State Ex Rel. Ohman v. Ivan H. Talbot Family Trust

820 P.2d 695, 120 Idaho 825, 1991 Ida. LEXIS 170

• Court: Idaho Supreme Court
• Decided: November 12, 1991
• Docket: 18833
• Status: Published

Opinions

McDEVITT, Justice.

The Idaho Transportation Board brought three separate actions against the defendants seeking to condemn three different parcels of land for an additional right-of-way for U.S. Highway 91 in Franklin County. One parcel was owned by the Ivan H. Talbot Family Trust, the second parcel was owned by the Lavern C. Talbot Family Trust, and the third parcel was owned jointly by the two trusts. The three actions were consolidated for trial and were also consolidated on appeal. From the jury verdict awarding damages to the property owners and from the district court’s decision denying the award of attorney fees the property owners appeal. We affirm.

ISSUES

The issues involved in this appeal are:

(1) Did the district court err in not allowing the property owners to reopen the case?

(2) Did the district court err in giving Jury Instructions Nos. 6 and 7?

(3) Was the jury verdict adequate?

(4) Did the district court err in denying the award of attorney fees to the property owners?

I. FAILURE TO REOPEN THE CASE

The property owners allege that it was necessary to reopen the case to rebut the testimony of the State’s expert witness, Mr. Kelley. The property owners assert that the State’s expert inaccurately testified as to comparable sales of property in Franklin County.

Recently, in Davison’s Air Service, Inc. v. Montierth, 119 Idaho 967, 812 P.2d 274 (1991), this Court reiterated the rule that a motion to reopen a case is within the discretion of the trial court. See also Gano v. Air Idaho, Inc., 99 Idaho 720, 587 P.2d 1255 (1978); County of Bonner v. Dyer, 92 Idaho 699, 448 P.2d 986 (1968); Froman v. First Nat. Bank, 35 Idaho 10, 204 P. 145 (1922).

This standard was clarified in Lisher v. Krasselt, 96 Idaho 854, 857, 538 P.2d 783, 786 (1975), where we stated:

We decline to ascribe a definitive meaning to the amorphous phrase “abuse of discretion” solely for the purposes of this case, but it will suffice to say, that where the trial court has exercised such discretion after a careful consideration of the relevant factual circumstances and principles of law, and without arbitrary disregard for those facts and principles of justice, we will not disturb that action. (Footnotes omitted.)

As an example, in Silkey v. Tiegs, 51 Idaho 344, 5 P.2d 1049 (1931), the appellants appealed from an order refusing to reopen the case and this Court stated:

Granting or refusing a motion to reopen a case for the purpose of taking further or additional evidence, after it has been submitted for decision, but before entry of judgment, rests in the discretion of the trial judge.

Silkey, 51 Idaho at 350, 5 P.2d at 1055 (citations omitted).

We then turn to the record to determine if the trial court abused its discretion. The last witness to testify was the State’s expert, Mr. Kelley. Upon completing the cross-examination of Mr. Kelly, the following exchange occurred:

MR. HANCOCK [attorney for property owners]: No further questions.

THE COURT: Redirect?

MR. FANNING [attorney for the State]: I have nothing further.

THE COURT: Thank you sir. You may stand down. Call your next witness. MR. FANNING: No further witnesses, your Honor, and we would rest.

THE COURT: Anything in rebuttal, Mr. Hancock?

MR. HANCOCK: No, your Honor.

THE COURT: Okay, both parties have rested ...

After this exchange, the Court recessed at 3:20 p.m. in order to have a jury instruction conference. Upon reconvening the next day at 9:00 a.m., Mr. Hancock moved the court to reopen the case in an attempt to rebut the testimony of Mr. Kelly. After hearing argument from both attorneys, the trial court stated:

THE COURT: Thank you. Counsel, it’s the — I’ve tried to review my notes on the whole trial, the entire trial for that matter, and review the file here. It appears to the court that this was easily a matter of discovery in preparation for trial. I’m going to deny the motion to reopen____

The property owners were given the opportunity to rebut the testimony of Mr. Kelley and declined. We hold that, in this case, it was not an abuse of discretion to deny the motion to reopen.

II. JURY INSTRUCTIONS

While the appellants allege that Jury Instructions Nos. 6 & 7 dealing with the burden of proof are erroneous, they failed to request that these instructions be included in the clerk’s record. Instead, they were attached as an appendix to appellant’s opening brief. To be included in the record, jury instructions must be specifically requested in the notice of appeal. I.A.R. 25(e). We are bound by the record and cannot consider matters or materials not part of or contained therein. State v. Hodges, 103 Idaho 765, 653 P.2d 1177 (1982); Neer v. Safeway Stores, Inc., 92 Idaho 361, 442 P.2d 771 (1968); Baldwin v. Singer Sewing Mach. Co., 48 Idaho 596, 284 P. 1027 (1930); King v. Seebeck, 20 Idaho 223, 118 P. 292 (1911). Thus, we do not address the appellants’ contentions.

III. ADEQUACY OF JURY VERDICT

The appellants maintain that the jury verdict was contrary to the evidence. In an eminent domain case, the amount awarded can only be set aside if it is not supported by any evidence. Coeur d’Alene Garbage v. Coeur d’Alene, 114 Idaho 588, 759 P.2d 879 (1988). An appellate court of this state will not set aside an award that is within the range of estimates given by the various witnesses at trial. Eagle Sewer Dist. v. Hormaechea, 109 Idaho 418, 707 P.2d 1057 (Ct.App.1985). We will review the compensation given to each parcel separately.

Parcel #1

Parcel # 1 was owned by the Ivan Talbot Family Trust. The jury awarded $150.00 as compensation for the taking. The State sought to condemn one-tenth (0.10) of an acre for the purpose of a temporary easement. No permanent taking was involved. The only evidence adduced at trial concerning this parcel came from the State’s expert witness, Mr. Kelley. Mr. Kelly testified that the temporary easement was worth $150.00, as this was the minimum amount the State Department of Transportation would pay to get a signature on an instrument. Therefore, the jury’s award is supported by the evidence and we will not disturb it.

Parcel #2

Parcel # 2 was owned by the Lavern Talbot Family Trust. The State’s taking involved a temporary easement of 4.15 acres and a permanent taking of 6.9 acres in fee simple. This taking also involved an injury to the home of Lavern Talbot. The jury awarded $4,302.00 for the temporary easement and the land taken in fee. The jury awarded $25,000.00 as damages to the remainder of the property, including the home.

The appellants’ first expert witness, Mr. Blake Parker, did not perform an appraisal, but did perform an “analysis.” He testified that the highest and best use of the property was for residential lots. He then opined that the property was worth between eight to twelve thousand dollars an acre.

The appellants’ other expert witness, Mr. Gerold Fisher, also did not perform an appraisal of the property. He testified that the highest and best use of the property was for residential lots. He declined to give an opinion as to the worth of the property, but stated that he believed the damage to the home would be 25% to 30% of its fair market value.

Lavern Talbot testified that he paid $1,000.00 per acre for the property in 1981. He felt the property was worth $5,000.00. He testified that the home cost $150,000.00 to build. He testified that he would be “lucky” to get $80,000.00 for the home after the taking.

The State’s expert witness performed an appraisal of the property. He testified that the highest and best use of this property was for a dwelling site and for dry agricultural land. He estimated the damage to the property to be $3,228.00. He did not expect any damage to the dwelling.

While the compensation awarded by the jury is closer to the figures produced by the State’s expert, the verdict is within the ranges adduced at trial. There was no error.

Parcel #3

Parcel # 3 was owned jointly by the Lavern Talbot Family Trust and the Ivan Talbot Family Trust. The State sought to take 5.77 acres as a temporary easement and 14.67 acres in fee simple. The jury award $8,489.00 for the property taken, including the temporary easement, and $1,420.00 as damages to the remainder.

Again, one of the appellant’s expert witnesses, Mr. Blake Parker, testified that this property was worth between eight to twelve thousand dollars an acre. The appellant’s other expert witness did not offer an opinion as to the value of the property. Both experts testified that the highest and best use of this property was for residential lots but neither witness performed an actual appraisal of the property. The appellants testified that this property was worth $5,000.00 per acre.

The State’s expert witness testified that the highest and best use for the property was dry agricultural land. He estimated the damage to be $2,404.00.

The jury’s verdict is within these ranges presented at trial. The jury's verdict is supported by the evidence. There is no error.

IV. ATTORNEY FEES

The appellants urge that the trial court abused its discretion in failing to award attorney fees. This Court has held that in eminent domain actions, the award of attorney fees is within the discretion of the trial court. Ada Cty. Highway Dist. v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983).

Citing Acarrequi, the appellants argue that in considering whether to award fees, a court should determine whether the condemnor made a timely offer of settlement of at least 90% of the ultimate jury verdict; whether it was made within a reasonable time after instituting the condemnation proceedings; and whether the condemnee voluntarily granted possession pending final resolution of the compensation issue. The appellant’s aggregate the three separate pre-trial offers to settle in the amount of $16,950.00 and compare this to the aggregate jury award of $39,361.00 for the three parcels. Using these figures, the state’s offer was 43% of the ultimate jury award. In conjunction with the fact that the Talbots voluntarily granted early possession, the appellants urge that attorney fees should have been granted.

In Acarrequi, this Court held “that the award of reasonable attorneys’ fees to the condemnee in an eminent domain proceeding is a matter for the trial court’s guided discretion____” Id., 105 Idaho at 877, 673 P.2d at 1071. This Court then delineated various guidelines to assist in determining whether to award attorney fees. It must be noted that these guidelines “are matters for consideration and not rigid guidelines within which a trial court is required to operate.” Id., 105 Idaho at 877, 673 P.2d at 1071. The Acarrequi Court then remanded the case to the district court to determine if the Acarrequis were the prevailing parties. The determination of the prevailing party is governed by I.R.C.P. 54(d)(1)(B) which provides:

Prevailing Party. In determining which party to an action is a prevailing party and entitled to costs, the trial court shall in its sound discretion consider the final judgment or result of the action in relation to the relief sought by the respective parties, whether there were multiple claims, multiple issues, counterclaims, third party claims, cross-claims, or other multiple or cross issues between the parties, and the extent to which each party prevailed upon each of such issue or claims. The trial court in its sound discretion may determine that a party to an action prevailed in part and did not prevail in part, and upon so finding may apportion the costs between and among the parties in a fair and equitable manner after considering all of the issues and claims involved in the action and the resultant judgment or judgments obtained.

Therefore, in addition to considering the Acarrequi guidelines, the trial court must apply I.R.C.P. 54(d)(1)(B) to determine the prevailing party. In its memorandum decision, the district court stated:

The Court has thoroughly reviewed the files herein, and the trial in this matter. The Court is unable to declare defendants the “prevailing party” within the meaning of I.R.C.P. Rule 54(d)(1)(B). Whether you view the three cases as separate actions, as viewed by the State, or as one action, as viewed by defendants, the recovery of the defendants, although exceeding the pre-trial offers from plaintiff, are substantially lower than the claims and demands of the defendants and the jury obviously rejected the claimed highest and best use proposed by defendants. A timely offer of settlement has been made by plaintiff, and there is no evidence of any counteroffer by defendants. Defendants have voluntarily granted possession of the property to plaintiff pending resolution of these matters, however, there is no controversy over the public use and necessity. There has been no modification of plans or designs. Although defendants individually estimated property values and damages based upon their theory of highest and best use, they presented no expert testimony to controvert that of the State’s expert appraiser. The jury obviously found the State’s evidence to be entitled to the greater weight.

From this discussion, it is apparent that the district court considered the guidelines enunciated in Acarrequi and also applied I.R.C.P. 54(d)(1)(B) in reaching its determination that the appellants were not the prevailing parties. In making this determination, the district court correctly weighed the result in relation to the relief sought. Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991). We cannot say the district court abused its discretion. Therefore, we affirm the denial of attorney fees.

Both parties have requested attorney fees on appeal. We decline to award attorney fees.

CONCLUSION

We hold the district court did not abuse its discretion in failing to reopen the case. We affirm the compensation awarded by the jury and the denial of attorney fees.

Costs to respondents.

BAKES, C.J., and JOHNSON, J., concur.