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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 36429

JACKIE LEE PAGE and TERESA 

JOLENE PAGE,

 Plaintiffs-Appellants,

v.

PETE PASQUALI III; THE RUPE 

COMPANIES, INC., an Oregon 

corporation dba LANDAMERICA 

TRANSNATION; and DOES 1 through 10,

 Defendants-Respondents,

and

FIRST AMERICAN TITLE COMPANY 

OF IDAHO, INC., an Idaho corporation,

 Defendant.

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Boise, December 2010 Term

2010 Opinion No. 139

Filed: December 23, 2010

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada 

County. Hon. Michael R. McLaughlin, District Judge. 

District court grant of summary judgment, affirmed.

Mimura Law Offices, PLLC, Caldwell, for appellants. Randall S. Grove argued.

Deborah M. Nesset, Boise, argued for respondents. 

__________________________________

BURDICK, Justice

The issue before this Court is the interpretation of a promissory note secured by a deed of 

trust. The language of the promissory note and deed of trust is clear. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jackie and Teresa Page (the “Pages”) purchased property (the “Property”) in Placerville, 

Boise County, Idaho on October 18, 1995, and assumed an existing indebtedness in the principal 

amount of $48,919.61 under a promissory note (the “Note”) executed on August 10, 1994, in 

favor of Respondent Pete Pasquali III (Pasquali). The Note was secured by a Deed of Trust on 
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the property. The Note accrued interest at a rate of eight percent per annum and was to be paid 

in monthly installments of $366.88.

In 2002, due to heavy snowfall and alterations that the Pages made to the Property, the 

Pages suffered roof damage and eventually received a settlement check under their insurance 

policy for $29,432.03. Pasquali, who was listed as the loss payee on the insurance policy, sent

$21,432.03 of the settlement check (the “Payment”) to Respondent Rupe Companies, Inc., dba 

LandAmerica Transnation (“Rupe”) to be applied to the Note and gave the remaining $8,000 to 

the Pages. Rupe applied $201.80 from the Payment to the interest then owed on the Note and 

applied the rest of the Payment to pay down the principal debt.

On October 6, 2004, Rupe, acting as servicing agent on the Note, sent notices of default 

to the Pages for failure to make monthly payments, failure to pay 2003 property taxes and failure 

to provide evidence of homeowner’s liability insurance as required by the terms of the note. The 

Plaintiffs filed for bankruptcy in an effort to stop the sale of their home but the petition was 

dismissed. On July 20, 2005, Respondent First American Title Company (First American), 

acting as successor trustee on the deed of trust, sold the Property at a trustee’s sale.

The Pages filed a complaint on July 19, 2007, asserting the following causes of action: 

(1) negligence against Rupe in crediting and applying the payments; (2) breach of contract 

against Rupe for demanding payments that were not due; (3) breach of contract against Pasquali 

for sending the Notice of Default when all payments had been made; (4) conversion against First 

American for advertising and selling the Property; (5) breach of fiduciary duty against Rupe and 

First American for foreclosing on and selling the Property; (6) negligence against First American 

for not properly inquiring into the payments made on the Note or for misreading the Note’s 

terms; and (7) infliction of emotional distress against Pasquali, Rupe and/or First American for 

causing distress, betrayal, anxiety and anger that has significantly impacted the Pages. 

Underlying each claim, the Pages argued that they never defaulted, and that their home was 

wrongfully sold, because the Payment should have been credited as fifty-eight future monthly 

payments instead of paid on the principal debt.
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First American filed a motion for summary judgment on October 17, 2008, which was 

denied in part and granted in part on October 28, 2008.1 Pasquali and Rupe filed a joint motion 

for summary judgment, which was granted on January 5, 2009. On January 15, 2009, the district 

court entered a judgment in favor of Pasquali and Rupe, dismissing all claims against them. On 

February 25, 2009, the district court denied the Pages’ motion for reconsideration. On March 9, 

2009, the district court entered a I.R.C.P. 54(b) certificate of final judgment. The Pages appeal 

from the district court’s grant of summary judgment in favor of Pasquali and Rupe and from the

denial of their motion for reconsideration.

II. STANDARD OF REVIEW

As noted in Vavold v. State:

When reviewing an order for summary judgment, the standard of review 

for this Court is the same standard as that used by the district court in ruling on 

the motion. 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.” I.R.C.P. 56(c). Disputed facts should be construed 

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. This Court 

exercises free review over questions of law.

148 Idaho 44, 45, 218 P.3d 388, 389 (2009) (quoting Armstrong v. Farmers Ins. Co., 147 Idaho 

67, 69, 205 P.3d 1203, 1205 (2009)).

As stated in Elliot v. Darwin Neibaur Farms:

Construction of the meaning of a contract begins with the language of the 

contract. If the contract's terms are clear and unambiguous, the determination of 

the contract's meaning and legal effect are questions of law and the meaning of 

the contract and intent of the parties must be determined from the plain meaning 

of the contract's own words. If, however, the contract is determined to be 

ambiguous, the interpretation of the document is a question of fact which focuses 

upon the intent of the parties.

In determining whether a contract is ambiguous, this Court ascertains 

whether the contract is reasonably subject to conflicting interpretation. The 

determination and legal effect of a contractual provision is a question of law 

where the contract is clear and unambiguous, and courts cannot revise the contract 

in order to change or make a better agreement for the parties.

138 Idaho 774, 779, 69 P.3d 1035, 1040 (2003) (internal citations and quotations omitted).

 

1 Of the five claims against First American, the district court granted summary judgment in favor of First American 

on the claims of conversion, breach of fiduciary duty and negligent infliction of emotional distress but not on the 

claims of negligence and intentional infliction of emotional distress. 
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III. ANALYSIS

A. The Pages defaulted on the Note.

Pasquali, as beneficiary of the insurance policy, was free to determine how much of the 

insurance settlement to apply to the indebtedness remaining on the Note and how much to give to 

the Pages. The Deed of Trust, dated August 10, 1994, states in paragraph two:

To protect the security of this Deed of Trust, Grantor Agrees: . . . To provide, 

maintain and deliver to Beneficiary [Pasquali] fire insurance satisfactory to and 

with loss payable to Beneficiary. The amount collected under any fire or other 

insurance policy may be applied by Beneficiary upon any indebtedness secured 

hereby and in such order as Beneficiary may determine, or at option of 

Beneficiary the entire amount so collected or any part thereof may be released to 

Grantor. Such application or release shall not cure or waive any default or notice 

of default hereunder or invalidate any act done pursuant to such notice.

(Emphasis added). Pasquali gave $8,000 of the insurance settlement to the Pages and gave the

Payment (the remaining $21,432.03) to the escrow holder, Rupe, to be applied to the Note. The 

Note permits prepayments, as it refers to “permitted prepayments.” The Note also provides: 

“Unless otherwise specified hereinabove; each payment shall be credited first on interest then

due and the remainder on principal, and interest shall thereupon cease upon the principal so 

credited.” (Emphasis added). Rupe applied the Payment to the interest then due on the Note, 

$201.80, and applied the remainder of the Payment, $21,228.32, to the principal debt. There was 

no evidence of an agreement to treat the insurance proceeds any differently than the plain 

language of the Note and Deed of Trust instructed, and Pasquali and Rupe acted within the terms 

of the agreement. 

The Pages argue that the Payment, after being applied to pay the interest then due, should 

have been credited to fifty-eight future monthly payments on the Note. The loan documents do 

not support this interpretation. Monthly payments consist of both interest and principal. The

payment provision of the Note provides that each payment is to be credited first on interest then 

due and the remainder is to be applied to principal. When the Payment was made, only $201.80 

in interest was then due. The remainder of the Payment, $21,228.32, therefore, had to be applied 

to principal, which is what Rupe did by applying $21,228.32 to the principal debt balance. Had 

Rupe instead credited $21,228.32 to future monthly payments, as the Pages argue should have 

been done, then the remainder would have been applied to both principal and interest, which 

conflicts with the terms of the Note.
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Furthermore, even if we were to accept the Pages’ argument, the Pages would still be in 

default. The failure to make monthly payments is only one of three grounds upon which the 

district court found the Pages were in default. The district court found that the Pages were also 

in default for failing to pay taxes and for failing to maintain insurance, but the Pages did not 

appeal these alternate grounds for summary judgment.

B. Respondents are awarded attorney fees on appeal.

Respondents request attorney fees pursuant to I.C. §§ 12-117, 12-121 and 12-123. 

Attorney fees pursuant to I.C. § 12-121 are “appropriate when this Court is left with an abiding 

belief that the appeal has been brought or defended frivolously, unreasonably, or without 

foundation.” Karlson v. Harris, 140 Idaho 561, 571, 97 P.3d 428, 438 (2004). Since the Pages

failed to argue that the alternative grounds for summary judgment were in error, we award

attorney fees to Respondents pursuant to I.C. § 12-121. See Andersen v. Professional Escrow 

Services, Inc., 141 Idaho 743, 746, 118 P.3d 75, 78 (2005) (awarding attorney fees pursuant to 

I.C. § 12-121 where appellants “failed to argue that the alternative grounds for granting the

summary judgment were in error”).

IV. CONCLUSION

The summary judgment is upheld. Attorney fees and costs to respondents.

Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.