Bahnmiller v. Bahnmiller

181 P.3d 443, 145 Idaho 517, 2008 Ida. LEXIS 50
CourtIdaho Supreme Court
DecidedMarch 27, 2008
DocketNo. 32616
StatusPublished
Cited by3 cases

This text of 181 P.3d 443 (Bahnmiller v. Bahnmiller) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bahnmiller v. Bahnmiller, 181 P.3d 443, 145 Idaho 517, 2008 Ida. LEXIS 50 (Idaho 2008).

Opinion

EISMANN, Chief Justice.

I. FACTS AND PROCEDURAL HISTORY

Prior to the untimely death of Jerry Bahnmiller (Jerry), he was married to Raleen Bahnmiller (Raleen). During their marriage, they purchased a parcel of real property in Boise County with Jerry’s father, Fred Bahnmiller (Fred). The sale closed July 20, 1998. The purchase price was $45,000, with a $5,000 down payment and the balance paid by a promissory note requiring monthly and annual payments, with payment in full by September 21,2003. All three parties signed the note, and it was secured by a deed of trust. Fred purchased a mobile home that was placed on the property, and he paid for labor and materials to erect a building on the property. The building consisted of a shop on the ground floor and an apartment above it. Fred lived in the apartment, and Jerry operated an automotive body shop in the shop.

Raleen subsequently filed an action for divorce against Jerry. The primary issue in the action was the community property interest, if any, in the real property.1 All three parties in this action testified during the divorce trial held on January 2, 2002. On March 5, 2002, the trial court in the divorce action issued a memorandum opinion finding that Fred, Jerry, and Raleen held the real property as tenants in common. The court did not determine their interests in the real property because Fred was not a party to the divorce action. Jerry died before judgment was entered, and the divorce action was ultimately dismissed.

On December 6, 2002, Fred filed an action against Jerry and Raleen seeking to quiet his title in the real property. The trial court in that action determined that Fred, Raleen, and Jerry held the real property as tenants in common. It declined to determine then-proportionate interests, stating that they must file an action for partition.

On February 24, 2004, Raleen filed this action against Jerry and Fred seeking to partition the real property. In July 2004, Jerry died in a motorcycle accident. The ease was tried to the court on March 15, 2005, and on May 27, 2005, it issued its findings of fact and conclusions of law. The court re-affirmed that Fred, Raleen, and Jerry2 held the real property as tenants in common. It ruled that the property could not be partitioned in kind and ordered it sold.

At the time of the trial, Fred was eighty-five years of age, was in an assisted living facility, was unable to travel, and had declined mentally. Therefore, he did not testify in person at the trial, nor did he testify by deposition. The district court admitted into evidence his testimony from the divorce trial,[520]*5203 along with an exhibit showing payments he had made regarding the real property, including payments on the promissory note, payments for materials and labor used in making the improvements, and payments for real estate taxes.

Based upon the evidence presented, the district court found that Fred had paid $86,816.47 in connection with the real property and that Raleen had paid $1,600.00. The court held that they were each entitled to recover their respective payments, plus interest, from the proceeds of the sale of the real property. The sale of the property netted $139,040.37. The court awarded $2,888.24 of that sum to Raleen ($1,600.00 plus $1,288.24 in interest) and the balance to Fred as his contributions plus interest. Raleen timely appealed.

II. ISSUES ON APPEAL

1. Did the district court err in admitting into evidence an exhibit that had been admitted during the trial in Raleen and Jerry’s divorce action?

2. Did the district court err in holding that Fred Bahnmiller was entitled to contribution from his cotenants for sums he spent to improve the real property and to make payments on the debt it secured?

3. Did the district court err in awarding Fred Bahnmiller interest on sums he spent to improve the real property and to make payments on the debt it secured?

III. ANALYSIS

A. Did the District Court Err in Admitting into Evidence an Exhibit that Had Been Admitted during the Trial in Raleen and Jerry’s Divorce Action?

Fred testified during the trial of the divorce action regarding the payments he had made in connection with the real property. Rather than testify as to each payment, he offered a summary listing each payment by check number, date, payee, purpose, drawee bank, and amount. He testified that the summary accurately reflected the payments he had made on the land and the improvements. The district court found that Fred was unavailable as a witness at the trial in this action and admitted his prior testimony pursuant to Idaho Rule of Evidence 804(b)(1). The court also admitted the summary to which Fred referred in his testimony. Raleen contends that it was error to admit that summary in this ease.

Raleen first argues that Rule 804 only permits the admission of testimony given by a witness in a prior proceeding; it does not permit the admission of exhibits admitted in that proceeding. Raleen is correct that Rule 804 provides for the admission of “[testimony given as a witness” in another proceeding, not exhibits admitted in that proceeding. However, testimony admitted under Rule 804 can provide the foundation for the admission of an exhibit. The exhibit at issue was a summary of cheeks. Fred testified that they represented payments he had made on the land and improvements. The admissibility of a summary prepared in anticipation of litigation is governed by Rule 1006 of the Idaho Rules of Evidence. City of Idaho Falls v. Bern Constr. Co., Inc., 123 Idaho 516, 524, 850 P.2d 165, 173 (1993). Raleen does not contend that the procedural requirements of that Rule were not met or that Fred’s testimony did not provide adequate foundation for the admission of the summary.

Raleen also argues that the summary was inadmissible because it was not prepared by Fred. The summary was prepared by someone in the office of Jerry’s attorney based upon information provided by Jerry and Fred. Rule 1006 does not require that the witness whose testimony provides the foundation for the admission of a summary must be the person who prepared the summary.

In the issues on appeal listed in her brief, Raleen does not challenge the admission of Fred’s testimony from the divorce action. She only challenges the admission of the summary. She states that if the summary had not been admitted, Fred’s testimony would have been of no effect.

[521]*521In her argument regarding the admissibility of the summary, however, she states that the admission of Fred’s testimony was “inappropriate.” She also states that she objected to the admission of the testimony on the ground that “the parties were different, the issues were different and Plaintiff did not have the same motive to develop the testimony of Fred Bahnmiller by cross examination in that case where the issues of his alleged payments as gifts to his son was peripheral to divorce ease issues.” (Emphasis in original.) Because Fred’s prior testimony provided the foundation for admitting the summary and because Raleen’s brief could be read as arguing that it was error to admit the testimony, we will address that issue.

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Cite This Page — Counsel Stack

Bluebook (online)
181 P.3d 443, 145 Idaho 517, 2008 Ida. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bahnmiller-v-bahnmiller-idaho-2008.