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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 48919 

RUTH ANN NORDGAARDEN, a widowed 

woman, 

 Plaintiff-Counterdefendant-Respondent,

v. 

KERMIT KIEBERT, a married man, 

 Defendant-Counterclaimant-Cross 

 Claimant-Respondent,

and 

KAY KIEBERT, a single woman,

 Defendant-Cross Defendant-Appellant,

and 

SUSAN KIEBERT,

 Defendant.

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Coeur d’Alene, September 2022 Term

Opinion filed: March 24, 2023 

Melanie Gagnepain, Clerk 

Appeal from the District Court of the First Judicial District of the State of 

Idaho, Bonner County. Barbara A. Buchanan, District Judge. 

The decision of the district court is affirmed.

Ramsden, Marfice, Ealy & De Smet, LLP, Coeur d’Alene, for Appellant Kay 

Kiebert. Jack A. Mosby argued. 

Finney Finney & Finney, PA, Sandpoint, for Respondent Kermit Kiebert. Rex A.M. 

Finney argued. 

J.T. Diehl, Sandpoint, for Respondent Ruth Ann Nordgaarden. James T. Diehl argued. 

 
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ZAHN, Justice.

This case concerns a partition action. Following a court trial, the district court determined 

that a physical partition of the property would result in great prejudice and ordered the parties to 

sell the property and split the proceeds equally. Kay Kiebert appeals the district court’s order, 

arguing that the district court utilized the wrong standard for determining whether “great 

prejudice” would result from a physical partition and that it also relied on inappropriate 

considerations in determining that great prejudice would result. We affirm the district court’s 

order.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Appellant Kay Kiebert is the sister of Respondents Ruth Ann Nordgaarden and Kermit 

Kiebert. In 1957, the parties’ parents bought Lot 2 of Lutton’s Lake Lots (“Kiebert Property”). 

The Kiebert Property contains 5.7 acres of land that abuts Lake Pend Oreille. The property is 275 

feet wide, about 800 feet deep, and has approximately 300 feet of waterfront. After buying the 

property, the couple and their children moved into an unfinished stone house on the property. The 

parties’ father died in 1991 and their mother died in 1992. Their three surviving children, Ruth 

Ann, Kermit, and Kay each hold an undivided one-third interest in the property. 

At the time of the trial in this matter, the Kiebert Property consisted of the stone house, 

several small outbuildings, and two uninhabitable mobile homes. When the Kiebert family first 

moved onto the property in the 1950s, the stone house lacked running water, plumbing, heating, 

and electricity. Although the Kieberts made some improvements over the years, at the time of trial,

the house remained unfinished. 

The stone house has cement floors, an unfinished kitchen, and no heating system aside 

from a fireplace. The sewer system on the Kiebert Property was installed before Bonner County 

implemented sewer standards. None of the witnesses at trial had any memory of whether the three 

septic tanks on the Kiebert Property have been replaced or pumped since they were installed. The 

sewer system periodically leaches effluent from the ground into lower elevations of the Kiebert 

Property. The water system on the Kiebert Property has remained unchanged since its installation 

in the 1950s. Unfiltered water is pumped from the lake to the stone house. Occasionally, the pipes 

freeze and break, and the stone house is without water until the pipes are repaired. 
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The Kiebert Property was previously encumbered by a mortgage that the Kiebert parents 

had taken out against the property. The parties were unable to keep the mortgage current. 

Following threats of foreclosure, Kermit paid off the mortgage with a loan he obtained.

The evidence at trial also addressed the three siblings’ involvement with the Kiebert 

Property and their ability to financially contribute to the expenses associated with the property. 

Ruth Ann and her husband, Glen, lived on the Kiebert Property until 2006. At the time of the 

district court’s decision, Ruth Ann was 75 years old, retired, and lived alone. At trial, Ruth Ann 

testified that she was several months behind on her own mortgage payments and had no money to 

pay taxes, maintenance, or other fees on the Kiebert Property. 

Kermit has not lived on the Kiebert Property since his parents’ death. At the time of the 

district court’s decision, Kermit was 78 years old and mostly retired. Kermit serves as the Chair 

of the Board of Environmental Quality for the Idaho Department of Environmental Quality. 

Accordingly, Kermit is familiar with the sewer and water systems on the Kiebert Property. At trial, 

Kermit testified that he did not have the money to spend towards maintenance or taxes on the 

Kiebert Property. 

Kay moved into the stone house with two of her children in April 1997 after she and her 

husband divorced. At the time of the district court’s decision, Kay was 76 years old and was the 

only person living on the Kiebert Property. After the mortgage was paid off, Kay was unable to 

pay the property taxes. In May 2012, Kay and Kermit borrowed money from Kay’s daughter and 

son-in-law to pay the delinquent property taxes. At the time of trial, property taxes were again 

overdue for the 2018, 2019, and 2020 tax years. 

B. Procedural Background

On August 1, 2019, Ruth Ann filed a verified complaint for judicial partition, seeking an 

order that the Kiebert Property be sold. The complaint also requested an award of attorney fees 

and costs incurred during the partition action and that they “be deemed a lien against the real 

property and satisfied prior to distribution of any proceeds.” At trial, Ruth Ann testified that if the 

district court ordered the property to be partitioned in kind (i.e., physically partitioned), she would 

like to receive the property with the stone house and the panoramic view. 

Kermit filed an answer, counterclaim, and cross-claim arguing that if all parties could agree 

to the material terms, Kay should be able to purchase his and Ruth Ann’s interest in the Kiebert 

Property and reimburse their out-of-pocket expenses. Alternatively, if the parties could not reach 
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an agreement, Kermit asked the district court to order the Kiebert Property sold and distribute the 

proceeds to the parties. Kermit requested reimbursement for the personal funds he had expended 

to satisfy the mortgage and real property taxes on the Kiebert property, but later abandoned this 

request at trial. 

Kay answered Ruth Ann’s complaint and Kermit’s counterclaim and asserted that the 

property could be physically partitioned without great prejudice and, therefore, the district court 

should deny Ruth Ann’s and Kermit’s requests for a partition by sale. Kay’s answer included a 

notice of a claim for “an unsecured lien on the property for sums expended by [Kay] to protect, 

preserve and maintain the subject property.”

The district court held a three-day court trial on March 25, 26, and April 9, 2021. During 

the trial, the judge walked the boundaries of the Kiebert Property. After the trial, the district court 

issued its written decision and order, which determined that physically partitioning the property 

would result in great prejudice to the owners because: (1) none of the options for physically 

partitioning the property would result in separate parcels of equal value, and (2) physically 

partitioning the property in compliance with the Bonner County planning and zoning code would 

be too costly for the parties to undertake. The district court ordered the Kiebert Property to be 

listed for sale, that the sale proceeds first be used to pay closing costs and outstanding real property 

taxes, and the remainder of the proceeds be distributed equally amongst the parties. The district 

court determined that the parties were not entitled to reimbursement for past amounts they may 

have spent on the Kiebert Property. 

Kermit filed a motion to reconsider, amend or make additional findings or conclusions, 

amend the judgment, and/or alter or amend the judgment, and a motion to clarify, which requested 

the district court to clarify the terms of the sale listing, to order Kay to pay all delinquent real estate 

taxes, and to order Kay to vacate the property 30 days after closing. The district court denied 

Kermit’s motion to reconsider. However, the district court granted Kermit’s motion to amend or 

make additional findings or conclusions. The district court ruled that the real estate agent listing 

the property for sale had sole discretion to determine the listing price so long as it was not less 

than $2.6 million. Additionally, the district court ordered Kay to vacate the Kiebert Property at 

closing unless otherwise agreed upon by the buyer. Kay timely appealed. 
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II. ISSUES ON APPEAL

1. Whether the district court erred when it determined that physical partition of the Kiebert 

Property could not occur without great prejudice to the parties?

2. Whether any of the parties are entitled to attorney fees?

III. STANDARD OF REVIEW

In Pandrea v. Barrett, this Court determined, “[t]he inquiry upon reviewing a trial court’s 

order partitioning real property of tenants in common is: ‘[D]id the court act erroneously upon the 

facts presented?’” 160 Idaho 165, 171, 369 P.3d 943, 949 (2016) (quoting Richardson v. Ruddy, 15 

Idaho 488, 495, 98 P. 842, 844 (1908)). This Court cited to the 1908 decision in Richardson v. 

Ruddy for this standard. In Richardson, this Court held that the appellant incorrectly formulated 

the issue as one of jurisdiction to enter an order partitioning the real property when the issue was 

really whether “the court act[ed] erroneously upon the facts presented.” 15 Idaho at 495, 98 P. at 

844–45. The Richardson Court stated that the trial court’s decision was subject to a clearly 

erroneous standard of review, which is the standard of review employed when reviewing a trial 

court’s factual findings. Id. See also I.R.C.P. 52(a)(7) (“Findings of fact, whether based on oral or 

other evidence, must not be set aside unless clearly erroneous[.]”). 

While the “clearly erroneous” standard is the proper standard of review for the district

court’s factual findings, it is not the appropriate standard of review for the district court’s decision 

on the partition claims. The legal decision to partition real property is one “subject to the equitable 

jurisdiction of the court[.]” Eli v. Eli, 557 N.W.2d 405, 408 (S.D. 1997) (quoting Braaten v. 

Braaten, 278 N.W.2d 448, 450 (S.D. 1979)). See also 130 Am. Jur. Trials 95 (“[P]artition is 

generally classified as an equity action.”). “This Court reviews the district court’s rulings 

on equitable remedies for an abuse of discretion.” Climax, LLC v. Snake River Oncology of E. 

Idaho, PLLC, 149 Idaho 791, 794, 241 P.3d 964, 967 (2010) (citation omitted). Therefore, the 

proper standard of review for an order to partition real property is an abuse of discretion standard. 

This is consistent with other jurisdictions, which also employ an abuse of discretion standard of 

review for partition actions. See 5 C.J.S. Appeal and Error § 836. The holding in Richardson is 

overruled to the extent it suggests we review a district court’s partition order under a clearly 

erroneous standard of review. However, we continue to employ the clearly erroneous standard 

when reviewing the district court’s factual findings underlying its partition order.
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To determine if a trial court abused its discretion, this Court must analyze “[w]hether the 

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

boundaries of its discretion; (3) acted consistently with the legal standards applicable to the 

specific choices available to it; and (4) reached its decision by the exercise of reason.” Lunneborg 

v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). 

IV. ANALYSIS

A. The district court did not err when it determined the Kiebert Property could not be 

physically partitioned without great prejudice to the parties. 

“An action for partition asks the court to divide property owned by multiple co-tenants

based on each individual owner’s interests in the property.” Wilson v. Mocabee, 167 Idaho 59, 67, 

467 P.3d 423, 431 (2020). Partition in kind is favored over partition by sale. See generally Idaho 

Code § 6-501. However, a trial court “may order a sale of the property if a partition cannot be 

made without great prejudice.” Cox v. Cox, 138 Idaho 881, 886, 71 P.3d 1028, 1033 (2003). “The 

burden of proving that a partition by sale would better promote the owners’ interests is upon the 

party requesting a partition by sale.” 68 C.J.S. Partition § 119. 

1. The great prejudice determination must take into account the totality of the circumstances.

Idaho Code section 6-501 addresses when an owner may file an action for partition and 

provides that the property should be physically partitioned unless the partition cannot be made 

without “great prejudice” to the parties: 

When several cotenants hold and are in possession of real property as parceners, 

joint tenants or tenants in common, in which one (1) or more of them have an estate 

of inheritance, or for life or lives, or for years, an action may be brought by one (1) 

or more of such persons for a partition thereof, according to the respective rights of 

the persons interested therein, and for a sale of such property, or a part thereof, if it 

appears that a partition cannot be made without great prejudice to the owners. 

Idaho Code section 6-512 also discusses the “great prejudice” standard: 

If it be alleged in the complaint and established by evidence, or if it appear [sic] by 

the evidence without such allegation in the complaint, to the satisfaction of the 

court, that the property, or any part of it, is so situated that partition cannot be made 

without great prejudice to the owners, the court may order a sale thereof.

Kay contends that the district court erred when it considered compliance with zoning 

ordinances and cost to the parties in determining that the property could not be physically 

partitioned without “great prejudice” to the parties. Beyond the plain language of these statutes, 

there is little guidance for district courts in Idaho on what qualifies as “great prejudice” under 
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Idaho Code sections 6-501 and 6-512. Accordingly, we first address the correct standard to apply 

when evaluating whether “great prejudice” would result from a physical partition.

Kay urges this Court to adopt a standard in which great prejudice exists “only when there 

is virtually no possible way to divide the property without destroying its usefulness to the coowners.” Ruth Ann and Kermit argue for a great prejudice standard that considers a variety of 

factors, including whether the resulting parcels would comply with local zoning ordinances, the 

fair market value of the resulting parcels, the owners’ ability to contribute to expenses associated 

with partitioning the property, and whether multiple owners seek ownership of the same parcel.

This Court exercises free review over the interpretation and application of a statute. Callies 

v. O’Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009). “[S]tatutory interpretation begins with 

the literal language of the statute. If the statutory language is unambiguous, we need not engage in 

statutory construction and are free to apply the statute’s plain meaning.” Id. (citations omitted). 

However, if the statutory language is ambiguous, this Court must “look to rules of construction for 

guidance and consider the reasonableness of proposed interpretations.” City of Idaho Falls v. H-K 

Contractors, Inc., 163 Idaho 579, 582, 416 P.3d 951, 954 (2018) (citation omitted). “[S]tatutory 

language is ambiguous where reasonable minds might differ or be uncertain as to its meaning.” Id. 

(internal quotations and citation omitted).

Beginning with the statutory language, “great prejudice” is not defined by statute. There 

are multiple, reasonable interpretations of the phrase. Although both Ruth Ann and Kermit point 

to our decision in Cox for the premise that compliance with zoning ordinances is an element of the 

great prejudice analysis, our discussion of zoning compliance in that case was fleeting. 138 Idaho 

at 886, 71 P.3d at 1033. 

In Cox, this Court affirmed the district court’s determination that, because the property 

included one house and one barn, the property could not be physically partitioned between the two 

parties without great prejudice. Id. While the district court also stated that zoning ordinances likely 

prohibited the division of the property, it does not appear that either party challenged this 

conclusion on appeal. Id. It does not appear that the parties argued competing standards for “great 

prejudice.” As a result, our decision in Cox is not instructive on the legal standard for great 

prejudice. Given the lack of any statutory definition or Idaho case law defining the phrase, we turn 

to case law from other jurisdictions. 
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The generally accepted test in other jurisdictions for whether a partition in kind would 

result in great prejudice to the owners is “whether the value of the share of each in case of a 

partition would be materially less than his share of the money equivalent that could probably be 

obtained for the whole.” Fike v. Sharer, 571 P.2d 1252, 1254 (Or. 1977) (internal quotations and 

citation omitted). See also Rieger v. Ackerman, 939 N.W.2d 413, 416 (N.D. 2020) (“[G]reat 

prejudice exists when the value of the share of each in case of a partition would be materially less 

than his share of the money equivalent that could probably be obtained from the whole.”); Idema 

v. Comstock, 110 N.W. 786, 787 (Wis. 1907) (same); Williamson Inv. Co. v. Williamson, 165 P. 

385, 389 (Wash. 1917) (same); Williams v. Wells Fargo Bank & Union Tr. Co., 133 P.2d 73, 75 

(Cal. Dist. Ct. App. 1943); Gartner v. Temple, 855 N.W.2d 846, 851 (S.D. 2014) (“[T]he effect 

of partition in kind ‘must be weighed against the effect of a sale of the land as a unit and the effect 

of a sale of the land in parcels.’”). 

However, at least one jurisdiction has interpreted the standard to encompass the 

consideration of both monetary and non-monetary factors. See Eli, 557 N.W.2d 405. In Eli, the 

South Dakota Supreme Court interpreted a partition statute nearly identical to Idaho Code section 

6-501. Compare S.D. Codified Laws § 21-51-1, with Idaho Code § 6-501. Before that decision, 

the South Dakota Supreme Court followed the generally accepted standard that great prejudice 

would result when “the value of each cotenant’s share would be materially less than his share of 

the money equivalent that could probably be obtained for the whole.” Eli, 557 N.W.2d at 408

(internal quotations omitted). However, in Eli, the South Dakota Supreme Court recognized that

“great prejudice” involves more than just monetary considerations:

[M]onetary considerations, while admittedly significant, do not rise to the level of 

excluding all other appropriate considerations. SDCL 21-45-1 and 21-45-28 speak 

of “great prejudice”, not “great financial prejudice”. The sale of property “without 

[the owner’s] consent is an extreme exercise of power warranted only in clear 

cases.” We believe this to be especially so when the land in question has descended 

from generation to generation. While it is true that the Eli brothers’ expert testified 

that if partitioned, the separate parcels would sell for $50 to $100 less per acre, this 

fact alone is not dispositive. One’s land possesses more than mere economic utility; 

it “means the full range of the benefit the parties may be expected to derive from 

their ownership of their respective shares.” Such value must be weighed for its 

effect upon all parties involved, not just those advocating a sale. To this extent, the 

previous monetary definition of “great prejudice” as found in Johnson, supra is 

modified to include consideration of the totality of the circumstances.

Id. at 409 (internal citations omitted). 
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We agree with the South Dakota Supreme Court that the determination of whether “great 

prejudice” exists should encompass consideration of the totality of the circumstances. Idaho’s 

partition statutes are similar to those of South Dakota. The phrase “great prejudice” encompasses 

more than just monetary considerations. While the fair market value of real property may be a 

primary consideration for landowners, we agree that it is likely not the only consideration. Our 

trial courts are well-equipped to take evidence of the totality of the circumstances and weigh the 

equities to reach a fair and just conclusion concerning whether great prejudice would result from 

a physical partition of real property. In making this determination, our trial courts should have the 

ability to consider and weigh all of the evidence. 

While Kay urges us to take a narrower view of great prejudice, she has failed to cite a single 

case that supports her proposed test, which focuses on the usefulness of a property. Kay selectively 

quotes from the cases on which she relies, while ignoring other parts of the decisions. For example, 

she references that “partition by sale is appropriate where partition in kind would destroy the 

property’s usefulness” from Friend v. Friend, 964 P.2d 1219, 1222 (Wash. Ct. App. 1998). While 

true, the Washington Court of Appeals also stated in Friend that:

A partition action is both a right and a flexible equitable remedy subject to judicial 

discretion. The trial court is accorded great flexibility in fashioning relief under its 

equitable powers. . . Thus, a court may order partition by sale, whether or not the 

parties request it, provided satisfactory evidence demonstrates that the property or 

any part of it cannot be divided without great prejudice to the owners. For example, 

partition by sale is appropriate where partition in kind would destroy the property’s 

usefulness. 

Id., 964 P.2d at 1221–22 (emphasis added). 

Kay fails to recognize that the court in Friend did not state that great prejudice only exists 

when partition in kind would destroy the property’s usefulness, but instead, stated that it was within 

the trial court’s broad discretion to consider the property’s usefulness when determining if partition 

would result in great prejudice to the owners. Similarly, none of the other cases that Kay relies on

hold that great prejudice only exists when partition in kind would destroy the property’s usefulness. 

See Williams, 133 P.2d at 75; Williamson Inv. Co., 165 P. at 389; Eli, 557 N.W.2d 405. Kay’s 

proposed test would inappropriately eliminate consideration of the value of the property and other 

factors potentially relevant to the analysis of great prejudice. 

Kay also contends that the costliness of zoning compliance should not be considered as 

part of the great prejudice analysis. For the reasons discussed above, we reject this argument. The 
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district court did not err by considering the costs associated with ensuring the resulting parcels 

complied with local zoning ordinances. Those costs are but one of the totality of the circumstances 

bearing on the great prejudice analysis in this case.

We therefore hold that, for purposes of a partition action, a trial court’s determination of 

whether great prejudice would result from a physical partition of the property should be based on 

the totality of the circumstances. The cause of action for partition is one that sounds in equity. For 

the reasons stated above, the most equitable approach to making a determination is to consider the 

totality of the circumstances. 

2. The district court’s factual findings are supported by substantial and competent evidence. 

Having resolved the appropriate legal standard for the determination of great prejudice in 

a partition action, we now turn to Kay’s argument that the district court’s factual findings were not 

supported by substantial and competent evidence. Kay’s arguments are unpersuasive for the 

reasons explained below. 

a. The district court’s finding that the property could not be equitably partitioned into

three parcels was supported by substantial and competent evidence. 

First, Kay argues the district court failed to consider an unequal but equitable division. Kay 

contends that the district court could equitably divide the Kiebert Property by making Kay’s parcel 

with the stone house smaller than the other two parcels or by dividing the property into four parcels, 

including a common tract of water frontage. In response, Ruth Ann contends that Kay never 

offered testimony of the costs related to effectuating such a division or identifying the value of the 

resulting lots. Kermit argues that Kay failed to prove how to divide the Kiebert Property into 

separate parcels of equal value. Additionally, Kermit notes that Kay’s partition recommendation 

fails to account for the fact that both Ruth Ann and Kay testified that they wanted to receive the 

parcel with the stone house. 

The district court determined that none of the available options discussed at trial for 

subdivision of the Kiebert Property would result in separate parcels of equal value. The district 

court reached its conclusion after hearing testimony from nine witnesses, including Kay’s expert 

witness, Scott Brown, a land use planning consultant, and Kermit’s expert witness, Jeremy Grimm, 

a professional land use planner. After considering the evidence presented at trial, the district court 

found that the property’s value was derived solely from its waterfront and its view and that Kay 

insisted on receiving the portion of the property that included the stone house and the waterfront 

view. The district court determined that the property could not be physically partitioned in 
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compliance with Bonner County Code unless the parties obtained approval from the county for a 

minor land division, subdivision, conservation subdivision or planned unit development.

Kay fails to cite evidence in the record supporting her contention that the evidence 

established the property could be equitably divided into three or four parcels. Although Kay cites 

Brown’s testimony in support of this contention, Brown never testified to an unequal but equitable 

division. Further, Kay has not established that the district court’s findings that the property’s value 

was derived solely from its waterfront view and that Kay insisted on receiving that portion of the 

property are clearly erroneous. Given these findings, the district court’s resulting finding that the 

Kiebert Property could not be equitably divided into three parcels is supported by substantial and 

competent evidence.

Kay’s contention that the property could have been equitably divided into four parcels is 

similarly unsupported by the record. Brown did testify about subdividing the property into four 

parcels with one parcel serving as a common tract of the water frontage for the benefit of the other 

three parcels. However, Brown also testified that this option would require an administrative 

variance from Bonner County. After considering the totality of the evidence, the district court 

found that obtaining county approval to divide the property would be difficult because the property 

did not have urban water or urban sewer services. The district court found that the process to make 

the necessary improvements and obtain county approval would be extremely costly. A review of 

the record demonstrates that these findings are supported by substantial and competent evidence.

We conclude that Kay’s challenge to the district court’s finding also fails because she

introduced no evidence below indicating the value of the resulting parcels following a physical 

partition. She therefore failed to establish that the resulting parcels would be reasonably equivalent 

in value. After considering Kay’s arguments and the record in this case, we conclude that the 

district court’s finding that none of the physical partition options discussed at trial would result in 

separate parcels of equal value is supported by substantial and competent evidence.

b. The district court’s finding that the parties were unable to pay for the expenses to bring 

the Kiebert Property in compliance with Bonner County Code was supported by

substantial and competent evidence. 

Kay next attacks the district court’s factual finding that the parties could not afford the 

costs associated with subdividing the property into Bonner County Code-compliant parcels. Kay 

asserts the district court “failed to consider evidence that Kay had financial means to pay for the 

subdivision under County Code.” Ruth Ann argues that the district court properly weighed the 
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evidence presented and determined that the Kiebert Property could not be equitably divided in 

compliance with local land use regulations without significant expense to the parties. Both Ruth

Ann and Kermit maintain that the parties cannot afford to pay for the costs of subdividing the 

property.

The district court determined there were two potential methods for partition: (1)

subdividing the property under Bonner County’s Minor Land Division (“MLD”) provisions, or (2) 

subdividing the property in accordance with other Bonner County Code provisions. The district 

court found that in order to comply with the Bonner County Code, the parties would have to install 

sewer and water services, which would require a “large expenditure of both time and money.” The 

district court found that the parties could not afford the required monetary expenditures.

The record demonstrates substantial and competent evidence to support the district court’s 

finding that each of the potential county processes to partition the property involved significant 

expenses. To begin, both Brown and Grimm testified that the parties could partition the property 

with an MLD. However, both experts explained that the MLD would require an administrative 

variance because the resulting lots would not comply with the lot depth and width requirements in 

county code. Additionally, Grimm testified that the approval of a MLD would take 3 to 4 months 

and cost the parties roughly $18,000 to $22,000.

Next, Grimm testified that the parties could also apply for subdivision pursuant to Bonner 

County Code section 12-660(D)(2)(b) and (g) and request a reduction in minimum lot size and 

dimensions. However, this process would have different standards for road design, fire, safety, and 

storm water. Further, the likelihood of allowing subdivision into smaller lot sizes would be 

dependent on the water and sewer services on the property. Brown also testified that a subdivision

would be feasible with a planned unit development (“PUD”) overlay. He explained that a PUD is 

more expensive and would require more time to achieve because the process involves public 

hearings. 

At trial, it was undisputed that the Kiebert Property was not served by an urban sewer or 

water system. The district court relied on this fact when it determined that partitioning the Kiebert 

Property into three parcels under 2.5 acres in size, without having the appropriate water and sewer 

systems, would not comply with Bonner County Code. The available partition options required

the installation of sewer and water services—which the district found to be both time consuming 

and costly. In light of the aforementioned evidence, the district court’s finding that the available 
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methods to physically partition the Kiebert Property would require significant expense was 

supported by substantial and competent evidence. 

Kay contends that the district court erred in finding that the parties could not afford the 

significant expenses associated with either the MLD or subdivision processes. To this point, Kay 

cites to the following colloquy between Kay and Ruth Ann’s attorney:

Q. Do you have the funds to even contribute to those kind of expenses?

A. Yes, I do.

Q. And where do those monies come from?

A. I inherited some money.

. . . 

Q. If putting in a road, a hard-surfaced road and a cul de sac, $50,000 or $60,000, 

are you prepared to pony up those kinds of funds in order to make this property –

A. How would I answer that? I guess my hope is that I would have my piece of 

property, and they can sell their two-thirds and then that – whoever purchases that 

could do whatever they want to with it.

Q. Well, it’s my understanding – and I could be wrong on this – but it’s my 

understanding that a lot of those improvements have to be installed before you get 

the re-plat approval. So where is the money going to come from if you go forward 

with the re-plat, even if it’s possible?

A. I can’t answer that because I don’t exactly know what all would have to be done.

Contrary to Kay’s argument, she did not testify that she could afford the expenses, but instead that

she hoped she could take her portion of the property and her siblings could then figure out what to 

do with their portions of the property. When Kay was advised during her testimony that the 

improvements had to be made before the property could be partitioned and asked how the cost of 

the improvements would be paid, Kay stated she could not answer because she did not know what 

was required. At no point did Kay state that she could afford the cost of the necessary 

improvements. Nor did she identify financial resources available to her other than the very cryptic,

“I inherited some money.” Kay’s testimony at trial does not support her claim that she could have 

borne the costs entailed in a physical partition of the property.

Further, at trial Kay acknowledged her and Ruth Ann’s financial struggles—confirming 

that the property taxes and mortgage payments had been in arrears. Ruth Ann testified that she was 

two months behind on her own mortgage payment because she had to pay for mediation in this 

case. Kermit also testified that he did not have the means to pay the expenses required to partition 

the property. A reasonable trier of fact could accept and rely upon this testimony and conclude that 
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the parties were unable to pay for the necessary improvements. Accordingly, the district court’s 

finding that the parties would be unable to pay the expenses to bring the Kiebert Property in 

compliance with Bonner County Code was supported by substantial and competent evidence. 

c. The district court sufficiently considered the likelihood of obtaining a variance when 

making its findings and ordering the sale of the property.

Kay also argues that the district court erred because it failed to give sufficient weight to 

Brown’s testimony that Bonner County liberally granted administrative variances. Kay argues that 

Brown’s testimony established that, if the district court ordered a physical partition, then Bonner 

County would grant the variance required to make the resulting parcels compliant with Bonner 

County Code. Kay contends that the district court should have ordered physical partition “knowing 

that Bonner County was very likely to grant any necessary variances and/or the minor land 

division.” Kay’s argument on this point requests us to reweigh the evidence, which we will not do. 

It is within the trial court’s province “to weigh conflicting evidence and testimony and to 

judge the credibility of the witnesses.” Benninger v. Derifield, 145 Idaho 373, 374, 179 P.3d 336, 

338 (2008). Brown’s testimony focused on the probability, not the certainty, that Bonner County 

would grant the necessary approvals to make the resulting parcels compliant. The district court 

appears to have given little weight to the likelihood that Bonner County would have approved a 

variance in making its factual findings and in analyzing whether great prejudice would result from 

a physical partition. The problem is that even with a variance from the county, creating three 

equally valuable parcels was insurmountable given the unique characteristics of the Kiebert 

Property. These determinations were within the province of the district court. Its findings are 

supported by substantial and competent evidence, and we find no error in its decision to order a 

partition by sale.

d. The district court properly disregarded Kay’s argument that the property could be 

physically partitioned following a boundary adjustment.

Kay argues the district court erred in its great prejudice determination because it failed to 

consider the availability of an adjacent 40-foot strip of property. At trial, Kay’s attorney argued 

that an adjacent 40-foot strip of land owned by Kay, Kermit, Ruth Ann, and their cousin, Alan 

Kiebert, could be used to make a boundary line adjustment. Kermit’s attorney objected to any 

consideration of the 40-foot strip because the parties had not sought to partition it and Alan was 

not a party to the lawsuit. Kay’s attorney conceded that the partition action failed to name Alan 

Kiebert as a party to the action, but argued the other three owners were present. Kay’s attorney 
15 

also argued that while the parties had not sought to partition the 40-foot strip, witnesses had 

testified that it could be used to partition the property. The district court refused to consider the 

40-foot strip when determining whether the property could be partitioned without great prejudice 

to the parties. 

Kay argues that the district court should have considered the possibility of performing a 

boundary adjustment to include the 40-foot strip in the Kiebert Property and then partitioning the 

combined properties. Both Ruth Ann and Kermit maintain that the district court could not consider 

a boundary adjustment using the 40-foot strip because the strip was outside of the district court’s 

jurisdiction. Kay responds by arguing the 40-foot strip did not need to be within the district court’s 

jurisdiction for it to be relevant; the district court only needed to consider it as a factor when 

considering whether the Kiebert Property could be physically partitioned without great prejudice

to the parties. 

Idaho partition law directs that all persons interested in a property to be partitioned must 

be included as parties to the action. Idaho Code § 6-902. Ruth Ann and Kermit each filed 

affirmative claims, seeking the partition of the Kiebert Property. They did not seek to partition the

40-foot strip, which was a separate parcel from the Kiebert Property. Kay did not file an affirmative 

claim seeking to partition the 40-foot strip, nor did she seek to add her cousin Alan as a party to 

the partition action. Thus the partition action only sought to partition the Kiebert Property. The 

district court was only asked to determine whether the Kiebert Property could be physically 

partitioned without great prejudice to the parties. What might be possible if the Kiebert Property 

was joined with the 40-foot strip was not at issue. As a result, the district court did not err in 

refusing to consider what might hypothetically be possible if the parties joined the Kiebert Property 

with the adjacent 40-foot strip. 

3. The district court did not abuse its discretion in ordering a partition by sale. 

As discussed above, in a partition action, the district court must consider the totality of the 

circumstances when determining whether a physical partition of the property would result in great 

prejudice to the parties. In conducting its analysis of great prejudice in this case, the district court 

found that given the condition of the Kiebert Property, its “value is derived solely from its 

waterfront and its view.” The district court found that in its current state, the property could not be 

physically partitioned because the resulting parcels would violate Bonner County zoning 

ordinance. The district court heard and considered expert testimony that there were several 
16

methods by which the parties could seek permission from the county to create separate parcels,

but found that the costs and uncertainty associated with each method were effectively 

unsurmountable and the parties could not afford the expenses associated with each process. The 

district judge personally observed the property and walked its boundaries. Thus, the district court 

personally observed the land and its unique qualities and limitations. The district court took all of 

this into account when reaching its conclusion that the property could not be partitioned without 

great prejudice to the parties. 

Our review of the record reveals that the district court considered the totality of the 

circumstances when determining that the physical partition of the property would result in great 

prejudice to the parties. Kay has failed to establish that any of the district court’s findings were 

erroneous or that the district court failed to consider the totality of the circumstances when making 

its decision. As a result, we hold that the district court did not err in determining that great prejudice 

would result from a physical partition and ordering the property to be sold.

Kay argues that, rather than a partition by sale, the district court should have ordered a 

partition in kind and addressed any unequal value between the parcels by issuing an award of

owelty under Idaho Code section 6-541. Owelty is defined as “[e]quality as achieved by a 

compensatory sum of money given after an exchange of parcels of land having different values or 

after an unequal partition of real property.” Owelty, Black’s Law Dictionary (11th ed. 2019). Kay 

maintains that “any difference in value between the piece of the Kiebert Property that Kay wanted 

to retain, and the remaining portion(s) would not impact the ability to sell such remaining 

portion(s).” 

Kay is correct that Idaho law recognizes that when partition cannot be made equal between 

the parties, a court may award compensation to be made by one party to another on account of the 

inequality. Idaho Code § 6-541. The statute recognizes that great prejudice does not result simply 

because the resulting parcels do not have the same exact fair market value. The determination of 

great prejudice, however, requires the district court to consider the totality of the circumstances. 

The value of the resulting parcels is only one consideration. 

Contrary to Kay’s interpretation, the statute does not allow the district court to ignore a 

showing of great prejudice and instead order monetary compensation in lieu of a sale of the 

property. The district court’s great prejudice determination in this case included consideration of 

the fact that a physical partition would result in parcels that violated Bonner County Code and,
17 

therefore, would be unsaleable. The district court also considered the fact that the parties, including 

Kay, could not afford to pay the costs associated with obtaining county approval for a physical 

partition that would result in parcels that complied with Bonner County Code. Further, Kay has 

put forward no evidence to establish that she has the financial resources to compensate her siblings 

for parcels that are unmarketable. 

The owelty concept embodied in section 6-541 only applies when the court determines 

great prejudice would not result from the physical partition of the property, but determines there 

will be some inequality between the resulting parcels. Because the district court determined 

physical partition could not achieved without great prejudice to the parties, section 6-541 is not 

applicable to this case. Accordingly, the district court did not err by declining to order a physical 

partition and ordering Kay to pay Ruth Ann and Kermit financial compensation pursuant to section 

6-541. 

4. There was no need to appoint referees pursuant to Idaho Code sections 6-512 and 6-513. 

Kay argues that the district court erred in failing to appoint referees to divide the property. 

Idaho Code sections 6-512 and 6-513 only require a trial court to appoint referees when the court 

orders a property to be physically partitioned. See Idaho Code §§ 6-512, 6-513. Because the district 

court ordered a sale of the property, it was unnecessary for the district court to appoint referees in 

this case. 

5. The district court did not err when it declined to award Kay reimbursement for past 

amounts expended for the Kiebert Property.

Kay argues that the district court erred by failing to award her reimbursement for

$45,033.16 she paid in mortgage payments, late fees, and penalties over the years. Ruth Ann and 

Kermit argue that Kay waived any claim to reimbursement for expenses incurred, and 

alternatively, that she failed to prove the amounts expended at trial. The district court determined

that the parties were not entitled to reimbursement for past amounts spent on the Kiebert Property 

because “the parties either abandoned claims for reimbursement or offered insufficient evidence 

and/or inconsistent testimony about the past amounts they spent on preserving and maintaining 

[the Kiebert Property.]” 

At trial Kay testified as follows concerning her claim for reimbursement: 

Q. Are you suggesting that you should get reimbursed $124,000, whatever the 

number is on Exhibit A? 

A. No.
18

Q. I said Exhibit A that’s not accurate – Exhibit 1510, that expense report. And on 

the last page it has a number of $126,451.93.

A. Yes.

Q. So you’re not asking for that money back?

A. No.

Q. Are you asking for any amount back?

A. No.

This testimony establishes that Kay waived her reimbursement claim. Kay, however, argues that 

“in context, [her testimony] clearly meant that she did not seek reimbursement for her contributions 

because she sought physical partition and opposed sale.” 

As the trier of fact, the district court was in the best position to discern Kay’s tone and 

manner in answering questions about her reimbursement claim. “This Court will not substitute its 

view of the facts for that of the trial court.” Akers v. D.L. White Constr., Inc., 156 Idaho 37, 43–

44, 320 P.3d 428, 434–35 (2014) (citation omitted). The district court’s determination that Kay 

waived her claim for reimbursement is supported by Kay’s own testimony. Kay simply asks us to 

reweigh the evidence, which we decline to do. The district court did not err in declining to award 

Kay reimbursement for amounts she expended on the Kiebert Property.

B. Neither Ruth Ann nor Kermit are entitled to an award of attorney fees on appeal.

Ruth Ann requests attorney fees on appeal pursuant to Idaho Code section 12-121 and 

Idaho Appellate Rule 35(b)(5), arguing that Kay has used this appeal as an attempt to delay or 

deny Ruth Ann the benefit of the Kiebert Property. Kermit requests attorney fees pursuant to Idaho 

Code sections 6-545 and 12-121. Like Ruth Ann, Kermit argues that Kay merely asks this Court 

to second guess the district court and has used this appeal to extend her sole occupancy of the 

Kiebert Property. 

Idaho Code section 6-545 discusses when the costs of partition should be shared between 

the parties and provides:

The costs of partition, including reasonable counsel fees, expended by the plaintiff 

or either of the defendants for the common benefit, fees of referees, and other 

disbursements, must be paid by the parties respectively entitled to share in the lands 

divided, in proportion to their respective interests therein, and may be included and 

specified in the judgment. In that case they shall be a lien on the several shares, and 

the judgment may be enforced by execution against such shares and against other 

property held by the respective parties. When, however, litigation arises between 
19 

some of the parties only, the court may require the expense of such litigation to be 

paid by the parties thereto, or any of them.

(Emphasis added.) This appeal is not for the common benefit of the parties to the partition action. 

Rather, it is an action between the parties; therefore, section 6-545 requires the parties to bear their 

own attorney fees. 

Further, we decline to award attorney fees pursuant to Idaho Code section 12-121, which 

permits an award of attorney’s fees to the prevailing parties in a civil action when the judge finds 

that the case was brought, pursued or defended frivolously, unreasonably or without foundation.

While Kay has in large part invited this Court to second-guess the district court’s factual findings, 

she has raised an issue of first impression concerning the standard to apply when determining 

whether great prejudice exists. For this reason, we cannot conclude that Kay’s appeal was frivolous 

or unreasonable. See Petrus Fam. Tr. Dated May 1, 1991 v. Kirk, 163 Idaho 490, 503, 415 P.3d 

358, 371 (2018) (explaining the award of fees pursuant to Idaho Code section 12-121 is 

inappropriate when a party “in good faith raised issues of first impression.”) 

V. CONCLUSION

The judgment of the district court is affirmed. The district court did not err when it 

determined that the Kiebert Property could not be partitioned without great prejudice to the parties

and ordered a sale of the property. We decline to award attorney fees, but award costs on appeal 

to Ruth Ann and Kermit pursuant to Idaho Appellate Rule 40. 

Chief Justice BEVAN, Justices BRODY, STEGNER, and MOELLER CONCUR.