IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43081
STEVEN B. CUMMINGS, an individual )
residing in Utah, )
)
Plaintiff-Appellant, ) Boise, June 2016 Term
)
v. ) 2016 Opinion No. 97
)
ROGER L. STEPHENS, an individual ) Filed: September 12, 2016
residing in Providence, Utah; and JOHN )
DOES, I-X, ) Stephen Kenyon, Clerk
)
Defendants, )
)
and )
)
NORTHERN TITLE CO. OF IDAHO, INC., )
an Idaho Corporation; )
)
Defendant-Respondent. )
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.
1
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.
2
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 district court disagreed and granted Northern
Title’s motion. Cummings timely appealed.
3
II. STANDARD OF REVIEW
“The question of a trial court’s jurisdiction ‘relating to the recovery of attorney fees or
costs is one of law upon which an appellate court exercises free review.’ ” Sky Canyon
Properties, LLC v. Golf Club at Black Rock, LLC, 159 Idaho 162, 164, 357 P.3d 1270, 1272
(2015) (Sky Canyon II) (quoting J.R. Simplot Co. v. Chemetics Int’l, Inc., 130 Idaho 255, 257,
939 P.2d 574, 576 (1997) (Chemetics II)). The decision to grant I.R.C.P. 60(b) relief is reviewed
under an abuse of discretion standard:
The decision will be upheld if it appears that the trial court (1) correctly perceived
the issue as discretionary, (2) acted within the boundaries of its discretion and
consistent with the applicable legal standards, and (3) reached its determination
through an exercise of reason. Id. “A determination under Rule 60(b) turns largely
on questions of fact to be determined by the trial court.” Idaho State Police ex rel.
Russell v. Real Property Situated in the County of Cassia, 144 Idaho 60, 62, 156
P.3d 561, 563 (2007). Those factual findings will be upheld unless they are
clearly erroneous. Id. “If the trial court applies the facts in a logical manner to the
criteria set forth in Rule 60(b), while keeping in mind the policy favoring relief in
doubtful cases, the court will be deemed to have acted within its discretion.” Id.
Waller v. State, Dep’t of Health & Welfare, 146 Idaho 234, 237–38, 192 P.3d 1058, 1061–62
(2008).
III. ANALYSIS
Most of Cummings’ argument asserts that the district court lacked jurisdiction to award
Northern Title attorney fees following the remittitur from Cummings I. Cummings also asserts
that the district court erred by granting Northern Title’s request for I.R.C.P. 60(b) relief.
A. The district court had post-appeal jurisdiction to vacate Cummings’ pre-appeal fee
award and award pre-appeal fees to Northern Title.
The district court determined it had authority to revisit its previous award of attorney fees
because the issue was subsidiary to this Court’s remand in Cummings I. The district court stated:
It just seems to me like I don’t have much choice here but to go this way.
And I’m not saying I wouldn’t go this way if it was discretionary. It is
discretionary. I am exercising my discretion. But after the Supreme Court’s
decision that said that it was wrong of me to award [$]50,000 to the plaintiff,
there’s no way I can hold the plaintiff as a prevailing party, and I find that
Northern Title prevailed and order the cost[s] and fees as I’ve outlined.
Cummings contends that the district court lacked jurisdiction to vacate Cummings’ pre-appeal
award of attorney fees because this Court’s decision “did not change the prevailing party or did
not explicitly vacate or reverse the pre-appeal awarding of attorney fees and costs to Northern
4
Title.” Cummings also argues the district court erred by awarding Northern Title attorney fees in
connection with proceedings prior to the appeal for similar reasons.
Cummings’ arguments ignore this Court’s earlier decisions. In Sky Canyon II, we held
that “the clear weight of authority directs that when there has been a change in the prevailing
party due to reversal and this Court is ‘silent’ regarding pre-appeal fees and costs the trial court
is free to award the same.” Sky Canyon II, 159 Idaho at 164, 357 P.3d at 1272. Sky Canyon II
was not the first time that this Court addressed similar claims. Fifteen years ago, we noted a
considerable body of case law from this Court on this subject:
The district court held that due to this Court’s reversal of the original
district court ruling in Great Plains I, it had jurisdiction to make a determination
of what party was the prevailing party and whether the prevailing party was
entitled to attorney fees. See Hutchins v. State, 100 Idaho 661, 603 P.2d 995
(1979) (“After a general reversal, a trial court is free to correct any error in its
original findings and conclusions as to matters not passed on by the appellate
court.”); see also J.R. Simplot Co. v. Chemetics Int’l, 130 Idaho 255, 257, 939
P.2d 574, 576 (1997) (Where this Court did not pass on the question of whether a
party was or was not entitled to attorney fees as the prevailing party, the district
court had jurisdiction to determine the prevailing party and award attorney fees
accordingly.); see also Hummer v. Evans, 132 Idaho 830, 833, 979 P.2d 1188,
1191 (1999) (Where the reversal of a verdict in an appeal changed the prevailing
party, the district judge had jurisdiction to address any issue, like attorney fees,
that was related to the result in the appeal.). The decision in Great Plains I
changed the prevailing party. Consequently, the district court had jurisdiction to
make post-appeal determinations concerning costs which were otherwise
unresolved.
Great Plains Equip., Inc. v. Nw. Pipeline Corp., 136 Idaho 466, 473–74, 36 P.3d 218, 225–26
(2001) (Great Plains II).
In Cummings I, we concluded our substantive analysis with a simple statement: “We
reverse the judgment against Northern Title. Because the remaining issues raised by Northern
Title in its cross-appeal sought to reverse the award of damages for other reasons, we need not
address those issues.” Cummings I, 157 Idaho 348, 367, 336 P.3d 281, 300 (2014). Because we
reversed the judgment in Cummings’ favor, he was no longer the prevailing party. The district
court had post-appeal jurisdiction to address Northern Title’s claim for attorney fees and costs.
Cummings correctly points out that in earlier decisions we have expressly vacated or
reversed a lower court’s award of attorney fees and that we were silent as to the issue in
Cummings I. See Sky Canyon Properties, LLC v. Golf Club at Black Rock, LLC, 155 Idaho 604,
610, 315 P.3d 792, 798 (2013) (Sky Canyon I) (expressly reversing award of attorney fees);
5
Great Plains Equip., Inc. v. Nw. Pipeline Corp., 132 Idaho 754, 775, 979 P.2d 627, 648 (1999)
(Great Plains I) (expressly vacating attorney fees award); J.R. Simplot Co. v. Chemetics Int’l,
Inc., 126 Idaho 532, 536, 887 P.2d 1039, 1043 (1994) (Chemetics I) (expressly vacating attorney
fees award). Cummings reads too much into our silence in Cummings I.
Cummings relies heavily on this Court’s decision in Hummer v. Evans, 132 Idaho 830,
979 P.2d 1188 (1999) (Hummer II), to challenge the district court’s award of pre-appeal attorney
fees to Northern Title. Such reliance is misplaced. There, in the initial proceedings before the
district court, the district court “declined to award attorney fees [to Hummer] under I.C. § 12-117
or I.C. § 12-121” because it did not find the defendant’s defense of the action to be frivolous. Id.
at 832, 979 P.2d at 1190. In Hummer v. Evans, 129 Idaho 274, 923 P.2d 981 (1996) (Hummer I),
this Court considered an amended judgment following a court trial. Id. at 278, 923 P.2d at 985.
The order denying Hummer’s request for attorney fees was not an issue in the appeal. Hummer
II, 132 Idaho at 832, 979 P.2d at 1190. Instead, in Hummer I this Court reversed the district
court’s order granting Hummer’s motion to alter or amend judgment by increasing the award of
damages. Hummer I, 129 Idaho at 281, 923 P.2d at 988. When the case was back before the
district court for entry of an amended judgment removing the award of additur damages,
Hummer claimed to be entitled to attorney fees based upon a different statute, Idaho Code
section 12-120(3). Hummer II, 132 Idaho at 832, 979 P.2d at 1190. The district court denied
Hummer’s motion, holding that because “Hummer had never made a motion for attorney fees
based on I.C. § 12-120(3) ... and never appealed the failure to award attorney fees based on I.C. §
12-120(3), the judge was without power to award fees under I.C. § 12-120(3).” Id. Hummer
appealed from this decision.
We affirmed, explaining that the issue of Hummer’s entitlement to attorney fees was not
a subsidiary issue before the district court. Instead, the district court’s authority was limited to
amending the judgment in a fashion consistent with this Court’s decision. Id. at 833, 979 P.2d at
1191. We explained that our decision in Hummer I did not “in and of itself change[] the
prevailing party and thus grant[] the district judge jurisdiction to address any issue.” Id. Unlike
Hummer II, our ruling in Cummings I “in and of itself changed the prevailing party and thus
granted the district judge jurisdiction” to address attorney fees. To paraphrase in terminology
prevalent in this year’s presidential race, our decision made Cummings “a loser,” not “a winner.”
6
Cummings also argues that this Court’s denial of Northern Title’s petition for rehearing
supports his claim that his pre-appeal fee award stands. In its petition for rehearing, Northern
Title asked this Court to vacate the award of attorney fees against it and declare Northern Title to
be the prevailing party. This Court denied the petition for rehearing, and our remittitur simply
stated that “the District Court shall forthwith comply with the directive of the Opinion, if any
action is required.” Our denial of the petition for rehearing did not represent a decision on the
merits and had no preclusive effect as to Northern Title’s ability to request the district court to
reconsider its determination as to which party prevailed. Indeed, we denied the petition because
it was apparent to us that the district court could revisit its earlier prevailing party determination
in light of our reversal of the judgment upon which that determination was based.
Cummings also argues that the district court erred by refusing to reopen proceedings for
the “reinstatement of damages” against Northern Title “based on a correct theory.” Cummings’
argument on this point runs afoul of our rule that “issues on appeal are not considered unless
they are properly supported by both authority and argument.” H.F.L.P., LLC v. City of Twin
Falls, 157 Idaho 672, 686, 339 P.3d 557, 571 (2014). Cummings provides no authority in
support of his request for an opportunity for a “do-over” in district court. We cannot help but
note that Cummings’ argument is doubly deficient: not only did he fail to provide authority for
the proposition that the district court erred by refusing to reopen proceedings, he has failed to
identify “a correct theory” upon which he might be entitled to relief.
For the foregoing reasons, we hold that the district court had jurisdiction to vacate
Cummings’ pre-appeal fee award and award pre-appeal fees to Northern Title.
B. Cummings has failed to demonstrate that the district court abused its discretion by
granting Northern Title’s request for I.R.C.P. 60(b) relief.
On February 5, 2015, Northern Title brought an I.R.C.P. 60(b) motion to vacate the pre-
appeal judgments awarding Cummings damages and costs and fees. The district court granted the
motion by order dated February 20, 2015. The district court found the motion to be timely and
relief to be warranted under Rules 60(b)(4) and 60(b)(5) of the Idaho Rules of Civil Procedure.
Cummings appeals from this order. The entirety of his argument on this issue in his opening
brief is the following paragraph:
After the appeal was concluded on November 5, 2014, Northern Title did
not file a motion to vacate the pre-appeal award of attorneys fees and costs to
Cummings. Further, it did not even raise the issue in the January 2, 2015, hearing.
It instead filed a IRCP § 60(b) motion after the district court had entered its
7
“Third Amended Final Judgment” on January 27, 2015. In so doing, Northern
Title failed to meet the burden of demonstrating good cause for relief under a
Rule 60(b) motion. Lowe v. Lynn, 103 Idaho 259, 263, 646 P.2d 1030, 1034 (Ct.
App. 1982). Relief under Rule 60(b) lies only for mistakes of fact, not mistakes of
law. Berg v. Kendall, 147 Idaho 571, 577, 212 P.3d 1001, 1007 (2009).
Additionally, gross carelessness, ignorance of the rules, or ignorance of the law
are insufficient bases for Rule 60(b) relief. Ade v. Batten, 126 Idaho 114, 118, 878
P.2d 813, 817 (Ct App. 1994). Northern Title provided no such “good cause” to
justify its tardiness under any of the conditions set forth in IRCP § 60(b) Motion,
and it was therefore inappropriate for the district court to grant the motion –
particularly without any opportunity for Cummings to respond to the substance of
the motion.1
This Court has often stated: “We will not consider assignments of error not supported by
argument and authority in the opening brief.” See e.g. Hogg v. Wolske, 142 Idaho 549, 559, 130
P.3d 1087, 1097 (2006). This conclusory argument is fatally deficient, Cummings does not
identify the applicable standard of review, much less attempt to apply it. The applicable standard
of review requires us to consider whether the district court abused its discretion. “The burden of
showing the trial court abused its discretion rests with the appellant.” Walker v. Boozer, 140
Idaho 451, 456, 95 P.3d 69, 74 (2004). Cummings makes no attempt to address the matters we
consider when evaluating a claimed abuse of discretion. He does not contend that the district
court failed to perceive the issue as one of discretion, that the district court failed to act within
the boundaries of this discretion and consistent with the legal standards applicable to the specific
choices available to it or that the district court did not reach its decision by an exercise of reason.
See Charney v. Charney, 159 Idaho 62, 64, 356 P.3d 355, 357 (2015).
Further, Cummings does not dispute the district court’s findings of fact. “A determination
under Rule 60(b) turns largely on questions of fact to be determined by the trial court, whose
factual findings will be upheld unless they are clearly erroneous.” Idaho State Police ex rel.
Russell v. Real Prop. Situated in Cnty. of Cassia, 144 Idaho 60, 62, 156 P.3d 561, 563 (2007). In
short, Cummings has failed to advance any meaningful argument that the district court abused its
discretion by granting Northern Title’s request for I.R.C.P. 60(b) relief. Therefore, his claim that
the district court erred fails.
C. We award Northern Title attorney fees on appeal.
1
In his reply brief, Cummings asserts a new claim that the district court denied Cummings due process by providing
him no opportunity to respond to Northern Title’s I.R.C.P. 60(b) motion in disregard of Cummings’ rights under
I.R.C.P. 7(b)(3). This argument is waived due to Cummings’ failure to raise it in his opening brief. See Myers v.
Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004).
8
Both parties request fees on appeal. Cummings requests attorney fees on appeal under
Idaho Code section 12-120(3). We deny this request because Cummings has not prevailed in this
appeal.
Northern Title has prevailed in this appeal. It requests attorney fees on appeal under
Idaho Code sections 12-120(3) and 12-123. “Section 12–123 does not apply on appeal to this
Court.” Bird v. Bidwell, 147 Idaho 350, 353, 209 P.3d 647, 650 (2009). In Cummings I, this
Court awarded attorney fees to Northern Title pursuant to Idaho Code section 12-120(3) because
Cummings’ lawsuit “was an action to recover in a commercial transaction.” Cummings I, 157
Idaho 348, 367, 336 P.3d 281, 300 (2014). For the same reason, we award Northern Title
attorney fees in this appeal.
IV. CONCLUSION
We affirm the district court’s judgment awarding attorney fees to Northern Title and the
district court’s order granting Northern Title I.R.C.P. 60(b) relief. We award attorney fees and
costs to Northern Title.
Justices EISMANN, BURDICK and W. JONES, CONCUR.
CHIEF JUSTICE J. JONES, concurring in part and dissenting in part.
I concur in the Court’s opinion, except for the award of attorney fees on appeal to
Northern Title. I dissent from the fee award on the same grounds set out in my separate opinion
in Cummings v. Stephens, 157 Idaho 348, 368–69, 336 P. 3d 281, 301–02 (2014) (Cummings I).
In Cummings I, I read the escrow agreement as waiving any claim for attorney fees against
Cummings where the fees resulted from gross negligence on the part of Northern Title. I opined
that Northern Title was, indeed, grossly negligent in handling the transaction. However, I agree
with the Court in this appeal that Cummings has failed to present a meritorious challenge to the
district court’s handling of attorney fee issues on remand. Cummings did not challenge the
district court’s fee award based on the language of the escrow agreement.
9