Read v. Harvey, 34336.

• Decision Date: 29 May 2009
• Docket Number: No. 34336.,34336.
• Citation: 147 Idaho 364,209 P.3d 661
• Parties: Robert C. READ and Alexis M. Read, Plaintiffs-Respondents, v. Jennifer HARVEY, Defendant-Appellant.
• Court: Idaho Supreme Court

209 P.3d 661

147 Idaho 364

Robert C. READ and Alexis M. Read, Plaintiffs-Respondents, v. Jennifer HARVEY, Defendant-Appellant.

No. 34336.

Supreme Court of Idaho, Coeur d'Alene, April 2009 Term.

May 29, 2009.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for appellant. Scott Campbell argued.

Dean & Kolts, Coeur d'Alene, for respondents. Charles Dean Jr. argued.

HORTON, Justice.

This is a boundary line dispute. Appellant Jennifer Harvey (Harvey) appeals the district court's decision quieting title in favor of her neighbors, Respondents Robert and Alexis Read (the Reads), and setting the boundary between their respective properties at the centerline of a creek that flows through a route, known as channel C to channel A, which lies to the west of where Harvey believes the boundary should be located. We affirm the district court's decision quieting title in favor of the Reads, requiring Harvey to pay for a survey of the boundary, and awarding the Reads attorney fees. In addition, we deny Harvey's motion to strike portions of the Reads' appellate brief and award the Reads attorney fees on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Harvey and the Reads own adjacent properties that were originally part of a larger tract owned by Dick and Nancy Andersen (the Andersens). In 1972, the Andersens sought the help of real-estate broker Jerry VanOoyen (VanOoyen) to divide and sell their property as fourteen separate parcels. The Andersens' property was traversed by a watercourse known as Little Gold Creek, the main tributary to Gold Creek, and VanOoyen recommended that Little Gold Creek be designated as the boundary between eleven of the fourteen parcels. Later that year, the Andersens sold some of their land to Frank Boss (Boss), Harvey's predecessor in interest. The boundary description in the deed between the Andersens and Boss describes the boundary between what is now Harvey's property and what is now the Reads' property as being "the centerline of the main tributary to the creek."

That tributary presently flows from the north to the southwest, then back towards the southeast through a route that has come to be known as channel C to channel A. Channel B does not contain flowing water; however, if it did, the water would flow more directly to the south, rather than flowing to the west and then back to the east as do channels C and A, eventually joining up with the creek as it presently flows. The Reads claim that since 1972 the creek has flowed where it presently does, to the west of channel B, through channels C and A, and that the parties to the Andersen/Boss deed intended the centerline of the C to A course to be the boundary. Accordingly, the Reads filed a quiet title action in 1999. Harvey answered and counterclaimed, arguing that the parties to the 1972 deed were not referencing the wet creek that flowed through channels C and A at the time, but rather the dry historical bed of the creek, which, she argued, lay to the east of channels C and A and even B. The district court granted summary judgment in favor of the Reads, and the Idaho Court of Appeals affirmed that decision. In Read v. Harvey, 141 Idaho 497, 112 P.3d 785 (2005), upon a petition for review, we reversed and remanded the case to the district court because we found that there was a genuine issue of material fact as to whether the parties to the 1972 deed intended the wet creek or rather the historical dry bed to be the boundary.

At trial, Harvey changed her position. She conceded that the parties to the deed intended the wet creek to be the boundary, but argued that in 1972 the creek flowed to the east of channels C and A and that alteration by the Reads after 1972 caused the creek to flow where it presently does, through channels C and A. After a three-day trial, the district court again quieted title in favor of the Reads, setting the boundary at the course of channels C and A. The court ordered Harvey to pay for a survey of the boundary and awarded the Reads attorney fees incurred after October 3, 2005, the date of Harvey's responses to the Reads' first set of requests for admission, pursuant to I.R.C.P. 37.

Harvey timely appeals. After the Reads filed their brief with this Court, Harvey moved to strike several portions of it. We ordered that we would take the motion under advisement and issue a ruling in this opinion. The Reads request attorney fees on appeal.

II. STANDARD OF REVIEW

Review of a trial court's decision is limited to ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law. Benninger v. Derifield, 142 Idaho 486, 488-89, 129 P.3d 1235, 1237-38 (2006) (citing Alumet v. Bear Lake Grazing Co., 119 Idaho 946, 949, 812 P.2d 253, 256 (1991)). Since it is the province of the trial court to weigh conflicting evidence and testimony and to judge the credibility of the witnesses, this Court will liberally construe the trial court's findings of fact in favor of the judgment entered. Rowley v. Fuhrman, 133 Idaho 105, 107, 982 P.2d 940, 942 (1999) (citing Sun Valley Shamrock Res., Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990)). A trial court's findings of fact will not be set aside on appeal unless the findings are clearly erroneous. Ransom v. Topaz Mktg., L.P., 143 Idaho 641, 643, 152 P.3d 2, 4 (2006) (citing Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 856, 55 P.3d 304, 310 (2002); Bramwell v. South Rigby Canal Co., 136 Idaho 648, 650, 39 P.3d 588, 590 (2001); I.R.C.P 52(a)). If the findings of fact are based upon substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. Benninger, 142 Idaho at 489, 129 P.3d at 1238 (citing Hunter v. Shields, 131 Idaho 148, 151, 953 P.2d 588, 591 (1998)). This Court will not substitute its view of the facts for that of the trial court. Ransom, 143 Idaho at 643, 152 P.3d at 4 (citing Bramwell, 136 Idaho at 648, 39 P.3d at 588).

III. ANALYSIS

Harvey argues that the district court erred as a matter of law in ruling that the existence of water in channel A in 1972 constituted the law of the case and in relying on the testimony of VanOoyen to establish the intent of the parties to the Boss/Andersen deed. She also contends that there is not substantial, competent evidence that channel C existed or that channel A carried water in 1972. Harvey further argues that the district court erred in ordering her to pay for the boundary survey and awarding the Reads attorney fees. Finally, Harvey asks this Court to strike the portions of the Reads' brief that she considers unprofessional. The Reads request attorney fees on appeal. We address these issues in turn.

A. The district court's initial ruling that the existence of water in channel A was the law of the case is not reversible error.

Harvey contends that the district court erred when it stated that the existence of water in channel A in 1972 was the law of the case and as a consequence refused to consider evidence suggesting otherwise. On the first day of trial, the district court stated: "I think it is the law of the case that water flowed in Channel A in 1972, and I think that is reiterated by the Supreme Court ... If anybody's expert comes in here and tells me the water wasn't flowing in A, that's tough because that's been established." In its memorandum decision issued after conclusion of trial, the district court reversed itself, stating:

The Idaho Supreme Court's finding that channel A "... has consistently during the times in question carried water," is not "the law of the case," but a finding of fact by the Idaho Supreme Court which is not binding on this Court. However, it is a finding of fact which is supported by all the evidence.

(Emphasis original.) We recognize that this corrective statement came only at the conclusion of the proceedings below and that during the trial the court may have been disinclined to consider evidence contradicting this Court's earlier statement. However, I.R.E. 103(a) states in relevant part that:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Harvey fails to identify any instance in the record where the district court refused to admit evidence that tended to show that water was not flowing in channel A in 1972. Further, the record reflects that Harvey did not make "the substance of the evidence" which she did not offer known to the district court. Perhaps most significantly, in the argument before the district court on this subject, counsel for Harvey informed the district court: "We're not disputing that water was flowing in Channel A. However, that was not the source of water from Little Gold Creek. That water was water from draining the subsurface ground water to allow that particular area to be farmed." On this record, we conclude that the district court's initial confusion regarding the law of the case doctrine is not a basis for reversal.

In conjunction with this argument, Harvey also contends for the first time on appeal that testimony in the record from VanOoyen and Boss establishes that channel A did not carry water in 1972 and that the district court's finding to the contrary was thus "an exercise of what can only be described as willfully obtuse reasoning." We need not address this issue because Harvey raises it for the first time on appeal. Johannsen v. Utterbeck, 146 Idaho 423, 429, 196 P.3d 341, 347 (2008). Although this contention is not properly before this Court for consideration on appeal, we will address it because it is based upon a distortion of the evidence presented at trial and because it is relevant to our decisions regarding attorney fees. See Parts III.E and III.F, infra...