Energy Consulting & Management Solutions, LLC v. Western States Equipment Co.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 21 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ENERGY CONSULTING & No. 12-35858 MANAGEMENT SOLUTIONS, LLC, a Nebraska limited liability company, D.C. No. 1:11-cv-00045-EJL-REB

Plaintiff-counter-defendant-Appellant,

v. MEMORANDUM*

WESTERN STATES EQUIPMENT CO.,

an Idaho corporation,

Defendant-counter-claimant-Appellee.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted February 7, 2014 Seattle, Washington

Before: GOULD and CHRISTEN Circuit Judges, and KOBAYASHI, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. Plaintiff-counter-defendant-Appellant Energy Consulting & Management

Solutions, LLC (“Energy Consulting”) appeals the district court’s grant of

summary…

concurring in part and dissenting in part:

I join Parts I and II.A of the memorandum disposition. However, I respectfully dissent from Part II.B, the majority’s af-firmance of the district court’s award of attorneys’ fees to Western States under Idaho Code § 12-120 (3). In sum, I would affirm the district court’s grant of summary judgment, but reverse in full the *768 award of attorneys’ fees to Western States.

Section 12-120(3) requires a court to grant attorneys’ fees to a prevailing party in litigation over a commercial transaction but only applies where the parties to the litigation are the same as the parties to the commercial transaction at issue. Printcraft Press, Inc. v. Sunnyside Park Utilities, Inc., 158 Idaho 440 , 283 P.3d 757, 778-79 (2012) (“[0]nly the parties to the commercial transaction are entitled to attorney fees under I.C. § 12-120(3).”). Here, Western States entered into a commercial transaction with Renova, and Energy Consulting entered into a commercial transaction with Renova’s bankruptcy trustee and liquidating trust, but Western States and Energy Consulting never directly engaged in a commercial transaction between themselves. See Great Plains Equip.,…

MEMORANDUM **

Plaintiff-counter-defendant-Appellant Energy Consulting & Management Solutions, LLC (“Energy Consulting”) appeals the district court’s grant of summary judgment and award of attorneys’ fees in favor of Defendant-counter-claimant-Appellee Western States Equipment Co. (“Western States”). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I. The Award of Summary Judgment

First, Energy Consulting challenges the district court’s award of summary judgment in favor of Western States based on the court’s finding that, under 11 U.S.C. § 365 , any rights attendant to the July 2007 purchase order between nonparty Re-nova Energy (ID) LLC (“Renova”) and Western States (“the Purchase Order”) were not transferred into the REID Liquidating Trust (“the Trust”). “We review the district court’s grant of summary judg *765 ment de novo.” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1090 (9th Cir.2013) (citation omitted). We review the district court’s findings of fact for clear error, and we review the district court’s conclusions of law de novo. Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087 (9th Cir.2011). “In determining whether genuine issues of…