ADA COUNTY HIGHWAY DISTRICT, a body politic corporate of the State of Idaho, Plaintiff-Appellant,
BROOKE VIEW, INC. dba THE SENATOR, INC., an Idaho corporation, Defendant-Respondent, and BENCH SEWER DISTRICT; JOE J. HON AND WILLIAM A. HON dba FRANKLIN WATER COMPANY; OVERLAND WATER COMPANY, an Idaho company; TILLIE MAE SAXTON, a widow; VINCENT LEE HUMPHREYS and ESTHER C. HUMPHREYS, husband and wife; KENNETH RICHARDSON and EFFIE R. RICHARDSON; and all unknown lessees and tenants in possession of any or all of the property which is subject to this action, and any other person or entity, who has or may have an interest in and to the property which is subject of this action, referenced for convenience by the fictitious designations of DOES 1 THROUGH 10, Defendants.
Opinion No. 47
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Cheri C. Copsey,
judgment of the district court, as well as the award of
attorney fees and costs are vacated. This case is remanded
for further proceedings in accordance with this Opinion.
Costs on appeal are awarded to ACHD.
Holland & Hart, LLP, Boise, and Jones Gledhill Fuhrman
Gourley, P.A., Boise, attorneys for appellant. Mary V. York
Davison, Copple, Copple & Copple, Boise, attorneys for
respondent. Heather Cunningham argued.
Nature of the Case
case arising out of Ada County, the Ada County Highway
District ("ACHD") appeals a district court judgment
awarding $148, 390.21 plus prejudgment interest and
attorney's fees to Brooke View, Inc. d/b/a The Senator
("Brooke View") as just compensation for a parcel
of property that ACHD condemned and took possession of under
the State's eminent domain powers. ACHD argues on appeal
that the district court misconstrued the law when it allowed
Brooke View to recover the cost to repair damage to a wall on
Brooke View's property, which the jury found had been
caused by the construction of improvements on the taken
Factual and Procedural Background
Brooke View, is an Idaho corporation that owns an undivided
interest in certain property located at 421 South Curtis Road
in Boise, Idaho (the "Property"). The Property,
which is approximately 20 acres, is the site of a housing
development for senior residents. The development sits behind
a serpentine concrete block entrance wall (the
"Wall"), which is covered in stucco on one side and
an intricate pattern of decorative brick on the other.
early 2012, ACHD embarked on Project No. 809028, also known
as the Safe Routes to School project (the
"Project"). The goal of the Project was to design
and build sidewalks and walkways in order to provide students
with safe walking routes to and from nearby schools. The
improvements undertaken as part of the Project included not
only the installation of sidewalks, but also the construction
of a storm drainage system which included digging an
"infiltration trench." The infiltration trench is
five to six feet wide and eleven to twelve feet deep. It is
located approximately six feet from the Wall.
March 1, 2012, ACHD offered Brooke View $7, 738.47 (which it
later increased to $8, 512.32) as just compensation for a 1,
425 square foot section of the Property (the "Taken
Property"), which was needed to complete the Project.
Brooke View rejected the offer.
April 30, 2012, Dianne Miller ("Miller"), the
president and owner of Brooke View, contacted ACHD to express
concern that the Project could cause damage to the Wall and
the surrounding landscaping. After meeting with Miller,
ACHD's project manager, engineer, and right-of-way
specialist determined that the Project would not damage the
portion of the Property not required to complete the Project
(the "Remaining Property). It does not appear that ACHD
ever investigated the possibility of damage to the Wall
beyond this preliminary assessment.
20, 2012, ACHD issued an order of condemnation with respect
to the Taken Property. By that issuance,
ACHD sought to exercise its power of eminent domain under
Idaho Code section 7-701 to acquire a fee simple interest in
the Taken Property as well as a temporary construction
easement on an additional 2, 706 square feet of the Remaining
Property. While the Wall itself was not condemned, the
temporary easement included a significant portion of the
Wall. On July 11, 2012, ACHD filed a complaint with the Ada
County district court seeking to effectuate its order of
condemnation. On August 7, 2012, the parties stipulated to
allow ACHD to take possession of the Taken Property. On
August 23, 2012, the district court entered an Order for
Possession of Real Property effectuating the stipulation.
October, 2012, ACHD began construction. On November 1, 2012,
a resident on the Remaining Property discovered a crack in
the Wall and notified Miller. Thereafter, Miller located
multiple cracks in the Wall. Following the discovery of these
damages, the focus of the litigation shifted from the value
of the Taken Property to the cause of the damage to the Wall
and whether the cost of repairing that damage could legally
be recovered as part of just compensation.
August 8, 2013, ACHD filed a motion for summary judgment in
which it asserted that physical damage occurring during
construction is not part of just compensation, and instead
must be pursued in tort. The motion was denied.
October 3, 2013, ACHD filed another motion for summary
judgment as well as a motion for reconsideration of its prior
motion for summary judgment. It filed a single memorandum in
support of both motions, in which it again argued, inter
alia, that any theory that Brooke View had for damage to
the Wall caused during construction was compensable only in
tort. On December 2, 2013, the district court denied both
motions. It stated in its denial of ACHD's third motion
for summary judgment that:
[T]he Defendant, Brooke View, Inc.'s assertion that
ACHD's "Safe Route to School" project of Curtis
Road . . . caused physical damage to the entrance way walls
on the remaining Brooke View property, via underground water
trespass, vibration, or taking of lateral support, are
encompassed within and a part of the ACHD eminent domain
claim and no counterclaim or affirmative defense must be pled
by the defendant, Brooke View, Inc. to assert the same.
district court further held that:
[T]he Defendant, Brooke View, Inc. is not required to prove
the specific mechanism of how the Brooke View entrance way
walls were allegedly physically damaged, but rather simply
that construction of the improvement in the manner proposed
by the Plaintiff pursuant to the Project was the cause of the
alleged physical damage; and … No evidence of
negligent or defective construction of the Project, or
deviation from how the Project was proposed to be
constructed, will be permitted at the trial absent a
counterclaim by Brooke View, Inc. as to the same.
December 15, 2014, ACHD filed another motion for partial
summary judgment or, in the alternative, motion in
limine. In its memorandum in support, ACHD argued,
inter alia, that "Brooke View cannot meet its
burden of proof as to proximate cause." ACHD further
argued that it had immunity for any damages caused to Brooke
View under the Tort Claims Act (Idaho Code section 6-904(7)).
On February 26, 2015, the district court denied ACHD's
motion. In its order, the district court reasoned that
"[t]his is a constitutional claim, not a tort claim, and
tort principles do not apply. The defendant has to prove
damages were caused, but they do not have to prove proximate
cause of the mechanism of damage." The district court
further held that because any damages caused during
construction implicated a constitutional claim rather than a
tort claim, Idaho Code section 6-904 (the "Tort Claims
Act") was inapplicable.
April 6, 2015, the parties went to trial. Over the course of
the trial the district court repeatedly reemphasized that:
(1) damages caused during construction were part of just
compensation; and (2) there was no tort claim at issue, and
accordingly, tort issues were not relevant. Despite multiple
admonitions from the district court, ACHD maintained its
position that damages caused during construction were not
compensable during a condemnation action. ACHD did not submit
any evidence in support of any valuation; instead conceding
that Brooke View was entitled to just compensation in the
amount of $8, 512.32.
April 23, 2015, the jury unanimously returned a verdict in
the amount of $146, 291.68. This number was reached by adding
the fair market value of the Taken Property ($3, 915.18), the
fair market value of the temporary easement ($676.50), the
value of improvements taken ($700.00), and the value of the
cost to cure the damage caused to the Wall ($141, 000.00).
12, 2015, the district court entered a judgment on the
verdict in the amount of $148, 390.21 and prejudgment
interest of $48, 792.66. On August 27, 2015, the district
court granted Brooke View's motion for attorney's
fees and costs, awarding $744, 243.56 in attorney's fees,
$44, 051.46 in non-discretionary costs, and $365, 703.63 in
Issues on Appeal
the district court err when it included recovery for physical
damages to the Wall as part of just compensation for the
the district court err in its jury instructions?
the district court err in admitting testimony and other
evidence of events, activities, and damages that occurred
during the construction of improvements on the Taken
the district court err in awarding Brooke View attorney's
fees, costs as a matter of right, and discretionary costs?
Standard of Review
We exercise free review over statutory interpretation because
it is a question of law. State v. Dunlap, 155 Idaho
345, 361, 313 P.3d 1, 17 (2013). Our objective when
interpreting a statute is "to derive the intent of the
legislative body that adopted the act." Id.
(quoting State v. Schulz, 151 Idaho 863, 866, 264
P.3d 970, 973 (2011)). Statutory interpretation begins with
the statute's plain language. Dunlap, 155 Idaho
at 361, 313 P.3d at 17. This Court considers the statute as a
whole, and gives words their plain, usual, and ordinary
meanings. When the statute's language is unambiguous, the
legislature's clearly expressed intent must be given
effect, and we do not need to go beyond the statute's
plain language to consider other rules of statutory
construction. Id. at 361-62, 313 P.3d at 17-18.
State v. Leary, 160 Idaho 349, 352, 372 P.3d 404,
407 (2016) (quoting State v. Owens, 158 Idaho 1, 3,
343 P.3d 30, 32 (2015)).
If the words of the statute are subject to more than one
meaning, it is ambiguous and this Court must construe the
statute "to mean what the legislature intended it to
mean. To determine that intent, [this Court] examine[s] not
only the literal words of the statute, but also the
reasonableness of proposed ...