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Diana James v. Cornelius Mercea and Patricia

April 26, 2012

DIANA JAMES, PLAINTIFF-APPELLANT,
v.
CORNELIUS MERCEA AND PATRICIA
MERCEA, HUSBAND AND WIFE,
DEFENDANTS-RESPONDENTS,
AND
JOE A. LAMPHIEAR AND SUSAN M.
LAMPHIEAR, HUSBAND AND WIFE; FIRST
AMERICAN TITLE INSURANCE CO.; AND
FIRST AMERCIAN TITLE COMPANY,
INC.
DEFENDANTS.



Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Kootenai County. The Hon. John P. Luster, District Judge.

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

2012 Opinion No. 66

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

This is an appeal from a summary judgment holding that the sellers of residential real property did not violate the Idaho Property Condition Disclosure Act or commit fraud by failing to disclose to the purchaser that the public road alongside the real property was not a private driveway on the property. We affirm the judgment of the district court and award respondents attorney fees on appeal pursuant to the parties' contract.

I.

Factual Background.

The property at issue is a five-sided parcel that is roughly the shape of a rectangle situated on a southwest-northeast axis with the eastern corner cut off. North of the property is a paved, east-west road that curves to the northwest at a point that is north of the northern corner of the property. The paved road has curbing along it, and the right-of-way for the road extends beyond the curbing to the northeast property line of the parcel. That portion of the right-of-way is covered with grass and has some small trees, and the adjoining portions of the unpaved right- of-way are covered with brush and mature trees. Adjoining the property along its eastern side (the side where it would appear as if the corner of the rectangle was cut off) was a short, north- south public right-of-way that provided access from the paved road to a lot adjoining the property to the south. Another parcel was located along the east side of that short right-of-way.

In 2004, Joe and Susan Lamphiear purchased the property at issue and constructed a house upon it. They were required by the city to pave the portion of the short public right-of- way that provided access to where their garage was built on the property. The pavement they installed went from the paved roadway across the unpaved portion of that road's right-of-way and onto the public right-of-way on the east side of their property to about where their garage was located. The pavement then curved onto their property and extended to their garage.

In April of 2006, Cornelius and Patricia Mercea purchased the property from the Lamphiears. The following year, they moved to Arizona and listed the property for sale.

In March 2007, Diana James purchased the property from the Merceas. Prior to the purchase, she did not have any conversations with the Merceas, nor did they make any representations regarding the property except those contained in the property disclosure form required by the Idaho Property Condition Disclosure Act. James obtained title insurance from First American Title Insurance Company, and First American Title Company, Inc., was the closing agent.

On February 6, 2009, James filed this action against the Merceas, the Lamphiears, and First American Title Insurance Company. She later filed an amended complaint to add First American Title Company, Inc., as a defendant. James alleged that when she purchased the property, she believed that the pavement going from the paved street to her garage was entirely her private driveway and that she did not know that most of that pavement was on a public rightof-way. She also alleged that she believed a portion of an adjoining lot was also part of the property she purchased.

James alleged various claims against the Merceas. The only ones relevant to this appeal are her assertion that by failing to disclose that the pavement from the street to her garage was largely located upon a public right-of-way, the Merceas violated the Idaho Property Condition Disclosure Act and committed fraud. The Merceas filed a motion for summary judgment, which the district court initially denied. They then filed a motion for reconsideration, which the court granted. It entered a judgment dismissing all of the claims against them and certified that partial judgment as final pursuant to Rule 54(b) of the Idaho Rules of Civil Procedure. James timely appealed, and only James and the Merceas are parties to this appeal.

II.

Did the District Court Err in Denying James's Motion To Strike Portions of ...


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