JEANETTE HOFFMAN DON THOMAS MARI THOMAS BRIAN NELSON LOUISE LUSTER LYNDA SNODGRASS LANCE HALE MONIQUE HALE ROXANNE METZ AL THORNTON TONI THORNTON BLAIR HAGERMAN DARRIN HENDRICKS LESLIE CURFMAN MIKE ZEHNER JOSE FRANCA KAREN CROSBY CHUCK BOYER KIM BLOUGH v. THE BOARD OF THE LOCAL IMPROVEMENT DISTRICT NO 1101 BOARD OF ADA COUNTY COMMISSIONERS (2017)

PETITION FOR REHEARING I.A.R. 42

COMES NOW Appellants, by and through her counsel of record, John L. Runft, of Runft & Steele Law Offices, PLLC, and pursuant to Idaho Appellate Rule 42, and respectfully petitions the Court for rehearing in the above captioned matter, in which Opinion No. 153 was issued on December 21, 2016, and Amended on January 4, 2017 and issued as Opinion No. 153A (hereinafter referred to as “Op 153A”).

As recited in Op 153A at pp 2 - 3, on December 22, 2014, the parties to this appeal engaged in mediation before senior district judge Duff McKee. The mediation was ostensibly successful and the parties signed a mediation memorandum handwritten by Judge McKee, which stated as follows in the following format:

County and LID will pay its own litigation costs and fees, and waive any claim against Appellants for costs and fees.

All parties to stipulate to dismissal of all claims, with prejudice and without fees and costs.

Appellant property owners to be responsible for LID assessment fees as originally billed, plus accrued interest.* Appellants to pay their own legal costs and fees, including their 1//2 of mediation fee.

* Property owner to be provided w/ curre3nt statement of amounts due as of 10/1/14 including interest; Owner to have 30 days from date of close on this agreement to pay off the LID plus interest, or to pay the annual installment, plus annual interest (plus security fund deposit if required).

By this Petition, Appellants seek a rehearing on the issue of whether the District Court below in this matter erred in concluding that there were “genuine issues of material fact regarding whether there was a sufficient meeting of minds to form an enforceable settlement agreement.” Op 153A, p.4; District Court Memorandum Decision and Order (“Dist. Ct. Order”), p.6. The essential disagreement between the parties that arose following the mediation concerned whether the settlement included resolution of certain matters outside of the pleadings. As Appellants' then counsel, Mr. Schoppe, advised Appellees' counsel via email dated 01-05-15 (Court's Record on Appeal (“R”), pp 561-562), following review of the “stipulation” submitted by Appellees' counsel containing general release provisions and titled “Unconditional Settlement Agreement,” such matters outside of the pleadings were not resolved by the mediation agreement:

Further, my clients want to make it very clear that the settlement releases no potential claims against Eagle Water Company, Moore, Smith, Buxton & Turke, and /or The Sage Acres HOA, none of which are parties here, but some of which might claim to have been agents, representatives, etc.”

Appellants submit that the breadth of the stipulation set forth in the second sentence of the Mediation Memorandum (“All parties to stipulate to dismissal of all claims, with prejudice and without fees and costs”) is limited to the claims pled. This second sentence is set forth in the Mediation Memorandum as a stand-alone paragraph, and is independently sufficient to describe the bounds of the stipulation. It is not ambiguous and therefore not subject to parol evidence and judicial interpretation based thereon. “Dismissal of all claims, with prejudice” can only refer to the claims that were pled, and since pled claims are the only claims that can be “dismissed”; i.e. unalleged claims cannot be “dismissed.” The wording of said second sentence is express, specific, and definite. Appellees are engaged in an ex post facto attempt to insert this additional meaning into the settlement that was not agreed to in order to interpret the settlement agreement to show that there was no “meeting of the minds.”

The most important sentence (second sentence) in Judge McKee's Memorandum of the Settlement is capable in itself of being reduced to certainty. Giacobbi Square v. PEK, 105 Idaho 346, 348, 670 P.2d 51, 53 (1983) at p.6 of the Opinion. Said second sentence is a certain, specific, comprehensive statement, having sufficient meaning in itself, independent of any other agreements or interpretations. This is not a vague or ambiguous in any way. The alleged vagueness does not exist and therefore the rules of evidence prohibit the use of parol or extrinsic evidence to interpret the settlement agreement to show that there was no “meeting of the minds.

Thus, the District Court's Memorandum Decision is erroneous in this regard and should not be upheld on the grounds and for the reasons set forth in Appellants Brief in Support of Petition for Rehearing, to be subsequently filed.

RUNFT & STEELE LAW OFFICES, PLLC

By: JOHN L. RUNFT Attorney for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this l l t h day of January 2017 I caused to be served a true and correct copy of the foregoing PETITION FOR REHHEARING in the above-captioned matter by the method indicated below and addressed to the following:

Lynette M. Davis ___Via Facsimile Hawley Troxell ___Via Personal 877 Main St. ___Via U.S. Mail Suite 1000 ___Via E-mail Boise, ID 83702 Attorney for Respondents

RUNFT & STEELE LAW OFFICES, PLLC

By: JOHN L. RUNFT Attorney for Appellants