Greg J. FULLER and James C. Meservy, dba Fuller & Meservy, Plaintiffs-Counterdefendants-Appellants-Cross Respondents v. Martin WOLTERS and Doris Wolters, husband and wife, Defendants-Counterclaimants-Respondents-Cross Appellants. Martin WOLTERS and Doris Wolters, husband and wife, Third Party Plaintiffs-Respondents-Cross Appellants v. Daniel L. MINK, Third Party Defendant-Appellant-Cross Respondent.
No. 18271
Supreme Court of Idaho, Boise, October 1990 Term
March 11, 1991
807 P.2d 633 | 119 Idaho 415
III. WHITLOCK DISTINGUISHED.
Although the conclusion we have reached may seem to be at odds with the decision of the Court of Appeals in Whitlock, there is a clear distinction between the two cases. Whitlock dealt with the applicability of the treble damage provision of
Any judgment for the plaintiff in a proceeding pursuant to this act shall include all costs reasonably incurred in connection with the proceedings and the plaintiff, ... shall be entitled to recover from the defendant, as damages, three (3) times the amount of unpaid wages found due and owing.
(Emphasis added).
As we have noted above,
IV. CONCLUSION.
We affirm the summary judgment granted by the trial court.
We award costs to Haney. No attorney fees were requested.
BAKES, C.J., and BISTLINE, BOYLE and McDEVITT, JJ., concur.
Benoit, Alexander, Sinclair, Doerr, Harwood & High, Twin Falls, for plaintiffs-appellants. Thomas B. High argued.
Thomas G. Maile IV, Boise, for respondents.
Plaintiff appellants Fuller and Meservy brought suit against respondents Martin and Doris Wolters to collect attorney fees and сosts which they allegedly earned while representing the Wolters in a previous lawsuit. The Wolters filed a counterclaim against Fuller and Meservy and a third party claim against their associate Mink, seeking damages for, among other things, breach of contract and negligence (legal malpractice). The trial court granted part of plaintiff‘s motion for partial summary judgment and dismissed the Wolters’ claims of fraud, gross negligence, consumer protection violations, breach of fiduciary duty, and punitive damages. The jury found in favor of the Wolters on the remaining issues, breach of contract and negligence. Fuller & Meservy and Mink appeal from the verdict and variоus rulings of the trial court. The Wolters appeal from the trial court‘s decision denying them attorney fees. We affirm the trial court on all of the issues except costs. We vacate the order awarding costs and remand that issue for further proceedings.
Martin Wolters met Leo Kawakami while they both were in federal prison in California. Wolters was serving time for failure to file federal income tax returns, and Kawakami was serving time for fraud. When he was released, Wolters returned to his farm in Jerome County, and Kawakami soon joined him, ostensibly to help the Wolters with their finances. In the process the Wolters provided Kawakami with a list of farm equipment which they owned in pаrt and leased in part from another party. Kawakami then sold those pieces of equipment to the Idaho Funding Corporation for $40,000 and disappeared with that money and additional money he had swindled from the Wolters in other transactions.
At the show cause hearing, Idaho Funding did not state that they were relying upon the claim and delivery statutes to support their claim for the equipment, but instead their complaint and supporting documents asked for specific performance. In response, Mr. Mink did not assert that Idaho Funding post a bond, as is required by
The suit originally brought by Idaho Funding to gain possession of the equipment was eventually tried in front of a jury. The Wolters had filed a counterclaim, and they prevailed and were awarded $76,952.90 in damages by the jury from Idaho Funding. The court also held that they were entitled to recover the equipment or its value from Idaho Funding. However, the Wolters were unable to collect on this judgment, in part because most of the equipment had been sold by Idaho Funding to third parties. Thus, they were unable to farm in 1987, and in 1988 were able to renew farming on a limited basis only.
When the Wolters obtained new counsel for the Idaho Funding matter, Fuller & Meservy initiаted the current action on October 23, 1986 to recover attorney fees, and the Wolters counterclaimed. Several motions were filed, both before and during trial, and the trial court made several rulings which are at issue here.
(1) The trial court held that since the 1986 crop loss issue had already been litigated in the Idaho Funding trial, collateral estoppel barred the relitigation of that issue in this case. When the jury returned its special verdict awarding the Wolters $454,772 in damages against Fuller & Meservy and Mink, the trial court reduced the portion of the verdict reflecting the 1986 damages, $80,512, by $3,559.10 to equal the amount of the damages awarded to the Wolters in Idaho Funding, $76,952.90.
(2) In the jury instructions, the triаl court included verbatim certain provisions of the Idaho Code and Idaho Rules of Civil Procedure, including
(3) Appellants Fuller & Meservy and Mink prepared to subpoena two judges, Judge Becker and Judge Burdick, to testify concerning Mink‘s competence and identified thеm as witnesses in response to the Wolters’ interrogatories. The trial court ruled that Canon 2 of the Idaho Code of Judicial Conduct and the prejudicial nature of the testimony precluded the two judges from testifying at trial.
(4) The trial judge prohibited Fuller & Meservy and Mink from entering Martin Wolters’ income tax evasion conviction into evidence and allowed several witnesses to testify on subjects about which appellants objected.
(5) The trial court denied Fuller & Meservy and Mink‘s motion for a directed verdict or judgment notwithstanding the verdict.
(6) The trial court granted the Wolters’ motion for prejudgment interest on the portion of the award regarding the 1986 crop damages. The court amended the judgment to reflect the prejudgment interest and then entered a second amended judgment to correct a clerical error.
(7) The trial court awarded all costs requested by the Wolters and denied both parties’ claims for attorney fees.
Appellants Fuller & Meservy and Mink appeal from these various rulings of the trial court. Respondents Wolters cross-appeal the trial court‘s denial of their attorney fees.
I. ISSUE PRECLUSION
Appellants Fuller & Meservy and Mink first argue that the trial judge erred when he limited relitigation to only the 1986 crop damages and allowed litigation with regard to damages suffered in later years. They claim that all damages should have been limited by the Idaho Funding case because, they contend, since the elements of damages in the pleadings of this case and in the Idaho Funding case were identical, the entire issue of damages as to all the years in question has already been litigated. Therefore, appellants claim the only issue in this case should have been whether they were liable to the Wolters for $76,952.90 in damages awarded against Idaho Funding.
The trial court applied the doctrine of collateral estoppel and concluded that the Idaho Funding judgment had preclusive effect only with regard to the crop damages in 1986. We agree with the trial court‘s conclusion. In Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1987), we discussed the test for determining when collateral estoppel should apply. The more appropriate test for whether collateral estoppel should apply includes the following: (1) Did the party “against whom the earlier decision is asserted ... have a ‘full and fair opportunity to litigate that issue in the earlier case.‘” (2) Was the issue decided in the prior litigation “identical with the one presented in the action in question?” (3) Was the issue actually decided in the prior litigation? (4) “Was there a final judgment on the merits?” (5) “Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” 112 Idaho at 183-84, 731 P.2d 171 (citations omitted).
Applying Anderson, we conclude that the trial court correctly ruled that the Idaho Funding judgment should only have preclusive effect with regard to the damages incurred by the Wolters in 1986. First, the Wolters had a “full and fair opportunity to litigate” only the 1986 damages which arose through their inability to farm after Idaho Funding took their farm equipment. As the Wolters pointed out in their brief, they could not have brought suit against appellants until the Idaho Funding case established that they were entitled to the return of their farm equipment. Only after the entry of the Idaho Funding judg
II. JURY ISSUES
Appellants next claim that the trial court gave improper jury instructions and improperly responded to a question from the jury. They argue that some of the instructions read to the jury were mere academic recitations of statutes, given with no application of how they applied to the case, and thus they were not simple or easy to understand, as is required by Idaho law. See State v. Dickens, 68 Idaho 173, 191 P.2d 364 (1948). We find no error.
As respondents’ brief points out, there is no indication in the record that appellants attempted to clarify the objectionable instructions. They merely objected to them, stating that they believed the legal issues had been “adequately set out in the testimony.” However, earlier in the trial, appellants objected to the introduction of these statutes into evidence and stated that the court hаd a duty to instruct the jury on the law at the close of trial. The court complied and did not admit the statutes into evidence, saving them to be read later as instructions.
The theory of the Wolters’ case was that the claim against them in the Idaho Funding litigation was a claim and delivery action, and that the appellants, their attorneys representing them in the action, negligently failed to recognize that, and thus failed in asserting that Idaho Funding post the claim and delivery bond required by
Second, appellants claim that the trial court responded incorrectly to a question of the jury regarding plaintiffs’ claim in their complaint for attorney fees. The jury asked the judge whether it could award Fuller & Meservy and Mink the attorney fees the Wolters owed to them and also find that Fuller & Meservy and Mink had breached their contract under which those services to the Wolters were provided. The trial court answered the question “no.” Appellants assert that was error. However, the Wolters were alleging a substantial and material breach of contract and professional duty by Fuller & Meservy аnd Mink in representing them which, if correct, would have constituted a material breach of the attorney-client contract and would have precluded the attorneys from suing under the contract. Nelson v. Hazel, 89 Idaho 480, 406 P.2d 138 (1965), appeal after remand, 91 Idaho 850, 433 P.2d 120 (1967) (“A person may not enforce collection under a contract which has not been performed.“). The jury found a substantial breach of contract and professional duty on the part of Fuller & Meservy and Mink and assessed damages against them in the sum of $454,772. As we conclude in Part IV, the record supports the jury‘s finding of breach and damages, except for the minor modification of $3,559.10 referred to in Part I above. It would have been inconsistent to instruct the jury that Fuller & Meservy and Mink could recover on their claim of fees under their attorney-client employment contract and, at the same time, instruct the jury that they could
III. EVIDENTIARY ISSUES
Appellants raise several evidentiary issues on appeal. They claim that the trial court erred by prohibiting two judges from testifying with respect to Mink‘s competence, by prohibiting appellants from offering evidence regarding Martin Wolters’ prior misdemeanor conviction, by allowing one expert witness to testify outside of his area of expertise, and by allegedly permitting lawyer witnesses to speculate on what Mink should have done at the show-cause hearing.
We affirm the trial court with regard to all these evidentiary rulings. Trial courts have discretion in admitting evidence at trial, and on appeal their decisions will be reversed only upon a showing of a clear abuse of discretion. Baker v. Shavers, Inc., 117 Idaho 696, 791 P.2d 1275 (1990).
Regarding the proposed testimony by two local judges, the district court stated that “as the tenor of Canon 2 [of the Idaho Code of Judicial Conduct] suggests, policy and ethical considerations require that judicial testimony be carefully evaluated for admissibility purposes. Specifically, that testimony must be examined for probative value on a case by case basis weighed against prejudicе and particularly the requirements of Canon 2.” The Idaho Code of Judicial Conduct, Canon 2, states in part:
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He shall not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. Except in a proceeding involving him personally or in response to an official summons, a judge shall not testify as witness in any court proceeding.
The trial court also did not err in excluding evidence of Martin Wolters’ prior misdemeanor conviction for failure to file a federal tax return.
Finally, appellants claim that the trial court erred by allowing certain witnesses to testify. Appellants first claim that respondents’ witness Glenn Ferrell was erroneously permitted to testify regarding farm real estate rental values, subjects outside of those mentioned in respondents’ disсovery responses, and that the testimony of respondents’ lawyer-experts was speculative because they testified on the type of argument Mink could have made at
As to the claim that the other lawyer-witnesses were allowed to speculate in testifying as to the standards of practice within the community, such expert testimony as to whether appellants’ conduct conformed to that standard was relevant to the issue of legal malpractice. The claim that parts of the reasons for the opinions rendered were based upon speculation goes to its weight more than its admissibility—at least the trial court apparently so concluded. Appellants have not demonstrated an abuse of discretion.
IV. JURY VERDICT
Fuller & Meservy and Mink argue that the jury‘s verdict was based on speculation and conjecture, such that the triаl court erred in failing to direct a verdict or enter a judgment notwithstanding the verdict in favor of them. They contend that the Wolters’ business losses were based on speculation and estimates and that the verdict was in excess of actual damages. They further claim that if the speculative evidence had not been allowed, no verdict could have been sustained in favor of the Wolters.
In Big Butte Ranch, Inc. v. Grasmick, 91 Idaho 6, 10, 415 P.2d 48, 52 (1966), this Court heard a similar claim that a jury‘s verdict which awarded damages for crop losses was “excessive and contrary to the evidence because insufficient evidence was produced.” In response, this Court stated:
Appellant argues any amount awarded must necessarily have been based upon speculation, guess or conjecture. The record however does not support that contention. Granted that damages could not here be determined with mathematical exactness, yet the authorities make clear that such precision is not required. Damages need be proved only with a reasonable certainty and the courts have concluded this simply means that the existence of damages must be taken out of the realm of speculation. Certainly a party who has breached his contract will not ordinarily be permitted to escape liability because of the difficulty or uncertainty of proving the damages which have resulted.
In Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), we stated:
In determining whether a directed verdict or judgment n.o.v. should have been granted, the appellate court applies the same standard as does the trial court which passed on the motion originally. . . . . Hence, this Court must review the record of the trial below and draw all inferences from the evidence in a light most favor-able to the non-moving party to determine if there was substantial evidence to justify submitting the case to the jury. Based upon our review of the record on this standard, we conclude that there was substantial evidence to justify submitting the case to the jury.
111 Idaho at 764, 727 P.2d 1187.
In this case, we also conclude that “there was substantial evidence to justify submit
V. PREJUDGMENT INTEREST
Appellants next argue that the trial judge improperly granted respondents’ motion for prejudgment interest on the portion of Wolters’ claim that was based on the Idaho Funding judgment. Appellants assert that Chenery v. Agri-Lines Corp, 115 Idaho 281, 766 P.2d 751 (1988), upon which the trial court relied to award prejudgment interest, does not apply because in that case, the amount of damages was not relitigated in the second action, while here the amount of damages were relitigаted. Since appellants did not defend against the damages issue in Idaho Funding, they claim it would be inequitable to require them to compensate the Wolters for the alleged loss of use of their money resulting from their inability to satisfy their judgment against the parties in Idaho Funding.
The trial court relied primarily on Chenery to award prejudgment interest to the Wolters, stating:
In Chenery v. Agri-Lines Corporation, 115 Idaho 281, 766 P.2d 751 (1988), plaintiff sued defendant for damages suffered as a result of a defective pump. Thereafter, the defendant filed a third party action against Layne Pump, Inc. The defendant settled its lawsuit with plaintiff and then a jury trial was held on the third-party action. The Court held that the defendant-third-party plaintiff was entitled to prejudgment interest from the date it settled with plaintiffs for that was the date the amount “was ascertained аnd subject to mathematical calculation. The Court agreed with the assertion that Agri-Lines liability in this instance was ascertainable since the damages were established by its settlement prior to trial with Chenery and the Spencers, and that the only issue in the subsequent third-party action was whether Layne would be responsible for all, none, or a portion of the monies paid by Agri-Lines.” [766 P.2d] at 759.
A judgment was entered in favor of Wolters on May 6, 1987, for $76,952.90, and interest would accrue as of the date of that judgment. The amount of crop loss damage for 1986 was fixed. Although the jury awarded an amount larger than could be awarded, the amount of damage can be said to be fixed as May 6, 1987.
We agrеe with the trial court‘s conclusion and application of Chenery. The Wolters were awarded a judgment for $76,952.90 for crop loss in 1986 in the Idaho Funding suit, but they were unable to collect on the judgment, in part because, as the jury found, Fuller & Meservy and Mink were negligent in not asserting the bond required by the claim and delivery statutes. The trial court in this case limited relitigation of the 1986 damages issue under the doctrine of collateral estoppel. This bar set the upper limit of the amount of damages incurred by the Wolters in 1986 at $76,952.90. The only question remaining with regard to the 1986 damages issue was whether Fuller & Meservy and Mink were liable for those damages. The amount of damages incurred by the Wolters in subsequent yeаrs and whether appellants were liable for those damages were still unliquidated claims, and no interest was allowed on those damages. But as to the 1986 damages, they were liquidated and ascertainable as a result of the Idaho Funding
Appellants argue that since no money was due from them on the Idaho Funding judgment, they should not be required to pay interest on that award. While the appellants owed the Wolters no money as a result of the Idaho Funding case, the prejudgment interest awarded in this case is not on the Idaho Funding judgment, although that judgment would bear interest in the statutory amount. The interest awardеd was on the present judgment. The Idaho Funding case merely set the amount of damages for 1986 crop losses that the Wolters incurred, and thus those damages were liquidated and ascertainable. The damages occurred in 1986, and the jury in this case determined that appellants were responsible for those damages. The trial court did not err in awarding prejudgment interest on the award for 1986 damages.
In Davis v. Professional Business Services, 109 Idaho 810, 712 P.2d 511 (1985), we stated that “[g]enerally prejudgment interest is not awarded in tort cases.... There are exceptions to this rule, including when damages are reasonably certain in amount through reference to market values or by computation.” 109 Idaho at 815. Because the 1986 crop loss dаmages had been previously adjudicated, they were certain and ascertainable, and thus the trial court did not err in awarding prejudgment interest on those 1986 damages under Chenery v. Agri-Lines Corp., supra.
VI. COSTS AND ATTORNEY FEES
Finally, appellants argue that the trial court erred in awarding costs to respondents and in not making express findings as to why specific items of discretionary costs were allowed. They argue that since respondents did not prevail on all issues (appellants were awarded summary judgment on several issues), an award of costs to respondents was not appropriate. Respondents, on the other hand, argue that the trial court has discretion to grant costs and that the party disputing an аward of costs has the burden of showing the court‘s abuse of discretion.
The trial court has discretion to determine who is the prevailing party regarding an award of costs. Gilbert v. City of Caldwell, 112 Idaho 386, 732 P.2d 355 (Ct.App.1987), appeal after remand 115 Idaho 1035, 772 P.2d 242; Evans v. Sawtooth Partners, 111 Idaho 381, 723 P.2d 925 (Ct.App.1986); Ace Realty, Inc. v. Anderson, 106 Idaho 742, 682 P.2d 1289 (Ct.App.1984). In this case, the trial court specifically stated that the Wolters were the prevailing party. We find no error with this conclusion.
However, we do find error in the trial court‘s awarding of all of the costs which the Wolters claimed.
Finally, appellants, on direct appeal, claim they are entitled to attorney fees under
Respondents cross appealed from the district court‘s denial of their attorney fees, claiming that a contract for attorney services involves a commercial transaction under Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989), which held that
JOHNSON, BOYLE and McDEVITT, JJ., concur.
BISTLINE, Justice, concurring and dissenting.
I concur fully with the majority opinion except for the part in which the district court‘s denial of the Wolters’ attorney fees is affirmed. The Wolters should be granted attorney fees under
BAKES
CHIEF JUSTICE