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Don and Charlotte Halvorson v. North Latah County Highway District

February 2, 2011

DON AND CHARLOTTE HALVORSON, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
NORTH LATAH COUNTY HIGHWAY DISTRICT, BOARD OF COMMISSIONERS FOR THE NORTH LATAH COUNTY HIGHWAY DISTRICT; ORLANDO ARNEBERG, RICHARD HANSEN, SHERMAN CLYDE, IN THEIR OFFICIAL CAPACITIES AND IN THEIR INDIVIDUAL CAPACITIES, DAN PAYNE, IN HIS OFFICIAL CAPACITY AND IN HIS INDIVIDUAL CAPACITY, DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Second Judicial District of the State of Idaho, Latah County. Hon. Carl B. Kerrick, District Judge.

The opinion of the court was delivered by: Horton, Justice

Moscow, November 2010 Term

2011 Opinion No. 12

Stephen Kenyon, Clerk

The decision of the district court is affirmed.

Charlotte and Don Halvorson (the Halvorsons) brought this case against the North Latah County Highway District, the Board of Commissioners for the North Latah County Highway District, Commissioners Orland Arneberg, Richard Hansen, and Sherman Clyde in their individual capacities, and District Foreman Dan Payne in his official capacity and his individual capacity (collectively the Highway District). The Halvorsons own property that abuts Camps Canyon Road. In 2005, the Highway District performed maintenance on Camps Canyon Road that the Halvorsons claim damaged their property. Also in 2005, the Highway District issued a driveway permit to one of the Halvorsons' neighbors that the Halvorsons claim violated their property rights.

The Halvorsons filed a complaint which included, among other things, tort claims against the Highway District and takings and due process constitutional claims. The district court granted summary judgment in favor of the Highway District and dismissed the Halvorsons' claims. The Halvorsons have appealed. We affirm and award the Highway District costs and attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Halvorsons own property located in Latah County, Idaho. Camps Canyon Road runs through the Halvorsons' property and, in one area, acts as the border between the Halvorson property and another property. In the portion of Camps Canyon Road that divides the Halvorsons' property from their neighbors, the centerline of the road constitutes the boundary between the Halvorson property and their neighbors' property. Camps Canyon Road has existed since at least the 1930s and has been open to the public during that time. Camps Canyon Road has been maintained by the Highway District since at least 1974.

Until 1996, Camps Canyon Road was a narrow single track highway. In 1996, the Highway District met with the previous owners of the Halvorson property who agreed to allow the Highway District to straighten and widen Camps Canyon Road. The 1996 alterations involved widening the north side of Camps Canyon Road by approximately four feet. Also in 1996, those previous owners sold the property to the Halvorsons. The Halvorsons have since installed a fence on the northern side of Camps Canyon Road, which is, at points, within fifteen feet of the road's centerline. Dan Payne, the foreman for the Highway District, stated in his affidavit that "[w]hile the fence does not interfere with the public traffic on the traveled surface of Camps Canyon Road, the District's maintenance activities, primarily grading and snow removal, are affected by the fence's placement." The Halvorsons' complaints about the Highway District's activities largely relate to significant, recurring damage to this fence, which has necessitated repair.

In 2005, the Highway District began another effort to widen Camps Canyon Road by approximately four feet, this time by blasting and drilling the southern side of the road. Mr. Halvorson complained a number of times about alleged damage to his property caused by persons repairing or maintaining Camps Canyon Road.

In 2006, the Highway District granted a driveway permit to the Halvorsons' neighbor, Robert Wagner. Mr. Halvorson complained that the driveway crossed his property. After Mr. Halvorson produced a new survey of his property, Wagner submitted a second application which the Highway District approved. The Halvorsons have not complained about the second driveway permit.

On November 6, 2007, the Halvorsons filed a notice of tort claim. On March 3, 2008, the Halvorsons filed suit in district court alleging tort claims, various constitutional violations under 42 U.S.C. § 1983, and other claims including complaints under I.C. § 18-7001, the criminal statute for malicious injury to property. During this time, the Halvorsons also asked the Highway District to institute validation proceedings regarding Camps Canyon Road. They were told that if they wished to pursue a validation hearing they would need to pay $750, which the Halvorsons refused to pay.

The Halvorsons' complaint led to a year and a half of litigation, including motions for declaratory judgment, motions for reconsideration, and finally cross-motions for summary judgment. On May 11, 2009, the district court handed down an opinion granting summary judgment in favor of the Highway District. The district court found that Camps Canyon Road was a public highway and that, according to I.C. § 40-2312, the statutory width of Camps Canyon Road was fifty feet. The district court found that all of the Halvorsons' claimed damages occurred within the statutorily-prescribed right of way. The district court rejected the Halvorsons' constitutional claims, finding that there had been no taking because the Highway District acted within its statutory authority and that the Halvorsons had not been denied due process. The district court found that the Halvorsons had not been denied the opportunity to participate in a validation proceeding and that the Highway District was not required to hold a hearing prior to issuing a driveway permit. Based on I.C. § 6-905, the district court dismissed all tort claims prior to May 8, 2007, and based on I.C. § 6-904 and I.C. § 6-904B, the district court dismissed all claims against the individual defendants.*fn1 The district court dismissed the Halvorsons' remaining claims as without legal merit.

The district court subsequently granted the Highway District's motion for attorney fees and costs. The Halvorsons then appealed. Because the district court had not issued a final, appealable judgment, this Court issued a Conditional Dismissal, giving the district court twenty-one days in which to issue a final, appealable order. The district court issued a final judgment on October 6, 2010, and the Halvorsons' appeal was reinstated.

II. STANDARD OF REVIEW

"When reviewing an order for summary judgment, the standard of review for this Court is the same standard as that used by the district court in ruling on the motion." Armstrong v. Farmers Ins. Co. of Idaho, 147 Idaho 67, 69, 205 P.3d 1203, 1205 (2009) (citing Mendenhall v. Aldous, 146 Idaho 434, 436, 196 P.3d 352, 354 (2008)). Summary judgment is appropriate where "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). "This Court views the facts and inferences in the record in favor of the non-moving party." Stoddart v. Pocatello Sch. Dist. No. 25, 149 Idaho 679, ___, 239 P.3d 784, 788 (2010) (citing Evans v. Griswold, 129 Idaho 902, 905, 935 P.2d 165, 168 (1997)). Questions of law are subject to free review. Black Diamond Alliance, LLC v. Kimball, 148 Idaho 798, 801, 229 P.3d 1160, 1163 (2010).

The constitutionality of a statute is a question of law over which this Court exercises free review. Am. Falls Res. Dist. No. 2 v. Idaho Dep't of Water Res., 143 Idaho 862, 869, 154 P.3d 433, 440 (2007) (citing Moon v. N. Idaho Farmers Ass'n, 140 Idaho 536, 540, 96 P.3d 637, 641 (2004)).

Factors to be considered in determining the adequacy of process are the importance of the private interest at stake, the risk of an erroneous deprivation of rights given the processes at hand and the probable value, if any, of additional or substitute procedural safeguards, and the government's interest, "including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." LU Ranching Co. v. United States, 138 Idaho 606, 608, 67 P.3d 85, 87 (2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

III. ANALYSIS

The Halvorsons raise a variety of constitutional, statutory, and administrative arguments that the district court erred in issuing summary judgment. These assignments of error do not correspond to the district court's three part analysis, which addressed: a) the Halvorsons' common law tort claims; b) the Halvorsons' constitutional arguments; and c) the administrative issues and the Highway District's additional arguments for dismissal. Our decision treats the issues slightly differently from either approach. Because the district court granted significant portions of the summary judgment motion on alternative grounds that the Halvorsons have not addressed in this appeal, we will first identify those issues that remain after recognizing that those claims that were dismissed upon grounds which have not been appealed are waived. Second, we address the status of Camps Canyon Road, including the constitutional and administrative arguments regarding that status. Third, we discuss the width of Camps Canyon Road, the location of the alleged injuries, and the constitutional and administrative arguments regarding the road's width. Fourth, we analyze the Halvorsons' claims that the district court erred in not permitting them to amend their complaint and in its treatment of fees and costs. Finally, we address the requests for costs and fees on appeal.

A. The unappealed bases for the district court's decision.

The district court dismissed a) all claims advanced for conduct occurring prior to May 8, 2007, based on the requirement of I.C. § 6-905 that a tort claim be filed within 180 days from the date the claim arose or reasonably should have been discovered;*fn2 b) all tort claims filed against the individual defendants; c) claims based on criminal provisions and; d) claims based on a failure to train and supervise. The Halvorsons have not appealed these claims.*fn3 "[I]ssues on appeal that are not supported by propositions of law or authority are deemed waived and will not be considered." Michalk v. Michalk, 148 Idaho 224, 230, 220 P.3d 580, 586 (2009) (citing Wheeler v. Idaho Dep't of Health & Welfare, 147 Idaho 257, 266, 207 P.3d 988, 997 (2009)).

Of particular import to the Halvorsons' appeal is the fact that the Highway District's issuance of a permit for the Wagner's driveway occurred in 2005, well before the May 8, 2007

cutoff for tort claims. The Halvorsons, in their briefing, do not even cite to the provision on which the district court based its decision, I.C. § 6-905, much less offer a reason why it is inapplicable to the claims they have raised. "A general attack on the findings and conclusions of the district court, without specific reference to evidentiary or legal errors, is insufficient to preserve an issue. This Court will not search the record on appeal for error." Dawson v. Cheyovich Family Trust, 149 Idaho 375, __, 234 P.3d 699, 707 (2010) (citing Michael v. Zehm, 74 Idaho 442, 445, 263 P.2d 990, 991 ...


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