                      IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 44722 / 45368

VAL D. WESTOVER,               )                               Boise, June 2018 Term
                               )
    Plaintiff-Appellant,       )                               Filed: November 28, 2018
                               )
v.                             )                               Karel A. Lehrman, Clerk
                               )
IDAHO COUNTIES RISK MANAGEMENT )                               SUBSTITUTE OPINION. THE
PROGRAM,                       )                               COURT’S PRIOR OPINION
                               )                               DATED SEPTEMBER 6, 2018,
    Defendant-Respondent.      )                               IS HEREBY WITHDRAWN.
                               )

        Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
        Franklin County. Hon. Mitchell W. Brown, District Judge.

        The judgment of the district court is affirmed.

        Atkin Law Office, PC, Clifton, for appellant. Blake S. Atkin argued.

        Anderson, Julian & Hull, LLP, Boise, for respondent. Phillip J. Collaer argued.

              _______________________________________________

HORTON, Justice.
        Val D. Westover filed this action seeking a declaration that the existence of the Idaho
Counties Risk Management Program (ICRMP) violates Idaho law. Westover appeals from the
district court’s grant of summary judgment in favor of ICRMP. Westover also appeals the district
court’s decision to award attorney fees to ICRMP under Idaho Code section 12-121. The district
court held that Westover did not have standing to pursue his claim. We affirm the judgment of
the district court.
                      I.   FACTUAL AND PROCEDURAL BACKGROUND
        This litigation follows an earlier dispute between Westover and Jase Cundick, the
Franklin County Assessor. That dispute came before this Court in Westover v. Cundick, 161
Idaho 933, 393 P.3d 593 (2017). There, Westover advanced claims for slander of title and
intentional interference with existing or potential economic relations and sought writs of mandate
and prohibition. Id. at 935, 393 P.3d at 595. After Westover voluntarily dismissed the slander of

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title and tortious interference claims, the district court denied his requests for extraordinary writs
and dismissed the action. Id. at 936, 393 P.3d at 596. Westover appealed. We affirmed the
judgment of the district court and declined to award attorney fees to either party. Id. at 937–38,
393 P.3d at 597–98.
         Westover then brought this action, seeking a declaration that ICRMP’s existence and
relationship with county governments violates the directive in Idaho Code section 12-117(3) that
attorney fees awarded against a state agency or political subdivision “shall be paid from funds in
the regular operating budget . . . .”
         ICRMP moved for summary judgment, contending that Westover lacked standing to
pursue his claim. In response, Westover moved for an order compelling discovery and opposed
ICRMP’s motion for summary judgment on the basis that ICRMP had failed to adequately
respond to his discovery requests. The district court treated Westover’s opposition as a motion
under Idaho Rule of Civil Procedure 56(d) to defer decision on the motion for summary
judgment. The district court denied the motion because Westover had not complied with the
affidavit or declaration requirement of the rule. The district court then granted ICRMP’s motion.
In a written opinion, the district court held that Westover lacked standing to pursue the action,
relying on this Court’s decision in Brooksby v. Geico General Insurance Company, 153 Idaho
546, 286 P.3d 182 (2012), overruled on other grounds by Tucker v. State, 162 Idaho 11, 394 P.3d
54 (2017).
         After granting ICRMP’s motion for summary judgment, ICRMP moved for attorney fees
under Idaho Code section 12-121 on the grounds that Westover’s appeal was frivolous and
without foundation. The district court denied this request solely because none of the materials in
support of ICRMP’s motion itemized the claimed expenses as required. ICRMP filed a motion to
reconsider the district court’s denial of attorney fees. The district court granted the motion to
reconsider and subsequently granted the request for attorney fees after the itemization issue was
resolved. 1 Westover timely appealed.
                                    II.      STANDARD OF REVIEW



1
  The district court granted the motion to reconsider after accepting an affidavit containing the required itemization
that was not originally included in the court’s record. The district court accepted this affidavit pursuant to Idaho
Rule of Civil Procedure 60(a) after a motion from ICRMP. Because Westover has not challenged that decision on
appeal, we shall not address it.

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       A motion pursuant to Idaho Rule of Civil Procedure 56(d) for an extension of time to file
additional affidavits, depositions, and interrogatories in opposition to a motion for summary
judgment is committed to the discretion of the district court. Haight v. Idaho Dep’t of
Transportation, 163 Idaho 383, 388, 414 P.3d 205, 210 (2018). “The awarding of attorney fees
and costs is within the discretion of the trial court and subject to review for an abuse of
discretion.” Smith v. Mitton, 140 Idaho 893, 897, 104 P.3d 367, 371 (2004). When this Court
reviews an alleged abuse of discretion by a trial court, we consider “[w]hether the trial court: (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).
        “Jurisdictional issues, like standing, are questions of law, over which this Court exercises
free review.” Tucker v. State, 162 Idaho 11, 17, 394 P.3d 54, 60 (2017) (quoting In re Jerome
Cnty. Bd. of Comm’rs, 153 Idaho 298, 308, 281 P.3d 1076, 1086 (2012)). “[J]usticiability
challenges are subject to Idaho Rule of Civil Procedure 12(b)(1) since they implicate
jurisdiction.” Id. at 18, 394 P.3d at 61. “[J]justiciability doctrines can be raised sua sponte at any
time.” Id. at 18 n.4, 394 P.3d at 61 n.4.
                                        III.    ANALYSIS
       A. The district court did not err in ruling on ICRMP’s motion for summary
          judgment.
       As a preliminary issue, Westover argues that the district court erred by not considering
his motion to compel that was filed in opposition to ICRMP’s motion for summary judgment.
The district court treated this motion as made under Idaho Rule of Civil Procedure 56(d). That
Rule provides:
               If a nonmovant shows by affidavit or declaration that, for specified
       reasons, it cannot present facts essential to justify its opposition, the court may:
       (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
       declarations or to take discovery; or (3) issue any other appropriate order.
I.R.C.P. 56(d). We recently explained these requirements in Fagen, Inc. v. Lava Beds Wind Park,
LLC, 159 Idaho 628, 368 P.3d 1193 (2016):
       The rule clearly contemplates that such a motion must be supported with an
       affidavit stating the reasons why the continuance is necessary. The party seeking a
       continuance has the burden of setting out what further discovery would reveal that


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         is essential to justify their opposition, making clear what information is sought
         and how it would preclude summary judgment.
Id. at 632, 364 P.3d at 1197 (internal quotations and citations omitted).
         The district court found no basis for delaying consideration of ICRMP’s motion:
         Westover has wholly failed to comply with I.R.C.P. 56(d). He did not file a
         motion requesting any relief allowed pursuant to I.R.C.P. 56(d) . . . . He did not
         file an affidavit or declaration setting forth a “specified reason” for any of the
         relief allowed . . . .
On appeal, Westover does not dispute the district court’s description of the procedural posture of
his motion. Indeed, his opening brief does not identify the standard of review relating to a motion
pursuant to Rule 56(d), I.R.C.P., much less attempt to explain why the district court’s decision
constituted an abuse of discretion. This is fatal to his contention that the district court erred by
entertaining ICRMP’s motion for summary judgment without deciding his motion to compel.
Mortensen v. Berian, 163 Idaho 47, 53, 408 P.3d 45, 51 (2017).
         B. The district court properly dismissed Westover’s action.
         Turning to the substance of Westover’s appeal, he challenges the district court’s
determination that he lacked standing to advance his claim that ICRMP’s existence and
relationship with county governments violates the requirement in Idaho Code section 12-117(3)
that attorney fees awarded against a state agency or political subdivision “shall be paid from
funds in the regular operating budget . . . .” Westover contends that Idaho Code section 10-1202
gives him standing as a “person interested . . . whose rights, status or other legal relations are
affected by a statute [or] contract . . . .” The district court granted summary judgment after
finding that Westover had “no contractual, tortious or other legal basis or standing to sue” and,
absent an actual or justiciable controversy, Idaho’s Uniform Declaratory Judgment Act, Idaho
Code sections 10-201–10-1216, did not independently give Westover standing to pursue his
claim.
         “Justiciability is generally divided into subcategories—advisory opinions, feigned and
collusive cases, standing, ripeness, mootness, political questions, and administrative questions.”
Wylie v. State, 151 Idaho 26, 31, 253 P.3d 700, 705 (2011) (quoting Miles v. Idaho Power Co.,
116 Idaho 635, 639, 778 P.2d 757, 761 (1989)). “Concepts of justiciability . . . identify
appropriate or suitable occasions for adjudication by a court.” Coeur d’Alene Tribe v. Denney,
161 Idaho 508, 513, 387 P.3d 761, 766 (2015) (quoting State v. Philip Morris, Inc., 158 Idaho
874, 881, 354 P.3d 187, 194 (2015)). This Court has previously stated that Idaho Code section

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10-1202 applies only “ ‘in a case where an actual or justiciable controversy exists.’ This concept
precludes courts from deciding cases which are purely hypothetical or advisory.” Wylie, 151
Idaho at 31, 253 P.3d at 705 (quoting State v. Rhoades, 119 Idaho 594, 597, 809 P.2d 455, 458
(1991)). Because the Idaho Constitution does not contain a strict case or controversy
requirement—unlike the federal Constitution—the justiciability requirement is a “self-imposed
constraint” that may be relaxed in rare cases to guarantee “important constitutional provisions.”
Coeur d’Alene Tribe, 161 Idaho at 513–14, 387 P.3d at 766–67.
       The different justiciability doctrines are closely related and can often overlap when no
actual case or controversy exists. Although the district court considered only whether Westover
had standing, we are free to affirm the result on different grounds. See, e.g., Murray v. State, 156
Idaho 159, 164, 321 P.3d 709, 714 (2014). In our view, there is no justiciable controversy
because Westover seeks an impermissible advisory opinion.
       Westover’s theory is that ICRMP insulates its insured from the financial risks associated
with litigation created by Idaho Code section 12-117(3) 2 and thus “undermines the legislature’s
intent to bring some modicum of reasonableness to local government by requiring the
government actors to have skin in the game.” He claims standing because the Franklin County
Assessor took unreasonable positions in the previous action that protracted the litigation, thus
increasing the costs for all parties involved.
        We first observe that declaratory judgment actions run a particular risk of crossing the
“fine line between purely hypothetical or academic questions and actually justiciable cases.”



2
  The statute provides:
                Expenses awarded against a state agency or political subdivision
        pursuant to this section shall be paid from funds in the regular operating
        budget of the state agency or political subdivision. If sufficient funds are not
        available in the budget of the state agency, the expenses shall be considered a
        claim governed by the provisions of section 67-2018, Idaho Code. If sufficient
        funds are not available in the budget of the political subdivision, the expenses
        shall be considered a claim pursuant to chapter 9, title 6, Idaho Code. Every state
        agency or political subdivision against which litigation expenses have been
        awarded under this act shall, at the time of submission of its proposed budget,
        submit a report to the governmental body which appropriates its funds in which
        the amount of expenses awarded and paid under this act during the fiscal year is
        stated.
I.C. § 12-117(3) (emphasis added).
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Rhoades, 119 Idaho at 598, 809 P.2d at 459. We have previously discussed the case or
controversy requirement’s relationship with advisory opinions:
              A controversy in this sense must be one that is appropriate for judicial
       determination. A justiciable controversy is thus distinguished from a difference or
       dispute of a hypothetical or abstract character; from one that is academic or moot.
       The controversy must be definite and concrete, touching the legal relations of
       parties having adverse legal interests. It must be a real and substantial
       controversy admitting of specific relief through a decree of a conclusive character,
       as distinguished from an opinion advising what the law would be upon a
       hypothetical state of facts.
Harris v. Cassia Cnty., 106 Idaho 513, 516, 681 P.2d 988, 991 (1984) (emphasis added) (quoting
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241–42 (1937)). “Therefore, courts will not rule
on declaratory judgment actions which present questions that are moot or abstract.” Wylie, 151
Idaho at 31, 253 P.3d at 705. “An action for declaratory judgment is moot where the judgment, if
granted, would have no effect either directly or collaterally on the plaintiff, the plaintiff
would be unable to obtain further relief based on the judgment and no other relief is sought in the
action.” Idaho Sch. for Equal Educ. Opportunity By & Through Eikum v. Idaho State Bd. of
Educ. By & Through Mossman, 128 Idaho 276, 282, 912 P.2d 644, 650 (1996) (emphasis added).
       We understand Westover’s frustration with the previous litigation; indeed, one member
of this Court characterized the Franklin County Assessor’s conduct as “pigheaded” during oral
argument. Nevertheless, the fact remains that the previous litigation did not result in an award of
attorney fees under Idaho Code section 12-117, either before the trial court or on appeal. There is
no indication that Westover is currently or prospectively involved in litigation to which Idaho
Code section 12-117 may apply. Thus, Westover’s declaratory judgment action is completely
hypothetical; any interpretation of Idaho Code section 12-117 by this Court would have no direct
practical effect on Westover, perhaps apart from a sense of vindication. As such, we hold that the
district court properly dismissed Westover’s request for a non-justiciable advisory opinion.
       C. Westover has not shown that the district court abused its discretion in awarding
          attorney fees to ICRMP under Idaho Code section 12-121.
       Westover also argues that the district court abused its discretion in awarding ICRMP
attorney fees pursuant to Idaho Code section 12-121 after finding that his claim was pursued
without foundation. “An award of attorney fees under Idaho Code § 12-121 is discretionary; but
it must be supported by findings and those findings, in turn, must be supported by the record.”
Partout v. Harper, 145 Idaho 683, 689, 183 P.3d 771, 777 (2008). When analyzing one of the

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essential elements of the abuse of discretion test, we have said that our role “is to review the
process the district court engaged in to make its decision.” State v. Le Veque, ___ Idaho ___,
___, ___ P.3d ___, ___ (2018).
       On appeal, Westover equates the attorney fee award against him to “sanctions” both in
name and by citing to federal case law regarding the legal standard for sanctions under Federal
Rule of Civil Procedure 11. We are unwilling to draw the same comparison. Instead, Westover
should have relied upon the body of Idaho law interpreting Idaho Code section 12-121.
       D. Review of the district court’s analysis of the required factors under Idaho Rule of
          Civil Procedure 54(e)(3) shows no error. While it may seem anomalous that we are
          affirming the district court’s award of attorney fees while declining to award them on
          the same grounds, this highlights the deference shown under the abuse of discretion
          standard of review. As we have previously noted: “the question is not ‘whether we
          would have reached a different conclusion.’ ” Estate of Ekic v. Geico Indem. Co., 163
          Idaho 895, ___, 422 P.3d 1101, 1105 (2018). Indeed, we have issued similar opinions
          before. See Partout v. Harper, 145 Idaho 683, 183 P.3d 771 (2008). We find that
          Westover has not shown that the district court abused its discretion in awarding
          attorney fees to ICRMP.Westover has not shown that the district court abused its
          discretion in granting ICRMP’s motion to reconsider.
       Westover also argues that the district court abused its discretion by granting ICRMP’s
motion to reconsider its initial decision to deny ICRMP’s request for attorney fees. Westover
contends that this Court should review that decision for “correctness.” However, as we have
made clear, the standard of review for a decision to grant or deny a motion for consideration is
more nuanced:
       On a motion for reconsideration, the court must consider any new admissible
       evidence or authority bearing on the correctness of an interlocutory order.
       However, a motion for reconsideration need not be supported by any new
       evidence or authority. When deciding the motion for reconsideration, the district
       court must apply the same standard of review that the court applied when
       deciding the original order that is being reconsidered. In other words, if the
       original order was a matter within the trial court’s discretion, then so is the
       decision to grant or deny the motion for reconsideration. If the original order was
       governed by a different standard, then that standard applies to the motion for
       reconsideration. Likewise, 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. If the decision
       was within the trial court’s discretion, we apply an abuse of discretion standard.
Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113 (2012).Thus we analyze the
district court’s decision to grant ICRMP’s motion to reconsider for an abuse of discretion.


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       However, Westover has failed to articulate this standard in his briefing or elucidate any
reasons for his belief that the district court erred. As we have repeatedly noted:
       when a party “does not contend that the district court failed to perceive the issue
       as one of discretion, that the district court failed to act within the boundaries of
       this discretion and consistent with the legal standards applicable to the specific
       choices available to it[,] or that the district court did not reach its decision by an
       exercise of reason,” such a conclusory argument is “fatally deficient” to the
       party's case.
Estate of Ekic, 163 Idaho at ___, 422 P.3d at 1105 (quoting State v. Kralovec, 161 Idaho 569,
575 n.2, 388 P.3d 583, 589 n.2 (2017)). Because Westover has not properly argued this issue, his
appeal of this issue is fatally deficient and he cannot prevail.
       Further, as we noted above, when analyzing discretionary decisions of trial courts, our
role “is to review the process the district court engaged in to make its decision.” Le Veque, ___
Idaho at ___, ___ P.3d at ___. The district court performed the process correctly. It recognized
the issue as one of discretion and acted within the outer bounds. Its decision was consistent with
the applicable legal standards and reasonable. Thus in our view, Westover has not shown that the
district court abused its discretion in granting ICRMP’s motion to reconsider.
       E. ICRMP is not entitled to an award of attorney fees on appeal.
       ICRMP has prevailed in this appeal. ICRMP asks that it be awarded attorney fees under
Idaho Code section 12-121 because Westover’s appeal was “brought, pursued, or defended
frivolously, unreasonably or without foundation.” We are not persuaded that Westover’s appeal
has been frivolously pursued. Accordingly, we do not award attorney fees to ICRMP.
                                        IV.     CONCLUSION
       We affirm the judgment and other decisions of the district court. We award costs, but not
fees, to ICRMP.


       Chief Justice BURDICK, Justices BRODY, BEVAN and Justice Pro Tem SCHROEDER
CONCUR.




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