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Cummings v. Stephens

Supreme Court of Idaho

September 12, 2016

STEVEN B. CUMMINGS, an individual residing in Utah, Plaintiff-Appellant,
v.
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.

         2016 Opinion No. 97

         Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bear Lake County. Hon. David C. Nye, District Judge.

         The 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.

          HORTON, Justice.

         In 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A more 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.

         The 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. Id.

         In the 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.

         Closing 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. Id.

         In 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.

         Cummings 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.

         In 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.

         Following 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.

         On 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 ...


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