The district court found both the Terrells and Paradis were in privity with the original parties to the commercial transaction that created the recreational easement. The district court concluded this Court's holding in Garner v. Povey, 151 Idaho 462, 259 P.3d 608 (2011), required that attorney fees be awarded against the Terrells because the Terrells asserted in their complaint they were entitled to attorney fees under section 12-120(3). The district court awarded Paradis its reasonable attorney fees incurred prior to and after arbitration, as well as for matters brought directly to the district court.

We have held that " ‘[a]llegations in the complaint that the parties entered into a commercial transaction and that the complaining party is entitled to recover based upon that transaction, are sufficient to trigger the application of I.C. § 12-120(3).’ " Carter v. Gateway Parks, LLC , 168 Idaho 428, 441, 483 P.3d 971, 984 (2020) (alteration in original) (quoting Garner v. Povey , 151 Idaho 462, 470, 259 P.3d 608, 616 (2011) ). We have typically applied this rule where, after substantive litigation, a party seeking fees attempted to change its characterization of the action.

‘[T]he gravamen of the lawsuit,’ was the basis on which [the plaintiff] was attempting to recover." 151 Idaho 462, 469, 259 P.3d 608, 615 (2011) (quoting Great Plains Equip., Inc. v. Northwest Pipeline Corp., 136 Idaho 466, 471, 771, 36 P.3d 218, 223, 224 (2001) ( Great Plains Equip. II )).

Idaho Code section 12-120(3) statutorily authorizes attorney fees in a case involving a "commercial transaction." In his cross-appeal, Crumb relies on Garner v. Povey, 151 Idaho 462, 470, 259 P.3d 608, 616 (2011) to argue that the district court's denial of attorney fees was in error. Under Idaho Code section 12-120(3), "[w]hether an action is based on a commercial transaction is a question of law over which this Court exercises free review."

“In other words, the relevant inquiry is whether the commercial transaction constituted ‘the gravamen of the lawsuit.'” Garner v. Povey, 259 P.3d 608, 615 (Idaho 2011) (citing Great Plains, 36 P.3d at 224).

Under section 12-121, attorney fees can be awarded only if the party's claim was frivolous, unreasonable, and without foundation. Garner v. Povey, 259 P.3d 608, 614 (Idaho 2011) (citing Idaho R. Civ. P. 54(e)). An award under section 12-121 is committed to the court's discretion.

Sims , 157 Idaho at 985, 342 P.3d at 912 ; Great Plains Equip., Inc. v. Nw. Pipeline Corp. , 136 Idaho 466, 472, 36 P.3d 218, 224 (2001). Neither a contract, Blimka v. My Web Wholesaler, LLC , 143 Idaho 723, 728, 152 P.3d 594, 599 (2007), nor a commercial transaction in fact are necessary predicates to awarding attorney fees under a claim that qualifies for fees under section 12-120(3), Garner v. Povey , 151 Idaho 462, 470, 259 P.3d 608, 616 (2011). Instead, "a prevailing defendant can recover attorney fees under [ section] 12–120(3) if the opposing party's complaint alleges a claim seeking to recover on a commercial transaction, even though it fails to prove that such transaction occurred."

Thus, I.C. § 12–120(3) is triggered when there are "allegations in the complaint that the parties entered into a commercial transaction and that the complaining party is entitled to recover based upon that transaction." Garner v. Povey, 151 Idaho 462, 470, 259 P.3d 608, 616 (2011). Whether an action is based on a commercial transaction is a question of law over which this Court exercises free review.

“Whether a district court has correctly determined that a case is based on a commercial transaction for the purpose of I.C. § 12–120(3) is a question of law over which this Court exercises free review.” Garner v. Povey, 151 Idaho 462, 469, 259 P.3d 608, 615 (2011). B. The Buyer's Obligations clause of the land sale contracts is not ambiguous.

"Whether a district court has correctly determined that a case is based on a commercial transaction for the purpose of I.C. § 12–120(3) is a question of law over which this Court exercises free review." Garner v. Povey, 151 Idaho 462, 469, 259 P.3d 608, 615 (2011). B. The Buyer's Obligations clause of the land sale contracts is not ambiguous.