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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 35472

VILLA HIGHLANDS, LLC, an Idaho limited 

liability company, 

 

 Plaintiff-Appellant, 

 

v. 

 

WESTERN COMMUNITY INSURANCE 

CO., an Idaho corporation, FARM BUREAU 

INSURANCE COMPANY OF IDAHO, an 

Idaho corporation; and DOES I-V, 

 

 Defendants-Respondents. 

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WESTERN COMMUNITY INSURANCE 

CO., an Idaho corporation,

 

 Counterclaimant-Respondent, 

v. 

 

VILLA HIGHLANDS, LLC, an Idaho limited 

liability company, 

 

 Counterdefendant-Appellant. 

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Boise, December 2009 

2010 Opinion No. 17

Filed: February 9, 2010

Steven W. Kenyon, Clerk

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

County. Hon. Darla S. Williamson, District Judge.

District court decision on insurance claim, affirmed.

Perkins Coie, LLP, Boise, for appellant. Richard C. Boardman argued. 

Anderson, Julian & Hull, LLP, Boise, for respondent. Robert A. Anderson 

argued.

________________________________

BURDICK, Justice

This case involves a dispute over an insurance claim filed by Appellant Villa Highlands, 

LLC (Villa Highlands) under its builder‟s risk insurance policy issued by Western Community 

Insurance Co. (Western Community) and Farm Bureau Insurance Company of Idaho (Farm 
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Bureau). 1 In May 2006, during construction, the Villa Highlands building was destroyed by fire. 

Thereafter, a dispute and litigation ensued over the application and interpretation of the 

underinsurance provision in the policy. A jury trial was held May 5, 2008, following extensive 

pre-trial motions and orders. On appeal, Villa Highlands argues that the district court erred in 

the following: (1) holding that Count Four of Villa Highlands‟s Second Amended Complaint did 

not state a claim for breach of the insurance contract; (2) dismissing Villa Highlands‟s claim for 

declaratory relief; (3) denying Villa Highlands‟s Motion for Relief from Judgment; (4) allowing 

counsel for Villa Highlands to withdraw and then refusing to vacate the trial or extend certain 

deadlines; (5) refusing to allow Villa Highlands to present evidence in connection with its 

consequential damages claim; and (6) denying, in part, Villa Highlands‟s Motion to Compel. 

We affirm the district court on all issues. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Villa Highlands was constructing an independent living community when the building 

was destroyed by fire in May 2006. This dispute arose regarding the insurance claim filed by 

Villa Highlands with Western Community and Farm Bureau for the loss of the building. On 

October 11, 2006, Western Community requested that the parties proceed with an appraisal 

process to resolve questions about the loss claimed by Villa Highlands, in accordance with 

Paragraph E.2 of the builder‟s risk policy.2 On November 13, 2006, Villa Highlands filed its 

Complaint against Western Community and Farm Bureau, as a result of the companies‟ alleged 

refusal to pay Villa Highlands‟s casualty claim arising under the policy. An amended complaint 

was filed December 6, 2006, and included Dale Zimney, an insurance agent for Western 

Community, as a defendant. The amended complaint alleged that Western Community had 

directly breached the insurance contract and that Zimney had breached an agreement to provide 

adequate insurance coverage, a breach for which Western Community was vicariously liable. It 

 

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Farm Bureau was eventually dismissed as a defendant in this matter by the district court. 

2

Paragraph E.2 states:

E. Loss Conditions

2. Appraisal

If we and you disagree on the value of the property or the amount of loss, either may make 

written demand for an appraisal of the loss. In this event, each party will select a competent 

and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either 

may request that selection be made by a judge of a court having jurisdiction. The appraisers 

will state separately the value of the property and amount of loss. If they fail to agree, they 

will submit their differences to the umpire. A decision agreed to by any two will be binding.

Builders Risk Coverage Form.
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appears that little occurred in the case during 2007; however, on December 14, 2007, Western 

Community filed a Motion to Compel Appraisal, contending that Villa Highlands had delayed or

failed to cooperate in the appraisal process. 

In January of 2008, the parties entered into a written stipulation wherein they agreed that 

the fully appraised fair market value of the building on the date of completion would be 

$7,580,000; that the amount of the “loss (repair/replacement cost)” under the policy was 

$3,967,157; and that the stipulation satisfied the appraisal conditions set forth in the policy. Also 

in January, Villa Highlands filed its Second Amended Complaint substantially modifying the

breach of contract claim to focus primarily on Zimney‟s actions. Western Community filed its 

Answer on January 29, 2008. On February 29, 2008, Villa Highlands filed a Motion for 

Summary Judgment seeking partial summary judgment on the issue of the interpretation of the 

builder‟s risk policy at issue. On March 3, 2008, Western Community filed its Motion for 

Summary Judgment, seeking the dismissal of all claims pending against it in Villa Highlands‟s 

Second Amended Complaint. 

On March 6, 2008, counsel for Villa Highlands moved to withdraw as counsel of record 

for Villa Highlands, and the request was granted on March 12, 2008. Prior to withdrawing, 

counsel filed a Motion to Vacate Trial. At that time, the district court denied the motion to 

vacate and refused to grant a continuance, keeping the trial date of May 5, 2008. However, the 

court extended the hearing date on the motions for summary judgment from March 26, 2008, to 

April 9, 2008, and extended the deadline for depositions of expert witnesses to April 18, 2008. 

On March 24, new counsel for Villa Highlands moved for an extension of time to file its 

opposition and reply briefing in connection with the summary judgment motions. The court 

denied this request. Villa Highlands also filed two subsequent motions to vacate the trial date 

and extend certain deadlines, both of which were denied. 

On April 9, 2008, the district court ruled from the bench on the pending motions for 

summary judgment, finding that: (1) Farm Bureau was dismissed from the case; (2) the builder‟s 

risk policy was unambiguous; (3) the value of the building would be determined by the appraisal 

process provided for under the policy rather than using the $7,580,000 figure contained in the 

January stipulation; and (4) the “value” of the building for use in the appraisals at issue was 

“actual cash value.” On April 17, 2008, prior to trial, the district court ruled that Count Four of 

Villa Highlands‟s Second Amended Complaint did not allege a claim for breach of the written 
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insurance contract, and Villa Highlands had not timely supplemented its discovery regarding 

consequential damages and thus would not be allowed to submit the same to the jury. 

During that hearing, as well as the hearing on April 16, the district court noted that the

claim for declaratory action in Count Six of the Second Amended Complaint was decided to the 

extent of the court‟s determination that “the value on the date of completion is the actual cash 

value.” Then, during the hearing on April 28, 2008, in interpreting the insurance contract, the 

court stated its understanding that the declaratory action would be decided once the parties 

obtained two matching appraisals or had an umpire determine the “value” for the purpose of 

calculating the amount the insurance company owed, to which neither party objected. On April 

29, 2008, the court entered a written order as to its April 9th rulings on the summary judgment 

motions. The court amended the proposed language dismissing Villa Highlands‟s claim for 

declaratory relief, and handwrote “[t]o be determined after appraisals.” 

On May 1, 2008, Villa Highlands and Western Community submitted their appraisals to 

an umpire, and, on May 4, 2008, the umpire sent a letter to the parties with his finding that the 

appraisal submitted by Western Community was more reliable. On May 5, counsel for Villa 

Highlands stated that Villa Highlands was “not attacking the appraisal process...for purposes of 

this trial,” but did not waive the right to challenge the appraisal process on appeal. The parties 

stipulated to the amount of damages sought at trial, and that Stipulation was entered on May 6, 

2008. 

The case was tried before a jury from May 5, 2008, through May 13, 2008. The jury 

awarded no damages to Villa Highlands. On May 27, 2008, the court ordered that all claims

against Western Community, including the claim for declaratory relief, were dismissed. On 

August 26, 2008, the district court denied Villa Highlands‟s Motion to Grant Relief from 

Judgment. Villa Highlands timely appealed. 

II. ANALYSIS

A. The district court did not err in holding that Count Four of Villa Highlands’s Second 

Amended Complaint did not state a claim for breach of the insurance contract.

Villa Highlands argues that Count Four of its Second Amended Complaint contains a 

short and plain statement of a breach of contract claim upon which relief may be granted in 

accordance with Idaho Rule of Civil Procedure 8(a)(1). Villa Highlands further asserts that 

Western Community‟s Answer demonstrates that it was on notice of the claim. Western 

Community counters that Count Four did not state a breach of contract claim against Western 
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Community but, instead, clearly set forth a vicarious liability claim in contract based upon 

allegedly faulty advice provided by Mr. Zimney. 

Idaho Rule of Civil Procedure 8(a)(1) provides that a pleading setting forth a claim for 

relief shall contain “a short and plain statement of the claim showing that the pleader is entitled 

to relief.” “A complaint need only contain a concise statement of the facts constituting the cause 

of action and a demand for relief.” Clark v. Olsen, 110 Idaho 323, 325, 715 P.2d 993, 995 

(1986). This Court has stated that such pleadings should be construed liberally so as to “secure a 

„just, speedy and inexpensive‟ resolution of the case.” Gillespie v. Mountain Park Estates, 

L.L.C., 138 Idaho 27, 30, 56 P.3d 1277, 1280 (2002) (quoting Christensen v. Rice, 114 Idaho 

929, 931, 763 P.2d 302, 304 (Ct. App. 1988)). The focus is on insuring “that a just result is 

accomplished, rather than requiring strict adherence to rigid forms of pleading.” Seiniger Law 

Office, P.A. v. N. Pac. Ins. Co., 145 Idaho 241, 246, 178 P.3d 606, 611 (2008). To reach a just 

result, “[o]ur Rules of Civil Procedure establish a system of notice pleading.” Youngblood v. 

Higbee, 145 Idaho 665, 668, 182 P.3d 1199, 1202 (2008). Thus, the “key issue in determining 

the validity of a complaint is whether the adverse party is put on notice of the claims brought 

against it.” Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 427, 95 P.3d 34, 45 (2004). 

In Seiniger Law Office, this Court found that “[d]espite the glaring deficiencies in the 

complaint” the defendant understood that the complaint raised a contract claim. 145 Idaho at 

247, 178 P.3d at 612. The defendant‟s answer raised an affirmative defense of discharge of its 

contractual obligations toward plaintiff, and the defendant also moved for summary judgment as 

to the breach of contract claim. Id. This Court found that the defendant‟s response was 

sufficient to demonstrate that it had been put on notice of the plaintiff‟s breach of contract claim. 

Id. 

In Zattiero v. Homedale School District No. 370, this Court similarly found that the 

defendant was put on notice of a breach of contract claim. 137 Idaho 568, 51 P.3d 382 (2002). 

There, the complaint alleged a claim for wages due “as a result of [the plaintiff‟s] employment as 

a school nurse with the School District,” based on the School District‟s failure to pay her under 

the Certified Schedule. Id. at 571, 51 P.3d at 385. This Court found that the claim suggested 

“implicitly” that the plaintiff‟s claim for wages was based on a breach of contract. Id. at 572, 51 

P.3d at 386. The Court then also determined that the School District demonstrated that it was on 
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notice of the claim through its Answer, in which it stated, “[t]o the extent that Plaintiff alleges a 

breach of Contract, Defendant did not breach such contract . . . .” Id. (alteration in original).

Similarly, in Vendelin v. Costco Wholesale Corp., this Court found that a plaintiff had 

sufficiently pled punitive damages when the “allegations contained in the amended complaint 

suggest[ed] that the prayer for punitive damages was based on injuries she sustained from falling 

merchandise while shopping at the Boise Costco.” 140 Idaho 416, 428, 95 P.3d 34, 46 (2004). 

We also found that Costco had acknowledged the claim for punitive damages by raising three 

separate defenses to a claim for punitive damages in its Answer. Id. That was sufficient to show 

that Costco was on notice of the plaintiff‟s claim for punitive damages. Id. In contrast, in 

Youngblood v. Higbee, this Court found that the complaint‟s combination of an inaccurate 

description of the defendant franchisor, coupled with the lack of any allegation that the 

franchisor was responsible for the acts of its franchisee, failed to meet notice pleading standards 

and resulted in the failure to state a claim against Big O Tires, Inc., following the alleged 

negligent repair of brakes by a franchisee repair shop. 145 Idaho 665, 669, 182 P.3d 1199, 1203

(2008). 

Here, Count Four of Villa Highlands‟s Second Amended Complaint read as follows: 

 COUNT FOUR

Zimney Had Apparent Authority to Bind Western Community and Farm 

Bureau under the Policy (Breach of Contract)

XXIII.

Zimney entered into a contract with Western Community and Farm 

Bureau which gave Zimney authorization and permission to sell its insurance 

policies and products to consumers. Zimney sold commercial, personal and other 

forms of insurance on behalf of Farm Bureau and Western Community. Zimney 

received a commission from Farm Bureau and Western Community from each 

insurance policy and/or product he procured for a consumer.

XXIV.

In April 2005, Zimney represented to Villa Highlands that he sold 

insurance policies and/or products issued by Farm Bureau and Western 

Community. To obtain insurance coverage, Villa Highlands filled out an 

application prepared by Western Community and/or Farm Bureau provided by 

Zimney. Villa Highlands received a policy declaration sheet which broke down 

the premium for each coverage, in addition to the policy itself issued by Western 

Community and/or Farm Bureau. The policy limits reflected on the declaration 

sheet reflected the amount of Villa Highland‟s [sic] construction budget as 
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requested by Zimney. Villa Highlands paid the all [sic] premiums due on the 

policy.

XXV.

The conduct and actions of Western Community and/or Farm Bureau 

gives rise to Zimney having apparent authority to bind Western Community 

and/or Farm Bureau for the representations and statements made by Zimney to 

obtain the subject policy on behalf of Villa Highlands.

XXVI.

Villa Highlands had reason to believe and did believe that Zimney had 

authority from Western Community and/or Farm Bureau to sell the subject policy 

as represented by Zimney.

XXVII.

Based upon Zimney‟s apparent authority, Western Community and/or 

Farm Bureau are bound by his representations concerning the subject policy and 

failing to tender the amount due arises to a breach of contract.

XXVIII.

As a direct result of Western Community‟s and/or Farm Bureau‟s breach 

of contract, Villa Highlands has suffered substantial damages in excess of 

$10,000.00, which amount will be proven at trial. 

Western Community responded to Count Four in its Answer as follows, in pertinent part:

SECOND DEFENSE

VI.

These answering Defendants admit only the allegations contained in 

Paragraph 23 of Plaintiff‟s Second Amended Complaint concerning the fact that 

Dale Zimney entered into a contract with these answering Defendants which gave 

Zimney the authorization and/or permission to sell certain insurance policies and 

products to consumers, for which Zimney received a commission from Western 

Community and/or Farm Bureau for each insurance policy/product sold. 

Defendants deny the remainder of the allegations contained in Paragraph 23. 

FOURTH DEFENSE

Defendant Western Community fully performed each term of the 

agreement between it and Plaintiff in good faith and Plaintiff has received the full 

benefits of the agreement and Western Community attempted to carry out its 

obligations under the agreement in full and in accordance with the terms and 

conditions of the agreement. 

TWELFTH DEFENSE

That a condition precedent of Defendant Western Community‟s obligation 

has not occurred and/or that Plaintiff may have violated or failed to comply with 

certain conditions of the insuring agreement thereby discharging these answering 
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Defendants from obligations under the insuring agreement with respect to the 

claims set forth in Plaintiff‟s Second Amended Complaint. 

FOURTEENTH DEFENSE

Plaintiff‟s actions have prevented the Defendant Western Community 

from performing its contractual obligations, if any. 

In its memorandum supporting its Motion for Summary Judgment, Western Community 

focused on Villa Highlands‟s allegations regarding Zimney and then stated: “Plaintiff asserts 

that Farm Bureau and Western Community are vicariously liable for Zimney‟s alleged actions 

and/or that Western Community was bound to provide „full coverage‟ as a result of Zimney‟s 

apparent authority to bind Western Community under the Policy.” Western Community then 

went on to argue that Villa Highlands could not maintain an actionable breach of contract claim 

against it under agency theory. In its brief in opposition to Western Community‟s Motion for 

Summary Judgment, Villa Highlands then focused on Western Community‟s liability for the acts 

of Zimney as its agent. 

In contrast to Seiniger Law Office, Zattiero, and Vendelin, it is not readily apparent from 

either Western Community‟s answer or its subsequent briefing and comments at hearings that it 

was on notice of a direct breach of contract claim against it. While Western Community did 

raise as a defense that it had fully performed each term of the agreement between it and Villa 

Highlands in good faith, Western Community‟s subsequent briefing focusing on apparent 

authority indicates that it was not defending against a breach of contract claim. 

Following extensive discussion on the issue at hearings on April 9, 16, 17, and 28, at 

which counsel for Villa Highlands presented multiple inconsistent positions on the issue, the 

district court determined that Count Four did not state a breach of contract claim directly against 

Western Community. The district court also determined that Western Community could not be 

held liable for Zimney‟s alleged breach of an oral agreement under Count Four “to the effect that 

[Villa Highlands] would be properly or fully insured.” 

During the hearings on the issue, counsel for Villa Highlands first asserted that Count 

Four was a breach of contract claim directly against Western Community on the written contract, 

independent of the claim against Zimney. Villa Highlands then seemed to offer Count Four as 

an apparent authority argument against Western Community: “When the contract that Mr. 

Zimney has with Western and Farm Bureau authorizes him to solicit as an agent on behalf of 

that, that is not a stretch by any means to suggest that he therefore has apparent authority.” The 
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district court then asked if that would bring Western Community liability in on the breach of 

contract and Villa Highlands responded, “[y]es.” A week later, at the hearing on April 16, Villa 

Highlands argued that it was a direct breach of contract claim against Western Community 

“[b]ecause they failed to pay under their own policy provisions.” Counsel further argued: 

“[W]e‟ve always read it as a breach of contract and, of course, it is. They have not paid under 

the contract. It‟s that simple. People are getting lost in the apparent authority, as far as I‟m 

concerned.” Finally, at the April 28 hearing, the court determined that Western Community 

should be granted summary judgment on Count Four because:

It‟s clear from the record that [counsel for Villa Highlands] got up and he said 

what he said, and that the plaintiff‟s cause of action was not against Western 

Community on an apparent authority arising out of an oral contract....If you go 

back through this file and look at all the complaints that have been filed, you 

know, clearly at one point, I believe that Villa Highlands was alleging a breach of 

the written contract against Western, and then it evolved into what we have now, 

the most recent second amended complaint, and that the cause of action, the 

written contract, appeared to have been abandoned and went on apparent authority 

for Zimney‟s actions in this alleged—for negligence and alleged—breach of an 

alleged oral contract based on what Zimney said, not based on the written 

contract. 

Based upon the district court‟s findings, as well as our own review of the Second 

Amended Complaint, Western Community‟s answer, the briefing on the motions for summary 

judgment, and the arguments presented by counsel, we find that Villa Highlands did not 

sufficiently plead a direct breach of contract claim against Western Community in its Second 

Amended Complaint. Therefore, we affirm the district court on this issue. 

B. The district court did not err in denying Villa Highlands’s Motion for Relief from 

Judgment.

Villa Highlands next contends that the district court erred in dismissing Count Six of its 

Second Amended Complaint because there was no motion, proceeding, or stipulation before the 

court to allow for dismissal of the claim and the claim had not been fully adjudicated. In a 

separate issue, Villa Highlands then contends that the district court erred in denying Villa 

Highlands‟s Motion for Relief from Judgment because unique and compelling circumstances 

existed and justiciable controversies remained in regard to Villa Highlands‟s claim for 

declaratory relief. Because we find that the two issues flow from the same issue regarding the 

dismissal of Count Six, we will review the issues in the context of whether the district court erred 

in denying Villa Highlands‟s Motion for Relief from Judgment. 
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“An aggrieved party may obtain relief from a final judgment by making a motion to the 

trial court under I.R.C.P. 60(b).” Miller v. Haller, 129 Idaho 345, 348, 924 P.2d 607, 610 

(1996). “[A]lthough the court is vested with broad discretion in determining whether to grant or 

deny a Rule 60(b) motion, its discretion is limited and may be granted only on a showing of 

„unique and compelling circumstances‟ justifying relief.” Id. at 349, 924 P.2d at 611 (quoting 

Matter of Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990)). 

When examining whether a trial court abused its discretion, this Court considers whether the 

court: (1) perceived the issue as one of discretion; (2) acted within the outer boundaries of its

discretion and consistently within the applicable legal standards; and (3) reached its decision by 

an exercise of reason. Shore v. Peterson, 146 Idaho 903, 915, 204 P.3d 1114, 1126 (2009).

The issue before the district court in Villa Highlands‟s Motion for Relief from Judgment 

was whether “the court should grant it relief from the order dismissing count six of the Amended 

Complaint because „the declaratory action was not concluded or fully determined.‟” Villa 

Highlands further requested that the court set aside the umpire‟s findings because they were not 

in compliance with the terms of the insurance policy and the appraisal was based on significant 

mistakes and errors. We find that the district court did not abuse its discretion in denying Villa 

Highlands‟s Motion for Relief from Judgment. 

Count Six of Villa Highlands‟s Second Amended Complaint reads, in pertinent part: 

XXXIV.

By virtue of the facts as previously described, Villa Highlands is entitled 

to this Court declaring the relative rights and obligations of the parties hereto 

under the previously described Policy and thereupon the Court should determine 

that Villa Highlands is entitled to the payment of the full amount due and owing 

pursuant to the Policy without reduction, offset, or reduction in any manner. 

XXXV.

Villa Highlands seeks a specific ruling and declaration of this Court that 

any purported underinsurance for the Villa Highlands Building was caused by 

Zimney‟s apparent authority with Western Community and/or Farm Bureau and 

not by Villa Highlands. 

During the hearings, the district court determined that the contract was unambiguous and that 

“value” meant “actual cash value.”3 Pursuant to agreement of the parties, the court relieved Villa 

 

3

The district court, when discussing the January 17, 2008, Stipulation between the parties stated: “Because I‟ve 

gone over this contract and gone over this contract, and I‟m prepared to say that it‟s unambiguous as to that. The 

value means actually [sic] cash value, and I thought that‟s what both parties-that both parties believed that.” The 
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Highlands of the building value of $7,580,000 that the parties had agreed to in their written 

stipulation made in January. Counsel for both Villa Highlands and Western Community then 

engaged in a discussion with the court as to the process for determining what the actual cash 

value was:

Court: Submit the difference to the umpire. So it‟s assuming there is at least 

three, and the umpire would be the third person.” 

Counsel for Western Community: Right, he‟s the tie breaker.

Counsel for Villa Highlands: He doesn‟t do it separate. 

Court: So it does appear that that would be a binding decision that a jury would 

not decide then. 

Counsel for Western Community: You‟re right. This is not a jury issue, if you 

find that the policy is unambiguous.

Counsel for Villa Highlands: Why should it be a jury issue at this point? Why 

don‟t we stipulate to try to get this all done before jury, because it still could get 

contested, some arbitration that is not appealable.

During this discussion, counsel for Villa Highlands pointed out that there were some problems 

with the appraisals that had already been completed, but did not raise it as an issue for the court: 

“The problem with these appraisals that have already been done, Judge, is they include, as I call 

them, uninsurable items, but I think that is for us to work out with whomever.” The court then 

clarified how the actual cash value would be determined: “...the contract is unambiguous in its 

actual cash value, so [Villa Highlands] needs to get an appraiser really quick and give that to 

[Western Community] and see if you guys can agree on an amount. And if not, it goes to a third 

appraiser that the two of you should agree on and all done before the trial.” 

On April 16, the court mentioned its understanding of the posture of the claim for 

declaratory relief at that point: “I think the dec action is going, as the Court‟s determination that 

the value on the date of completion is the actual cash value. To that extent, it‟s gone.” On April 

29, the district court entered its order on Western Community‟s Motion for Summary Judgment, 

in which it ordered that Count Six was determined as follows: “With regard to Count Six of the 

Second Amended Complaint, Plaintiff‟s claim for declaratory relief, the Court declares that the 

 

court later reiterated that idea: “And so it would appear that in reading the contract as a whole that that would be the 

reasonable definition of value to mean actual cash value. And then, of course F says—F2, that we will not pay a 

greater share of that then proportions [sic] the value upon date of completion of the building. And the only 

definition of valuation is actual cash value...” 
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insurance policy at issue is clear and unambiguous by its terms.” The court then crossed out the 

proposed language: “and hereby dismisses Plaintiff‟s claim for relief on the charge, under 

Paragraph 34 of the Second Amended Complaint, that Villa Highlands is entitled to the payment 

of the full amount due and owing pursuant to the policy without any reduction or offset” and 

added the handwritten: “To be determined after appraisals.” The order then stated: “The Court 

will, in a separate Order, compel Villa Highlands to engage in the § E.2 appraisal process, 

through which a determination will be made as to what, if any, additional money Western 

Community must pay to Villa Highlands under the insurance policy for the claimed loss.” The 

Order on Defendant Western Community‟s Motion to Compel did just that: 

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff must 

immediately and fully cooperate and engage in the appraisal process set forth 

under § E.2 of its Builder‟s Risk Policy, through which a final determination will 

be made as to what additional amount, if any, Western Community must pay Villa 

Highlands for the loss at issue under the terms of the insurance policy.

On May 1, 2008, Villa Highlands and Western Community submitted their appraisals to 

an umpire, and, on May 4, 2008, the umpire sent a letter to the parties with his finding that the 

appraisal submitted by Western Community was more reliable. On May 5, counsel for Villa 

Highland stated that Villa Highlands was “not attacking the appraisal process...for purposes of 

this trial,” but did not waive the right to challenge the appraisal on appeal.4 The parties 

stipulated that, based upon the appraisal determination, the amount of loss was $3,967,157. That 

stipulation was entered on May 6, 2008. 

Following entry of the final judgment, Villa Highlands brought its Motion for Relief from 

Judgment. The court pointed out that one of the problems with Villa Highlands‟s motion was 

that it was “essentially asking the court to use a relief from judgment motion to vacate an 

umpire‟s decision.” The court asserted that this was improper:

Villa Highlands did not bring a declaratory action or any motion asking the court 

to vacate the decision of the umpire until the trial was over and the court had 

dismissed the declaratory action . . . . At the time the declaratory action was 

dismissed, the court was unaware of any dispute between the parties that 

remained and needed to be decided by the court in regard to the way that the 

 

4 Counsel for Villa Highlands repeatedly stated that Villa Highlands would not be contesting the appraisal process at 

that point: “I just want to say that with respect to the appraisal process, we aren‟t waiving our right to challenge that 

on appeal. We reserve our right to challenge on appeal, but for purposes solely for this trial, we are not challenging 

that.” “We‟re not attacking the appraisal process at this point. Again, it—or the number, or the number. We are 

not—at this point, for purposes of this trial we are saying: Okay, they won, they‟ve got—it‟s their number.” “We 

have accepted the appraisal process.”
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appraisal process was conducted. Furthermore, the court understood the decision 

of the umpire to be binding, and the parties did not bring any motion challenging 

the binding nature of the umpire‟s decision. 

The district court therefore found that the fact that Villa Highlands had failed to take action 

before the judgment was entered was not a unique and compelling circumstance justifying relief 

from the judgment.5

We find that the district court did not abuse its discretion in denying Villa Highlands‟s 

Motion for Relief from Judgment. The district court‟s statements at the hearings indicate that it 

meant for the determination in its Order on Western Community‟s Motion for Summary 

Judgment to resolve the “relative rights and obligations of the parties” and determine what 

payment Villa Highlands was entitled to, based upon the appraisal process. The court ordered 

Villa Highlands to engage in the “E.2 appraisal process,” provided for under the builder‟s risk 

policy. Paragraph E.2 states: 

If we and you disagree on the value of the property or the amount of loss, 

either may make written demand for an appraisal of the loss. In this event, 

each party will select a competent and impartial appraiser. The two appraisers 

will select an umpire. If they cannot agree, either may request that selection 

be made by a judge of a court having jurisdiction. The appraisers will state 

separately the value of the property and amount of loss. If they fail to agree, 

they will submit their differences to the umpire. A decision agreed to by any 

two will be binding. 

Therefore, the decision of the umpire was binding upon Villa Highlands. Villa Highlands did 

not contest either the language and process of Paragraph E.2 or the determination of the umpire, 

but instead stipulated, for purposes of trial, that the amount of loss was $3,967,157. It should 

also be noted that it was Villa Highlands that did not submit its appraisal for the process in 

accordance with the builder‟s risk policy until just days before trial. Western Community filed 

its first Motion to Compel Appraisal on December 14, 2007. Had Villa Highlands submitted an 

 

5

 In its brief on appeal, Western Community claims that Villa Highlands waited until its Motion for Relief from 

Judgment to request that the district court vacate the umpire‟s decision. According to Western Community, Villa 

Highlands wanted to utilize the substantially higher valuation of the building arrived at through the appraisal process 

in litigating its trial claim that Western Community was vicariously liable for Zimney‟s alleged negligence in 

causing the building to be underinsured. When it failed at trial on that claim, Western Community contends that 

Villa Highlands changed course and sought to discredit the high-value appraisal in order to benefit from a lower 

valuation of the building pursuant to the underinsurance provision of the insurance policy. That is, the lower the 

value of the building, the less it would have been underinsured and the more Villa Highlands would be able to 

recover under the terms of the underinsurance provision. It is not clear whether these considerations played a part in 

the district court‟s decision, but there was certainly basis in the record to allow these considerations to be factored 

into the decision. 
14

appraisal at an earlier date it may have had more time to contest the umpire‟s determination and 

the appraisal process. Thus, we affirm the district court‟s decision. 

C. The district court did not err when it allowed counsel for Villa Highlands to withdraw 

and then refused to vacate the trial or extend certain deadlines.

Villa Highlands argues that the court abused its discretion when it refused to vacate the 

trial or extend the summary judgment deadlines because these decisions affected the 

determination on all other pre-trial motions, which contributed to depriving Villa Highlands of a 

fundamentally fair trial. Villa Highlands asserts that this occurred because the district court did 

not toll any deadlines and allowed proceedings to continue during the 20-day time period 

following the entry of the order allowing counsel to withdraw. Western Community counters 

that the court‟s ruling inured to Villa Highlands‟s benefit, insuring that new counsel had an 

opportunity to file a response to the pending summary judgment motion and take expert 

depositions prior to trial. In addition, Western Community asserts that the circumstances that 

allegedly required the remedy of vacating the trial were of Villa Highlands‟s own making. 

“A decision to grant or deny a motion for continuance is vested in the sound discretion of 

the trial court.” Gunter v. Murphy’s Lounge, LLC, 141 Idaho 16, 24, 105 P.3d 676, 684 (2005). 

Idaho Rule of Civil Procedure 11(b)(3) states that after a court has granted an attorney leave to 

withdraw, “no further proceedings can be had in that action which will affect the rights of the 

party of the withdrawing attorney for a period of 20 days after service or mailing of the order of 

withdrawal to the party.” 

Counsel was granted leave to withdraw on March 12, 2008. The order granting counsel

leave to withdraw stated: “Villa Highlands, LLC shall, within twenty (20) days, appear 

personally in this matter or shall have an attorney appear on its behalf.” During that hearing, the 

following dialogue regarding the 20 day time period occurred between withdrawing counsel and 

the court:

Counsel: Your Honor, the problem would be, in light of the scheduled hearing 

date on March, I believe 26, to allow him 20 days to respond, he will not have any 

responses to the summary judgments filed against him nor will he have an 

opportunity to reply to the responses. 

Court: Well, okay, if you get your 20 day notice out tomorrow or, whatever, 

because apparently in his letter he said that he was gone or he might have been 

here today. 

So assuming he‟s going to have 20 days—is that from the date of service? 

Assume three days for mailing, so we‟re looking at 23 days. So we‟re to April 7. 
15

So we could set this on April 9, continue it to April 9. Then at least I would have 

time to go through what I do have. . . . 

So that will give me time to read through everything and then if he files a 

new memorandum or, whatever, then I can have the opportunity to look at that. 

So do you want to continue the hearing on the motions for summary judgment to 

April—what did I say—9?

Discussion then followed on extending the deadlines for depositions and leaving discovery open. 

On March 14, the court entered its supplemental order extending deadlines: “[P]ending hearing 

date on all of the motions for summary judgment set for March 26, 2008 will be extended to 

April 9, 2008 at 3:00 p.m....depositions of all expert witnesses in the case shall be completed no 

later than April 18, 2008.” 

On March 24, 2008, counsel for Villa Highlands filed a Motion for Extension of Time to 

File Opposition and Reply Briefing and that motion was denied on March 25. However, the 

motion argued that counsel only had until March 26 to file responses to Western Community‟s

and Zimney‟s motions for summary judgment. The court had clearly extended the deadline for 

the hearing on those motions until April 9, and there is no evidence in the record that the 

responses were still due on March 26. In its brief on appeal, Villa Highlands also argues that the 

district court failed to toll the discovery cutoff on March 31; however, during the hearing it was 

stated that discovery would remain open through the deadline of April 18 for taking expert 

witness depositions. Villa Highlands also argued that it had been prejudiced because the 

deadline of March 6, 2008, for deposing lay witnesses had passed. However, that deadline 

passed before counsel for Villa Highlands withdrew on March 12. 

Villa Highlands points to Finch v. Wallberg Dredging Co., to support the proposition that 

the Idaho Supreme Court has reversed a district court‟s denial of a continuance. 76 Idaho 246, 

281 P.2d 136 (1955). However, the Court in Finch held that the trial court should not have 

permitted the withdrawal of counsel because the appellants, although diligent, were unable to 

secure new counsel to try the case given the short time (three days) between the withdrawal and 

the trial of a complicated case. Id. at 251, 281 P.2d at 138. Here, the court tried to work with 

Villa Highlands by extending certain deadlines, and Villa Highlands has not demonstrated any 

prejudice that resulted from the court‟s refusal to vacate the trial. Therefore, we hold that the 

district court did not err in failing to grant Villa Highlands‟s motions to vacate the trial or extend 

certain deadlines. 
16

D. The district court did not err in refusing to allow Villa Highlands to present evidence of 

consequential damages.

Villa Highlands asserts that the district court abused its discretion in refusing to allow it 

to submit its evidence in connection with its consequential damages claim to the jury. Western 

Community argues that the issue of whether Villa Highlands should have been able to present 

consequential damages evidence at trial has been rendered moot by the jury‟s decision and is, 

therefore, a frivolous issue on appeal. 

The jury found no tort or contract liability against Zimney or Western Community for 

Zimney‟s actions on the claims presented to it. Because we find that the district court did not err 

in dismissing Count Six or in holding that Count Four did not state a claim for direct breach of 

contract, the jury‟s decision rendered the issue of consequential damages moot. We therefore 

affirm the district court on this issue. 

E. The district court did not err when it denied, in part, Villa Highlands’s Motion to 

Compel.

Villa Highlands argues that the district court did not apply the standard set forth in 

I.R.C.P. 26(b)(1) when it refused to allow Villa Highlands to obtain discovery from Western 

Community and Farm Bureau about the underwriting process in connection with the builder‟s 

risk policy. Western Community contends that the court correctly denied Villa Highlands‟s 

Motion to Compel because there were no direct breach of contract claims asserted against 

Western Community. 

“A trial court‟s decision to grant or deny a motion to compel will not be disturbed by this 

Court unless there has been a clear abuse of discretion.” Sirius LC v. Erickson, 144 Idaho 38, 43, 

156 P.3d 539, 544 (2007). The standard for abuse of discretion has been laid out above. Idaho 

Rule of Civil Procedure 26(b)(1) states: 

Unless otherwise limited by order of the court in accordance with these rules, the 

scope of discovery is as follows: (1) Parties may obtain discovery regarding any 

matter, not privileged, which is relevant to the subject matter involved in the 

pending action, whether it relates to the claim or defense of the party seeking 

discovery or to the claim or defense of any other party, including the existence, 

description, nature, custody, condition and location of any books, documents, or 

other tangible things and the identity and location of persons having knowledge of 

any discoverable matter. It is not ground for objection that the information sought 

will be inadmissible at the trial if the information sought appears reasonably 

calculated to lead to the discovery of admissible evidence. 
17

The district court here did grant part of Villa Highlands‟s discovery request regarding the 

underwriting policy, finding that Villa Highlands was entitled to look at the underwriting file:

Court: So, the Builder‟s Risk Policy, the process, a detailed explanation of the 

underwriting process. I—I think that what—I—I don‟t think they need to do that, 

but you may be entitled to simply look at the file...to see if there‟s any 

communications there from Zimney to them, as well as any requests. I think 

that‟s relevant.

Counsel for Villa Highlands: The entire file? 

Court: I think you‟re entitled to look at it. 

However, the court then found that Villa Highlands‟s other discovery requests would be too 

burdensome two weeks before the trial commenced. Specifically, the court found that Villa 

Highlands‟s request for other underwriting files that Zimney had worked on would be 

particularly burdensome: 

We‟re too close to the trial, and that would be a lot of information to obtain. As 

well as I think that Western and Zimney would probably want to—would want to 

contact their clients, anyway, to let them know that they may be contacted. It just 

seems like a lot of work for them to do, when they do need to be preparing for 

trial. So, I‟ll deny the motion to compel as to Interrogatory No. 1. 

The court also found that the depositions of Clayton Brummett, who handled the adjustment for 

Western Community, and Rod Saetrum, the attorney who assisted Brummett, were not relevant 

because both dealt with the adjustment of the claim and the parties had stipulated to the amount 

of the loss. Therefore, the court found that how the numbers were reached through the 

adjustment was irrelevant, especially in light of the subsequent use of the appraisal process. 

We hold that the district court did not abuse its discretion in denying, in part, Villa 

Highlands‟s Motion to Compel. At the stage in the case in which the Motion to Compel was 

filed, there were no claims directly against Western Community regarding any sort of breach of 

fiduciary duty, breach of contract, or bad faith. Western Community‟s adjustment process was 

not at issue. 

F. Neither party is entitled to attorney fees on appeal. 

Villa Highlands requests attorney fees and costs on the basis that it is the prevailing party 

under I.A.R. 40. It also asserts that it is entitled to costs under I.C. § 10-1210 because its claim 

involves one for declaratory relief and there is no justification as to why the claim was 

dismissed. Villa Highlands also requests attorney fees under I.C. § 41-1839(1) or, in the 
18

alternative, I.C. § 12-120(3). Western Community counters that it is entitled to attorney fees and 

costs pursuant to I.A.R. 40 and 41, along with I.C. §§ 12-120(3) and 121. 

Idaho Code § 12-120(3) mandates the award of attorney fees to the prevailing party in a 

“civil action to recover ... in any commercial transaction.” However, I.C. § 41-1839(4) provides 

that “this section and section 12-123, Idaho Code, shall provide the exclusive remedy for the 

award of statutory attorney‟s fees in all actions between insureds and insurers involving disputes 

arising under policies of insurance.” Villa Highlands did not prevail on any issue and is

therefore not entitled to an award of attorney fees. Although Western Community has prevailed 

in this appeal, I.C. § 41-1839(4) precludes an award of attorney fees under either I.C. 12-120(3) 

or I.C. § 12-121. Therefore, we do not award attorney fees. Western Community is entitled to 

costs on appeal. I.A.R. 40(a). 

III. CONCLUSION 

We hold that the district court did not err in (1) dismissing Count Four of Villa 

Highlands‟s Second Amended Complaint; (2) dismissing Villa Highlands‟s claim for declaratory 

relief; (3) denying Villa Highlands‟s Motion for Relief from Judgment; (4) allowing counsel for 

Villa Highlands to withdraw and then refusing to vacate the trial or extend certain deadlines; (5) 

refusing to allow Villa Highlands to present evidence in connection with its consequential 

damages claim; and (6) denying, in part, Villa Highlands‟s Motion to Compel. Costs to Western 

Community.

Chief Justice EISMANN and Justices J. Jones, Horton and Kidwell, Pro Tem, 

CONCUR.