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Akers v. D.L. White Construction, Inc.

Supreme Court of Idaho

February 7, 2014

DENNIS LYLE AKERS and SHERRIE L. AKERS, husband and wife, Plaintiffs-Respondents,
D.L. WHITE CONSTRUCTION, INC., DAVID L. WHITE AND MICHELLE V. WHITE, husband and wife, Defendants-Appellants, and VERNON J. MORTENSEN and MARTI E. MORTENSEN, husband and wife, Defendants

As corrected May 5, 2014.

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[Copyrighted Material Omitted]

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2014 Opinion No. 5

Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

The judgment of the district court is affirmed in part, vacated in part, and remanded for apportionment of attorney fees.

Robert Covington, Hayden, for appellants.

James, Vernon & Weeks, P.A., Coeur d'Alene, for respondents. Susan P. Weeks argued.

HORTON, Justice. Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, CONCUR.


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[156 Idaho 40] HORTON, Justice.

This appeal arises from a bench trial concerning an easement and trespass dispute. David and Michelle White, and D.L. White Construction, Inc. appeal from the district court's judgment regarding the scope and location of the Whites' easement across Dennis and Sherrie Akers' property and the district court's award of compensatory and punitive damages for trespass and emotional distress. We affirm the district court's judgment locating the easement and awarding damages, but remand the case for apportionment of attorney fees.


This is the third time this case has appeared before this Court. Following a bench trial, this Court heard the first appeal in 2005 and issued Akers v. D.L. White Const., Inc., 142 Idaho 293, 127 P.3d 196 (2005) ( Akers I ). After remanding the case to the district court in Akers I, it again came before this Court in 2008 and we issued Akers v. Mortensen, 147 Idaho 39, 205 P.3d 1175 (2009) ( Akers II ), which remanded the matter for

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[156 Idaho 41] additional fact finding. Previous appeals in this matter included two additional parties, Vernon and Marti Mortensen. However, the Mortensens have chosen to appeal the district court's findings and conclusions on second remand separately. Nonetheless, this opinion refers to the Whites, D.L. White Construction, Inc., and the Mortensens collectively as " Appellants."

The facts of this case are set out in detail in Akers I and supplemented by Akers II. However, the essential facts necessary to resolve the issues before the Court in this third appeal are as follows. There are three parcels of real property involved in this case: (1) Government Lot 2; (2) Parcel A; and, (3) Parcel B that all come together at a four-way corner, the section 19/24 corner.

Government Lot 2 is located to the northeast, and Parcel B is to the northwest. The Akers own the southwestern corner of Government Lot 2 and the southeastern corner of Parcel B. Parcel A is located to the southwest and much of Parcel A, including that adjoining Parcel B, is owned by the Whites. The Mortensens own a portion of Parcel A located to the south of that owned by the Whites. The Reynolds Property[1] is located to the southeast.

Akers II, 147 Idaho at 42, 205 P.3d at 1178.

Government Lot 2 is bisected roughly north to south by a county road, Millsap Loop Road. [The Whites] hold an easement for ingress and egress to Millsap Loop Road across portions of the Akers' property. Because the properties meet at a four-way corner, Parcel A and Government Lot 2 do not actually share a border. It is therefore physically impossible to access Parcel A from Millsap Loop Road in Government Lot 2 without also passing through some other property.

Id. The " other property" is the southwest corner of Parcel B, owned by the Akers. It is the route of passage though Parcel B where the Whites have a prescriptive easement that is the subject of this third appeal.

At one time, all of the real property at issue in this case was owned by W.L. Millsap. Around 1966, and possibly much earlier, an access road matching the general contours of the easement at issue in this case ran from Millsap Loop Road, westward across the southern part of Government Lot 2. The road then went beyond the western boundary of Government Lot 2 into Parcel B, and then turned south into Parcel A. The Millsaps sold Parcel A to the Peplinskis in 1967. The deed expressly conveyed with Parcel A an easement across Government Lot 2. During the Peplinskis' ownership of Parcel A, they used the access road in the same manner as the Millsaps had used it.

The Akers purchased their property in 1980, the deed to which provides that they took the land subject to " easements of record or in view." Akers I, 142 Idaho at 297, 127 P.3d at 200.

After the Akers moved onto their property, they altered the route of the access road at its eastern end where it connects to Millsap Loop Road. Rather than meeting Millsap Loop Road after a sharp turn to the north as before, (the original approach) the altered approach (the curved approach) starts to turn earlier and curves more gently to the north before meeting the county road. Both the original and curved approaches to the access road are on a triangle of land (the triangle) the ownership of which has been disputed .... [T]he Peplinskis[2] sold their property, Parcel A, to the Mortensens. The Mortensens later sold much of Parcel A, including the portion adjacent to Parcel B, to the Whites.
According to later findings by the district court, the Whites and the Mortensens entered into a business relationship in which they planned to split their land in Parcel A into smaller lots to create a housing development. The court found that in order to accommodate their projected housing development, the Appellants also planned to widen the access road that

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[156 Idaho 42] crossed the Akers' property and connected the Appellants' land to Millsap Loop Road.
In January 2002 or before, the Akers blocked the Appellants' use of the curved approach to the access road and also forbid the Appellants to travel on the western end of the access road, where it passes through Parcel B before connecting to the Appellants' property in Parcel A. The Appellants then brought in heavy equipment, including a bulldozer, to carve a route around the Akers' gate and to otherwise alter the access road. This led to a series of confrontations between the Akers and the Appellants, as well as alleged damage to the Akers' property and alleged malicious behavior by the Appellants.
In response, the Akers filed [suit] for trespass, quiet title, and negligence.

Id. at 297-98, 127 P.3d at 200-01.

Following a bench trial, the district court quieted title in favor of the Akers to the triangle area and granted the Whites an easement 12.2 feet in width through Government Lot 2. This included an easement across the disputed triangle through the original approach, but not the curved approach, to Millsap Loop Road. However, the district court determined that the easement ended at the western boundary of Government Lot 2 and did not cross the section line into Parcel B. As a result, the easement was ruled to run from Millsap Loop Road to a point very close to, but not actually reaching, the Whites' property.

The district court also awarded the Akers damages arising from the Appellants' trespass in the amount of $17,002.85, which was trebled pursuant to I.C. § 6-202 to a total of $51,008.55, to be paid by the Appellants jointly and severally. Sherrie Akers was awarded $10,000 in compensatory damages for emotional distress, also to be paid jointly and severally by the Appellants. Additionally, the Akers were awarded punitive damages in the amount of $150,000 to be paid by the Mortensens, and $30,000 to be paid by the Whites. Finally, the Appellants were determined to be jointly and severally liable to the Akers for costs and attorney fees totaling $105,534.06.

Id. at 298, 127 P.3d at 201.

In Akers I, this Court affirmed the district court's decision to quiet title to the triangle in favor of the Akers and also affirmed the district court's conclusion that the Whites have an express easement by reservation, 12.2 feet in width, through the southern portion of Government Lot 2, including through the triangle. However the matter was remanded for additional fact finding to determine if the Whites had a prescriptive easement though parcel B.

On first remand, the district court concluded that the Whites had a prescriptive easement 12.2 feet wide though Parcel B. In locating the easement, the district court found that the prescriptive easement turned immediately south, at ninety degrees, upon crossing section line 24 and entering Parcel B. The district court's decision regarding the scope and location of the prescriptive easement was appealed.

In Akers II, this Court found that the district court's conclusion that the road immediately turned at a ninety degree angle after crossing section line 24 was not supported by substantial and competent evidence. As a result, we remanded the case for " additional fact finding" in order to precisely determine the route of the Whites' prescriptive easement through Parcel B. However, we affirmed the district court's conclusion that the width of the prescriptive easement was 12.2 feet. We vacated the district court's judgment as to the location of the prescriptive easement, the award of damages, and the award of attorney fees and costs.

The remittitur was issued in Akers II on April 25, 2009. Thereafter, the district court ordered that each party submit briefing regarding the location of the prescriptive easement. The Whites submitted their Brief of Defendants White Re: Section 24 Easement Location on March 29, 2010. The Akers submitted their brief regarding the location of the easement on June 17, 2010. Additionally, on June 30, 2010, the Whites submitted a Motion to Admit Additional Evidence Re: Easement Location asking the court to admit

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[156 Idaho 43] newly discovered evidence relating to the location of the prescriptive easement. This motion was filed the day before the parties were scheduled to appear before the district court for oral argument as to the proper location of the easement. The Whites did not notice the motion for hearing. The additional evidence was two aerial photographs of the easement area taken in 1975 and 1982, respectively. Also on June 30, Mike Hathaway[3] submitted an affidavit that included higher resolution images of the two aerial photographs the Whites sought to introduce.

After waiting almost three months for the Whites to bring their motion before it for hearing, the district court determined that it would wait no longer, and on September 29, 2010, the district court issued its Memorandum Decision, Findings of Fact, Conclusions of Law and Order Re: Easement Location. The district court noted that easement width was not an issue on remand because in Akers II this Court affirmed the district court's finding that the width of the prescriptive easement was 12.2 feet. The district court held that the location of the easement was properly illustrated by a survey map prepared by Scott Rasor[4] and offered by the Akers. The Rasor map depicts the easement immediately bending to the south after entering Parcel B.

Following the district court's conclusion that the Rasor map represented the precise location of the prescriptive easement, the court initiated the damages phase of the second remand. On November 19, 2010, oral argument on the issue of damages was scheduled for January 26, 2011. The Whites waited until January 25, 2011, before first requesting that the court address their request to present additional evidence. The district court issued its Memorandum Decision and Order on Remand Re: Damages, and Order Denying Whites' Motion for Additional Evidence on Easement Location on March 18, 2011. The court's decision reflects understandable frustration with the dilatory manner in which the Whites had proceeded on their motion to admit additional evidence. However, the district court did not deny the motion on the basis of the Whites' delay. Rather, the district court addressed the motion on the merits, holding that the Whites did not cite valid authority that would permit the court to consider additional evidence on remand. The district court reinstated all damage awards originally assessed against the Whites in the court's original judgment and held all defendants jointly and severally liable for the Akers' damages awards, with the exception of the punitive damage awards, because it found that Appellants were acting in concert under I.C. § 6-803 by pursuing a common plan that resulted in the commission of an intentional tortious act.

The district court issued its final judgment on August 10, 2011. The court ordered: (1) compensatory damages of $17,002.85 for trespass, trebled to $51,008.55 pursuant to I.C. § 6-202; (2) compensatory damages of $10,000 to Sherri Akers for infliction of emotional distress; (3) punitive damages against Vernon and Marti Mortensen in the amount of $150,000; (4) punitive damages against David and Michelle White in the amount of $30,000; and (5) attorney fees of $105,534.06.


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. 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. A trial court's findings of fact will not be set aside on appeal unless the findings are clearly erroneous. If the findings of fact are based upon substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. This Court will not substitute its view of the facts for that

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[156 Idaho 44] of the trial court. The findings of the trial court on the question of damages will not be set aside when based upon substantial and competent evidence.

Akers II, 147 Idaho at 43-44, 205 P.3d at 1179-80 (citations omitted). Additionally, " [t]his Court freely reviews the interpretation of a statute and its application to the facts." St. Luke's Reg'l Med. Ctr., Ltd. v. Bd. of Comm'rs of Ada ...

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