               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 35747

BEVERLY E. TORRENCE, a single person, )                2011 Unpublished Opinion No. 385
GEORGE E. TORRENCE, a single person, )
ANNETTE M. TORRENCE, a single person, )                Filed: March 11, 2011
and DAVID A. TORRENCE, a single person, )
                                        )              Stephen W. Kenyon, Clerk
      Plaintiffs-Appellants,            )
                                        )              THIS IS AN UNPUBLISHED
v.                                      )              OPINION AND SHALL NOT
                                        )              BE CITED AS AUTHORITY
MONTY McCAY “Deceased” and PAMELA )
R. McCAY, husband and wife, and SHANE )
E. BAKER, a single person,              )
                                        )
      Defendants-Respondents,           )
                                        )
and                                     )
                                        )
RICHARD COLE, a single person, and      )
HARRY E. BAKER, a single person,        )
                                        )
      Defendants.                       )
                                        )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Boundary County. Hon. James R. Michaud, District Judge.

       Judgment in action to quiet title seeking easement rights, affirmed in part, vacated
       in part, and remanded.

       Beverly E. Torrence, George E. Torrence, Annette M. Torrence, and David A.
       Torrence, pro se appellants.

       Monty McCay, Pamela R. McCay, and Shane E. Baker, pro se respondents.
                ______________________________________________
MELANSON, Judge
       Beverly E. Torrence, George E. Torrence, Annette M. Torrence, and David A. Torrence
brought this quiet title action seeking easement rights for two roadways across the properties of




                                                1
Monty McKay, Pamela R. McCay, and Shane E. Baker (respondents).1 Following a trial, the
district court, sitting without a jury, entered judgment holding that the Torrences possessed an
easement for one of the claimed roadways but not for the second roadway, awarded
compensatory damages for interference with the easement, and dismissed their remaining claims.
The Torrences appeal. For the reasons stated below, we affirm in part, vacate in part, and
remand.
                                                  I.
                                  FACTS AND PROCEDURE
       The following facts were set forth at trial and by the district court in its memorandum
decision. The properties at issue in this case were previously owned by B.C. Investments (BCI).
Beginning in 1981, BCI subdivided its property into the parcels now owned by the parties. The
Torrences’ parcels are located north of the McCays’ parcel and a parcel owned by Richard Cole.2
Baker’s parcel lies just east of the Torrences’ properties.
       In 2007, the Torrences filed a quiet title action seeking easement rights for two roadways
crossing the respondents’ properties. The first roadway, referred to as the main roadway, crosses
the properties of the McCays and Cole to reach the Torrences’ parcels. The second roadway,
referred to as the alternate roadway, travels across Baker’s property to Annette Torrence’s
parcel. In their complaint, the Torrences asserted that the McCays and Cole obstructed the
Torrences’ access to the main roadway and that Baker blocked Annette’s access to the alternate
roadway. The Torrences requested that the district court quiet title to the easements over the two
roadways and enjoin the respondents from interfering with the Torrences’ right to use the
roadways to access their properties. The Torrences also requested compensatory and punitive
damages.
       The Torrences initially had counsel who drafted their complaint. Thereafter, counsel
withdrew and the Torrences chose to represent themselves.           The respondents were never

1
        The Torrences also named Harry E. Baker as a defendant. However, Harry passed away
before this matter went to trial. His son, Shane, was named in the lawsuit, participated at trial on
behalf of the Baker property, and is a respondent on appeal. In addition, after this appeal was
filed but prior to oral argument, Monty McCay passed away.
2
        Richard Cole was also named as a defendant by the Torrences and participated at trial.
However, Cole passed away after the district court entered judgment. In their brief on appeal,
the respondents indicate that Cole’s successors declined to participate in this appeal.

                                                  2
represented by counsel during the proceedings. After a bench trial, the district court entered
judgment in favor of the Torrences, concluding that they possessed an express easement over the
main roadway.       The district court also enjoined the McCays and Cole from restricting or
impeding the Torrences’ access to the main roadway, awarded the Torrences compensatory
damages, but declined to award punitive damages, costs, or attorney fees. The district court
found that Annette Torrence had no easement rights to the alternate roadway. The Torrences
appeal.
                                                  II.
                                     STANDARD OF REVIEW
          When an action has been tried to a court sitting without a jury, appellate review is limited
to ascertaining whether the evidence supports the trial court’s findings of fact and whether these
findings support the court’s conclusions of law. Morris v. Frandsen, 101 Idaho 778, 780, 621
P.2d 394, 396 (1980). The findings of fact of the trial court will be accepted if they are
supported by substantial, competent evidence, though that evidence may be controverted. Sun
Valley Shamrock Res., Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391
(1990); Rueth v. State, 103 Idaho 74, 77, 644 P.2d 1333, 1336 (1982). The task of weighing
evidence is within the province of the trial court, and we therefore accord great deference to the
trial judge’s opportunity to weigh conflicting testimony and to assess the credibility of witnesses.
Rueth, 103 Idaho at 77, 644 P.2d at 1336; PFC, Inc. v. Rockland Tel. Co., Inc., 121 Idaho 1036,
1038, 829 P.2d 1385, 1387 (Ct. App. 1992). It follows that this Court will view the evidence in
the light most favorable to the prevailing party. PFC, Inc., 121 Idaho at 1038, 829 P.2d at 1387;
Martsch v. Nelson, 109 Idaho 95, 100, 705 P.2d 1050, 1055 (Ct. App. 1985). The findings of the
trial court on the question of damages will not be set aside when based upon substantial and
competent evidence. Trilogy Network Sys., Inc. v. Johnson, 144 Idaho 844, 846, 172 P.3d 1119,
1121 (2007).
                                                  III.
                                             ANALYSIS
          The Torrences raise a number of issues on appeal. First, the Torrences contend that the
district court erred by failing to inform them of the court’s trial procedures.          Second, the
Torrences assert that the district court failed to address their pretrial motion for default judgment.
Third, the Torrences contend that the district court abused its discretion by failing to award


                                                   3
punitive damages and attorney fees. Beverly Torrence argues that the district court failed to
accommodate her hearing impairment. Finally, Annette Torrence contends that the district court
erred by concluding that she did not possess easement rights to the alternate roadway.3
A.     Claims of Error on Behalf of all of the Torrences
       While the district court found that the Torrences possessed an express easement in the
main roadway, they assert on appeal that the district court committed certain trial errors,
including failing to prepare them for trial, failing to rule on a motion for default judgment, failing
to award punitive damages, and failing to award costs and attorney fees.
       1.      Preparation for trial
       The Torrences contend that the district court erred by not sufficiently preparing and
accommodating them before and during trial. Specifically, the Torrences argue that, because
they represented themselves at trial, the district court erred by not conducting a pretrial
conference to familiarize the parties with the court’s procedure.
       Pro se litigants are held to the same standards as those litigants represented by counsel.
Golay v. Loomis, 118 Idaho 387, 392, 797 P.2d 95, 100 (1990). Pro se litigants are not excused
from abiding by procedural rules simply because they are appearing pro se and may not be aware
of the applicable rules. Id.
       Prior to trial, the district court explained:
                Now, I noticed you raised your hand, sir. You’re not going to be able to
       just raise your hand and be heard. I’m going to conduct this trial no different than
       I would if lawyers were here. So I’ll be telling you what we’re gonna do in the
       order that we do it. But I’m here mostly to listen and it’s each party’s obligation
       to present their evidence. I’m prohibited by law from offering any advice so I
       won’t be able to assist you with the procedures or the law or anything like that.
       And so I’ll--but this is the way a trial normally works.

The district court then explained the stages of a trial, from opening statements to the presentation
of rebuttal evidence. The court also allowed each party time to address preliminary matters. At


3
        In their brief on appeal, the respondents argue that the district court’s decision was
ambiguous because it did not address the McCays’ right to relocate the main roadway pursuant
to I.C. § 55-313. In addition, the respondents assert that they were entitled to attorney fees as
prevailing parties under I.C. § 12-121. The proper avenue for raising these issues is filing a
cross-appeal from the district court’s judgment. Because the respondents did not cross-appeal in
this case, we will not address these issues further.


                                                   4
that time, the Torrences did not request further clarification of the court’s explanation of trial
procedures. During trial, the district court answered questions from the Torrences about trial
procedure, but properly declined to offer legal advice. The district court also allowed the parties
time at the conclusion of trial to negotiate a settlement outside the presence of the court.
Therefore, the Torrences have failed to show that the district court erred by insufficiently
preparing them for trial.
       2.      Motion for default judgment
       The Torrences filed a motion for default judgment, arguing that the respondents did not
participate in court-ordered mediation. On appeal, the Torrences contend that the district court
erred by not addressing the Torrences’ motion in its written decision or prior to trial.
       Monty McCay filed a motion to dismiss prior to trial. During argument on the Torrences’
motion for default judgment and McCay’s motion to dismiss, the following exchange occurred
between the district court, George Torrence, Monty McCay, Annette Torrence, and David
Torrence:
               [George]:       I’m not sure that mediation would be fruitful.
               [Court]:        Why didn’t you file an objection to mediation when the
                               judge ordered it?
               [George]:       Well, at that time we were willing. You know, we thought
                               it might be helpful.
               [Court]:        Is that the same as you saying you’re here now, you’re
                               ready for trial, you got all your exhibits? . . .
                               ....
                               You want to proceed with trial?
               [George]:       I’m ready.
               [Court]:        Do you want to take down your motion for default?
               [George]:       Not unless they --
               [Court]:        What if they took down their motion [to dismiss]?
               [George]:       If they took it down first, then I guess I would.
               [Court]:        What’s your position in that regard?
               [Marty]:        I’m ready to present evidence. Take it down.
               [Court]:        Okay. All plaintiffs agree with that posture of the case?
               [Annette]:      Yes.
               [George]:       I agree.
               [David]:        Yes.
                               ....
               [Court]:        By stipulation, the plaintiffs’ motion for default and
                               defendants’ motion [to dismiss] are withdrawn. And we’re
                               going to proceed with evidence after an opportunity for
                               opening statements but first I need to ask if -- from the


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                                  plaintiffs -- any of the plaintiffs have any other preliminary
                                  matters?
                   [George]:      That would be all that I have.

            The Torrences’ argument that the district court failed to address their motion for default
judgment prior to trial is directly contradicted by the record. Because the Torrences stipulated to
the withdrawal of their motion for default judgment, they have failed to show that the district
court erred by failing to rule on the motion in the court’s written decision or on the record prior
to trial.
            3.     Punitive damages
            The Torrences argue that the district court erred by refusing to award punitive damages.
To recover punitive damages, a party must prove, by clear and convincing evidence, oppressive,
fraudulent, malicious, or outrageous conduct by the party against whom the claim for punitive
damages is asserted. I.C. § 6-1604(1). “Punitive damages are not favored in the law and should
be awarded in only the most unusual and compelling circumstances.” O’Neil v. Vasseur, 118
Idaho 257, 265, 796 P.2d 134, 142 (Ct. App. 1990). The findings of the trial court on the
question of damages will not be set aside when based upon substantial and competent evidence.
Trilogy Network Sys., 144 Idaho at 846, 172 P.3d at 1121.
            The district court determined that the respondents intentionally interfered with the
Torrences’ property rights in the easement over the main roadway, which runs across the
McCays’ and Cole’s properties. The Torrences argue that such interference was malicious due
to a feud between Monty McCay and Beverly’s sister.
            At trial, the testimony regarding the respondents’ reasons for blocking the main roadway
was, at times, conflicting. For instance, Cole testified that he barricaded the main roadway
because of a dispute with George Torrence’s niece. Conversely, Cole also testified that he
believed that the easement across his property was for utilities only and that he never denied the
Torrences access because they were able to use another route to enter their properties. Monty
McCay testified that he did not consider the Torrences’ easement to be valid. Further, the
majority of Monty McCay’s testimony involved his confusion regarding the condition and
location of the main roadway.          Based on the record, it does not appear that the Torrences
sufficiently proved that the respondents’ conduct met the standard for an award of punitive




                                                    6
damages. Therefore, the district court’s decision not to award the Torrences punitive damages
was supported by substantial and competent evidence.
          4.     Costs and attorney fees in the district court
          The Torrences argue that the district court erred by refusing to award them court costs
and attorney fees.4 Costs are awarded according to the Idaho Rules of Civil Procedure. I.C.
§ 12-101. Idaho Rule of Civil Procedure 54(d)(1)(A) provides that costs shall be allowed as a
matter of right to the prevailing party or parties. The decision to award costs to the prevailing
party in a civil action is within the sound discretion of the district court. Caldwell v. Idaho Youth
Ranch, Inc., 132 Idaho 120, 127, 968 P.2d 215, 222 (1998). In exercising its discretion, the
district court must identify “which party to an action is a prevailing party.” I.R.C.P. 54(d)(1)(B).
          An award of attorney fees may be granted under I.C. § 12-121 to the prevailing party and
such an award is appropriate when the court is left with the abiding belief that the proceeding
was brought or defended frivolously, unreasonably, or without foundation. Harris v. State, ex
rel. Kempthorne, 147 Idaho 401, 406-07, 210 P.3d 86, 91-92 (2009). In the absence of an abuse
of discretion, the award will not be disturbed on appeal. DesFosses v. DesFosses, 122 Idaho
634, 638, 836 P.2d 1095, 1099 (Ct. App. 1992). The party disputing the award bears the burden
of showing an abuse of discretion. Hellar v. Cenarrusa, 106 Idaho 571, 577, 682 P.2d 524, 530
(1984).
          When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the
issue as one of discretion; (2) whether the lower court acted within the boundaries of such
discretion and consistently with any legal standards applicable to the specific choices before it;
and (3) whether the court reached its decision by an exercise of reason. Sun Valley Shopping
Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
          Here, the district court held that there was no prevailing party and required the Torrences
to pay their own costs of litigation. The Torrences argue that the district court abused its
discretion by denying costs and attorney fees because the McCays and Cole gave incorrect
testimony at trial and confused the identities of the Torrences’ relatives. They further contend
that, if this Court determines that they were the prevailing party, they must be entitled to attorney

4
     As discussed above, neither party in this matter was represented by an attorney at trial.
However, the Torrences were represented by counsel at the time they filed their initial complaint.

                                                   7
fees. The latter argument implies that the Torrences do not agree with the district court’s
determination that they were not the prevailing parties below. However, the Torrences make no
argument in support of such a contention and do not attempt to demonstrate how the district
court erred in making its prevailing party determination. It appears from the record that the
Torrences were awarded easement rights in the main roadway and compensatory damages but
were also denied punitive damages. Thus, the Torrences have failed to establish that the district
court abused discretion when it determined that they were not prevailing parties and declined to
award costs and attorney fees. See Harris, 147 Idaho at 406-07, 210 P.3d at 91-92 (affirming
district court’s denial of attorney fees when party prevailed on two claims but lost on a damages
claim).
B.        Beverly’s Hearing Impairment
          Beverly Torrence contends that the district court erred when it did not accommodate her
hearing impairment. The record reflects that the district court provided a hearing device for
Beverly prior to trial. When Beverly was still having difficulty hearing, the district court offered
to adjust the microphones in the courtroom and permitted Annette to write down what was being
said for Beverly to read. The district court also informed the Torrences that, if they needed to
temporarily stop the proceedings in order to write down what was being said, they could do so by
raising their hand and notifying the court.
          Throughout the trial, Beverly gave an opening statement, responded to questions from the
court, examined witnesses, and raised objections. The district court was notified that Beverly
was having difficulty hearing and allowed the Torrences to repeat the statements out loud or
transcribe what was being said. In one instance, the district court repeated a witness’s statement
for Beverly during direct examination. Beverly argues that the district court failed to hold a
proper pretrial proceeding to accommodate her hearing impairment. However, the Torrences did
not provide the district court with notice of Beverly’s hearing impairment prior to trial.5



5
         The record on appeal contains the trial transcripts, the register of actions, the Torrences’
complaint, the respondents’ answers, the district court’s decision, and the Torrences’ notice of
appeal. The register of actions states that a hearing was held prior to trial on the withdrawal of
the Torrences’ counsel. The register also indicates that the Torrences and the respondents filed
trial briefs. However, the transcript of the prior hearing and the trial briefs were not included in
the record on appeal. It does not appear from the record that a pretrial conference was held, or
that the district court was given notice of Beverly’s hearing impairment prior to trial.

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Therefore, Beverly has failed to show that the district court failed to accommodate her hearing
impairment.
C.     Annette’s Claim for an Easement in the Alternate Roadway
       Annette argues that the district court erred by determining that she did not possess
easement rights to the alternate roadway. Testimony at trial demonstrated that the alternate
roadway runs across Baker’s land and connects the eastern portion of Annette’s property to a
major county road. Annette argues that she presented sufficient evidence at trial to prove that
she possessed easement rights in the alternate roadway by virtue of an express easement, an
implied easement, an easement by necessity, and a prescriptive easement.
       Annette contends that she possesses an express easement in the alternate roadway
because BCI, the original owner of her and Baker’s current properties, expressly reserved an
easement in the deed severing Baker’s parcel from the original estate. Annette argues that she is
the successor-in-interest to the express easement reserved by BCI, which passed with the land
from BCI to Baker.
       An easement is the right to use the land of another for a specific purpose that is not
inconsistent with the general use of the property by the owner. Hodgins v. Sales, 139 Idaho 225,
229, 76 P.3d 969, 973 (2003).     One who purchases land expressly subject to an easement, or
with actual or constructive notice that it is burdened with an existing easement, takes the land
subject to the easement. Checketts v. Thompson, 65 Idaho 715, 721, 152 P.2d 585, 587 (1944).
An express easement may be created by way of reservation or by exception. Akers v. D.L. White
Constr., Inc., 142 Idaho 293, 301, 127 P.3d 196, 204 (2005). A valid easement must identify the
land subject to the easement and express the intent of the parties. Quinn v. Stone, 75 Idaho 243,
246, 270 P.2d 825, 826 (1954).
       Annette asserts that BCI conveyed what is now her property to Beverly’s parents.
Annette declares that she subsequently inherited her parcel from Beverly’s parents and was later
assigned it “by virtue of the chain of title.” In its memorandum decision, the district court
determined that BCI was a previous common owner of both Annette’s property and the Baker
property. The district court specifically stated that Annette owned the property described as:
              The West half of the East half of the Northeast quarter of the Southeast
       quarter (W2E2NW4SE4) Section Twenty-three (S23), Township 61 north
       (T61N), Range One West (R1W), Boise Meridian, (BM), Boundary County,



                                                9
       Idaho, less (50) feet along Southern boundary, Property is bona fide gift to a
       family member.

       In addition, the district court found that the alternate roadway traveled across the Baker
property:
       The Alternate Roadway travels the same path as the Main Roadway but branches
       off and heads northerly when the Main Roadway turns to the west after leaving
       the Bigham parcel. . . . The Survey depicts the location of the centerline of the
       Alternate Roadway until it crosses onto the Baker Parcel. . . . The road to the
       Torrence properties is the one to the west at the Y in the roadway. Once the
       Alternate Roadway crosses onto the Baker parcel it turns westerly and leads to the
       Torrence Parcels. The portion of the Alternate Roadway that crosses the Baker
       parcel is confined to the southwestern corner of the property.

At trial, in support of Annette’s argument that she possessed an express easement across the
alternate roadway, she presented the deeds in Baker’s chain of title. The deeds demonstrated
that, in 1981, BCI severed what is now Baker’s parcel from the original estate and conveyed it to
George and Sherrille Lehman. The deed conveying land from BCI to the Lehmans expressly
reserved an easement in BCI across what is now Baker’s land:
              RESERVING unto the grantor, its successors, heirs and assigns, a
       perpetual easement for roadways and utilities across the above-described
       property . . . .

The Lehmans subsequently transferred their property to Bob and Joanne Mastre, who later
transferred the property to Baker.
       Despite the district court’s finding that BCI was the original owner of the Baker and
Torrence parcels, its finding that Annette was the owner of the parcel benefited by the easement
over the alternate roadway, and the express language in the record reserving an easement for the
BCI property (now owned by Annette) across what is now Baker’s land, the district court held:
               The plaintiffs have not proved easement rights in the Alternate Roadway
       by virtue of express easement. . . . This failure of proof of an express easement
       over the Alternative Roadway results from the fact that sufficient detail of the
       transfers of title to the alleged dominant and servient estates have not been
       adequately proved to show that the plaintiffs are entitled to an express easement
       over the Alternative Roadway.

This holding is not supported by the record and conflicts with the district court’s findings of fact.
       The express easement across the alternate roadway originated in the severance of what is
now Baker’s property from the original BCI parcel. In the original deed from BCI to the

                                                 10
Lehmans, BCI reserved a perpetual easement for roadway and utilities across the Baker property
and expressed the intent of the parties to create a perpetual easement for BCI’s heirs, successors,
and assigns. At trial, Annette offered Baker’s chain of title, demonstrating that the express
easement created in the Lehman deed passed with the land from the Lehmans to the Mastres and
from the Mastres to Baker. Thus, the existence of the easement across the servient Baker parcel
is evidenced by those written transfers of title.
       The district court explicitly found that Annette was a successor of BCI when it stated in
its findings of fact that BCI was the original common owner of all of the properties at issue in
this matter. Annette’s ownership of the dominant parcel, adjacent to and benefitting from the
easement over the Baker parcel, was neither disputed at trial nor on appeal. A transfer of real
property passes all easements transferred thereto. I.C. § 55-603.
       Therefore, the district court erred by concluding that Annette failed to present sufficient
evidence to prove an express easement in the alternate roadway. Because we determine that
Annette sufficiently established the existence of an express easement across the alternate
roadway and her ownership of the dominant estate, we need not address Annette’s remaining
claims that she possessed an implied easement by prior use, an easement by necessity, or an
easement by prescription. In light of our decision that the district court erred when it found that
Annette Torrence did not possess easement rights in the alternate roadway, we remand to the
district court for the entry of a judgment in favor of Annette. In addition, because we conclude
that the district court erred, we also remand for a determination of whether Annette was a
prevailing party for the purposes of awarding costs and attorney fees before the district court.
D.     Costs and Attorney Fees on Appeal
       Costs shall be awarded as a matter of course to the prevailing party on appeal unless
otherwise provided by law or this Court. I.A.R. 40(a). Beverly, George, Annette, and David
failed on their other issues on appeal regarding the main roadway, including their claims for
punitive damages and claims that the district court did not adequately prepare them for trial. As
a result, Pamela McCay is the prevailing party and is awarded costs on appeal.              Annette
prevailed on her express easement claim on appeal, but did not prevail on her claim that she
should have been awarded punitive damages. Finally, Shane Baker did not prevail on appeal due
to our determination that Annette sufficiently demonstrated an express easement across Baker’s
property.


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       The Torrences, Pamela McCay, and Baker request attorney fees on appeal. It is the
general rule in Idaho that a statutory award of attorney fees may not be awarded to pro se
litigants. Bell v. Bell, 122 Idaho 520, 529, 835 P.2d 1331, 1340 (Ct. App. 1992). See also
Swanson & Setzke, Chtd. v. Henning, 116 Idaho 199, 200-01, 774 P.2d 909, 910-11 (Ct. App.
1989). The parties to this matter each appeared before this Court pro se. Therefore, no attorney
fees will be awarded on appeal.


                                                 IV.
                                          CONCLUSION
       The Torrences have failed to demonstrate that the district court inadequately prepared
them for trial. In addition, because the Torrences withdrew their motion for default judgment
prior to trial, they have not established that the district court erred by failing to address it in its
written decision or on the record. The district court did not abuse its discretion when it declined
to award attorney fees to Beverly, George, or David below. Further, the district court did not
abuse its discretion when it declined to award the Torrences punitive damages. Beverly has
failed to establish that the district court erred by refusing to accommodate her hearing
impairment. However, the district court erred by concluding that Annette did not sufficiently
demonstrate an express easement in the alternate roadway across Baker’s property.
       Accordingly, the judgment is affirmed in part, vacated in part, and remanded to the
district court for the entry of judgment consistent with this opinion and a determination of
whether costs and attorney fees should be awarded to Annette. Costs are awarded to Pamela
McCay on appeal.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




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