Must a party seek to “recover” on a commercial transaction before attorney fees are allowed under Idaho Code § 12-120(3)? Stated differently, does an action for declaratory or injunctive relief preclude attorney fees under the statute? The Idaho Supreme Court addressed those questions in Idaho Transportation Department v. Ascorp, Inc., 2015 Opinion No. 94 (Sept. 25, 2015). The case concerned an action for declaratory judgment filed by the Idaho Transportation Department (ITD) to determine rights under a highway construction contract. The district court granted Ascorp’s motion to dismiss and awarded it attorney fees under Idaho Code § 12-120(3). ITD appealed, and the Court affirmed.

Idaho Code § 12-120(3) allows an award of attorney fees “[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 ….” ITD argued that its declaratory judgment action did not qualify as a dispute involving a commercial transaction because the action sought declaratory relief, not to “recover” on a commercial transaction. The Court rejected the argument: “The plain language of Idaho Code section 12-120(3) referencing ‘and in any commercial transaction’ does not require the element of recovery or collection of a debt. An action for interpretation or enforcement of provisions of a commercial transaction relationship or declaration of rights therein falls within the statute.”

The Court also found Ascorp was entitled to attorney fees on appeal under section 12-120(3). According to the Court: “When a party prevails at both trial and on appeal, and that party received an award of attorney fees under Idaho Code section 12-120(3) at the trial level and the award is affirmed on appeal, that party is also entitled to an award of attorney fees for the appeal pursuant to Idaho Code section 12-120(3).”