ISP v. Lilton

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49676

DIRECTOR, IDAHO STATE POLICE, )
STATE OF IDAHO; and ELMORE ) Filed: November 15, 2023
COUNTY PROSECUTING )
ATTORNEY, ) Melanie Gagnepain, Clerk
)
Plaintiffs-Respondents, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
v. ) BE CITED AS AUTHORITY
)
ONE BLACK 2017 MERCEDES-BENZ )
VIN NO. WWUG6DB8HA300117; )
$4,201.00 IN UNITED STATES )
CURRENCY, )
)
Defendant Property, )
)
and )
)
JOHN LARRY EDWARDS LILTON, )
)
Real Party in Interest-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County. Hon. Jonathan Medema, District Judge. Hon. James Cawthon,
District Judge.

Order denying motion to reconsider award of attorney fees, reversed; case
remanded.

Idaho Injury Law Group, PLLC; Seth H. Diviney, Boise, for appellant.

Shondi K. Lott, Elmore County Prosecuting Attorney; Ralph R. Blount, Deputy
Prosecuting Attorney, Mountain Home, for respondent.
________________________________________________

GRATTON, Judge
John Larry Edwards Lilton appeals from the district court’s denial of his motion for
reconsideration of his request for attorney fees. We reverse the district court’s order denying the
motion for reconsideration and remand for entry of an award of attorney fees.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
A sheriff’s deputy conducted a traffic stop of a vehicle owned and driven by Lilton.
Deputies seized Lilton’s vehicle and cash pursuant to Idaho Code § 37-2744. The Elmore County
Prosecutor (Prosecutor) filed a complaint seeking to forfeit Lilton’s vehicle and cash. Lilton filed
an answer alleging the proceedings were not instituted within the statutorily required thirty days
of the seizure and filed a motion to dismiss arguing the in rem action was barred by the statute of
limitation. The district court granted Lilton’s motion and ordered his property returned to him on
December 10, 2020. Lilton filed a motion for entry of judgment on December 20, 2020. The
district court signed the judgment on January 26, 2021.
On February 10, 2021, Lilton filed a memorandum of costs pursuant to I.C. § 12-117
requesting costs and attorney fees for the legal work performed to obtain the judgment. Twenty-
nine days later, the Prosecutor filed a motion to disallow part or all costs with a supporting
declaration and memorandum. Lilton filed a motion to strike the Prosecutor’s motion as untimely
and in opposition to the Prosecutor’s implied motion for enlargement of time. The Prosecutor
lodged four additional filings, including a motion for relief from judgment,1 to which Lilton
responded. The district court held hearings on the various motions and objections. The district
court denied the Prosecutor’s miscellaneous motions and issued an amended judgment which
awarded Lilton the requested attorney fees and costs incurred for work to obtain the initial
judgment.
On June 16, 2021, Lilton filed a supplemental request for attorney fees incurred for
securing his initial request for attorney fees and defending against the post-judgment motions
brought by the Prosecutor, asserting that the Prosecutor’s various motions and objections were
unfounded. The Prosecutor filed a memorandum in support of objection and motion to disallow
the second request for attorney fees. The district court denied the request for fees and costs. The
district court reasoned that the fees sought in the supplemental request could have been requested
in the “prior litigation” and no construction of the procedural rules or statutes relating to attorney

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The Prosecutor asked for relief from the judgment asserting that, contrary to the prior
finding of untimeliness of the complaint, there was an argument that the complaint was timely
because the probable cause for the seizure did not arise until after midnight and, thus, the start of
the timeframe occurred at that time. The district court denied the motion. Consequently, the basis
for an award of attorney fees remained.
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fees allows for successive awards of attorney fees based on being a prevailing party on a request
for attorney fees. Lilton filed a motion to reconsider and memorandum in support. The district
court issued a memorandum decision denying the motion for reconsideration. Lilton timely
appeals.
II.
STANDARD OF REVIEW
The Idaho appellate courts review a district court’s denial of attorney fees under I.C. § 12-
117 for an abuse of discretion. Ada County v. Browning, 168 Idaho 856, 859, 489 P.3d 443, 446
(2021). When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194
(2018).
The decision to grant or deny a request for reconsideration generally rests in the sound
discretion of the trial court. Campbell v. Reagan, 144 Idaho 254, 258, 159 P.3d 891, 895 (2007);
Carnell v. Barker Mgmt. Inc., 137 Idaho 322, 329, 48 P.3d 651, 658 (2002).
III.
ANALYSIS
Lilton contends that the district court: (1) misconstrued the relevant statutes in denying his
supplemental request for attorney fees; and (2) abused its discretion in denying the supplemental
request on a basis not argued by either party. The Prosecutor argues that Lilton invited error by
claiming that the reason he had not earlier filed his supplemental request was because the request
was not “ripe.” The Prosecutor also argues that the supplemental request for attorney fees was
untimely.
A. The District Court Erred in Its Initial Decision
In the district court’s initial denial of Lilton’s supplemental request for attorney fees, the
court held:
I’m not aware of a construction on the rules, or the Idaho statutes relating
to attorneys fees, that allow for successive awards of attorneys fees as a prevailing
party based [on] an award of attorney fees when you are a prevailing party, and I
think the fees that were involved here are fees that could have been requested in

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that litigation, as they were directly attributable to that litigation, and so for that
reason, the court will deny the request for attorneys fees.
There appear to be two concepts in this holding; the statutes and rules do not allow for attorney
fees to defend a prior award of attorney fees and a motion for relief from a judgment but even if
permitted, such fees must be requested at the time initial fees are requested.
1. Attorney fees incurred after an initial award of fees may be recoverable
The statutes and rules permit an award of attorney fees incurred in defending a prior award
of fees and in defending against post-judgment motions; in this case, a request for relief from
judgment. Attorney fees may be awarded to the prevailing party in an action where the non-
prevailing entity’s position does not have a reasonable basis in fact or law, I.C. § 12-117. In the
normal course of events, the judgment determines the prevailing party who is then allowed to seek
attorney fees incurred to secure that judgment on the merits. Typically, if attorney fees are
awarded, an amended judgment is filed so that the award can be collected pursuant to a judgment.
Here, however, after Lilton was awarded attorney fees, the Prosecutor unsuccessfully challenged
the award, including requesting relief from the judgment itself. Idaho Code § 12-117 includes
attorney fees to Lilton, as the prevailing party, for the additional fees he incurred in defending his
initial award of attorney fees and opposing the request for relief from the judgment. Lilton
prevailed. The Prosecutor has cited to no rule or attorney fee statute that precludes an award for
attorney fees necessarily incurred after a favorable decision on the merits.
2. The supplemental request for attorney fees need not have been brought earlier
The district court suggested that the request for fees incurred in defending the judgment
and initial award of attorney fees could have and must have been brought as a part of the initial
attorney fees request. First, this is contrary to the district court’s initial holding that attorney fees
incurred after a decision on the merits are unavailable. Second, post-judgment proceedings and
the initial award of fees are not separate litigation, as the district court suggests. Finally, the district
court’s analysis does not take into consideration that attorney fees in this case continued to accrue
post-judgment until the time of the district court’s decision on Lilton’s supplemental request for
attorney fees. Given the extent of the Prosecutor’s filings after Lilton’s first fee award, it would
be impractical for Lilton to file updates to the initial award of attorney fees on a rolling basis. The
district court asked Lilton why he had not filed the supplemental request earlier, and Lilton
responded that it was not “ripe” because he was not yet the prevailing party on the post-merits
decision litigation.
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On appeal, the Prosecutor argues that Lilton’s position that the supplemental attorney fee
request was not ripe earlier is a concession and the invited error doctrine precludes Lilton’s claim
of error. The doctrine of invited error applies to estop a party from asserting an error when that
party’s conduct induces the commission of the error. State v. Atkinson, 124 Idaho 816, 819, 864
P.2d 654, 657 (Ct. App. 1993). Lilton’s position was not a concession that he was eligible for the
supplemental attorney fees before making that request, but instead was a correct assertion that he
was not the prevailing party on the post-merits litigation, including the Prosecutor’s motion for
relief from the judgment, until that phase of litigation concluded in his favor. The district court
erred in its initial decision.
B. The District Court Erred in Deciding the Motion for Reconsideration
A different district judge decided the motion for reconsideration. The district court did not
directly address the basis for the holdings on the initial motion. The district court stated, “Of
course, this court is not being asked to reconsider the court’s earlier award of fees to the car.”
Instead, the district court determined that: (1) Lilton was not a real party in interest; (2) a judgment
was not required on the merits, and; (3) the Prosecutor had a good faith basis to claim in law or
fact that the initial attorney fee request was untimely and, although the Prosecutor did not so argue,
there was a basis in law for such an argument precluding attorney fees under I.C. § 12-117. We
disagree.
1. The district court erred in holding Lilton is not the real party in interest
Lilton argues the district court erred by finding Lilton is a person but not a party entitled to
request attorney fees under the relevant statutes. Lilton asserts he is a real party in interest under
I.C. § 37-2744(d) and is entitled to claim attorney fees under I.C. § 12-117. The district court
concluded that, although Lilton is a person, he is not a party entitled to personally request attorney
fees under I.C. § 12-117. In reaching this conclusion, the district court first considered the nature
of an in rem action and concluded that only “a vehicle and a pile of federal reserve notes” were
defendants. The district court also described what it viewed as the summary nature of in rem
forfeiture actions, concluding that the legislature set the proceedings up to be “quick and dirty”
and, while the owner could appear, an owner is not allowed to be a “party” to the action. We
conclude to the contrary that Lilton is a real party in interest under the statutes and case law.

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The district court recognized, but then distinguished, Idaho Department of Law
Enforcement, By and Through Richard L. Cade v. Kluss, 125 Idaho 682, 873 P.2d 1336 (1994).
Kluss is indistinguishable in any meaningful way. The Kluss Court held:
Admittedly, a civil property forfeiture action under I.C. § 37-2744A is an in
rem proceeding brought in the name of the state against the property sought to be
forfeited. However, there is no question from the forfeiture provisions that the
legislature contemplated it would be the property owner who would be the real party
in interest. The statute specifically provides that notice of the forfeiture must be sent
to any persons holding a recorded interest in the property and that the forfeiture
complaint must be served on all persons having an interest in it. The statute also
requires that the property be released to the owner if the owner had no knowledge or
reason to believe the real property was being used for the purposes alleged by the
DLE, or if it in fact was not being so used. Without question, the owner of the property
being subjected to a forfeiture proceeding is so inextricably involved in the forfeiture
that the property owner is such a "person" included within I.C. § 12-117. We,
therefore, conclude that I.C. § 12-117 applies to drug forfeiture proceedings.
Kluss, 125 Idaho at 684-85, 873 P.2d at 1338-39 (emphasis added). The district court noted that
Kluss would be determinative if this were a real property case under I.C. § 37-2744A, but
distinguished Kluss because this is a personal property forfeiture case under I.C. § 37-2744(d) with
a more “truncated” procedure relative to personal property forfeitures. For purposes of
determining the real party in interest, the framework for the proceeding is not relevant. The
Prosecutor does not contend otherwise. Kluss is controlling and Lilton is the real party in interest
entitled to personally make a claim for attorney fees.
2. The district court erred in holding that a judgment is not required
As to the entry of judgment, the district court held that under I.C. § 37-2744(d) a judgment
is not appropriate or necessary because this is an action in rem. The district court acknowledged
that the legislature made reference to the court entering judgment in I.C. § 37-
2744(d)(3)(D)(IV)(iii) but stated “one cannot view the various orders the legislature has required
the court to make as judgments as that term is defined in Rule 54.” Related to the erroneous
holding that Lilton is not a party, the district court held that an in rem action only has one party
and there is no claim by or against any other party. The district court acknowledged that it should
enter a judgment in such cases setting forth the relief the only party to the action (the Prosecutor
or other appropriate state agency) is entitled to receive on the claim which can be nothing, title to
the conveyance, or a portion of the proceeds. Nonetheless, the district court concluded that no

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judgment was otherwise necessary or needed to be entered in favor of the property named as
defendants in this case. Since Lilton is a real party in interest, a judgment was appropriate and
necessary. See Idaho Rule of Civil Procedure 54; Idaho Appellate Rule 11.
3. The district court erred in holding that there was a reasonable basis in law or
fact for the denial of attorney fees in the first instance and denying the
supplemental fees on that basis
Although the district court concluded Lilton was not entitled to attorney fees because he is
not a party, it alternatively considered the merits of Lilton’s request. The district court
acknowledged Lilton argued that the Prosecutor acted without a reasonable basis in opposing the
first fee request because the Prosecutor’s objection to attorney fees was admittedly untimely; and
the Prosecutor conceded that an attorney fee award was appropriate so the Prosecutor’s later
opposition was without a reasonable basis in fact or law. However, the district court held that even
though the Prosecutor’s objection to attorney fees was untimely, the court could consider the
arguments made therein, and that because a judgment was not necessary, there was a reasonable,
albeit unpersuasive, argument that the time to file the initial request for attorney fees ran from the
court’s order that possession of the car and cash be returned to Lilton, which would make Lilton’s
attorney fee request untimely.
The Prosecutor conceded the first award of attorney fees due to the Prosecutor filing an
untimely response.2 The district court abused its discretion by denying the request for
reconsideration of the supplemental request for attorney fees based on finding that the Prosecutor
actually had a good faith basis to have challenged the first award of attorney fees. The first order
for attorney fees was followed by a request for judgment. Lilton’s request for entry of judgment
was not a delay tactic and did not violate I.R.C.P. 58. The district court initially did not enter
judgment. Pursuant to I.R.C.P. 54(d)(4), attorney fees can be sought any time after a jury verdict
or a decision of the court, but not later than fourteen days after entry of a judgment by any party
who claims costs. While failure to timely file a memorandum of costs and attorney fees is a waiver,
the timeliness of a request for attorney fees is based on the entry of a judgment.

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At the hearing conducted May 24, 2021, the district court noted that there was no objection
to an award of fees and the issue was the fees requested, to which the Prosecutor responded, “I
don’t see it any other way, Your Honor.” The Prosecutor later asked for reconsideration; however,
the Prosecutor first conceded Lilton had standing and the district court properly awarded attorney
fees because the Prosecutor’s objection was untimely. The Prosecutor does not argue the district
court should have disregarded his concession.
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The district court acknowledged that it was not being asked to reconsider the attorney fees
initially awarded and that the Prosecutor conceded its initial objection was untimely and, thus,
there was no basis upon which to challenge the initial award. Nonetheless, the district court
concluded the Prosecutor could have made an argument reasonably based in law that the initial
award of attorney fees was untimely. The district court denied Lilton’s request for supplemental
attorney fees and, in doing so, abused its discretion. The district court stated that this aspect of its
decision was made assuming error in its holdings that Lilton was not a party and no judgment was
required. As such, the district court noted that the untimeliness argument would have been
unpersuasive, but nonetheless concluded it was not without a basis in law or fact.
The Prosecutor agreed at the May 24, 2021, hearing on post-judgment motions that the
only issue was the amount of attorney fees to award, acknowledging that Lilton was entitled to
attorney fees. That concession came after the Prosecutor made the argument in its various post-
judgment filings that the initial request for attorney fees was untimely and violated Rule 58’s
prohibition of delaying entry of judgment for the taxation of costs. The Prosecutor did not ask for
reconsideration or appeal any adverse decision. The district court erred in disregarding the
Prosecutor’s previous concessions when finding that the Prosecutor had a reasonable legal
argument to defeat the first award of attorney fees. Lilton is a real party in interest and entitled to
judgment and the opportunity to seek attorney fees under I.C. § 12-117. The district court erred
in denying Lilton’s motion for reconsideration.
IV.
CONCLUSION
The district court erred in finding Lilton was not a real party in interest and was not entitled
to attorney fees. Consequently, the district court erred by denying Lilton’s motion for
reconsideration. As a result, we reverse the district court’s denial of Lilton’s motion for
reconsideration and remand the case for entry of an award of attorney fees.
Costs on appeal are awarded to Lilton.
Chief Judge LORELLO and Judge HUSKEY CONCUR.

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