                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 36647-2009

CURTIS-KLURE, PLLC, dba Maple Grove                )
Dentistry, and JACK D. KLURE, D.D.S.,              )       Boise, January 2011 Term
                                                   )
       Plaintiffs-Appellants,                      )       2011 Opinion No. 13
                                                   )
v.                                                 )       Filed: February 2, 2011
                                                   )
ADA COUNTY HIGHWAY DISTRICT,                       )       Stephen W. Kenyon, Clerk
                                                   )
       Defendant-Respondent.                       )
                                                   )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, in and for Ada County. The Hon. Deborah A. Bail, District Judge.

       The judgment of the district court is affirmed.

       Givens Pursley LLP, Boise, for appellants. Martin C. Hendrickson argued.

       Holland & Hart LLP, Boise, for respondent. Mary V. York argued.




EISMANN, Chief Justice.


                         I. FACTS AND PROCEDURAL HISTORY
       This case arises out of a construction project to improve the intersection of Maple Grove
Road and Ustick Road. Thomas Curtis, D.D.S., (Dr. Curtis) and his wife owned interests in
three parcels of real property located in Block 1 in the Fairbanks Subdivision, which is the
northeast quadrant of the intersection. They owned Lot 19, on which was constructed a dental
office. In addition, they owned an undivided one-third interest in Maple Grove Parking LLC,
which owned Lot 17, and an undivided one-third interest in Maple Grove Professional Center
Owner’s Association, Inc., which owned Lot 16. Lots 16 and 17 were common areas used
primarily for parking.
       Jack Klure, D.D.S., (Dr. Klure) and Dr. Curtis were co-owners of a professional limited
liability company known as Curtis-Klure, PLLC, through which they did business as Maple
Grove Dentistry. Dr. Curtis leased Lot 19, including the building located thereon, to Curtis-
Klure under a written, ten-year lease that ended on December 31, 2006. The lease also provided
that Curtis-Klure could renew the lease for two additional five-year terms.
       In late 2005, the Ada County Highway District (ACHD) desired to widen Ustick Road
and Maple Grove Road. To do so it needed to obtain a strip of real property thirteen feet wide
along the east side of Maple Grove Road and the north side of Ustick Road. The total length of
the strip was one-thousand feet. It would cross Lots 16 and 17, but it would not encroach upon
any portion of Lot 19. However, it would result in the public sidewalk along the north side of
Ustick Road being within several feet of the south side of the building located on Lot 19.
       In January 2006, ACHD contacted Dr. Curtis to negotiate the purchase of the portion of
Lots 16 and 17 needed for the road widening. In May 2006, Dr. Curtis countered with an offer to
sell ACHD all of his interest in Lots 16, 17, and 19. ACHD had the properties appraised and
offered to purchase them. While Dr. Curtis and ACHD were negotiating the terms of an
agreement between them, he agreed to give ACHD access to a portion of the properties. On
November 20, 2006, they entered into a “Right of Entry Agreement” which allowed ACHD to
begin construction on the strip of property it needed, but the agreement expressly provided that
“ACHD warrants that it will make every effort reasonably possible to prevent disruption of the
business operations on the Property during the term of this Agreement.” The Agreement would
terminate upon the closing of the purchase of the three properties.
       Curtis-Klure did not renew its written lease with Dr. Curtis prior to its expiration on
December 31, 2006, but it continued occupying the building under a month-to-month tenancy.
In April 2007, Dr. Klure moved his dental practice out of the building. On June 22, 2007, Dr.
Curtis, his wife, and Curtis-Klure entered into a “Settlement Agreement” with ACHD under
which ACHD agreed to purchase the Curtises’ interests in the three properties. It also provided
that it settled all claims the Curtises may have against ACHD. Dr. Curtis and Curtis-Klure
terminated the month-to-month tenancy in the building, and in June 2007, Dr. Curtis relocated
his practice. The settlement agreement did not provide for any compensation to Dr. Klure.
       On September 14, 2007, Curtis-Klure and Dr. Klure (herein both called “Dr. Klure”) filed
this action seeking damages from ACHD. Both sides moved for summary judgment, and the
district court granted summary judgment in favor of ACHD. It entered judgment dismissing all
of Dr. Klure’s claims, and he appealed.


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                                    II. ISSUES ON APPEAL
A. Did the district court err in holding that Dr. Klure is not entitled to recover business damages
under Idaho Code § 7-711(2)?
B. Is either party entitled to an award of attorney fees on appeal?


                                         III. ANALYSIS
A. Did the District Court Err in Holding that Dr. Klure Is Not Entitled to Recover
Business Damages Under Idaho Code § 7-711(2)?
       In an appeal from a summary judgment, this Court’s standard of review is the same as the
standard used by the trial court in ruling on a motion for summary judgment. Infanger v. City of
Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). All disputed facts are to be
construed liberally in favor of the non-moving party, and all reasonable inferences that can be
drawn from the record are to be drawn in favor of the non-moving party. Id. at 47, 44 P.3d at
1102. Summary judgment is appropriate if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. Id. If the evidence reveals no
disputed issues of material fact, then only a question of law remains, over which this Court
exercises free review. Id.
       Idaho Code § 7-711(2) provides that “[i]f the property sought to be condemned
constitutes only a part of a larger parcel,” recovery can be awarded for “the damages to any
business qualifying under this subsection having more than five (5) years’ standing which the
taking of a portion of the property and the construction of the improvement in the manner
proposed by the plaintiff may reasonably cause.”
       In order for Idaho Code § 7-711(2) to apply, there first must be “property sought to be
condemned.” ACHD could not have condemned all of the property that it purchased from the
Curtises. Before property can be condemned, it must appear that the proposed use is authorized
by law and that “the taking is necessary to such use.”           Idaho Code § 7-704(2); accord
Independent School Dist. of Boise City v. C. B. Lauch Constr. Co., 78 Idaho 485, 488, 305 P.2d
1077, 1078 (1957) (“Under our statute, the condemnor must first establish that the taking is
necessary to the intended use.”). ACHD could not have condemned any portion of the property


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leased by Curtis-Klure (Lot 19), nor could it have condemned most of Lots 16 and 17 that it
purchased. Those properties were not necessary for the intended construction project.
        Dr. Klure asks that we follow cases from other jurisdictions that hold a purchase under
the threat of condemnation by an entity with that power is the same as a judicial condemnation.
However, in this case, the undisputed facts are that the ACHD did not purchase the property, or
any portion thereof, under the threat of condemnation.           Before it could proceed with
condemnation, its Commissioners would have to issue an Order of Condemnation, and they had
not done so. Rather, ACHD approached Dr. Curtis seeking to purchase portions of Lots 16 and
17, and he countered by offering to sell it his interest in those lots and Lot 19, on which Maple
Grove Dentistry was located. Ultimately, ACHD negotiated the purchase of all three lots.
        The district court correctly concluded, based upon the undisputed facts in the record, that
“[t]he property was sold by its owner, Dr. Curtis, based upon his counter-proposal, after an arms-
length and protracted negotiation for the sale of all of his property interests at Maple Grove and
Ustick.” None of the property purchased by ACHD was “property sought to be condemned.”
The mere attempt by ACHD to purchase a portion of the Curtises’ property was not equivalent
to seeking to condemn it, nor was purchasing the property equivalent to condemning or taking it.
The mere fact that ACHD had the power of condemnation did not transform its offer to purchase
into either a threat of condemnation or an attempted condemnation. We affirm the judgment of
the district court.


B. Is Either Party Entitled to an Award of Attorney Fees on Appeal?
        Dr. Klure seeks attorney fees on appeal if he “prevails in this action and recovers
business damages against ACHD.” Since he has not prevailed, he is not entitled to attorney fees
for the appeal.
        In its brief, ACHD stated that it was entitled to recover attorney fees on appeal under
Idaho Code § 12-121, but it did not present any argument on this issue. Therefore, it is not
entitled to an award of attorney fees on appeal. Carroll v. MBNA America Bank, 148 Idaho 261,
270, 220 P.3d 1080, 1089 (2009).




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                                  IV. CONCLUSION
       We affirm the judgment of the district court. We award respondent costs, but not
attorney fees, on appeal.


       Justices BURDICK, J. JONES, HORTON and J. Pro Tem KIDWELL CONCUR.




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