STEVEN B. CUMMINGS, an individual residing in Utah, Plaintiff-Appellant,
ROGER L. STEPHENS, an individual residing in Providence, Utah; and JOHN DOES, I-X, Defendants, and NORTHERN TITLE CO. OF IDAHO, INC., an Idaho Corporation; Defendant-Respondent.
Opinion No. 97
from the District Court of the Sixth Judicial District of the
State of Idaho, Bear Lake County. Hon. David C. Nye, District
judgment of the district court is affirmed.
Petersen Moss Hall & Olsen, Idaho Falls, for appellant.
Nathan Olsen argued.
Bearnson & Caldwell, LLC, Logan, Utah, and Racine, Olson,
Nye, Budge & Bailey, Chtd., Pocatello, for respondent.
Aaron K. Bergman argued.
2013, Steven Cummings prevailed against Northern Title
Company of Idaho, Inc. (Northern Title) in proceedings before
the district court and was awarded attorney fees and costs.
Northern Title appealed, and this Court reversed the
judgment. Cummings v. Stephens, 157 Idaho 348, 367,
336 P.3d 281, 300 (2014) (Cummings I). Following
remittitur, in 2015 the district court awarded Northern Title
attorney fees and costs and vacated its pre-appeal award of
attorney fees and costs in favor of Cummings. Cummings
appeals from these orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
complete background for this case is contained in
Cummings I. Roger and Barbara Stephens held title to
two parcels of land as trustees for the Roger L. and Barbara
L. Stephens Family Trust. Cummings I, 157 Idaho at
351, 336 P.3d at 284. The first parcel consisted of
approximately 270 acres located on the west side of U.S.
Highway 30, and the second parcel consisted of approximately
83 acres on the east side of the highway. Id. The
Stephenses wished to sell the larger parcel. Their realtor
asked Northern Title to begin initial title work, including
preparation of a legal description of the parcel on the west
side of the highway. Id.
Stephenses agreed to sell the parcel to a third party. After
Cummings expressed an interest in purchasing the property,
the Stephenses' realtor provided him with copies of the
real estate contract and the commitment for title insurance.
Id. at 352, 336 P.3d at 285. "The legal
description in both documents included the Stephenses'
property on both sides of the highway and two additional
parcels they did not own. Based upon the legal description in
those documents, Mr. Cummings believed that the property
being sold included both parcels of the Stephenses'
property." Id. Cummings paid the third party
$50, 000 to assign its interest in the real estate contract.
time between Cummings' agreement with the third party and
the execution of the assignment, Northern Title became aware
that the legal description erroneously included the
Stephenses' property east of the highway and the two
parcels of land they did not own. Id. Northern Title
revised the legal description by inserting the words,
"Except all of that portion of the following described
land lying easterly of U.S. Highway 30." Id.
Because of its location in the amended legal description, the
new language excluded the two parcels of property not owned
by the Stephenses but failed to exclude their parcel located
east of the highway. Id.
on the transaction occurred on August 3, 2007. Northern Title
recorded a warranty deed granting Cummings the real property
described in the revised legal description, which included
the Stephenses' property on the east side of the highway.
November of 2007, when Mr. Stephens attempted to pay the
property taxes for the 83 acres of land east of the highway,
he was informed that he no longer owned the property.
Id. Stephens informed Northern Title of the error in
the legal description on the deed. Id. Following its
recordation, Northern Title had retained the original deed
from the Stephenses to Cummings. Id. Northern Title
altered the original deed to exclude all real property to the
east of the highway from the legal description. Id.
Northern Title then recorded the amended deed after
unsuccessfully attempting to contact Cummings. Id.
Northern Title then provided Cummings with a title insurance
policy that insured only the property located to the west of
the highway. Id.
brought suit against the Stephenses and eventually added
claims against Northern Title. Id. at 352-53, 336
P.3d at 285-286. The district court dismissed all of
Cummings' claims against the Stephenses. Id. at
353, 336 P.3d at 286. Following a court trial, the district
court "found that Northern Title acted negligently as a
title and abstract company, and it awarded Mr. Cummings
damages in the sum of $50, 000, which was the sum he had paid
. . . to obtain an assignment of its contract to purchase the
Stephenses' property." Id. The district
court ordered Northern Title to pay Cummings' attorney
fees and costs. Id. Cummings appealed and Northern
Title cross-appealed. Id.
Cummings I, we affirmed the district court's
dismissal of Cummings' claims against the Stephenses and
reversed the judgment against Northern Title. Id. at
367, 336 P.3d at 300. We reversed the district court's
finding that Northern Title acted negligently as an
abstractor of title because "[t]here is no evidence that
Northern Title assumed the duty of being an abstractor of
title. Therefore, the district court erred in awarding
damages against it on that ground." Id.
this Court's remittitur, Northern Title moved for an
award of attorney fees and costs before the district court.
Cummings argued that the district court did not have the
authority to revisit its pre-appeal fee award in the absence
of specific direction from this Court. The district court
disagreed, finding that it had the authority to revisit the
previous award of attorney fees because the issue was
subsidiary to the issues presented to this Court in
Cummings I. On January 27, 2015, the district court
entered a judgment for attorney fees and costs in favor of
Northern Title against Cummings in the sum of $162, 363.30.
February 5, 2015, Northern Title brought an I.R.C.P. 60(b)
motion to vacate the judgments for damages and attorney fees
that the district court had entered against it before the
appeal in Cummings I. Cummings objected, arguing
that Northern Title's Rule 60(b) motion was untimely and
without good cause. Once again, the ...