorities, statutes and parts of the transcript and record relied upon,’ ” this
Court will not address the issue. Carl H. Christensen Family Trust v. Christensen, 133 Idaho
866, 874, 993 P.2d 1197, 1205 (1999) (quoting Weaver v. Searle Bros., 131 Idaho 610, 616, 962
P.2d 381, 387 (1998)). Because neither party presented the necessary argument, this Court
declines to award attorney fees on appeal.
                                      V.     CONCLUSION
       We affirm the judgment in favor of Gomez. We do not award attorney fees on appeal
because neither party presented argument on this issue in briefing. We award costs on appeal to
Gomez.
       Justices JONES, HORTON, BRODY and KIDWELL, J., Pro Tem, CONCUR.
