Boise Tower Associates, LLC v. Hogland, No. 34333.

CourtUnited States State Supreme Court of Idaho
Writing for the CourtW. Jones
Citation215 P.3d 494,147 Idaho 774
Decision Date24 August 2009
Docket NumberNo. 34333.
PartiesBOISE TOWER ASSOCIATES, LLC, a Washington limited liability company, Plaintiff-Appellant-Cross Respondent, v. Timothy J. HOGLAND, an individual acting under color of state law, and the City of Boise, an Idaho municipality, Defendants-Respondents-Cross Appellants.
215 P.3d 494
147 Idaho 774
BOISE TOWER ASSOCIATES, LLC, a Washington limited liability company, Plaintiff-Appellant-Cross Respondent,
v.
Timothy J. HOGLAND, an individual acting under color of state law, and the City of Boise, an Idaho municipality, Defendants-Respondents-Cross Appellants.
No. 34333.
Supreme Court of Idaho, Boise, January 2009 Term.
August 24, 2009.

[215 P.3d 496]

Rossman Law Group, PLLC, Boise, for appellant. Eric Rossman argued.

Anderson Julian & Hull, LLP and Scott Muir, Boise, for respondent. Phillip Collaer argued.

W. JONES, Justice.


NATURE OF CASE

This appeal arises out of a failed condominium tower project that Boise Tower Associates (BTA) intended to build in downtown Boise, Idaho. BTA filed a lawsuit against Timothy Hogland (Hogland) and the City of Boise, alleging constitutional violations and other causes of action stemming from the

215 P.3d 497

mistaken miscalculation of BTA's building permit expiration date. The district court granted summary judgment in favor of Hogland and the City of Boise. BTA brought this appeal. We affirm in part and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

The facts of this case are largely undisputed by the parties. On November 27, 1998, BTA submitted an application to the Boise Planning and Development Services Department (PDS) for a building permit to construct the Boise Tower Project (the Project). Hogland, Director of PDS, approved BTA's application and issued the permit on May 3, 2000.

Under the applicable building regulations found in the 1994 Uniform Building Code (UBC), the permit would expire if work authorized by such permit was suspended or abandoned for a period of 180 days. For two years minimal work was performed on the Project. The last date that work was performed was on May 15, 2002, when concrete was poured for the foundation. Accordingly, BTA's permit was set to expire on November 11, 2002, which would have been 180 days after the last day work was performed on the Project. However, PDS's records incorrectly indicated that May 3, 2002 was the last date that BTA had performed work on the Project. According to PDS, the permit was therefore set to expire on November 3, 2002.

On November 7, 2002, Hogland received a letter from M.A. Mortenson, BTA's construction contractor, notifying PDS that work would commence that day. Under the mistaken notion that the permit expired on November 3, 2002, an inspector for the City of Boise issued a stop-work order to BTA and notified it that the site was to remain as-is until Hogland could meet with BTA and agree on a course of action.

On November 13, 2002, Hogland met with representatives from BTA and Mortensen to discuss a course of action. Rick Peterson (Peterson), the managing member of BTA, tried to convince Hogland that the permit had not yet expired, but Peterson did not provide Hogland with any supporting evidence that BTA had worked on the Project on May 15, 2002. At that meeting, Hogland told BTA that to move forward and continue work under the permit BTA would have to enter into a written stipulation agreement. One condition of the stipulation agreement required BTA to provide a letter from a lending institution indicating a commitment of full financing within 60 days from the date of the agreement or the permit would be deemed expired.

BTA alleges that Hogland told Peterson if BTA did not sign the stipulation agreement that day, Hogland would tell the Boise City Council at their meeting that night that BTA's permit had expired. Peterson protested, arguing that his attorney advised him not to sign the stipulation agreement. However, BTA believed that if Hogland publicly announced that the permit was expired, it would jeopardize financing and lead to the demise of the Project. On November 15, 2002, Hogland received a letter from BTA stating that Peterson had signed the stipulation agreement. Thereafter, Peterson and his attorney suggested revisions to the agreement. The agreement was revised and signed again by Peterson and Hogland on November 19, 2002.

BTA did not satisfy the stipulation agreement condition requiring it to provide a commitment letter within the agreed-upon 60 day time period. Hogland agreed to grant an extension to BTA. On January 22, 2003, the parties entered into an addendum to the stipulation agreement, which extended the time by which BTA was required to provide a commitment letter to February 4, 2003. BTA failed to provide a commitment letter to Hogland by that date.

On February 11, 2003, Hogland notified BTA that its permit had expired because BTA failed to meet its obligations under the stipulation agreement and addendum. BTA requested a hearing on the matter and Hogland allegedly denied the request.

On February 19, 2003, BTA sent a letter to Hogland and the City of Boise, requesting an appeal to the Board of Appeals pursuant to Boise Municipal Code § 4-02-05 and UBC § 105.1. The letter stated that in the event

215 P.3d 498

the Board of Appeals did not have jurisdiction to hear the matter, the letter was to be considered notice that BTA was appealing to the City Council. The record reflects that the Board of Appeals did not hear the matter, although it is unclear why that procedure was not followed. Rather, a hearing on the matter was conducted before the City Council on April 1, 2003. At that hearing, BTA was represented by counsel and was allowed to present testimony and offer evidence. After the City Council heard BTA's evidence, it found that Hogland mistakenly calculated BTA's permit expiration date. The City Council reinstated BTA's permit on April 9, 2003.

BTA filed a complaint against Hogland and the City of Boise on November 2, 2004, claiming that negative publicity from the miscalculation of the expiration date of the building permit led to cancellation of a number of pre-sale condominium purchase agreements and caused the withdrawal of financing commitments, ultimately leading to the Project's failure. BTA brought various causes of action, including in relevant part: (1) intentional interference with contract and intentional interference with prospective economic gain, (2) vicarious liability of the City of Boise for Hogland's tortious actions, (3) violation of 42 U.S.C. § 1983 by Hogland and the City of Boise, (4) a regulatory taking without just compensation by the City of Boise in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 13 and 14 of the Idaho Constitution, and (5) violation of BTA's procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Idaho Constitution.

Hogland and the City of Boise filed an answer, raising various affirmative defenses, including that "some or all [state law] claims are either barred or limited by the Idaho Tort Claims Act." The record is unclear whether BTA complied with the notice provisions of the Idaho Tort Claims Act.

During the course of preparing for litigation, Hogland stated in an affidavit that he was "concerned about the safety of the BTA construction site because it was an open pit in the middle of downtown Boise." He stated that he issued the stop-work order because he believed BTA's permit had expired and his actions "were intended to address what [he] believed to be the significant risk to the public and adjacent buildings of the site, given the width and depth of the excavated pit and exposed reinforcing bar, foundation, and concrete columns."

The parties filed cross-motions for summary judgment. The district court granted summary judgment on BTA's § 1983 claim in favor of the City of Boise, finding that it was immune from suit, and Hogland, finding that he was entitled to qualified immunity. The court did not address the takings or tort claims in its summary judgment order. The court denied Hogland and the City of Boise's request for attorney fees and granted their motion for costs.

BTA filed a timely appeal raising the following issues: (1) whether Hogland acted ultra vires in entering into the stipulation agreement and whether it is void for lack of consideration, (2) whether Hogland and the City of Boise violated BTA's procedural due process rights and are liable under 42 U.S.C. § 1983, (3) whether questions of fact preclude summary judgment on BTA's takings claims, and (4) whether questions of fact preclude summary judgment on BTA's tort claims against Hogland.

Hogland and the City of Boise filed a timely cross-appeal on the issue of attorney fees below and request costs and fees on appeal.

ISSUES ON APPEAL

Appellant raises the following issues on appeal:

1. Whether Hogland acted ultra vires in entering into the stipulation agreement and whether it is void for lack of consideration?

2. Whether Hogland and the City of Boise violated BTA's procedural due process rights and are liable under 42 U.S.C. § 1983?

3. Whether the district court properly granted summary judgment on BTA's takings claims?

215 P.3d 499

4. Whether the district court properly granted summary judgment on BTA's tort claims against Hogland?

Respondents raise the issue of whether the district court abused its discretion in denying Respondents' motion for attorney fees below. Respondents request attorney fees on appeal.

STANDARD OF REVIEW

On appeal from the grant of a motion for summary judgment, this Court's standard of review is the same as the standard used by the district court originally ruling on the motion. P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 237, 159 P.3d 870, 874 (2007). Summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c).

The burden of establishing the absence of a genuine issue...

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42 practice notes
  • T3 Enters., Inc. v. Safeguard Bus. Sys., Inc., Docket No. 45093
    • United States
    • Idaho Supreme Court
    • 21 Febrero 2019
    ...district 164 Idaho 750435 P.3d 530 court reached the correct outcome and is therefore affirmed. See Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 782, 215 P.3d 494, 502 (2009) ("Where the lower court reaches the correct result by an erroneous theory, this Court will affirm the order ......
  • Phillips v. Montgomery Cnty., No. M2012–00737–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • 18 Agosto 2014
    ...(1995) ; Leone v. Cnty. of Maui, 128 Hawai‘i 183, 284 P.3d 956, 962–66 (Haw.Ct.App.2012) ; Boise Tower Assocs., L.L.C. v. Hogland, 147 Idaho 774, 215 P.3d 494, 503–04 (2009) ; N. Ill. Home Builders Ass'n v. Cnty. of Du Page, 165 Ill.2d 25, 208 Ill.Dec. 328, 649 N.E.2d 384, 388 (1995) ; Stat......
  • T3 Enters., Inc. v. Safeguard Bus. Sys., Inc., Docket No. 45093
    • United States
    • United States State Supreme Court of Idaho
    • 21 Febrero 2019
    ...below, the district 435 P.3d 530court reached the correct outcome and is therefore affirmed. See Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 782, 215 P.3d 494, 502 (2009) ("Where the lower court reaches the correct result by an erroneous theory, this Court will affirm the order on ......
  • State v. Ahmed, Docket No. 47521
    • United States
    • United States State Supreme Court of Idaho
    • 4 Agosto 2021
    ...(quoting Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ); see also Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 780, 215 P.3d 494, 500 (2009) ("The right to procedural due process is secured by the Fifth Amendment to the United States Constitution, as a......
  • Request a trial to view additional results
42 cases
  • T3 Enters., Inc. v. Safeguard Bus. Sys., Inc., Docket No. 45093
    • United States
    • Idaho Supreme Court
    • 21 Febrero 2019
    ...district 164 Idaho 750435 P.3d 530 court reached the correct outcome and is therefore affirmed. See Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 782, 215 P.3d 494, 502 (2009) ("Where the lower court reaches the correct result by an erroneous theory, this Court will affirm the order ......
  • Phillips v. Montgomery Cnty., No. M2012–00737–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • 18 Agosto 2014
    ...(1995) ; Leone v. Cnty. of Maui, 128 Hawai‘i 183, 284 P.3d 956, 962–66 (Haw.Ct.App.2012) ; Boise Tower Assocs., L.L.C. v. Hogland, 147 Idaho 774, 215 P.3d 494, 503–04 (2009) ; N. Ill. Home Builders Ass'n v. Cnty. of Du Page, 165 Ill.2d 25, 208 Ill.Dec. 328, 649 N.E.2d 384, 388 (1995) ; Stat......
  • T3 Enters., Inc. v. Safeguard Bus. Sys., Inc., Docket No. 45093
    • United States
    • United States State Supreme Court of Idaho
    • 21 Febrero 2019
    ...below, the district 435 P.3d 530court reached the correct outcome and is therefore affirmed. See Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 782, 215 P.3d 494, 502 (2009) ("Where the lower court reaches the correct result by an erroneous theory, this Court will affirm the order on ......
  • State v. Ahmed, Docket No. 47521
    • United States
    • United States State Supreme Court of Idaho
    • 4 Agosto 2021
    ...(quoting Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ); see also Boise Tower Assocs., LLC v. Hogland , 147 Idaho 774, 780, 215 P.3d 494, 500 (2009) ("The right to procedural due process is secured by the Fifth Amendment to the United States Constitution, as a......
  • Request a trial to view additional results

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