Read v. Harvey

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 34336

ROBERT C. READ and ALEXIS M. READ, )
) Coeur d’Alene, April 2009 Term
Plaintiffs-Respondents, )
) 2009 Opinion No. 74
v. )
) Filed: May 29, 2009
JENNIFER HARVEY, )
) Stephen Kenyon, Clerk
Defendant-Appellant. )

Appeal from the District Court of the First Judicial District of the State of Idaho,
Bonner County. Honorable John T. Mitchell, District Judge.

The decision of the district court is affirmed. Appellant‟s motion to strike is
denied.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for appellant. Scott Campbell
argued.

Dean & Kolts, Coeur d‟Alene, for respondents. Charles Dean Jr. argued.
_______________________________________________

HORTON, Justice
This is a boundary line dispute. Appellant Jennifer Harvey (Harvey) appeals the district
court‟s decision quieting title in favor of her neighbors, Respondents Robert and Alexis Read
(the Reads), and setting the boundary between their respective properties at the centerline of a
creek that flows through a route, known as channel C to channel A, which lies to the west of
where Harvey believes the boundary should be located. We affirm the district court‟s decision
quieting title in favor of the Reads, requiring Harvey to pay for a survey of the boundary, and
awarding the Reads attorney fees. In addition, we deny Harvey‟s motion to strike portions of the
Reads‟ appellate brief and award the Reads attorney fees on appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Harvey and the Reads own adjacent properties that were originally part of a larger tract
owned by Dick and Nancy Andersen (the Andersens). In 1972, the Andersens sought the help of
real-estate broker Jerry VanOoyen (VanOoyen) to divide and sell their property as fourteen
separate parcels. The Andersens‟ property was traversed by a watercourse known as Little Gold

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Creek, the main tributary to Gold Creek, and VanOoyen recommended that Little Gold Creek be
designated as the boundary between eleven of the fourteen parcels. Later that year, the
Andersens sold some of their land to Frank Boss (Boss), Harvey‟s predecessor in interest. The
boundary description in the deed between the Andersens and Boss describes the boundary
between what is now Harvey‟s property and what is now the Reads‟ property as being “the
centerline of the main tributary to the creek.”
That tributary presently flows from the north to the southwest, then back towards the
southeast through a route that has come to be known as channel C to channel A. Channel B does
not contain flowing water; however, if it did, the water would flow more directly to the south,
rather than flowing to the west and then back to the east as do channels C and A, eventually
joining up with the creek as it presently flows. The Reads claim that since 1972 the creek has
flowed where it presently does, to the west of channel B, through channels C and A, and that the
parties to the Andersen/Boss deed intended the centerline of the C to A course to be the
boundary. Accordingly, the Reads filed a quiet title action in 1999. Harvey answered and
counterclaimed, arguing that the parties to the 1972 deed were not referencing the wet creek that
flowed through channels C and A at the time, but rather the dry historical bed of the creek,
which, she argued, lay to the east of channels C and A and even B. The district court granted
summary judgment in favor of the Reads, and the Idaho Court of Appeals affirmed that decision.
In Read v. Harvey, 141 Idaho 497, 112 P.3d 785 (2005), upon a petition for review, we reversed
and remanded the case to the district court because we found that there was a genuine issue of
material fact as to whether the parties to the 1972 deed intended the wet creek or rather the
historical dry bed to be the boundary.
At trial, Harvey changed her position. She conceded that the parties to the deed
intended the wet creek to be the boundary, but argued that in 1972 the creek flowed to the east of
channels C and A and that alteration by the Reads after 1972 caused the creek to flow where it
presently does, through channels C and A. After a three-day trial, the district court again quieted
title in favor of the Reads, setting the boundary at the course of channels C and A. The court
ordered Harvey to pay for a survey of the boundary and awarded the Reads attorney fees
incurred after October 3, 2005, the date of Harvey‟s responses to the Reads‟ first set of requests
for admission, pursuant to I.R.C.P. 37.

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 Harvey timely appeals. After the Reads filed their brief with this Court, Harvey moved
to strike several portions of it. We ordered that we would take the motion under advisement and
issue a ruling in this opinion. The Reads request attorney fees on appeal.
II. STANDARD OF REVIEW
Review of a trial court‟s decision is limited to ascertaining whether the evidence supports
the findings of fact, and whether the findings of fact support the conclusions of law. Benninger
v. Derifield, 142 Idaho 486, 488-89, 129 P.3d 1235, 1237-38 (2006) (citing Alumet v. Bear Lake
Grazing Co., 119 Idaho 946, 949, 812 P.2d 253, 256 (1991)). Since it is the province of the trial
court to weigh conflicting evidence and testimony and to judge the credibility of the witnesses,
this Court will liberally construe the trial court‟s findings of fact in favor of the judgment
entered. Rowley v. Fuhrman, 133 Idaho 105, 107, 982 P.2d 940, 942 (1999) (citing Sun Valley
Shamrock Res., Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391
(1990)). A trial court‟s findings of fact will not be set aside on appeal unless the findings are
clearly erroneous. Ransom v. Topaz Mktg., L.P., 143 Idaho 641, 643, 152 P.3d 2, 4 (2006)
(citing Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 856, 55 P.3d 304, 310 (2002);
Bramwell v. South Rigby Canal Co., 136 Idaho 648, 650, 39 P.3d 588, 590 (2001); I.R.C.P
52(a)). If the findings of fact are based upon substantial evidence, even if the evidence is
conflicting, they will not be overturned on appeal. Benninger, 142 Idaho at 489, 129 P.3d at
1238 (citing Hunter v. Shields, 131 Idaho 148, 151, 953 P.2d 588, 591 (1998)). This Court will
not substitute its view of the facts for that of the trial court. Ransom, 143 Idaho at 643, 152 P.3d
at 4 (citing Bramwell, 136 Idaho at 648, 39 P.3d at 588).
III. ANALYSIS
Harvey argues that the district court erred as a matter of law in ruling that the existence of
water in channel A in 1972 constituted the law of the case and in relying on the testimony of
VanOoyen to establish the intent of the parties to the Boss/Andersen deed. She also contends
that there is not substantial, competent evidence that channel C existed or that channel A carried
water in 1972. Harvey further argues that the district court erred in ordering her to pay for the
boundary survey and awarding the Reads attorney fees. Finally, Harvey asks this Court to strike
the portions of the Reads‟ brief that she considers unprofessional. The Reads request attorney
fees on appeal. We address these issues in turn.
A. The district court’s initial ruling that the existence of water in channel A was the law of
the case is not reversible error.

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 Harvey contends that the district court erred when it stated that the existence of water in
channel A in 1972 was the law of the case and as a consequence refused to consider evidence
suggesting otherwise. On the first day of trial, the district court stated: “I think it is the law of
the case that water flowed in Channel A in 1972, and I think that is reiterated by the Supreme
Court . . . If anybody‟s expert comes in here and tells me the water wasn‟t flowing in A, that‟s
tough because that‟s been established.” In its memorandum decision issued after conclusion of
trial, the district court reversed itself, stating:
The Idaho Supreme Court‟s finding that channel A “. . . has consistently during
the times in question carried water,” is not “the law of the case,” but a finding of
fact by the Idaho Supreme Court which is not binding on this Court. However, it
is a finding of fact which is supported by all the evidence.
(Emphasis original.) We recognize that this corrective statement came only at the conclusion of
the proceedings below and that during the trial the court may have been disinclined to consider
evidence contradicting this Court‟s earlier statement. However, I.R.E. 103(a) states in relevant
part that:
Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and [i]n case the ruling is one
excluding evidence, the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions were asked.
Harvey fails to identify any instance in the record where the district court refused to admit
evidence that tended to show that water was not flowing in channel A in 1972. Further, the
record reflects that Harvey did not make “the substance of the evidence” which she did not offer
known to the district court. Perhaps most significantly, in the argument before the district court
on this subject, counsel for Harvey informed the district court: “We‟re not disputing that water
was flowing in Channel A. However, that was not the source of water from Little Gold Creek.
That water was water from draining the subsurface ground water to allow that particular area to
be farmed.” On this record, we conclude that the district court‟s initial confusion regarding the
law of the case doctrine is not a basis for reversal.
In conjunction with this argument, Harvey also contends for the first time on appeal that
testimony in the record from VanOoyen and Boss establishes that channel A did not carry water
in 1972 and that the district court‟s finding to the contrary was thus “an exercise of what can
only be described as willfully obtuse reasoning.” We need not address this issue because Harvey
raises it for the first time on appeal. Johannsen v. Utterbeck, 146 Idaho 423, 429, 196 P.3d 341,

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347 (2008). Although this contention is not properly before this Court for consideration on
appeal, we will address it because it is based upon a distortion of the evidence presented at trial
and because it is relevant to our decisions regarding attorney fees. See Parts III.E and III.F,
infra.
Both VanOoyen and Boss testified about a drainage ditch that existed in the area in
question in 1972 but did not carry a steady flow of water. Harvey alleges that VanOoyen
testified that this ditch was located to the south of and parallel to the boundary creek. Harvey
next points out that Boss testified that he had to cross this dry ditch in order to get from his cabin
in the southwest to his watering-hole near the boundary creek in the northeast. Harvey goes on
to note that there is no dispute that channel A lies parallel to and south of channel B, but that
there is no evidence of a ditch that runs parallel to and south of channel A. Harvey thus
concludes that the ditch Boss crossed to get to his watering-hole must be channel A, and that
when VanOoyen and Boss testified about a creek with continual flow, what they were actually
talking about was the creek as it flowed through channel B. This argument is flawed because it
misrepresents VanOoyen‟s testimony.
First, VanOoyen distinguished between the relatively dry ditch and channel A, which
contained a regular flow of creek water. VanOoyen testified that there existed in 1972 a dry
drainage ditch to the northwest of the disputed area. While VanOyen admitted that this ditch
eventually ran into the creek, he also testified that in 1972 he recognized a difference between
the ditch, which did not have a constant flow of water and was located to the northwest of
channel A, and the creek that was located where the water flows today in channel A and in which
water flowed consistently. VanOoyen knew the difference between the ditch and the creek, and
he testified the ditch was to the northwest of where the creek ran in channel A.
Yet Harvey states in her opening brief that “[a]t trial, the Reads attempted to elicit
testimony from Mr.VanOoyen that this „drainage ditch‟ was depicted on his 1972 marketing
diagram by a dotted line located parallel to, but just south of, the location of the creek.” This is
not accurate. As noted, VanOoyen testified that the ditch was to the northwest of the creek.
There are two dotted lines on a marketing diagram that VanOoyen created, one to the north and
one to the south. Although it is true that VanOoyen later realized that these dotted lines were
intended to outline a meadow, rather than to show the existence of ditches, he initially testified
that the drainage ditch was depicted by the northern dotted line on his marketing diagram.

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Counsel for the Reads did not, as Harvey contends, attempt to elicit testimony from VanOoyen
that the ditch was depicted by the line “located parallel to, but just south of, the location of the
creek,” nor did VanOoyen ever testify that the ditch was parallel to and south of the creek.
Harvey‟s suggestions to the contrary are, at best, misleading.
Harvey attempts to bolster her claim that VanOoyen located the ditch parallel to and
south of the creek by referring to VanOoyen‟s second affidavit offered in connection with
summary judgment proceedings. We note that the Reads contend that Harvey obtained this
affidavit from VanOoyen through trickery, a claim Harvey does not deny. More significant to
our analysis, neither party marked this affidavit as an exhibit or mentioned it at trial, much less
used it to impeach VanOoyen‟s testimony. As the second affidavit was not before the district
court at trial, Harvey‟s attempt to utilize the evidence contained therein before this Court on
appeal is improper.
In sum, the district court‟s initial confusion regarding the law of the case doctrine is not a
basis for assigning error. Harvey‟s further claim that this confusion precluded the court from
considering testimony from VanOoyen and Boss showing that channel A was dry in 1972 is not
only raised for the first time on appeal, but is based upon a misrepresentation of VanOoyen‟s
testimony.
B. We decline to consider whether the district court erred in relying on VanOoyen’s
testimony to establish the intent of the parties to the deed.
Harvey contends, for the first time on appeal, that the district court erred as a matter of
law in relying on the testimony of VanOoyen to establish the intent of the parties to the
Boss/Andersen deed. We decline to address this issue because Harvey raises it for the first time
on appeal. Johannsen, 146 Idaho at 429, 196 P.3d at 347.
C. We decline to grant Harvey’s request to reverse and instruct the district court to
establish the boundary between the parties’ property at the location of channel B.
Harvey contends that the Reads have failed to meet their burden of proving that the
boundary lies in the location of channel A because they have failed to prove the existence of
channel C in 1972, thus failing to prove that channel A carried water from Little Gold Creek via
channel C in 1972. Harvey did not present this claim to the district court, and thus we will not
address it. Johannsen, 146 Idaho at 429, 196 P.3d at 347.
In conjunction with this argument, Harvey requests that we not only reverse the district
court but instruct it to set the boundary in the location of channel B. The request that this Court

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instruct the district court to set the boundary in the location of channel B is made without
reference to any evidence in the record that would support the conclusion that water flowed in
channel B in 1972. Thus, the request is made without reference to evidence in the record that
would support a finding that Harvey has “succeed[ed] on the strength of [her] own title, and not
on the weakness of that of [the Reads],” Pincock v. Pocatello Gold and Copper Min. Co., Inc.,
100 Idaho 325, 331, 597 P.2d, 211, 217 (1979), despite the fact that Harvey herself recognizes
that this is the standard that must be met for success in a quiet title action. We decline to grant
Harvey‟s request.
D. The district court did not err in ordering Harvey to pay for a survey of the creek.
In the exercise of its equitable powers, the district court ordered Harvey to pay for a
survey of Little Gold Creek. Harvey argues the cost for such a survey is more equitably placed
upon the Reads. We disagree.
“A judgment defining rights to land must be precise in its description.” Standall v.
Teater, 96 Idaho 152, 157, 525 P.2d 347, 352 (1974). Because the record here fails to contain
any metes and bounds description of Little Gold Creek sufficient to properly describe the parties‟
respective properties, the trial court was correct to order that a surveyor perform a survey. Id. In
similar cases, we have ordered that the costs of such a survey be fixed by the trial court and
borne equally by the parties. See, e.g., id.; Lisher v. Krasselt, 94 Idaho 513, 517, 492 P.2d 52, 56
(1972). There is, however, no statutory requirement that the cost be shared between the parties
nor have we prescribed such a requirement in our previous decisions; rather the trial court
exercises its equitable powers when entering such an order, which we review for an abuse of
discretion.
Harvey presented no evidence that the parties to the Boss/Andersen deed intended the
boundary between their properties to be anywhere but at the centerline of Little Gold Creek as it
flowed in 1972, nor did she produce evidence that the district court found credible that the creek
has changed course since that time. We cannot conclude that the district court abused its
discretion in exercising its equitable powers to order her to pay for a survey of the boundary. We
therefore affirm the district court‟s order.
E. The district court did not err in awarding attorney fees to the Reads.
Harvey claims that the district court erred in awarding the Reads attorney fees based upon
Harvey‟s responses to the Reads‟ first set of requests for admission pursuant to I.R.C.P. 37(c).

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Specifically, Harvey argues that she should not have been so sanctioned because she had a
reasonable belief that she might prevail on the issues addressed in the Reads‟ requests for
admission.
I.R.C.P. 37(c) states in relevant part that:
If a party fails to admit the genuineness of any document or the truth of any
matter as requested under Rule 36, and if the party requesting the admissions
thereafter proves the genuineness of the document or the truth of the matter, the
requesting party may apply to the court for an order requiring the other party to
pay the reasonable expenses incurred in making that proof, including reasonable
attorney‟s fees. The court shall make the order unless it finds that . . . the party
failing to admit had reasonable ground to believe that the party might prevail on
the matter . . . .

The rule is mandatory unless the exception applies, and whether the exception applies is
committed to the sound discretion of the district court. Contreras v. Rubley, 142 Idaho 573, 577,
130 P.3d 1111, 1115 (2006). The standard of review for a discretionary decision is whether the
court perceived the issue as one of discretion, acted within the outer boundaries of its discretion
and consistently with the legal standards applicable to the specific choices available to it, and
reached its decision by an exercise of reason. Sun Valley Shopping Ctr. v. Idaho Power, 119
Idaho 87, 94, 803 P.2d 993, 1000 (1991).
The district court noted that:
The “issue” as framed by most all of the Requests for Admission, are that the
water flowed in Channel “A” at all times pertinent to this litigation (since 1972
and ever since that time), and that in 1972 when the property was subdivided by
Andersens [sic] it was their intent that the boundaries run to this Channel A where
the creek was running. Harvey argues she was reasonable in her denial because
“the Supreme Court clearly found that there was a genuine issue of material fact
as to whether the boundary should be the now-relatively dry natural stream
channel, or Channel A.” Harvey completely ignores that whether the Supreme
Court found there to be an issue of material fact regarding some historical dry
stream channel has nothing to do with what she was being asked to admit, ie [sic],
that in 1972 water flowed in Channel “A,” only in Channel “A” and that Channel
“A” is what the Andersens intended to be the boundary when they subdivided in
1972. Harvey‟s remaining reasons why her denials were based upon “a
reasonable belief in prevailing upon the issue” likewise ignore the “issue” sought
to be admitted. Harvey claims she had evidence of Reads‟ dredging in the 1990‟s,
that Reads altered the flow of the channel and that some of the other deeds
referenced “drainage ditch” and “creek.” None of those has a thing to do with
what Harvey was being asked to admit, and that was the fact that in 1972 water
flowed in Channel “A,” only in Channel “A” and that Channel “A” is what the
Andersens intended to be the boundary when they subdivided in 1972.

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Harvey argues on appeal that the district court abused its discretion in not considering that
Harvey could have reasonably believed she would prevail on this issue at trial, based upon the
“testimony of Jerry VanOoyen, Frank Boss, John Gillham, Richard Tucker, and a host of expert
witnesses” that water was flowing other than in channel A in 1972 and that it therefore could
have been the intent of the parties to place the boundary in a location other than channels C and
A.
As previously discussed, on this appeal, Harvey has distorted the testimony from
VanOoyen and Boss in an effort to make it appear that there is evidence that water flowed
elsewhere than in channel A in 1972. The district court found that John Gillham had no basis for
his opinion that the creek flowed in channel B in the 1980‟s. It is evident that Harvey should
have realized that Gillham would not be a credible witness; as revealed during cross-
examination, Harvey concealed a number of facts from Gillham that contradicted his testimony.
As for Richard Tucker, a review of his testimony reveals he did not testify that water was
flowing in any location other than channel A in 1972. Therefore, we hold that the district court
did not abuse its discretion in finding that Harvey did not reasonably believe she could prevail at
trial on the issue of water in channel A in 1972 and awarding the Reads attorney fees under
I.R.C.P. 37(c).
F. We deny Harvey’s motion to strike portions of the Reads’ brief and award the Reads
costs and attorney fees on appeal.
The Reads have requested an award of attorney fees on appeal, but have not directed this
Court to a statute or rule authorizing such an award. Harvey has asked this Court to strike
portions of the Reads‟ brief to this Court, which she alleges are disrespectful, invective, and
scurrilous. It is true that the tone of the language and argument in the Reads‟ brief is not
consistent with standards of civility and professionalism that we expect of counsel. However,
the outrage that is conveyed in the Reads‟ brief is understandable, because Harvey‟s conduct in
this appeal is sanctionable. Accordingly, we deny Harvey‟s motion to strike portions of the
Reads‟ brief.
Idaho Appellate Rule 11.1 provides in part that:
The signature of an attorney or party constitutes a certificate that the attorney or
party has read the notice of appeal, petition, motion, brief or other document; that
to the best of the signer‟s knowledge, information, and belief after reasonable
inquiry it is well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law, and that it is

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 not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. If the notice of
appeal, petition, motion, brief, or other document is signed in violation of this
rule, the court, upon motion or upon its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the notice of appeal,
petition, motion, brief or other document including a reasonable attorney‟s fee.
We have previously stated that:
[A] violation of this rule requires the signed notice of appeal, petition, motion,
brief or other document to (1) not be well grounded in fact (2) not be warranted
by existing law or not be a good faith argument for the extension, modification, or
reversal of existing law and (3) to be interposed for an improper purpose.
Fritts v. Liddle & Moeller Const., Inc., 144 Idaho 171, 176, 158 P.3d 947, 952 (2007) (citations
omitted).
In Fritts, this Court found that where a party failed to supply an adequate record its
appeal was not well grounded in fact and thus violated the first element of I.A.R. 11.1. Id. at
176, 158 P.3d at 952. While the record itself in this appeal is more than adequate, Harvey‟s
representation of it is not. Harvey‟s most persistent, if not persuasive, argument is that channel
A is actually the ditch parallel to and west of the creek, which is actually located in channel B.
This argument is based on distortion and misrepresentation of the record. Further, certain factual
assertions advanced before this Court were not advanced before the trial court. We find a clear
purpose for this: the trial court heard the witnesses‟ testimony and observed their identification
of locations on exhibits used during trial. Factual assertions that have been advanced before this
Court would have been rejected out-of-hand for lack of supporting evidence.
Harvey‟s appeal cannot be considered warranted by existing law or a good faith argument
for a change in the law for the reason that even though she acknowledges that a plaintiff in a
quiet title action must succeed on the strength of her own title, she has repeatedly requested this
Court to direct the trial court to establish the parties‟ boundary at the location of channel B,
despite having made no cogent argument based upon the record as to why the boundary should
be fixed at that location.
Based on Harvey‟s misrepresentation of the record, her raising legal and factual issues for
the first time on appeal, and her request for relief without a foundation in law or fact, we
conclude that this appeal was brought for the purpose of harassing the Reads, or to cause
unnecessary delay, or to needlessly increase the cost of litigation. Accordingly, as the Reads

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have not identified a basis for an award of fees, on our own initiative, we award the Reads
attorney fees pursuant to I.A.R. 11.1, to be paid by Harvey‟s attorney, Scott Campbell.
IV. CONCLUSION
We affirm the district court‟s decision quieting title in favor of the Reads, requiring
Harvey to pay for a survey of the creek, and awarding the Reads attorney fees. We deny
Harvey‟s motion to strike and award the Reads attorney fees on appeal pursuant to I.A.R. 11.1.
Costs to the Reads.

Chief Justice EISMANN and Justices BURDICK, J. JONES and W. JONES CONCUR.

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