author: BEVAN, Justice.

text:
    Jeffrey T. HARDY and Johnna A. Hardy, husband and wife, Plaintiffs-Counterdefendants-Respondents, v. Ronald O. PHELPS and Donna J. Phelps, Husband and Wife; Ronald O. Phelps and Donna J. Phelps, Trustees of the Phelps Family Trust u/d/t/ September 16, 2004; and Does I-X as individuals with interest in real property located in Boise County, Idaho, legally described as Lots 26 and 27 of Mores Creek Heights, according to the plat thereof, recorded as Instrument No. 95549, records of Boise County, Idaho, Defendants-Counterclaimants-Appellants.
    Ronald O. Phelps and Donna J. Phelps, Husband and Wife; Ronald O. Phelps and Donna J. Phelps, Trustees of the Phelps Family Trust u/d/t/ September 16, 2004; and Does I-X as individuals with interest in real property located in Boise County, Idaho, legally described as Lots 26 and 27 of Mores Creek Heights, according to the plat thereof, recorded as Instrument No. 95549, records of Boise County, Idaho, Cross Claimants-Appellants, v. Boise County, a political subdivision of the State of Idaho, and John and John Doe I through X, whose true identities are unknown, Cross Defendant-Respondent
    Docket No. 45933
    Supreme Court of Idaho, Boise, April 2019 Term.
    Opinion Filed: May 20, 2019
    Johnson & Monteleone, L.L.P., Boise, attorney for Appellants. D. Samuel Johnson argued.
    Jones, Gledhill, Fuhrman, Gourley, P.A., Boise, attorneys for Counter-defendants and Respondents Hardy. Chad E. Bernards argued.
    Borton-Lakey Law & Policy, Meridian, attorneys for Cross-defendants and Respondents Boise County. Joseph W. Borton argued.
   BEVAN, Justice.

I. NATURE OF THE CASE

Jeffrey and Johnna Hardy ("the Hardys") purchased two properties at a tax sale and brought action to quiet title against the original owners, Ronald and Donna Phelps ("the Phelpses"). The Phelpses counterclaimed against the Hardys and cross-claimed against Boise County, alleging that Boise County failed to provide them proper notice of tax deficiency. Following a bench trial, the district court entered judgment quieting title to the properties in the Hardys and denying the Phelpses' counterclaim. The Phelpses appealed, asserting the lack of notice makes the Hardys' deeds void.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the early 1980s, the Phelpses purchased seven parcels of property in Mores Creek Heights, a subdivision in Boise County. Two of those seven lots are at issue in this appeal ("Lot 26" and "Lot 27").

On October 1, 2004, the Phelpses recorded a quitclaim deed and trust transfer deed, transferring each of the seven lots into their trust. Each deed contained the statement "Mail Tax Statements to: Ronald O. Phelps, Donna J. Phelps, 1 Craftsbury Place, Ladera Ranch, CA 92694." The Phelpses moved to this address in 2005 and resided there at the time of the bench trial on November 16, 2017. The Phelpses signed for the receipt of certified mail sent to the Ladera Ranch address from Boise County as late as May 18, 2013, and again on December 7, 2015; however, the Phelpses' mailing address on file with Boise County beginning in 2009, and at all times relevant here, was P.O. Box 1047, El Toro, CA, 92630. Boise County mailed notices regarding property taxes on the lots to the Phelpses at the El Toro address beginning in 2009.

The Phelpses did not pay property taxes on the lots for 2010 or any year thereafter. On or about March 21 and March 24, 2014, Boise County ordered and obtained litigation guarantees from Alliance Title for each of the Phelpses' seven lots. The litigation guarantees listed the parties who have a publicly recorded interest in each property. The computer program used to produce the litigation guarantees searches all recorded documents held by every county in Idaho, also searching for nicknames, the names of spouses, maiden names of spouses, and possible misspellings of names. Alliance Title's March 2014 litigation guarantee for Lot 26 and Lot 27 listed P.O. Box 1047, El Toro, CA and 1 Craftsbury Place, Ladera Ranch, CA as the two addresses for the Phelpses.

On May 23, 2014, Boise County mailed multiple envelopes, each containing a "Notice of Pending Issue of Tax Deed" ("Pending Issue Letter") that identified the parcel, the names of the owners, the amount of delinquency, the date of hearing, and the date that a tax deed to Boise County would be issued if the delinquency was not cured. Copies of this Pending Issue Letter for each of the Phelpses' lots were sent by certified mail to P.O. Box 1047, El Toro, CA and to 1 Craftsbury Place, Ladera Ranch, CA. Boise County also mailed the Pending Issue Letter by ordinary mail to P.O. Box 1047, El Toro, CA 92630. The letters each stated:

If said delinquency entry is not redeemed on or before July 22, 2014, by payment of said unpaid taxes together with late charges, interest, and all costs and expenses ... I shall thereupon, as required by law, make application to the Board of County Commissioners of Boise County, State of Idaho, for a hearing to be held on July 23, 2014, at 10:00 AM, or as soon thereafter as said application can be heard, at 420 Main Street, Idaho City, ID for a Tax Deed conveying the above described property to said Boise County ....

After receiving no reply to the letters, on June 18, 2014, Boise County published the first of four consecutive weekly advertisements on the pending issuance of tax deeds for the Phelpses' lots, including Lot 26 and Lot 27, in the Idaho World newspaper (the newspaper of general circulation in Boise County). The summary of the advertisement included the names of Mr. and Ms. Phelps, the P.O. Box 1047, El Toro, CA address, and the legal description of each of their seven lots. The summary further stated that

the time of redemption of said property from said taxes expires on July 22, 2014, at 5:00 PM, and if not paid a tax deed will be issued to said County of Boise.

The final advertisement ran on July 9, 2014.

On June 20, 2014, Ms. Phelps emailed Boise County, requesting confirmation that the Phelpses were "for sure up to date on our taxes." On June 23, Boise County replied to Ms. Phelps' email stating, "[y]our taxes are delinquent an[d] you need to pay the 2010 taxes of $ 11,908.79 [b]efore July 23, 2014 to avoid a tax deed." The reply email does not mention the Pending Issue Letter or a specific hearing. Ms. Phelps verified by affidavit that she received this email but testified that she took the email to mean she would get a more formal notice after July 23, 2014.

On July 2, 2014, one of the envelopes containing the Pending Issue Letter sent to the Phelpses at 1 Craftsbury Place, Ladera Ranch, CA was returned as unclaimed to Boise County. On July 16, 2014, affidavits of compliance for the tax deed process for Lot 26 and Lot 27 were recorded. The Boise County Commissioners ("the Board") held a public hearing and granted a motion to approve the properties on the tax deed listing. The Board issued its Findings of Fact and Conclusions of Law for Lot 26 and Lot 27 on July 22, 2014. The Board found:

On May 16th [sic], 2014, [Boise County] caused to be served a copy of the Notice of Pending Issue of Tax Deed by certified, registered mail, return receipt demanded, upon the record owner, at their last known address, for the above referenced property; which was no more than five (5) months and no less than two (2) months prior to the time set for the tax deed to issue.

Also on July 22, 2014, the Board signed the tax deeds for Lot 26 and Lot 27. The tax deeds were recorded on July 24, 2014.

On July 28, 2014, Boise County received two more unclaimed envelopes that they had sent by certified mail to the Phelpses at 1 Craftsbury Place, Ladera Ranch, CA and to P.O. Box 1047, El Toro, CA.

Over a year later, on September 15, 2015, Boise County auctioned and sold all seven of the Phelpses' lots. The Hardys purchased Lot 26 and Lot 27 at the auction. The Phelpses took no action to pay their taxes, to contest the tax sale, or to redeem their lots prior to the auction.

On September 22, 2015, Boise County granted the Hardys quitclaim deeds for Lot 26 and Lot 27. The original quitclaim deeds contained a spelling error, so the deeds were corrected and re-recorded on September 30, 2015. The Hardys have paid the property taxes on Lot 26 and Lot 27 every year since they purchased them.

On November 24, 2015, Boise County sent an excess funds letter by certified mail to the Phelpses at 1 Craftsbury Place, Ladera Ranch, CA 92694. On December 7, 2015, Ms. Phelps signed for the letter. On February 8, 2016, Boise County received a letter from the Phelpses requesting payment for the excess proceeds from the tax sale. The letter requested that the payment be sent to a new address, P.O. Box 3779, Mission Viejo, CA 92690, even though the Phelpses maintained this had been their address for "the last 10 plus years." The March 2014 litigation guarantees did not include the Mission Viejo address for the Phelpses.

After Boise County issued quitclaim deeds to the Hardys, the Hardys began making improvements to Lot 26 and Lot 27, which included survey work, excavation, permitting, and the building of a foundation. At the bench trial, the Hardys provided invoices showing they began the work on the lots in July 2016.

On October 19, 2016, the Hardys filed a verified complaint for declaratory relief. The complaint sought to quiet title on Lot 26 and Lot 27 and alleged that Boise County had properly taken title to the lots from the Phelpses by tax deed and then properly quitclaimed the lots to the Hardys. The Phelpses answered the complaint, filed a counterclaim, and filed a cross-claim against Boise County on December 21, 2016. The Phelpses alleged that the tax deeds had

no lawful effect and were unlawfully issued, without proper notice to [the Phelpses] of any alleged tax delinquency, and in violation of [the Phelpses] right to due process guaranteed under the Fourteenth Amendment to the U.S. Constitution and the Idaho Constitution, Article 1, § 13.

Later, the Hardys filed an amended complaint which added an alternative claim of unjust enrichment. This claim would allow the Hardys to seek equitable damages for the improvements the Hardys made to Lot 26 and Lot 27 if the trial court found that the tax deeds were improper. Shortly thereafter, both Boise County and the Phelpses filed motions for summary judgment. The Hardys filed a partial joinder with Boise County's motion a few days later.

On November 9, 2017, the district court denied the competing motions for summary judgment, finding that "[e]ither party could prevail at trial." That same day, all parties entered into a joint stipulation for trial, which provided that the district court was to consider "whether the Phelps' [sic] were provided with lawful and constitutionally sufficient notice of the tax deed process." It was agreed that the trial court would only address damages if concluded that the Phelpses were not provided with adequate notice.

Based on the stipulation, the parties appeared for the bench trial and the court heard testimony from Ms. Phelps, Mr. Hardy, and Daniel Derby with Alliance Title. The district court then issued its Findings of Fact and Conclusions of Law. It concluded that despite times when Idaho Code section 63-1005 was not strictly complied with, Boise County's minor errors did not affect the Phelpses' substantive rights and that the errors were "mere irregularities in the ... proceedings."

Shortly thereafter the district court entered its judgment and decree quieting title to Lot 26 and Lot 27 in favor of the Hardys and stating that the Hardys' unjust enrichment claim was moot. The Phelpses timely filed their notice of appeal.

III. ISSUES ON APPEAL

1. Did the district court err in its interpretation of Idaho Code section 63-1005 's notice requirement?

2. Did the district court err in determining that Boise County provided the notice required by Idaho Code 63-1005 and due process?

3. Are the Hardys or Boise County entitled to an award of attorney fees on appeal?

IV. STANDARD OF REVIEW

"The standard of review of the lower court's determination on issues of statutory interpretation is one of free review." Big Sky Paramedics, LLC v. Sagle Fire Dist., 140 Idaho 435, 436, 95 P.3d 53, 54 (2004).

Due process issues are generally questions of law over which this Court exercises free review. Neighbors for a Healthy Gold Fork v. Valley Cnty., 145 Idaho 121, 127, 176 P.3d 126, 132 (2007).

V. ANALYSIS

A. The district court correctly interpreted Idaho Code section 63-1005 's notice provision.

Idaho Code section 63-1005(1) states that when there is a tax delinquency, the county tax collector of the county where the real property is situated may issue a tax deed for such property. I.C. § 63-1005(1). The statute further states that "the county shall not be entitled to a tax deed for such real property until ... a notice of pending issuance of tax deed has been given. ..." I.C. § 63-1005(1)(a). The statute continues by dictating how notice must be given:

The county tax collector of the county wherein the real property for which a tax deed may issue shall serve or cause to be served written notice of pending issue of tax deed upon the record owner or owners and parties in interest of record in the following exclusive manner:
(a) By serving or causing to be served a copy of such notice by certified mail with return receipt demanded upon the record owner or owners and parties in interest of record at their last known address, such service of notice to be made no more than five (5) months nor less than two (2) months before the time set for the tax deed to issue;
(b) In the event that such notice is served as above described and returned undelivered after attempting to locate and serve the record owner or owners and parties in interest of record, by publishing a summary of such notice in a newspaper having general circulation in the county wherein the real property is situated. Such publication must be made at least once a week for four (4) consecutive weeks, the last publication of which is to be no more than two (2) months nor less than fourteen (14) days before the time set for the tax deed to issue.

I.C. § 63-1005(2).

Idaho Code section 63-1005(6) provides that actual notice is sufficient to satisfy the notice requirements of the statute:

"If a record owner or owners or a party in interest shall have actual notice of the notice of pending issue of tax deed or that issuance of a tax deed is pending, it shall be deemed sufficient notice under this section."

I.C. § 63-1005(6).

The Phelpses allege that the district court misconstrued the notice provisions set forth in Idaho Code section 63-1005. Specifically, the Phelpses argue that the language in the statute creates a "temporal element," which would require Boise County to proceed only by "attempting to locate and serve" notice to a record property owner after service by certified mail fails, but before the tax collector may resort to service by publication. In other words, Phelpses suggest that the statutory onus of "attempting to locate and serve" the record owner would not arise until service by certified mail at the property owners' last known address has failed and mail has been returned undelivered.

The County, as a matter of course, ordered litigation guarantees before the statute requires that level of effort to be made, then mailed the Pending Issue Letters to all likely addresses. The Phelpses argue that the County, under the statute, should have been required to employ "new or different means to locate the record owners, when service at their last known address returns undelivered." They concede that this does not mean Boise County was required to do again "what failed in the first instance," but argue that Boise County should have chosen a different method to locate the Phelpses once the Pending Issue Letters were returned.

When the language of a statute is plain and unambiguous, the Court gives effect to the statute as it is written, without resorting to statutory construction. In re Estate of Peterson, 157 Idaho 827, 830, 340 P.3d 1143, 1146 (2014). Only when the statute is ambiguous will this Court look to the rules of construction for guidance in considering the reasonableness of the conflicting interpretations. Id. Ambiguity occurs where the language in the statute is capable of more than one reasonable interpretation; however, ambiguity is not established just because the parties present differing interpretations to the Court. State v. Yzaguirre, 144 Idaho 471, 476, 163 P.3d 1183, 1188 (2007).

While the statute could be read to impose a temporal requirement, as the Phelpses propose, we hold that it is more reasonable to interpret the statute to require only that a sufficient attempt to locate be made before service by publication is undertaken. We reach this conclusion for two reasons. First, if the alternative reading were adopted, it would require a duplication of effort by Boise County each time a certified letter is returned. We decline to find that Boise County violated section 63-1005(2)(b) simply because it ordered the litigation guarantees earlier than was necessary.

Second, a temporal requirement is not the interpretation of the statute that the legislature intended, as evidenced by a change to the statute in 1996. Before 1996, the statute read:

In the event that such notice is served as above described and returned undelivered and after reasonable and diligent search and inquiry in attempting to locate and serve the record owner or owners and parties in interest of record, by publishing a summary of such notice in a newspaper having general circulation in the county wherein the property is situated.

I.C. § 63-1126B(b) (repealed effective Jan. 1, 1996) (emphasis added). This section was replaced by section 63-1005(2)(b) in 1996. It currently contains no such temporal limitation and it is not within this Court's purview to add a temporal limitation that the legislature specifically removed. Rather, we give effect to the legislative expression shown by the removal of the old language. In the Revenue and Taxation Committee's Statement of Purpose about the change, the committee claimed the amendment to the statute "would [have] an economic benefit and potential cost savings to the counties by improving the efficiency of property tax administration." Statement of Purpose, RS 05760C1, H.B. 783. For these reasons, this change signals the legislature's intention to remove an explicitly temporal element from the notice provision and as a result, increase efficiency by not requiring a duplication of efforts.

We hold there is no temporal element in the statute as it is currently written. The district court was correct in accepting Boise County's position that it would be wasteful and duplicative for Boise County to repeat the cost and effort represented by the litigation guarantees or to publish notice again every time a certified notice is returned.

B. The district court correctly determined that Boise County conducted reasonable attempts to locate the Phelpses.

The Phelpses argue that even if Boise County complied with the statute as written, the County still breached their right to due process and the notice requirements in Idaho Code section 63-1005(4)(f) ("Such notice and summary thereof must contain ... [t]he time, date, place at which, and by whom the tax deed will issue."). They maintain that the facts found by the district court show that Boise County violated the Phelpses' fundamental right to due process, which constitutes "clear grounds for reversal."

The Phelpses claim that had Boise County conducted a search after the notices came back undelivered, it would have discovered an obvious lead in its county records: Ms. Phelps email address. In the Phelpses' brief, Ms. Phelps alleges that in October 2012, she telephoned Boise County to inform them of her change of address from 1 Craftsbury Place in Ladera Ranch to P.O. Box 3779 in Mission Viejo . Ms. Phelps states that after this phone call, Boise County emailed her instructions on how to complete a change of address, which included filling out a form and mailing it to the Boise County Treasurer. Ms. Phelps maintains that she faxed the completed form to Boise County. Even so, the crux of the Phelpses' argument here is that Boise County had, in its records, Ms. Phelps' email address but did not try to use it to serve the Phelpses the Pending Issue Letter. The Phelpses argue that these cumulative errors created a fatal defect to the overall process of serving notice to the Phelpses.

Due process requires that in any proceeding by which a person can be deprived of property, there must be notice reasonably calculated, under all the circumstances, to apprise interested parties of the opportunity to object. Giacobbi v. Hall , 109 Idaho 293, 296, 707 P.2d 404, 407 (1985). Idaho courts have held that a defect is fatal to a tax deed when the defect in following the notice requirements has affected the property owner's substantive rights, like the right to due process. See Salladay v. Bowen, 161 Idaho 563, 567, 388 P.3d 577, 581 (2017) ; see also Sines v. Blaser, 100 Idaho 50, 52, 592 P.2d 1367, 1369 (1979) ("The giving of such notice is mandatory and the lack of it a fatal defect."). Even so, "[a] construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

In Jones v. Flowers, the United States Supreme Court held that when a mailed notice of a tax sale is returned unclaimed, a government agency must take additional reasonable steps to attempt to provide notice to the property owner before selling the property, so long as it is practicable to do so. 547 U.S. 220, 225, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). In that case, after the property owner became delinquent in the payment of his property taxes, a certified letter was sent to his address informing him that the property would be sold two years later to pay the delinquent taxes. Id. at 223, 126 S.Ct. 1708. Nobody was home to sign for the letter and nobody retrieved it from the post-office, so it was returned to the Commissioner of State Lands "unclaimed." Id. at 224, 126 S.Ct. 1708. Two years later, and after notice was published in the newspaper without response, the Commissioner received a private purchase offer. Id. The Commissioner then sent another certified letter to the owner's last known address which also came back unclaimed. Id.

The Court held that under the circumstances, it would have been practicable for the State to take additional reasonable steps, though the notice required would "vary with [the] circumstances and conditions [in each case]." Id. at 224, 126 S.Ct. 1708 (internal quotation and citation omitted). The Court pondered specifically whether due process entails more responsibility when the government becomes aware, prior to the taking, that its attempt at notice has failed and whether that knowledge creates a "circumstance and condition" that varies the "notice required." Id. at 227, 126 S.Ct. 1708. The Court held that other reasonable measures should have been taken to provide notice to the property owner-such as posting notice on the front door, addressing otherwise undeliverable certified mail to "occupant," or "resend[ing] the notice by regular mail, so that a signature was not required." Id. at 234-35, 126 S.Ct. 1708. Despite the property owners' suggestion that the State should have searched for his new address in the phonebook and other government records such as income tax rolls, the Court "[did] not believe the government was required to go this far." Id. at 235-36, 126 S.Ct. 1708.

This Court has contemplated similar issues. In Western Loan and Building Co. v. Bandel , a city provided an assessment roll to a certain property, but the land involved was not described properly. 57 Idaho 101, 63 P.2d 159, 160 (1936). "An assessment roll is a public record to which property owners are entitled to look for information as to whether their property has been assessed." Id. at 109, 63 P.2d at 162. In that case, because of the "erroneous and misleading" description of the property, this Court found that the owners would have been justified in believing their property had not been among those that were assessed. Id. The statute regarding notice for the assessment rolls required

publication, by the clerk of the municipality, of notice in the official newspaper that the assessment roll is on file in his office, and said notice shall state the time at which the council will hear and consider objections to the roll by parties aggrieved by the assessments.

Id. at 112, 63 P2d at 163. The city ultimately issued a tax deed for the property, but this Court held that because of the deficiency in the notice, the owner's due process rights had been affected. Id. The Court reasoned that the lack of notice and defective tax roll did "not relate to mere irregularities in the assessment proceedings," but related to "safeguards [which] protect[ ] the fundamental, constitutional rights of the citizen." Id.

In Giacobbi v. Hall, this Court held that Blaine County was neither diligent nor responsible in searching for the property owner's address before issuing a tax deed and thus notice by publication denied the property owner due process. 109 Idaho 293, 297, 707 P.2d 404, 408 (1985). In that case, after notice by certified mail was returned undelivered, the Treasurer searched the county records and the local phone book and contacted the local post office to obtain the property owner's address prior to publication. Id. at 294, 707 P.2d at 405. Although the County Recorder's office sometimes contacted title companies to locate a taxpayer's address, it did not do so in that case. Id. at 295, 707 P.2d at 406. As discussed above, the controlling statute at the time the case was decided stated, "in the event that such notice is served by [registered or certified mail] and returned undelivered and after reasonable and diligent search and inquiry ...." Id. at 296, 707 P.2d at 407 (quoting I.C. § 63-1126B(b) (emphasis added by the Court)). In its decision, the Court reasoned that the statute contemplated

that certified or registered mail notice may be undeliverable, and may be so for any number of reasons: no address on the deed, an incorrect and ineffective address, or a last known address ineffective because the parties have moved. The statute does not specify that for some reasons a reasonable and diligent inquiry will be done, and for others not-it simply indicates that whenever mail is undeliverable, a reasonable search and inquiry will be done before notice is published.

Id. (emphasis added).

Giacobbi is heavily relied on by the Phelpses, but it lends little help to their argument. Though factually similar to this case, Giacobbi was decided before the 1996 change in the applicable statute. H.B. 783 amended the steps necessary for a County to take property by tax deed in order to make service more economical, including "potential cost savings to the counties by improving the efficiency of property tax administration." The change included specifically removing the language "in the event that such notice is served ... and returned undelivered and after reasonable and diligent search and inquiry ...." I.C. § 63-1126B (repealed effective Jan. 1, 1996) (emphasis added). Because of the change in language to the applicable statute, Giacobbi is no longer relevant and does not offer adequate support to the Phelpses that the notice attempt here was insufficient.

While Giacobbi is of no help to the Phelpses, we recognize that there are three flaws with the notice given by the County. First, the Pending Issue Letters were originally mailed less than two months before the July 22, 2014, issuance of the tax deeds. Idaho Code section 63-1005(2)(a) provides that "such service of notice [must] be made no more than five (5) months nor no less than two (2) months before the time set for the tax deed to issue." The district court noted that the Pending Issue Letters here were mailed out on May 23, 2014, one day late. Second, the Pending Issue Letters incorrectly stated that the hearing on the matter would be held on July 23, 2014 while the hearing was actually held on July 22, 2014. The district court remarked that these errors mean that

[e]ither the Pending Issue Letters contained a typographical error stating that that [sic] date of issuance would be July 23, 2014 when they should have said July 22, 2014, or the Pending Issue Letters were sent out one day too late: On May 23, 2014, when the deadline was May 22, 2014.

Third, the service by publication in the Idaho World ran one day late. To comply with the statute, publication must be made at least once a week for four consecutive weeks, the last publication of which is to be no more than two months nor less than fourteen days before the time set for the tax deed to issue. The advertisement should have run between May 22, 2014, and July 8, 2014, but it finished running on July 9, 2014, one day short of fourteen days before the date the tax deed was set to issue on July 22, 2014.

While these errors in the notice process are troubling, we find that they did not affect the substantial rights of the Phelpses. Boise County sent multiple Pending Issue Letters by certified mail and uncertified mail to more than one address. The method of sending the letters by uncertified mail was one suggested by the United States Supreme Court in Jones as a way to serve notice when certified mail has been returned unclaimed. See 547 U.S. at 234-35, 126 S.Ct. 1708. Furthermore, the Phelpses testified that they did not receive any of these notices and did not see the notice in the Idaho World, yet they took no action for eighteen months after Boise County sent the June 2014 email to Ms. Phelps notifying her that "[y]our taxes are delinquent an[d] you need to pay the 2010 taxes of $ 11,908.79 [b]efore July 23, 2014 to avoid a tax deed." Construing the district court's findings of fact in favor of the judgment entered, there is no indication that even if the County's notices had contained no errors, there would have been any impact on the Phelpses.

In Bandel , the Court voided a tax deed for an "erroneous and misleading" property description, but was careful to distinguish the lack of notice and flawed description as not "mere irregularities in the assessment proceedings." 57 Idaho at 112, 63 P.2d at 163. By contrast here, as the district court held, the defects in the notice amounted to "mere irregularities." The incorrect hearing date had no effect, since the Phelpses testified that they had no intention of attending the hearing because they did not know about it. The one-day-short publication notice similarly had no effect, because again, the Phelpses testified that they never saw the advertisement, so even if Boise County complied perfectly with the fourteen-day requirement, it would not have changed the fact that the Phelpses did not see the advertisement.

We also hold that the efforts made by Boise County to "attempt to locate" the Phelpses after some certified letters were returned were reasonable. Besides obtaining the March 2014 litigation guarantees, upon return of some of the Pending Issue Letters, Boise County conducted new internet searches for any other possible addresses. Boise County also searched the county assessor records and the treasurer's records to determine whether any new addresses were listed for the Phelpses. Finally, Boise County provided the email notice referenced above to the Phelpses, which warned them of the pending tax deed risk. These efforts are sufficient to satisfy due process. We therefore affirm the judgment of the district court and find that Boise County conducted reasonable attempts to locate the Phelpses, despite the errors in the printed notices. The statute does not require Boise County to go further than it did.

C. Attorney Fees

Boise County argues that it is entitled to attorney fees under Idaho Code section 12-117 because the Phelpses argument is not based on a reasonable interpretation or expansion of the law. The Hardys request attorney fees under Idaho Code section 12-121 because the Phelpses' challenge to the district court's exercise of discretion was brought frivolously, unreasonably, and without foundation.

Idaho Code section 12-117 states that "in any proceeding involving as adverse parties a state agency ... and a person," this Court shall award attorney fees "if it finds that the nonprevailing party acted without a reasonable basis in fact or law." § I.C. 12-117.

Under Idaho Code section 12-121, attorney fees are awarded to the prevailing party if the Court believes that the proceeding was brought, pursued, or defended frivolously, unreasonably, or without foundation. I.C. § 12-121.

Here, while the Hardys and Boise County are the prevailing parties, Boise County failed to follow the precise requirements of the statute, stating an incorrect hearing date in the Pending Issue Letter and failing to follow the statutory timing of notice. These errors would not have occurred had Boise County been more diligent in complying with the statute. Thus, attorney fees will not be awarded to the County and will hopefully serve as the County's "tuition" to do a more precise job in the future. Additionally, the Phelpses did not pursue this appeal without a reasonable basis in fact or law; the appeal had adequate legal foundation. Both of the Phelpses' interpretations of the statute were fair and so the appeal was not frivolous. Thus, the Hardys are also not entitled to an award of attorney fees.

VI. CONCLUSION

The order of the district court finding that Boise County's efforts to notify the Phelpses of the tax deed satisfied the notice provision of the statute and were sufficient to satisfy due process requirements is affirmed. Costs on appeal to Respondents, but we decline to award attorney fees on appeal.

Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER concur.

      While Ms. Phelps insists she spoke with someone at Boise County regarding a change of address in her briefing, it was not mentioned during her trial testimony. This "change of address" was only discussed by Ms. Phelps' attorney in closing argument at trial, but is otherwise absent from the record.

      We note that Boise County's reply to Ms. Phelps' email, sent on June 23, 2014 warned Ms. Phelps that a tax deed would issue if the Phelpses did not pay the delinquent amount by July 23, 2014. Ms. Phelps acknowledged at trial that she received this email, though she was under the erroneous impression a written notice would follow. Ms. Phelps' receipt of the County's reply email is akin to actual knowledge and the district court theorized as much. That said, we do not reach such a conclusion because the email does not: 1) mention or give notice of the formal Pending Issue Letters; 2) provide an accurate deadline for payment of the past-due taxes; 3) contain any specifics about the Phelpses' right to a hearing; or 4) mention that a hearing would even be held. While the email is relevant to Boise County's efforts to apprise the Phelpses of their perilous position, it is insufficient of itself to provide actual notice.


source: Caselaw Access Project

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    Brandon ELLER, Plaintiff-Respondent, v. IDAHO STATE POLICE, an executive agency of the State of Idaho, Defendant-Appellant.
    Brandon Eller, Plaintiff-Appellant, v. Idaho State Police, an executive agency of the State of Idaho, Defendant-Respondent.
    Docket Nos. 45698 & 45699
    Supreme Court of Idaho, Boise, February 2019 Term.
    Filed: May 24, 2019
    Brassey & Crawford, PLLC, Boise, for appellant. Andrew C. Brassey argued.
    Strindberg & Scholnick, LLC, Boise, for respondent. Erika Birch argued.
   BEVAN, Justice.

This appeal arises from a retaliation action under the Idaho Protection of Public Employees Act (the "Whistleblower Act") and a negligent infliction of emotional distress claim against the Idaho State Police. Plaintiff Brandon Eller alleges the Idaho State Police (ISP) retaliated against him in two areas: first, after he testified against another officer in a preliminary hearing, and second, when he voiced objections to a new ISP policy requiring members of the Crash Reconstruction Unit to destroy draft and peer review reports. A jury awarded Eller $30,528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim. The district court then entered a memorandum decision and order reducing the award for Eller's negligent infliction of emotional distress claim to $1,000,000 because Idaho Code section 6-926 caps the State's liability for actions brought under the Idaho Tort Claims Act (ITCA) at $500,000 per occurrence. Both Eller and ISP timely appealed on several grounds, and their appeals have been consolidated.

We hold that the district court incorrectly applied the ITCA to Eller's claim because the Whistleblower Act supplants it. We vacate the district court's rulings that the Whistleblower Act bars non-economic damage awards and that the ITCA caps Eller's damages, and remand for a partial new trial regarding non-economic damages solely under the Whistleblower Act.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 18, 2011, there was a fatal traffic accident in Payette County involving Payette County Deputy Scott Sloan and civilian Barry Johnson. Sloan was responding to a 911 call, traveling significantly above the speed limit on a two-lane rural highway, when he came upon Johnson's Jeep. Deputy Sloan started to pass Johnson on the left when Johnson turned into his driveway, causing Sloan to crash into the Jeep. Johnson died as a result of the crash. Because the crash involved an on-duty law enforcement officer and a fatality, the ISP conducted the investigation. District 3 Trooper Justin Klitch was the primary investigating officer, while Corporal Quinn Carmack was the assigned crash reconstructionist from District 3's Crash Reconstruction Unit (CRU). CRU member Brandon Eller, who was the lead reconstructionist in District 3, was assigned to help Klitch interview Sloan.

Following his investigation, Carmack's initial report revealed that Sloan drove his patrol vehicle 115 miles per hour and made an unsafe pass around Johnson's Jeep, causing the crash. While multiple tests showed Johnson had a blood alcohol concentration (BAC) at the time of the crash ranging between .053 and .1271 after five blood draws, neither Carmack nor Eller believed Johnson's BAC to be a causational factor. After Carmack's reconstruction report was peer reviewed by two other reconstructionists, the CRU statewide coordinator for all six ISP districts, Specialist Fred Rice, approved the report for filing.

Just before the final report approval, District 3's top commanders Captain Steve Richardson and Lieutenant Sheldon Kelley intervened. According to the ISP, Lieutenant Kelley supervised the investigation and believed Carmack's initial report was deficient, even to the point of excluding exculpatory material: Johnson's blood alcohol level and the fact he was legally intoxicated at the time of the crash. On December 21, 2011, Kelley held a meeting with Captain Richardson, Rice, and Carmack to discuss the report. Carmack described the meeting as "heated," with Kelley yelling at him, and the supervisors wanting several changes made to the report. Eller testified that the commanding officers also called him in for a "heated" meeting to discuss Carmack's report: "I got the impression they were trying to side me up against Carmack and support what they wanted, as opposed to him doing an unbiased reconstruction of the crash."

Following the meetings, Carmack changed the reconstruction report to read "conclusions" instead of "causational factors," and edited facts within the conclusions section. He also added the information that "Johnson had a femoral artery blood alcohol level of 0.08," explaining that was the "most reliable" blood draw. That said, Carmack felt the edits were factually misleading.

The following year, Gem County brought a felony vehicular manslaughter charge against Sloan. At the preliminary hearing on April 13, 2012, Carmack and Eller were called as prosecution witnesses. Both Carmack and Eller testified that they believed that Johnson's blood alcohol level was not a causational factor of the crash, and Carmack also testified that his superior officers instructed him to remove the statements suggesting Sloan drove recklessly. Eller testified that Sloan drove his vehicle in an unsafe or reckless manner.

Eller later testified that after the preliminary hearing a commanding officer accused Eller of lying on the stand. Rice testified that another commanding officer said Carmack and Eller would "be lucky to have their jobs patrolling nights and weekends." In May 2012-one month after the April 2012 preliminary hearing-Eller received a downgrade in his performance review and was described as causing "dissention" [sic] within the District 3 patrol ranks. This mark affected his eligibility for pay raises. That same month, Kelley was promoted to Headquarters Captain and assigned to be the manager of ISP's state-wide Crash Reconstruction Program.

A year later, in July 2013, ISP issued a directive to destroy all peer review reports within the CRU, which had previously been retained for, among other things, the reports' potential significance as exculpatory evidence. Eller approached both his lieutenant and Kelley to express concerns with the new directive-especially legal concerns that the ISP was destroying evidence in criminal and civil cases-but Eller was told by the commanding officers to follow the directive anyway. More specifically, Eller believed the policy could create a Brady issue where potentially exculpatory evidence would be destroyed rather than turned over to the defense. Eller refused to follow the new policy and continued to maintain peer review records.

Over the next several months, several changes within the ISP impacted Eller's job duties and benefits directly or through the CRU structure. In October 2013, the ISP restructured CRU which placed Eller back on patrol duties, including night and weekend shifts he had not previously had to work, while requiring that he still perform his reconstructionist duties. These changes damaged Eller's work and home life, including his personal health. The ISP also removed Eller from his position as Interim Statewide CRU Coordinator-dissolving that position to split the responsibilities between two other individuals-and then rejected his choice point application, which would have given him a pay raise as a reconstructionist instructor. In fact, the ISP prohibited Eller from teaching altogether. On May 27, 2014, Eller resigned as an ISP crash reconstructionist.

Eller sued ISP on January 6, 2015, under the Idaho Protection of Public Employees Act, also known as the "Whistleblower Act." He alleged unlawful retaliation by the ISP because he testified against a fellow police officer at a preliminary hearing and for objecting to the ISP's policy requiring CRU members to destroy all but the final drafts of their reports.

A jury trial started on August 14, 2017. At trial, Eller testified on his physical manifestations of emotional distress, including weight loss, sickness, headaches, skin issues, trouble sleeping, and loss of appetite. In addition, both Carmack and Rice testified on their respective Office of Professional Standards (OPS) investigations, administrative leave, and return to the ISP. Rice also testified on his retirement from the ISP. The ISP objected to several questions presented on these matters on relevance grounds.

On August 30, 2017, the jury returned a verdict in Eller's favor on both of his claims, and awarded him $30,528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim. While Eller sought emotional distress damages under both his Whistleblower Act and negligent infliction of emotional distress claims, the district court ruled, as a matter of law, that the jury was precluded from awarding emotional distress damages under the Whistleblower Act. The special verdict form thus only permitted the jury to award non-economic damages under Eller's negligent infliction of emotional distress claim.

Following the trial's conclusion, the ISP moved to reduce Eller's non-economic damages, and any costs and attorney fees, to a total sum of $500,000 based on Idaho Code section 6-926 's damages cap. The ISP argued that the damage cap applied because (1) there was no applicable, valid collectible liability insurance coverage in excess of that limit to satisfy plaintiff's state tort claim, and (2) the adverse actions against Eller arose out of a single occurrence. The district court then entered a memorandum decision and order reducing the award for Eller's negligent infliction of emotional distress claim to $1,000,000 under Idaho Code section 6-926, finding Eller had suffered at least two occurrences under the ITCA. Three months later, the district court entered an amended judgment to include its decision awarding attorney's fees and costs to Eller.

Both Eller and the ISP timely appealed on various grounds, and their appeals have been consolidated before this Court.

II. STANDARD OF REVIEW

"This Court exercises free review over statutory interpretation because it presents a question of law." State v. Amstad , 164 Idaho 403, 405, 431 P.3d 238, 240 (2018). Likewise, this Court freely reviews conclusions of law, drawing its own conclusions from the facts in the record. Johnson v. Crossett , 163 Idaho 200, 205, 408 P.3d 1272, 1277 (2018). Additional standards of review will be addressed as they become relevant.

III. ANALYSIS

A. The Whistleblower Act provides Eller with a non-economic damages remedy independent of the ITCA's damages cap.

After the jury returned a verdict awarding Eller $30,528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim, the district court reduced the emotional distress award to $1,000,000. The court explained that Idaho Code section 6-926 caps the State's liability for actions brought under the ITCA at $500,000 per occurrence. The court found that Eller had shown at least two occurrences, concluding that an "occurrence" referred to each adverse action against Eller. On appeal, the parties disputed the meaning of "occurrence" under the ITCA. That said, we hold that the ITCA does not apply to Eller's damages under the Whistleblower Act because (1) the Whistleblower Act supplants the ITCA, (2) the Whistleblower Act permits an award of non-economic damages, and (3) Wright v. Ada County , 160 Idaho 491, 501-02, 376 P.3d 58, 68-69 (2016) incorrectly permitted a separate damages action within a case brought under the Whistleblower Act.

1. The Whistleblower Act supplants the ITCA.

Statutory interpretation requires this Court to first consider the plain language of the statute, with the literal words as the best guide to determining legislative intent. Marquez v. Pierce Painting, Inc. , 164 Idaho 59, 63-64, 423 P.3d 1011, 1015-16 (2018). Idaho law provides: "Where a statute is clear and unambiguous, the expressed intent of the legislature shall be given effect without engaging in statutory construction." Id. (citation and corrections omitted). In addition, where two statutes conflict, courts should apply the more recent and more specifically applicable statute. See Valiant Idaho, LLC v. JV L.L.C. , 164 Idaho 280, 289, 429 P.3d 168, 177 (2018) (quoting George W. Watkins Family v. Messenger , 118 Idaho 537, 797 P.2d 1385 (1990) ); Johnson v. Boundary Sch. Dist. No. 101 , 138 Idaho 331, 335, 63 P.3d 457, 461 (2003).

In this case, two competing acts potentially cover the conduct at issue: the ITCA and the Whistleblower Act. While both statutes allow for a cause of action by government employees suffering damages, they also contain conflicting provisions. As a result, we are called upon to determine whether one or both of the two competing acts applies to whistleblower claims.

The ITCA became Idaho law in 1971 "to provide 'much needed relief to those suffering injury from the negligence of government employees.' " Rees v. State, Dep't of Health & Welfare , 143 Idaho 10, 19, 137 P.3d 397, 406 (2006) (citation omitted). Courts construe the ITCA liberally with liability as the rule and immunity as the exception. Id. ; Grabicki v. City of Lewiston , 154 Idaho 686, 691, 302 P.3d 26, 31 (2013). Under the ITCA a plaintiff can bring an action within two years after the date the claim arose, or reasonably should have been discovered, and damages are generally capped at $500,000 per occurrence or accident. I.C. §§ 6-911 (limitation of actions), 6-926 (limits of liability). In contrast, the Idaho Legislature passed the Whistleblower Act over twenty years later in 1994 "to protect the integrity of government by providing a legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation." I.C. § 6-2101. The time limit for bringing a whistleblower claim is much shorter than provided in the ITCA. A plaintiff must bring such an action within 180 days of the alleged Whistleblower Act violation "for appropriate injunctive relief or actual damages, or both." I.C. § 6-2105(2).

In addition to these discernible differences, the Whistleblower Act never mentions a damages amount or cap, nor does it reference the ITCA. Rather than protect individuals as victims of general governmental torts and damages-as under the ITCA-the Whistleblower Act provides an unambiguous "legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation." I.C. § 6-2101. In fact, as noted, the Whistleblower Act's only limitation is time based-a plaintiff has 180 days to file his action, a far shorter time than if he brought a negligent infliction of emotional distress claim under the ITCA. I.C. § 6-2105(2) ("a civil action for appropriate injunctive relief or actual damages, or both, [must be filed] within one hundred eighty (180) days after the occurrence of the alleged violation of this chapter.")

"A basic tenet of statutory construction is that the more specific statute or section addressing the issue controls over the statute that is more general." In re City of Shelley , 151 Idaho 289, 294, 255 P.3d 1175, 1180 (2011) ; see also Valiant Idaho, LLC v. JV L.L.C ., 164 Idaho 280, 429 P.3d 168, 177 (2018). Thus, "where two statutes appear to apply to the same case or subject matter, the specific statute will control over the more general statute." State v. Barnes , 133 Idaho 378, 382, 987 P.2d 290, 294 (1999). We thus conclude that the more-specific Whistleblower Act applies over the more-general ITCA when both statutes may cover an action for damages. As a result, the Whistleblower Act's provisions govern the causes of action that may be brought by a whistleblower such as Eller.

This Court generally addressed the dichotomy between the Whistleblower Act and a common law breach of contract claim in Van v. Portneuf Medical Center , 147 Idaho 552, 561, 212 P.3d 982, 991 (2009). In Van , we held two things that are relevant to our holding today: first, that the plaintiff's common law claim for wrongful discharge was supplanted by the Whistleblower Act; and second, the ITCA and its notice provisions did not apply to whistleblower claims. See id . at 558, 212 P.3d at 988. As we noted there, the Legislature did not link the Whistleblower Act to the ITCA, and thus the Whistleblower Act supplants the ITCA:

[T]he statutory nature of the [whistleblower] cause of action does not automatically render it subject to the ITCA. In fact, we hold the opposite to be true: the whistleblower claim is purely a statutory remedy against governmental employers and there is no reason to assume that the Legislature intended those alleging claims under the statute to have to comply with the notice provision of the ITCA where the Legislature did not specifically require it.

Id .

Ultimately, while both statutes provide avenues for relief for citizens injured at the hands of government actors, the Whistleblower Act provides statutory remedies which supplant, and thus preclude, common law causes of action. The differences are evident on the face of each statute. The ITCA applies to torts; the Whistleblower Act applies to any damages caused by adverse employment actions taken against governmental employees. The ITCA limits damages to $500,000 per occurrence; the Whistleblower Act does not limit damages, but provides that a wronged employee is entitled to actual damages "for injury or loss caused by each violation." I.C. § 6-2105(1). It is also worthy of mention that the Whistleblower Act is of more-recent adoption, and as noted is the more-specific pronouncement by the Legislature regarding an employee's claims for adverse actions taken against him. I.C. § 6-2104. Thus, as the newer statute with greater specificity and applicability, the Whistleblower Act and its statutory causes of action control in full. Those causes of action would supplant claims for negligent infliction of emotional distress, as Eller sought below. For that reason, the "occurrences" limitation in the ITCA is not relevant to the plaintiff's claims in this regard and the district court erred in applying the ITCA to Eller's whistleblower claims and damages. As a result, we need not address the parties' arguments on their competing interpretation of an occurrence or other issues raised only under the ITCA. They are moot.

2. The Whistleblower Act permits an award of non-economic damages.

Eller contends that the Whistleblower Act's provision of remedies includes compensatory emotional distress damages, while the ISP argues the Act's express terms limit the type of damages recoverable. Both parties argue that the plain language of the statute supports their interpretation. The district court ruled that the Whistleblower Act does not permit an award of non-economic damages because Idaho Code section 6-2106 limits the relief available to plaintiffs. We disagree.

The Whistleblower Act defines "damages" in Idaho Code section 6-2105(1) as "damages for injury or loss caused by each violation of this chapter, and includes court costs and reasonable attorneys' fees." Employees who allege Whistleblower Act violations can bring a civil action "for appropriate injunctive relief or actual damages, or both, within one hundred eighty (180) days after the occurrence of the alleged violation of this chapter." I.C. § 6-2105(2). A separate provision in the Whistleblower Act then permits a court, when rendering a judgment under the Whistleblower Act, to order

any or all of the following:
(1) An injunction to restrain continued violation of the provisions of this act;
(2) The reinstatement of the employee to the same position held before the adverse action, or to an equivalent position;
(3) The reinstatement of full fringe benefits and seniority rights;
(4) The compensation for lost wages, benefits and other remuneration;
(5) The payment by the employer of reasonable costs and attorneys' fees;
(6) An assessment of a civil fine of not more than five hundred dollars ($500), which shall be submitted to the state treasurer for deposit in the general fund.

I.C. § 6-2106.

As noted, under the rules of statutory interpretation, we must first look to the statute's plain language, using the literal words as the best guide to determining legislative intent. Marquez, 164 Idaho at 63-64, 423 P.3d at 1015-16. When the language is clear and unambiguous, the Legislature's expressed intent will be given effect without the court engaging in statutory construction. Id. "Only where the language is ambiguous will this Court look to rules of construction for guidance and consider the reasonableness of proposed interpretations." Id. Even so, statutory language is not ambiguous simply because parties present conflicting interpretations. Instead, the statute is ambiguous only "where reasonable minds might differ or be uncertain as to its meaning." Id. Thus, this Court reviews a statute "according to its plain meaning, while not losing sight of its 'potency.' " Id.

In examining the plain language of the two statutory provisions, the Whistleblower Act clearly provides a whistleblower claimant with an actual damages remedy. "Actual damages" is defined broadly as an "amount awarded to a complainant to compensate for a proven injury or loss," and is synonymous with compensatory damages, tangible damages, and real damages. Actual damages , BLACK'S LAW DICTIONARY (8th Ed. 2004). This Court has interpreted statutes providing remedies broadly, to satisfy their remedial purposes. E.g. , Hill v. Am. Family Mut. Ins. Co. , 150 Idaho 619, 625-26, 249 P.3d 812, 818-19 (2011) (Uninsured and underinsured motorist statute is remedial); Blimka v. My Web Wholesaler, LLC , 143 Idaho 723, 726, 152 P.3d 594, 597 (2007) (Idaho's long-arm statute is remedial legislation designed to provide a forum for Idaho residents and should be liberally construed to effectuate that purpose); Page v. McCain Foods, Inc. , 141 Idaho 342, 346, 109 P.3d 1084, 1088 (2005) (Idaho's workers' compensation law is remedial legislation); see also 3 Sutherland, § 60.2 (7th ed. 2007) ("[R]emedial statutes are those that provide a remedy, or improve or facilitate remedies already existing, for the enforcement of rights or redress of injuries.").

Weighed against this standard, Idaho's Whistleblower statute is a remedial one. As a result, it must be " 'liberally construed to give effect to the intent of the Legislature.' " Eastman v. Farmers Ins. Co. , 164 Idaho 10, 14, 423 P.3d 431, 435 (2018) (quoting Hill , 150 Idaho at 625, 249 P.3d at 818 ). Viewing the statute liberally, we hold that the Whistleblower Act provides such claimants with a remedy for all actual damages, based on all claims, including those otherwise available under common law tort claims. Such a result includes damages for emotional distress claims.

This result is buttressed by the approach we took in determining the meaning of the term "actual damages" as found in the Idaho Human Rights Act, Idaho Code sections 67-5901 -12. See O'Dell v. Basabe , 119 Idaho 796, 811, 810 P.2d 1082, 1097 (1991). In considering this question, we held that "actual damages" includes both back pay and front pay , even though the statute explicitly listed only "back pay." We interpreted the statute liberally in noting that because the statute also directed that an injured party receive "actual damages," that party was entitled to seek both forms of damage. We supported this conclusion based on our view that (1) "lost wages are to be awarded as an element of 'actual damages,' which are commonly understood as those actual losses caused by the conduct at issue"; and (2) the term "lost wages" includes both forms of compensation without differentiation. Id . We have also recognized emotional distress damages as a form of actual damages . See, e.g., Myers v. Workmen's Auto Ins. Co. , 140 Idaho 495, 505, 95 P.3d 977, 987 (2004) (noting that a jury could award damages for mental distress when the plaintiff sought to recover actual damages). Thus, emotional distress damages are recoverable as a part of actual damage under the Whistleblower Act.

Given this conclusion, we clarify that Idaho Code section 6-2106 does not take away Eller's non-economic damages remedy as provided in section 6-2105. Section 6-2106 is an independent and expanded list of remedies a court may order when violations of the Act are found to exist, but it is not a restriction on a claimant's ability to seek and receive redress for non-economic damages as part of "actual damages."

The list under Idaho Code section 6-2106 includes injunctive relief and specific performance, economic damages, costs, attorneys' fees, and civil fines. I.C. § 6-2106. This list expands the relief which a claimant may receive to include mainly equitable remedies that a court may order independently of a jury. The ISP would have this Court read the remedial statute narrowly, permitting a plaintiff to seek actual damages but then barring the court from allowing that remedy. Such a result is illogical. Indeed, "[i]n construing a statute, this Court will not deal in any subtle refinements of the legislation, but will ascertain and give effect to the purpose and intent of the [L]egislature, based on the whole act and every word therein, lending substance and meaning to the provisions." Curlee v. Kootenai Cnty. Fire & Rescue , 148 Idaho 391, 398, 224 P.3d 458, 465 (2008). In reading both sections, the Whistleblower Act enables plaintiffs to seek actual damages under section 6-2105 while permitting the trial court an expanded list of equitable remedies under section 6-2106. These provisions do not conflict; they complement one another in their purpose of protecting governmental integrity and providing a statutory cause of action to public employees suffering adverse action for reporting waste and violations of a law, rule or regulation.

3. Wright incorrectly permitted a separate damages action within a whistleblower claim.

In Wright v. Ada County , this Court examined sections 6-2105 and 6-2106 together and determined that the Whistleblower Act did not preclude a plaintiff from bringing a negligent infliction of emotional distress claim. 160 Idaho 491, 501-02, 376 P.3d 58, 68-69 (2016). This Court explained, "[t]here is no limiting language that would indicate a plaintiff is precluded from bringing an independent cause of action for negligent infliction of emotional distress even though the alleged conduct would also constitute a violation of the Whistleblower Act." Id. at 501, 376 P.3d at 68. But the lack of limiting language within the Whistleblower Act does not resolve the inherent damages conflict that arises between the Whistleblower Act and the ITCA on claims like Eller's.

Given our holding today, the conflicting provisions between the ITCA and the Whistleblower Act require that we revisit this question. To resolve the conflict we look no further than this Court's pronouncement in Van v. Portneuf Medical Center , where the plaintiff alleged both a Whistleblower Act claim and common law breach of contract claim, arguing both resulted from the adverse action taken by his public employer. 147 Idaho at 561, 212 P.3d at 991. In Van , the plaintiff brought a breach of contract claim for his termination, as well as a Whistleblower Act claim. Id. This Court held that when the Idaho Legislature enacted the Whistleblower Act, "the resulting statutory cause of action displaced the common law cause of action" by authorizing specific statutory remedies to meet the public policy concern. Id. We extend this holding to rule similarly here. Because the Whistleblower Act provides a direct remedy for non-economic damages, its statutory cause of action supplants the common law tort for negligent infliction of emotional distress. "To hold otherwise would allow plaintiffs to recover twice for the same underlying facts." Id.

Thus, a whistleblowing plaintiff may only seek the relief afforded under the Whistleblower Act. He has no claim under the ITCA for torts that also arise out of adverse actions under the Act. As a result, we overrule this portion of the Wright decision, recognizing that "[w]e will ordinarily not overrule one of our prior opinions unless it is shown to have been manifestly wrong, or the holding in the case has proven over time to be unwise or unjust." Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co. of Idaho , 158 Idaho 894, 897, 354 P.3d 456, 459 (2015) (internal citations omitted). The Wright Court did not face the issue presented here and it was not argued to the Court in the same way as it was in this case. Because we hold that the Whistleblower Act precludes such a plaintiff from pursuing common law claims, we determine that Wright 's holding that a litigant may maintain a claim for emotional distress damages was manifestly wrong and we overrule that portion of the decision.

We acknowledge the reality that our ruling today will require swift action from whistleblower plaintiffs-they must act promptly, within the 180-day period afforded by the Whistleblower Act to present a timely claim. And yet this is not unusual, given that the ITCA also requires a claimant seeking general tort damages against the State to file a notice of the claim "within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later," I.C. § 6-906. The need for prompt action when dealing with claims against governmental entities is not new and the parties on both sides of this equation will ultimately benefit from clarity moving forward.

This brings us to the conclusion that error occurred here and that a partial new trial will be required to determine Eller's non-economic damages for his claims regarding negligent infliction of emotional distress solely under the Whistleblower Act. Eller's damages will be limited to those claims arising within the 180-day window before January 6, 2015, when his complaint was originally filed. I.C. § 6-2105(2). Even though Eller will make his claim under the Whistleblower Act, the elements of his emotional distress claim remain the same as they would be under the common law tort cause of action for the same conduct and the jury should be instructed accordingly.

B. The district court did not err in determining Eller engaged in protected activity under the Whistleblower Act through (1) the Sloan investigation, and (2) objections to the ISP's new draft peer review policy.

In its August 2, 2017, Memorandum Decision and Order on Motions for Summary Judgment, the district court determined that Eller participated in protected activities by testifying in the Sloan investigation preliminary hearing and in voicing objections to the new ISP draft peer review policy. The ISP argues that this was an error-Eller had limited involvement in the Sloan investigation, his participation was simply routine job performance, and his objections to the new ISP draft peer review policy were speculative and unproven. Eller contends that both actions were protected activities. We agree with the district court's ruling that both of Eller's actions constituted protected activities under the Whistleblower Act.

The Whistleblower Act protects governmental integrity by providing a legal cause of action to public employees who experience adverse actions by the employer as a result of reporting waste or violations of a law, rule or regulation. Curlee v. Kootenai Cnty. Fire & Rescue , 148 Idaho 391, 395, 224 P.3d 458, 462 (2008). An employee's cause of action under the Whistleblower Act is defined in Idaho Code section 6-2105(4) :

To prevail in an action brought under the authority of this section, the employee shall establish, by a preponderance of the evidence, that the employee has suffered an adverse action because the employee, or a person acting on his behalf engaged or intended to engage in an activity protected under section 6-2104, Idaho Code.

Idaho Code section 6-2104 describes protected activities, which provides in pertinent part:

(1)(a) An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner which gives the employer reasonable opportunity to correct the waste or violation.
...
(2)(a) An employer may not take adverse action against an employee because an employee in good faith participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review.

I.C. § 6-2104(1)(a), (2)(a). "Adverse action" is defined as "to discharge, threaten or otherwise discriminate against an employee in any manner that affects the employee's employment, including compensation, terms, conditions, location, rights, immunities, promotions or privileges." I.C. § 6-2103(1).

In determining whether Eller engaged in protected activity under the Whistleblower Act, we will address Eller's actions in (1) testifying at the Sloan investigation preliminary hearing, and (2) objecting to the new ISP draft peer review policy.

1. The Sloan Investigation

Idaho Code section 6-2104(2)(a) prohibits an employer from taking adverse action against an employee "because an employee in good faith participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review." This Court has interpreted both "participate" and "investigation" broadly under the statute. Wright v. Ada Cnty. , 160 Idaho at 497, 376 P.3d at 64 ; Curlee , 148 Idaho at 400, 224 P.3d at 467.

For example, in Wright v. Ada County , this Court held that a plaintiff could participate in an investigation "in more ways than just conducting the investigation. So long as an individual took part in the investigation or played an active role in it, that individual 'participated' in the investigation for purposes of the Whistleblower Act." 160 Idaho at 497, 376 P.3d at 64. Thus, Wright actively participated in the investigation by hiring an investigator, providing information to the investigator, and conducting meetings with the human resources representative. Id. Moreover, Wright's participation remained a protected activity even though the official investigation was "part of his responsibilities." Id. at 499, 376 P.3d at 66. This interpretation from Wright suggests that a plaintiff participates "in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review" by taking an active part in the proceeding, even if he is not the primary investigator or inquisitor. See id. ; I.C. § 6-2104(2)(a).

As evidenced in the record, Eller took part in the Sloan investigation by helping Klitch interview Sloan as well as testifying in the April 13, 2012, preliminary hearing. This was an active role. Eller directly questioned Sloan through an official ISP investigation into the crash, and later provided information as a prosecutorial witness against Sloan. Because Eller took part in the investigation and gave information in the preliminary hearing, he participated in a protected activity under the Whistleblower Act. As in Wright , even if Eller's actions fall under the broad umbrella of "routine job performance," as the ISP claims, his actions were sufficient in the investigation and preliminary hearing to constitute protected activity. Fulfilling his professional responsibilities does not alter that conclusion. See 160 Idaho at 499, 376 P.3d at 66.

2. Objections to the ISP's new draft peer review policy.

Idaho Code section 6-2104(2)(a) prohibits an employer from taking adverse action against an employee "because the employee, ... communicates in good faith the existence of any ... violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States."

Communications are "a verbal or written report," and are made "in good faith if there is a reasonable basis in fact for the participation or the provision of the information."

I.C. §§ 6-2103(2), 6-2104(2)(b). In addition, "[a] rule or regulation of a public administrative body ordinarily has the same force and effect of law and is an integral part of the statute under which it is made just as though it were prescribed in terms therein." Mallonee v. State , 139 Idaho 615, 619, 84 P.3d 551, 555 (2004). Internal administrative policies are differentiated from laws, rules, and regulations; a policy violation does not fall within the protective scope of the Whistleblower Act. Id. at 619-20, 84 P.3d at 555-56.

The ISP has two main contentions on this issue: first, that Eller has yet to prove an actual legal violation, and so his voiced concerns of a potential violation do not qualify as a protected activity; and second, that Eller was only doing his job and did not have objectively reasonable grounds to believe there was, or could be, a legal violation.

First, the ISP's argument conflates the communications clause with the violations clause under Idaho Code section 6-2104(2)(a), both of which have received different interpretations by this Court. While communications over waste and violations are both protected activities, each statutory clause is subject to divergent language and application. For example, in Van , the plaintiff reported two suspected violations that implicated federal regulations. 147 Idaho at 559, 212 P.3d at 989. Even though the incidents were investigated and resolved, Van's conduct in reporting the suspected violations still constituted a protected activity. Id. This Court explained that an employer's actions or inactions following a report of violations-actual or suspected-do not affect the communication's protected-activity status. Id. Thus, actual violations are not required; a good faith communication of an actual or suspected violation of law, rule, or regulation is sufficient. See id. In contrast, Van's communications of "potential future waste, rather than past or present waste" that may occur at some future point did not qualify as protected activities. Id. The distinction between the two clauses is the "existence of any waste" and "a violation or suspected violation." I.C. § 6-2104(1)(a) (emphasis added). In either case the waste or violation must have occurred and not be left to future speculation.

Second, the ISP cites Black v. Idaho State Police to argue that Eller's suspicions were not objectively reasonable, and that he was simply doing his job. In Black , the ISP ordered Black to investigate financing difficulties and balance the budget for the Peace Officer Standards and Training Council (POST), of which he was the Executive Director. 155 Idaho 570, 571-72, 314 P.3d 625, 626-27 (2013). Black refused, stating he was under POST's command, not the ISP's. Id. Despite POST's unanimous directive for Black to work with the ISP Director on those fiscal matters, Black remained uncooperative. Id. Following his termination, Black alleged he communicated suspected violations of the law when he discussed POST's fiscal situation with the ISP and that the ISP Director violated a statute because the ISP's directives clashed with POST's. Id. at 574-75, 314 P.3d 625, 626-27. Even so, this Court held that Black's activities were not protected by the Whistleblower Act because the officer was simply being asked "to do his job," not to violate the law or engage in any illicit activities. Id. The Court also noted that the officer's suspicions of potential legal violations by following the ISP's directives were not objectively reasonable-he had no ground to believe that he was not subject to the fiscal and administrative control of the ISP. Id. at 575, 314 P.3d 625, 626-27.

Pursuant to the Court's analysis in Van , the fact that Eller did not prove a legal violation does not, in itself, make his activity unprotected under the Whistleblower Act. Nor does the ISP's response-or lack of one here-affect whether the communication was protected. Instead, the main query rests on whether Eller's objections communicated "a violation or suspected violation," rather than just opposition to an internal administrative policy. I.C. § 6-2104(1)(a).

Ultimately, Eller argues that he objected to the new ISP draft peer review policy because it could have led to the destruction of exculpatory evidence and potential Brady violations. In the Brady case, the Court held the suppression of evidence favorable to a defendant by the prosecution violates the Fourteenth Amendment's Due Process Clause where the evidence is material to the accused's guilt or punishment. 373 U.S. at 87, 83 S.Ct. 1194. Brady remains binding authority and is a crucial interpretation of a criminal defendant's due process rights under the Fourteenth Amendment of the U.S. Constitution. Thus, when Eller objected to the new draft review policy, he was concerned that the policy could create Brady violations and thus impair a defendant's constitutional rights. While he objected to an internal policy, his ultimate concern was a constitutional violation. Such a "violation or suspected violation" of federal law falls under Idaho Code section 6-2104(2)(a).

Furthermore, unlike in Black , these concerns were objectively reasonable, especially considering the record before the Court. The commanding officers in the Sloan investigation were concerned that Carmack's draft reports omitted exculpatory evidence, and requested that the blood alcohol level be added to the final report. Without the peer review process and draft reports, such exculpatory evidence could have been missed. Black dealt with an uncooperative ISP employee who refused to follow a directive to investigate fiscal concerns, while Eller raised his policy objections and was then instructed by commanding officers to just "do his job." The cases are not comparable: Eller did not object to the administrative control of the ISP. Rather, he opposed a policy he reasonably believed could infringe on a defendant's constitutional rights and impact both civil and criminal cases involving crash reconstructionist reports.

C. The ISP failed to preserve its right to appeal Jury Instruction No. 17 by not making a timely objection below.

The ISP contends that the trial court erred in instructing the jury, as a matter of law, that plaintiff's communications were made in good faith. Even so, the ISP failed to preserve this issue for appeal.

Typically, whether a plaintiff makes the communication in good faith is a question of fact. Black v. Idaho State Police , 155 Idaho 570, 573, 314 P.3d 625, 628 (2013). In this case, Jury Instruction number 17 stated

that Mr. Eller engaged in protected activity as defined by the Idaho Protection of Public Employees Act: (1) due to his involvement in the Sloan crash investigation and his preliminary hearing testimony; and (2) his communications in good faith of a suspected Violation of a law, rule, or regulation regarding his opinion on the Idaho State Police's policy regarding the destruction of peer review and draft reports. Therefore, you should treat the first proposition of this claim as having been proven.

The ISP did not object to this jury instruction until this appeal, nor did the ISP provide a record of any objection.

Idaho Rule of Civil Procedure 51(i)(3) states, "No party may assign as error the giving of or failure to give an instruction unless the party objects before the jury deliberates, stating distinctly the instruction to which that party objects and the grounds of the objection." The rule requires that a party timely object to the jury instruction-before the jury retires to consider its verdict-lest it fail to preserve the issue for appeal. Safaris Unlimited, LLC , 163 Idaho at 884, 421 P.3d at 215. This Court will not consider challenges to a jury instruction when the party failed to object to it below. Id. The district court's conclusions as set forth in the instruction have been sustained by this Court and are now the law of the case in any event.

D. The district court did not err in allowing personal and lay testimony of physical manifestations of emotional distress.

The ISP contends that the trial court erred in allowing Eller to testify about physical manifestations of emotional distress without qualified medical testimony, while Eller argues that the district court correctly denied these objections at trial. The district court determined:

[T]he Court is going to allow the defendant to testify, including as to headaches. I don't really find a big distinction as between headaches and other physical manifestations. I think that's within the layperson's knowledge. I think we all know when we suffer from headaches. Whether or not it was or was not included in any medical report or that he saw a doctor regarding the alleged headaches is subject to cross-examination.

Because the admission of lay witness opinion testimony is within the discretion of the trial court, this issue requires the Court to apply an abuse of discretion standard. Cook v. Skyline Corp. , 135 Idaho 26, 35, 13 P.3d 857, 866 (2000). In determining whether "a trial court abused its discretion, this Court considers whether the trial court (1) perceived the issue as one of discretion, (2) acted within the outer boundaries of that discretion, (3) acted consistently with the legal standards applicable to the specific choices available to it, and (4) reached its decision by an exercise of reason." Lunneborg , 163 Idaho at 863, 421 P.3d at 195. While not specifically articulated, the ISP seems to argue that the district court erred in applying the law correctly. We disagree.

Idaho Rule of Evidence 701 permits lay testimony that is "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Thus, this Court has held that some physical manifestations of distress-such as lost sleep, irritability, anxiety, and being "shaky-voiced"-were manifestations that a lay person could testify he had experienced. Cook , 135 Idaho at 35, 13 P.3d at 866. It is ultimately within the trial court's discretion to determine which physical manifestations are medical conditions for which expert testimony is needed to establish causation. Id.

Eller specifically testified that he felt sick, lost weight, experienced headaches and "skin issues," had trouble sleeping, could not eat, and felt stressed. The ISP recognizes that most of these symptoms fall into the common symptom category Cook permits lay testimony on, but argues that Eller's testimony on his headaches required professional expertise.

In Cook , this Court identified headaches and ulcers as examples of physical manifestations that could be classified as medical conditions that would require expert testimony. 135 Idaho at 35, 13 P.3d at 866. The Cook court, however, did not expressly mandate that headaches uniformly required this level of medical expertise. Id. That determination remained subject to the trial court's discretion. Id. In other cases we have held that lay testimony is sufficient to support recovery for headaches. For example, in Carrillo v. Boise Tire Company, Inc. , the plaintiff's testimony of medical symptoms included her headaches and nightmares, and was sufficient to support recovery for negligent infliction of emotional distress. 152 Idaho 741, 750, 274 P.3d 1256, 1265 (2012). Likewise, in Sorensen v. Saint Alphonsus Regional Medical Center , the plaintiff "was not required to put on medical testimony to support her emotional distress claim where she was able to testify that she suffered from headaches, gastric problems, insomnia and panic attacks." 141 Idaho 754, 758, 118 P.3d 86, 90 (2005). These cases stress the wide discretion district courts have in determining what evidence of physical manifestations of emotional distress are permitted through lay testimony.

Ultimately, the district court had the discretion to choose whether Eller's symptoms-including headaches and "skin issues"-required expert testimony or were manifestations that a lay person could testify that he had experienced. In exercising this discretion, the district court reasonably concluded that Eller's symptoms were common physical ailments that a lay person could recognize and was not based on scientific, technical, or other specialized knowledge. The district court thus correctly applied the law when it determined Eller's testimony of physical manifestations were permissible under Rule 701. There was no abuse of discretion.

E. The district court did not unfairly prejudice ISP by allowing testimony and written evidence from Carmack and Rice.

The ISP argues that the trial court unfairly prejudiced the ISP by allowing testimony and written evidence at trial on matters unrelated to Eller, while limiting cross-examination on those issues. More specifically, the ISP objected to the extensive questioning of Carmack and Rice at trial on their OPS investigations following the Sloan investigation, arguing it was prejudicial and irrelevant evidence. Eller responds that the district court did not abuse its discretion in this regard because it was relevant evidence.

Both the decision to admit relevant evidence, and to balance its probative value against its prejudicial effect are decisions within the trial court's sound discretion. Perception Const. Mgmt., Inc. v. Bell , 151 Idaho 250, 253, 254 P.3d 1246, 1249 (2011) ; State v. Carlson , 134 Idaho 389, 398, 3 P.3d 67, 76 (Ct. App. 2000). Even so, "[a] district court's improper exclusion of evidence will be overturned on appeal if it affects a party's substantial right." Bell , 151 Idaho at 253, 254 P.3d at 1249.

Thus, to determine whether "a trial court abused its discretion", this Court considers the four-part test cited previously from Lunneborg , 163 Idaho at 863, 421 P.3d at 195. While not specifically articulated, the ISP seems to contend the district court acted inconsistently with the applicable legal standards by permitting irrelevant, prejudicial evidence into the trial.

As a result, the ISP raises two contentions: the district court erred because (1) the evidence admitted was not relevant, and (2) it was unfairly prejudicial. Because the ISP timely objected to the evidence at the district court, it preserved this issue for appeal. Carlson , 134 Idaho at 398, 3 P.3d at 76. We disagree with both contentions.

1. The district court did not err because the evidence was relevant.

Evidence is relevant if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." I.R.E. 401.

The ISP timely objected on relevance grounds during the questioning of Carmack and Rice, as well as other witnesses who testified about the ISP's policies. The objections concerned the relevance of Rice's and Carmack's OPS investigation, administrative leave, and return to the ISP, as well as Rice's retirement from the ISP. The district court generally overruled these objections because the questioning and witnesses showcased circumstantial evidence that could establish a pattern of retaliatory conduct. The information gleaned from questioning Carmack and Rice, though not always directly related back to Eller, helped the jury understand the full dynamics of the Sloan investigation and the adverse actions taken against the officers following the preliminary hearing. Because Eller's case required that he establish the ISP's retaliatory motive and a pattern of retaliatory conduct, the ISP's conduct towards Carmack and Rice-officers directly connected to Eller in the Sloan investigation-was relevant to proving a pattern. These facts had the tendency to make retaliation against Eller more probable than it would have been without the evidence. I.R.E. 401.

2. The district court did not err in determining the evidence was more probative than unfairly prejudicial.

Even where evidence is relevant, Idaho Rule of Evidence 403 provides a balancing test where a judge measures the probative against the prejudicial value of evidence:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

I.R.E. 403. That said, " Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to the party's case." Carlson , 134 Idaho at 397, 3 P.3d at 75. The concern is whether the evidence gives undue weight, causes illegitimate persuasion, or results in inequity. Davidson v. Beco Corp. , 114 Idaho 107, 110, 753 P.2d 1253, 1256 (1987).

The evidence from Carmack and Rice was prejudicial to the ISP. It established the appearance of, if not the basis for, retaliatory conduct against third parties not involved in Eller's case, creating the potential to confuse the issues and mislead the jury. Even so, the district court was correct in its determination that the evidence was relevant and probative, and that it was not unfairly prejudicial. Eller, Carmack, and Rice were all involved in the Sloan investigation and preliminary hearing, as well as meetings with the ISP's commanding officers over the same draft crash report. While each officer had independent interactions with the ISP, the parties' overall conduct was connected through the Sloan investigations and the ISP's adverse actions which created a pattern of retaliatory conduct against the officers. Thus, while the evidence was somewhat prejudicial to ISP, it was also highly probative in showing retaliatory conduct against Eller because of his participation in the Sloan preliminary hearing.

Both the questions of relevancy and probativeness versus prejudice were within the district court's discretion. The district court applied the correct legal standards to reach a reasonable conclusion on the admissibility of this evidence. The district court therefore did not abuse its discretion on this matter.

F. Neither party is entitled to attorneys' fees on appeal.

The Whistleblower Act states that a court "in rendering a judgment brought under this chapter, may order ... [t]he payment by the employer of reasonable costs and attorneys' fees." I.C. § 6-2106(5). "A court may also order that reasonable attorneys' fees and court costs be awarded to an employer if the court determines that an action brought by an employee under this chapter is without basis in law or in fact." I.C. § 6-2107. Both parties brought appeals with legitimate questions for the Court to address, grounding their arguments in fact and law. Neither party is the prevailing party here. As a result, we decline to award attorneys' fees.

IV. CONCLUSION

Given the foregoing, we vacate the district court's ruling capping Eller's damages under the ITCA, affirm the evidentiary holdings and finding that Eller participated in protected activities, and remand for a partial new trial to determine Eller's non-economic damages solely under the Whistleblower Act. We decline to award attorneys' fees and costs.

Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER concur.

      ISP officers have a right to accrue a choice point for taking on added responsibility. A choice point includes a pay raise.

      Eller's award for economic damages is supported by substantial evidence and was based on the Whistleblower Act itself. Thus, those damages are not disturbed by this ruling.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).