Powell v. Sellers
| Decision Date | 05 May 1997 |
| Docket Number | No. 22580,22580 |
| Citation | 937 P.2d 434,130 Idaho 122 |
| Parties | Neal K. POWELL and Dianne B. Powell, husband and wife, Plaintiffs-Counterdefendants-Appellants-Cross Respondents, v. Kenneth W. SELLERS, a single man; Robert Sellers and Robyn L. Sellers, husband and wife, Defendants-Respondents, and Orville Durrant and Fay Durrant, husband and wife; Duane Durrant, a single man; Bobby Wayne Whitehead and Linda Ann Whitehead, husband and wife, Defendants-Counterclaimants-Respondents-Cross Appellants. |
| Court | Idaho Court of Appeals |
Kerr Law Office, Blackfoot, for appellants. Robert M. Kerr, Jr. argued, Blackfoot.
Whittier, Souza and Clark, Chtd., Pocatello, for respondents-Sellers. John Souza argued, Pocatello.
In this case we are asked to review a number of rulings by the district court. After a review of the record and applicable law, we affirm.
This is a consolidated case, that originated as four separate proceedings, and involves the owners of three adjacent parcels of property. The parties agreed to settle their disputes through the construction of a new ditch to service the properties. They entered into a detailed stipulation for the construction of the ditch, which was accepted by the district court.
The stipulation provided that Neal Powell was to provide certain equipment, move sand from the southeast corner of the Durrant property to the northeast corner of the same property for use as the ditch pad, and construct the ditch pad as described in the stipulation. After Powell constructed a ditch pad, Kenneth Sellers was to construct a ditch on the pad provided by Powell and work with Bingham County for the placement of a culvert. The Sellers 1 agreed to pay Powell $1000. The Durrants 2 agreed to provide an easement across their property for the ditch and to install two headgates. The Durrants also agreed to pay Powell $500.
The stipulation provided that construction of the new ditch pad was to begin by December 1, 1993. The new ditch was to be completed by March 15, 1994. An existing ditch was to remain in place and open until September 15, 1994. The stipulation provided for attorney fees to the prevailing party in an action to enforce the agreement.
In December 1993, Powell attempted to start the ditch pad project, but his tractor was not functioning properly. On March 2, 1994, he began the job, but the tractor was still not functioning properly. Powell then contacted Will Cagle and hired him to complete the ditch pad. Cagle finished placing the pad on March 7, 1994. The equipment used by Cagle was much bigger and heavier than the equipment specified in the stipulation.
On April 28, 1994, Powell filed a petition for a declaratory judgment. Powell asserted that the Sellers and the Durrants had failed to comply with the terms of the stipulation. Powell sought a declaration that the stipulation was still in effect, and the parties, therefore, remained bound to comply with the terms of the stipulation. Powell further sought a declaration that he was free to fill in the original ditch on his property after September 16, 1994. On June 21, 1994, the district court declared the stipulation to be effective and enjoined the Sellers and the Durrants from interfering with Powell's filling in of the original ditch on his property. The district court noted that Kenneth Sellers had not constructed the ditch as of that date, but had adequate time to do so before the September 15 date upon which Powell became authorized to fill in the original ditch. The district court determined that whether the stipulation had been breached and whether damages should be awarded were questions to be addressed in a separate proceeding. Powell's attorney filed a memorandum and affidavit in support of an attorney fee award. Kenneth Sellers, personally, and the Durrants, through counsel, objected to the requested attorney fees.
Meanwhile, the Durrants counterclaimed against Powell, alleging that Powell had damaged their property while constructing the ditch pad and further alleging that the ditch had not yet been constructed due to Powell's delay in placing the ditch pad. On September 26, 1994, the Durrants indicated that they were willing to withdraw the issue regarding the delay in placing the pad. The property damage claim went to trial, where a jury found that $5,000 of damage had been done to the Durrant property. The jury apportioned liability, finding that Powell was 80 percent responsible for the damage and that the Durrants were 20 percent responsible, and awarded the Durrants $4,000.
Powell moved for a j.n.o.v., or in the alternative for a new trial, and objected to an award of attorney fees. The district court denied the j.n.o.v. and new trial motions. The district court awarded the Durrants attorney fees attributable to the pursuance of the counterclaim and awarded Powell attorney fees related to the earlier declaratory judgment proceedings. Powell appeals, claiming over thirty errors by the trial court, and requesting attorney fees. The Durrants cross-appeal.
Over questions of law, we exercise free review. Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 613, 826 P.2d 1322, 1325 (1992); Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818 (Ct.App.1989). However, we will defer to findings of fact based upon substantial evidence. Staggie v. Idaho Falls Consol. Hosps., 110 Idaho 349, 351, 715 P.2d 1019, 1021 (Ct.App.1986).
Powell's first four issues on appeal involve the interpretation of the stipulation. The stipulation provided that the new ditch was to run from point B-2 in the northeast corner of the Durrant property, as shown on a drawing of the involved parcels, to point B-3 in the southeast corner. Powell claimed at trial that B-2 was on the northern fence line of the Durrant property, while the Durrants alleged that B-2 was actually at the Durrants' existing ditch. The relevance of this question arises because one of the ways in which the Durrants claimed that Powell harmed their property was by destroying and filling in the existing ditch in the northeast corner. Powell claims on appeal that the district court erred by failing to interpret the stipulation. Powell argues that allowing the jury to interpret the stipulation, and therefore determine where the new ditch was to end, was reversible error.
First, we note that the district court did interpret the stipulation. That interpretation was given to the jury through instruction 15, which provided, in part:
You are instructed that the construction of a written instrument, stipulation or contract is a question of law for the court to decide....
Accordingly, the court gives you the following instructions as to the terms and legal effect of the stipulation made by the parties in August, 1993.
....
It was the intention of the parties, among other things, to change the route of the Sellers' water to run through the Durrant/Sellers ditch from H-5 to the northeast corner of the Durrant property then through a new ditch from the northeast corner of the Durrant property (B-2) to a culvert across Tanner lane near the southeast corner of the Durrant property (B-3)....
....
If Powell's equipment was inoperable Powell was under a duty to render performance that was substantial.
It is for you to decide whether Powell's substituted service and/or performance was reasonable.
This instruction not only interprets the stipulation, but does so in strict compliance with Powell's demands. The instruction provides that point B-2 was in the northeast corner of the Durrant property, as Powell claims. The instruction identifies the issue for the jury as one of the reasonableness of Powell's actions on the property. Included in this question was the reasonableness of Powell's decision to fill in the existing ditch. Powell's assignments of error regarding the interpretation of the stipulation are without merit. 3
Powell claims that the district court made several errors in instructing the jury. The question of whether the jury has been properly instructed is a question of law over which we exercise free review. Needs v. Hebener, 118 Idaho 438, 441, 797 P.2d 146, 149 (Ct.App.1990). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect the applicable law. L & L Furniture Mart, Inc. v. Boise Water Corp., 120 Idaho 107, 110, 813 P.2d 918, 921 (Ct.App.1991).
Powell claims that the district court should not have given instruction 17, regarding Powell's ability to alter the portion of the ditch which ran across his property. Powell claims that the district court should, instead, have given Powell's proposed instruction 15, which provided that Powell could alter the flow of the ditch on his property, so long as it did not place an unreasonable burden on the Durrants. We agree that it would have been preferable for instruction 17 to include the term "reasonable." As noted above, however, given instruction 15 clearly states that the jury was to determine the reasonableness of Powell's actions. Hence, the instructions, taken as a whole, adequately cover this point. Further, the Durrants did not claim that the Powell's action in raising his own ditch caused them damage. Rather, they argued that Powell caused damage to their property while negligently moving sand to construct the ditch.
Powell claims that the district court erred in instructing the jury regarding the substitution of equipment, rental cost, and crop loss. After a thorough review of the instructions provided, we conclude that the instructions fairly and accurately reflect the applicable law on these points. Powell's assignment of error in this regard lacks merit.
Powell contends that the court clerk mishandled the exhibits. Specifically he claims that three of his exhibits, which had been admitted, were not provided to the jury....
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