author: BURDICK, Chief Justice.

text:
    STATE of Idaho, Plaintiff-Respondent, v. Justin K. HOSKINS, Defendant-Appellant.
    Docket No. 46605
    Supreme Court of Idaho, Boise, April 2019 Term.
    Opinion Filed: June 13, 2019
    Eric D. Frederickson, State Appellant Public Defender, Boise, for appellant. Kimberly A. Coster, Deputy State Appellate Public Defender, argued.
    Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General, argued.
   BURDICK, Chief Justice.

Justin K. Hoskins appeals the Bannock County district court's denial of his motion to suppress. The State argued that Hoskins lacked standing to object to the search based on consent and the district court denied the motion on that basis. On appeal, all parties agree the district court's ruling on standing was erroneous. Nevertheless, the State argues that the district court's decision can be affirmed based on the plain-view doctrine. Hoskins objects and argues that the State forfeited this argument by failing to raise it below. Hoskins prevailed at the Court of Appeals and this Court granted the State's timely petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2016, Idaho State Trooper Spencer Knudsen observed a Pontiac Grand Am driving with a cracked windshield and pulled it over. He asked the driver for the vehicle's registration and insurance as well as identification for the vehicle's three occupants. The occupants produced various forms of identification, but were unable to provide registration or insurance for the vehicle. The identification revealed that Jovette Archuleta was the driver of the vehicle, Amber Alvarez was seated in the passenger's seat, and Hoskins was seated alone in the back seat.

Trooper Knudsen relayed information on the vehicle and its occupants to dispatch for a records check. Before long, dispatch informed Trooper Knudsen that the vehicle's license plates actually belonged to a Chevrolet Malibu registered to Archuleta. Dispatch also notified Trooper Knudsen that all of the vehicles' occupants had prior drug convictions. Returning to the Pontiac, Trooper Knudsen asked Archuleta to step out of the car to speak with him. Once she had, he questioned her about whether the car contained anything illegal. After she stated that she didn't believe so, Trooper Knudsen asked for permission to search the car. Archuleta explained that Alvarez actually owned the car, not she. Knudsen then requested that Alvarez exit the vehicle to speak with him. Knudsen also asked Alvarez whether there were any drugs in the vehicle, and, eventually, for her consent to search the vehicle. Reluctant, Alvarez explained that she had just bought the car and was worried that if Trooper Knudsen found anything illegal in the car, it might get the seller in trouble. Trooper Knudsen assured Alvarez that the seller would not get in trouble, but made clear that if she did not consent, he would get consent from Archuleta. Soon after, Alvarez gave her permission to search the vehicle.

Before searching the vehicle, Trooper Knudsen directed Hoskins to get out of the backseat. The district court described the ensuing moments as follows:

As Hoskins began to exit the car, Trooper Knudsen instructed him to leave his personal items on the backseat. During the subsequent search of the car and questioning of [Hoskins], Trooper Knudsen found marijuana in a cigarette package left in the car by [Hoskins]. Upon closer examination, Trooper Knudsen discovered a baggie containing methamphetamine.

Hoskins was arrested and charged with possession of methamphetamine with a sentencing enhancement based on a prior drug conviction.

Hoskins promptly filed a motion to suppress the evidence taken from the traffic stop. He argued that the traffic stop "evolved into an illegal detention and seizure of the Defendant's person" and cited State v. Newsom, 132 Idaho 698, 979 P.2d 100 (1998), for the proposition that his Fourth Amendment right to be free from unreasonable searches and seizures was violated after he "was instructed to leave his wallet and personal items inside the vehicle in which he was riding as a passenger."

At the evidentiary hearing, the State called Trooper Knudsen to testify about stopping the vehicle, calling for additional back up, and asking Hoskins to leave his personal belongings in the car. He testified that he asked Hoskins to leave his items in his car because his training and experience taught him that people sometimes keep drugs and weapons in such containers. The State also inquired about how he received permission to search the vehicle and how he questioned Hoskins about whether the vehicle contained anything illicit. Trooper Knudsen testified about how Hoskins eventually told him that there might be marijuana in a cigarette package and that Hoskins later claimed ownership over the package. Based on his testimony, Trooper Knudsen removed the marijuana so that he could return the cigarettes to Hoskins but, upon removing the marijuana, he found a second baggie containing methamphetamine.

Hoskins's lawyer cross-examined Trooper Knudsen about the same topics, but focused on the duration of the stop and Trooper Knudsen's process of obtaining consent from Alvarez. Before Trooper Knudsen stepped down, the Court asked him about why he called for back-up and who gave the consent to search the vehicle. For his part, Hoskins offered into evidence video footage of the stop taken from the dash-board camera in Trooper Knudsen's patrol vehicle. The evidence was admitted upon stipulation by the State. The court then directed the parties to submit briefs on the matter addressing two issues:

THE COURT: Okay. That's what I want you to focus then on. So those are the two issues. Coerced consent, and then the idea that things can't be required to be left in the vehicle with regard to items [directed to be left in the car by a police officer].

The State requested that it be allowed to file its brief after Hoskins so that the State would be able to address Hoskins's arguments. The court acquiesced.

In his brief, Hoskins argued that: (1) he had standing to contest the search of his personal items; (2) the traffic stop was unlawfully prolonged and any consent was obtained by coercion; and (3) the search of his personal items was illegal under Newsom.

In response, the State contended that (1) Hoskins could challenge the stop of the vehicle but not the search of the vehicle because he had no ownership interest in it; (2) the traffic stop was not unlawfully prolonged; and (3) the search of Hoskins's personal effects was not illegal because it was within the scope of validly obtained consent.

The district court denied Hoskins's motion to suppress. The court ruled that Hoskins did not have standing to contest the search of the vehicle because the vehicle was searched pursuant to validly obtained consent. The court ruled that Alvarez's consent was not the result of coercion and that Trooper Knudsen was justified in initially stopping the vehicle and then extending the stop. Shortly thereafter, Hoskins pleaded guilty to possession of a controlled substance and reserved the right to appeal the denial of his motion to suppress. The Court imposed a unified sentence of three years, with one year fixed, but suspended the sentence and placed Hoskins on probation.

Hoskins timely appealed and the case was assigned to the Court of Appeals which reversed the district court's denial of the motion to suppress and vacated the judgment of conviction. This Court granted the State's timely petition for review.

II. ISSUE ON APPEAL

Does the right-result, wrong-theory rule require this Court to hear an unpreserved argument on appeal from the denial of a motion to suppress?

III. STANDARD OF REVIEW

Petition for Review:

"When reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court." State v. Daly, 161 Idaho 925, 927, 393 P.3d 585, 587 (2017) (quoting State v. Schmierer , 159 Idaho 768, 770, 367 P.3d 163, 165 (2016) ).

Suppression Hearing:

When reviewing a trial court's grant or denial of a motion to suppress, this Court applies a bifurcated standard of review where the Court "defers to the trial court's factual findings unless they are clearly erroneous," but "freely reviews the determination as to whether constitutional requirements have been satisfied in light of the facts found." State v. Hansen, 151 Idaho 342, 345, 256 P.3d 750, 753 (2011) (quoting State v. Smith , 144 Idaho 482, 485, 163 P.3d 1194, 1197 (2007) ).

IV. ANALYSIS

A. The district court's denial of Hoskins's motion to suppress will be reversed because the State failed to carry its burden to show that the search of Hoskins's personal items fell into a well-defined exception to the warrant requirement.

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. Under the Fourth Amendment, a search conducted without a warrant is "presumptively unreasonable." Hansen, 151 Idaho at 346, 256 P.3d at 754 (citations omitted). To show a violation of the Fourth Amendment's prohibition on unreasonable searches, the defendant "must come forward with evidence sufficient to show there was a Fourth Amendment search, she has standing to challenge the search, and the search was illegal." State v. Holland, 135 Idaho 159, 162, 15 P.3d 1167, 1170 (2000) (citing State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981) ). This Court has used the term "standing" in the context of suppression hearings as "shorthand for the question [of] whether the moving party had a legitimate expectation of privacy in the area that was searched." State v. Mann, 162 Idaho 36, 44 n. 1, 394 P.3d 79, 87 n. 1 (2017). "When the defendant challenges the legality of a search based upon the absence of a search warrant, the burden then shifts to the State to prove the legality of the search." Holland, 135 Idaho at 162, 15 P.3d at 1170 (citation omitted). Once the burden has shifted, the State must "demonstrate that the search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances." State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995).

On appeal, the State argues that the plain-view doctrine supplies the "well-recognized exception to the warrant requirement." Id. To this end, the State asserts that there was no unreasonable search and seizure under the Fourth Amendment because Hoskins surrendered his reasonable expectation of privacy in the cigarette package when he informed Trooper Knudsen that it contained marijuana. Therefore, the State argues, Trooper Knudsen could lawfully seize the marijuana as contraband. Once he did, the State continues, the methamphetamine was exposed to plain view and Trooper Knudsen lawfully seized that as well. Thus, the State contends, the lower court correctly denied Hoskins's motion and this Court can affirm on that basis. However, the State argues that if this Court declines to affirm on that basis, then Hoskins's "unrelated admission" to the marijuana causes the search to fall under an exception to the exclusionary rule making suppression of the methamphetamine inappropriate. So the case should be remanded for the district court to determine whether an exception to the exclusionary rule applies.

We do not reach the merits of the State's plain-view argument because the State concedes that it failed to advance this argument below. "Issues not raised below will not be considered by this [C]ourt on appeal, and the parties will be held to the theory upon which the case was presented to the lower court." State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (citations omitted). In the record below, the State attempted to carry its burden by arguing that the search fell within the "well-recognized exception" of consent. But now the State concedes that this argument (and, by extension, the district court's decision) is incorrect. In effect, the State admits that the arguments and evidence presented at the suppression hearing were insufficient to "demonstrate that the search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances" Weaver , 127 Idaho at 290, 900 P.2d at 198. Because appellate review is limited to the theory presented below, and because the State concedes the only theory it presented below is incorrect, reason suggests that the State's concession should resolve this appeal.

However, the State argues that this case presents an exception to the general limitation on appellate review. The State urges this Court to "affirm the district court's ultimately correct ruling by applying the correct legal standards." The State contends the lower court reached the "right result" (denying the motion to suppress) based on the plain-view theory it now advances (a "well-recognized exception to the warrant requirement"). For the State, its plain-view theory is the "correct legal standard" upon which this Court may affirm the district court. In short, the State relies on what is sometimes dubbed the "right-result, wrong-theory rule."

The State's invocation of the right-result, wrong-theory rule is inapt under these circumstances. After a careful review of the right-result, wrong-theory rule and a survey of our recent precedent on issue preservation, we decline to extend the right-result, wrong-theory rule to the State's unpreserved argument in this case.

1. Issue preservation and the right-result, wrong-theory rule.

This Court has made clear that a central rule of appellate review is that "[t]his Court will not consider issues raised for the first time on appeal." State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (citing Mickelsen Const., Inc. v. Horrocks, 154 Idaho 396, 405, 299 P.3d 203, 212 (2013) ). To properly preserve an issue for appellate review, "both the issue and the party's position on the issue must be raised before the trial court. ..." State v. Gonzalez , 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019). But so long as this requirement is met, the specific legal authorities used to support the position may evolve. Id.

While this is the general posture of appellate review, the State points out that there are also special doctrines of appellate review which act as limitations on reversal-such as the harmless-error and invited-error doctrines. Another such limitation occurs when the appellate court supports a lower court's judgment on alternate grounds. As previously noted, this scenario has often been referred to as the "right-result, wrong-theory rule." Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704 (citing Idaho Sch. for Equal Educ. Opportunity v. Evans, 123 Idaho 573, 580, 850 P.2d 724, 731 (1993) ). Though it has been stated in varying terms, the rule is generally phrased as: "Where an order of a lower court is correct, but based upon an erroneous theory, the order will be affirmed upon the correct theory." Andre v. Morrow, 106 Idaho 455, 459, 680 P.2d 1355, 1359 (1984) (citations omitted). Thus, the appellate court may uphold the decision on appeal by applying a correct theory to the same facts (or to undisputed facts in the record). The purpose of the rule is twofold. It promotes finality by upholding a decision on alternate bases that were adequately supported by the record even if incorrectly decided. It also promotes judicial economy by reducing both time and costs for the parties and the court system. By upholding the result on an alternate theory which would have been dispositive upon remand, the rule eliminates a duplicative proceeding.

Though it has been characterized as a "rule," this is a misnomer. Rather, the phrase "right-result, wrong-theory" provides an explanation for appellate review. It is most often invoked when there are two (or more) alternate bases presented to the lower court on which to resolve the case but only one of which is correct. This typically occurs in one of two ways. For example, in one scenario, the defense argues that it should prevail because (1) the statute of limitations expired or (2) the defendant is immune from suit. The lower court could then rule, in the alternative, that (1) the statute of limitations had passed and (2) the defendant is immune from suit. If the court incorrectly ruled on one of these issues (say, on the statute-of-limitations issue) then the plaintiff could properly appeal on that basis. However, once it determined that this issue was decided in error, the appellate court could identify the immunity doctrine as the correct basis for the decision and resolve the case on that ground.

The second scenario occurs when the lower court finds one theory to be dispositive and decides the case only on that theory-to the exclusion of other theories that are raised. Using the same facts as a hypothetical, this would occur if the lower court decided the case upon the statute-of-limitations issue only. In this circumstance, the appellate court may still uphold the lower court's decision on the alternate basis, but only if a few conditions are met. First, because the lower court did not reach the alternate issue, the appellate court must be satisfied that the parties had adequate opportunity to present evidence and arguments on the alternative issue. In other words, there must be sufficient facts in the appellate record on which to base a decision on alternate grounds. Satisfaction of this condition will usually be dependent on the second condition: the theory on which the lower court decides the issue must not reroute the course of proceedings so that the alternate base does not have a chance to be litigated. That is, the affected party must have the reason and the opportunity to properly respond to the alternate grounds. See Medling v. Seawell, 35 Idaho 333, 337-338, 207 P. 137, 138 (1922) ("We are not bound by the theory announced by counsel and the court at the trial of the case unless the adoption of that theory caused the trial to take such a course that the sustaining of the judgment upon any other theory would work an injustice."). In the hypothetical, this might occur in a situation where the Court ruled early and decisively that the statute-of-limitations issue was dispositive. If one party did not have adequate opportunity or motive to present on immunity, then it would be improper for the appellate court to resolve the case on that issue. This understanding is in line with how the right-result, wrong-theory rule was originally applied.

As best can be determined, the first articulation of the right-result, wrong-theory rule was more than a century ago in Gagnon v. St. Maries Light & Power Co ., 26 Idaho 87, 91, 141 P. 88, 89 (1914). There, a painter under contract with a third party sued a power company for personal injuries after he was electrocuted while painting the company's building. Id. at 89, 141 P. at 89. The power company specially demurred on two grounds: (1) the painter failed to state a cause of action, and (2) since the complaint alleged that the painter was an independent contractor, the third party, and not the power company, was liable for his injuries. Id. at 90, 141 P. at 90. The district court dismissed the painter's case based on his failure to state a cause of action given the language of the complaint. Id. On appeal, this Court determined the lower court's reading of the complaint was erroneous; however, rather than reverse and remand after determining error, the Gagnon court went on to examine the second issue and sowed the seeds of the right-result, wrong-theory rule:

A more important question is raised by the second ground of defendant's demurrer, and, although the lower court did not sustain the demurrer specifically on this ground, yet, as the same question must arise in proceeding further under the complaint, it seems advisable to dispose of it in this opinion. It is also true that, if the demurrer was good on any ground stated, it would be the duty of this court to sustain the trial court, even though he sustained the demurrer on an erroneous ground.

Id. (emphasis added). Thus, when first articulated, the rule contemplated that the alternate theory was raised in a demurrer even if the district court did not rule on it. Interestingly, the right-result, wrong-theory rule was first articulated in a case that involved reversing the trial court. More important, however, is that the language that first breathed life into the rule envisioned that the alternate argument or issue was raised below.

Returning to the case at hand, the State proposes that the right-result, wrong-theory rule can be invoked in situations where the alternative basis was not pressed before the trial court. As our recent case law suggests, we disagree.

2. This Court's recent precedent reaffirms the importance of issue preservation and rearticulates how to properly preserve issues.

While this Court has never specifically articulated whether the right-result, wrong-theory rule contains a preservation requirement, this Court has recently denied attempts to raise unpreserved arguments on appeal in State v. Garcia-Rodriguez, 162 Idaho 271, 396 P.3d 700 (2017), State v. Cohagan, 162 Idaho 717, 404 P.3d 659 (2017), and State v. Fuller , 163 Idaho 585, 416 P.3d 957 (2018). Prior to these cases, this Court also addressed issue preservation in Ada County Highway District v. Brooke View, Inc., 162 Idaho 138, 395 P.3d 357 (2017). Most recently, this Court addressed what constitutes the same issue on appeal for preservation purposes in State v. Gonzalez, 164 Idaho at 99, 439 P.3d at 1271. These cases will be discussed in chronological order.

First, in Ada County Highway District v. Brooke View, Inc. , this Court explained that so long as a substantive issue is properly preserved, a party's appellate argument may evolve on appeal. 162 Idaho at 149 n. 2, 395 P.3d at 368 n. 2. The case involved a takings claim after the Highway District used eminent domain to install a drainage ditch and walkway on Brook View's property. Id. at 140, 395 P.3d at 359. Brook View first contested the amount paid in just compensation, but the litigation shifted its focus to separate damages when the Highway District's construction destroyed portions of a decorative dividing wall. Id. at 140-41, 395 P.3d 357, 359-60. After repeatedly rejecting the Highway District's argument that the damage should not be considered as a part of the just-compensation calculus, the district court held that the damage was part of the takings claim. Id. at 141, 395 P.3d at 360. On appeal, the Highway District maintained its position, but supplemented its argument with citation to two relevant Idaho statutes dealing with the interpretation of the just-compensation statute. Id. at 149 n. 2, 395 P.3d at 368 n. 2. This Court rejected Brook View's argument that this additional authority represented an unpreserved issue on appeal. Id. We held that the Highway District could fine-tune its argument because the issue was properly raised below and its position on that issue had not changed. Id.

Next, this Court made clear in Garcia-Rodriguez that it would not reverse a trial court's decision based on an argument that was not presented below. 162 Idaho 271, 396 P.3d 700. There, a defendant moved to suppress methamphetamine found after a search incident to arrest. Id. at 274, 396 P.3d at 703. At the district court, the State argued that the defendant was arrested because the officer reasonably believed that he would not appear for court after being cited for driving without a license. Id. at 275, 396 P.3d at 704. On appeal, the State discarded this argument and instead argued that once the officer had probable cause to believe that the defendant was driving without a license, the subsequent arrest did not violate the Fourth Amendment. Id. at 274-75, 396 P.3d at 703-04. Noting that this argument was likely correct under relevant case law, this Court nonetheless held that it was not properly presented on appeal. Id. at 275, 396 P.3d at 704. Despite urging by the State, this Court declined to invoke the right-result, wrong-theory rule by noting that when this Court "has corrected lower court decisions based on legal error, [it] did so when the lower court reached the correct result albeit by way of erroneous legal reasoning." Id. at 275-76, 396 P.3d at 704-05. Since the State was asking for a reversal of the lower court based on issues not raised nor argued below, it was asking for a wrong-result, wrong-theory approach-an approach this Court declined to adopt. Id. at 276, 396 P.3d at 705.

Later on, in State v. Cohagan , this Court stated that it would not consider an alternate theory when that theory was conceded below. 162 Idaho 717, 404 P.3d 659. Again, the appeal involved a motion to suppress evidence taken from a search incident to arrest. Id. at 720, 404 P.3d at 662. There, a pair of police officers thought they saw an individual who had an outstanding arrest warrant enter a convenience store. Id. at 719, 404 P.3d at 661. After asking for, receiving, and examining the defendant's ID card, one officer determined that the defendant was not who they believed he was and returned his ID. Id. Double-checking, the other officer returned to ask the defendant for his ID, and, even after realizing that the defendant wasn't who he first initially believed he was, the officer held onto the ID while he ran a warrant check. Id. When dispatch indicated that the defendant might have a warrant, the officer led the defendant out of the store while they waited for confirmation. Id. Dispatch confirmed the warrant and the officer made the arrest. Id.

To the trial court, the State conceded that the officer unlawfully stopped the defendant when he held onto the ID during the warrant check. Id. at 721, 404 P.3d at 663. On appeal, the State argued that, despite its prior concession, this Court must nevertheless decide whether that interaction was lawful before reaching the issue on appeal: attenuation. Id.

This Court rejected the State's argument by stating that while it was true that an appellate court exercises free review over whether a seizure occurred, it is "equally true" that issues not raised below will not be considered on appeal and parties are held to the theory they presented to the district court. Id. (citing Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704 ). This Court stated that "[t]o allow the State to change positions on appeal and argue that the stop was not illegal would sharply cut against our longstanding and recently re-affirmed policy of requiring parties to present their arguments to the court below." Id. (citing Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704 ). Since the State's concession made it unnecessary to determine the lawfulness issue, this Court proceeded to the attenuation issue. Id.

Next, in State v. Fuller, 163 Idaho 585, 416 P.3d 957, the State sought to reverse a district court's grant of a defendant's motion to suppress evidence stemming from a traffic stop. Id. The parties debated whether the officer had a reasonable, articulable suspicion that the defendant violated either one of two statutes when his vehicle's tire crossed the fog line while driving. Id. at 590, 416 P.3d at 962. This Court analyzed the State's argument on the first statute, but found that the district court correctly ruled that the officer did not have a reasonable, articulable suspicion that the statute was violated. Id. at 590, 416 P.3d at 962. We did not reach the State's argument based on the second statute because the State failed to raise it below. Id. at 591, 416 P.3d at 963. And failure to raise it below "spell[ed] the fatal resolution of this argument on appeal." Id.

Most recently, this Court took the opportunity to clarify what constitutes a "new" appellate argument in State v. Gonzalez, 165 Idaho 95, 439 P.3d 1267 (2019). There, the defendant argued to the trial court that she was entitled to credit for time served from the time the warrant was issued. However, on appeal she argued that she was entitled to credit from the time of her hold on a warrant. Id. at 97, 439 P.3d at 1269. After an examination of Garcia-Rodriguez and Brooke View , we articulated the bounds of our review:

We will not hold that a trial court erred in making a decision on an issue or a party's position on an issue that it did not have the opportunity to address. To be clear, both the issue and the party's position on the issue must be raised before the trial court for it to be properly preserved for appeal. In other words, Brooke View portrays a party riding on a horse that has been groomed and reshod for the appellate process, whereas Garcia-Rodriguez exemplifies a party entering the appellate process riding a similar-looking but entirely new horse. A groomed horse is expected on appeal, but a different horse is forbidden.

Id. at 99, 439 P.3d at 1271. Concluding that the defendant had inappropriately changed positions, we held that she failed to properly preserve her argument. Id. To hold otherwise would be "unfair to the State because it did not have the opportunity to address and respond at the district court level." Id. at 100, 439 P.3d at 1272. Likewise, it would be "inappropriate for this Court to rule that the district court erred by not considering evidence or argument not presented to it." Id.

It is under this framework that we assess the State's arguments.

3. This Court will not consider the State's plain-view argument on appeal because the State failed to preserve it below.

Returning to the case at hand, the State argues that the district court was correct to deny Hoskins's motion to suppress but denied it on the wrong basis. The State attempts to characterize the district court's consent analysis as "erroneous legal reasoning" by stating that the "correct legal reasoning" is the State's plain-view argument on appeal. Not only is this an inappropriate characterization, it also fails to explain why the State failed to advance the "correct legal reasoning" below. Initially, "erroneous legal reasoning" presupposes that the correct legal reasoning was presented, but disregarded by the trial court. This was not the case here. The State failed to present the "correct legal reasoning" to the trial court. Rather, the State relied upon an erroneous legal theory-i.e. consent-and the district court denied the motion to suppress on that basis.

Because the State concedes that both its argument and the district court's decision were in error, we must accept that concession.

Thus, in order for this Court to affirm on the basis of the right-result, wrong-theory rule, the State's plain-view theory must have been properly preserved. Accepting only for the sake of argument that the State's plain-view theory is the "correct legal reasoning," the State still failed to preserve that theory. While the State can argue that it preserved the general issue of "exceptions to the Fourth Amendment's warrant requirement," this does not change the fact that the State presented the trial court with the consent exception rather than the plain-view doctrine. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). And by conceding that it did not raise its plain-view argument below, the State admits to improperly changing its legal position on this issue. This change of position is fatal because "both the issue and the party's position on the issue must be raised before the trial court" for the issue to be properly preserved. State v. Gonzalez, 165 Idaho at 99, 439 P.3d at 1271. Even though this Court would not be reversing the district court if we decided in the State's favor, this does not change the fact that the district court never had the chance to rule on the plain-view issue. Likewise, the record suggests that the proceedings developed in such a way that Hoskins had neither the incentive nor the opportunity to present evidence or argument concerning the plain-view theory. Thus, it would be "unfair to [Hoskins] because [he] did not have the opportunity to address and respond at the district court level." Gonzalez, 165 Idaho at 100, 439 P.3d at 1272.

This Court has placed a premium on counsel presenting the facts and law that it chooses to support its position in the trial court. See State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010). Our adversarial system of justice demands active and agile counsel at all levels. And so, even assuming the State developed a sufficient factual record in this case, the State did not provide adequate argument because it failed to give the trial court and opposing counsel the appropriate Fourth Amendment exception to support its position. Accordingly, we reverse the district court's denial of Hoskins's motion to suppress.

We also deny the State's request that we remand this case for additional argument and factual findings in lieu of reversing the district court's denial of the motion to suppress. At a suppression hearing, the State must carry its burden to "demonstrate that the search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances." Weaver, 127 Idaho at 290, 900 P.2d at 198. Here, the State tells us that the proper exception is the plain-view theory. The State possessed the opportunity, facts, and evidence to present this theory when the matter was originally before the trial court. By its own admission, it failed to do this. Thus, the State did not meet its burden to demonstrate the "well-recognized exception" which applied in this case. State v. Weaver , 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). Devising a "correct" theory for the first time on appeal does not give the State a legal mulligan when it concedes that its original theory did not carry the burden below. The same logic holds true for the State's argument regarding exceptions to the exclusionary rule.

V. CONCLUSION

For the reasons stated above, we reverse the district court's denial of Hoskins's motion to suppress, vacate his judgment of conviction, and remand for further proceedings consistent with this opinion.

Justices BRODY, BEVAN, STEGNER, and MOELLER concur.

      Since the term is no longer commonplace, and because the distinction becomes important, a demurrer is a "pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer." Black's Law Dictionary 526 (10th ed. 2014). In most jurisdictions, a demurrer "is now termed a motion to dismiss." Id. Demurrers could come in a couple of variations. For example, a special demurrer "states grounds for an objection and specifically identifies the nature of the defect, such as that the pleading violates the rules of pleading or practice." Id. By contrast, a general demurrer is:
      1. An objection pointing out a substantive defect in an opponent's pleading, such as the insufficiency of the claim or the court's lack of subject-matter jurisdiction; an objection to a pleading for want of substance. - Also termed general demurrer.
      2. An objection in which the excepting party does not specify the grounds of the objection.
      Id. at 683 (10th ed. 2014) (cross-referenced under "general exception.").


source: Caselaw Access Project

author: STEGNER, Justice.

license: Public Domain

text:
    George MCGIVNEY, Claimant-Respondent, v. AEROCET, INC., Employer, and State Insurance Fund, Surety, Defendants-Appellants, and Quest Aircraft, Employer, and Federal Insurance Company, Surety, Defendants-Respondents.
    Docket No. 45700
    Supreme Court of Idaho, Moscow, April 2019 Term.
    Filed: June 13, 2019
    H. James Magnuson, Coeur d'Alene, for Appellants, Aerocet, Inc., and State Insurance Fund. H. James Magnuson argued.
    Bowen & Bailey, LLP, Boise, for Respondents, Quest Aircraft and Federal Insurance Company. William S. Wigle argued.
    Kelso Law Office, Coeur d'Alene, for Respondent, George McGivney. Starr Kelso argued.
   STEGNER, Justice.

This case involves an appeal brought by Aerocet, Inc., (Aerocet) and its surety, the State Insurance Fund, in which they appeal a decision of the Idaho Industrial Commission (Commission) involving two worker's compensation claims brought by George McGivney (McGivney). The Commission awarded McGivney benefits for injuries he sustained to his left knee while working for both Aerocet and Quest Aircraft (Quest). The Referee consolidated the two cases and issued a recommendation that attributed the vast majority of liability to Quest. The Commission rejected the bulk of the Referee's recommendations and apportioned liability equally between Aerocet and Quest. Aerocet appeals alleging the Commission inappropriately consolidated McGivney's two injury claims. Aerocet also contends the Commission failed to determine McGivney's disability in excess of impairment from his 2011 accident at Aerocet prior to his 2014 accident at Quest, and that the Commission erred in its application of Brown v. Home Depot, 152 Idaho 605, 272 P.3d 577 (2012). Aerocet also maintains the Commission's decision is not supported by substantial and competent evidence. For the reasons stated, we affirm the Commission's decisions. We also deny the requests for attorney fees. We remand the case to the Commission to enable it to calculate the amount due Quest's surety from Aerocet's surety for any amounts overpaid by Quest's surety.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 2011, McGivney injured his left knee at work while working for Aerocet. Part of McGivney's job duties at the time included ascending and descending fifteen to sixteen steep wooden stairs thirty to forty times a day. On one of those trips down the stairs, McGivney felt something "go" in his left knee. Although he did not fall, he reported that he was "kind of" able to walk it off, but his knee kept "catching and locking" and it was "really painful."

Some two months later, McGivney sought treatment from Dr. Douglas P. McInnis, an orthopedic surgeon. Dr. McInnis identified a tear in the meniscus of McGivney's left knee. He also discovered the presence of progressive arthritis, which pre-existed McGivney's accident. In order to address McGivney's injury, Dr. McInnis offered McGivney two options: Dr. McInnis could either surgically repair the torn meniscus through arthroscopic surgery, which would ease the symptoms; or he could partially replace portions of the knee, which would address the accident symptoms and the pre-existing arthritis. McGivney opted for the former, less invasive surgery. Dr. McInnis performed the meniscus repair on September 12, 2011. Dr. McInnis concluded following surgery that McGivney had sustained a 2% lower extremity impairment. McGivney returned to work at Aerocet with the following restrictions-that he not use stairs and that if an activity hurt his knee, he should discontinue doing it.

Shortly after returning to work at Aerocet, McGivney accepted a position at Quest, a "sister company" to Aerocet. McGivney began working for Quest in October 2011.

Roughly two-and-a-half years later, on March 4, 2014, while working at Quest, McGivney reinjured his left knee. After leaving a meeting, McGivney was again descending stairs-this time holding and looking at some papers from the meeting-when he skipped or "overstepped" a step and landed hard on his left leg, which "jarred everything." Initially, McGivney did not give much thought to the event, however, on his way home from work that day, his knee "really started hurting" and by the time he got home it "had swollen up to a pretty good size." Following the second accident, McGivney was seen by Dr. Jeffrey Lyman, also an orthopedic surgeon. Dr. Lyman performed a unicompartmental arthroplasty (partial knee replacement) on McGivney's left knee to address the problems identified. Quest initially declined to pay for McGivney's surgery. As a result, McGivney's private health insurer paid for the surgery. Following the partial knee replacement surgery, McGivney tried to return to work for Quest, but due to an adverse reaction to pain medication and a stressful work environment, he was unable to continue and eventually resigned from his job with Quest.

On July 28, 2014, McGivney filed a pro se worker's compensation complaint seeking worker's compensation benefits from Quest and its surety, Federal Insurance Company. On November 21, 2014, McGivney, who was by now represented by counsel, filed an additional worker's compensation complaint against Aerocet and its surety. On April 29, 2015, McGivney moved to consolidate both cases before the Commission because they involved "intertwining facts," records, and testimony. On May 12, 2015, counsel for both Aerocet and Quest took McGivney's deposition. Some time that day, Aerocet filed an objection to the consolidation of McGivney's claims. On May 19, 2015, the Referee presiding over the case denied Aerocet's objection and ordered the cases consolidated because consolidation "could result in judicial economy." However, the Referee left open the possibility of separating the two claims at a future date when he wrote, "[a]s the matter unfolds, counsel for [Aerocet and the] State Insurance Fund may renew his objection if warranted." Counsel for Aerocet never renewed his objection to consolidation, in spite of the Referee's specific invitation to do so if an objection were warranted.

On September 11, 2015, McGivney moved to compel Quest and its surety to pay his past due temporary disability and medical benefits. On September 28, 2015, the Commission granted McGivney's motion. The claims went to hearing before the Referee on November 8, 2016. On October 12, 2017, the Referee issued his Findings of Fact, Conclusions of Law, and Recommendation. The Referee determined, in reliance on Brown v. Home Depot, 152 Idaho 605, 272 P.3d 577 (2012), that a claimant's disability is appropriately determined at the date of hearing rather than the date of medical stability. The Referee also concluded that 1) McGivney's condition was not due to a pre-existing condition unrelated to work; 2) McGivney was entitled to a 21% lower extremity permanent partial impairment ("PPI") rating as a result of his 2014 incident; 3) McGivney was entitled to a permanent partial disability ("PPD") rating of 40% inclusive of his 21% PPI; 4) apportionment of benefits paid or payable by Quest between Quest and Aerocet was not appropriate; and 5) McGivney was not entitled to an award of attorney fees against Quest.

The Commission reviewed the Referee's Findings of Fact, Conclusions of Law, and Recommendation. On December 22, 2017, it issued its own Findings of Fact, Conclusions of Law, and Order in which it declined to adopt many of the Referee's recommendations. The Commission also relied on Brown to determine that McGivney's disability should be determined as of the date of the hearing. The Commission also agreed with the Referee that McGivney's condition was not due to a pre-existing condition, and that McGivney was not entitled to an award of attorney fees from Quest. However, the Commission concluded that McGivney suffered a greater degree of permanent partial disability than the Referee recommended. Due to his injury-related work restrictions, his age, his lack of formal education, and his spotty work history since 2014, the Commission concluded that McGivney suffered a 50% permanent partial disability, inclusive of his 21% permanent partial impairment.

The Commission also disagreed with the Referee's conclusion that apportionment between Aerocet and Quest was inappropriate. The Commission concluded that responsibility for the medical expenses incurred for McGivney's left knee arthroplasty (partial knee replacement) and the related treatment should be apportioned equally between Aerocet and Quest from June 25, 2014, forward. The Commission also concluded that responsibility for any total temporary disability benefits payable to McGivney should be apportioned equally between Aerocet and Quest from June 25, 2014, forward. (Quest was liable for any total temporary disability benefits from the time of the 2014 injury until June 24, 2014, the day before McGivney's surgery.) To the extent that Quest had overpaid time loss benefits to McGivney, Quest was entitled to reimbursement from Aerocet. Aerocet and its surety, the State Insurance Fund, timely appealed the Commission's decision. (Hereafter, for ease of reference, Aerocet and its surety, the State Insurance Fund, will be collectively referred to as "Aerocet." In addition, Quest and its surety, Federal Insurance Company, will be referred to as "Quest.")

II. STANDARD OF REVIEW

"When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings." Bradford v. Roche Moving & Storage, Inc., 147 Idaho 733, 736, 215 P.3d 453, 456 (2009) (quoting Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002) ). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Id. "Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous." Id. "This Court does not weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented." Id. "Whether a claimant has an impairment and the degree of permanent disability resulting from an industrial injury are questions of fact." Id.

III. ANALYSIS

A. The Referee did not abuse his discretion in consolidating McGivney's two cases.

Aerocet argues that the Commission erred by implicitly accepting the Referee's consolidation of the two cases. Aerocet contends that the Commission should have determined McGivney's impairment from the 2011 injury separately from the 2014 injury. Specifically, Aerocet argued that it was "entitled to a separate determination of Claimant's disability in excess of impairment, if any, from the 2011 injury to the same extent as if the 2011 claim was not consolidated," and that the failure of the Commission to conduct a separate disability determination relative to the 2011 injury violated its substantive rights.

McGivney responds contending Aerocet's argument is a complaint about the Referee's order to consolidate the cases and argues that Aerocet did not preserve its objection to consolidation for review on appeal. McGivney also contends that even if the Commission had conducted a hearing for each accident (rather than relying on the transcript from the consolidated proceeding), the apportionment analysis and result would have been the same. Quest argues that the cases were appropriately consolidated because of intertwining facts, and that Aerocet has not presented any argument that the testimony or evidence would have differed had two hearings been conducted.

This case arose as a result of McGivney filing a pro se complaint with the Commission against Quest in July 2014. In that complaint, he sought medical benefits and lost wages associated with the March 2014 accident at Quest. McGivney identified the issue involved as the "insurance company [for Quest] had denied [his] claim." McGivney had never filed a complaint regarding his 2011 injury at Aerocet. It was only after McGivney retained counsel that he filed a complaint against Aerocet. The complaint against Aerocet was filed in November 2014.

Once both complaints were filed, McGivney moved to consolidate the cases. The Referee granted McGivney's motion. Following the consolidated hearing, the Referee found that McGivney suffered a 2% left lower extremity impairment as a result of the 2011 accident, and a 21% lower extremity impairment as a result of the 2014 accident. The Referee also determined that "when considering those factors enumerated in Idaho Code 72-430" McGivney had incurred permanent partial disability "as a result solely of his 2014 accident/injury of 40% inclusive of the medical factor of his PPI [permanent partial impairment] of 21% lower extremity." (Italics added.) The Commission, however, rejected the Referee's recommendations. The Commission concluded that McGivney had suffered a 50% permanent partial disability of the whole person, which included his 21% permanent partial impairment based on all the factors enumerated in Idaho Code section 72-430, primarily because of "the combination of [McGivney's] work restrictions and lack of formal education." The Commission also apportioned liability for its award equally between Aerocet and Quest. (The Referee had rejected any apportionment.)

Aerocet takes issue with the Commission's failure to separately determine disability for the 2011 accident. It argues that, had the proceedings not been consolidated, a separate disability determination for the 2011 injury would have been required, so consolidation necessarily altered its substantive rights, in violation of the law. For this proposition, it cites Jones v. Jones, 117 Idaho 621, 624, 790 P.2d 914, 917 (1990) (quoting Johnson v. Manhattan Ry., 289 U.S. 479, 496-98, 53 S.Ct. 721, 77 L.Ed. 1331 (1933) ). In Jones , this Court stated:

In general, the consolidation of two cases does not have the effect of merging two cases into a single action. Rather, "consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties."

There is no specific guidance regarding consolidation, either in Title 72 of the Idaho Code, the section of the Idaho Code dealing with worker's compensation benefits, or in the case law from this Court. Permanent impairment is to be determined when the claimant has reached maximum medical improvement as indicated in Idaho Code section 72-422. Permanent disability is to be determined after both maximum medical improvement has been achieved and permanent impairment has been determined as set out in Idaho Code sections 72-423 and 72-425. In addition, Brown strongly suggests that determining disability is most appropriate at the time of the hearing. Brown, 152 Idaho at 609, 272 P.3d at 581. However, no authority specifically addresses whether there must be a separate disability determination for each injury in the hearing if the cases are consolidated, as Aerocet asserts.

Case law does not support Aerocet's claim that the Commission is somehow required to separately determine disability without regard to a subsequent injury when cases have been consolidated. For example, in Smith v. J.B. Parson Co., 127 Idaho 937, 939-40, 908 P.2d 1244, 1246-47 (1996), the claimant suffered two work-related industrial accidents while working for two different employers-a partial finger amputation while seasonably employed by Parson and a back injury while employed by the Idaho State School and Hospital. When the claimant filed multiple claims with the Commission (including one for a non-work-related condition), the claims were consolidated. Id. The Commission evaluated the various impairments separately, assigning them different impairment percentages, but "considered all four of Smith's impairments, combined with Smith's age and education, and determined that Smith was totally and permanently disabled ... [on] the date of medical stability." Id. at 940, 908 P.2d at 1247.

In Stoddard v. Hagadone Corp., 147 Idaho 186, 189, 207 P.3d 162, 165 (2009), the claimant suffered three industrial accidents while employed by the Hagadone Corporation, and filed three separate claims for benefits, which were consolidated by the Commission. Stoddard's three work-related injuries involved: 1) a groin strain and hernia suffered while unloading flats of potted flowers from a boat; 2) back pain caused by maneuvering a large flowerpot through a sliding glass door; and 3) a fall while mowing the lawn on an incline. Id. The Referee ultimately found Stoddard to be totally and permanently disabled on the basis of these injuries and apportioned responsibility for Stoddard's impairments between Hagadone Corporation's various sureties which had insured Hagadone at different times during his employment. Id. The Referee further concluded, however, that the last injury caused Stoddard to be totally and permanently disabled and therefore found the second surety "fully liable for the total and permanent disability benefits." Id. The first surety was held responsible for 20% of the injuries as a result of the hernia and the second surety was held liable for the permanent total disability or 80% of Stoddard's disability. Id. Although there was discussion of the various injuries in terms of percentages of impairment, causation and apportionment, there was not a separate disability determination for each injury in the consolidated cases. Each injury was part of a single disability determination-even though the Commission ultimately concluded that one injury was the sole cause of Stoddard's total permanent disability.

In Anderson v. Harpers, Inc., 143 Idaho 193, 141 P.3d 1062 (2006), the Commission consolidated the complaints of a claimant who was involved in three industrial accidents while working for a single employer: two involving spinal injuries and one involving injury to his left thumb. Id. at 195, 141 P.3d at 1064. The Commission concluded that, as a result of these injuries, the claimant had an impairment rating of 28%, which included 1% for the thumb injury. Id. at 197-98, 141 P.3d at 1066-67. The Commission then concluded that this impairment rating, when considered together with the pertinent nonmedical factors, supported a finding of total permanent disability. Id. at 198, 141 P.3d at 1067. Again, the Commission considered the injuries separately to determine impairment percentages, but did not determine disability arising from the various injuries separately. They were joined together for the disability determination.

Review of the cases above indicates that for consolidated cases, the disability determination has historically been conducted using a test resembling a totality of the circumstances analysis. Cases are typically consolidated when they involve a single claimant with multiple injuries, in which consolidation can avoid duplicative proceedings, testimony, and exhibits. Additionally, in these cases, the Commission was careful to separate out each injury and identify the cause of each injury, the percentage of impairment attributable to each injury, and to apportion liability accordingly. Disability determinations are more holistic in nature than individual impairment determinations because they analyze the ability of a claimant to engage in "gainful activity" as required by Idaho Code section 74-423, and because they consider the nonmedical factors outlined in Idaho Code section 72-430 in addition to the claimant's medical condition.

Also, there is no clear legal authority requiring the Commission to conduct a separate disability determination for each injury in a consolidated case. As is frequently stated, the standard of review for this Court over decisions by the Commission is "free review over questions of law," but review of factual questions only to determine "whether substantial and competent evidence supports the Commission's findings." Anderson, 143 Idaho at 195, 141 P.3d at 1064. This Court has held that the Commission's decision to order (or deny) consolidation is discretionary.

Hipwell v. Challenger Pallet & Supply , 124 Idaho 294, 300, 859 P.2d 330, 336 (1993) ("[I]t is within the Commission's discretion to order consolidation, and our review of the record reveals no abuse thereof."). Thus, the Referee's decision to consolidate the cases is reviewable under an abuse of discretion standard. When this Court reviews an alleged abuse of discretion by a hearing officer the sequence of inquiry requires consideration of four essentials. Whether the hearing officer: "(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of [his] discretion; (3) acted consistently with the legal standards applicable to the specific choices available to [him]; and (4) reached [his] decision by the exercise of reason." Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

Given the abuse of discretion standard of review, we conclude the Referee did not abuse his discretion in consolidating McGivney's two cases because consolidation was appropriate given the factual circumstances. Here, McGivney injured the same knee (left) in the same way (tom meniscus) doing the same type of activity (descending stairs), while working for two different employers roughly two-and-a-half years apart. The Referee, when granting McGivney's motion to consolidate, indicated that consolidation "could result in judicial economy" and that Aerocet's surety, the State Insurance Fund, could renew its objection "if warranted." While given the opportunity to revisit the Order to Consolidate, no motion to reconsider the decision was ever made. As a result, Aerocet cannot demonstrate that the Referee abused his discretion in granting McGivney's motion to consolidate.

B. The Commission did not err by declining to separately determine McGivney's disability in excess of impairment prior to the 2014 injury.

Aerocet's next assignment of error is that the Commission erred because it did not determine McGivney's disability in excess of impairment at the time he reached maximum medical improvement following his 2011 injury. This issue is to a large extent a repeat of Aerocet's first issue. McGivney did not file a complaint with the Commission for his 2011 injury at Aerocet until 2014-this occurred after he had filed a complaint for his 2014 injury at Quest. Disability is determined by the Commission after it receives a complaint. Aerocet asserts that McGivney reached maximum medical improvement at the time he was given a 2% impairment rating by Dr. McInnis and released back to work with minimal restrictions. Because McGivney's 2011 claim was still open when he was reinjured in 2014, there was no impediment to the Commission considering both claims at the same time. Aerocet's claim to the contrary is without merit.

C. The Commission did not err in its application of Brown v. Home Depot.

Aerocet next argues that the Commission erred in its application of Brown v. Home Depot , 152 Idaho 605, 272 P.3d 577 (2012). Aerocet contends the Commission erred when it read Brown for the proposition that a claimant's disability is to be determined at the date of the hearing rather than the date of medical stability. Aerocet argues that Brown was limited to determining the proper labor market that should be used to assess odd-lot disability, and that the Commission read Brown too broadly in this case. Aerocet points to this Court's statement in Stoddard v. Hagadone Corp., 147 Idaho 186, 192, 207 P.3d 162, 168 (2009), for its contention that "the proper date for disability analysis is the date that maximum medical improvement has been reached." Aerocet maintains that the disability determination for the 2011 injury should have been conducted when that injury was "ripe"-or when Dr. McInnis gave McGivney a 2% impairment rating and released him to work without restrictions. Soon after his return to work, he secured a position with another company (Quest). Given these facts, Aerocet argues that McGivney did not suffer any disability in excess of impairment from the 2011 injury, which it argues is what the Commission would have concluded had the disability determination been conducted before the 2014 injury.

While it is true that the burden of proving disability in excess of impairment is on the claimant, the Commission did not err in applying Brown in the way that it did. This Court explained in Brown that:

Under I.C. § 72-425, the permanent disability rating is a measure of the claimant's "present and probable future ability to engage in gainful activity." The word "present" implies that the Commission is to consider the claimant's ability to work as of the time evidence is received. There is no "present" opportunity for the Commission to make its determination apart from the time of hearing.

Brown, 152 Idaho at 609, 272 P.3d at 581. As indicated above, this Court in Brown also clarified any confusion between its holding with its prior statement in Stoddard :

Our statement regarding "the proper date for disability analysis" [from Stoddard ] cited to I.C. § 72-422, which defines permanent impairment, not permanent disability. Id. Our holding in Stoddard was not meant to contradict or overrule Davaz [v. Priest River Glass Co., Inc. , 125 Idaho 333, 870 P.2d 1292 (1994) ], but to emphasize [ ] that no disability determination could be made prior to the determination of permanent impairment, which cannot be evaluated until maximum medical improvement has been reached.

Id. Since it was decided, Brown has not been overruled, or otherwise narrowed by this Court. Accordingly, it is still good law, and the Commission did not err in relying on it to determine McGivney's disability in excess of impairment at the time of the hearing, rather than at some earlier time. Aerocet's argument to the contrary is rejected.

D. Substantial and competent evidence supported the Commission's apportionment of McGivney's disability benefits between Aerocet and Quest.

Aerocet next argues that McGivney did not suffer a worsening of his knee condition over time, but that he suffered a new, separate accident and resulting injury while employed at Quest, which resulted in the need for new medical treatment and the partial knee replacement. Aerocet thus maintains that the Commission erred when it concluded that Quest should be reimbursed by Aerocet for 50% of McGivney's permanent disability benefits, as well as medical and time loss benefits arising after June 25, 2014.

"There is a presumption that the Commission by its experience is able to judge the causative factors in a particular case, and the Commission is 'allowed a degree of latitude in making an apportionment.' " Page v. McCain Foods, Inc., 145 Idaho 302, 308-09, 179 P.3d 265, 271-72 (2008). "This Court will not overturn an apportionment when it is supported by substantial and competent, although conflicting, evidence." Id. at 309, 179 P.3d at 272. "When the Commission apportions permanent disability so as to absolve the employer for compensating for preexisting injuries, the Commission must explain its apportionment determination with sufficient rationale to enable this Court to determine whether it is supported by substantial and competent evidence." Id.

Here, the Commission provided an elaborate explanation for its apportionment to Aerocet of half of the disability benefits, and for half of the medical and time loss benefits after June 25, 2014 (the date of the surgery). Part of its rationale is included below:

70. Claimant has been given a 21% lower extremity impairment rating for his left knee. Dr. McInnis originally proposed that following the 2011 meniscectomy, Claimant was entitled to a 2% lower extremity rating, with no impairment assigned to Claimant's pre-existing left knee arthritis. Dr. McNulty acknowledged that this 2% rating was appropriate at the time it was issued. However, Dr. McNulty ultimately concluded that half of Claimant's current 21% lower extremity rating should be apportioned to the 2011 accident. Explaining his reasoning, he testified that the 2011 meniscectomy destabilized Claimant's left knee, and caused the progression of arthritic changes in the medial compartment of the knee much faster than would have otherwise happened. ... At the same time, Dr. McNulty and Dr. Lyman proposed that the 2014 accident caused additional trauma to the medial compartment; and had further hastened Claimant's need for the uni-compartmental knee arthroplasty [partial knee replacement surgery]. Based on these findings, Dr. McNulty believes it appropriate to apportion Claimant's impairment on a 50-50 basis as between the accident of 2011 and the accident of 2014, with no apportionment to whatever mild degenerative changes Claimant may have had in the left knee prior to the 2011 accident. Dr. Lyman, the surgeon who performed Claimant's left knee arthroplasty, concurs with this analysis. While we recognize that following the 2011 accident Claimant was given only a 2% lower extremity rating and released without limitations/restrictions, the important point is that Claimant's left knee condition continued to deteriorate following the date of Dr. McInnis's rating, and that this deterioration has been persuasively linked to the 2011 accident.

The Commission thereafter ordered that disability, medical, and time loss benefits be apportioned equally between Aerocet and Quest:

71. As to the issue of whether Claimant's disability should be apportioned between the 2011 and 2014 accidents, we conclude that the medical evidence referenced above supports a similar apportionment of disability over and above impairment. The principal reason for performing the left knee arthroplasty was to address the profound medial compartment damage noted in 2014. As both Dr. McNulty and Dr. Lyman have indicated, Claimant's medial knee arthritis was the product of both the 2011 and the 2014 accidents. While Claimant may have been able to return to his time-of-injury job following the 2011 accident this fact does not denigrate our conclusion that Claimant's current disability is referable to significant medial compartment arthritis caused by both the 2011 and 2014 accidents.

The Commission's explanation supplies ample rationale for its decision. It relied directly on the medical opinions of two physicians who examined McGivney-Dr. McNulty, who performed an independent medical examination at the request of Quest, and Dr. Lyman, who treated McGivney and performed his partial knee replacement surgery. In addition, although there was conflicting evidence, the Commission fully explained its decision and apportionment. Given that two physicians concluded that McGivney's disability should be equally split between the two employers, the Commission's decision was supported by substantial and competent evidence. Aerocet's argument that the Commission's findings are not supported by substantial and competent evidence is rejected.

E. Aerocet must reimburse Quest for any over-payment Quest made to McGivney.

At oral argument, Quest requested reimbursement from Aerocet for payments Quest made to McGivney that were actually Aerocet's obligation. The basis for Quest's request is Idaho Code section 72-313. Quest's request is well founded in fact and law. This case will be remanded to the Commission to enable it to calculate the amount due to Quest (or its surety) from Aerocet (or its surety) for any amounts overpaid by Quest (or its surety).

F. No attorney fees will be awarded.

1. McGivney is not entitled to attorney fees on appeal under Idaho Appellate Rule 11.2.

McGivney contends that he is entitled to an award of attorney fees on appeal because Aerocet's appeal was frivolous. The basis for McGivney's claim is Rule 11.2 I.A.R. That Rule reads as follows:

(a) Every notice of appeal, petition, motion, brief and other document of a party represented by an attorney shall be signed by at least one (1) licensed attorney of record of the state of Idaho, in the attorney's individual name, whose address shall be stated before the same may be filed. ... The signature of an attorney or party constitutes a certificate that the attorney or party has read the notice of appeal, petition, motion, brief or other document; that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If the notice of appeal, petition, motion, brief, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the notice of appeal, petition, motion, brief or other document including a reasonable attorney's fee.

This Rule has been construed to warrant an award of attorney fees when the party who brought or pursued the appeal did so in bad faith or that the appeal was brought for an improper purpose. For instance, in Painter v. Potlatch Corp., 138 Idaho 309, 315, 63 P.3d 435, 441 (2003), we found that an award of attorney fees against an employee's attorney was not warranted because "there [was] ... no persuasive indication that [he] interposed the appeal for an improper purpose." Consequently, McGivney's request for attorney fees pursuant to I.A.R. 11.2 will be denied.

2. Quest is not entitled to attorney fees under Idaho Code section 72-804.

Quest also seeks attorney fees against Aerocet. Quest predicates its claim on Idaho Code section 72-804, alleging that the only purpose for Aerocet's appeal was to reweigh the evidence. Idaho Code Section 72-804 reads as follows:

72-804. ATTORNEY'S FEES - PUNITIVE COSTS IN CERTAIN CASES. If the commission or any court before whom any proceedings are brought under this law determines that the employer or his surety contested a claim for compensation made by an injured employee or dependent of a deceased employee without reasonable ground, or that an employer or his surety neglected or refused within a reasonable time after receipt of a written claim for compensation to pay to the injured employee or his dependents the compensation provided by law, or without reasonable grounds discontinued payment of compensation as provided by law justly due and owing to the employee or his dependents, the employer shall pay reasonable attorney fees in addition to the compensation provided by this law. In all such cases the fees of attorneys employed by injured employees or their dependents shall be fixed by the commission.

The statute relied on by Quest is a remedial statute that authorizes an award of attorney fees where "the employer or his surety contested a claim for compensation made by an injured employee ... without reasonable ground ...." While Idaho Code section 72-804 provides for an award of attorney fees where an employer or his surety unreasonably denies a claim, the right to recover attorney fees is limited to an employee or his dependent. Quest has not identified any case in which this Court has awarded attorney fees to an employer or surety under this statute. The statute clearly fulfills a remedial purpose for an injured worker or his dependent. It was not designed for or intended to result in attorney fees being awarded from one surety to another. For the reasons stated, Quest's application for an award of attorney fees is rejected.

IV. CONCLUSION

For the foregoing reasons, we affirm the Commission's decision. We remand the case to the Commission for it to calculate the amount of any reimbursement due to Quest from Aerocet.

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

      McGivney contends Aerocet failed to preserve this issue arguing that the Referee's consolidation of the cases was an interlocutory order not specifically adopted by the Commission, and therefore not appealable. However, the Commission declined to adopt the bulk of the Referee's recommendations. Instead, it authored its own decision. While the Commission did not explicitly address consolidation, it seems clear that the Commission implicitly approved consolidation of the cases. See I.C. § 72-506. Therefore, the consolidation of McGivney's two cases is properly before this Court as an order of the Commission.

      McCabe v. JoAnn Stores, Inc., 145 Idaho 91, 98, 175 P.3d 780, 786 (2007) ("The burden of proving disability in excess of impairment rests with the claimant, not the Commission.").

      The language of the statute does not support Quest's claim. For instance, the statute speaks in terms of "a claim for compensation brought by an injured employee ..." Quest's claim is not one "brought by an injured employee ..."; rather, it is a claim for contribution brought by Quest's surety. Likewise, the next portion of the statute conditions liability when "an employer or his surety neglected or refused within a reasonable time after receipt of a written claim for compensation to pay to the injured employee ...." Again, Quest's surety's claim is not that of an "injured employee." The third basis for an award of attorney fees arises when "without reasonable grounds [the surety] discontinued payment of compensation as provided by law justly due and owing to the employee ...." Once again, the statute deals with benefits "owing to the employee." Quest's surety is not an employee. It is a surety seeking contribution from another surety. The leading treatise in this field is in accord: "As to who is entitled to attorneys' fees, most statutes are phrased in terms of an award to the 'claimant' or the 'employee.' Obviously, under such a statute, third parties are not entitled to fees even though they prevail in asserting a claim against an injured worker's employer." 13 Arthur Larson et al., Larson's Workers' Compensation Law § 133.02[2][c] (2018) (footnotes omitted).