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[W] Joni Kepler-Fleenor, An Individual v. Fremont County

November 10, 2011; withdrawn and opinion filed January 24, 2012

JONI KEPLER-FLEENOR, AN INDIVIDUAL, KISTIN FLEENOR, BLUE SKY MANAGEMENT, LLC, GRANT NEIBAUR, BARBARA NEIBAUR, ART HERNING, CLAIRE HERNING, JERRY WAGEMAN, CENIA WAGEMAN, DAVID NEIBAUR, DOUGLAS NEIBAUR, LINDA NEIBAUR, FRITZ MURDOCK, PATTIE MURDOCK, DORAN WEST, CONNIE WEST, KIM WEST, KERRY WEST, RICK GREEN, KELLY GREEN, GARY KILLPACK, DIANE KILLPACK, TERRY EKBERT, LORRAINE EKBERT, RANDY STEED, DONNA STEED, JERRY NAVE, KELLY NAVE, BRAD NEIBAUR, DIANE NEIBAUR, WES FIFE, KEVIN FLEENOR, RICK KRUMENACKER, SHAUNA KRUMENACKER, BRIAN MORDAUNT, PAM MORDAUNT, STEVE AUGUSTIN, LAURIE AUGUSTIN, PLAINTIFFS-APPELLANTS,
v.
FREMONT COUNTY, DEFENDANT-RESPONDENT.



Appeal from the Seventh Judicial District of the State of Idaho, Fremont County. Hon. Gregory W. Moeller, District Judge.

The opinion of the court was delivered by: W. Jones, Justice

2011 Opinion No. 116

Stephen W. Kenyon, Clerk

The judgment is affirmed. Fees and costs are awarded to Respondent.

I. NATURE OF THE CASE

Appellants in this case contend that the district court committed error when it determined that an unnamed road in their subdivision is public by common law dedication. Because the subdivision plat unambiguously dedicates the road, the district court's ruling is affirmed.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellants are property owners in Division III of the Sawtelle Mountain Subdivision of Fremont County, Idaho. The Sawtelle Subdivision plat was created and recorded in 1994. The dispute in this case is whether a short, unnamed road on the plat has been publicly dedicated. The plat depicts a C-shaped road entering and exiting the east border of the subdivision. The sixty foot wide disputed road is shown running directly from the western apex of the C-shaped road out of the subdivision, connecting with a neighboring subdivision to the west. Although the C-shaped road does not intrude on any lots in the subdivision, the disputed road straddles two lots (the "road lots"), one of which belongs to Joni Kepler-Fleenor and Kistin Fleenor, and the other of which belongs to Blue Sky Management, LLC, all of whom are appellants in this case.

According to Appellants, heavy construction traffic heading into and out of the Stonegate Subdivision was bothersome and was damaging the disputed road. The owners of the road lots installed a berm and a gate to block traffic on the disputed road in 2005, but the County removed it in 2009, believing the disputed road to be public.

After the County removed the road obstructions, Appellants filed this lawsuit seeking a judgment declaring the road to be private. The district court granted the County's Motion for Summary Judgment, holding that the plat unambiguously shows the disputed road to be dedicated to public use. Several weeks later, Appellants filed a Motion to Reconsider along with an affidavit by Arnold W. Woolstenhume, the engineer who prepared the Sawtelle Subdivision plat, which the County moved to strike. The court denied the Motion to Reconsider and struck the Woolstenhume affidavit. It reasoned that, although it could consider new evidence presented with a Motion to Reconsider, the affidavit was still untimely under I.R.C.P. 56(c), violated the parol evidence rule, and was inadmissible speculation.

Appellants timely appealed to this Court, where they contend that the affidavit should not have been struck because they were unaware of what Woolstenhume would testify to until after the filing deadline. They also assert that the plat does not clearly dedicate the disputed road to the public, but that there is at least a question of fact as to whether the plat dedicated the road to landowners within the Sawtelle Subdivision.

III. ISSUES ON APPEAL

1. Whether the district court properly struck the affidavit of Arnold W. Woolstenhume?

2. Whether the Sawtelle Subdivision plat unambiguously dedicates the disputed road to the public?

3. Whether Fremont County is entitled to attorney's fees on appeal?

IV. STANDARD OF REVIEW

Courts are empowered to adjudicate actions for declaratory relief. I.C. §§ 10-1201, 1202. They review motions for summary judgment in such actions as they would in other civil suits. See Schneider v. Howe, 142 Idaho 767, 770-71, 133 P.3d 1232, 1235-36 (2006) (applying

I.R.C.P. 56(c) in a declaratory-relief action).

This Court applies the same standard as the district court when ruling on a motion for summary judgment. Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 890, 243 P.3d 1069, 1078 (2010). 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). When considering a motion for summary judgment, this Court liberally construes the record in a light most favorable to ...


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