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GARNER v. POVEY

No. 37561.

259 P.3d 608 (2011)

Daniel S. GARNER and Sherri-Jo Garner husband and wife; Nola Garner, a widow and Nola Garner as trustee of the Nola Garner Living Trust, dated July 29, 2007, Plaintiffs-Respondents, v. Brad POVEY and Leiza Povey, husband and wife, Defendants-Appellants, and Hal J. Dean and Marlene T. Dean, husband and wife, Douglas K. Viehweg and Sharon C. Viehweg, husband and wife, Jeffery J. Neigum and Kathleen A. Neigum as trustees of the Jeffery J. Neigum and Kathleen A. Neigum Revocable Trust, dated September 17, 2004; First American Title Insurance Company, a foreign title insurer with an Idaho certificate of authority; and First American Title Company, Inc., an Idaho corporation, Defendants.

Supreme Court of Idaho, Boise, June 2011 Term.

August 4, 2011.

Attorney(s) appearing for the Case

Atkin Law Offices, P.C., Bountiful, Utah, for appellants. Blake S. Atkin , argued.

Beard St. Clair Gaffney PA, Rexburg, for respondents. Michael D. Gaffney , argued.

J. JONES, Justice.

Following the decision of this case on the merits, the Appellants sought an award of attorney fees under the "commercial transaction" prong of I.C. § 12-120(3) and for frivolous litigation under I.C. § 12-121. The district court denied fees on both grounds. We affirm the denial of fees under I.C. § 12-121, but reverse the denial under I.C. § 12-120(3).

I.

Factual and Procedural Background

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