John E. Fuquay v. Susie Low

BRODY, Justice,

concurring in part, dissenting in part.

I respectfully dissent from the award of attorney’s fees to the Kings and Lows. There is no dispute that the Fuquays have been using King Road for about forty years. While the Fuquays were not successful in establishing that they have a prescriptive easement, they litigated an important, long-time interest, and I do not find that their efforts were frivolous, unreasonable or without foundation. This case was decided by the district court on summary judgment. The path to that judgment, however, was anything but straight and narrow. The Kings filed their motion for summary judgment in March 2015. The district court denied the motion, finding that there were genuine issues of material fact. The Kings then filed a motion for reconsideration which the district court granted and judgment was entered in their favor. The Fuquays then filed a motion for reconsideration, and although the motion was denied, the district court recognized that there were, in fact, genuine issues of material fact as to whether the general public used King Road. Given these circumstances and the important interest at issue, asking this Court to review the district court’s decisions, particularly where the standard of review is de novo, is not unreasonable, frivolous or without foundation.

Chief Justice BURDICK concurs.