                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                      Docket No. 42744
H. PETER DOBLE II, M.D., an individual             )
residing in the State of Idaho,                    )
                                                   )
    Plaintiff-Appellant,
                                                   )
v.                                                 )
                                                   )         Boise, April 2016 Term
INTERSTATE AMUSEMENTS, INC., an                    )
Idaho corporation,                                 )         2016 Opinion No. 52
                                                   )
    Defendant-Respondent,                          )         Filed: May 3, 2016
                                                   )
and
                                                   )         Stephen W. Kenyon, Clerk
DOES 1-50, inclusive,                              )
                                                   )
    Defendants.                                    )
                                                   )
                                                   )
       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       District court order awarding attorney fees under Idaho Code Section 12-121,
       affirmed.

       Marsh Rosa, LLP, Boise, for appellant. Angelo L. Rosa argued.

       Worst, Fitzgerald & Stover, PLLC, Twin Falls, for respondent. David W. Gadd
       argued.

                          _________________________________




BURDICK, Justice
       H. Peter Doble II (Doble) appeals the Twin Falls County District Court’s order awarding
Interstate Amusements, Inc. (Interstate) attorney fees under Idaho Code section 12-121. The
district court ruled that fees were appropriate under section 12-121 because Doble’s claims were
brought frivolously, unreasonably, and without foundation. We affirm.


                                                1
                    I. FACTUAL AND PROCEDURAL BACKGROUND
        Interstate owned and operated a number of movie theaters throughout Magic Valley. As
part of its business, Interstate marketed and sold vouchers known as “Cinema Cash.” These
vouchers were purchased in $1.00 increments and could be redeemed for movie tickets and
concessions sold at Interstate’s various theater locations. Each voucher was clearly marked with
an expiration date after which the voucher was no longer redeemable. In or around December
2013, Doble attempted to redeem a Cinema Cash voucher at one of Interstate’s movie theaters in
Twin Falls. However, the voucher had passed its expiration date and was rejected by the ticket
booth employee.
        On March 28, 2014, Doble filed a Complaint against Interstate in which he alleged that
the issuance of Cinema Cash violated Idaho’s Consumer Protection Act (ICPA). Specifically,
Doble alleged that the issuance of Cinema Cash with an expiration date violated the ICPA as an
“unconscionable method, act or practice in the conduct of [a] trade or commerce” that “stands to
outrage or offend the public conscience.” Both parties filed motions for summary judgment. On
June 23, 2014, the district court heard oral argument and granted summary judgment in favor of
Interstate.
        Thereafter, on October 14, 2014, the district court issued its Memorandum Opinion Re:
Defendant’s Claim for Costs and Attorney Fees. Noting that an award of fees was within its
discretion, the district court found that Doble brought his action “frivolously, unreasonably, and
without foundation” and awarded Interstate attorney fees under Idaho Code section 12-121. The
district court then entered an amended judgment stating: “The defendant, Interstate Amusement,
Inc., shall recover from the plaintiff costs in the amount of $320.44 and attorney’s fees in the
amount of $7,972.50, for a total of $8,292.94.”




                                         II. ANALYSIS
        Doble claims that his action is not frivolous because his case is about protecting
consumers from predatory practices and is based on existing law under the ICPA and a good
faith argument for the extension of existing law. The district court found that Doble’s claim was
not supported by existing law and that Doble’s arguments for an extension of existing law were
unfounded and unreasonable. The district court was correct.

                                                  2
A. The district court did not abuse its discretion when it awarded attorney fees under
Idaho Code section 12-121.
         “This court has held that in deciding whether an award of attorney’s fees is proper, ‘the
sole question is whether the losing party’s position is so plainly fallacious as to be deemed
frivolous, unreasonable, or without foundation.’ ” Auto. Club Ins. Co. v. Jackson, 124 Idaho 874,
879, 865 P.2d 965, 970 (1993) (quoting Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119
Idaho 87, 92, 803 P.2d 993, 998 (1991)). “The district court’s determination as to whether an
action was brought or defended frivolously will not be disturbed absent an abuse of discretion.”
Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 629, 329 P.3d 1072, 1077 (2013)
(citing Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982)). In determining
whether the district court abused its discretion, “this Court conducts a three-step inquiry: (1)
whether the trial court properly perceived the issue as one of discretion; (2) whether that court
acted within the outer boundaries of such discretion and consistently with any legal standards
applicable to specific choices; and (3) whether the court reached its decision by the exercise of
reason.” Id.
         Doble’s claim is based on the ICPA. The purpose of the ICPA is not to protect consumers
from unwise purchases, but to protect consumers from unfair and deceptive practices. White v.
Mock, 140 Idaho 882, 890, 104 P.3d 356, 364 (2004). In district court, Doble claimed that
Interstate’s sale of Cinema Cash was “misleading, false, or deceptive to the consumer” and
violated the ICPA as an “unconscionable method, act or practice in the conduct of trade or
commerce” that “stands to outrage or offend the public conscience.” However, as the district
court noted, Doble presented no evidence that Interstate’s Cinema Cash program was fraudulent,
deceptive, or misrepresentative in any manner. Indeed, the evidence indicates that the vouchers
were clearly marked with expiration dates. Moreover, Doble failed to offer any evidence that he
actually purchased the rejected vouchers.1 We have consistently held that claims unsupported by
evidence are frivolous and without foundation, e.g., Stevenson v. Windermere Real
Estate/Capital Group Inc., 152 Idaho 824, 830, 275 P.3d 839, 845 (2012); Kiebert v. Goss, 144
Idaho 225, 228–29, 159 P.3d 862, 865–66 (2007), and that claims brought under the ICPA must

1
  There is no evidence in the record that Doble purchased the Cinema Cash vouchers he attempted to redeem in
December 2013. Counsel for Doble was specifically asked about this during oral argument to which counsel
responded that Doble had stated in his affidavit that he purchased the vouchers in question. However, a review of the
affidavit only reflects that Doble purchased Cinema Cash in early March 2014, well after the alleged rejection of the
vouchers in 2013.

                                                         3
be based on a contractual relationship. Taylor v. McNichols, 149 Idaho 826, 846, 243 P.3d 642,
662 (2010) (“[T]he aggrieved party must have been in a contractual relationship with the party
alleged to have acted unfairly or deceptively.” (citing I.C. 48-608(1) (“Any person who
purchases or leases goods or services and thereby suffers . . . .”))). By failing to support his claim
with competent evidence, Doble’s claim lacked proper foundation; and the district court acted
within the bounds of its discretion and consistently with the applicable legal standards by so
ruling.
          Doble attempts to save his argument by asserting that the issue of whether gift vouchers
can include expiration dates is an issue of “first impression” and that by virtue of such
designation his argument was not frivolous or unreasonable. Doble is correct in asserting that
this is an issue of first impression in Idaho, but only because Idaho law does not provide a cause
of action for the selling of gift vouchers with expiration dates. As the district court noted, Idaho
has “no such legislative enactments. Nor does Idaho have any case law from which a credible
argument could be made to permit this cause of action.” Doble argues that other states have
statutorily banned the issuance of gift vouchers with expiration dates and the ICPA should be
interpreted to ban such vouchers as well. However, while it is true that the courts are permitted to
look to the law of other states for guidance in determining the meaning of a statute, a court may
not amend a statute to included offenses not listed therein. Thomas v. Riggs, 67 Idaho 223, 228,
175 P.2d 404, 407 (1946) (“The legislature, and the legislature only, under our constitution, has
power to legislate.”). If the legislature decides to follow the lead of other states and enact a
provision that prohibits the expiration of vouchers or gift certificates it is obviously free to do so,
the courts, however, are not. See, e.g., In re Dampier, 46 Idaho 195, 207, 267 P. 452, 455 (1928)
(“This court is limited to the declaration of the intent of the Legislature, and can
neither legislate nor by construction of the statute enlarge the words to include other conduct of
like, equal, or greater atrocity, simply because it may be within the same mischief to be
remedied, when it is not fairly included in the language of the act.”). Thus, the district court’s
finding that Doble’s argument to expand Idaho’s law was unreasonable was also within the
bounds of its discretion and consistent with applicable legal standards.
          Therefore, because the district court: (1) recognized that an award of fees under section
12-121 was subject to its discretion; (2) found that under the applicable legal standards Doble
failed to support his claim with any evidence that would constitute a violation of existing law or

                                                  4
to make a well grounded argument for the extension of existing Idaho law; and (3) supported its
findings with clear and well-articulated reasoning, we hold that the district court did not abuse its
discretion in awarding fees under Idaho Code section 12-121.2
B. Attorney fees and costs on appeal.
         Interstate requests fees on appeal under Idaho Code section 12-121. “Under I.C. § 12-
121, attorney fees are awarded to the prevailing party if the court is left with the belief that the
proceeding was brought, pursued or defended frivolously, unreasonably, or without foundation.”
Harris v. State, ex rel. Kempthorne, 147 Idaho 401, 406, 210 P.3d 86, 91 (2009). Further, “Under
I.C. § 12–121, a party is entitled to attorney’s fees if the appeal merely invites the appellate court
to second guess the trial court on the weight of evidence.” Kelley v. Yadon, 150 Idaho 334, 338,
247 P.3d 199, 203 (2011).
         Doble’s argument about the district court’s award of attorney fees is simply inviting the
Court to re-weigh the evidence Doble presented to the district court. Doble’s claim that this case
is about protecting consumers from predatory practices misses the mark. The question is, as
Doble himself asserts, whether “Interstate acted lawfully in issuing such vouchers and then
refusing to redeem them;” and as the district court pointed out, Doble presented no evidence or
law to support a claim that the ICPA or other existing Idaho law was violated, nor did he present
a good faith argument for the extension of Idaho law. Doble’s argument is nothing more than an
appeal for the courts to extend the law “to include other conduct” that, while prohibited in the
statutes of other states, is “not fairly included in the language of the [ICPA].” It is well settled
law that the courts will not engage in such activity. See, e.g., In re Dampier, 46 Idaho at 207, 267
P. at 455. Accordingly, we hold this appeal to be “frivolous, unreasonable, and without
foundation” and award costs and fees to Interstate.
                                              III. CONCLUSION
         For the foregoing reasons the judgment of the district court is affirmed. Fees and costs on
appeal to Interstate.
         Chief Justice J. JONES and Justices EISMANN, W. JONES and HORTON, CONCUR.



2
 We note that Idaho Code section 48-608(5) specifically provides for attorney fees in cases arising under the ICPA.
However, neither party addressed the applicability of section 48-608(5) in their briefs or oral arguments to the Court.
Thus, our decision today in no way forecloses any arguments regarding the applicability or exclusivity of that
section in awarding attorney fees in cases arising under the ICPA.

                                                          5
