               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44417

NGANSI MAGDALENE SAUER,                          )   2017 Unpublished Opinion No. 449
                                                 )
       Plaintiff-Appellant,                      )   Filed: April 26, 2017
                                                 )
v.                                               )   Stephen W. Kenyon, Clerk
                                                 )
JEFFERSON COUNTY; and                            )
JEFFERSON COUNTY SHERIFF’S                       )   THIS IS AN UNPUBLISHED
DEPARTMENT, a division thereof; and              )   OPINION AND SHALL NOT
Officer JOHN CLEMENTS, as an Agent               )   BE CITED AS AUTHORITY
of the Jefferson County Sheriff’s Office,        )
                                                 )
       Defendants-Respondents.                   )
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Jefferson County. Hon. Alan C. Stephens, District Judge.

       Judgment awarding costs and attorney fees, affirmed in part, vacated in part,
       and remanded.

       Cox, Ohman & Brandstetter, Chtd.; James A. Herring, Idaho Falls, for appellant.
       Dean C. Brandstetter argued.

       Hall, Angell & Associates, LLP; Blake G. Hall, Idaho Falls, for respondents.
       Blake G. Hall argued.
                 ________________________________________________

MELANSON, Judge
       Ngansi Magdalene Sauer appeals from the district court’s judgment awarding costs and
attorney fees in favor of respondents. For the reasons set forth below, we affirm in part, vacate
the award of attorney fees, and remand to the district court for further proceedings.
       On January 16, 2013, Sauer was stopped by an officer for speeding. The officer pursued
Sauer’s vehicle with the lights and siren engaged for approximately ninety seconds before Sauer
stopped her vehicle. The officer asked Sauer why she did not stop, and Sauer responded that she
thought the officer was pursuing another driver. The officer explained that the law required


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Sauer to pull to the side of the road any time she sees an emergency vehicle with the lights
engaged. After reviewing Sauer’s information, the officer returned to Sauer’s vehicle and asked
her to step outside. Sauer asked whether she was being arrested and why she needed to step out
of the vehicle. The officer said he just wanted Sauer to come outside and talk. When Sauer
refused, the officer told Sauer she was under arrest and ordered her out of the vehicle. When
Sauer refused, the officer opened the door and said he would not remove Sauer if she exited
willingly. After Sauer removed her seatbelt, the officer removed Sauer from the vehicle while
she verbally protested. Sauer filed a civil complaint against Jefferson County, Jefferson County
Sheriff’s Department, and Officer John Clements (respondents), alleging a violation of Sauer’s
civil rights pursuant to 42 U.S.C. § 1983 and a series of state tort claims. Specifically, Sauer
claimed that the officer used excessive force by hitting Sauer on the arm and maliciously
battering her, causing traumatic injury.
       After some discovery, the respondents moved for summary dismissal of Sauer’s claims.
The district court granted the motion and entered summary judgment in favor of the respondents
on all claims. The respondents filed a memorandum seeking costs and attorney fees pursuant to
I.R.C.P. 54(d), I.C. § 6-918A, I.C. § 12-117, and 42 U.S.C. § 1988. Sauer filed a motion to
disallow attorney fees which, after a hearing, the district court granted in part and denied in part.
The district court found that the action was not initiated in bad faith, as required for recovery
under I.C. § 6-918A, and disallowed attorney fees pertaining to the state law claims. The district
court further found that the claim was brought frivolously, unreasonably, or without foundation,
as required for recovery under 42 U.S.C. § 1988 and allowed attorney fees pertaining to the
federal claim. Although the respondents admitted that Sauer’s federal and state claims were
intertwined and could not be separated, the district court recognized that determining the amount
of attorney fees to award was within its discretion and awarded 50 percent of the respondents’
attorney fees. The district court reasoned that half of the attorney fees were incurred defending
the Section 1983 claim because an even split best divided the attorney fees absent additional
evidence. Sauer appeals, challenging the award of attorney fees. 1


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        The district court awarded costs of $5,399.22 and attorney fees of $24,428.00 to the
respondents. Sauer does not challenge the award of costs on appeal. Thus, we confine our
analysis to the award of attorney fees.

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       On appeal, Sauer asserts that the district court abused its discretion by failing to apply
any standard to determine that 50 percent of the attorney fees the respondents requested were
allocable to defense of the Section 1983 claim. Specifically, Sauer contends that the district
court’s failure to issue findings of fact and conclusions of law to support the award of attorney
fees necessitates reversal. Sauer further asserts that the district court failed to analyze whether
Sauer’s Section 1983 claim was frivolous by determining whether the result was obvious or the
claim lacked legal foundation.
       In an action brought pursuant to 42 U.S.C. § 1983, the district court is authorized to
award attorney fees to a defendant upon finding that the plaintiff’s Section 1983 claim was
frivolous, unreasonable, or without foundation. Hughes v. Rowe, 449 U.S. 5, 14 (1980); see also
42 U.S.C. § 1988. However, Section 1988 permits the defendant to receive only the portion of
the attorney fees that would not have been incurred but for the frivolous claims. Fox v. Vice, 563
U.S. 826, 836 (2011). Thus, where a plaintiff asserts both frivolous and nonfrivolous claims, the
district court must conduct a “but-for” analysis to determine what attorney fees would not have
been incurred but for the frivolous claims. Id. Generally, awards of attorney fees pursuant to
42 U.S.C. § 1988 are reviewed under an abuse of discretion standard. Nation v. State, Dep’t. of
Corr., 144 Idaho 177, 193, 158 P.3d 953, 969 (2007). However, any elements of legal analysis
which figure into the district court’s decision are subject to de novo review. Id.
       In this case, the district court found that Sauer’s claims were frivolous, unreasonable, or
without foundation and awarded attorney fees pursuant to 42 U.S.C. § 1988. However, the
district court did not specify whether only Sauer’s federal claims or both her federal and state
claims were frivolous. Moreover, it is unclear why the district court found that Sauer’s claims
were frivolous based on the conclusory findings in the district court’s decision. When awarding
attorney fees under 42 U.S.C. § 1988, the district court should provide a concise but clear
explanation of its reasons for the attorney fee award. Hensley v. Eckerhart, 461 U.S. 424, 437
(1983). A case should be remanded if the district court failed to sufficiently explain how it
arrived at the attorney fee award. McGrath v. Cnty. of Nevada, 67 F.3d 248, 254 (9th Cir. 1995).
Thus, the district court erred by failing to explain why Sauer’s federal claims were frivolous. On
remand, the district court must provide a concise but clear explanation of how Sauer’s federal
claims were frivolous. If the district court finds that Sauer’s federal claims were not frivolous,


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then no attorney fees may be awarded to the respondents. However, if the district court again
finds that Sauer’s federal claims were frivolous, then the district court must also determine
whether Sauer’s state claims were frivolous.
       While the district court did find that Sauer’s state claims were not brought in bad faith so
as to justify an award of attorney fees under I.C. § 6-918A, the district court did not analyze
whether the state claims were frivolous. A claim may be frivolous even though the claim is not
brought in bad faith. Because a mix of frivolous and nonfrivolous claims triggers the “but-for”
analysis, it was necessary for the district court to analyze the frivolity of all claims before
awarding attorney fees under 42 U.S.C. § 1988. Thus, the district court erred by failing to
analyze whether there were any nonfrivolous claims before awarding attorney fees pursuant to
42 U.S.C. § 1988, which would only authorize an award of attorney fees that would not have
been incurred but for frivolous claims. The respondents suggest that the district court made an
implied finding that Sauer’s state claims were frivolous.       Such an implied finding is not
supported by the record.
       On remand, the applicable legal standard will depend on the district court’s findings. If
the district court finds that Sauer’s federal claims were frivolous but that Sauer’s state claims
were not frivolous, then 42 U.S.C. § 1988 limits the respondents’ recovery to attorney fees that
would not have been incurred but for the frivolous federal claims. The respondents are bound by
their concession that Sauer’s federal and state claims were intertwined and could not be
separated. Thus, the respondents would have incurred the same attorney fees defending Sauer’s
state claims. In other words, the respondents would have incurred all attorney fees in the
absence of Sauer’s federal claims and no attorney fees would be authorized by
42 U.S.C. § 1988. If, however, the district court finds that Sauer’s federal and state claims were
frivolous, then Fox is inapplicable and the district court may use its discretion to determine an
appropriate award of attorney fees.     The district court must articulate the basis for its fee
allocation.
       On appeal, an award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to
the prevailing party and such an award is appropriate when the court finds that the appeal has
been brought or defended frivolously, unreasonably, or without foundation.          Sauer did not
request attorney fees on appeal. The respondents did request attorney fees on appeal; however,


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the respondents are not the prevailing party and therefore are not entitled to attorney fees on
appeal.
          The district court erred by failing to provide a concise but clear explanation for finding
that Sauer’s claims were frivolous and by failing to determine whether there were any
nonfrivolous claims before awarding attorney fees.         Accordingly, we affirm the judgment
awarding costs but vacate the award of attorney fees and remand. Costs, but not attorney fees
are awarded to Sauer on appeal.
          Chief Judge GRATTON and Judge HUSKEY, CONCUR.




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