VAL THORNTON v. KENNETH BARRETT DEANNA BARRETT (2016)

PETITION FOR REHEARING AND CERTIFICATION OF COUNSEL

TO THE HONORABLE CHIEF JUSTICE AND TO THE ASSOCIATE MEMBERS OF THE IDAHO SUPREME COURT:

PETITIONER/APPELLANT John Thornton, hereafter Thornton, by and through his undersigned counsel, and INTERVENOR Val Thornton, pro se, hereby submit their petition and certification of counsel and respectfully request the Court for a rehearing pursuant to Idaho Appellate Rule 42, as follows:

1. The appeal in the cause was argued before this Court on August 30, 2016.

2. On September 14, 2016, this Court rendered its decision in favor of Respondents Barretts and against Appellants Thornton and Counsel, affirming the judgment of the District Court.

3. Although the lower court believed that the grantors ' land comprised a single parcel, the Supreme Court erroneously held that it is irrelevant that the grantors actually owned two separate parcels; where the easement was reserved from only one of the parcels, precedence and common law followed by the majority of jurisdictions, including Idaho, shows that the relevant inquiry in determining the dominant parcel to an easement is whether there was unity of title with the burdened land at the time the easement was created;

4. The Court has erroneously interpreted the Warranty Deed and the easement grant contained therein, holding that a conveyance of a portion of one parcel, reserving an easement to the grantors, automatically confers the benefit of the easement appurtenant to all other adjoining parcels also owned by the grantors.

5. The Court has erroneously upheld sanctions upon the possible basis that Appellants concealed the Warranty Deed by not including the same as an attachment to the Complaint, where no such pleading requirement exists, discovery was not complete when Defendants filed summary judgment, and the Warranty Deed was already before the court, and in the possession of the Defendants at all relevant times, as an attachment to Defendant's Answer and Counterclaim.

6. Appellant respectfully submits, and his memorandum of law will show that this Court's conclusion is contrary to this Court's prior opinions and to the common law regarding easement reservations followed by the Idaho Supreme Court in prior cases, and delineated in the Restatement Third of Servitudes. See Christensen v. City of Pocatello, 142 Idaho 132, 136,124 P.3d 1008, 1012 (2005). Tungsten Holdings, Inc. v. Drake, 143 Idaho 69, 137 P.3d 456 (2006); Mortensen v. Stewart Title Guar. Co., 149 Idaho 437, 235 P. 3d 387 (2010); Coward v. Hadley, 150 Idaho 282, 246 P.3d 391 (2010). Capstar Radio Operating Co. v Lawrence, 153 Idaho 411, 424, 283 P. 3d 728, 741 (2012); Machado v Ryan, 153 Idaho 212, 280 P.3d 715 (2012);

6. Therefore, petitioner believing that a reexamination of the record and of the authority and precedence in Idaho and other jurisdictions governing the creation and conveyance of servitudes, respectfully submits that a rehearing should be had and the decision revised, and that a miscarriage of justice will occur if this case is not reversed.

Val Thornton, Attorney for Appellants

CERTIFICATION OF COUNSEL

VAL THORNTON, hereby certifies upon penalty of perjury as if sworn upon by oath, that the foregoing petition is submitted in good faith, with the sincere goal of avoiding an injustice, and correcting the court's erroneous decision, and not for purposes of delay.

DATED this 3rd day of October, 2016.

CERTIFICATION OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing was delivered as indicated on the day 3rd day of October, 2016, to:

MICHAEL G. SCHMIDT

LUKINS & ANNIS, P.S.

601 E. Front Avenue, Suite 502

Coeur d'Alene ID 83814-5155

x mailed, postage prepaid

_faxed to (208) 664-4125

_hand-delivered