                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 45105

THE CITY OF MIDDLETON,                   )
                                         )
        Plaintiff-Counterdefendant-      )                   Moscow, April 2018 Term
        Respondent-Cross Appellant,      )
                                         )                   2018 Opinion No. 48
v.                                       )
                                         )                   Filed: May 18, 2018
COLEMAN HOMES, LLC, an Idaho limited )
liability company; WEST HIGHLANDS,       )                   Karel A. Lehrman, Clerk
LLC, an Idaho limited liability company; )
WEST HIGHLANDS SUBDIVISION               )
HOMEOWNERS ASSOCIATION, INC., an )
Idaho corporation; WEST HIGHLANDS        )
LAND DEVELOPMENT, LLC, an Idaho          )
limited liability company,               )
                                         )
        Defendants-Counterclaimants-     )
        Appellants-Cross Respondents.    )

       Appeal from the District Court of the Third Judicial District of the State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       The judgment of the district court is affirmed.

       Givens Pursley LLP, Boise of Appellant. Bradley Dixon argued.

       Borton-Lakey Law Offices, Meridian, for Respondents. Joseph W. Borton
       argued.
            _______________________________________________

BURDICK, Chief Justice.
     Coleman Homes, LLC, West Highlands, LLC, West Highlands Subdivision Homeowner’s
Association, Inc., and West Highlands Land, LLC (collectively, “Appellants”) bring this appeal
from the Canyon County district court. Appellants entered into two agreements with the City of
Middleton (the “City”) regarding impact fees and public access space for the West Highlands
Ranch Subdivision (the “Project”) located in Middleton, Idaho. Soon thereafter, Appellants
asserted the agreements were invalid and unenforceable. In response, the City sought a judgment
from the district court declaring the agreements valid and enforceable. The parties eventually


                                                1
stipulated to the validity of the agreements. Both sides filed motions for summary judgment
asking the district court to interpret the agreements. The district court ultimately ordered
Appellants to designate 12.8 acres of land within the Project as public access space and ruled that
Appellants were obligated to provide a financial guarantee, if necessary. Based on the summary
judgment order, the district court found the City to be the prevailing party and awarded the City
attorney fees under Idaho Code section 12-120(3). Appellants appeal the district court’s
prevailing party determination. The City cross-appeals the district court’s fee award and ruling
that Appellants are obligated to provide a financial guarantee, if necessary.
                   I.   FACTUAL AND PROCEDURAL BACKGROUND
       In 2006, the City approved the Project’s annexation, zoning, and preliminary plat.
Appellants are four entities involved with the Project. Coleman Homes, LLC (“Coleman”) is the
developer who constructs and markets new homes within the Project. West Highlands, LLC
(“West Highlands”) is part owner of the land within the Project. West Highlands Subdivision
Homeowner’s Association, Inc. (“West Highlands Association”) is the active homeowners’
association charged with maintaining and managing the Project. West Highlands Land
Development, LLC (“West Highlands Land”) is also part owner of the land within the Project.
       Due to economic conditions in January 2009, progress on the Project slowed, and
Thomas Coleman, owner of Coleman, sent a subsequent application to the City requesting
modifications to the Project. In this correspondence, Mr. Coleman proposed that Coleman make
certain park improvements, including “approximately 15.1 acres of individual parks with
amenities” that would remain open for public use but be owned and maintained by West
Highlands Association. The City approved the subsequent application in May of 2009.
       When the City originally approved the Project in 2006, the City did not have an impact
fee ordinance. When the City approved the modifications to the Project in May of 2009, the City
still did not have an impact fee ordinance. The City first adopted an impact fee ordinance in July
of 2009—Ordinance 447. However, Ordinance 447 was repealed in July 2012. In the years
between Ordinance 447’s adoption and repeal, the City and Appellants worked toward a
resolution regarding impact fees. These negotiations eventually led to the executing and
recording of two agreements: the West Highlands Impact Fee Agreement and the Parks
Dedication Agreement (collectively, “Agreements”).




                                                 2
          The West Highlands Impact Fee Agreement (“IFA”) was executed between the City,
West Highlands, and Coleman. For purposes of this appeal, the relevant language of the IFA
states:
                  4.3     Notwithstanding the above, in accordance with Idaho Code Section
          67-8215(2), Developer [Coleman] shall not be subject to development impact fees
          or credits thereof subsequently adopted by the City for portions of the
          development where construction has commenced and is pursued according to the
          terms of the permit or development approval.
          ....
                  3.      Financial Guarantee. In the event that Developer applies for
          building permits before completion of the equivalent service level of Parks and
          Streets, Developer shall provide one or more financial guarantees, the form of
          which shall be approved by the City, for Parks and Streets yet to be completed.
          ....
                  6.      Attorneys’ Fees and Costs. . . . In the event a suit or action is
          filed by either party against the other to interpret or enforce this Agreement, the
          unsuccessful party to such litigation agrees to pay to the prevailing party all costs
          and expenses, including attorneys’ fees incurred therein, including the same with
          respect to an appeal.
In sum, the IFA was an agreement that the City would not impose impact fees adopted in the
future against Coleman and West Highlands for the Project.
          The Parks Dedication Agreement (“PDA”) was executed between the City and West
Highlands Association. The PDA ensured that areas within the Project would remain open to the
public but were to be maintained and managed by West Highlands Association. For purposes of
this appeal, the relevant language of the PDA states: “[t]he park lands in the Community subject
to this Agreement shall be those park lands, constituting approximately 12.80 acres . . . .” The
PDA, like the IFA, also mentions attorney fees. In that regard, paragraph nine of the PDA states:
“Any dispute pertaining to the performance, interpretation or enforcement of this Agreement
shall be subject to mediation. . . . The Parties shall share the mediator’s fee and other costs of the
mediation fees equally; provided, however, each Party shall bear its own legal fees.”
          After repealing Ordinance 447, the City adopted a new impact fee ordinance in 2015—
Ordinance 541. 1 The validity of the Agreements came into question at that time and the City
sought declaratory relief that the Agreements were, in fact, valid and enforceable. The City


1
  Ordinance 541 provided the City authority to “collect a $1,485.00 City park impact fee at the time each new
construction residential building permit was issued.” Such ordinance was not applicable to Appellants because the
IFA established that Appellants “shall not be subject to development impact fees or credits thereof subsequently
adopted by the City for portions of the development where construction has commenced . . . .”


                                                       3
began collecting impact fees from Appellants after Appellants repeatedly denied the
enforceability of the Agreements. 2 On March 1, 2016, Appellants amended their original answer
and conceded the validity of the Agreements. The district court entered an order on April 21,
2016, declaring the Agreements were valid and enforceable. The City returned all fees collected
during the course of this initial litigation to Appellants on April 22, 2016.
        The parties then filed cross-motions for summary judgment asking the district court to
interpret the Agreements. Appellants argued the Project was responsible for 6.92 acres of public
access space under the PDA. Conversely, the City argued the Project was responsible for 15.1
acres of public access space under the PDA. The district court found the terms of the PDA were
plain and unambiguous; the Project was responsible for 12.8 acres of public access space. The
district court ordered Coleman to develop and designate 12.8 acres of land within the Project as
open space available to the public and such space was to be owned, maintained, and operated by
West Highlands Association. Additionally, the court ordered that “Coleman must provide one or
more financial guarantees if Coleman applie[d] for building permits before completi[ng] the
equivalent service level of parks and streets.”
        The judgment was signed by the district court judge on November 2, 2016, and filed by
the clerk on November 7, 2016. Both sides filed petitions for attorney fees and costs. The City
and Appellants both sought to enforce the IFA in regards to attorney fees, but neither cited the
PDA. The City’s attorney fees amounted to $37,397.55. Appellants’ attorney fees amounted to
$120,847.50. Appellants moved to strike the City’s petition for attorney fees and costs alleging
the petition was untimely filed and served, but that motion was denied.
        The district court ultimately found the City to be the prevailing party and awarded
attorney fees, in the amount of $28,048.17, under Idaho Code section 12-120(3). Appellants
timely appealed the district court’s prevailing party determination and the district court’s finding
that the City’s petition for attorney fees was timely served and filed. The City cross-appealed the
district court’s attorney fees award and a purported clerical error in the second amended
judgment listing West Highlands as the party obligated to provide a financial guarantee, as
opposed to Coleman.



2
  After Appellants argued the Agreements were void and unenforceable, the City began to collect impact fees
pursuant to Ordinance 541, an action the City would have taken if no agreement had been reached by the parties.


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                                   II.     ISSUES ON APPEAL
     1. Whether the district court abused its discretion in declaring the City the prevailing party.
     2. Whether the district court’s finding that the City’s petition for attorney fees and costs was
        timely filed and served is based on substantial and competent evidence.
     3. Whether the district court abused its discretion in awarding the City attorney fees in the
        amount of $28,048.17.
     4. Whether the district court erred in the second amended judgment by ruling that West
        Highlands, LLC was obligated to provide the City a “financial guarantee.”
     5. Whether Appellants or the City are entitled to attorney fees on appeal.
                                         III.   ANALYSIS
A.      The district court did not abuse its discretion in declaring the City the prevailing
        party.
        The prevailing party determination is within the “sound discretion of the district court
and will not be disturbed absent an abuse of discretion.” Oakes v. Boise Heart Clinic Physicians,
PLLC, 152 Idaho 540, 542, 272 P.3d 512, 514 (2012) (citing Jorgensen v. Coppedge, 148 Idaho
536, 538, 224 P.3d 1125, 1127 (2010)).
        When examining whether a district court abused its discretion, this Court
        considers whether the district court: (1) perceived the issue as one of discretion;
        (2) acted within the outer boundaries of that discretion and consistently within the
        applicable legal standards; and (3) reached its decision by an exercise of reason.
Id. at 543, 272 P.3d at 515. This Court will only reverse the district court’s determination of
which party prevailed in the “rarest of circumstances.” Id. (citing Shore v. Peterson, 146 Idaho
903, 914, 204 P.3d 1114, 1125 (2009)).
        The prevailing party analysis is guided by Rule 54 of the Idaho Rules of Civil Procedure.
I.R.C.P. 54(d)(1)(B); Eighteen Mile Ranch, LLC v. Nord Excavating & Paving, Inc., 141 Idaho
716, 718–19, 117 P.3d 130, 132–33 (2005).
        In determining which party to an action is a prevailing party and entitled to costs,
        the trial court must, in its sound discretion, consider the final judgment or result of
        the action in relation to the relief sought by the respective parties. The trial court
        may determine that a party to an action prevailed in part and did not prevail in
        part, and on so finding may apportion the costs between and among the parties in
        a fair and equitable manner after considering all of the issues and claims involved
        in the action and the resulting judgment or judgments obtained.
I.R.C.P. 54(d)(1)(B). Thus, there are three principal factors to consider in the prevailing party
analysis: “(1) the final judgment or result obtained in relation to the relief sought; (2) whether
there were multiple claims or issues between the parties; and (3) the extent to which each of the


                                                  5
parties prevailed on each of the claims or issues.” Nguyen v. Bui, 146 Idaho 187, 192, 191 P.3d
1107, 1112 (Ct. App. 2008). Further, the prevailing party determination is based on the action as
a whole. Oakes, 152 Idaho at 545, 272 P.3d at 517. The question is not to be examined claim-by-
claim. Eighteen Mile, 141 Idaho at 719, 117 P.3d at 133.
       In its decision regarding attorney fees and costs, the district court stated, “[d]etermination
of the prevailing parties in a civil action is committed to the sound discretion of the trial court,”
thus recognizing the prevailing party determination as one of discretion. The district court also
acted consistently with applicable legal standards, citing both Rule 54 of the Idaho Rules of Civil
Procedure and relevant case law. Thus, the district court will have abused its discretion only if it
failed to reach its ultimate decision by an exercise of reason.
       The district court’s ultimate decision stated:
              Overall, Middleton prevailed in this action. The Court granted
       Middleton’s request for declaratory relief by ordering that the IFA and the PDA
       are valid and enforceable. On the ultimate issue of open space acreage, the
       Court’s 12.8-acre determination is much closer to Middleton’s position than
       Coleman’s (a 2.3-acre difference versus a 5.88-acre difference). Middleton also
       avoided liability on Coleman’s breach of contract claim.
Appellants argue the district court’s decision was in error. According to Appellants, the district
court erred in its prevailing party analysis by: (1) considering the declaratory judgment; (2) not
considering the impact fees the City returned to the Appellants; and (3) not considering that
Appellants were four separate entities. For the reasons to be discussed, the district court did not
abuse its discretion. The district court’s determination that the City prevailed is affirmed.
       1.      The district court did not abuse its discretion by considering the declaratory
               judgment in its prevailing party analysis.
       Appellants argue the district court erred in considering the declaratory judgment in its
prevailing party analysis. This argument is based on the notion that Appellants admitted early in
the case, before summary judgment proceedings, that the Agreements were valid and
enforceable. This argument is unpersuasive.
       The City sought declaratory relief after Appellants repeatedly asserted that the
Agreements they voluntarily entered into were void and unenforceable. Appellants first asserted
that the Agreements were void and unenforceable at a public hearing on April 20, 2015.
Appellants then sent two letters to the City asserting the Agreements were void and
unenforceable on the respective dates of May 18, 2015, and May 20, 2015. And again on August



                                                  6
13, 2015, Appellants reaffirmed their stance that the Agreements were void and unenforceable.
After Appellants’ repeated assertions that the Agreements were void and unenforceable, the City
petitioned the district court to declare that the Agreements were, in fact, valid and enforceable.
Appellants, in accordance with their prior assertions, initially answered that the Agreements were
void and unenforceable. Months later, with leave of court, Appellants amended their answer
where they then agreed that the Agreements were valid. In the declaratory ruling the district
court stated, “[c]onsistent with the agreement of the parties . . . the [IFA] . . . and the [PDA] . . .
are valid and enforceable.” Later, in its decision and order awarding attorney fees, the district
court considered the declaratory relief granted to the City in its prevailing party analysis.
       A district court does not abuse its discretion when the court considers settlements reached
by the respective parties in its prevailing party analysis. Hobson Fabricating Corp. v. SE/Z
Constr., LLC, 154 Idaho 45, 49, 294 P.3d 171, 175 (2012) (citing Bolger v. Lance, 137 Idaho
792, 797, 53 P.3d 1211, 1216 (2002)). In Hobson, the district court based its prevailing party
determination, in part, on a settlement agreement. Id. This Court noted that some jurisdictions do
not permit settlement agreements to be considered in a prevailing party determination because
such considerations may discourage future settlements. Id. at 50–51, 294 P.3d at 176–77
(referencing California laws that bar “attorney fees in contract cases . . . when those cases end in
settlement in order to encourage settlement and to avoid the ‘maintenance of pointless litigation’
”). Cognizant of the above concern, this Court concluded courts may “allow attorney fees when
the outcome of the settlement clearly indicates that a party substantially received the result it
sought to achieve through litigation.” Id. at 51, 294 P.3d at 177. Settlements, or some form
thereof, are not alone controlling but can be a factor used in the prevailing party determination.
Id. (citing Bolger, 137 Idaho at 797, 53 P.3d at 1216). This Court in Hobson ultimately held the
district court did not abuse its discretion in its prevailing party determination by considering the
settlement agreement. Id.
       In this case, the declaratory judgment stating the Agreements were valid and enforceable
was based upon a stipulation entered into by the City and Appellants. Consistent with Hobson, a
district court does not abuse its discretion when it considers agreements entered into by the
parties in its prevailing party determination. 154 Idaho at 51, 294 P.3d at 177. Further, although
the agreement was eventually reached by all parties, we acknowledge that the City had requested
the Agreements be declared valid and enforceable from the beginning of and throughout the



                                                  7
litigation. Indeed, it was Appellants’ conduct denying the enforceability of the Agreements that
finally prompted the City to sue. Thus, the City substantially obtained the relief it sought.
Because the City obtained the relief it sought, the district court found the declaratory judgment
was entered in the City’s favor and the City prevailed in that regard. As this Court has held, such
considerations are not an abuse of discretion. See id. at 51, 294 P.3d at 177.
       Additionally, while the parties’ agreement alone may not have supported the district
court’s determination, that agreement combined with other considerations was sufficient. In
addition to the declaratory judgment, the district court considered the acreage amount awarded.
The district court found the City prevailed on the acreage amount because the 12.8 acres awarded
under the PDA was closer to the amount requested by the City than the amount requested by
Appellants. The district court also considered the dismissed counterclaim in its determination.
The counterclaim arose in Appellants’ amended answer where Appellants, contrary to their
original position, asked the court to find the Agreements valid and enforceable. According to
Appellants, the City breached the Agreements by collecting impact fees in the amount of $1,485
in accordance with Ordinance 541. The district court ultimately dismissed the counterclaim
because the City returned all collected fees to Appellants after the Agreements were declared
valid and enforceable, and thus, the City did not breach the terms of the IFA. The district court,
finding that the City avoided all liability on Appellants’ counterclaim, found the City prevailed
in this regard. Therefore, the district court did not abuse its discretion in considering the
declaratory judgment, in addition to the acreage award and the dismissed counterclaim, in its
prevailing party analysis.
       2.      The district court did not abuse its discretion by failing to consider the impact fees
               the City returned to Appellants in its prevailing party analysis.
       Appellants argue the district court abused its discretion because the district court did not
consider the impact fees returned by the City in its prevailing party analysis. Appellants claim
they prevailed on the breach of contract counterclaim because the City returned all fees
collected. According to Appellants, the district court should have considered this action in its
prevailing party analysis. This argument is misleading and also unpersuasive.
       The district court did not abuse its discretion by failing to consider the returned impact
fees because it was Appellants’ actions that precipitated the litigation and the collection of fees
pursuant to Ordinance 541. See Idaho Mil. Hist. Soc’y, Inc. v. Maslen, 156 Idaho 624, 630, 329
P.3d 1072, 1078 (2014). This Court holds that a district court does not abuse its discretion in


                                                 8
determining which party prevailed when the district court examines the underlying purpose of
the litigation. See id. In Maslen, plaintiffs who had title to a historical airplane brought an action
against defendants who refused to surrender possession of the airplane and subsequently placed a
lien on the airplane. Id. The district court found plaintiffs to be the prevailing party because “the
primary issues of litigation arose from the dispute relating to possession of the [airplane].” Id.
Defendants appealed arguing the district court abused its discretion by failing to consider that
defendants avoided damages and thus were successful on the majority of the presented claims.
Id. In holding that the district court did not abuse its discretion, this Court reasoned that although
defendants were successful at avoiding damages, it was defendants’ actions that primarily
precipitated the litigation; had defendants surrendered the airplane that belonged to plaintiffs, the
litigation would not have been necessary. Id. This Court ultimately held that the district court did
not abuse its discretion in considering why the litigation arose. Id.
       Appellants claim they asserted the Agreements were void and unenforceable in response
to the City “surreptitiously collecting impact fees.” However, the record reflects that the City did
not charge Appellants any impact fees until August 28, 2015. This date is significant because
Appellants first argued that the Agreements were void and unenforceable at a public hearing on
April 20, 2015. On May 18, 2015, the City received Appellants’ first letter declaring the
Agreements void and unenforceable. On May 20, 2015, the City received another letter from
Appellants declaring the Agreements void and unenforceable. And again on August 13, 2015,
Appellants reaffirmed their stance that the Agreements were void and unenforceable. The above-
discussed correspondence illustrates it was only after Appellants repeatedly claimed the
Agreements to be void and unenforceable that the City began collecting impact fees pursuant to
Ordinance 541 and not in accordance with the Agreements. After the Agreements were found to
be valid and enforceable, the City returned all fees collected while the litigation was pending. In
fact, the fees were returned to Appellants the very next day.
       Like this Court held in Maslen, a district court’s prevailing party determination is not an
abuse of discretion when the court considers why the litigation was necessary. 156 Idaho at 630,
329 P.3d at 1078. In Maslen, had defendants surrendered possession of the airplane that
belonged to plaintiffs when requested, plaintiffs would not have needed to bring legal action. Id.
Here, had Appellants not asserted the Agreements were invalid, the City would not have pursued
litigation and the City would not have collected any impact fees. Therefore, the district court did



                                                  9
not abuse its discretion in failing to consider the returned impact fees in its prevailing party
determination.
       Additionally, the “prevailing party question is examined and determined from an overall
view, not a claim-by-claim analysis.” Eighteen Mile, 141 Idaho at 719, 117 P.3d at 133. The
“mere fact that a party is successful in asserting or defeating a single claim does not mandate an
award of fees to the prevailing party on that claim.” Id. (quoting Chenery v. Agri-Lines Corp.,
106 Idaho 687, 692–93, 682 P.2d 640, 645–46 (Ct. App. 1984)). The determination should be
based on what party prevailed on the “primary issues of [the] litigation.” Maslen, 156 Idaho at
630, 329 P.3d at 1078.
       Here, the district court stated that the ultimate issue of the litigation was the acreage
determination. The district court was correct in declaring the acreage amount to be the ultimate
issue of the litigation because after the Agreements were declared valid and enforceable, the
counterclaim was dismissed and the acreage amount was the only remaining dispute among the
parties. Appellants also acknowledged that interpretation of the PDA, in regards to the acreage
amount, was the only issue to be resolved on summary judgment. Thus, the district court did not
abuse its discretion by failing to consider the fees returned by the City because the breach of
contract counterclaim was not the primary issue of the litigation.
       3.        The district court did not abuse its discretion by failing to consider that Appellants
                 were four separate entities in its prevailing party analysis.
       Appellants argue that the district court erred in its prevailing party analysis because the
district court did not consider that Appellants were four separate entities. For the reasons
discussed below, this argument does not persuade us.
       According to Appellants, Gunter v. Murphy’s Lounge, LLC, 141 Idaho 16, 21–23, 105
P.3d 676, 681–83 (2005), controls this issue. In Gunter, plaintiff sued two companies she had
entered into commercial leases with and also sued the two individuals who acted as agents of the
companies in signing the leases. Id. The district court found plaintiff to be the prevailing party
and awarded attorney fees pursuant to Idaho Code section 12-120(3) against all four defendants.
Id. at 32, 105 P.3d at 692. On appeal, this Court categorized the lease agreements as commercial
transactions. Id. Based on that categorization, this Court went on to conclude that attorney fees
could only be awarded against the companies who entered into the commercial transactions
under section 12-120(3), not against the individuals who signed the agreements as agents of the
companies. Id. This Court ultimately held the district court did not err in awarding attorney fees


                                                  10
against the companies involved in the commercial transactions, but did err in awarding attorney
fees against the individuals who were simply acting on behalf of the companies and thus were
not actually involved in the underlying commercial transaction. Id.
         Appellants assert Gunter establishes that district courts may only award attorney fees
against signatories to commercial transactions. Appellants misread Gunter. Gunter does not hold
that attorney fees under section 12-120(3) can only be awarded against signatories but instead
holds that attorney fees can only be awarded against parties involved in the underlying
commercial transaction. Id. Appellants are unlike the individual defendants in Gunter because
although all four Appellants were not signatories to the controlling Agreements, all four
Appellants were involved with the underlying commercial transaction as will be discussed
below.
         Here, Appellants represented themselves as interested parties under the Agreements by
seeking declaratory relief under Idaho’s Uniform Declaratory Judgment Act. In relevant part,
Idaho’s Declaratory Judgment Act provides:
                 Any person interested under a deed, will, written contract or other
         writings constituting a contract or any oral contract, or whose rights, status or
         other legal relations are affected by a statute, municipal ordinance, contract or
         franchise, may have determined any question of construction or validity arising
         under the instrument, statute, ordinance, contract or franchise and obtain a
         declaration of rights, status or other legal relations thereunder.
I.C. § 10-1202 (emphasis added). Appellants’ amended answer stated that all four Appellants
were “interested parties in the construction and validity of a statute, contract and/or instrument
and are therefore entitled to a declaratory judgment with regard to the validity of [the City’s]
conduct.” Regardless that all four were not signatories to the Agreements, all four alleged they
were interested parties and involved with the Agreements. Thus, the district court did not err in
treating the four Appellants, all interested parties under the “statute, contract and/or instrument,”
as one and issuing the declaratory ruling and subsequent decisions against Appellants as one.
         Even if the district court erred, Appellants’ argument is still barred by the invited error
doctrine. This Court continually holds that a party cannot “successfully complain of errors [the
party] has acquiesced in or invited.” Taylor v. McNichols, 149 Idaho 826, 833, 243 P.3d 642, 649
(2010) (quoting State v. Owsley, 105 Idaho 836, 838, 673 P.2d 436, 438 (1983)). “The doctrine
of invited error applies to estop a party from asserting an error when [the party’s] own conduct
induces the commission of the error.” Thomson v. Olsen, 147 Idaho 99, 106, 205 P.3d 1235,


                                                 11
1242 (2009) (quoting State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993)).
Because the party invited the error, such errors are not reversible. Id. (quoting State v. Caudill,
109 Idaho 222, 226, 706 P.2d 456, 460 (1985)). “The purpose of the invited error doctrine is to
prevent a party who caused or played an important role in prompting a trial court to [take certain
action] from later challenging that [action] on appeal.” McNichols, 149 Idaho at 834, 243 P.3d at
650 (quoting Woodburn v. Manco, 137 Idaho 502, 505, 50 P.3d 997, 1000 (2002)).
       In this case, Appellants played a significant role in causing the district court to treat them
as a single entity when awarding attorney fees. As mentioned above, all four Appellants initially
sought declaratory relief and asserted counterclaims collectively. At all times throughout the
litigation, all four Appellants were listed collectively as defendants, were represented by the
same two attorneys, and all work regarding the litigation was pooled together, as is evident in
Appellants’ petition for attorney fees and costs. Likewise, Appellants’ counsel’s affidavit
regarding the Appellants’ attorney fees refers to Appellants throughout as the singular “client,”
not clients. Further, in the deposition of Thomas Coleman, Mr. Coleman answered questions on
behalf of all four entities. The above examples illustrate that Appellants induced the district
court’s error that Appellants, although separate business entities, were acting as one. Therefore,
the invited error will not be reversed on appeal.
       In sum, the district court perceived the prevailing party determination as discretionary,
acted consistently with applicable legal standards and case law, and reached its ultimate decision
by exercising reason. Therefore, the district court did not abuse its discretion in finding that the
City prevailed. We affirm the district court’s prevailing party determination.
B.     The district court did not err in finding the City’s Petition for Attorney Fees and
       Costs was timely filed and served.
       “This Court will not set aside a trial court’s findings of fact unless the findings are clearly
erroneous.” Mortensen v. Berian, 163 Idaho 47, ___, 408 P.3d 45, 48 (2017) (quoting Borah v.
McCandless, 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009)). “Clear error will not be deemed to
exist if the findings are supported by substantial and competent, though conflicting, evidence.”
Id. (quoting Pandrea v. Barrett, 160 Idaho 165, 171, 369 P.3d 943, 949 (2016)). Evidence is
substantial and competent if a reasonable trier of fact could accept and rely upon the evidence in
making a factual finding. Id. (citing Greenfield v. Wurmlinger, 158 Idaho 591, 598, 349 P.3d
1182, 1189 (2015)).



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       Rule 54 of the Idaho Rules of Civil Procedure governs the filing of a memorandum of
costs. I.R.C.P. 54(d)(4) states:
       At any time after the verdict of a jury or a decision of the court, but not later than
       14 days after entry of judgment, any party who claims costs may file and serve on
       adverse parties a memorandum of costs, itemizing each claimed expense. The
       memorandum must state that to the best of the party’s knowledge and belief that
       the items are correct and that the costs claimed are in compliance with this rule.
       Failure to timely file a memorandum of costs is a waiver of the right to costs. A
       memorandum of costs prematurely filed is considered as timely.
A paper, like a judgment, is filed when the paper is delivered to “a judge who agrees to accept it
for filing, and who must then note the filing date on the paper and promptly send it to the clerk.”
I.R.C.P. 5(d)(2)(B). “The filing of a judgment by the court as provided in Rule 5(d) or the
placing of the clerk’s filing stamp on the judgment constitutes entry[.]” I.R.C.P. 58 (emphasis
added). This Court holds that the “word ‘or’ . . . is ‘[a] disjunctive particle used to express an
alternative or to give a choice of one among two or more things.’ ” Markel Intern. Ins. Co., Ltd.
v. Erekson, 153 Idaho 107, 110, 279 P.3d 93, 96 (2012) (quoting Frasier v. Frasier, 87 Idaho
510, 514, 394 P.2d 294, 296 (1964)). Thus, the word “or” often connects a series of words or
propositions and presents a choice of either. Frasier, 87 Idaho at 514, 394 P.2d at 297.
       Here, Appellants argue the district court erred in finding the City’s petition for attorney
fees and costs was timely filed and served. In regards to the filing, the petition was filed by the
City on November 17, 2016. According to Appellants, judgment was entered when the judge
signed the judgment on November 2, 2016. According to the City, judgment was entered when
the clerk placed the filing stamp on the judgment on November 7, 2016. The district court agreed
with the City and found judgment was entered on November 7, 2016. The district court thus
found the petition was timely filed.
       We agree with the district court. Although Rule 58 states that a judgment is filed “as
provided in Rule 5(d) or the placing of the clerk’s filing stamp on the judgment,” in this case
nothing indicates that the district court’s act of signing the judgment constituted entry of
judgment. The only indication of the judgment’s filing date here is the clerk’s filing stamp.
Accord State v. Ciccone, 150 Idaho 305, 306–07, 246 P.3d 958, 959–60 (2010) (“ ‘[T]he placing
of the clerk’s filing stamp on the judgment constitutes the entry of the judgment; and the
judgment is not effective before such entry.’ Thus, in order to be effective, a judgment must be
file stamped by the clerk of court.” (citation omitted)); City of Preston v. Baxter, 120 Idaho 418,



                                                13
420, 816 P.2d 975, 977 (1991) (“The placing of the clerk’s filing stamp on the judgment
constituted the entry of the judgment.”). As such, the district court properly found that the
petition was timely filed.
         In regards to service, Appellants argue the district court erred in finding the City’s
petition for attorney fees and costs was timely served. Appellants claim they provided evidence
in the form of an affidavit “outlining the fax receipt and logging procedures” used by Appellants’
firm, as well as “detailing the efforts to obtain a copy of the unserved petition.” Appellants
further allege the City “provided no rebuttal, was careful at argument not to represent that the
documents were definitively served, and noted only that a certificate of service was attached to
the documents alleging service on November 17, 2016.” The City argues the finding was proper
because the petition for attorney fees and costs was served via facsimile and all pleadings within
the record exhibited a service date of November 17, 2016.
         The district court cited to Allstate Insurance Company v. Mocaby in its decision
regarding the timeliness of service. 133 Idaho 593, 990 P.2d 1204 (1999). In Allstate, appellant
argued that the district court erred in awarding respondent’s motion for attorney fees and costs.
Id. at 599, 990 P.2d at 1210. Respondent rebutted the motion alleging that appellant failed to
make a timely objection to its motion for attorney fees and costs. Id. In order for an objection to
be timely, the objection had to be made within fourteen (14) days of service of the memorandum
of fees and costs. 3 Id. at 600, 990 P.2d at 1211; I.R.C.P. 54(d)(5). The discrepancy arose when
evidence of service was presented displaying “a handwritten note at the top of the memorandum”
dated July 11, 1997, and a certificate of service also dated July 11, 1997. Id. These items were
compared to the time stamp of the allegedly served facsimile which was dated July 23, 1997. Id.
To add to the confusion, the memorandum lacked any filing stamp by the clerk of the district
court. Id. Respondent was unable to explain the discrepancy and could not verify that the
memorandum was actually served on July 11, 1997. Id. The Court, unable to determine from the
record when the memorandum was served, held the objection was timely and entertained the
motion on its merits. Id.



3
  At the time Allstate was decided, Rule 54(d)(6) governed objections to costs. Today, Rule 54(d)(5) governs
objections to costs. The relevant language for purposes of this illustration is identical; a party objecting to costs must
object “within 14 days of service of a memorandum of costs[.]” I.R.C.P. 54(d)(5); Allstate, 133 Idaho at 600, 990
P.2d at 1211.


                                                           14
         Further, Rule 54(d)(4) does not require service to be completed within the fourteen-day
filing period prescribed under the rule. 4 See Bryan Trucking, Inc. v. Gier, 160 Idaho 422, 425,
374 P.3d 585, 588 (2016). In Gier, respondent filed a memorandum of costs within the fourteen-
day filing period and emailed a copy of the documents to appellant. Id. at 424, 374 P.3d at 587.
Appellant filed a motion to disallow attorney fees asserting respondent had failed to timely serve
the memorandum of costs. Id. On appeal, it was undisputed that respondent failed to serve the
memorandum within the fourteen-day period. Id. at 425, 374 P.3d at 588. However, this Court
held “the plain language of the rule contemplates that filing and service can occur at any time,
but that waiver will occur if filing—but not service—does not occur within fourteen days.” Id. at
426, 374 P.3d at 589. Thus, failing to serve a memorandum of costs within the fourteen-day
period specified by the rule does not constitute a waiver of attorney fees. Id.
         Here, Appellants dispute the service of the City’s petition. According to Appellants, the
petition was served on November 28, 2017. However, Appellants only provided a single
Affidavit from counsel that did not contradict the service date listed in the record of November
17, 2016. That affidavit stated “[a]fter a review of my files and a search of documents our office
received by fax, it became evident that my office did not receive service copies of the
Memorandum of Affidavit.” Only after serving the motion to strike the City’s petition for
attorney fees and costs did Appellants contact opposing counsel to obtain a copy of the petition.
A copy was provided to Appellants the same day with a certificate of service dated November
17, 2016. That date matches the clerk’s filing stamp. The affidavit goes on to state that the
Appellants’ firm “utilizes a centralized electronic facsimile receipt and delivery system . . . [that]
creates a log of all incoming facsimiles.” However, no log was provided to the district court. Nor
is any log included in the record on appeal.
         The district court, unclear of the actual service date and unpersuaded by Appellants’
evidence, found Allstate to be controlling. The Court stated “[d]efendant’s objection to costs and
fees was deemed timely where the court was unable to determine from the record when the

4
  In Gier, a memorandum of costs was then governed by Rule 54(d)(5). 160 Idaho at 425, 374 P.3d at 588. A
memorandum of costs is now governed by Rule 54(d)(4). However, the relevant language is substantially identical.
In Gier, the language of the rule stated: “[f]ailure to file such memorandum of costs within the period prescribed by
this rule shall be a waiver of the right of costs.” 160 Idaho at 425, 374 P.3d at 588 (quoting I.R.C.P. 54(d)(5) (2015)
(emphases added)). The language of Rule 54(d)(4) states: “[f]ailure to timely file a memorandum of costs is a waiver
of the right to costs.” I.R.C.P. 54(d)(4) (emphases added). Thus, both the rule in Gier and Rule 54(d)(4) state that
waiver only occurs if the memorandum is not filed within the fourteen-day time period; timeliness of service is
irrelevant in the waiver analysis.


                                                         15
memorandum of costs was filed.” Here, the district court could not determine from the record the
actual service date and, thus, found the City’s petition timely in accordance with Allstate.
Additionally, as was held in Gier, even if the City failed to serve its memorandum of costs
within the fourteen day period specified by Rule 54(d)(4), such failure does not constitute waiver
of the right of attorney fees. Therefore, it cannot be said that the district court’s decision was
clear error because it is supported by the certificate of service, the filing stamp, and service of a
memorandum of costs within fourteen days is not required under Rule 54(d)(4). The district
court’s finding that the City timely filed and served its petition for attorney fees and costs is
affirmed.
C.     The district court’s award of attorney fees was not erroneous.
       After the district court declared the City to be the prevailing party, the district court,
pursuant to Idaho Rule of Civil Procedure 54(e)(1) and Idaho Code section 12-120(3), awarded
attorney fees in the amount of $28,048.17 to the City. The City alleges the district court erred in
only awarding part, but not all, attorney fees incurred because the IFA states “the unsuccessful
party to such litigation agrees to pay to the prevailing party all costs and expenses, including
attorneys’ fees incurred.” According to the City, the district court should have awarded all
attorney fees incurred and should not have assessed the reasonableness of requested fees under
Idaho Rule of Civil Procedure 54(e)(3).
       “The calculation of reasonable attorney fees [under Idaho Code section 12-120(3)] is
within the discretion of the trial court[,]” and this Court will not disturb such calculations absent
an abuse of discretion. Farrell v. Whiteman, 152 Idaho 190, 196, 268 P.3d 458, 464 (2012)
(quoting Parsons v. Mut. of Enumclaw Ins. Co., 143 Idaho 743, 747, 152 P.3d 614, 618 (2007)).
“This Court considers whether the district court: (1) perceived the issue as one of discretion; (2)
acted within the outer boundaries of that discretion and consistently within the applicable legal
standards; and (3) reached its decision by an exercise of reason” in determining whether a district
court abused its discretion. Oakes, 152 Idaho at 543, 272 P.3d at 515 (citing Jorgensen, 148
Idaho at 538, 224 P.3d at 1127). The party opposing an award has the burden of demonstrating
the district court abused its discretion. Lettunich v. Lettunich, 145 Idaho 746, 749, 185 P.3d 258,
261 (2008) (citing E. Idaho Agric. Credit Ass’n v. Neibaur, 133 Idaho 402, 412, 987 P.2d 314,
324 (1999)).




                                                 16
       Rule 54(e)(1) of the Idaho Rules of Civil Procedure states that “[i]n any civil action the
court may award reasonable attorney fees . . . to the prevailing party or parties . . . when provided
for by any statute or contract.” Idaho Code section 12-120(3) provides that:
               [i]n any civil action to recover on an open account, account stated, note,
       bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of
       goods, wares, merchandise, or services and in any commercial transaction unless
       otherwise provided by law, the prevailing party shall be allowed a reasonable
       attorney’s fee to be set by the court, to be taxed and collected as costs.
Thus, pursuant to the Idaho Rules of Civil Procedure and Idaho Code, the district court has
authority to award attorney fees to prevailing parties in a civil action involving a commercial
transaction, such as this action.
       In this case, the district court did not err by awarding a “reasonable” amount of attorney
fees. Section 6 of the IFA reads:
       [i]n the event a suit or action is filed by either party against the other to interpret
       of enforce this Agreement, the unsuccessful party to such litigation agrees to pay
       to the prevailing party all costs and expenses, including attorneys’ fees incurred
       therein, including the same with respect to an appeal.
Conversely, the relevant section of the PDA states: “[t]he Parties shall share the mediator’s fee
and other costs of the mediation fees equally; provided, however, each Party shall bear its own
legal fees.” Because the language from the Agreements regarding fees is incongruent, the
question arises whether the PDA’s terms amended, nullified, or otherwise modified the attorney
fee provision of the IFA or vice versa. This question was not raised below. See, e.g., Obenchain
v. McAlvain Constr., Inc., 143 Idaho 56, 57, 137 P.3d 443, 444 (2006) (“[A]ppellate courts will
not consider new arguments raised for the first time on appeal.”). Nor did the parties raise the
issue on appeal with cogent argument or authority. See, e.g., State v. Zichko, 129 Idaho 259, 263,
923 P.2d 966, 970 (1996) (“A party waives an issue cited on appeal if either authority or
argument is lacking, not just if both are lacking.”). Thus, we will not address it here. However,
we affirm the district court’s reasonable fee award for the reasons discussed below.
       When authorized to fashion an award of reasonable attorney fees, the district court is
directed to consider the following factors:
       (A) the time and labor required; (B) the novelty and difficulty of the questions;
       (C) the skill requisite to perform the legal service properly and the experience and
       ability of the attorney in the particular field of law; (D) the prevailing charges for
       like work; (E) whether the fee is fixed or contingent; (F) the time limitations
       imposed by the client or the circumstances of the case; (G) the amount involved


                                                 17
       and the results obtained; (H) the undesirability of the case; (I) the nature and
       length of the professional relationship with the client; (J) awards in similar cases;
       (K) the reasonable cost of automated legal research (Computer Assisted Legal
       Research), if the court finds it was reasonable necessary in preparing a party’s
       case; [and] (L) any other factor which the court deems appropriate in the
       particular case.
I.R.C.P. 54(e)(3). In this case, the district court awarded attorney fees pursuant to section 12-
120(3). The district court examined every factor of Rule 54(e)(3) and ultimately calculated a
reasonable fee award of $28,048.17. The district court recognized its discretion in awarding
reasonable attorney fees, applied governing legal standards and exercised reason by examining
all the factors of Rule 54(e)(3). Thus, the district court did not abuse its discretion in awarding
attorney fees. Because we conclude the district court did not abuse its discretion, we affirm the
district court’s fee award.
D.     The second amended judgment contains a clerical error.
       The City argues the second amended judgment is erroneous. Paragraph four of the second
amended judgment states, “West Highlands, LLC must provide the City of Middleton one or
more financial guarantees consistent with the terms and conditions of Section 3 of the Impact
Fee Agreement.” This statement is in direct conflict with Section 3 of the IFA which reads,
“Financial Guarantee. In the event that Developer applies for building permits before
completion of the equivalent service level of Parks and Streets, Developer shall provide one or
more financial guarantees, the form of which shall be approved by the City, for Parks and Streets
yet to be completed.” The “[d]eveloper” is clearly defined in the IFA as Coleman, not West
Highlands.
       “The court may correct a clerical mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of the record.” I.R.C.P. 60(a). Clerical
mistakes are described as
       errors in which the “type of mistake or omission [is] mechanical in nature which
       is apparent in the record and which does not involve a legal decision or judgment
       by an attorney. The clerical mistake . . . can only be used to make the judgment or
       record speak the truth and cannot be used to make it say something other than
       what was originally pronounced.
Vierstra v. Vierstra, 153 Idaho 873, 878–79, 292 P.3d 264, 269–70 (2012) (quoting Silsby v.
Kepner, 140 Idaho 410, 411, 95 P.3d 28, 29 (2004)). This Court is entitled to make such
corrections. Weekes v. Weekes, 101 Idaho 213, 214, 611 P.2d 133, 134 (1980) (“[T]he failure to



                                                18
award . . . clearly arose from omission or oversight. Such mistakes are subject to correction by
the court pursuant to I.R.C.P. 60(a). The judgement is ordered so corrected. . . .”).
       The mistake in the second amended judgment is clearly a clerical mistake; the second
amended judgment lists the wrong party, West Highlands, as the party obligated to provide a
financial guarantee. The record clearly establishes Coleman as the party obligated to provide a
financial guarantee. In addition, Appellants’ attorney appropriately conceded at oral argument
that the second amended judgment contains a clerical error. Therefore, we order the second
amendment judgment be corrected to list Coleman as the party obligated to provide a financial
guarantee.
E.     Attorney fees on appeal.
       Both the City and Appellants have requested attorney fees on appeal. The City requests
attorney fees under Idaho Code section 12-120(3) and the “unambiguous terms of the parties’
written contract.” The Appellants request attorney fees under Idaho Code section 12-120(3) and
the “operative agreements as the prevailing party on appeal.”
       Section 12-120(3) permits a prevailing party to recover reasonable attorney fees in any
commercial transaction. However, based on the above discussion, Appellants and the City both
prevail in part. Specifically, Appellants prevail on their assertion that the district court did not err
in awarding attorney fees in the amount of $28,048.17. The City prevails on the prevailing party
determination, the ruling on the City’s petition for attorney fees and costs, and correcting the
clerical mistake in the second amended judgment. Since Appellants and the City both prevail in
part on appeal, attorney fees on appeal are improper. E.g., Tapadeera, LLC v. Knowlton, 153
Idaho 182, 189, 280 P.3d 685, 692 (2012).
                                      IV.     CONCLUSION
       We affirm the district court’s prevailing party determination, the district court’s ruling on
the City’s petition for attorney fees and costs, and the district court’s award of attorney fees. It is
also ordered the clerical error in the second amended judgment be corrected by designating
Coleman as the party obligated to provide a financial guarantee. Neither party is awarded
attorney fees or costs on appeal.
       Justices, HORTON, BRODY, BEVAN and HAYNES, J. Pro Tem, CONCUR.




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