                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 34485

STATE OF IDAHO, ex rel., CHARLES L.                 )
WINDER, JOHN MC HUGH, BRUCE                         )
SWEENEY, MONTE C. MC CLURE, GARY                    )
BLICK, NEIL MILLER and JOHN X                       )
COMBO, IDAHO TRANSPORTATION                         )
BOARD,                                              )         Boise, June 2009 Term
                                                    )
      Plaintiffs-Appellants,                        )         2010 Opinion No. 26
                                                    )
v.                                                  )         Filed: March 17, 2010
                                                    )
CANYON VISTA FAMILY LIMITED                         )         Stephen Kenyon, Clerk
PARTNERSHIP,                                        )
                                                    )
      Defendant-Respondent.                         )
                                                    )
and                                                 )
                                                    )
LAZY J RANCH, INC.,                                 )
                                                    )
      Defendant.                                    )

       Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
       Twin Falls County. Hon. Nathan W. Higer, District Judge.

       The decision of the district court is affirmed.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for appellants. Chris
       Kronberg argued.

       Davison, Copple & Copple, Boise, for respondent. Heather Cunningham argued.
            _____________________________________________

HORTON, Justice
       This is a condemnation case. The State of Idaho (the State) appeals the district court’s
decision to permit the jury to decide issues concerning rights of access from the condemned
property and the court’s decision to admit the Idaho Transportation Department’s (ITD’s) order
of condemnation into evidence. The State also challenges certain jury instructions and the
court’s decision to award the condemnee, Canyon Vista Family Limited Partnership (Canyon),


                                            -1-
attorney fees. Canyon has moved to dismiss the State’s appeal as moot and seeks attorney fees
on appeal. We deny Canyon’s motion to dismiss. However, we affirm the judgment and award
Canyon attorney fees on appeal.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       The State, acting through ITD, initiated a condemnation action against Canyon on
December 28, 2004, in order to take a strip of Canyon’s property for the purpose of widening
Poleline Road in the city of Twin Falls (the City). The initial complaint was amended by
stipulation, and the resulting first amended complaint sought condemnation of all access rights to
Poleline Road other than those shown on the project plans. An order of condemnation entered
by ITD on November 8, 2004, also provided that all access rights to Poleline Road other than
those shown on the project plans would be extinguished.
       The jury awarded Canyon $399,633 as compensation for the real property taken by the
State and $2,021,897 in severance damages. The trial court entered a judgment on the verdict
and ordered the State to pay the amount of the judgment within 30 days pursuant to I.C. § 7-714.
Following a hearing on attorney fees and costs, the district court entered a supplemental
judgment on the verdict awarding Canyon $903,096.77 in attorney fees and costs. The State
appeals the district court’s decision to allow the jury to determine issues of access and its
decision to allow the order of condemnation into evidence. The State’s appeal also challenges
several of the court’s jury instructions and its decision to award Canyon attorney fees. Canyon
requests attorney fees on appeal.
       Simultaneous to bringing this appeal, the State tendered payment of the judgment below
to Canyon, purportedly pursuant to I.C. § 7-717, in order to retain possession of the land during
these appellate proceedings. Canyon subsequently moved this Court to dismiss the State’s
appeal with prejudice, claiming that payment of the judgment rendered the appeal moot. This
Court issued an order setting the motion to dismiss for oral argument at the same time as oral
argument on the merits.
                                    II. STANDARD OF REVIEW
       ―This Court exercises free review over questions of law.‖ Downey Chiropractic Clinic v.
Nampa Restaurant Corp., 127 Idaho 283, 285, 900 P.2d 191, 193 (1995). We review a trial
court’s decision to admit evidence for abuse of discretion. State v. Field, 144 Idaho 559, 564,
165 P.3d 273, 278 (2007) (citing State v. Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438



                                           -2-
(2005)). In this review, we examine whether: (1) the trial court correctly perceived the issue as
discretionary; (2) the trial court acted within the outer bounds of its discretion and with
applicable legal standards; and (3) the trial court reached its decision through an exercise of
reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993,
1000 (1991) (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)). We
exercise free review over the propriety of the trial court’s jury instructions. Puckett v. Verska,
144 Idaho 161, 167, 158 P.3d 937, 943 (2007) (citations omitted).
                                        III. ANALYSIS
       We first consider Canyon’s motion to dismiss this appeal. We next address the State’s
argument that the trial court, rather than the jury, should have determined the issue of access
rights. We then turn to the trial court’s decision to admit the order of condemnation and the
State’s objections to the trial court’s jury instructions. Finally, we address the district court’s
award of attorney fees and Canyon’s request for attorney fees on appeal.
A. Canyon’s motion to dismiss this appeal is denied.
       Canyon has moved to dismiss the State’s appeal because the State paid all amounts due
pursuant to the judgment prior to filing its notice of appeal. Because the judgment has been fully
satisfied, Canyon argues, the State’s appeal is moot. The State counters that, while the process
was truncated, ITD clearly conditioned negotiation of its check in satisfaction of the judgment on
Canyon’s consent to the procedure outlined in I.C. § 7-717, which allows the State to maintain
possession of the condemned property while simultaneously pursuing an appeal. We agree.
       At the conclusion of the trial in this matter, the district court ordered that ITD pay
Canyon the amount of the judgment pursuant to I.C. § 7-714, which states that ―[t]he plaintiff
must, within thirty (30) days after final judgment, pay the sum of money assessed . . . .‖ There is
no question that ITD had to pay Canyon. There is also no question that if ITD wished to appeal
while maintaining possession of the condemned property (initially gained through stipulation of
the parties), it had to pay Canyon. This is because the Idaho Constitution states in relevant part
that ―[p]rivate property may be taken for public use, but not until a just compensation, to be
ascertained in the manner prescribed by law, shall be paid therefor.‖ IDAHO CONST. art. I, § 14.
More specifically, ―[t]he taking of possession of the land sought to be condemned under an order
for possession prior to final determination of the cause, is such a taking as requires the prior




                                            -3-
payment of just compensation.‖ Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 43, 287
P.2d 288, 292-93 (1955) (citations omitted).
       Idaho Code § 7-717 defines ―just compensation‖ and the manner in which it should be
paid in order to allow a plaintiff in the State’s position to continue in possession of condemned
property pending an appeal:
               At any time after trial and judgment entered, or pending an appeal from
       the judgment to the Supreme Court, whenever the plaintiffs shall have paid into
       the court for the defendant the full amount of the judgment, and such further sum
       as shall be required by the court as a fund to pay any further damages and costs
       that may be recovered in said proceedings, as well as all damages that may be
       sustained by the defendant, if for any cause the property shall not be finally taken
       for public use, the district court in which the proceeding was tried may, upon
       notice of not less than ten (10) days, authorize the plaintiff, if already in
       possession, to continue therein, and if not, to take possession of and use the
       property during the conclusion of the litigation, and may, if necessary, stay all
       actions and proceedings against the plaintiff on account thereof.
               The defendant who is entitled to the money paid into court for him upon
       any judgment, shall be entitled to demand and receive the same at any time
       thereafter, upon obtaining an order therefor from the court. It shall be the duty of
       the court, or the judge thereof, upon application being made by such defendant, to
       order and direct that the money so paid into court for him, be delivered to him
       upon his filing a satisfaction of the judgment, or upon his filing a receipt therefor,
       and an abandonment of all defenses to the action or proceeding, except as to the
       amount of damages that he may be entitled to in the event that a new trial shall be
       granted. A payment to a defendant as aforesaid shall be held to [be] an
       abandonment by such defendant of all defenses interposed by him, excepting his
       claim for greater compensation.
After trial, ITD sent a check directly to Canyon’s attorney with a letter specifying that the State
wished ―to make clear that this check is tendered pursuant to I.C. § 7-717, without the added
procedure of disbursing the funds through the court.‖ The letter also informed Canyon of the
State’s intention to appeal the verdict and judgment. Finally, the letter explained that the State
―will consider [Canyon’s] tendering of the check as consent to this abbreviated procedure.‖
       While we do not encourage disregard for the statute’s direction that a condemnor should
pay the judgment into the court, rather than directly to the condemnee, we agree that Canyon
brought the transaction within the ambit of the statute when it accepted ITD’s check. Therefore,
the question we must consider is whether, by satisfying the judgment and paying Canyon
pursuant to I.C. § 7-717, the State mooted its appeal.




                                            -4-
       ―Mootness . . . applies when a favorable judicial decision would not result in any relief.
This Court may only review cases in which a judicial determination will have a practical effect
on the outcome.‖ Fenn v. Noah, 142 Idaho 775, 779, 133 P.3d 1240, 1244 (2006). In this case,
whether a favorable judicial decision would result in any relief depends on our interpretation of
I.C. § 7-717. ―The interpretation of a statute is a question of law over which this Court exercises
free review.‖ Carrier v. Lake Pend Oreille School Dist., 142 Idaho 804, 807, 134 P.3d 655, 658
(2006). If we were to find that the jury rendered a verdict in excess of just compensation and
thus ordered Canyon to refund to the State any funds in excess of that amount, this appeal would
not be moot, because our judicial determination would have a practical effect on the outcome—
the State would recover some of its money.
       Idaho Code § 7-717 does not expressly provide for this possibility nor does the statute
preclude it. The statute simply does not address appeals at all. Idaho Code § 7-721, which
requires a plaintiff seeking to take possession of condemned land prior to trial to pay a judicially
determined amount of just compensation, provides that if the judgment and award at trial is less
than that judicially determined amount paid by the plaintiff, the defendant must remit to the
plaintiff any excess funds. It is not illogical to read I.C. § 7-717 as implying similar relief in a
case where the plaintiff prevails on appeal. This interpretation is in keeping with the general
trend among courts to permit an appeal despite satisfaction of the judgment in eminent domain
cases. 6A NICHOLS ON EMINENT DOMAIN § 26E.03[3][6] (2007); see also State v. Jay Six Cattle
Co., Inc., 335 P.2d 799 (Ariz. 1959) (holding that although an Arizona statute very similar to I.C.
§ 7-717 did not explicitly provide for recovery by the state from the condemnee of any amount
deemed excessive upon appeal, recovery would be appropriate as the condemnee was only
entitled to just compensation, not excessive compensation, and the appeal was therefore not
moot). For these reasons, we deny Canyon’s motion to dismiss the State’s appeal.
B. The State’s argument that the trial court, rather than the jury, should have decided the
scope of access rights taken was not preserved for appeal.
       The State urges that the trial court erred by not determining the scope of access rights, if
any, that were condemned and instructing the jury accordingly. It is probably true that the trial
court committed legal error. See Rueth v. State, 100 Idaho 203, 222-23, 596 P.2d 75, 94-95
(1978) (holding that in eminent domain proceedings, all issues other than just compensation,
including an accurate description of the property taken, are for resolution by the trial court and
not the jury); and also Ada County Highway Dist. v. Sharp, 135 Idaho 888, 892, 26 P.3d 1225,


                                             -5-
1229 (Ct. App. 2001) (holding that trial courts are expected to define the scope of a take where
access rights are at issue). The State, however, failed to raise this issue below, and it is thus not
preserved for review on appeal. Viveros v. State Dept. of Health and Welfare, 126 Idaho 714,
716, 889 P.2d 1104, 1106 (1995) (holding that issues presented for the first time on appeal will
not be considered).
       The State contends that the issue was presented to the district court by way of its motion
to bifurcate proceedings. Prior to trial, the State filed a motion to bifurcate the proceedings ―so
that the scope of the taking issues can be tried and resolved by the Court prior to the presentation
of the issue of just compensation to the jury.‖ In its brief in support of that motion, however, the
State did not indicate that it was seeking to have the trial court resolve the question of the scope
of access rights that were being taken. Rather, the motion arose from a disagreement between
the State and Canyon as to the scope of the full parcel before the taking. The State took the
position that the full parcel was comprised of four adjacent pieces of property because the same
four people owned the parcels by way of different legal entities. Canyon took the position that
the full parcel was only that piece of property owned by Canyon in fee simple. Thus, the State
asked that the district court, rather than the jury, determine the extent of the full parcel of land
prior to the taking. The motion was denied.
       Neither the motion to bifurcate nor the State’s briefing addressed the access issue. In
fact, the word ―access‖ does not appear anywhere in either the motion or the supporting brief.
For the first time on appeal, the State argues that the ―larger parcel‖ issue ―would have impacted
the access issue.‖ While it is undoubtedly true that resolution of the larger parcel issue would
have had implications as to the access issue, the State was obligated to alert the district court to
those implications. We are unwilling to hold that a party may preserve an issue for appeal
through silence. McKinsey v. Vernon, 130 Idaho 354, 357-58, 941 P.2d 326, 329-30 (1997)
(holding that a claim not made in complaint and not argued before the district court was not
preserved for appeal.)
       The State quotes the trial judge at the hearing on its motion to bifurcate as stating that it
was not going to ―inject itself‖ into this issue, implying that the issue to which the court was
referring was the issue of access. This is misleading. The trial court’s statement was part of the
following exchange with counsel for the State:




                                            -6-
               MR. MALLET:             If you want to let the jury decide the larger parcel
       issue, Your Honor, I think there’s case law that would suggest that that might be
       appropriate. There’s the case that we distinguished that seemed to think that
       that’s a call the jury could make.
               If you’re telling us, sell that one to the jury folks, we’ll certainly do that,
       Your Honor.
               THE COURT:              Well, I’m going to do this. For the – for the time
       being, I’m going to deny the motion to bifurcate. I will take a further look at it
       and decide, but I – it seems to me that the – the defendant’s position on this is
       correct. There’s no reason for the Court to inject itself into – in the manner that
       you’re suggesting . . . .
Not only was the State not arguing that the court should decide access issues, but it conceded that
the jury could decide the issue that it was urging the court to decide—the question of the larger
parcel. Therefore, even if we were to hold that the State’s raising of the access issue by
implication was enough to preserve it for appeal, the State waived its argument.
       Further indication that the State failed to raise the issue of whether the court should
decide access rights can be found in the State’s proposed jury instructions. The State asked the
trial court to instruct the jury to determine the issue of access rights. One of the State’s proposed
preliminary jury instructions stated:
               In deciding whether a right to access was taken from the property owner,
       you must first find that the property had a right of direct access to Pole Line Road
       in the before condition. If you find it did not, no right to access has been taken
       and the owners are not entitled to any compensation for a taking of access.
               If you find that the property owner had a right of direct access to Pole Line
       Road in the before condition, you then have to determine whether or not the
       remaining vehicular access to the property is reasonable. If all right to access the
       property were destroyed, or if the property was not left with reasonable access
       after the taking, then there was a taking of access which would entitle the property
       owner to compensation. Only then may you determine just compensation for the
       taking of that access.
While it is true that this instruction was proposed after the trial court denied the State’s motion to
bifurcate, it was not submitted in conjunction with any objection to the jury deciding the issue of
access, i.e., this instruction was not submitted as an attempt to mitigate a ruling from the trial
court in which it declined to determine the scope of access taken. Furthermore, the State, though
it made several objections to various jury instructions (discussed below), never objected to any
of the trial court’s instructions on the basis that those instructions failed to define the scope of
access rights taken. Instead, it appears as though the State was perfectly content with the jury
determining the issue of access rights until the jury returned an unexpectedly large verdict.


                                             -7-
        Evidently anticipating that we might recognize that it failed to preserve the issue for
appeal, the State points to two instances in Canyon’s trial court briefing to suggest that Canyon
raised the issue of access below. It is true that Canyon’s trial brief contains a section entitled
―Court Decides all Issues Except Value,‖ in which Canyon cited to Rueth v. State, 100 Idaho at
222-23, 596 P.2d at 94-95, for the proposition that the trial court must decide all issues other than
just compensation. The State fails to point out, however, that despite this reference, Canyon
ultimately took the position in its trial briefing that ―Access is Related to Value and Is a Fact
Question and a Jury Issue.‖ So, while Canyon may have quoted a correct statement of the law, it
advocated for a misapplication of that law, and the State made no argument to the contrary.
Accordingly, we conclude that the State has failed to preserve the issue for appeal. McKinsey v.
Vernon, 130 Idaho at 357-58, 941 P.2d at 329-30. Thus, we decline to address the issue of
whether the trial court, rather than the jury, should have determined the scope of access rights.1
C. The trial court did not err in admitting the order of condemnation.
        The State contends that the district court erred in admitting the order of condemnation
arguing, based on the decision in Ada County Highway Dist. v. Sharp, 135 Idaho 888, 26 P.3d
1225 (Ct. App. 2001), that it is irrelevant, and further that the admission of the order was
misleading and unfairly prejudicial.
        Evidentiary rulings involving relevancy are not discretionary matters, and as such, are
reviewed de novo on appeal. Gunter v. Murphy’s Lounge, LLC, 141 Idaho 16, 25, 105 P.3d 676,
685 (2005). In the event that a trial court errs in the admission or exclusion of evidence, we will
grant a new trial only if the error affected a substantial right. I.R.C.P. 61; I.R.E. 103; Burgess v.
Salmon River Canal Co., Ltd., 127 Idaho 565, 574, 903 P.2d 730, 739 (1995); Hake v. DeLane,
117 Idaho 1058, 1065, 793 P.2d 1230, 1237 (1990).
        In Sharp, there was a dispute whether the State had condemned access rights. The order
of condemnation stated that all of the condemnee’s access rights were to be extinguished and that
all future access would be prohibited. Sharp, 135 Idaho at 889-90, 26 P.3d at 1226-27. The



1
         After the parties submitted their appellate briefing to this Court, they submitted supplemental authority,
suggesting that our decision in Lochsa Falls, L.L.C. v. State, 147 Idaho 232, 207 P.3d 963 (2009) would have some
application to this appeal. The question in Lochsa Falls involved ITD’s ability to impose conditions upon a grant of
access to an existing controlled-access highway. We were not asked in Lochsa Falls, as we are in this case, to
consider a landowner’s right to access a public road before and after it becomes a controlled-access highway under
ITD’s jurisdiction.


                                                   -8-
complaint, however, made no mention of condemning access rights. Id. at 890, 26 P.3d at 1227.
The Idaho Court of Appeals held that:
               Idaho Code § 7-707, appearing in chapter 7 entitled ―Eminent Domain,‖
       pertains to the condemnation complaint and sets forth what it ―must contain,‖
       including ―a description of each piece of land sought to be taken, and whether the
       same includes the whole, or only a part, of an entire parcel or tract.‖ Idaho Code
       § 40-1310(3), appearing in a chapter entitled ―Highway Districts,‖ provides that
       the director of a highway district: ―shall have the right, subject to the order of the
       highway district commissioners, to begin action in the name of the highway
       district in the district court of the county in which the district is situated, to
       condemn the land necessary for the right-of-way for the highway, under the
       provisions of chapter 7, title 7, Idaho Code,‖ whenever the director cannot agree
       with any person for the purchase of land. This section further provides: ―An order
       of the highway district commissioners entered upon its minutes that the land
       sought to be condemned is necessary for a public highway and public use shall be
       prima facie evidence of the fact.‖ Neither of these code sections purport to state
       whether it is the order of condemnation or the complaint initiating the eminent
       domain action that is determinative in defining what land or what rights are
       sought to be condemned. It is this Court’s opinion, however, that I.C. § 7-707 is
       more specific and, perforce, controlling.
Id. at 891, 26 P.3d at 1228. In other words, the court did not determine that an order of
condemnation is per se irrelevant, but rather held that when there is a conflict between the order
and the complaint, the complaint controls.
       In the present case, we agree with the State that the order of condemnation was irrelevant,
as the complaint defined the nature and scope of the take. However, the admission of the order
of condemnation did not affect a substantial right of the State. This is because there is no
conflict between the order of condemnation and the complaint. The order states, in relevant part:
              That all rights of access to, from, and between the right of way of the
       public way and all of the contiguous remaining real property of the record
       owner(s) shall be extinguished and prohibited except for access, if any, as
       provided and shown on the said project plans . . . .
The complaint states ―[t]hat access is to be limited to that shown on [the project plans].‖ There
is no functional difference in the language of the two documents. For this reason, we conclude
that the admission of the order of condemnation does not entitle the State to relief on appeal.
D. The State’s objections to the trial court’s jury instructions were not preserved for
appeal or are without merit.
1. Instruction No. 12




                                             -9-
       Jury Instruction No. 12 states in relevant part that ―[a]ll direct access rights to Poleline
Road were acquired by the State of Idaho.‖            The State makes several objections to this
instruction. First, the State urges that this instruction ―begs the question as to what direct access
right existed before the take, a question that the trial court had the responsibility to answer.‖
Further, the State argues that the trial court erred in giving this instruction before hearing all of
the evidence and in basing the instruction upon the order of condemnation. The latter objection
is the only one that the State voiced prior to the instruction being given to the jury; therefore, it is
the only argument that is viable on appeal. I.R.C.P. 51(b); Bates v. Seldin, 146 Idaho 772, 775-
76, 203 P.3d 702, 705-06 (2009) (holding that if an appellant fails to make a specific objection to
a jury instruction before the jury retires to consider its verdict, the issue will not be preserved for
appeal pursuant to I.R.C.P. 51(b)); Jones v. Crawforth, 147 Idaho 11, 19-20, 205 P.3d 660, 668-
69 (2009).
       The State’s contention that the instruction was based upon the order of condemnation is
belied by the record. The district court made the following comments about this instruction:
               COURT:         Okay. We talked about this informally on Friday as far as
       Instruction 12 is concerned and we’re putting a ruling on the record. It’s the
       courts [sic] opinion that the complaint shows that the State was taking access to
       that property, highway access, direct access, to Pole Line Road from the
       condemned property. That’s why I think [Instruction No. 12] is . . . appropriate.
(Emphasis added.) Based on the foregoing, we conclude that the State’s only objection to Jury
Instruction No. 12 that was properly preserved for appeal is without merit.
2. Instruction No. 21
       Jury Instruction No. 21 states in relevant part that ―all the right of access to, from and
between the public right of way and all of the contiguous remaining property of Canyon Vista
has been extinguished and prohibited except for access, if any, as shown on the project plans.‖
The State argues that the instruction misstates the facts, because Canyon had direct residential
access both before and after the take, and that the instruction improperly relies on the order of
condemnation. Once again, the latter objection was the only one made at trial, and is therefore
the only objection we need consider. I.R.C.P. 51(b); Bates, 146 Idaho at 775-76, 203 P.3d at
705-06.      For the reasons explained above, the trial court’s admission of the order of
condemnation did not affect a substantial right of the State in that the order of condemnation was
consistent with the State’s prayer for relief in its complaint. Accordingly, the State’s only viable
objection to Jury Instruction No. 21 is without merit.


                                             - 10 -
3. Instruction No. 28
        Jury Instruction No. 28 states:
                In determining what uses and/or access would be allowed to Pole Line
        Road in the before condition, you are instructed that a landowner whose property
        abuts an existing roadway, [sic] has a property right which includes access to that
        roadway. The controlling governmental authority (City of Twin Falls) cannot
        deny all direct access to that roadway without payment of just compensation.
                You are further instructed, in determining what access is allowed or
        available, neither the City of Twin Falls nor the State of Idaho can require a land
        owner to join with adjacent property owners for the purpose of providing access
        to the subject property in an attempt to cure the access taken by the condemnation
        of Canyon Vista [sic] access rights to Pole Line Road. Nor could the City of
        Twin Falls, when considering a Planned Unit Development application in the
        before condition, require Canyon Vista to file a joint application with one or more
        adjoining parcels that have different ownership.
The State argues that this instruction misstates the law, because landowners do not have a
property right consisting of access to any particular street. The State also argues that the
instruction misstates the facts because it does not make clear that Canyon did not have direct
commercial access to Poleline Road before the take.             The State also complains that Jury
Instruction No. 28 informed the jury that the City could not force Canyon to develop its property
with its neighbors, but failed to let the jury know that the City would not necessarily give
permission to develop without doing so. The State continues that the instruction suffers from the
trial court’s failure to determine what access existed prior to the take and because it ignores the
issues of what commercial access the City may have given to Canyon and whether a regulatory
taking by the City may have occurred. Finally, because the City was not a party to the litigation,
the State alleges it was error for the instruction to imply that if the City had changed its access
policy prior to the take that the State would be required to pay for any loss of access.
        The State, once again, has raised objections to this Court that it failed to squarely present
at trial. The State’s objection, in its entirety, to Instruction No. 28 is as follows:
                MR. VOGT: With regard to the right of access, the instruction is a
        binding instruction. It instructs the jury on certain aspects of the law which we
        believe are not applicable to the law in this case.
                We don’t believe this is a case that the State is forcing the property owners
        to accept property in lieu of damages. We are simply stating that our theory of
        highest and best use includes a – includes evidence, beyond speculation, that
        certain requirements would be required of property owners.
                We believe the instruction is not in compliance with the statutory and
        constitutional provisions applicable to takings and regulatory takings. We believe


                                              - 11 -
        our highest and best use theory is beyond speculative. And we believe, quite
        frankly, it’s our theory of the case and we’re entitled to an instruction on that
        theory.
                We also believe the applicable law in this case is KMST v. Ada County,
        Leroy vs. Talbot, Meredith versus – Leroy v. Tahoe, and Meredith v. Talbot, in –
        out of the Ninth Circuit.
It is difficult to discern what exactly the State’s objections were,2 but of the arguments made to
this Court, it appears that the only one even referenced at trial pertains to whether Canyon would
have to meet ―certain requirements‖ before the City would allow it to develop its land.
Therefore, this Court need not address the State’s other objections to this instruction. I.R.C.P.
51(b); Bates, 146 Idaho at 775-76, 203 P.3d at 705-06.
        It is unclear whether the State’s single preserved objection to Jury Instruction No. 28
concerns Canyon’s development of its land in the before condition, the after condition, or both.
Although the State’s arguments on appeal are readily understandable, they differ from the
objection presented to the trial court. In light of the State’s failure to preserve a coherent
objection to Jury Instruction No. 28, we are unable to find error.
4. Instruction No. 33
        Jury Instruction No. 33 instructs the jury to disregard any project influence in
determining the value of the property prior to the take.                The State argues that while this
instruction correctly states the theory of project influence, it does not conform to the evidence
showing that the City had changed its approach toward granting commercial access in light of
the project: Canyon argued that project influence occurred as early as 1993, and that if that is
true, a regulatory taking by the City may have occurred, and thus the State cannot be liable for
severance damages as of the date of the take.
        Once again, the State raises this argument on appeal without having squarely presented it
to the trial court. The State’s only objection to this instruction was that:
        [G]iven the project influence, we believe it is against public policy to allow an
        instruction that – that allows the jury to consider all of our planning processes, all
        of our public discussion, and we believe that there was evidence presented that


2
         The first two references appear to be to KMST, LLC, v. County of Ada, 138 Idaho 577, 67 P.3d 56 (2003)
and Leroy Land Development v. Tahoe Regional Planning Agency, 939 F.2d 696 (9th Cir. 1991). There is no
reported decision from an appellate court of this State or from the Ninth Circuit Court of Appeals in which the
names ―Meredith‖ and ―Talbot‖ appear in the caption nor does the parties’ briefing cite such a case. In both KMST
and Leroy Land, the respective courts found voluntary actions by developers did not constitute a taking. These
holdings are not apposite to the issues identified by the State on appeal.


                                                 - 12 -
       found that the State committed to the project January, 2000, and we believe that
       should be included in – in the instruction.
This objection makes no reference to the city, to any regulatory taking, or to 1993. The objection
could be interpreted to mean that the State wished the jury to be precluded from considering
evidence of project influence prior to January 2000, but there is no explanation for why such a
limitation would have been significant. In short, the objection made at trial was vague and did
not expressly present to the trial court the position the State now takes on appeal. Accordingly,
we decline to consider that position. I.R.C.P. 51(b); Bates, 146 Idaho at 775-76, 203 P.3d at
705-06.
5. Jury Instruction No. 38
       Jury Instruction No. 38 instructs the jury on the law of exactions. The State argues on
appeal that this was confusing to the jury because the State does not have the power of exaction
and it was not an issue in deciding what the State took in this case. The State’s objection at trial,
however, was that:
       [W]hile we believe it is a correct instruction on the law of exactions, as it’s
       outlined in the Nolan [sic] and Dolan cases, we believe that more than speculative
       evidence has been presented in this case that shows there is a third issue, under
       the law of exaction, dealing with development agreements, and we believe that
       instruction is not contained in No. 38 . . . .
Contrary to the position the State now takes, the objection at trial makes no mention of the
State’s lack of power to impose exactions and does not indicate that exaction is not an issue, but
rather urges that the issue is broader than the instruction indicates. Again, the State’s objection
was not preserved for appeal. I.R.C.P. 51(b); Bates, 146 Idaho at 775-76, 203 P.3d at 705-06.
6. Jury Instructions as a Whole
       The State argues that because the jury instructions asked the jury to determine the access
that would have been permitted in the before condition while simultaneously telling it that the
sole issue for its determination was the amount of just compensation, the instructions as a whole
were confusing. The State further argues that the City should not have been mentioned in the
instructions because the City was not on trial. The State made no such objections at trial, and we
decline to consider them now. Id.
E. The district court did not err in awarding Canyon attorney fees.




                                            - 13 -
         The State argues that the trial court abused its discretion in awarding Canyon attorney
fees because it relied on Canyon’s contingency fee agreement with its attorneys and failed to set
forth in writing the factors listed in I.R.C.P. 54(e)(3).3
         An award of reasonable attorney fees to the condemnee in an eminent domain proceeding
is a matter for the trial court’s guided discretion and will be overturned only upon a showing of
abuse.       Ada     County     Highway       Dist.    By    and    Through       Fairbanks      v.   Acarrequi,
105 Idaho 873, 877, 673 P.2d 1067, 1071 (1983).
         As to the amount of attorneys’ fees awardable, we deem the criteria outlined in
         I.R.C.P. 54(e)(3) to be appropriate in condemnation, as in all other civil cases. We
         caution that the court should not automatically adopt any contingent fee or
         contractual arrangement, but rather the fee awarded may be more or less than that
         provided in the lawyer-client contract.
Id. at 878, 673 P.2d at 1072. This Court has held that I.R.C.P. 54(e)(3) does not require the
district court to make specific findings in the record, but does require the court to consider the
stated factors in determining the amount of the fees. Smith v. Mitton, 140 Idaho 893, 902, 104
P.3d 367, 376 (2004).
         In this case, the district court did not automatically adopt the contingency fee agreement
or neglect to consider the factors enumerated in I.R.C.P. 54(e)(3). The trial court found ―the
work performed by the defendants’ attorneys to be both reasonable and necessary. In this case,
the Court finds a contingency agreement to be a reasonable manner to calculate attorney’s fees
because this is an exceptional case and exceptional hours were required to defend it.‖ This
statement does not reflect a blind adoption of the contingency fee agreement. To the contrary, it
can only be interpreted as demonstrating the district court’s consideration of the factors outlined

3
         The factors listed in I.R.C.P. 54(e)(3) are:
(A) The time and labor required.
(B) The novelty and difficulty of the questions.
(C) The skill requisite to perform the legal service properly and the experience and ability of the attorney in the
particular field of law.
(D) The prevailing charges for like work.
(E) Whether the fee is fixed or contingent.
(F) The time limitations imposed by the client or the circumstances of the case.
(G) The amount involved and the results obtained.
(H) The undesirability of the case.
(I) The nature and length of the professional relationship with the client.
(J) Awards in similar cases.
(K) The reasonable cost of automated legal research (Computer Assisted Legal Research), if the court finds it was
reasonably necessary in preparing a party’s case.
(L) Any other factor which the court deems appropriate in the particular case.



                                                  - 14 -
in I.R.C.P. 54(e)(3), as the district court’s statement clearly articulates its evaluation of the
request for attorney fees in light of I.R.C.P. 54(e)(3)(A) and (B). The State does not identify any
factors that militate against the award.      Accordingly, we hold that the State has failed to
demonstrate that the district court abused its discretion in awarding attorney fees to Canyon.
F. Canyon is entitled to attorney fees on appeal.
       Canyon requests attorney fees on appeal ―pursuant to I.A.R. 40 and I.A.R. 41, as well as
the reasoning set forth by this Court in previous condemnation cases.‖ Canyon cites to several of
those cases as well as to I.C. § 7-718 in support of its request. The State argues that attorney fees
are not warranted because attorney fees in condemnation cases are not mandatory and should not
be given in this case considering the legal issues and the failure of the trial court to determine the
scope of the take in this case.
       Attorney fees are allowable in eminent domain proceedings, but are not mandatory as
being within the definition of just compensation. Acarrequi, 105 Idaho at 876, 673 P.2d at 1070.
―According to the great weight of authority, attorneys’ fees and other expenses are not
recoverable in a condemnation proceeding except as authorized by statute.‖ Id. at 875, 673 P.2d
at 1069 (citations omitted). Idaho Code § 7-718 states in relevant part that ―[c]osts may be
allowed [in an eminent domain proceeding].‖
       An award of attorney fees on appeal is appropriate in this case. The only arguments that
the State has properly raised on appeal relate to whether the district court erred in admitting the
order of condemnation and whether the district court erred in awarding Canyon attorney fees. As
discussed, neither of these arguments has merit. For this reason, we award Canyon attorney fees
on appeal.
                                        IV. CONCLUSION
       We deny Canyon’s motion to dismiss the appeal. None of the State’s objections and
arguments, except those regarding the trial court’s admittance of the order of condemnation and
its award of attorney fees, are properly raised on appeal. The State has not shown that it is
entitled to relief based upon the district court’s admission of the order of condemnation or that
the district court erred in awarding Canyon attorney fees. We award Canyon attorney fees and
costs on appeal.

       Chief Justice EISMANN, Justices BURDICK, J. JONES, and Justice Pro Tem
KIDWELL CONCUR.


                                            - 15 -
